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Code · REGISTER · 2008-03-28 · PROPOSED RULES TRICARE · Agriculture Agriculture Department See Forest Service See Rural Business-Cooperative Service See Rural Housing Service Army Army Department See Engineers Corps Arts Arts and Humanities, National Found · Unknown

Unknown. Final rule

123,074 words·~559 min read·/register/2008/03/28/08-1083

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

--- schema: federal-register doc_type: fedreg source_file: FR-2008-03-28.xml --- 73 61 Friday, March 28, 2008 Contents Agriculture Agriculture Department See Forest Service See Rural Business-Cooperative Service See Rural Housing Service Army Army Department See Engineers Corps Arts Arts and Humanities, National Foundation See National Foundation on the Arts and the Humanities Blind Blind or Severely Disabled, Committee for Purchase From People Who Are See Committee for Purchase From People Who Are Blind or Severely Disabled Centers Centers for Disease Control and Prevention NOTICES Removing Chemicals From Future Editions of CDC's National Report on Human Exposure to Environmental Chemicals, 16685-16688 E8-6350 Centers Centers for Medicare & Medicaid Services NOTICES Medicare and Medicaid Programs:
Approval of Community Health Accreditation Program for Continued Deeming Authority for Home Health Agencies, 16688-16690 E8-5073 Approval of Joint Commission for Continued Deeming Authority for Home Health Agencies, 16690-16691 E8-5074 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration Commission of Fine Commission of Fine Arts NOTICES Meetings: U.S. Commission of Fine Arts, 16651 E8-6231 Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement list;
Additions and Deletions, 16639-16640 E8-6402 E8-6403 Commodity Commodity Futures Trading Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16651-16652 E8-6490 Defense Defense Department See Engineers Corps See Navy Department RULES Federal Acquisition Regulation: Trade Agreements-New Thresholds, FAR Case 2007-016; Correction, 16747 Z8-3390 Military Recruiting and Reserve Officer Training Corps Program Access to Institutions of Higher Education, 16525-16531 E8-6536 PROPOSED RULES TRICARE Program and Employee-Sponsored Group Health Plans Relationship, 16612-16614 E8-6419 NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 16652 E8-6374 Meetings: Defense Science Board Advisory Committee, 16652-16653 E8-6421 Drug Drug Enforcement Administration NOTICES Controlled Substances Importer; Application, 16717-16718 E8-6375 E8-6376 Controlled Substances Importer; Registration, 16711, 16718-16719 E8-6368 E8-6372 E8-6391 Controlled Substances Manufacturer; Application, 16711, 16719-16720 E8-6359 E8-6364 E8-6401 Controlled Substances Manufacturer; Registration, 16711-16713 E8-6379 E8-6384 E8-6385 E8-6386 E8-6389 Denial Of Applications:
Hi-Tech Pharmaceutcals, Inc., 16715-16717 E8-6377 Memphis Wholesale Co.; Declaratory Order Terminating Exemption From Registration, 16713-16715 E8-6378 Education Education Department NOTICES Meetings: President's Board of Advisors on Historically Black Colleges and Universities, 16655-16656 E8-6482 Projects With Industry Program, FY 2008; Inviting Applications for New Awards, 16656-16660 E8-6453 Employment Employment and Training Administration NOTICES Allotments and Additional Funds From WIA;
PY 2008, 16721-16723 E8-6331 Negative Determination on Reconsideration: F.L. Smithe Machine Co., 16724 E8-6369 Energy Energy Department See Federal Energy Regulatory Commission Engineers Engineers Corps NOTICES Environmental Impact Statement, Draft; Intent: Potable Water Supply for Washington Parish Reservoir Project, 16653 E8-6447 Environmental Impact Statement, Intent: Proposed Sierra Vista Specific Plan Project, 16653-16654 E8-6444 EPA Environmental Protection Agency RULES Approval and Promulgation of State Implementation Plans:
Utah; Interstate Transport of Pollution and Other Revisions, 16543-16547 E8-6275 Nonattainment and Reclassification of 8-hour Ozone Nonattainment Area: Memphis, TN/Crittenden County, AR, 16547-16553 E8-6287 Pesticide Tolerance: Boscalid, 16553-16559 E8-6264 S-Abscisic Acid; Temporary Exemption Tolerance Requirement, 16559-16562 E8-6404 PROPOSED RULES Approval and Promulgation of State Implementation Plans: Utah; Interstate Transport of Pollution and Other Revisions, 16614 E8-6272 Pesticide Container Recycling;
Secretary of Agriculture Notification, 16614-16615 E8-6396 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16669-16671 E8-6408 Environmental Impacts Statements; Weekly Receipt, 16672-16673 E8-6424 Environmental Impact Statements and Regulations; Comments, 16671-16672 E8-6422 Filing: Pesticide Petition for Residues of Pesticide Chemicals in or on Various Commodities, 16673-16674 E8-6413 Leaking Underground Storage Tank Prevention Assistance Agreements, etc., 16674-16675 E8-6400 Meetings:
Pesticide Program Dialogue Committee Pesticide Registration Improvement Act Process Improvement Workgroup, 16675 E8-6410 Pesticide Products; Registration Applications, 16676-16677 E8-6266 Registration Review; Biopesticide Dockets Opened for Review and Comment, 16677-16679 E8-6394 Science Advisory Board Homeland Security Advisory Committee; Nominations, 16679-16680 E8-6405 FAA Federal Aviation Administration RULES Airworthiness Directives: Various Transport Category Airplanes Equipped with Auxiliary Fuel Tanks Installed in Accordance with Certain Supplemental Type Certificates, 16515-16517 E8-6298 PROPOSED RULES Airworthiness Directives:
Bombardier Model DHC 8 400 Series Airplanes, 16577-16579 E8-6300 Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model ERJ 170 and ERJ 190 Airplanes, 16575-16577 E8-6304 Proposed Establishment of Class E Airspace: Salida, CO, 16579-16580 E8-6317 Federal Energy Federal Energy Regulatory Commission PROPOSED RULES Mandatory Reliability Standard for Nuclear Plant Interface Coordination, 16586-16604 E8-6320 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16660-16661 E8-6414 Application:
Williston Basin Interstate Pipeline Company, 16661-16662 E8-6312 Blanket Authorization Request: Northern Natural Gas Co., 16664 E8-6417 Combined Notice of Filing, 16665-16667 E8-6425 E8-6426 Environmental Impact Statement, Draft: Floridian Natural Gas Storage Co., LLC, 16662-16663 E8-6311 Environmental Impact Statement, Final: Gulf Crossing Pipeline Co., LLC et al., 16663-16664 E8-6315 Filing: Arlington Storage Co., LLC, 16667 E8-6415 Duquesne Light Co., 16667 E8-6313 Issuance of Order:
Benton County Wind Farm LLC, 16668 E8-6416 Energy Exchange Direct, LLC, 16668 E8-6314 Records Governing Off-the-Record Communications, 16668-16669 E8-6310 Federal Highway Federal Highway Administration NOTICES Agency Information Collection Activities; Request for Comments: Environmental Streamlining, 16738-16739 E8-6318 Federal Reserve Federal Reserve System NOTICES Change in Bank Control Notices; Acquisition of Shares of Bank or Bank Holding Companies, 16680 E8-6361 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 16680-16681 E8-6288 Proposals to Engage in Permissible Nonbanking Activities or to Acquire Companies That Are Engaged in Permissible Nonbanking Activities, 16681 E8-6360 FTC Federal Trade Commission NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 16681-16683 E8-6451 Fine Arts Fine Arts Commission See Commission of Fine Arts Forest Forest Service NOTICES Environmental Impact Statement, Intent: Cibola National Forest Invasive Plant Management Project; Cancellation, 16621 E8-6328 Environmental Impact Statement, Supplemental; Intent: Bridger-Teton National Forest, 16621-16622 E8-6229 New Recreation Fee Site, 16622-16623 E8-6191 E8-6192 Woody Biomass Utilization Grant Award, 16623 E8-6395 GSA General Services Administration RULES Federal Acquisition Regulation:
Trade Agreements-New Thresholds, FAR Case 2007-016; Correction, 16747 Z8-3390 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16652 E8-6374 Multiple Award Schedule Advisory Panel; Establishment, 16683 E8-6547 Health Health and Human Services Department See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See National Institutes of Health NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16683-16684 E8-6398 Meetings:
National Vaccine Program Office on Vaccine Financing, 16684-16685 E8-6433 Homeland Homeland Security Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16695-16697 E8-6324 E8-6337 E8-6344 Committee Management; Federal Advisory Council Meeting, 16697-16698 E8-6347 Housing Housing and Urban Development Department PROPOSED RULES Mortgagee Review Board, 16605-16610 E8-6323 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals:
Emergency Comment Request — Continuum of Care Homeless Assistance Application, 16698 E8-6319 Federal Property Suitable as Facilities to Assist the Homeless, 16698-16702 E8-6097 Indian Indian Affairs Bureau NOTICES Environmental Impact Statement, Final: Scotts Valley Band of Pomo Indians Trust Transfer and Gaming Development Project; Contra Costa County, CA, 16703-16704 E8-6346 Grant Availability to Federally Recognized Indian Tribes: Traffic Safety Projects on Indian Reservations, 16704-16706 E8-6349 Interior Interior Department See Indian Affairs Bureau See Land Management Bureau See National Park Service NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 16702-16703 E8-6399 IRS Internal Revenue Service RULES Standards for Recognition of Tax-Exempt Status if Private Benefit Exists, etc., 16519-16525 E8-6305 TIPRA Amendments to Section 199; Correction, 16518-16519 E8-6309 PROPOSED RULES Automatic Contribution Arrangements; Hearing, 16610 E8-6308 Reduction of Foreign Tax Credit Limitation Categories Under Section 904(d); Hearing Cancellation, 16610-16611 E8-6306 Treatment of Overall Foreign and Domestic Losses;
Hearing Cancellation, 16611 E8-6307 International International Trade Administration RULES Withdrawal of Regulations Governing the Treatment of Subcontractors Tolling Operations, 16517-16518 E8-6499 NOTICES Fresh Garlic from the People's Republic Republic of China: Extension of Time Limit for Final Results of the Twelfth Administrative Review, 16640 E8-6449 Glycine From India: Final Determination of Sales at Less Than Fair Value, 16640-16642 E8-6450 Justice Justice Department See Drug Enforcement Administration Labor Labor Department See Employment and Training Administration See Labor-Management Standards Office NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 16720-16721 E8-6335 E8-6338 MISSING FOR: Labor-Management Standards Office Labor-Management Standards Office PROPOSED RULES Labor Organization Annual Financial Reports, 16611-16612 E8-6301 Land Land Management Bureau NOTICES Alaska Native Claims Selection, 16706-16707 E8-6348 Realty Action; Modified Competitive Sealed Bid Sale of Public Lands in Clark County, Nevada, 16707-16710 E8-6353 Terminated Oil and Gas Leases: Proposed Reinstatement, 16707 E8-6345 NASA National Aeronautics and Space Administration RULES Federal Acquisition Regulation:
Trade Agreements-New Thresholds, FAR Case 2007-016; Correction, 16747 Z8-3390 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16652 E8-6374 National Credit National Credit Union Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16724-16725 E8-6351 E8-6356 National Foundation National Foundation on the Arts and the Humanities NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16725 E8-6452 National Highway National Highway Traffic Safety Administration PROPOSED RULES Environmental Impact Statement, Intent:
New Corporate Average Fuel Economy Standards, 16615-16617 E8-6227 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16737, 16739-16743 E8-6418 E8-6454 E8-6455 Vehicle Theft Prevention Standard; Petition for Exemption: Nissan, 16743-16744 E8-6493 NIH National Institutes of Health NOTICES Government-Owned Inventions; Availability for Licensing, 16691-16694 E8-6316 Meetings: National Cancer Institute, 16694 E8-6198 National Heart, Lung, and Blood Institute, 16694 E8-6196 National Institute of Allergy and Infectious Diseases, 16694-16695 E8-6194 National Institute of Diabetes and Digestive and Kidney Diseases, 16695 E8-6195 National Institute on Aging, 16695 E8-6200 National National Intelligence, Office of the Director RULES Privacy Act;
Implementation, 16531-16543 E8-5904 NOAA National Oceanic and Atmospheric Administration RULES Fisheries of the Northeastern United States: Total Allowable Catches for Eastern Georges Bank Cod, Eastern Georges Bank Haddock, and Georges Bank Yellowtail Flounder, 16571-16574 E8-6442 Trip Limit Reduction: Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper/Grouper Resources, 16571 E8-6434 PROPOSED RULES Endangered and Threatened Wildlife: Notice of 90-Day Finding on a Petition to List the Ribbon Seal as a Threatened or Endangered Species, 16617-16619 E8-6432 Marine Mammals;
Advance Notice of Proposed Rulemaking, 16617 E8-6443 Revisions to Channel Islands National Marine Sanctuary Regulations, 16580-16586 E8-6178 South Pacific Tuna Fisheries: Establishment of Limits on Entry or Effort in the Purse Seine Fishery in the Western and Central Pacific Ocean, 16619-16620 E8-6457 NOTICES Fisheries Off West Coast States and in the Western Pacific: Pacific Coast Groundfish Fishery; Exempted Fishing Permit Application, 16642-16643 E8-6430 Meetings: New England Fishery Management Council, 16643-16645 E8-6438 E8-6439 E8-6440 Public Meetings Western Pacific Fishery Management Council, 16645 08-1083 Taking and Importing Marine Mammals:
Mammals Incidental to Surf Zone Testing/Training and Amphibious Vehicle Training and Weapons Testing, 16646-16651 E8-6441 National Park National Park Service NOTICES General Management Plan/Environmental Impact Statement, Final: Pipestone National Monument, MN, 16710 E8-6334 Termination of Restoration Plan/Programmatic Environmental Impact Statement for Seagrass Restoration Within Biscayne National Park, 16710 E8-6321 National Science National Science Foundation NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 16725-16726 E8-6420 Meetings: Review Panel for Materials Research, 16726 E8-6366 Navy Navy Department NOTICES Environmental Impact Statement, Draft: Proposed Homeporting of Additional Surface Ships, Naval Station Mayport, FL; Public Hearing, 16654-16655 E8-6446 Nuclear Nuclear Regulatory Commission PROPOSED RULES Revision of Fee Schedules; Fee Recovery for FY 2008; Correction, 16747-16749 Z8-2412 NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 16726-16727 E8-6381 E8-6397 Environmental Assessment, etc.: James Madison University Facility; Harrisonburg, VA, 16727-16729 E8-6392 Environmental Impact Statement, Intent, etc.: Three Mile Island Nuclear Station, 16729-16731 E8-6388 Meetings: Advisory Committee on Reactor Safeguards (ACRS)— Subcommittee Meeting on Thermal-Hydraulic Phenonmena, 16731 E8-6362 National Office of the Director of National Intelligence See National Intelligence, Office of the Director Pipeline Pipeline and Hazardous Materials Safety Administration RULES Pipeline Safety:
Administrative Procedures, Address Updates, and Technical Amendments, 16562-16571 E8-5926 Postal Postal Service NOTICES Meetings; Sunshine Act, 16731 E8-6245 Rural Rural Business-Cooperative Service NOTICES Inviting Applications for Rural Economic Development Loan and Grant Program for Fiscal Year 2008, 16624 E8-6322 Rural Rural Housing Service NOTICES Availability of Funds; Multi-Family Housing, Single Family Housing, 16624-16638 E8-6332 SEC Securities and Exchange Commission NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 16731-16733 E8-6382 E8-6383 E8-6423 Meetings; Sunshine Act, 16733 E8-6371 SBA Small Business Administration NOTICES Disaster Declaration: Georgia, 16733 E8-6387 Illinois, 16733-16734 E8-6390 Indiana, 16734 E8-6380 Social Social Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16734-16737 E8-6435 State State Department NOTICES Meetings: Advisory Committee for the Study of Eastern Europe and the Independent States of the Former Soviet Union, 16737 E8-6427 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See National Highway Traffic Safety Administration See Pipeline and Hazardous Materials Safety Administration NOTICES Applications for Certificates of Public Convenience and Necessity, etc., 16737-16738 E8-6479 Aviation Proceedings;
Agreements Filed, 16738 E8-6456 Treasury Treasury Department See Internal Revenue Service Veterans Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16744-16746 E8-6358 E8-6363 E8-6365 E8-6367 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 73 61 Friday, March 28, 2008 Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No.
FAA-2007-0389; Directorate Identifier 2007-NM-222-AD; Amendment 39-15450; AD 2008-07-09] RIN 2120-AA64 Airworthiness Directives; Various Transport Category Airplanes Equipped With Auxiliary Fuel Tanks Installed in Accordance With Certain Supplemental Type Certificates AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: We are adopting a new airworthiness directive
(AD)for various transport category airplanes. This AD requires deactivation of Southeast Aero-Tek, Inc., auxiliary fuel tanks. This AD results from fuel system reviews conducted by the manufacturer, which identified potential unsafe conditions for which the manufacturer has not provided corrective actions. We are issuing this AD to prevent 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. DATES: This AD is effective May 2, 2008. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone 800-647-5527) is the Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Robert Bosak, Aerospace Engineer, Propulsion and Services Branch, ACE-118A, FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, Suite 450, Atlanta, Georgia 30349; telephone
(770)703-6094; fax
(770)703-6097. SUPPLEMENTARY INFORMATION: Discussion We issued a notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an airworthiness directive
(AD)that would apply to various transport category airplanes equipped with auxiliary fuel tanks installed in accordance with certain supplemental type certificates (STCs). That NPRM was published in the **Federal Register** on January 2, 2008 (73 FR 84). That NPRM proposed to require deactivation of Southeast Aero-Tek, Inc., auxiliary fuel tanks. Comments We gave the public the opportunity to participate in developing this AD. We considered the comment received from the one commenter. Request To Clarify Proposed Applicability FedEx Express requests that we clarify the applicability statement in the NPRM to state that the AD does not apply to airplanes where auxiliary tanks were removed by an FAA-approved method. FedEx states that the unsafe condition does not exist on these airplanes. We agree that the unsafe condition does not exist on the airplanes FedEx describes. We have included a statement in paragraph
(c)of the final rule that excludes these airplanes. Explanation of Change to Product Identification Line We have changed the product identification line of the AD from “Various Transport Category Airplanes” to “Southeast Aero-Tek, Inc.” In ADs written against products with an STC, that statement is intended to identify the name of the STC holder. Conclusion We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD. Costs of Compliance The following table provides the estimated costs for the 37 U.S.-registered airplanes to comply with this AD. Based on these figures, the estimated costs for U.S. operators could be as high as $239,760 to prepare and report the deactivation procedures, and $133,200 to deactivate tanks. Estimated Costs Action Work hours Average labor rate per hour Parts Individual cost Report 1 $80 None $80, per STC. Preparation of tank deactivation procedure 80 80 None $6,400, per STC. Physical tank deactivation 30 80 $1,200 $3,600, per airplane. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: “Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD:
(1)Is not a “significant regulatory action” under Executive Order 12866,
(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979), and
(3)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. You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 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: **2008-07-09 Southeast Aero-Tek, Inc.:** Amendment 39-15450. Docket No. FAA-2007-0389; Directorate Identifier 2007-NM-222-AD. Effective Date
(a)This airworthiness directive
(AD)is effective May 2, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to airplanes, certificated in any category, equipped with auxiliary fuel tanks installed in accordance with specified supplemental type certificates (STCs), as identified in Table 1 of this AD. This AD does not apply to any airplane where an auxiliary fuel tank was installed in accordance with an STC identified in Table 1 of this AD and subsequently removed by an FAA-approved method. Table 1.—Affected Airplanes Airplanes Auxiliary tank STC(s) Boeing Model 727-100 series airplanes ST01587AT Boeing Model 727-200 and -200F series airplanes SA2033NM, SA1474SO McDonnell Douglas Model DC-9-14 airplanes SA1334NM McDonnell Douglas Model DC-9-32, DC-9-32 (VC-9C), DC-9-32F, DC-9-33F, and DC-9-32F (C-9A, C-9B) airplanes SA1710SO, SA1358NM Unsafe Condition
(d)This AD results from fuel system reviews conducted by the manufacturer, which identified potential unsafe conditions for which the manufacturer has not provided corrective actions. We are issuing this AD to prevent 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. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Report
(f)Within 45 days after the effective date of this AD, submit a report to the Manager, Atlanta Aircraft Certification Office (ACO), FAA. The report must include the information listed in paragraphs (f)(1) and (f)(2) of this AD. Under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ), the Office of Management and Budget
(OMB)has approved the information collection requirements contained in this AD, and assigned OMB Control Number 2120-0056.
(1)The airplane registration and auxiliary tank STC number installed.
(2)The usage frequency in terms of total number of flights per year and total number of flights per year for which the auxiliary tank is used. Prevent Usage of Auxiliary Fuel Tanks
(g)On or before December 16, 2008, deactivate the auxiliary fuel tanks, in accordance with a deactivation procedure approved by the Manager, Atlanta ACO. Any auxiliary tank component that remains on the airplane must be secured and must have no effect on the continued operational safety and airworthiness of the airplane. Deactivation may not result in the need for additional instructions for continued airworthiness. Note 1: Appendix A of this AD provides criteria that should be included in the deactivation procedure. The proposed deactivation procedures should be submitted to the Manager, Atlanta ACO, as soon as possible to ensure timely review and approval. Note 2: For technical information, contact Randy Smith, President, Southeast Aero-Tek, Inc., 675 Oleander Drive, Merritt Island, Florida 32952; telephone
(321)453-7876; fax
(321)453-7872. Alternative Methods of Compliance (AMOCs) (h)(1) The Manager, Atlanta ACO, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Material Incorporated by Reference
(i)None. Appendix A—Deactivation Criteria The auxiliary fuel tank deactivation procedure required by paragraph
(g)of this AD should address the following actions.
(1)Permanently drain auxiliary fuel tanks, and clear them of fuel vapors to eliminate the possibility of out-gassing of fuel vapors from the emptied auxiliary tank.
(2)Disconnect all electrical connections from the fuel quantity indication system (FQIS), fuel pumps if applicable, float switches, and all other electrical connections required for auxiliary tank operation, and stow them at the auxiliary tank interface.
(3)Disconnect all pneumatic connections if applicable, cap them at the pneumatic source, and secure them.
(4)Disconnect all fuel feed and fuel vent plumbing interfaces with airplane original equipment manufacturer
(OEM)tanks, cap them at the airplane tank side, and secure them in accordance with a method approved by the FAA; one approved method is specified in Advisory Circular 25-8 Fuel Tank Flammability Minimization. In order to eliminate the possibility of structural deformation during cabin decompression, leave open and secure the disconnected auxiliary fuel tank vent lines.
(5)Pull and collar all circuit breakers used to operate the auxiliary tank.
(6)Revise the weight and balance document, if required, and obtain FAA approval.
(7)Amend the applicable sections of the applicable airplane flight manual
(AFM)to indicate that the auxiliary fuel tank is deactivated. Remove auxiliary fuel tank operating procedures to ensure that only the OEM fuel system operational procedures are contained in the AFM. Amend the Limitations Section of the AFM to indicate that the AFM Supplement for the STC is not in effect. Place a placard in the flight deck indicating that the auxiliary tank is deactivated. The AFM revisions specified in this paragraph may be accomplished by inserting a copy of this AD into the AFM.
(8)Amend the applicable sections of the applicable airplane maintenance manual to remove auxiliary tank maintenance procedures.
(9)After the auxiliary fuel tank is deactivated, accomplish procedures such as leak checks and pressure checks deemed necessary before returning the airplane to service. These procedures must include verification that the airplane FQIS and fuel distribution systems have not been adversely affected.
(10)Include with the operator's proposed procedures any relevant information or additional steps that are deemed necessary by the operator to comply with the deactivation and return the airplane to service. Issued in Renton, Washington, on March 20, 2008. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-6298 Filed 3-27-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF COMMERCE International Trade Administration 19 CFR Part 351 [Docket No. 080225304-8463-01] RIN 0625-AA77 Import Administration, Withdrawal of Regulations Governing the Treatment of Subcontractors (“Tolling” Operations) ACTION: Interim final rule. SUMMARY: Import Administration issues this interim final rule for the purpose of withdrawing its regulation governing the treatment of tollers or subcontractors for purposes of determining export price, constructed export price, fair value, and normal value in antidumping duty proceedings. DATES: This interim final rule is effective on March 28, 2008. Although the amendment made by this Interim Final Rule is effective on March 28, 2008, Import Administration seeks public comments. To be assured of consideration, written comments must be received not later than April 28, 2008. ADDRESSES: Comments on this Interim Final Rule must be sent to David M. Spooner, Assistant Secretary for Import Administration, Central Records Unit, Room 1870, U.S. Department of Commerce, Pennsylvania Avenue. FOR FURTHER INFORMATION CONTACT: Michael Rill, telephone 202-482-3058. SUPPLEMENTARY INFORMATION: The Department promulgated the regulation governing the treatment of tollers or subcontractors in antidumping duty proceedings on May 19, 1997 (“Antidumping Duties; Countervailing Duties; Final Rule”) (62 FR 27296, 27411 (May 19, 1997)). The Department regulation, 19 CFR 351.401(h), was intended to ensure, in calculating a dumping margin on merchandise determined to be within the scope of an antidumping order, that the Department's analysis is focused on the party setting the price of subject merchandise when the manufacture of such merchandise is subcontracted to another company. However, the regulation has been interpreted by the Court of International Trade as having the unintended effect of bestowing the status of “foreign manufacturer” or “producer” upon parties in the United States that otherwise would have assumed the status of purchasers of subject merchandise. See *USEC Inc.* v. *United States* , 281 F. Supp. 2d 1334 (2003), *aff'd on other grounds Eurodif* v. *United States* , 411 F.3d 1355, 1364 (Fed. Cir. 2005). This interpretation could restrict the Department's exercise of its discretion and could require the Department to identify the incorrect entity as the seller of subject merchandise, which would adversely affect the Department's antidumping determinations. If a party that customarily assumes the status of a “purchaser” is bestowed with the status of “foreign manufacturer” or “producer”, the proper application of the law is thwarted in a variety of ways. First, in some cases, the Department may have no basis upon which to make antidumping duty determinations because the customers who obtain the status of “foreign producer” make no sales of subject merchandise, but instead consume the merchandise themselves. In such cases, the Department would be unable to calculate a dumping margin. In other cases, the Department's determination of the margin of dumping could be distorted or miscalculated because the incorrect U.S. sales were identified as the relevant sales under the regulation. Second, the right to appeal Department antidumping determinations is a right limited to interested parties as defined under 19 U.S.C. 1677(9). Purchasers of subject merchandise do not qualify as interested parties under the provision. Purchasers who have obtained the status of “foreign producers” under the regulation, however, become interested parties in error, and are afforded the right to appeal Department antidumping determinations where no such right was intended under the law. These effects are contrary to the Department's intention in promulgating the regulation, and inconsistent with the Department's statutory mandate to provide relief to domestic industries suffering material injury from unfairly traded imports. The Department has a statutory duty under the Tariff Act of 1930, as amended, to determine instances of dumping by examining the price at which the merchandise is first sold in the United States. The regulation at issue, as recently interpreted, confounds the Department's ability to make such a determination. Because the regulation is applicable to on-going antidumping investigations and administrative reviews, and because the application of the regulation can act to deny relief to domestic industries suffering material injury from unfairly traded imports, immediate revocation is necessary to ensure the proper and efficient operation of the antidumping law and to provide the relief intended by Congress. The Department is not replacing this regulation with a new regulation. Instead, the Department is returning to a case-by-case adjudication, until additional experience allows the Department to gain greater understanding of the problem. Parties are invited to comment on the Department's withdrawal of the regulation governing the treatment of tollers or subcontractors in antidumping duty proceedings. Parties should submit to the address under the ADDRESSES heading, a signed original and two copies of each set of comments including reasons for any recommendation, along with a cover letter identifying the commenter's name and address. To be assured of consideration, written comments must be received not later than April 28, 2008. Classification Executive Order 12866 It has been determined that this interim final rule is not significant for purposes of Executive Order 12866 of September 30, 1993 (“Regulatory Planning and Review”) (58 FR 51735 (October 4, 1993)). Paperwork Reduction Act This interim final rule contains no new collection of information subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35. Executive Order 13132 This rule does not contain policies with federalism implications as that term is defined in section 1(a) of Executive Order 13132, dated August 4, 1999 (64 FR 43255 (August 10, 1999)). Administrative Procedure Act The Assistant Secretary for Import Administration 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. The regulation has been interpreted to restrict the Department's exercise of its discretion and, in such cases, requires the Department to identify the incorrect entity as the seller of subject merchandise, which adversely affects the Department's antidumping determinations. The Department's antidumping regulation, 19 CFR 351.401(h), is intended to ensure that the antidumping analysis is focused on the party setting the price of subject merchandise when the manufacture of such merchandise is subcontracted to another company. The regulation has been construed to have the unintended effect of bestowing the status of “foreign manufacturer” or “foreign producer” on parties in the United States that would have otherwise assumed the status of “purchasers”. As described in the preamble, if a party that customarily assumes the status of a “purchaser” is bestowed the status of “foreign manufacturer” or “foreign producer”, the proper application of the law is thwarted. This effect is contrary to the Department's intention in promulgating the regulation, and inconsistent with the Department's statutory mandate to provide relief to domestic industries suffering material injury from unfairly traded imports. Courts have determined that notice and comment is impracticable when “the agency could both follow section 553 and execute its statutory duties.” *Lavesque* v. *Block* , 723 F.2d 175, 184 (5th Cir. 1980). It went further to clarify that the Administrative Procedure Act good cause waiver authorizes departures from the requirements “only when compliance would interfere with the agency's ability to carry out its mission.” *Riverbend Farms, Inc.* v. *Madigan* , 958 F.2d 1479, 1485. Here, the Department has a statutory duty under the Tariff Act of 1930, as amended, to determine instances of dumping by examining the price at which the merchandise is first sold in the United States. The regulation at issue confounds the Department's ability to make such a determination. Because the regulation is applicable to on-going antidumping investigations and administrative reviews, and because the application of the regulation can act to deny relief to domestic industries suffering material injury from unfairly traded imports, immediate revocation is necessary to ensure the proper and efficient operation of the antidumping law and to provide the relief intended by Congress. The Assistant Secretary for Import Administration also finds good cause to waive the 30-day delay in effectiveness, pursuant to the authority set forth at 5 U.S.C. 553(e) for the reasons given above. As described in the preamble, if a party that customarily assumes the status of a “purchaser” is bestowed the status of “foreign manufacturer” or “foreign producer”, the proper application of the law is thwarted. This effect is contrary to the Department's intention in promulgating the regulation, and inconsistent with the Department's statutory mandate to provide relief to domestic industries suffering material injury from unfairly traded imports. The regulation at issue confounds the Department's ability to make such a determination. Because the regulation is applicable to on-going antidumping investigations and administrative reviews, and because the application of the regulation can act to deny relief to domestic industries suffering material injury from unfairly traded imports, immediate revocation is necessary to ensure the proper and efficient operation of the antidumping law and to provide the relief intended by Congress. Regulatory Flexibility Act Because a notice and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) are not applicable. Therefore, a regulatory flexibility analysis has not been prepared. List of Subjects in 19 CFR Part 351 Administrative practice and procedure, Antidumping duties, Business and industry, Cheese, Confidential business information, Investigations, Reporting and recordkeeping requirements. For the reasons stated above, amend 19 CFR part 351 as follows: PART 351—ANTIDUMPING AND COUNTERVAILING DUTIES 1. The authority citation for part 351 continues to read as follows: Authority: 5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303 note; 19 U.S.C. 1671 *et seq.* ; and 19 U.S.C. 3538. § 351.401 [Amended] 2. Amend § 351.401 by removing and reserving paragraph (h). Dated: March 21, 2008. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. E8-6499 Filed 3-27-08; 8:45 am] BILLING CODE 3510-DS-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9381] RIN 1545-BF79 TIPRA Amendments to Section 199; Correction AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Correcting amendment. SUMMARY: This document contains a correction to final regulations (TD 9381) that were published in the **Federal Register** on Friday, February 15, 2008 (73 FR 8798) concerning the amendments made by the Tax Increase Prevention and Reconciliation Act of 2005 to section 199 of the Internal Revenue Code. These final regulations also contain a rule concerning the use of losses incurred by members of an expanded affiliated group and affect taxpayers engaged in certain domestic production activities. DATES: The correction is effective March 28, 2008. FOR FURTHER INFORMATION CONTACT: Concerning §§ 1.199-2(e)(2) and 1.199-8(i)(5), Paul Handleman or David McDonnell,
(202)622-3040; concerning §§ 1.199-3(i)(7) and (8), and 1.199-5, William Kostak,
(202)622-3060; and concerning §§ 1.199-7(b)(4) and 1.199-8(i)(6), Ken Cohen,
(202)622-7790 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background The final regulations (TD 9381) that are the subject of the correction are under section 199 of the Internal Revenue Code. Need for Correction As published, final regulations (TD 9381) contain an error that may prove to be misleading and is in need of clarification. List of Subjects in 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. Correction of Publication Accordingly, 26 CFR part 1 is corrected by making the following amendment: PART 1—INCOME TAXES **Paragraph 1** . The authority citation for part 1 continues to read, in part, as follows: Authority: 26 U.S.C. 7805 * * * **Par. 2** . Section 1.199-8 is amended by revising the last sentence of paragraph (i)(5) to read as follows: § 1.199-8 Other rules.
(i)* * *
(5)* * * A taxpayer may apply §§ 1.199-2(e)(2), 1.199-3(i)(7) and (8), and 1.199-5 to taxable years beginning after May 17, 2006, and before October 19, 2006, regardless of whether the taxpayer otherwise relied upon Notice 2005-14 (2005-1 CB 498) (see § 601.601(d)(2)(ii)( *b* ) of this chapter), the provisions of REG-105847-05 (2005-2 CB 987), or §§ 1.199-1 through 1.199-8. LaNita Van Dyke, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration). [FR Doc. E8-6309 Filed 3-27-08; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Parts 1 and 53 [TD 9390] RIN 1545-BE37 Standards for Recognition of Tax-Exempt Status if Private Benefit Exists or if an Applicable Tax-Exempt Organization Has Engaged in Excess Benefit Transaction(s) AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulations. SUMMARY: This document contains final regulations that clarify the substantive requirements for tax exemption under section 501(c)(3) of the Internal Revenue Code (Code). This document also contains provisions that clarify the relationship between the substantive requirements for tax exemption under section 501(c)(3) and the imposition of section 4958 excise taxes on excess benefit transactions. These regulations affect organizations described in section 501(c)(3) of the Code and organizations applying for exemption as organizations described in section 501(c)(3) of the Code. DATES: *Effective Date:* These regulations are effective March 28, 2008. FOR FURTHER INFORMATION CONTACT: Galina Kolomietz,
(202)622-7971 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background On September 9, 2005, a notice of proposed rulemaking (REG-111257-05, 2005-42 CB 759) clarifying the substantive requirements for tax exemption under section 501(c)(3) of the Code, and the relationship between the substantive requirements for tax exemption under section 501(c)(3) and the imposition of section 4958 excise taxes was published in the **Federal Register** (70 FR 53599). The IRS received several written comments responding to this notice. After consideration of all comments received, the proposed regulations under sections 501(c)(3) and 4958 are revised and published in final form. The major areas of comments and revisions are discussed in the following preamble. (See § 601.601(d)(2)(ii)( *b* )). Explanation and Summary of Comments Private Benefit The proposed regulations added several examples to illustrate the requirement in § 1.501(c)(3)-1(d)(1)(ii) that an organization serve a public rather than a private interest. The purpose of the examples is to illustrate that prohibited private benefit may involve non-economic benefits as well as economic benefits and that prohibited private benefit may arise regardless of whether payments made to private interests are reasonable or excessive. One comment suggested that, rather than add three isolated examples on private benefit to the regulations, the IRS consider a broader revision of the regulations under section 501(c)(3) to provide a more detailed discussion of the underlying principles of the private benefit doctrine. In particular, this comment suggested that the regulations address the relative quantity of private benefit that could preclude exemption. The IRS and the Treasury Department are not revising the existing regulations under section 501(c)(3) at this time. The new examples in the proposed regulations clarify the principles of the private benefit doctrine under current law. In § 1.501(c)(3)-1(d)(1)(iii), Example 1 illustrates that private benefit may involve non-economic benefits. Example *2* illustrates that private benefit is inconsistent with tax-exempt status under section 501(c)(3) if it is substantial and not merely incidental to the accomplishment of the organization's exempt purposes. Example *3* illustrates that private benefit may exist even though the transaction is at fair market value. Moreover, these examples are intended to illustrate the principle that private benefit remains an independent basis for revocation even if it does not involve economic benefit or raise fair market value issues. Accordingly, these examples are adopted in final form without revision. Revocation Standards The proposed regulations provided guidance on certain factors that the IRS will consider in determining whether an applicable tax-exempt organization described in section 501(c)(3) that engages in one or more excess benefit transactions continues to be described in section 501(c)(3). The comments received in response to the proposed regulations are discussed below. Overall, the commentators reacted favorably to the factors set forth in the proposed regulations. The factors described in the proposed regulations are finalized without major revisions. The application of the factors is refined by the addition of a new example to the final regulations. a. Interaction With Determination of Existence of Excess Benefit Transaction Two comments suggested that the final regulations clarify the interaction between the determination of the organization's tax-exempt status and the determination of the existence of an excess benefit transaction. One of these comments specifically requested that the final regulations state that the IRS will not take any action to remove an organization's tax exemption on excess benefit transaction grounds while the IRS's determination of the existence of an excess benefit transaction is itself being contested in court. The final regulations do not adopt this comment. The determination of an organization's tax-exempt status and the determination of the existence of an excess benefit transaction are separate determinations, involving distinct parties, different legal elements, and separate processes, even though they may relate to the same facts. b. Clarification of Terms Two comments voiced the need to clarify the terms “significant” and “de minimis” as they are used in the proposed regulations. One of these comments suggested adding an example of a safe harbor based on specific amounts the IRS would consider clearly insignificant, perhaps as a percentage of overall expenditures. Because the determination of whether an activity or an amount is “significant” or “de minimis” depends on the facts and circumstances, the final regulations do not adopt this comment. One comment suggested adding examples combining potential de minimis values with other abating or negative factors and/or examples containing values that are not de miminis. The final regulations contain a new example that illustrates the application of the revocation factors to an excess benefit transaction that is neither significant in comparison to the size and scope of the organization's exempt activities nor de minimis. One comment requested clarification of the term “repeated” as used in Example 3 of § 1.501(c)(3)-1(g) of the proposed regulations. The term was used in that example to correspond to the third factor in the proposed regulations, which looked to “whether the organization has been involved in repeated excess benefit transactions.” In response to this comment, the third factor of the proposed regulations is revised to substitute the term “multiple” for the word “repeated.” The term “multiple” refers to both
(1)repeated instances of the same (or substantially similar) excess benefit transaction, regardless of whether the transaction involves the same or different persons; and
(2)the presence of more than one excess benefit transaction, regardless of whether the transactions are the same or substantially similar and regardless of whether they involve the same or different persons. Another comment requested guidance regarding when the IRS would consider the presence of a single excess benefit transaction to jeopardize an organization's tax-exempt status. Because such a determination would depend on the facts and circumstances, the final regulations do not adopt the comment. c. Due Diligence and Safeguards One comment requested that evidence that an organization's board of directors conducted appropriate due diligence or followed certain safeguards in connection with the excess benefit transaction be treated as a factor weighing in favor of continuing to recognize exemption. The IRS and the Treasury Department agree that the organization's reliance on objectively reasonable internal controls and procedures, such as the procedures for establishing a rebuttable presumption of reasonableness, in approving a transaction that is later determined to be an excess benefit transaction, should be treated as a factor weighing in favor of continuing to recognize exemption. Accordingly, the fourth factor under the proposed regulations is revised to make clear that implementation by an organization of safeguards that are reasonably calculated to prevent excess benefit transactions will be treated as a factor weighing in favor of continuing to recognize exemption regardless of whether such safeguards are implemented in direct response to the excess benefit transaction(s) at issue or as a general matter of corporate governance or fiscal management. Thus, an organization may be treated as having implemented safeguards reasonably calculated to prevent excess benefit transactions even though the organization is contesting the existence of the excess benefit transaction(s) at issue. An example is added to illustrate how implementation of safeguards, including preexisting safeguards, will be taken into account in determining whether to continue to recognize an organization's tax-exempt status. One comment suggested that an organization's good faith attempt to establish a rebuttable presumption of reasonableness within the meaning of § 53.4958-6 be treated as a factor weighing in favor of continuing to recognize exemption. Another comment suggested that a good faith attempt by an organization's board of directors to determine fair market value be treated as a factor precluding revocation even if the IRS disagrees with the board's fair market value analysis. The fourth factor, as revised in these final regulations, takes into account whether the organization has implemented safeguards that are reasonably calculated to prevent excess benefit transactions. This factor takes safeguards into account, regardless of whether they were implemented before or after an excess benefit transaction occurred. The comments raise the question of how this factor will apply where steps have been taken to avoid an excess benefit transaction, but nonetheless have failed to prevent the excess benefit transaction. The weight afforded to this particular circumstance will depend upon the specific facts and circumstances. d. Requests for Additional Examples Two comments suggested adding to the proposed regulations an example specifically addressing reasonable compensation. In response to these comments, the new example added by these final regulations addresses reasonable compensation. One comment suggested that the regulations include examples involving health care organizations. The IRS and the Treasury Department note that the application of sections 501(c)(3) and 4958 to health care organizations is not unique. The examples in these regulations, although not specifically involving health care organizations, apply to health care organizations in the same manner as they apply to other organizations described in section 501(c)(3). One comment criticized the examples in the proposed regulations as too “black-and-white” and suggested that the regulations be supplemented with examples that discuss less clear facts. Specifically, this comment requested guidance on situations involving more than de minimis amounts in which an applicable tax-exempt organization does not seek correction from the disqualified person involved. The new example added by these final regulations illustrates that, in some situations, even in the absence of correction of non-de minimis excess benefit transactions, an organization may retain its tax-exempt status if the other factors, in combination, warrant continued exemption. Under the fifth factor, the IRS will take into account the organization's good faith with respect to correction. Accordingly, the reasons behind the organization's failure to seek correction will be examined. One comment suggested adding an example that would illustrate what factors, in addition to post-audit correction, would be sufficient to avoid revocation. The example that has been added illustrates a case where factors other than correction support continued exemption. The IRS and the Treasury Department may consider publication of future guidance on the application of the factors based on other specific fact patterns that the IRS encounters in the course of tax administration. One comment requested adding an example discussing the effect of “automatic excess benefit transactions” that are not de minimis on the organization's tax-exempt status. The term “automatic excess benefit transaction” refers to a transaction in which a disqualified person provides services to an organization and receives economic benefits from the organization that are not substantiated, contemporaneously and in writing, as compensation within the meaning of § 53.4958-4(c). After the enactment of the Pension Protection Act of 2006, Public Law 109-280 (120 Stat. 780 (2006)), the term “automatic excess benefit transaction” also refers to any grant, loan, compensation or other similar payment from a donor advised fund to a donor or donor advisor with respect to such fund and from a supporting organization to any of its disqualified persons. See section 4958(c)(2) and (3). Although not in the context of an automatic excess benefit transaction, the new example in the final regulations involves an excess benefit transaction that is not de minimis. e. Removal of Disqualified Person One comment suggested that the regulations address whether and under what circumstances removal of a disqualified person may be necessary to avoid revocation. The new example added by these final regulations illustrates that removal of a disqualified person is not a necessary condition for continued exemption. In the example, the organization implemented safeguards designed to prevent future excess benefit transactions involving the same disqualified persons. f. Best Practices One comment described specific actions that boards of applicable tax-exempt organizations should be required to take to improve governance and to prevent excess benefit transactions at their organizations. This comment was not adopted because the purpose of these regulations is to set forth an analytical framework for determining whether to revoke tax-exempt status if an organization engages in one or more excess benefit transactions. Special Analyses It has been determined that this regulation is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to this regulation, and because this regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding this regulation was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on business. Drafting Information The principal authors of these regulations are Galina Kolomietz and Phyllis Haney, Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the IRS and the Treasury Department participated in their development. List of Subjects 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. 26 CFR Part 53 Excise taxes, Foundations, Investments, Lobbying, Reporting and recordkeeping requirements. Amendments to the Regulations Accordingly, 26 CFR parts 1 and 53 are amended as follows: PART 1—INCOME TAXES **Paragraph 1** . The authority citation for part 1 continues to read, in part, as follows: Authority: 26 U.S.C. 7805 * * * **Par. 2** . Section 1.501(c)(3)-1 is revised by: 1. Redesignating paragraph (d)(1)(iii) as paragraph (d)(1)(iv) and adding a new paragraph (d)(1)(iii). 2. Redesignating paragraph
(f)as paragraph
(g)and adding a new paragraph (f). The additions read as follows: § 1.501(c)(3)-1 Organizations organized and operated for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or for the prevention of cruelty to children or animals.
(d)* * *
(1)* * *
(iii)*Examples.* The following examples illustrate the requirement of paragraph (d)(1)(ii) of this section that an organization serve a public rather than a private interest: Example 1.
(i)O is an educational organization the purpose of which is to study history and immigration. O's educational activities include sponsoring lectures and publishing a journal. The focus of O's historical studies is the genealogy of one family, tracing the descent of its present members. O actively solicits for membership only individuals who are members of that one family. O's research is directed toward publishing a history of that family that will document the pedigrees of family members. A major objective of O's research is to identify and locate living descendants of that family to enable those descendants to become acquainted with each other.
(ii)O's educational activities primarily serve the private interests of members of a single family rather than a public interest. Therefore, O is operated for the benefit of private interests in violation of the restriction on private benefit in paragraph (d)(1)(ii) of this section. Based on these facts and circumstances, O is not operated exclusively for exempt purposes and, therefore, is not described in section 501(c)(3). Example 2.
(i)O is an art museum. O's principal activity is exhibiting art created by a group of unknown but promising local artists. O's activity, including organized tours of its art collection, promotes the arts. O is governed by a board of trustees unrelated to the artists whose work O exhibits. All of the art exhibited is offered for sale at prices set by the artist. Each artist whose work is exhibited has a consignment arrangement with O. Under this arrangement, when art is sold, the museum retains 10 percent of the selling price to cover the costs of operating the museum and gives the artist 90 percent.
(ii)The artists in this situation directly benefit from the exhibition and sale of their art. As a result, the sole activity of O serves the private interests of these artists. Because O gives 90 percent of the proceeds from its sole activity to the individual artists, the direct benefits to the artists are substantial and O's provision of these benefits to the artists is more than incidental to its other purposes and activities. This arrangement causes O to be operated for the benefit of private interests in violation of the restriction on private benefit in paragraph (d)(1)(ii) of this section. Based on these facts and circumstances, O is not operated exclusively for exempt purposes and, therefore, is not described in section 501(c)(3). Example 3.
(i)O is an educational organization the purpose of which is to train individuals in a program developed by P, O's president. The program is of interest to academics and professionals, representatives of whom serve on an advisory panel to O. All of the rights to the program are owned by Company K, a for-profit corporation owned by P. Prior to the existence of O, the teaching of the program was conducted by Company K. O licenses, from Company K, the right to conduct seminars and lectures on the program and to use the name of the program as part of O's name, in exchange for specified royalty payments. Under the license agreement, Company K provides O with the services of trainers and with course materials on the program. O may develop and copyright new course materials on the program but all such materials must be assigned to Company K without consideration if and when the license agreement is terminated. Company K sets the tuition for the seminars and lectures on the program conducted by O. O has agreed not to become involved in any activity resembling the program or its implementation for 2 years after the termination of O's license agreement.
(ii)O's sole activity is conducting seminars and lectures on the program. This arrangement causes O to be operated for the benefit of P and Company K in violation of the restriction on private benefit in paragraph (d)(1)(ii) of this section, regardless of whether the royalty payments from O to Company K for the right to teach the program are reasonable. Based on these facts and circumstances, O is not operated exclusively for exempt purposes and, therefore, is not described in section 501(c)(3).
(f)*Interaction with section 4958* —(1) *Application process.* An organization that applies for recognition of exemption under section 501(a) as an organization described in section 501(c)(3) must establish its eligibility under this section. The Commissioner may deny an application for exemption for failure to establish any of section 501(c)(3)'s requirements for exemption. Section 4958 does not apply to transactions with an organization that has failed to establish that it satisfies all of the requirements for exemption under section 501(c)(3). See § 53.4958-2.
(2)*Substantive requirements for exemption still apply to applicable tax-exempt organizations described in section 501(c)(3)* —(i) *In general.* Regardless of whether a particular transaction is subject to excise taxes under section 4958, the substantive requirements for tax exemption under section 501(c)(3) still apply to an applicable tax-exempt organization (as defined in section 4958(e) and § 53.4958-2) described in section 501(c)(3) whose disqualified persons or organization managers are subject to excise taxes under section 4958. Accordingly, an organization will no longer meet the requirements for tax-exempt status under section 501(c)(3) if the organization fails to satisfy the requirements of paragraph (b),
(c)or
(d)of this section. See § 53.4958-8(a).
(ii)*Determination of whether revocation of tax-exempt status is appropriate when section 4958 excise taxes also apply.* In determining whether to continue to recognize the tax-exempt status of an applicable tax-exempt organization (as defined in section 4958(e) and § 53.4958-2) described in section 501(c)(3) that engages in one or more excess benefit transactions (as defined in section 4958(c) and § 53.4958-4) that violate the prohibition on inurement under section 501(c)(3), the Commissioner will consider all relevant facts and circumstances, including, but not limited to, the following—
(A)The size and scope of the organization's regular and ongoing activities that further exempt purposes before and after the excess benefit transaction or transactions occurred;
(B)The size and scope of the excess benefit transaction or transactions (collectively, if more than one) in relation to the size and scope of the organization's regular and ongoing activities that further exempt purposes;
(C)Whether the organization has been involved in multiple excess benefit transactions with one or more persons;
(D)Whether the organization has implemented safeguards that are reasonably calculated to prevent excess benefit transactions; and
(E)Whether the excess benefit transaction has been corrected (within the meaning of section 4958(f)(6) and § 53.4958-7), or the organization has made good faith efforts to seek correction from the disqualified person(s) who benefited from the excess benefit transaction.
(iii)All factors will be considered in combination with each other. Depending on the particular situation, the Commissioner may assign greater or lesser weight to some factors than to others. The factors listed in paragraphs (f)(2)(ii)(D) and
(E)of this section will weigh more heavily in favor of continuing to recognize exemption where the organization discovers the excess benefit transaction or transactions and takes action before the Commissioner discovers the excess benefit transaction or transactions. Further, with respect to the factor listed in paragraph (f)(2)(ii)(E) of this section, correction after the excess benefit transaction or transactions are discovered by the Commissioner, by itself, is never a sufficient basis for continuing to recognize exemption.
(iv)*Examples.* The following examples illustrate the principles of paragraph (f)(2)(ii) of this section. For purposes of each example, assume that O is an applicable tax-exempt organization (as defined in section 4958(e) and § 53.4958-2) described in section 501(c)(3). The examples read as follows: Example 1.
(i)O was created as a museum for the purpose of exhibiting art to the general public. In Years 1 and 2, O engages in fundraising and in selecting, leasing, and preparing an appropriate facility for a museum. In Year 3, a new board of trustees is elected. All of the new trustees are local art dealers. Beginning in Year 3 and continuing to the present, O uses a substantial portion of its revenues to purchase art solely from its trustees at prices that exceed fair market value. O exhibits and offers for sale all of the art it purchases. O's Form 1023, “Application for Recognition of Exemption,” did not disclose the possibility that O would purchase art from its trustees.
(ii)O's purchases of art from its trustees at more than fair market value constitute excess benefit transactions between an applicable tax-exempt organization and disqualified persons under section 4958. Therefore, these transactions are subject to the applicable excise taxes provided in that section. In addition, O's purchases of art from its trustees at more than fair market value violate the proscription against inurement under section 501(c)(3) and paragraph (c)(2) of this section.
(iii)The application of the factors in paragraph (f)(2)(ii) of this section to these facts is as follows. Beginning in Year 3, O does not engage primarily in regular and ongoing activities that further exempt purposes because a substantial portion of O's activities consists of purchasing art from its trustees and dealing in such art in a manner similar to a commercial art gallery. The size and scope of the excess benefit transactions collectively are significant in relation to the size and scope of any of O's ongoing activities that further exempt purposes. O has been involved in multiple excess benefit transactions, namely, purchases of art from its trustees at more than fair market value. O has not implemented safeguards that are reasonably calculated to prevent such improper purchases in the future. The excess benefit transactions have not been corrected, nor has O made good faith efforts to seek correction from the disqualified persons who benefited from the excess benefit transactions (the trustees). The trustees continue to control O's Board. Based on the application of the factors to these facts, O is no longer described in section 501(c)(3) effective in Year 3. Example 2.
(i)The facts are the same as in *Example 1* , except that in Year 4, O's entire board of trustees resigns, and O no longer offers all exhibited art for sale. The former board is replaced with members of the community who are not in the business of buying or selling art and who have skills and experience running charitable and educational programs and institutions. O promptly discontinues the practice of purchasing art from current or former trustees, adopts a written conflicts of interest policy, adopts written art valuation guidelines, hires legal counsel to recover the excess amounts O had paid its former trustees, and implements a new program of activities to further the public's appreciation of the arts.
(ii)O's purchases of art from its former trustees at more than fair market value constitute excess benefit transactions between an applicable tax-exempt organization and disqualified persons under section 4958. Therefore, these transactions are subject to the applicable excise taxes provided in that section. In addition, O's purchases of art from its trustees at more than fair market value violate the proscription against inurement under section 501(c)(3) and paragraph (c)(2) of this section.
(iii)The application of the factors in paragraph (f)(2)(ii) of this section to these facts is as follows. In Year 3, O does not engage primarily in regular and ongoing activities that further exempt purposes. However, in Year 4, O elects a new board of trustees comprised of individuals who have skills and experience running charitable and educational programs and implements a new program of activities to further the public's appreciation of the arts. As a result of these actions, beginning in Year 4, O engages in regular and ongoing activities that further exempt purposes. The size and scope of the excess benefit transactions that occurred in Year 3, taken collectively, are significant in relation to the size and scope of O's regular and ongoing exempt function activities that were conducted in Year 3. Beginning in Year 4, however, as O's exempt function activities grow, the size and scope of the excess benefit transactions that occurred in Year 3 become less and less significant as compared to the size and extent of O's regular and ongoing exempt function activities. O was involved in multiple excess benefit transactions in Year 3. However, by discontinuing its practice of purchasing art from its current and former trustees, by replacing its former board with independent members of the community, and by adopting a conflicts of interest policy and art valuation guidelines, O has implemented safeguards that are reasonably calculated to prevent future violations. In addition, O has made a good faith effort to seek correction from the disqualified persons who benefited from the excess benefit transactions (its former trustees). Based on the application of the factors to these facts, O continues to meet the requirements for tax exemption under section 501(c)(3). Example 3.
(i)O conducts educational programs for the benefit of the general public. Since its formation, O has employed its founder, C, as its Chief Executive Officer. Beginning in Year 5 of O's operations and continuing to the present, C caused O to divert significant portions of O's funds to pay C's personal expenses. The diversions by C significantly reduced the funds available to conduct O's ongoing educational programs. The board of trustees never authorized C to cause O to pay C's personal expenses from O's funds. Certain members of the board were aware that O was paying C's personal expenses. However, the board did not terminate C's employment and did not take any action to seek repayment from C or to prevent C from continuing to divert O's funds to pay C's personal expenses. C claimed that O's payments of C's personal expenses represented loans from O to C. However, no contemporaneous loan documentation exists, and C never made any payments of principal or interest.
(ii)The diversions of O's funds to pay C's personal expenses constitute excess benefit transactions between an applicable tax-exempt organization and a disqualified person under section 4958. Therefore, these transactions are subject to the applicable excise taxes provided in that section. In addition, these transactions violate the proscription against inurement under section 501(c)(3) and paragraph (c)(2) of this section.
(iii)The application of the factors in paragraph (f)(2)(ii) of this section to these facts is as follows. O has engaged in regular and ongoing activities that further exempt purposes both before and after the excess benefit transactions occurred. However, the size and scope of the excess benefit transactions engaged in by O beginning in Year 5, collectively, are significant in relation to the size and scope of O's activities that further exempt purposes. Moreover, O has been involved in multiple excess benefit transactions. O has not implemented any safeguards that are reasonably calculated to prevent future diversions. The excess benefit transactions have not been corrected, nor has O made good faith efforts to seek correction from C, the disqualified person who benefited from the excess benefit transactions. Based on the application of the factors to these facts, O is no longer described in section 501(c)(3) effective in Year 5. Example 4.
(i)O conducts activities that further exempt purposes. O uses several buildings in the conduct of its exempt activities. In Year 1, O sold one of the buildings to Company K for an amount that was substantially below fair market value. The sale was a significant event in relation to O's other activities. C, O's Chief Executive Officer, owns all of the voting stock of Company K. When O's board of trustees approved the transaction with Company K, the board did not perform due diligence that could have made it aware that the price paid by Company K to acquire the building was below fair market value. Subsequently, but before the IRS commences an examination of O, O's board of trustees determines that Company K paid less than the fair market value for the building. Thus, O concludes that an excess benefit transaction occurred. After the board makes this determination, it promptly removes C as Chief Executive Officer, terminates C's employment with O, and hires legal counsel to recover the excess benefit from Company K. In addition, O promptly adopts a conflicts of interest policy and new contract review procedures designed to prevent future recurrences of this problem.
(ii)The sale of the building by O to Company K at less than fair market value constitutes an excess benefit transaction between an applicable tax-exempt organization and a disqualified person under section 4958 in Year 1. Therefore, this transaction is subject to the applicable excise taxes provided in that section. In addition, this transaction violates the proscription against inurement under section 501(c)(3) and paragraph (c)(2) of this section.
(iii)The application of the factors in paragraph (f)(2)(ii) of this section to these facts is as follows. O has engaged in regular and ongoing activities that further exempt purposes both before and after the excess benefit transaction occurred. Although the size and scope of the excess benefit transaction were significant in relation to the size and scope of O's activities that further exempt purposes, the transaction with Company K was a one-time occurrence. By adopting a conflicts of interest policy and significant new contract review procedures and by terminating C, O has implemented safeguards that are reasonably calculated to prevent future violations. Moreover, O took corrective actions before the IRS commenced an examination of O. In addition, O has made a good faith effort to seek correction from Company K, the disqualified person who benefited from the excess benefit transaction. Based on the application of the factors to these facts, O continues to be described in section 501(c)(3). Example 5.
(i)O is a large organization with substantial assets and revenues. O conducts activities that further its exempt purposes. O employs C as its Chief Financial Officer. During Year 1, O pays $2,500 of C's personal expenses. O does not make these payments pursuant to an accountable plan, as described in § 53.4958-4(a)(4)(ii). In addition, O does not report any of these payments on C's Form W-2, “Wage and Tax Statement,” or on a Form 1099-MISC, “Miscellaneous Income,” for C for Year 1, and O does not report these payments as compensation on its Form 990, “Return of Organization Exempt From Income Tax,” for Year 1. Moreover, none of these payments can be disregarded as nontaxable fringe benefits under § 53.4958-4(c)(2) and none consisted of fixed payments under an initial contract under § 53.4958-4(a)(3). C does not report the $2,500 of payments as income on his individual Federal income tax return for Year 1. O does not repeat this reporting omission in subsequent years and, instead, reports all payments of C's personal expenses not made under an accountable plan as income to C.
(ii)O's payment in Year 1 of $2,500 of C's personal expenses constitutes an excess benefit transaction between an applicable tax-exempt organization and a disqualified person under section 4958. Therefore, this transaction is subject to the applicable excise taxes provided in that section. In addition, this transaction violates the proscription against inurement in section 501(c)(3) and paragraph (c)(2) of this section.
(iii)The application of the factors in paragraph (f)(2)(ii) of this section to these facts is as follows. O engages in regular and ongoing activities that further exempt purposes. The payment of $2,500 of C's personal expenses represented only a de minimis portion of O's assets and revenues; thus, the size and scope of the excess benefit transaction were not significant in relation to the size and scope of O's activities that further exempt purposes. The reporting omission that resulted in the excess benefit transaction in Year 1 occurred only once and is not repeated in subsequent years. Based on the application of the factors to these facts, O continues to be described in section 501(c)(3). Example 6.
(i)O is a large organization with substantial assets and revenues. O furthers its exempt purposes by providing social services to the population of a specific geographic area. O has a sizeable workforce of employees and volunteers to conduct its work. In Year 1, O's board of directors adopted written procedures for setting executive compensation at O. O's executive compensation procedures were modeled on the procedures for establishing a rebuttable presumption of reasonableness under § 53.4958-6. In accordance with these procedures, the board appointed a compensation committee to gather data on compensation levels paid by similarly situated organizations for functionally comparable positions. The members of the compensation committee were disinterested within the meaning of § 53.4958-6(c)(1)(iii). Based on its research, the compensation committee recommended a range of reasonable compensation for several of O's existing top executives (the Top Executives). On the basis of the committee's recommendations, the board approved new compensation packages for the Top Executives and timely documented the basis for its decision in board minutes. The board members were all disinterested within the meaning of § 53.4958-6(c)(1)(iii). The Top Executives were not involved in setting their own compensation. In Year 1, even though payroll expenses represented a significant portion of O's total operating expenses, the total compensation paid to O's Top Executives represented only an insubstantial portion of O's total payroll expenses. During a subsequent examination, the IRS found that the compensation committee relied exclusively on compensation data from organizations that perform similar social services to O. The IRS concluded, however, that the organizations were not similarly situated because they served substantially larger geographic regions with more diverse populations and were larger than O in terms of annual revenues, total operating budget, number of employees, and number of beneficiaries served. Accordingly, the IRS concluded that the compensation committee did not rely on “appropriate data as to comparability” within the meaning of § 53.4958-6(c)(2) and, thus, failed to establish the rebuttable presumption of reasonableness under § 53.4958-6. Taking O's size and the nature of the geographic area and population it serves into account, the IRS concluded that the Top Executives' compensation packages for Year 1 were excessive. As a result of the examination, O's board added new members to the compensation committee who have expertise in compensation matters and also amended its written procedures to require the compensation committee to evaluate a number of specific factors, including size, geographic area, and population covered by the organization, in assessing the comparability of compensation data. O's board renegotiated the Top Executives' contracts in accordance with the recommendations of the newly constituted compensation committee on a going forward basis. To avoid potential liability for damages under state contract law, O did not seek to void the Top Executives' employment contracts retroactively to Year 1 and did not seek correction of the excess benefit amounts from the Top Executives. O did not terminate any of the Top Executives.
(ii)O's payments of excessive compensation to the Top Executives in Year 1 constituted excess benefit transactions between an applicable tax-exempt organization and disqualified persons under section 4958. Therefore, these payments are subject to the applicable excise taxes provided under that section, including second-tier taxes if there is no correction by the disqualified persons. In addition, these payments violate the proscription against inurement under section 501(c)(3) and paragraph (c)(2) of this section.
(iii)The application of the factors in paragraph (f)(2)(ii) of this section to these facts is as follows. O has engaged in regular and ongoing activities that further exempt purposes both before and after the excess benefit transactions occurred. The size and scope of the excess benefit transactions, in the aggregate, were not significant in relation to the size and scope of O's activities that further exempt purposes. O engaged in multiple excess benefit transactions. Nevertheless, prior to entering into these excess benefit transactions, O had implemented written procedures for setting the compensation of its top management that were reasonably calculated to prevent the occurrence of excess benefit transactions. O followed these written procedures in setting the compensation of the Top Executives for Year 1. Despite the board's failure to rely on appropriate comparability data, the fact that O implemented and followed these written procedures in setting the compensation of the Top Executives for Year 1 is a factor favoring continued exemption. The fact that O amended its written procedures to ensure the use of appropriate comparability data and renegotiated the Top Executives' compensation packages on a going-forward basis are also factors favoring continued exemption, even though O did not void the Top Executives' existing contracts and did not seek correction from the Top Executives. Based on the application of the factors to these facts, O continues to be described in section 501(c)(3).
(3)*Applicability.* The rules in paragraph
(f)of this section will apply with respect to excess benefit transactions occurring after March 28, 2008. PART 53—FOUNDATION AND SIMILAR EXCISE TAXES **Par. 3** . The authority citation for part 53 continues to read, in part, as follows: Authority: 26 U.S.C. 7805 * * * **Par. 4** . In § 53.4958-2, paragraph (a)(6) is added to read as follows: § 53.4958-2 Definition of applicable tax-exempt organization.
(a)* * *
(6)*Examples.* The following examples illustrate the principles of this section, which defines an applicable tax-exempt organization for purposes of section 4958: Example 1. O is a nonprofit corporation formed under state law. O filed its application for recognition of exemption under section 501(c)(3) within the time prescribed under section 508(a). In its application, O described its plans for purchasing property from some of its directors at prices that would exceed fair market value. After reviewing the application, the IRS determined that because of the proposed property purchase transactions, O failed to establish that it met the requirements for an organization described in section 501(c)(3). Accordingly, the IRS denied O's application. While O's application was pending, O engaged in the purchase transactions described in its application at prices that exceeded the fair market values of the properties. Although these transactions would constitute excess benefit transactions under section 4958, because the IRS never recognized O as an organization described in section 501(c)(3), O was never an applicable tax-exempt organization under section 4958. Therefore, these transactions are not subject to the excise taxes provided in section 4958. Example 2. O is a nonprofit corporation formed under state law. O files its application for recognition of exemption under section 501(c)(3) within the time prescribed under section 508(a). The IRS issues a favorable determination letter in Year 1 that recognizes O as an organization described in section 501(c)(3). Subsequently, in Year 5 of O's operations, O engages in certain transactions that constitute excess benefit transactions under section 4958 and violate the proscription against inurement under section 501(c)(3) and § 1.501(c)(3)-1(c)(2). The IRS examines the Form 990, “Return of Organization Exempt From Income Tax”, that O filed for Year 5. After considering all the relevant facts and circumstances in accordance with § 1.501(c)(3)-1(f), the IRS concludes that O is no longer described in section 501(c)(3) effective in Year 5. The IRS does not examine the Forms 990 that O filed for its first four years of operations and, accordingly, does not revoke O's exempt status for those years. Although O's tax-exempt status is revoked effective in Year 5, under the *lookback* rules in paragraph (a)(1) of this section and § 53.4958-3(a)(1) of this chapter, during the five-year period prior to the excess benefit transactions that occurred in Year 5, O was an applicable tax-exempt organization and O's directors were disqualified persons as to O. Therefore, the transactions between O and its directors during Year 5 are subject to the applicable excise taxes provided in section 4958. Linda E. Stiff, Deputy Commissioner for Services and Enforcement. Approved: March 19, 2008. Eric Solomon, Assistant Secretary of the Treasury (Tax Policy). [FR Doc. E8-6305 Filed 3-27-08; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF DEFENSE Office of the Secretary 32 CFR Part 216 [DoD-2006-OS-0136] RIN 0790-AI15 Military Recruiting and Reserve Officer Training Corps Program Access to Institutions of Higher Education AGENCY: Department of Defense. ACTION: Final rule. SUMMARY: The Department of Defense revises the current rule addressing military recruiting and Reserve Officer Training Corps program access at institutions of higher education. This final rule implements 10 U.S.C. 983, as amended by the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (Pub. L. 108-375 (October 28, 2004)). As amended, 10 U.S.C. 983 clarifies access to campuses, access to students and access to directory information on students for the purposes of military recruiting, and now states that access to campuses and students on campuses shall be provided in a manner that is at least equal in quality and scope to that provided to any other employer. The prohibition against providing Federal funds when there is a violation of 10 U.S.C. 983 has an exception for any Federal funds provided to an institution of higher education, or to an individual, that are available solely for student financial assistance, related administrative costs, or costs associated with attendance. Such funds may be used for the purpose for which the funding is provided. A similar provision in section 8120 of the Department of Defense Appropriations Act of 2000 (Pub. L. 106-79; 113 Stat. 1260) has been repealed. This rule also rescinds the previous policy that established an exception that would limit recruiting on the premises of the covered school only in response to an expression of student interest when the covered school certified that too few students had expressed interest to warrant accommodating military recruiters. DATES: *Effective Date:* This rule is effective April 28, 2008. FOR FURTHER INFORMATION CONTACT: Christopher Arendt, telephone:
(703)695-5529). SUPPLEMENTARY INFORMATION: “Covered funds” is defined in 10 U.S.C. 983 to be any funds made available for the Departments of Defense, Transportation, Homeland Security, or National Nuclear Security Administration of the Department of Energy, the Central Intelligence Agency, or for any department or agency in which regular appropriations are made in the Departments of Labor, Health and Human Services, Education, and Related Agencies Appropriations Act. None of these covered funds may be provided by contract or grant to a covered school (including any subelement of a covered school) that has a policy or practice (regardless of when implemented) that either prohibits, or in effect prevents, the Secretary of Defense from establishing or operating a Senior Reserve Officer Training Corps
(ROTC)at that covered school (or any subelement of that covered school); or that either prohibits, or in effect prevents, a student at that covered school (or any subelement of that covered school) from enrolling in a ROTC unit at another institution of higher education. The Federal law further provides similar sanctions against these covered funds being provided to a covered school (or any subelement of a covered school) that has a policy or practice (regardless of when implemented) that either prohibits, or in effect prevents, the Secretary of a Military Department or Secretary of Homeland Security from gaining access to campuses, or access to students (who are 17 years of age or older) on campuses, for purposes of military recruiting, where such policy or practice denies the military recruiter access that is at least equal in quality and scope to the access to campuses and students provided to any other employer; or access to student directory information pertaining to the students' names, addresses, telephone listings, dates and places of birth, levels of education, academic majors, degrees received, and the most recent educational institution enrolled in by the student. The meaning and effect of the term “equal in quality and scope” was explained in the U.S. Supreme Court decision in *Rumsfeld* v. *Forum for Academic and Institutional Rights, Inc.* , 126 S. Ct. 1297 (2006). The term means the same access to campus and students provided by the school to any other nonmilitary recruiters or employers receiving the most favorable access. The focus is not on the content of a school's recruiting policy, but instead on the result achieved by the policy and compares the access provided military recruiters to that provided other recruiters. Therefore, it is insufficient to comply with the statute (10 U.S.C. 983) if the policy results in a greater level of access for other recruiters than for the military. As an exception to the above rule, any Federal funding provided to a covered school or to an individual that is available solely for student financial assistance, related administrative costs, or costs associated with attendance, may be used for the purpose for which the funding is provided. The Department of Defense drafted this rule in consultation with other Federal agencies, including the Departments of Education, Labor, Transportation, Health and Human Services, Homeland Security, Energy, and the Central Intelligence Agency. Agencies affected by this rule will continue to coordinate with other organizations as they implement their provisions. In addition, comments submitted by institutions and individuals following the publication of the proposed rule on May 7, 2007 (72 FR 25713) were considered and are reflected in this final rule. This rule defines the criteria for determining whether an institution of higher education has a policy or practice prohibiting or preventing the Secretary of Defense from maintaining, establishing, or efficiently operating a Senior ROTC unit; or has a policy of denying military recruiting personnel access that is at least equal in quality and scope to the access to campuses and students provided to any other employer, or access to directory information on students. Pursuant to 10 U.S.C. 983 and this, institutions of higher education having such policies or practices are ineligible for certain Federal funding. The criterion of “efficiently operating a Senior ROTC unit” refers generally to an expectation that the ROTC Department would be treated on a par with other academic departments; as such, it would not be singled out for unreasonable actions that would impede access to students (and vice versa) or restrict its operations. This rule also defines the procedures that would be followed in evaluating reports that a covered school has not met requirements defined in this rule. When a Component of the Department of Defense (DoD Component) believes that policies or practices of an institution of higher education might require such an evaluation, that Component is required to confirm the institution's policy in consultation with the institution. If that exchange suggests that the policy or practice could trigger a denial of funding, as required by the Act, the supporting facts would be forwarded through Department of Defense channels to the decision authority, the Principal Deputy Under Secretary of Defense for Personnel and Readiness (PDUSD(P&R)). In evaluating whether an institution that provides information in response to a request from a military recruiter for military recruiting purposes would violate the Family Educational Rights and Privacy Act of 1972, as amended, (FERPA; 20 U.S.C. 1232g), the Department of Education has informed the Department of Defense that it will not consider the act of providing responsive student information as required under the Act and this rule as an act that violates FERPA. Institutions must take care, however, to release only that information specifically required under 10 U.S.C. 983 and this rule. Regarding the opportunity for a student to “opt-out” of or object to the release of “directory information” under FERPA, the Department of Defense provides the following clarification. If an institution receives a request for student-recruiting information, and that request seeks information that the institution has included in its definition of “directory information” that is releasable under FERPA, and a student has previously requested, in writing, that the “directory information” not be disclosed to any third party, the Department of Defense agrees that information for that student will not be provided to the requesting military recruiter or Department of Defense. If an institution declines to provide student-recruiting information because a student has “opted-out” from the institution's policy of disclosing “directory information” under FERPA, the Department of Defense will not consider that institution to have denied access under 10 U.S.C. 983. The Department of Defense will honor only those student “opt-outs” from the disclosure of directory information that are even-handedly applied to all prospective employers seeking information for recruiting purposes. In those circumstances where an institution's “directory information” definition does not include all of the student-recruiting information required under 10 U.S.C. 983, the Department of Defense will also honor the student's “opt-out” decision that was made regarding the release of the institution's “directory information.” If an institution does not release all of the requested student-recruiting information as part of its “directory information” policy under FERPA (or has a policy of disclosing no “directory information”), the institution must nevertheless honor the request from a military recruiter for student-recruiting information concerning students who have not “opted-out”, even if that information would not be available to the public under FERPA. Because this information is requested exclusively for military recruiting, a special opportunity for a student to decline the release of student-recruiting information is not necessary or appropriate. Summary of Rule In carrying out their customary activities, DoD Components must identify any covered school that, by policy or practice, denies military recruiting personnel access to its campus or access to its students on campus in a manner that is at least equal in quality and scope to access provided to any other employer, in effect denies students permission to participate, or prevents students from participating in recruiting activities, or denies military recruiters access to student-recruiting information. The term “equal in quality and scope” means the same access to campus and students provided by the school to the any other nonmilitary recruiters or employers receiving the most favorable access. The focus is not on the content of a school's recruiting policy, but instead on the result achieved by the policy and compares the access provided military recruiters to that provided other recruiters. Therefore, it is insufficient to comply with the statute if the policy results in a greater level of access for other recruiters than for the military. When requests to schedule recruiting visits or to obtain student-recruiting information are unsuccessful, the DoD Component concerned must seek written confirmation of the school's present policy from the head of the covered school through a letter of inquiry, allowing 30 days for response. If written confirmation cannot be obtained, oral policy statements or attempts to obtain such statements from an appropriate official of the school shall be documented. A copy of the documentation shall be provided to the covered school, which shall be informed of its opportunity to forward clarifying comments within 30 days to accompany the DoD Component's submission to the PDUSD(P&R). When that 30-day period has elapsed, the DoD Component will forward the case for disposition. Similarly, in carrying out their customary activities, DoD Components also must identify any covered school that, by policy or practice, denies establishment, maintenance, or efficient operation of a unit of the Senior ROTC, or denies students permission to participate, or effectively prevents students from participating in a unit of the Senior ROTC at another institution of higher education. The DoD Component concerned must seek written confirmation of the school's policy from the head of the covered school through a letter of inquiry, allowing 30 days for response. If written confirmation cannot be obtained, oral policy statements or attempts to obtain such statements from an appropriate official of the school shall be documented. A copy of the documentation shall be provided to the covered school, which shall be informed of its opportunity to forward clarifying comments within 30 days to accompany the DoD Component's submission to the PDUSD(P&R). When that 30-day period has elapsed, the DoD Component will forward the case for disposition. The recommendation of the DoD Component then must be reviewed by the Secretary of the Military Department concerned, or designee, who shall evaluate responses to the letter of inquiry and other such information obtained in accordance with this part, and submit to the PDUSD(P&R) the names and addresses of covered schools that are believed to be in violation of 10 U.S.C. 983. Full documentation must be furnished to the PDUSD(P&R) for each such covered school, including the school's formal response to the letter of inquiry, documentation of any oral response, or evidence showing that attempts were made to obtain either written confirmation or an oral statement of the school's policies. Under agreement with the Department of Homeland Security, reports of covered schools believed to be in violation of 10 U.S.C. 983 with regard to the Coast Guard when not operating as a Service in the Navy shall be furnished to the PDUSD(P&R) for disposition. Following any determination by the PDUSD(P&R) that the policies or practices of an institution of higher education require ineligibility for certain Federal funding, as required by the Act, the PDUSD(P&R) shall: • Disseminate to Federal entities affected by the decision, including the DoD Components and the General Services Administration (GSA), and to the Secretary of Education and the head of each other department and agency the funds of which are subject to the determination, the names of the affected institutions. The PDUSD(P&R) also shall notify the Committees on Armed Services of the Senate and the House of Representatives; • Publish in the **Federal Register** each such determination, and publish in the **Federal Register** at least once every 6 months a list of all institutions currently determined to be ineligible for contracts and grants by reason of such determinations; and • Inform the affected institution that its funding eligibility may be restored if the school provides sufficient new information to establish that the basis for the determination no longer exists. This rule contains procedures under which funding may be restored. Not later than 45 days after receipt of a school's request to restore funding eligibility, the PDUSD(P&R) must determine whether the funding status of the covered school should be changed and notify the applicable school of that determination. Pursuant to that determination, entities of the Federal government affected by the decision, including the DoD Components and the GSA, shall be notified of any change in funding status. Other Matters In the event of any determination of ineligibility by the PDUSD(P&R), Federal departments and agencies concerned shall determine what funds provided by grant or contract to the covered school are affected and take appropriate action. As a result of this division of responsibility and the large number of Federal departments and agencies affected, this rule does not detail what specific funds are affected by any determination of ineligibility. This rule does not affect or cover any Federal funding that is provided to an institution of higher education or to an individual, to be available solely for student financial assistance, related administrative costs, or costs associated with attendance. This includes, but is not limited to, funds under the Federal Supplemental Educational Opportunity Grant Program (Title IV, Part A, Subpart 3 of the Higher Education Act of 1965, as amended), the Federal Work-Study Program (Title IV, Part C), and the Federal Perkins Loan Program (Title IV, Part E), the Federal Pell Grant Program (Title IV, Part A, Subpart 1), the Federal Family Education Loan Program (Title IV, Part B), and the William D. Ford Federal Direct Loan Program (Title IV, Part D). The Secretary of Education will provide additional information about the applicability of the rule to other Department of Education programs in communications to the affected communities. Regulatory Procedures Executive Order 12866, “Regulatory Planning and Review” It has been determined that 32 CFR part 216 is not a significant regulatory action. The rule does not:
(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities;
(2)Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency;
(3)Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or
(4)Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order. Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4) It has been certified that this rule does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year. Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601) It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. This rule establishes procedures for on-campus military recruiting and student access to Reserve Officer Training Corps
(ROTC)programs in implementation of 10 U.S.C. 983. Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35) It has been certified that this rule does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995. Executive Order 13132, “Federalism” It has been certified that this rule does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1)The States;
(2)The relationship between the National Government and the States; or
(3)The distribution of power and responsibilities among the various levels of Government. List of Subjects in 32 CFR Part 216 Armed forces; Colleges and universities. Accordingly, 32 CFR part 216 is revised to reflect the most recent statutory changes and to read as follows: PART 216—MILITARY RECRUITING AND RESERVE OFFICER TRAINING CORPS PROGRAM ACCESS TO INSTITUTIONS OF HIGHER EDUCATION Sec. 216.1 Purpose. 216.2 Applicability. 216.3 Definitions. 216.4 Policy. 216.5 Responsibilities. 216.6 Information requirements. Appendix A of part 216—Military Recruiting Sample Letter of Inquiry Appendix B of part 216—ROTC Sample Letter of Inquiry Authority: 10 U.S.C. 983. § 216.1 Purpose. This part:
(a)Implements 10 U.S.C. 983.
(b)Updates policy and responsibilities relating to the management of covered schools that have a policy of denying or effectively preventing military recruiting personnel access to their campuses or access to students on their campuses in a manner that is at least equal in quality and scope to the access to campuses and to students provided to any other employer, or access to student-recruiting information. The term “equal in quality and scope” means the same access to campus and students provided by the school to the any other nonmilitary recruiters or employers receiving the most favorable access. The focus is not on the content of a school's recruiting policy, but instead on the result achieved by the policy and compares the access provided military recruiters to that provided other recruiters. Therefore, it is insufficient to comply with the statute (10 U.S.C. 983) if the policy results in a greater level of access for other recruiters than for the military.
(c)Updates policy and responsibilities relating to the management of covered schools that have an anti-ROTC policy. § 216.2 Applicability. This part applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard when it is operating as a Military Service in the Navy), the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”). This part also applies, by agreement with the Department of Homeland Security (DHS), to the Coast Guard at all times, including when it is a service in the Department of Homeland Security. The policies herein also affect the Departments of Transportation, Homeland Security, Energy (National Nuclear Security Administration), the Central Intelligence Agency, and any department or agency in which regular appropriations are made in the Departments of Labor, Health and Human Services, Education, and Related Agencies Appropriations Act. The term “Military Services,” as used herein, refers to the Army, the Navy, the Marine Corps, the Air Force, and the Coast Guard, including their Reserve or National Guard Components. The term “Related Agencies” as used herein refers to the Armed Forces Retirement Home, the Corporation for National and Community Service, the Corporation for Public Broadcasting, the Federal Mediation and Conciliation Service, the Federal Mine Safety and Health Review Commission, the National Commission on Libraries and Information Science, the National Council on Disability, the National Education Goals Panel, the National Labor Relations Board, the National Mediation Board, the Occupational Safety and Health Review Commission, the Social Security Administration, the Railroad Retirement Board and the United States Institute of Peace. § 216.3 Definitions.
(a)*Anti-ROTC policy.* A policy or practice whereby a covered school prohibits or in effect prevents the Secretary of Defense from maintaining, establishing, or efficiently operating a unit of the Senior ROTC at the covered school, or prohibits or in effect prevents a student at the covered school from enrolling in a Senior ROTC unit at another institution of higher education.
(b)*Covered funds.* “Covered funds” is defined in 10 U.S.C. 983 as any funds made available for the Departments of Defense, Transportation, Homeland Security, or National Nuclear Security Administration of the Department of Energy, the Central Intelligence Agency, or any department or agency in which regular appropriations are made in the Departments of Labor, Health and Human Services, and Education, as well as in Related Agencies Appropriations Act (excluding any Federal funds provided to an institution of higher education, or to an individual, to be available solely for student financial assistance, related administrative costs, or costs associated with attendance).
(c)*Covered school.* An institution of higher education, or a subelement of an institution of higher education, subject to the following clarifications:
(1)A determination (§ 216.5(a)) affecting only a subelement of a parent institution (see § 216.3(f)) effects a limitation on the use of funds (see § 216.4 (a)) applicable to the parent institution as a whole, including the institution's offending subelement and all of its subelements, if any.
(2)When an individual institution of higher education that is part of a single university system ( *e.g.* , University of (State) at (City)—a part of that state's university system) has a policy or practice that prohibits, or in effect prevents, access to campuses or access to students on campuses in a manner that is at least equal in quality and scope to the access to its campus and students as it provides to any other employer, or access to student-recruiting information by military recruiters, or has an anti-ROTC policy, as defined in this rule, it is only that individual institution within that university system that is affected by the loss of Federal funds. This limited effect applies even though another campus of the same university system may or may not be affected by a separate determination under § 216.5 (a). The funding of a subelement of the offending individual institution of a single university system, if any, will also be withheld as a result of the policies or practices of that offending individual institution.
(d)*Enrolled.* Students are “enrolled” when registered for at least one credit hour of academic credit at the covered school during the most recent, current, or next term. Students who are enrolled during the most recent term, but who are no longer attending the institution, are included.
(e)*Equal in quality and scope.* The term means the same access to campus and students provided by the school to the any other nonmilitary recruiters or employers receiving the most favorable access. The focus is not on the content of a school's recruiting policy, but instead on the result achieved by the policy and compares the access provided military recruiters to that provided other recruiters. Therefore, it is insufficient to comply with the statute if the policy results in a greater level of access for other recruiters than for the military. The U.S. Supreme Court further explained that “the statute does not call for an inquiry into why or how the ‘other employer’ secured its access * * * We do not think that the military recruiter has received equal 'access' [when a law firm is permitted on campus to recruit students and the military is not]—regardless of whether the disparate treatment is attributable to the military's failure to comply with the school's nondiscrimination policy.”
(f)*Institution of higher education.* A domestic college, university, or other institution (or subelement thereof) providing postsecondary school courses of study, including foreign campuses of such domestic institutions. The term includes junior colleges, community colleges, and institutions providing courses leading to undergraduate and post-graduate degrees. The term does not include entities that operate exclusively outside the United States, its territories, and possessions. A subelement of an institution of higher education is a discrete (although not necessarily autonomous) organizational entity that may establish policies or practices affecting military recruiting and related actions ( *e.g.* , an undergraduate school, a law school, a medical school, other graduate schools, or a national laboratory connected or affiliated with that parent institution). For example, the School of Law of XYZ University is a subelement of its parent institution (XYZ University).
(g)*Military recruiters.* Personnel of DoD whose current assignment or detail is to a recruiting activity of the DoD.
(h)*Pacifism.* Opposition to war or violence, demonstrated by refusal to participate in military service.
(i)*Student.* An individual who is 17 years of age or older and is enrolled at a covered school.
(j)*Student-recruiting information.* For those students currently enrolled, the student's name, address, telephone listing, age (or year of birth), place of birth, level of education ( *e.g.* , freshman, sophomore, or degree awarded for a recent graduate), most recent educational institution attended, and current major(s). § 216.4 Policy. It is DoD policy that:
(a)Under 10 U.S.C. 983, no covered funds may be provided by contract or grant (to include payment on such contracts or grants previously obligated) to a covered school if the Secretary of Defense determines that the covered school:
(1)Has a policy or practice (regardless of when implemented) that either prohibits or in effect prevents the Secretary of Defense or Secretary of Homeland Security from obtaining, for military recruiting purposes, access to campuses or access to students on campuses that is at least equal in quality and scope, as defined in § 216.3(d), to the access to campuses and to students provided to any other employer, or access to directory information on students;
(2)Has failed to disseminate military visit information or alerts at least on par with nonmilitary recruiters since schools offering such services to nonmilitary recruiters must also send e-mails, post notices, etc., on behalf of military recruiters to comply with the Solomon Amendment;
(3)Has failed to schedule visits at times requested by military recruiters that coincide with nonmilitary recruiters' visits to campus if this results in a greater level of access for other recruiters than for the military ( *e.g.* , offering non-military recruiters a choice of a variety of dates for on-campus interviews while only offering the military recruiters the final day of interviews), as schools must ensure that their recruiting policies operate such that military recruiters are given access to students equal to that provided to any other employer;
(4)Has failed to provide military recruiters with a mainstream recruiting location amidst nonmilitary employers to allow unfettered access to interviewees since military recruiters must be given the same access as recruiters who comply with a school's nondiscrimination policy;
(5)Has failed to enforce time, place, and manner policies established by the covered school such that the military recruiters experience an inferior or unsafe recruiting climate, as schools must allow military recruiters on campus and must assist them in whatever way the school assists other employers;
(6)Has through policy or practice in effect denied students permission to participate, or has prevented students from participating, in recruiting activities; or
(7)Has an anti-ROTC policy or practice, as defined in this rule, regardless of when implemented.
(b)The limitations established in paragraph
(a)of this section shall not apply to a covered school if the Secretary of Defense determines that the covered school:
(1)Has ceased the policies or practices defined in paragraph
(a)of this section;
(2)Has a long-standing policy of pacifism (see § 216.3(j)) based on historical religious affiliation;
(3)When not providing requested access to campuses or to students on campus, certifies that all employers are similarly excluded from recruiting on the premises of the covered school, or presents evidence that the degree of access by military recruiters is the same access to campuses or to students on campuses provided to the nonmilitary recruiters;
(4)When not providing any student-recruiting information, certifies that such information is not maintained by the covered school; or that such information already has been provided to the Military Service concerned for that current semester, trimester, quarter, or other academic term, or within the past 4 months (for institutions without academic terms); or
(5)When not providing student-recruiting information for a specific student certifies that the student concerned has formally requested, in writing, that the covered school withhold this information from all third parties.
(c)A covered school may charge military recruiters a fee for the costs incurred in providing access to student-recruiting information when that institution can certify that such charges are the actual costs, provided that such charges are reasonable, customary and identical to fees charged to other employers.
(d)An evaluation to determine whether a covered school maintains a policy or practice covered by paragraphs (a)(1) through (a)(6) of this section shall be undertaken when:
(1)Military recruiting personnel are prohibited, or in effect prevented, from the same access to campuses or access to students on campuses provided to nonmilitary recruiters, or are denied access to student-recruiting information;
(2)Information or alerts on military visits are not distributed at least on par with nonmilitary recruiters since schools offering such services to nonmilitary recruiters must also send e-mails, post notices, etc., on behalf of the military recruiter to comply with the Solomon Amendment;
(3)Military recruiters are prohibited from scheduling their visits at requested times that coincide with nonmilitary recruiters' visits to its campus if this results in a greater level of access for other recruiters than for the military as schools must ensure their recruiting policy operates in such a way that military recruiters are given access to students equal to that provided to any other employer;
(4)Military recruiters do not receive a mainstream recruiting location amidst nonmilitary employers to allow unfettered access to interviewees since military recruiters must be given the same access as recruiters who comply with the school's nondiscrimination policy;
(5)The school has failed to enforce time, place, and manner policies established by that school such that military recruiters experience an unsafe recruiting climate, as schools must allow military recruiters on campus and must assist them in whatever way the school chooses to assist other employers;
(6)Evidence is discovered of an institution-sponsored policy or practice that in effect denied students permission to participate, or prevented students from participating in recruiting activities.
(7)The costs being charged by the school for providing student-recruiting information are believed by the military recruiter to be excessive, and the school does not provide information sufficient to support a conclusion that such are the actual costs, provided that they are reasonable and customary, and are identical to those costs charged to other employers; or
(8)The covered school is unwilling to declare in writing, in response to an inquiry from a representative of a DoD Component or a representative from the Department of Homeland Security, that the covered school does not have a policy or practice of prohibiting, or in effect preventing, the Secretary of a Military Department or Secretary of Homeland Security from the same access to campuses or access to students on campuses provided to nonmilitary recruiters, or access to student-recruiting information by military recruiters for purposes of military recruiting.
(e)An evaluation to determine whether a covered school has an anti-ROTC policy covered by paragraph (a)(7) of this section shall be undertaken when:
(1)A Secretary of a Military Department or designee cannot obtain permission to establish, maintain, or efficiently operate a unit of the Senior ROTC; or
(2)Absent a Senior ROTC unit at the covered school, students cannot obtain permission from a covered school to participate, or are effectively prevented from participating, in a unit of the Senior ROTC at another institution of higher education. § 216.5 Responsibilities.
(a)The PDUSD(P&R), under the Under Secretary of Defense for Personnel and Readiness, shall:
(1)Not later than 45 days after receipt of the information described in paragraphs (b)(3) and (c)(1) of this section:
(i)Inform the Office of Naval Research
(ONR)and the Director, Defense Finance and Accounting Service that a final determination will be made so those offices can make appropriate preparations to carry out their responsibilities should a covered school be determined ineligible to receive federal funds.
(ii)Make a final determination under 10 U.S.C. 983, as implemented by this part, and notify any affected school of that determination and its basis, and that the school is therefore ineligible to receive covered funds as a result of that determination.
(iii)Disseminate to Federal entities affected by the decision, including the DoD Components and the GSA, and to the Secretary of Education and the head of each other department and agency the funds of which are subject to the determination, the names of the affected institutions identified under paragraph (a)(1)(ii) of this section.
(iv)Notify the Committees on Armed Services of the Senate and the House of Representatives of the affected institutions identified under paragraph (a)(1)(ii) of this section.
(v)Inform the affected school identified under paragraph (a)(1)(ii) of this section that its funding eligibility may be restored if the school provides sufficient new information that the basis for the determination under paragraph (a)(1)(ii) of this section no longer exists.
(2)Not later than 45 days after receipt of a covered school's request to restore its eligibility:
(i)Determine whether the funding status of the covered school should be changed, and notify the applicable school of that determination.
(ii)Notify the parties reflected in paragraphs (a)(1)(i), (a)(1)(iii), and (a)(1)(iv) of this section when a determination of funding ineligibility (paragraph (a)(1)(ii) of this section) has been rescinded.
(3)Publish in the **Federal Register** each determination of the PDUSD(P&R) that a covered school is ineligible for contracts and grants made under 10 U.S.C. 983, as implemented by this part.
(4)Publish in the **Federal Register** at least once every 6 months a list of covered schools that are ineligible for contracts and grants by reason of a determination of the Secretary of Defense under 10 U.S.C. 983, as implemented by this part.
(5)Enter information into the Excluded Parties List System 1 about each covered school that the PDUSD(P&R) determines to be ineligible for contracts and grants under 10 U.S.C. 983 and/or this part, generally within 5 days of making the determination. 1 The Excluded Parties List System
(EPLS)is the system that the General Services Administration maintains for Executive Branch agencies, with names and other pertinent information of persons who are debarred, suspended, or otherwise ineligible for Federal procurement and/or covered non-procurement transactions.
(6)Provide ONR with an updated list of the names of institutions identified under paragraph (a)(1)(ii) of this section whenever the list changes due to an institution being added to or dropped from the list, so that ONR can carry out its responsibilities for post-award administration of DoD Components' contracts and grants with institutions of higher education.
(7)Provide the Office of the Deputy Chief Financial Officer, DoD, and the Director, Defense Finance and Accounting Service with an updated list of the names of institutions identified under paragraph (a)(1)(ii) of this section whenever the list changes due to an institution being added or dropped from the list, so those offices can carry out their responsibilities related to cessation of payments of prior contract and grant obligations to institutions of higher education that are on the list.
(8)Publish in the **Federal Register** the list of names of affected institutions that have changed their policies or practices such that they are determined no longer to be in violation of 10 U.S.C. 983 and this part.
(b)The Secretaries of the Military Departments and the Secretary of Homeland Security shall:
(1)Identify covered schools that, by policy or practice, prohibit, or in effect prevent, the same access to campuses or access to students on campuses provided to nonmilitary recruiters, or access to student-recruiting information by military recruiters for military recruiting purposes.
(i)When requests by military recruiters to schedule recruiting visits are unsuccessful, the Military Service concerned, and the Office of the Secretary of Homeland Security when the Coast Guard is operating as a service in the Department of Homeland Security, shall seek written confirmation of the school's present policy from the head of the school through a letter of inquiry. A letter similar to that shown in Appendix A of this part shall be used, but it should be tailored to the situation presented. If written confirmation cannot be obtained, oral policy statements or attempts to obtain such statements from an appropriate official of the school shall be documented. A copy of the documentation shall be provided to the covered school, which shall be informed of its opportunity to forward clarifying comments within 30 days to accompany the submission to the PDUSD(P&R).
(ii)When a request for student-recruiting information is not fulfilled within a reasonable period, normally 30 days, a letter similar to that shown in Appendix A shall be used to communicate the problem to the school, and the inquiry shall be managed as described in § 216.5.(b)(1)(ii). Schools may stipulate that requests for student-recruiting information be in writing.
(2)Identify covered schools that, by policy or practice, deny establishment, maintenance, or efficient operation of a unit of the Senior ROTC, or deny students permission to participate, or effectively prevent students from participating in a unit of the Senior ROTC at another institution of higher education. The Military Service concerned, and the Office of the Secretary of Homeland Security when the Coast Guard is operating as a service in the Department of Homeland Security, shall seek written confirmation of the school's policy from the head of the school through a letter of inquiry. A letter similar to that shown in Appendix B of this part shall be used, but it should be tailored to the situation presented. If written confirmation cannot be obtained, oral policy statements or attempts to obtain such statements from an appropriate official of the school shall be documented. A copy of the documentation shall be provided to the covered school, which shall be informed of its opportunity to forward clarifying comments within 30 days to accompany the submission to the PDUSD(P&R).
(3)Evaluate responses to the letter of inquiry, and other such evidence obtained in accordance with this part, and submit to the PDUSD(P&R) the names and addresses of covered schools that are believed to be in violation of policies established in § 216.4. Full documentation shall be furnished to the PDUSD(P&R) for each such covered school, including the school's formal response to the letter of inquiry, documentation of any oral response, or evidence showing that attempts were made to obtain either written confirmation or an oral statement of the school's policies.
(c)The Heads of the DoD Components and Secretary of Homeland Security shall:
(1)Provide the PDUSD(P&R) with the names and addresses of covered schools identified as a result of evaluation(s) required under § 216.4(d) and (e).
(2)Take immediate action to deny obligations of covered funds to covered schools identified under paragraph (a)(1)(ii) of this section, and to restore eligibility of covered schools identified under paragraph (a)(2) of this section. § 216.6 Information requirements. The information requirements identified at § 216.5(b) and (c)(1) have been assigned Report Control Symbol DD-P&R-(AR)-2038 in accordance with DoD 8910.1-M 2 . 2 Copies may be obtained at *http://www.dtic.mil/whs/directives/.* Appendix A of Part 216—Military Recruiting Sample Letter of Inquiry (Tailor letter to situation presented) Dr. John Doe, *President, ABC University, Anywhere, USA 12345-9876.* Dear Dr. Doe: I understand that military recruiting personnel [have been unable to recruit or have been refused student-recruiting information 3 at (subelement of) ABC University)] by a policy or practice of the school. Specifically, military recruiting personnel have reported [here state policy decisions or practices encountered]. [If preliminary information coming to the attention of a Military Service indicates that other Military Services' recruiting representatives have been similarly informed of the policy or experienced a similar practice affecting their ability for military recruiting purposes to have the access or information require, so state.] 3 Student-recruiting information refers to a student's name, address, telephone listing, age (or year of birth), level of education (e.g., freshman, sophomore, or degree awarded for a recent graduate), and major(s). Current Federal law (10 U.S.C. 983) denies the use of certain Federal funds through grants or contracts, to include payment on such contracts or grants previously obligated, (excluding any Federal funding to an institution of higher education, or to an individual, to be available solely for student financial assistance, related administrative costs, or costs associated with attendance) from appropriations of the Departments of Defense, Transportation, Labor, Health and Human Services, Education, and related agencies to institutions of higher education (including any subelements of such institutions) that have a policy or practice of denying military recruiting personnel access to campuses or access to students on campuses, in a manner that is at least equal in quality and scope (as explained in § 216.3 of Title 32, Code of Federal Regulations, Part 216), as it provides to nonmilitary recruiters, or access to student recruiting information. Implementing regulations are codified at Title 32, Code of Federal Regulations, Part 216. This letter provides you an opportunity to clarify your institution's policy regarding military recruiting on the campus of [University]. In that regard, I request, within the next 30 days, a written policy statement of the institution with respect to access to campus and students by military recruiting personnel. Your response should highlight any difference between access for military recruiters and access for recruiting by other potential employers. Based on this information and any additional facts you can provide, Department of Defense officials will make a determination as to your institution's eligibility to receive funds by grant or contract. That decision may affect eligibility for funding from appropriations of the Departments of Defense, Transportation, Labor, Health and Human Services, Education, and related agencies. Should it be determined that [University] as an institution of higher education (or any subelement of the institution) is in violation of the aforementioned statutes and regulations, such funding would be stopped, and the institution of higher education (including any subelements of the institution) would remain ineligible to receive such funds until and unless the Department of Defense determines that the institution has ceased the offending policies and practices. I regret that this action may have to be taken. Successful recruiting requires that Department of Defense recruiters have equal access to students on the campuses of colleges and universities [and student-recruiting information], and at the same time, have effective relationships with the officials and student bodies of those institutions. I hope it will be possible to identify and correct any policies or practices that inhibit military recruiting at your school. [My representative, (name), is] [I am] available to answer any of your questions by telephone at [telephone number]. I look forward to your reply. Sincerely, Appendix B of Part 216—ROTC Sample Letter of Inquiry (Tailor letter to situation presented) Dr. Jane Smith, *President, ABC University, Anywhere, USA 12345-9876. * Dear Dr. Smith: I understand that ABC University has [refused a request from a Military Department to establish a Senior ROTC unit at your institution] [refused to continue existing ROTC programs at your institution][prevented students from participation at a Senior ROTC program at another institution] by a policy or practice of the University. Current Federal law (10 U.S.C. 983) denies the use of certain Federal funds through grants or contracts, to include payment on such contracts or grants previously obligated, (excluding any Federal funding to an institution of higher education, or to an individual, to be available solely for student financial assistance, related administrative costs, or costs associated with attendance) from appropriations of the Departments of Defense, Transportation, Labor, Health and Human Services, Education, and related agencies to institutions of higher education (including any subelements of such institutions) that have a policy or practice of prohibiting or preventing the Secretary of Defense from maintaining, establishing, or efficiently operating a Senior ROTC unit. Implementing regulations are codified at Title 32, Code of Federal Regulations, Part 216. This letter provides you an opportunity to clarify your institution's policy regarding ROTC access on the campus of ABC University. In that regard, I request, within the next 30 days, a written statement of the institution with respect to [define the problem area(s)]. Based on this information, Department of Defense officials will make a determination as to your institution's eligibility to receive the above-referenced funds by grant or contract. That decision may affect eligibility for funding from appropriations of the Departments of Defense, Transportation, Labor, Health and Human Services, Education, and related agencies. Should it be determined that [University] as an institution of higher education (or any subelement of the institution) is in violation of the aforementioned statutes and regulations, such funding would be stopped, and the institution of higher education (including any subelements of the institution) would remain ineligible to receive such funds until and unless the Department of Defense determines that the institution has ceased the offending policies and practices. I regret that this action may have to be taken. Successful officer procurement requires that the Department of Defense maintain a strong ROTC program. I hope it will be possible to [define the correction to the aforementioned problem area(s)]. [My representative, (name), is] [I am] available to answer any of your questions by telephone at [telephone number]. I look forward to your reply. Sincerely, Dated: March 20, 2008. L.M. Bynum, Alternate OSD Federal Register Liaison Officer, DoD. [FR Doc. E8-6536 Filed 3-27-08; 8:45 am] BILLING CODE 5001-06-P OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE 32 CFR Part 1701 Privacy Act Regulations AGENCY: Office of the Director of National Intelligence. ACTION: Final rule. SUMMARY: This final regulation provides the public the guidelines under which the Office of the Director of National Intelligence
(ODNI)will implement the Privacy Act of 1974, 5 U.S.C. 552a, as amended. Subpart A of the regulation describes agency policies for collecting and maintaining personally identifiable records and processes for administering requests for records under the Privacy Act. Subpart B of the regulation articulates agency policy for invoking exemptions under the Act, including retaining exemptions on records received from other agencies where reasons for exemption remain valid. Subpart B also articulates the basis for exemptions that may be claimed with respect to records in each published system of records. Subpart C sets forth the agency routine uses applicable to more than one system of records. DATES: *Effective Date:* March 28, 2008. FOR FURTHER INFORMATION CONTACT: Mr. John F. Hackett, Director, Information Management Office
(703)482-3610. SUPPLEMENTARY INFORMATION: The ODNI was created by the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458, 118 Stat. 3638 (Dec. 17, 2004). The first Director of National Intelligence, Ambassador John D. Negroponte, was sworn into Office on April 21, 2005 and the ODNI began operations on April 22, 2005. Because the majority of documents held by the ODNI at its inception were previously maintained by the Central Intelligence Agency
(CIA)and because the ODNI did not have a Privacy staff upon stand-up, records were administered under the CIA's Privacy Act authorities and using CIA's administrative resources. On January 2, 2008 (73 FR 113), the ODNI published its own Privacy Act regulation for public comment. The ODNI received no comments on its proposed regulation. Therefore, under the authority of the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458, 118 Stat. 3638, the Office of the Director of National Intelligence hereby establishes Part 1701, Administration of Records Under the Privacy Act of 1974, to Chapter XVII of Title 32 of the Code of Federal Regulations. In addition, on December 28, 2007, the ODNI published notices for the following twelve new Privacy Act systems of records: NCTC Access Authorization Records, NCTC Human Resources Management System, NCTC Telephone Directory, NCTC Knowledge Repository (SANCTUM), NCTC Online (NOL), NCTC Tacit Knowledge Management Records, NCTC Terrorism Analysis Records, NCTC Terrorist Identities Records, NCTC Partnership Management Records, ONCIX Counterintelligence Damage Assessment Records, OIG Experts Contact Records, OIG Human Resources Records and OIG Investigation and Interview Records. The ODNI received no comments regarding these systems of records notices. These systems of records notices are published at 72 **Federal Register** 73887-73904 (Dec. 28, 2007). Regulatory Flexibility Act This rule affects only the manner in which ODNI collects and maintains information about individuals. ODNI certifies that this rulemaking does not impact small entities and that analysis under the Regulatory Flexibility Act, 5 U.S.C. 601-612, is not required. Small Entity Inquiries The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the ODNI to comply with small entity requests for information and advice about compliance with statutes and regulations within the ODNI jurisdiction. Any small entity that has a question regarding this document may address it to the information contact listed above. Further information regarding SBREFA is available on the Small Business Administration's Web page at *http://www.sga.gov/advo/law/law-lib.html.* Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the ODNI consider the impact of paperwork and other burdens imposed on the public associated with the collection of information. There are no information collection requirements associated with this rule and therefore no analysis of burden is required. Executive Order 12866, Regulatory Planning and Review This rule is not a “significant regulatory action” within the meaning of Executive Order 12866. This rule will not adversely affect the economy or sector of the economy in a material way; will not create inconsistency with or interfere with other agency action; will not materially alter the budgetary impact of entitlements, grants, fees or loans or the right and obligations of recipients thereof; or raise legal or policy issues arising out of legal mandates, the President's priorities or the principles set forth in the Executive Order. Accordingly, further regulatory evaluation is not required. Unfunded Mandates Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, 109 Stat. 48 (Mar. 22, 1995), requires Federal agencies to assess the effects of certain regulatory actions on State, local, and tribal governments, and the private sector. This rule imposes no Federal mandate on any State, local, or tribal government or on the private sector. Accordingly, no UMRA analysis of economic and regulatory alternatives is required. Executive Order 13132, Federalism Executive Order 13132 requires agencies to examine the implications for the distribution of power and responsibilities among the various levels of government resulting from their rules. ODNI concludes that this rule does not affect the rights, roles and responsibilities of the States, involves no preemption of State law and does not limit State policymaking discretion. This rule has no federalism implications as defined by the Executive Order. Environmental Impact The ODNI has reviewed this action for purposes of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4347, and has determined that this action does not affect the human environment. Energy Impact This rulemaking is not a major regulatory action under the provisions of the Energy Policy and Conservation Act (EPCA), Public Law 94-163, as amended, 42 U.S.C. 6362. List of Subjects in 32 CFR Part 1701 Records and Privacy Act. For the reasons set forth in the preamble, ODNI adds part 1701 as follows: PART 1701—ADMINISTRATION OF RECORDS UNDER THE PRIVACY ACT OF 1974 Subpart A—Protection of Privacy and Access to Individual Records Under the Privacy Act of 1974 Sec. 1701.1 Purpose, scope, applicability. 1701.2 Definitions. 1701.3 Contact for general information and requests. 1701.4 Privacy Act responsibilities/policy. 1701.5 Collection and maintenance of records. 1701.6 Disclosure of records/policy. 1701.7 Requests for notification of and access to records. 1701.8 Requests to amend or correct records. 1701.9 Requests for an accounting of record disclosures. 1701.10 ODNI responsibility for responding to access requests. 1701.11 ODNI responsibility for responding to requests for amendment or correction. 1701.12 ODNI responsibility for responding to requests for accounting. 1701.13 Special procedures for medical/psychiatric/psychological testing records. 1701.14 Appeals. 1701.15 Fees. 1701.16 Contractors. 1701.17 Standards of conduct. Subpart B—Exemption of Records Systems Under the Privacy Act 1701.20 Exemption policies. 1701.21 Exemption of National Counterterrorism Center
(NCTC)systems of records. 1701.22 Exemption of Office of the National Counterintelligence Executive (ONCIX) systems of records. 1701.23 Exemption of Office of Inspector General
(OIG)systems of records. Subpart C—Routine Uses Applicable to More Than One ODNI System of Records 1701.30 Policy and applicability. 1701.31 General routine uses. Authority: 50 U.S.C. 401-442; 5 U.S.C. 552a. Subpart A—Protection of Privacy and Access to Individual Records Under the Privacy Act of 1974 § 1701.1 Purpose, scope, applicability.
(a)*Purpose.* This subpart establishes the policies and procedures the Office of the Director of National Intelligence
(ODNI)will follow in implementing the requirements of the Privacy Act of 1974, 5 U.S.C.552a, as amended. This subpart sets forth the procedures ODNI must follow in collecting and maintaining personal information from or about individuals, as well as procedures by which individuals may request to access or amend records about themselves and request an accounting of disclosures of those records by the ODNI. In addition, this subpart details parameters for disclosing personally identifiable information to persons other than the subject of a record.
(b)*Scope.* The provisions of this subpart apply to all records in systems of records maintained by ODNI directorates, centers, mission managers and other sub-organizations [hereinafter called “components”] that are retrieved by an individual's name or personal identifier.
(c)*Applicability.* This subpart governs the following individuals and entities:
(1)All ODNI staff and components must comply with this subpart. The terms “staff” and “component” are defined in § 1701.2.
(2)Unless specifically exempted, this subpart also applies to advisory committees and councils within the meaning of the Federal Advisory Committee Act
(FACA)which provide advice to: Any official or component of ODNI; or the President, and for which ODNI has been delegated responsibility for providing service.
(d)*Relation to Freedom of Information Act.* The ODNI shall provide a subject individual under this subpart all records which are otherwise accessible to such individual under the provisions of the Freedom of Information Act, 5 U.S.C. 552. § 1701.2 Definitions. For purposes of this subpart, the following terms have the meanings indicated: *Access* means making a record available to a subject individual. *Act* means the Privacy Act of 1974. *Agency* means the ODNI or any of its components. *Component* means any directorate, mission manager, or other sub-organization in the ODNI or reporting to the Director, that has been designated or established in the ODNI pursuant to Section 103 of the National Security Act of 1947, as amended, including the National Counterterrorism Center (NCTC), the National Counterproliferation Center
(NCPC)and the Office of the National Counterintelligence Executive (ONCIX), or such other offices and officials as may be established by law or as the Director may establish or designate in the ODNI, for example, the Program Manager, Information Sharing Environment
(ISE)and the Inspector General (IG). *Disclosure* means making a record about an individual available to or releasing it to another party. *FOIA* means the Freedom of Information Act. *Individual* , when used in connection with the Privacy Act, means a living person who is a citizen of the United States or an alien lawfully admitted for permanent residence. It does not include sole proprietorships, partnerships, or corporations. *Information* means information about an individual and includes, but is not limited to, vital statistics; race, sex, or other physical characteristics; earnings information; professional fees paid to an individual and other financial information; benefit data or claims information; the Social Security number, employer identification number, or other individual identifier; address; phone number; medical information; and information about marital, family or other personal relationships. *Maintain* means to establish, collect, use, or disseminate when used in connection with the term record; and, to have control over or responsibility for a system of records, when used in connection with the term system of records. *Notification* means communication to an individual whether he is a subject individual. *Office of the Director of National Intelligence* means any and all of the components of the ODNI. *Record* means any item, collection, or grouping of information about an individual that is maintained by the ODNI including, but not limited to, information such as an individual's education, financial transactions, medical history, and criminal or employment history that contains the individual's name, or an identifying number, symbol, or any other identifier assigned to an individual. When used in this subpart, record means only a record that is in a system of records. *Routine* use means the disclosure of a record outside ODNI, without the consent of the subject individual, for a purpose which is compatible with the purpose for which the record was collected. It does not include disclosure which the Privacy Act otherwise permits pursuant to subsection
(b)of the Act. *Staff* means any current or former regular or special employee, detailee, assignee, employee of a contracting organization, or independent contractor of the ODNI or any of its components. *Subject* individual means the person to whom a record pertains (or “record subject”). *System of records* means a group of records under ODNI's control from which information about an individual is retrieved by the name of the individual or by an identifying number, symbol, or other particular assigned to the individual. Single records or groups of records which are not retrieved by a personal identifier are not part of a system of records, § 1701.3 Contact for general information and requests. Privacy Act requests and appeals and inquiries regarding this subpart or about ODNI's Privacy Act program must be submitted in writing to the Director, Information Management Office (D/IMO), Office of the Director of National Intelligence, Washington, DC 20511 (by mail or by facsimile at 703-482-2144) or to the contact designated in the specific Privacy Act System of Records Notice. Privacy Act requests with the required identification statement and signature pursuant to paragraphs
(d)and
(e)of § 1701.7 of this subpart must be filed in original form. § 1701.4 Privacy Act responsibilities/policy. The ODNI will administer records about individuals consistent with statutory, administrative, and program responsibilities. Subject to exemptions authorized by the Act, ODNI will collect, maintain and disclose records as required and will honor subjects' rights to view and amend records and to obtain an accounting of disclosures. § 1701.5 Collection and maintenance of records.
(a)ODNI will not maintain a record unless:
(1)It is relevant and necessary to accomplish an ODNI function required by statute or Executive Order;
(2)It is acquired to the greatest extent practicable from the subject individual when ODNI may use the record to make any determination about the individual;
(3)The individual providing the record is informed of the authority for providing the record (including whether providing the record is mandatory or voluntary), the principal purpose for maintaining the record, the routine uses for the record, and what effect refusing to provide the record may have;
(4)It is maintained with such accuracy, relevance, timeliness and completeness as is reasonably necessary to ensure fairness to the individual in the determination;
(b)Except as to disclosures made to an agency or made under the FOIA, ODNI will make reasonable efforts prior to disseminating a record about an individual, to ensure that the record is accurate, relevant, timely, and complete;
(c)ODNI will not maintain or develop a system of records that is not the subject of a current or planned public notice;
(d)ODNI will not adopt a routine use of information in a system without notice and invitation to comment published in the **Federal Register** at least 30 days prior to final adoption of the routine use;
(e)To the extent ODNI participates with a non-Federal agency in matching activities covered by section
(8)of the Act, ODNI will publish notice of the matching program in the **Federal Register** ;
(f)ODNI will not maintain a record which describes how an individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the subject individual, or unless pertinent to and within the scope of an authorized law enforcement activity;
(g)When required by the Act, ODNI will maintain an accounting of all disclosures of records by the ODNI to persons, organizations or agencies;
(h)Each ODNI component shall implement administrative, physical and technical controls to prevent unauthorized access to its systems of records, to prevent unauthorized disclosure of records, and to prevent physical damage to or destruction of records;
(i)ODNI will establish rules and instructions for complying with the requirements of the Privacy Act, including notice of the penalties for non-compliance, applicable to all persons involved in the design, development, operation or maintenance of any system of records. § 1701.6 Disclosure of records/policy. Consistent with 5 U.S.C. 552a(b), ODNI will not disclose any record which is contained in a system of records by any means (written, oral or electronic) without the consent of the subject individual unless disclosure without consent is made for reasons permitted under applicable law, including:
(a)Internal agency use on a need-to-know basis;
(b)Release under the Freedom of Information Act
(FOIA)if not subject to protection under the FOIA exemptions;
(c)A specific “routine use” as described in the ODNI's published compilation of Routine Uses Applicable to More Than One ODNI System of Records or in specific published Privacy Act Systems of Records Notices (available at *http://www.dni.gov* );
(d)Release to the Bureau of the Census, the National Archives and Records Administration, or the Government Accountability Office, for the performance of those entities' statutory duties;
(e)Release in non-identifiable form to a recipient who has provided written assurance that the record will be used solely for statistical research or reporting;
(f)Compelling circumstances in which the health or safety of an individual is at risk;
(g)Release pursuant to the order of a court of competent jurisdiction or to a governmental entity for a specifically documented civil or criminal law enforcement activity;
(h)Release to either House of Congress or to any committee, subcommittee or joint committee thereof to the extent of matter within its jurisdiction;
(i)Release to a consumer reporting agency in accordance with section 3711(e) of Title 31. § 1701.7 Requests for notification of and access to records.
(a)*How to request.* Unless records are not subject to access (see paragraph
(b)of this section), individuals seeking access to records about themselves may submit a request in writing to the D/IMO, as directed in Sec. 1701.3 of this subpart, or to the contact designated in the specific Privacy Act System of Records Notice. To ensure proper routing and tracking, requesters should mark the envelope “Privacy Act Request.”
(b)*Records not subject to access.* The following records are not subject to review by subject individuals:
(1)Records in ODNI systems of records that ODNI has exempted from access and correction under the Privacy Act, 5 U.S.C. 552a(j) or (k), by notice published in the **Federal Register** , or where those exemptions require that ODNI can neither confirm nor deny the existence or nonexistence of responsive records (see § 1701.10(c)(iii)).
(2)Records in ODNI systems of records that another agency has exempted from access and correction under the Privacy Act, 5 U.S.C. 552a(j) or (k), by notice published in the **Federal Register** , or where those exemptions require that ODNI can neither confirm nor deny the existence or nonexistence of responsive records (see § 1701.10(c)(iii)).
(c)*Description of records.* Individuals requesting access to records about themselves should, to the extent possible, describe the nature of the records, why and under what circumstances the requester believes ODNI maintains the records, the time period in which they may have been compiled and, ideally, the name or identifying number of each Privacy Act System of Records in which they might be included. The ODNI publishes notices in the **Federal Register** that describe its systems of records. The **Federal Register** compiles these notices biennially and makes them available in hard copy at large reference libraries and in electronic form at the Government Printing Office's World Wide Web site, *http://www.gpoaccess.gov.*
(d)*Verification of identity.* A written request for access to records about oneself must include full (legal) name, current address, date and place of birth, and citizenship status. Aliens lawfully admitted for permanent residence must provide their Alien Registration Number and the date that status was acquired. The D/IMO may request additional or clarifying information to ascertain identity. Access requests must be signed and the signature either notarized or submitted under 28 U.S.C. 1746, authorizing statements made under penalty of perjury as a substitute for notarization.
(e)*Verification of guardianship or representational relationship.* The parent or guardian of a minor, the guardian of an individual under judicial disability, or an attorney retained to represent an individual shall provide, in addition to establishing the identity of the minor or individual represented as required in paragraph
(d)of this section, evidence of such representation by submitting a certified copy of the minor's birth certificate, court order, or representational agreement which establishes the relationship and the requester's identity.
(f)ODNI will permit access to or provide copies of records to individuals other than the record subject (or the subject's legal representative) only with the requester's written authorization. § 1701.8 Requests to amend or correct records.
(a)*How to request.* Unless the record is not subject to amendment or correction (see paragraph
(b)of this section), individuals (or guardians or representatives acting on their behalf) may make a written amendment or correction request to the D/IMO, as directed in § 1701.3 of this subpart, or to the contact designated in a specific Privacy Act System of Records. Requesters seeking amendment or correction should identify the particular record or portion subject to the request, explain why an amendment or correction is necessary, and provide the desired replacement language. Requesters may submit documentation supporting the request to amend or correct. Requests for amendment or correction will lapse (but may be re-initiated with a new request) if all necessary information is not submitted within forty-five
(45)days of the date of the original request. The identity verification procedures of paragraphs
(d)and
(e)of § 1701.7 of this subpart apply to amendment requests. (b).
(1)Records which are determinations of fact or evidence received (e.g., transcripts of testimony given under oath or written statements made under oath; transcripts of grand jury proceedings, judicial proceedings, or quasi-judicial proceedings, which are the official record of those proceedings; pre-sentence records that originated with the courts) and
(2)Records in ODNI systems of records that ODNI or another agency has exempted from amendment and correction under Privacy Act, 5 U.S.C. 552a(j) or
(k)by notice published in the **Federal Register** . § 1701.9 Requests for an accounting of record disclosures.
(a)*How to request.* Except where accountings of disclosures are not required to be kept (see paragraph
(b)of this section), record subjects (or their guardians or representatives) may request an accounting of disclosures that have been made to another person, organization, or agency as permitted by the Privacy Act at 5 U.S.C. 552a(b). This accounting contains the date, nature, and purpose of each disclosure, as well as the name and address of the person, organization, or agency to which the disclosure was made. Requests for accounting should identify each record in question and must be made in writing to the D/IMO, as indicated in § 1701.3 of this subpart, or to the contact designated in a specific Privacy Act System of Records.
(b)*Accounting not required.* The ODNI is not required to provide accounting of disclosure in the following circumstances:
(1)Disclosures for which the Privacy Act does not require accounting, i.e., disclosures to employees within the agency and disclosures made under the FOIA;
(2)Disclosures made to law enforcement agencies for authorized law enforcement activities in response to written requests from the respective head of the law enforcement agency specifying the law enforcement activities for which the disclosures are sought; or
(3)Disclosures from systems of records that have been exempted from accounting requirements under the Privacy Act, 5 U.S.C. 552a(j) or (k), by notice published in the **Federal Register** . § 1701.10 ODNI responsibility for responding to access requests.
(a)*Acknowledgement of requests.* Upon receipt of a request providing all necessary information, the D/IMO shall acknowledge receipt to the requester and provide an assigned request number for further reference.
(b)*Tasking to component.* Upon receipt of a proper access request, the D/IMO shall provide a copy of the request to the point of contact
(POC)in the ODNI component with which the records sought reside. The POC within the component shall determine whether responsive records exist and, if so, recommend to the D/IMO:
(1)Whether access should be denied in whole or part (and the legal basis for denial under the Privacy Act); or
(2)Whether coordination with or referral to another component or federal agency is appropriate.
(c)*Coordination and referrals* —(1) *Examination of records.* If a component POC receiving a request for access determines that an originating agency or other agency that has a substantial interest in the record is best able to process the request (e.g., the record is governed by another agency's regulation, or another agency originally generated or classified the record), the POC shall forward to the D/IMO all records necessary for coordination with or referral to the other component or agency, as well as specific recommendations with respect to any denials.
(2)*Notice of referral.* Whenever the D/IMO refers all or any part of the responsibility for responding to a request to another agency, the D/IMO shall notify the requester of the referral.
(3)*Effect of certain exemptions.*
(i)In processing a request, the ODNI shall decline to confirm or deny the existence or nonexistence of any responsive records whenever the fact of their existence or nonexistence:
(A)May reveal protected intelligence sources and collection methods (50 U.S.C. 403-1(i)); or
(B)Is classified and subject to an exemption appropriately invoked by ODNI or another agency under subsections
(j)or
(k)of the Privacy Act.
(ii)In such event, the ODNI will inform the requester in writing and advise the requestor of the right to file an administrative appeal of any adverse determination.
(d)*Time for response.* The D/IMO shall respond to a request for access promptly upon receipt of recommendations from the POC and determinations resulting from any necessary coordination with or referral to another agency. The D/IMO may determine to update a requester on the status of a request that remains outstanding longer than reasonably expected.
(e)*ODNI action on requests for access* —(1) *Grant of access.* Once the D/IMO determines to grant a request for access in whole or in part, the D/IMO shall notify the requester in writing and come to agreement with the requester about how to effect access, whether by on-site review or duplication of the records. If a requester is accompanied by another person, the requester shall be required to authorize in writing any discussion of the records in the presence of the other person.
(2)*Denial of access.* The D/IMO shall notify the requester in writing when an adverse determination is made denying a request for access in any respect. Adverse determinations, or denials, consist of a determination to withhold any requested record in whole or in part; a determination that a requested record does not exist or cannot be located; a determination that what has been requested is not a record subject to the Privacy Act; or a determination that the existence of a record can neither be confirmed nor denied. The notification letter shall state:
(i)The reason(s) for the denial; and
(ii)The procedure for appeal of the denial under § 1701.14 of this subpart. § 1701.11 ODNI responsibility for responding to requests for amendment or correction.
(a)*Acknowledgement of request.* The D/IMO shall acknowledge receipt of a request for amendment or correction of records in writing and provide an assigned request number for further reference.
(b)*Tasking of component.* Upon receipt of a proper request to amend or correct a record, the D/IMO shall forward the request to the POC in the component maintaining the record. The POC shall promptly evaluate the proposed amendment or correction in light of any supporting justification and recommend that the D/IMO grant or deny the request or, if the request involves a record subject to correction by an originating agency, refer the request to the other agency.
(c)*Action on request for amendment or correction.*
(1)If the POC determines that the request for amendment or correction is justified, in whole or in part, the D/IMO shall promptly:
(i)Make the amendment, in whole or in part, as requested and provide the requester a written description of the amendment or correction made; and
(ii)Provide written notice of the amendment or correction to all persons, organizations or agencies to which the record has been disclosed (if an accounting of the disclosure was made);
(2)Where the D/IMO has referred an amendment request to another agency, the D/IMO, upon confirmation from that agency that the amendment has been effected, shall provide written notice of the amendment or correction to all persons, organizations or agencies to which ODNI previously disclosed the record.
(3)If the POC determines that the requester's records are accurate, relevant, timely and complete, and that no basis exists for amending or correcting the record, either in whole or in part, the D/IMO shall inform the requester in writing of:
(i)The reason(s) for the denial; and
(ii)The procedure for appeal of the denial under Sec. 1701.15 of this subpart. § 1701.12 ODNI responsibility for responding to requests for accounting.
(a)*Acknowledgement of request.* Upon receipt of a request for accounting, the D/IMO shall acknowledge receipt of the request in writing and provide an assigned request number for further reference.
(b)*Tasking of component.* Upon receipt of a request for accounting, the D/IMO shall forward the request to the POC in the component maintaining the record. The POC shall work with the component's information management officer and the systems administrator to generate the requested disclosure history.
(c)*Action on request for accounting.* The D/IMO will notify the requester when the accounting is available for on-site review or transmission in paper or electronic medium.
(d)*Notice of court-ordered disclosures.* The D/IMO shall make reasonable efforts to notify an individual whose record is disclosed pursuant to court order. Notice shall be made within a reasonable time after receipt of the order; however, when the order is not a matter of public record, the notice shall be made only after the order becomes public. Notice shall be sent to the individual's last known address and include a copy of the order and a description of the information disclosed. No notice shall be made regarding records disclosed from a criminal law enforcement system that has been exempted from the notice requirement.
(e)*Notice of emergency disclosures.* ODNI shall notify an individual whose record it discloses under compelling circumstances affecting health or safety. This notice shall be mailed to the individual's last known address and shall state the nature of the information disclosed; the person, organization, or agency to which it was disclosed; the date of disclosure; and the compelling circumstances justifying the disclosure. This provision shall not apply in circumstances involving classified records that have been exempted from disclosure pursuant to subsection
(j)or
(k)of the Privacy Act. § 1701.13 Special procedures for medical/psychiatric/psychological records. Current and former ODNI employees, including current and former employees of ODNI contractors, and unsuccessful applicants for employment may seek access to their medical, psychiatric or psychological testing records by writing to: Information and Privacy Coordinator, Central Intelligence Agency, Washington, DC 20505, and provide identifying information as required by paragraphs
(d)and
(e)of § 1701.7 of this subpart. The Central Intelligence Agency's Privacy Act Regulations will govern administration of these types of records, including appeals from adverse determinations. § 1701.14 Appeals.
(a)Individuals may appeal denials of requests for access, amendment, or accounting by submitting a written request for review to the Director, Information Management Office (D/IMO) at the Office of the Director of National Intelligence, Washington, DC 20511. The words “PRIVACY ACT APPEAL” should be written on the letter and the envelope. The appeal must be signed by the record subject or legal representative. No personal appearance or hearing on appeal will be allowed.
(b)The D/IMO must receive the appeal letter within 45 calendar days of the date the requester received the notice of denial. The postmark is conclusive as to timeliness. Copies of correspondence from ODNI denying the request to access or amend the record should be included with the appeal, if possible. At a minimum, the appeal letter should identify:
(1)The records involved;
(2)The date of the initial request for access to or amendment of the record;
(3)The date of ODNI's denial of that request; and
(4)A statement of the reasons supporting the request for reversal of the initial decision. The statement should focus on information not previously available or legal arguments demonstrating that the ODNI's decision is improper.
(c)Following receipt of the appeal, the Director of Intelligence Staff
(DIS)shall, in consultation with the Office of General Counsel, make a final determination in writing on the appeal.
(d)Where ODNI reverses an initial denial, the following procedures apply:
(1)If ODNI reverses an initial denial of access, the procedures in paragraph (e)(1) of § 1701.10 of this subpart will apply.
(2)If ODNI reverses its initial denial of a request to amend a record, the POC will ensure that the record is corrected as requested, and the D/IMO will inform the individual of the correction, as well as all persons, organizations and agencies to which ODNI had disclosed the record.
(3)If ODNI reverses its initial denial of a request for accounting, the POC will notify the requester when the accounting is available for on-site review or transmission in paper or electronic medium.
(e)If ODNI upholds its initial denial or reverses in part ( *i.e.* , only partially granting the request), ODNI's notice of final agency action will inform the requester of the following rights:
(1)Judicial review of the denial under 5 U.S.C. 552a(g)(1), as limited by 5 U.S.C. 552a(g)(5).
(2)Opportunity to file a statement of disagreement with the denial, citing the reasons for disagreeing with ODNI's final determination not to correct or amend a record. The requester's statement of disagreement should explain why he disputes the accuracy of the record.
(3)Inclusion in one's record of copies of the statement of disagreement and the final denial, which ODNI will provide to all subsequent recipients of the disputed record, as well as to all previous recipients of the record where an accounting was made of prior disclosures of the record. § 1701.15 Fees. ODNI shall charge fees for duplication of records under the Privacy Act, 5 U.S.C. 552a, in the same way in which it will charge for duplication of records under § 1700.7(g), ODNI's regulation implementing the fee provision of the Freedom of Information Act, 5 U.S.C. 552. § 1701.16 Contractors.
(a)Any approved contract for the operation of a Privacy Act system of records to accomplish a function of the ODNI will contain the Privacy Act provisions prescribed by the Federal Acquisition Regulations
(FAR)at 48 CFR part 24, requiring the contractor to comply with the Privacy Act and this subpart. The contracting component will be responsible for ensuring that the contractor complies with these contract requirements. This section does not apply to systems of records maintained by a contractor as a function of management discretion, e.g., the contractor's personnel records.
(b)Where the contract contains a provision requiring the contractor to comply with the Privacy Act and this subpart, the contractor and any employee of the contractor will be considered employees of the ODNI for purposes of the criminal penalties of the Act, 5 U.S.C. 552a(i). § 1701.17 Standards of conduct.
(a)*General.* ODNI will ensure that staff are aware of the provisions of the Privacy Act and of their responsibilities for protecting personal information that ODNI collects and maintains, consistent with Sec. 1701.5 and 1701.6 of this subpart.
(b)*Criminal penalties* —(1) *Unauthorized disclosure* . Criminal penalties may be imposed against any ODNI staff who, by virtue of employment, has possession or access to ODNI records which contain information identifiable with an individual, the disclosure of which is prohibited by the Privacy Act or by these rules, and who, knowing that disclosure of the specific material is prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it.
(2)*Unauthorized maintenance* . Criminal penalties may be imposed against any ODNI staff who willfully maintains a system of records without meeting the requirements of subsection (e)(4) of the Privacy Act, 5 U.S.C. 552a. The D/IMO, the Civil Liberties Protection Officer, the General Counsel, and the Inspector General are authorized independently to conduct such surveys and inspect such records as necessary from time to time to ensure that these requirements are met.
(3)*Unauthorized requests.* Criminal penalties may be imposed upon any person who knowingly and willfully requests or obtains any record concerning an individual from the ODNI under false pretenses. Subpart B—Exemption of Record Systems Under the Privacy Act § 1701.20 Exemption policies.
(a)*General.* The DNI has determined that invoking exemptions under the Privacy Act and continuing exemptions previously asserted by agencies whose records ODNI receives is necessary: to ensure against the release of classified information essential to the national defense or foreign relations; to protect intelligence sources and methods; and to maintain the integrity and effectiveness of intelligence, investigative and law enforcement processes. Accordingly, as authorized by the Privacy Act, 5 U.S.C. 552a, subsections
(j)and (k), and in accordance with the rulemaking procedures of the Administrative Procedures Act, 5 U.S.C. 553, the ODNI shall:
(1)Exercise its authority pursuant to subsections
(j)and
(k)of the Privacy Act to exempt certain ODNI systems of records or portions of systems of records from various provisions of the Privacy Act; and
(2)Continue in effect and assert all exemptions claimed under Privacy Act subsections
(j)and
(k)by an originating agency from which the ODNI obtains records where the purposes underlying the original exemption remain valid and necessary to protect the contents of the record.
(b)*Related policies.*
(1)The exemptions asserted apply to records only to the extent they meet the criteria of subsections
(j)and
(k)of the Privacy Act, whether claimed by the ODNI or the originator of the records.
(2)Discretion to supersede exemption: Where complying with a request for access or amendment would not appear to interfere with or adversely affect a counterterrorism or law enforcement interest, and unless prohibited by law, the D/IMO may exercise his discretion to waive the exemption. Discretionary waiver of an exemption with respect to a record will not obligate the ODNI to waive the exemption with respect to any other record in an exempted system of records. As a condition of such discretionary access, ODNI may impose any restrictions ( *e.g.* , concerning the location of file reviews) deemed necessary or advisable to protect the security of agency operations, information, personnel, or facilities.
(3)Records in ODNI systems also are subject to protection under 50 U.S.C. 403-1(i), the provision of the National Security Act of 1947 which requires the DNI to protect intelligence sources and methods from unauthorized disclosure. § 1701.21 Exemption of National Counterterrorism Center
(NCTC)systems of records.
(a)The ODNI exempts the following systems of records from the requirements of subsections (c)(3); (d)(1), (2),
(3)and (4); (e)(1); (e)(4)(G), (H), (I); and
(f)of the Privacy Act to the extent that information in the system is subject to exemption pursuant subsections (k)(1) and (k)(5) of the Act:
(1)NCTC Human Resources Management System (ODNI/NCTC-001).
(2)[Reserved]
(b)Exemptions from the particular subsections are justified for the following reasons:
(1)From subsection (c)(3) (accounting of disclosures) because an accounting of disclosures from records concerning the record subject would specifically reveal an investigative interest on the part of the ODNI or recipient agency and could result in release of properly classified national security or foreign policy information.
(2)From subsections (d)(1), (2),
(3)and
(4)(record subject's right to access and amend records) because affording access and amendment rights could alert the record subject to the investigative interest of intelligence or law enforcement agencies or compromise sensitive information classified in the interest of national security. In the absence of a national security basis for exemption, records in this system may be exempted from access and amendment to the extent necessary to honor promises of confidentiality to persons providing information concerning a candidate for position. Inability to maintain such confidentiality would restrict the free flow of information vital to a determination of a candidate's qualifications and suitability.
(3)From subsection (e)(1) (maintain only relevant and necessary records) because it is not always possible to establish relevance and necessity before all information is considered and evaluated in relation to an intelligence concern. In the absence of a national security basis for exemption under subsection (k)(1), records in this system may be exempted from the relevance requirement pursuant to subsection (k)(5) because it is not possible to determine in advance what exact information may assist in determining the qualifications and suitability of a candidate for position. Seemingly irrelevant details, when combined with other data, can provide a useful composite for determining whether a candidate should be appointed.
(4)From subsections (e)(4)(G) and
(H)(publication of procedures for notifying subjects of the existence of records about them and how they may access records and contest contents) because the system is exempted from subsection
(d)provisions regarding access and amendment, and from the subsection
(f)requirement to promulgate agency rules. Nevertheless, the ODNI has published notice concerning notification, access, and contest procedures because it may in certain circumstances determine it appropriate to provide subjects access to all or a portion of the records about them in a system of records.
(5)From subsection (e)(4)(I) (identifying sources of records in the system of records) because identifying sources could result in disclosure of properly classified national defense or foreign policy information, intelligence sources and methods, and investigatory techniques and procedures. Notwithstanding its proposed exemption from this requirement, ODNI identifies record sources in broad categories sufficient to provide general notice of the origins of the information it maintains in its systems of records.
(6)From subsection
(f)(agency rules for notifying subjects to the existence of records about them, for accessing and amending records, and for assessing fees) because the system is exempt from subsection
(d)provisions regarding access and amendment of records by record subjects. Nevertheless, the ODNI has published agency rules concerning notification of a subject in response to his request if any system of records named by the subject contains a record pertaining to him and procedures by which the subject may access or amend the records. Notwithstanding exemption, the ODNI may determine it appropriate to satisfy a record subject's access request.
(c)The ODNI exempts the following systems of records from the requirements of subsections (c)(3); (d)(1), (2),
(3)and (4); (e)(1); (e)(4)(G), (H), (I); and
(f)of the Privacy Act to the extent that information in the system is subject to exemption pursuant to subsection(k)(1) of the Act:
(1)NCTC Access Authorization Records (ODNI/NCTC-002).
(2)NCTC Telephone Directory (ODNI/NCTC-003).
(3)NCTC Partnership Management Records (ODNI/NCTC-006).
(4)NCTC Tacit Knowledge Management Records (ODNI/NCTC-007).
(d)Exemptions from the particular subsections are justified for the following reasons:
(1)From subsection (c)(3) (accounting of disclosures) because an accounting of disclosures from records concerning the record subject would specifically reveal an investigative interest on the part of the ODNI or recipient agency and could result in release of properly classified national security or foreign policy information.
(2)From subsections (d)(1), (2),
(3)and
(4)(record subject's right to access and amend records) because affording access and amendment rights could alert the record subject to the investigative interest of intelligence or law enforcement agencies or compromise sensitive information classified in the interest of national security.
(3)From subsection (e)(1) (maintain only relevant and necessary records) because it is not always possible to establish relevance and necessity before all information is considered and evaluated in relation to an intelligence concern.
(4)From subsections (e)(4)(G) and
(H)(publication of procedures for notifying subjects of the existence of records about them and how they may access records and contest contents) because the system is exempted from subsection
(d)provisions regarding access and amendment and from the subsection
(f)requirement to promulgate agency rules. Nevertheless, the ODNI has published notice concerning notification, access, and contest procedures because it may in certain circumstances determine it appropriate to provide subjects access to all or a portion of the records about them in a system of records.
(5)From subsection (e)(4)(I) (identifying sources of records in the system of records) because identifying sources could result in disclosure of properly classified national defense or foreign policy information, intelligence sources and methods, and investigatory techniques and procedures. Notwithstanding its proposed exemption from this requirement, ODNI identifies record sources in broad categories sufficient to provide general notice of the origins of the information it maintains in its systems of records.
(6)From subsection
(f)(agency rules for notifying subjects to the existence of records about them, for accessing and amending records, and for assessing fees) because the system is exempt from subsection
(d)provisions regarding access and amendment of records by record subjects. Nevertheless, the ODNI has published agency rules concerning notification of a subject in response to his request if any system of records named by the subject contains a record pertaining to him and procedures by which the subject may access or amend the records. Notwithstanding exemption, the ODNI may determine it appropriate to satisfy a record subject's access request.
(e)The ODNI exempts the following systems of records from the requirements of subsections (c)(3); (d)(1), (2), (3), (4); (e)(1); (e)(4)(G), (H), (I); and
(f)of the Privacy Act, to the extent that information in the system is subject to exemption pursuant to subsections (k)(1) and (k)(2) of the Act:
(1)NCTC Knowledge Repository (SANCTUM) (ODNI/NCTC-004).
(2)NCTC Online (ODNI/NCTC-005).
(3)NCTC Terrorism Analysis Records (ODNI/NCTC-008).
(4)NCTC Terrorist Identities Records (ODNI/NCTC-009).
(f)Exemptions from the particular subsections are justified for the following reasons:
(1)From subsection (c)(3) (accounting of disclosures) because an accounting of disclosures from records concerning the record subject would specifically reveal an investigative interest on the part of the ODNI as well as the recipient agency and could: Result in release of properly classified national security or foreign policy information; compromise ongoing efforts to investigate a known or suspected terrorist; reveal sensitive investigative or surveillance techniques; or identify a confidential source. With this information, the record subject could frustrate counterintelligence measures; impede an investigation by destroying evidence or intimidating potential witnesses; endanger the physical safety of sources, witnesses, and law enforcement and intelligence personnel and their families; or evade apprehension or prosecution by law enforcement personnel.
(2)From subsections (d)(1), (2),
(3)and
(4)(record subject's right to access and amend records) because these provisions concern individual access to and amendment of counterterrorism, investigatory and intelligence records. Affording access and amendment rights could alert the record subject to the fact and nature of an investigation or the investigative interest of intelligence or law enforcement agencies; permit the subject to frustrate such investigation, surveillance or potential prosecution; compromise sensitive information classified in the interest of national security; identify a confidential source or disclose information which would reveal a sensitive investigative or intelligence technique; and endanger the health or safety of law enforcement personnel, confidential informants, and witnesses. In addition, affording subjects access and amendment rights would impose an impossible administrative burden to continuously reexamine investigations, analyses, and reports.
(3)From subsection (e)(1) (maintain only relevant and necessary records) because it is not always possible for intelligence or law enforcement agencies to know in advance what information about an encounter with a known or suspected terrorist will be relevant for the purpose of conducting an operational response. Relevance and necessity are questions of judgment and timing, and only after information is evaluated can relevance and necessity be established. In addition, information in the system of records may relate to matters under the investigative jurisdiction of another agency, and may not readily be segregated. Furthermore, information in these systems of records, over time, aid in establishing patterns of criminal activity that can provide leads for other law enforcement agencies.
(4)From subsections (e)(4)(G) and
(H)(publication of procedures for notifying subjects of the existence of records about them and how they may access records and contest contents) because the system is exempted from subsection
(d)provisions regarding access and amendment and from the subsection
(f)requirement to promulgate agency rules. Nevertheless, the ODNI has published notice concerning notification, access, and contest procedures because it may in certain circumstances determine it appropriate to provide subjects access to all or a portion of the records about them in a system of records.
(5)From subsection (e)(4)(I) (identifying sources of records in the system of records) because identifying sources could result in disclosure of properly classified national defense or foreign policy information. Additionally, exemption from this provision is necessary to protect the privacy and safety of witnesses and sources of information, including intelligence sources and methods and investigatory techniques and procedures. Notwithstanding its proposed exemption from this requirement, ODNI identifies record sources in broad categories sufficient to provide general notice of the origins of the information it maintains in its systems of records.
(6)From subsection
(f)(agency rules for notifying subjects to the existence of records about them, for accessing and amending records and for assessing fees) because the system is exempt from subsection
(d)provisions regarding access and amendment of records by record subjects. Nevertheless, the ODNI has published agency rules concerning notification of a subject in response to his request if any system of records named by the subject contains a record pertaining to him and procedures by which the subject may access or amend the records. Notwithstanding exemption, the ODNI may determine it appropriate to satisfy a record subject's access request. § 1701.22 Exemption of Office of the National Counterintelligence Executive (ONCIX) system of records.
(a)The ODNI exempts the following system of records from the requirements of subsections (c)(3); (d)(1), (2), (3), (4); (e)(1); (e)(4)(G), (H), (I); and
(f)of the Privacy Act, to the extent that information in the system is subject to exemption pursuant to subsections (k)(1) and (k)(2) of the Act:
(1)ONCIX Counterintelligence Damage Assessment Records (ODNI/ONCIX-001).
(2)[Reserved]
(b)Exemptions from the particular subsections are justified for the following reasons:
(1)From subsection (c)(3) (accounting of disclosures) because an accounting of disclosures from records concerning the record subject would specifically reveal an investigative interest on the part of the ODNI as well as the recipient agency and could: result in release of properly classified national security or foreign policy information; compromise ongoing efforts to investigate a known or suspected terrorist; reveal sensitive investigative or surveillance techniques; or identify a confidential source. With this information, the record subject could frustrate counterintelligence measures; impede an investigation by destroying evidence or intimidating potential witnesses; endanger the physical safety of sources, witnesses, and law enforcement and intelligence personnel and their families; or evade apprehension or prosecution by law enforcement personnel.
(2)From subsections (d)(1), (2),
(3)and
(4)(record subject's right to access and amend records) because these provisions concern individual access to and amendment of counterterrorism, investigatory and intelligence records. Affording access and amendment rights could alert the record subject to the fact and nature of an investigation or the investigative interest of intelligence or law enforcement agencies; permit the subject to frustrate such investigation, surveillance or potential prosecution; compromise sensitive information classified in the interest of national security; identify a confidential source or disclose information which would reveal a sensitive investigative or intelligence technique; and endanger the health or safety of law enforcement personnel, confidential informants, and witnesses. In addition, affording subjects access and amendment rights would impose an impossible administrative burden to continuously reexamine investigations, analyses, and reports.
(3)From subsection (e)(1) (maintain only relevant and necessary records) because it is not always possible to know in advance what information will be relevant to evaluate and mitigate damage to the national security. Relevance and necessity are questions of judgment and timing, and only after information is evaluated can relevance and necessity be established. In addition, information in the system of records may relate to matters under the investigative jurisdiction of another agency, and may not readily be segregated. Furthermore, information in these systems of records, over time, aid in establishing patterns of criminal activity that can provide leads for other law enforcement agencies.
(4)From subsections (e)(4)(G) and
(H)(publication of procedures for notifying subjects to the existence of records about them and how they may access records and contest contents) because the system is exempted from subsection
(d)provisions regarding access and amendment and from the subsection
(f)requirement to promulgate agency rules. Nevertheless, the ODNI has published notice concerning notification, access, and contest procedures because it may in certain circumstances determine it appropriate to provide subjects access to all or a portion of the records about them in a system of records.
(5)From subsection (e)(4)(I) (identifying sources of records in the system of records) because identifying sources could result in disclosure of properly classified national defense or foreign policy information. Additionally, exemption from this provision is necessary to protect the privacy and safety of witnesses and sources of information, including intelligence sources and methods and investigatory techniques and procedures. Notwithstanding its proposed exemption from this requirement, ODNI identifies record sources in broad categories sufficient to provide general notice of the origins of the information it maintains in its systems of records.
(6)From subsection
(f)(agency rules for notifying subjects to the existence of records about them, for accessing and amending records and for assessing fees) because the system is exempt from subsection
(d)provisions regarding access and amendment of records by record subjects. Nevertheless, the ODNI has published agency rules concerning notification of a subject in response to his request if any system of records named by the subject contains a record pertaining to him and procedures by which the subject may access or amend the records. Notwithstanding exemption, the ODNI may determine it appropriate to satisfy a record subject's access request. § 1701.23 Exemption of Office of Inspector General
(OIG)systems of records.
(a)The ODNI exempts the following systems of records from the requirements of subsections (c)(3); (d)(1), (2),
(3)and (4); (e)(1); (e)(4)(G), (H), (I); and
(f)of the Privacy Act to the extent that information in the system is subject to exemption pursuant subsections (k)(1) and (k)(5) of the Act:
(1)OIG Human Resources Records (ODNI/OIG-001).
(2)OIG Experts Contact Records (ODNI/OIG-002).
(b)Exemptions from the particular subsections are justified for the following reasons:
(1)From subsection (c)(3) (accounting of disclosures) because an accounting of disclosures from records concerning the record subject would specifically reveal an investigative interest on the part of the ODNI or recipient agency and could result in release of properly classified national security or foreign policy information.
(2)From subsections (d)(1), (2),
(3)and
(4)(record subject's right to access and amend records) because affording access and amendment rights could alert the record subject to the investigative interest of intelligence or law enforcement agencies or compromise sensitive information classified in the interest of national security. In the absence of a national security basis for exemption under subsection (k)(1), records in this system may be exempted from access and amendment pursuant to subsection (k)(5) to the extent necessary to honor promises of confidentiality to persons providing information concerning a candidate for position. Inability to maintain such confidentiality would restrict the free flow of information vital to a determination of a candidate's qualifications and suitability.
(3)From subsection (e)(1) (maintain only relevant and necessary records) because it is not always possible to establish relevance and necessity before all information is considered and evaluated in relation to an intelligence concern. In the absence of a national security basis for exemption under subsection (k)(1), records in this system may be exempted from the relevance requirement pursuant to subsection (k)(5) because it is not always possible to determine in advance what exact information may assist in determining the qualifications and suitability of a candidate for position. Seemingly irrelevant details, when combined with other data, can provide a useful composite for determining whether a candidate should be appointed.
(4)From subsections (e)(4)(G) and
(H)(publication of procedures for notifying subjects of the existence of records about them and how they may access records and contest contents) because the system is exempted from subsection
(d)provisions regarding access and amendment and from the subsection
(f)requirement to promulgate agency rules. Nevertheless, the ODNI has published such a notice concerning notification, access, and contest procedures because it may in certain circumstances determine it appropriate to provide subjects access to all or a portion of the records about them in a system of records.
(5)From subsection (e)(4)(I) (identifying sources of records in the system of records) because identifying sources could result in disclosure of properly classified national defense or foreign policy information, intelligence sources and methods and investigatory techniques and procedures. Notwithstanding its proposed exemption from this requirement, ODNI identifies record sources in broad categories sufficient to provide general notice of the origins of the information it maintains in its systems of records.
(6)From subsection
(f)(agency rules for notifying subjects to the existence of records about them, for accessing and amending records and for assessing fees) because the system is exempt from subsection
(d)provisions regarding access and amendment of records by record subjects. Nevertheless, the ODNI has published agency rules concerning notification of a subject in response to his request if any system of records named by the subject contains a record pertaining to him and procedures by which the subject may access or amend the records. Notwithstanding exemption, the ODNI may determine it appropriate to satisfy a record subject's access request.
(c)The ODNI exempts the following system of records from the requirements of subsections (c)(3) and (4); (d)(1), (2), (3), (4); (e)(1), (2), (3), (5),
(8)and (12); and
(g)of the Privacy Act, to the extent that information in the system is subject to exemption pursuant to subsection (j)(2) of the Act. In addition, the following system of records is exempted from the requirements of subsections (c)(3); (d)(1), (2),
(3)and (4); (e)(1); (e)(4)(G),
(H)and (I); and
(f)of the Privacy Act, to the extent that information in the system is subject to exemption pursuant to subsections (k)(1) and (k)(2) of the Act.
(1)OIG Investigation and Interview Records (ODNI/OIG-003).
(2)[Reserved]
(d)Exemptions from the particular subsections are justified for the following reasons:
(1)From subsection (c)(3) (accounting of disclosures) because an accounting of disclosures from records concerning the record subject would specifically reveal an investigative interest on the part of the ODNI as well as the recipient agency and could: result in release of properly classified national security or foreign policy information; compromise ongoing efforts to investigate a known or suspected terrorist; reveal sensitive investigative or surveillance techniques; or identify a confidential source. With this information, the record subject could frustrate counterintelligence measures; impede an investigation by destroying evidence or intimidating potential witnesses; endanger the physical safety of sources, witnesses, and law enforcement and intelligence personnel and their families; or evade apprehension or prosecution by law enforcement personnel.
(2)From subsection (c)(4) (notice of amendment to record recipients) because the system is exempted from the access and amendment provisions of subsection (d).
(3)From subsections (d)(1), (2),
(3)and
(4)(record subject's right to access and amend records) because these provisions concern individual access to and amendment of counterterrorism, investigatory and intelligence records. Affording access and amendment rights could alert the record subject to the fact and nature of an investigation or the investigative interest of intelligence or law enforcement agencies; permit the subject to frustrate such investigation, surveillance or potential prosecution; compromise sensitive information classified in the interest of national security; identify a confidential source or disclose information which would reveal a sensitive investigative or intelligence technique; and endanger the health or safety of law enforcement personnel, confidential informants, and witnesses. In addition, affording subjects access and amendment rights would impose an impossible administrative burden to continuously reexamine investigations, analyses, and reports.
(4)From subsection (e)(1) (maintain only relevant and necessary records) because it is not always possible to know in advance what information will be relevant for the purpose of conducting an investigation. Relevance and necessity are questions of judgment and timing, and only after information is evaluated can relevance and necessity be established. In addition, information in the system of records may relate to matters under the investigative jurisdiction of another agency, and may not readily be segregated. Furthermore, information in these systems of records, over time, aid in establishing patterns of criminal activity that can provide leads for other law enforcement agencies.
(5)From subsection (e)(2) (collection directly from the individual) because application of this provision would alert the subject of a counterterrorism investigation, study or analysis to that fact, permitting the subject to frustrate or impede the activity. Counterterrorism investigations necessarily rely on information obtained from third parties rather than information furnished by subjects themselves.
(6)From subsection (e)(3) (provide Privacy Act Statement to subjects furnishing information) because the system is exempted from the (e)(2) requirement to collect information directly from the subject.
(7)From subsections (e)(4)(G) and
(H)(publication of procedures for notifying subjects of the existence of records about them and how they may access records and contest contents) because the system is exempted from subsection
(d)provisions regarding access and amendment and from the subsection
(f)requirement to promulgate agency rules. Nevertheless, the ODNI has published notice concerning notification, access, and contest procedures because it may in certain circumstances determine it appropriate to provide subjects access to all or a portion of the records about them in a system of records.
(8)From subsection (e)(4)(I) (identifying sources of records in the system of records) because identifying sources could result in disclosure of properly classified national defense or foreign policy information. Additionally, exemption from this provision is necessary to protect the privacy and safety of witnesses and sources of information, including intelligence sources and methods and investigatory techniques and procedures. Notwithstanding its proposed exemption from this requirement, ODNI identifies record sources in broad categories sufficient to provide general notice of the origins of the information it maintains in its systems of records.
(9)From subsection (e)(5) (maintain timely, accurate, complete and up-to-date records) because many of the records in the system are derived from other domestic and foreign agency record systems over which ODNI exercises no control. In addition, in collecting information for counterterrorism, intelligence, and law enforcement purposes, it is not possible to determine in advance what information is accurate, relevant, timely, and complete. With the passage of time and the development of additional facts and circumstances, seemingly irrelevant or dated information may acquire significance. The restrictions imposed by (e)(5) would limit the ability of intelligence analysts to exercise judgment in conducting investigations and impede development of intelligence necessary for effective counterterrorism and law enforcement efforts.
(10)From subsection (e)(8) (notice of compelled disclosures) because requiring individual notice of legally compelled disclosure poses an impossible administrative burden and could alert subjects of counterterrorism, law enforcement, or intelligence investigations to the previously unknown fact of those investigations.
(11)From subsection (e)(12) (public notice of matching activity) because, to the extent such activities are not otherwise excluded from the matching requirements of the Privacy Act, publishing advance notice in the **Federal Register** would frustrate the ability of intelligence analysts to act quickly in furtherance of analytical efforts.
(12)From subsection
(f)(agency rules for notifying subjects to the existence of records about them, for accessing and amending records and for assessing fees) because the system is exempt from the subsection
(d)provisions regarding access and amendment of records by record subjects. Nevertheless, the ODNI has published agency rules concerning notification of a subject in response to his request if any system of records named by the subject contains a record pertaining to him and procedures by which the subject may access or amend the records. Notwithstanding exemption, the ODNI may determine it appropriate to satisfy a record subject's access request.
(13)From subsection
(g)(civil remedies) to the extent that the civil remedies relate to provisions of 5 U.S.C. 552a from which this rule exempts the system. Subpart C—Routine Uses Applicable to More Than One ODNI System of Records § 1701.30 Policy and applicability.
(a)ODNI proposes the following general routine uses to foster simplicity and economy and to avoid redundancy or error by duplication in multiple ODNI systems of records and in systems of records established hereafter by ODNI or by one of its components.
(b)These general routine uses may apply to every Privacy Act system of records maintained by ODNI and its components, unless specifically stated otherwise in the System of Records Notice for a particular system. Additional general routine uses may be identified as notices of systems of records are published.
(c)Routine uses specific to a particular System of Records are identified in the System of Records Notice for that system. § 1701.31 General routine uses.
(a)Except as noted on Standard Forms 85 and 86 and supplemental forms thereto (questionnaires for employment in, respectively, “non-sensitive” and “national security” positions within the Federal government), a record that on its face or in conjunction with other information indicates or relates to a violation or potential violation of law, whether civil, criminal, administrative or regulatory in nature, and whether arising by general statute, particular program statute, regulation, rule or order issued pursuant thereto, may be disclosed as a routine use to an appropriate federal, state, territorial, tribal, local law enforcement authority, foreign government or international law enforcement authority, or to an appropriate regulatory body charged with investigating, enforcing, or prosecuting such violations.
(b)A record from a system of records maintained by the ODNI may be disclosed as a routine use, subject to appropriate protections for further disclosure, in the course of presenting information or evidence to a magistrate, special master, administrative law judge, or to the presiding official of an administrative board, panel or other administrative body.
(c)A record from a system of records maintained by the ODNI may be disclosed as a routine use to representatives of the Department of Justice or any other entity responsible for representing the interests of the ODNI in connection with potential or actual civil, criminal, administrative, judicial or legislative proceedings or hearings, for the purpose of representing or providing advice to: The ODNI; any staff of the ODNI in his or her official capacity; any staff of the ODNI in his or her individual capacity where the staff has submitted a request for representation by the United States or for reimbursement of expenses associated with retaining counsel; or the United States or another Federal agency, when the United States or the agency is a party to such proceeding and the record is relevant and necessary to such proceeding.
(d)A record from a system of records maintained by the ODNI may be disclosed as a routine use in a proceeding before a court or adjudicative body when any of the following is a party to litigation or has an interest in such litigation, and the ODNI, Office of General Counsel, determines that use of such records is relevant and necessary to the litigation: The ODNI; any staff of the ODNI in his or her official capacity; any staff of the ODNI in his or her individual capacity where the Department of Justice has agreed to represent the staff or has agreed to provide counsel at government expense; or the United States or another Federal agency, where the ODNI, Office of General Counsel, determines that litigation is likely to affect the ODNI.
(e)A record from a system of records maintained by the ODNI may be disclosed as a routine use to representatives of the Department of Justice and other U.S. Government entities, to the extent necessary to obtain advice on any matter within the official responsibilities of such representatives and the responsibilities of the ODNI.
(f)A record from a system of records maintained by the ODNI may be disclosed as a routine use to a Federal, state or local agency or other appropriate entities or individuals from which/whom information may be sought relevant to: A decision concerning the hiring or retention of an employee or other personnel action; the issuing or retention of a security clearance or special access, contract, grant, license, or other benefit; or the conduct of an authorized investigation or inquiry, to the extent necessary to identify the individual, inform the source of the nature and purpose of the inquiry, and identify the type of information requested.
(g)A record from a system of records maintained by the ODNI may be disclosed as a routine use to any Federal, state, local, tribal or other public authority, or to a legitimate agency of a foreign government or international authority to the extent the record is relevant and necessary to the other entity's decision regarding the hiring or retention of an employee or other personnel action; the issuing or retention of a security clearance or special access, contract, grant, license, or other benefit; or the conduct of an authorized inquiry or investigation.
(h)A record from a system of records maintained by the ODNI may be disclosed as a routine use to a Member of Congress or Congressional staffer in response to an inquiry from that Member of Congress or Congressional staffer made at the written request of the individual who is the subject of the record.
(i)A record from a system of records maintained by the ODNI may be disclosed to the Office of Management and Budget in connection with the review of private relief legislation, as set forth in Office of Management and Budget Circular No. A-19, at any stage of the legislative coordination and clearance process as set forth in the Circular.
(j)A record from a system of records maintained by the ODNI may be disclosed as a routine use to any agency, organization, or individual for authorized audit operations, and for meeting related reporting requirements, including disclosure to the National Archives and Records Administration for records management inspections and such other purposes conducted under the authority of 44 U.S.C. 2904 and 2906, or successor provisions.
(k)A record from a system of records maintained by the ODNI may be disclosed as a routine use to individual members or staff of Congressional intelligence oversight committees in connection with the exercise of the committees' oversight and legislative functions.
(l)A record from a system of records maintained by the ODNI may be disclosed as a routine use pursuant to Executive Order to the President's Foreign Intelligence Advisory Board, the President's Intelligence Oversight Board, to any successor organizations, and to any intelligence oversight entity established by the President, when the Office of the General Counsel or the Office of the Inspector General determines that disclosure will assist such entities in performing their oversight functions and that such disclosure is otherwise lawful.
(m)A record from a system of records maintained by the ODNI may be disclosed as a routine use to contractors, grantees, experts, consultants, or others when access to the record is necessary to perform the function or service for which they have been engaged by the ODNI.
(n)A record from a system of records maintained by the ODNI may be disclosed as a routine use to a former staff of the ODNI for the purposes of responding to an official inquiry by a Federal, state, or local government entity or professional licensing authority or facilitating communications with a former staff of the ODNI that may be necessary for personnel-related or other official purposes when the ODNI requires information or consultation assistance, or both, from the former staff regarding a matter within that person's former area of responsibility.
(o)A record from a system of records maintained by the ODNI may be disclosed as a routine use to legitimate foreign, international or multinational security, investigatory, law enforcement or administrative authorities in order to comply with requirements imposed by, or to claim rights conferred in, formal agreements and arrangements to include those regulating the stationing and status in foreign countries of Department of Defense military and civilian personnel.
(p)A record from a system of records maintained by the ODNI may be disclosed as a routine use to any Federal agency when documents or other information obtained from that agency are used in compiling the record and the record is relevant to the official responsibilities of that agency, provided that disclosure of the recompiled or enhanced record to the source agency is otherwise authorized and lawful.
(q)A record from a system of records maintained by the ODNI may be disclosed as a routine use to appropriate agencies, entities, and persons when: The security or confidentiality of information in the system of records has or may have been compromised; and the compromise may result in economic or material harm to individuals (e.g., identity theft or fraud), or harm to the security or integrity of the affected information or information technology systems or programs (whether or not belonging to the ODNI) that rely upon the compromised information; and disclosure is necessary to enable ODNI to address the cause(s) of the compromise and to prevent, minimize, or remedy potential harm resulting from the compromise.
(r)A record from a system of records maintained by the ODNI may be disclosed as a routine use to a Federal, state, local, tribal, territorial, foreign, or multinational agency or entity or to any other appropriate entity or individual for any of the following purposes: to provide notification of a serious terrorist threat for the purpose of guarding against or responding to such threat; to assist in coordination of terrorist threat awareness, assessment, analysis, or response; or to assist the recipient in performing authorized responsibilities relating to terrorism or counterterrorism.
(s)A record from a system of records maintained by the ODNI may be disclosed as a routine use for the purpose of conducting or supporting authorized counterintelligence activities as defined by section 401a(3) of the National Security Act of 1947, as amended, to elements of the Intelligence Community, as defined by section 401a(4) of the National Security Act of 1947, as amended; to the head of any Federal agency or department; to selected counterintelligence officers within the Federal government.
(t)A record from a system of records maintained by the ODNI may be disclosed as a routine use to a Federal, state, local, tribal, territorial, foreign, or multinational government agency or entity, or to other authorized entities or individuals, but only if such disclosure is undertaken in furtherance of responsibilities conferred by, and in a manner consistent with, the National Security Act of 1947, as amended; the Counterintelligence Enhancement Act of 2002, as amended; Executive Order 12333 or any successor order together with its implementing procedures approved by the Attorney General; and other provisions of law, Executive Order or directive relating to national intelligence or otherwise applicable to the ODNI. This routine use is not intended to supplant the other routine uses published by the ODNI. Dated: March 18, 2008. Ronald L. Burgess, Jr., Lieutenant General, USA, Director of the Intelligence Staff. [FR Doc. E8-5904 Filed 3-27-08; 11:00 am] BILLING CODE 3910-A7-P-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2007-0647; FRL-8546-3] Approval and Promulgation of State Implementation Plans; State of Utah; Interstate Transport of Pollution and Other Revisions AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is taking direct final action approving State Implementation Plan
(SIP)revisions submitted by the State of Utah on March 22 and September 17, 2007. The revisions address Interstate Transport Pollution requirements of Section 110(a)(2)(D)(i) of the Clean Air Act and a typographical error in Rule R307-130-4, “Options.” The March 22, 2007 submittal adds “Section XXIII, Interstate Transport” to the Utah SIP, and Rule R307-110-36 to the Utah Administrative Code (UAC). The new Rule R307-110-36 incorporates by reference the Interstate Transport declaration into the State rules. The September 17, 2007 submittal amends UAC Rule R307-130-4, “Options,” by removing from the text the word “not” which had been accidentally placed in this rule. This action is being taken under section 110 of the Clean Air Act. DATES: This rule is effective on May 27, 2008 without further notice, unless EPA receives adverse comment by April 28, 2008. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the **Federal Register** informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-OAR-2007-0647, by one of the following methods: • *www.regulations.gov.* Follow the on-line instructions for submitting comments. • *E-mail:* *videtich.callie@epa.gov* and *mastrangelo.domenico@epa.gov* . • *Fax:*
(303)312-6064 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments). • *Mail:* Callie Videtich, Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. • *Hand Delivery:* Callie Videtich, Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129. Such deliveries are only accepted Monday through Friday, 8 a.m. to 4:55 p.m., excluding Federal holidays. Special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R08-OAR-2007-0647. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA, without going through *www.regulations.gov* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional instructions on submitting comments, go to Section I. General Information of the SUPPLEMENTARY INFORMATION section of this document. *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly-available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Domenico Mastrangelo, Air Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129,
(303)312-6436, *mastrangelo.domenico@epa.gov* . SUPPLEMENTARY INFORMATION: Definitions For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i)The words or initials *Act* or *CAA* mean or refer to the Clean Air Act, unless the context indicates otherwise.
(ii)The words *EPA, we, us* or *our* mean or refer to the United States Environmental Protection Agency.
(iii)The initials *SIP* mean or refer to State Implementation Plan.
(iv)The words *State* or *Utah* mean the State of Utah, unless the context indicates otherwise. Table of Contents I. General Information II. What is the purpose of this action? III. What is the State process to submit these materials to EPA? IV. EPA's Evaluation of the State of Utah March 22, 2007 Submittal V. EPA's Evaluation of the State of Utah September 17, 2007 Submittal VI. Final Action VII. Statutory and Executive Order Reviews I. General Information A. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI.* Do not submit CBI to EPA through *www.regulations.gov* or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. *Tips for Preparing Your Comments.* When submitting comments, remember to: a. Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. d. Describe any assumptions and provide any technical information and/or data that you used. e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. f. Provide specific examples to illustrate your concerns, and suggest alternatives. g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. h. Make sure to submit your comments by the comment period deadline identified. II. What is the purpose of this action? EPA is approving the addition of “Section XXIII, Interstate Transport” to the Utah SIP, and of Rule R307-110-36 (incorporating by reference Section XXIII) to the Utah Administrative Code (UAC). The Interstate Transport SIP and Rule R307-110-36 were adopted by the Utah Air Quality Board
(UAQB)on February 7, 2007, and were submitted by the Governor to EPA on March 22, 2007. Section XXIII of the Utah SIP, Interstate Transport, addresses the requirements of the “good neighbor” provisions of the CAA Section 110(a)(2)(D)(i). This section requires that each state's SIP include adequate provisions prohibiting emissions that adversely affect another state's air quality through interstate transport of air pollutants. EPA is also approving an amendment removing the word “not,” a typographical error, from the provisions of Rule R307-130-4, “Options.” The amendment to this rule was adopted by the UAQB on June 21, 2007, effective July 13, 2007, and submitted by the Governor to EPA on September 17, 2007. III. What is the State process to submit these materials to EPA? Section 110(k) of the CAA addresses EPA actions on submissions of revisions to a SIP. The CAA requires States to observe certain procedural requirements in developing SIP revisions for submittal to EPA. Section 110(a)(2) of the CAA requires that each SIP revision be adopted after reasonable notice and public hearing. This must occur prior to the revision being submitted by a state to EPA. The UAQB held a public hearing on December 21, 2006 for the addition of Section XXIII, Interstate Transport to the Utah SIP, and Rule R307-110-36 to the Utah Administrative Code (UAC). The new Rule R307-110-36 incorporates by reference the Interstate Transport declaration into the State rules. These additions to the State SIP were adopted by the Board on February 7, 2007, and were submitted by the Governor to EPA on March 22, 2007. Rule R307-110-36 became effective February 9, 2007. The UAQB held a public hearing on April 18, 2007 for a revision to UAC Rule R307-130-4, Options, correcting a typographical error. This revision was adopted by the Board on June 21, 2007, effective July 13, 2007, and submitted by the Governor to EPA on September 17, 2007. We have evaluated the Governor's submittals of these SIP revisions and have determined that the State met the requirements for reasonable notice and public hearing under Section 110(a)(2) of the CAA. IV. EPA's Evaluation of the State of Utah March 22, 2007 Submittal EPA has reviewed the State of Utah Interstate Transport SIP submitted on March 22, 2007, and believes that approval is warranted. The “good neighbor” provisions of the CAA, Section 110 (a)(2)(D)(i), require that the Utah SIP contain adequate provisions prohibiting air pollutant emissions from sources or activities in the State from adversely affecting another state. A state SIP must include provisions that prohibit sources from emitting pollutants in amounts which will:
(1)Contribute significantly to nonattainment of the NAAQS in another state;
(2)interfere with maintenance of the NAAQS by another state;
(3)interfere with another state's measures to prevent significant deterioration of its air quality; and
(4)interfere with the efforts of another state to protect visibility. EPA issued guidance on August 15, 2006 relating to SIP submissions that meet the requirements of Section 110 (a)(2)(D)(i) for the 1997 PM 2.5 and 8-hour ozone standards. Section XXIII of the SIP, Interstate Transport, submitted by the State of Utah is consistent with the guidance. To support the first two of the four elements noted above, the State of Utah relies on EPA assessments and modeling analysis results published in **Federal Register** notices as part of the Clean Air Interstate Rule
(CAIR)rulemaking process. 1 In addition, EPA has examined factors specific to Utah and to a number of downwind or potentially downwind states that have the potential to be significantly affected by any transport of PM 2.5 and ozone or ozone precursors from Utah. Utah's neighboring states considered here as downwind or potentially downwind include Colorado, Idaho, Montana, North and South Dakota, and Wyoming. 1 Unless otherwise noted, in this action the expression CAIR rulemaking process or CAIR rule refers to materials (data, analyses, assessments) developed during the rulemaking process that resulted in the May 12, 2005 **Federal Register** notice “Rule to Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to NO <sup>X</sup> SIP Call; Final Rule,” (70 FR 25162). The Utah Interstate Transport SIP addresses the question of potential PM 2.5 and ozone transport to other states by quoting from the explanation given by EPA in support of the exclusion of seven western states (including Utah) from the analysis that underlies the CAIR notice of proposed rulemaking: In analyzing significant contribution to nonattainment, we determined it was reasonable to exclude the Western U.S., including the States of Washington, Idaho, Oregon, California, Nevada, Utah and Arizona from further analysis due to geography, meteorology, and topography. Based on these factors, we concluded that the PM 2.5 and 8-hour ozone nonattainment problems are not likely to be affected significantly by pollution transported across these States' boundaries. Therefore, for the purpose of assessing State's contributions to nonattainment in other States, we have only analyzed the nonattainment counties located in the rest of the US. 2 2 “Rule to Reduce Interstate Transport of Fine Particulate Matter and Ozone (Interstate Air Quality Rule); Proposed Rule,” January 30, 2004 (69 FR 4566). Alaska and Hawaii complete the list of states not included in EPA's modeling analysis. Next, the Utah Interstate Transport SIP quotes a paragraph from an EPA April 2005 response to public comments to the CAIR notice of proposed rule. EPA's response extrapolates from the results of the modeling analysis conducted for the January 30, 2004 proposed rule to validate the previous decision to exclude Utah and other six western states from the CAIR analysis: Regarding modeling of all states, in the PM 2.5 modeling for the NPRM, we modeled 41 states, and found that the westernmost of these states made very small contributions to nonattainment in any other state. For the revised modeling for the final rule, we reduced the set of states modeled for reasons of efficiency. The results again showed that the westernmost states modeled did not make contributions above the significance threshold, indicating that had other even more western States been modeled they also would not have done so. 3 3 “Corrected Response to Significant Public Comments on the Proposed Clean Air Interstate Rule Received in response to: Rule to Reduce Interstate Transport of Fine Particulate Matter and Ozone (Interstate Air Quality Rule); Proposed Rule (69 FR 4566; January 30, 2004) Supplemental Proposal for the Rule to Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Proposal Rule (69 FR 32684; June 10, 2004) Docket Number OAR-2003-0053,” April 2005. These assessments are substantiated by data and consideration of additional factors EPA examined. Findings from the modeling analysis conducted by EPA for the CAIR proposed rule include the maximum annual average PM 2.5 contribution by 41 states to the downwind counties identified in nonattainment for the base years 2010 and 2015. For the states included in the study, the maximum PM 2.5 annual average contribution to nonattainment by the westernmost states amounted to: 0.04 μg/m 3 for Colorado, 0.03 for Montana, 0.08 for Nebraska, 0.12 for North Dakota, 0.04 for South Dakota, and 0.05 for Wyoming (69 FR 4608). These amounts are well below the “significant contribution” threshold of 0.20 μg/m 3 set by EPA. A review of the attainment/nonattainment areas for the 1997 PM 2.5 standard in these states and in Utah yields similar conclusions. Utah's closest, potentially downwind, PM 2.5 nonattainment area is centered in Libby, Lincoln County, Montana, which is about 500 miles north of the northern Utah border. EPA's findings based on a nine-factor analysis of Lincoln County, and reported in the Agency's technical support document for the December 17, 2004 designations, stressed the local origins of PM 2.5 nonattainment in Libby. 4 These findings, in combination with other factors such as the absence of PM 2.5 nonattainment areas in Utah, the distance between Utah and Libby, and the absence of PM 2.5 nonattainment areas along the 500 miles between the Utah northern border and Libby lead to the conclusion that it is unlikely that Utah is making a significant contribution to the PM 2.5 nonattainment status of Lincoln County or interfering with maintenance of the NAAQS in Montana. Similarly, the absence of PM 2.5 nonattainment areas in Utah and in the other neighboring downwind states makes it unlikely that Utah interferes with the maintenance of the 1997 PM 2.5 NAAQS standard in Colorado, Idaho, North Dakota, South Dakota, or Wyoming. 4 “Technical Support for State and Tribal Air Quality Fine Particle (PM 2.5 ) Designations,” December 2004; Chapter 6, pages 347-352. For the 1997 8-hour ozone standard, our review of the attainment/nonattainment status in Utah and its downwind states confirms the EPA positions incorporated by the State of Utah into its Interstate Transport SIP. Utah does not have any ozone nonattainment areas, and the same is true for all of its closest downwind states, except Colorado. On this basis it is plausible to conclude that Utah does not contribute significantly to ozone nonattainment, or interfere with ozone maintenance, in the states of Idaho, Montana, Nebraska, North Dakota, South Dakota, and Wyoming. Several factors need to be considered about potential ozone transport between Utah and the Denver-Fort Collins metropolitan area, in Colorado, which is designated nonattainment for the 1997 8-hour ozone standard. Certain geographical, topographical, and meteorological factors indicate that it is unlikely that Utah contributes significantly to the 8-hour ozone nonattainment of the Denver-Fort Collins metropolitan area. The 400 miles distance between Salt Lake City and Denver, in combination with high natural barriers such as the Wasatch Range in Utah and several ranges of the Rocky Mountains in Colorado, constitute a sizeable physical barrier to potential eastward transport of ozone or ozone precursors from Utah to Colorado. Also, observed days of high ozone levels in the Salt Lake City metropolitan area are usually associated with a ‘bowl effect' resulting from an inversion that has a stagnant air pollution mass surrounded by the Oquirrh Mountains to the west, the Great Salt Lake to the north, and the Wasatch Range on the east. In contrast, high ozone levels in the Denver metropolitan area are often associated with light up-slope (easterly) winds occurring at the surface level, that keep ozone and its precursors stagnating against the Front Range on the west side of metropolitan Denver and Fort Collins. In light of these considerations, it is unlikely that Utah makes a significant contribution of ozone and/or ozone precursors to ozone nonattainment in the Denver-Fort Collins metropolitan area. The third element of the Section 110(a)(2)(D)(i) provisions requires states to prohibit emissions that interfere with any other state's measures to prevent significant deterioration
(PSD)of air quality. The State of Utah's SIP provisions include EPA-approved PSD and Nonattainment New Source Review
(NNSR)programs that have been successfully implemented in past years. For PM <sup>2.5</sup> , the State PSD and NNSR programs are being implemented in accordance with EPA's interim guidance calling for the use of PM <sup>10</sup> as a surrogate for PM <sup>2.5</sup> in the PSD program. In addition, Utah has committed to transitioning from use of the interim PM <sup>2.5</sup> guidance to the final PM <sup>2.5</sup> implementation guidance after this guidance is finalized. EPA published proposed regulations to establish this guidance on September 21, 2007 (72 FR 54112). The fourth element of the “good neighbor” provisions concerns the requirement that a state SIP prohibit sources from emitting pollutants that interfere with the efforts of another state to protect visibility. Consistent with EPA's August 15, 2007 guidance, the Utah Interstate Transport SIP declares that, under the 1980 regulations addressing Reasonably Attributable Visibility Impairment (RAVI), in Utah there are no sources that interfere with implementation of RAVI in other states. The Interstate Transport SIP refers also to the Utah Regional Haze SIP submitted to EPA in 2003 as an indication of the State's commitment to reduce impacts on Class I areas on the Colorado Plateau. Consistent with the EPA guidance cited above, Utah will fully address in the State's regional haze SIP the requirements for SIP measures protecting visibility in downwind states. Based on EPA's review and analysis of how the State of Utah addresses the four elements identified in the “good neighbor” provisions, we are approving the State's Section XXIII of its SIP, Interstate Transport, as meeting the requirements of the CAA Section 110(a)(2)(D)(i). We are also approving the Utah Administrative Code
(UAC)Rule R307-110-36 which incorporates Section XXIII of the SIP into the State rules. V. EPA's Evaluation of the State of Utah September 17, 2007 Submittal In its September 17, 2007 submittal to EPA, Utah corrected a typographical error in UAC Rule R307-130-4 by eliminating the term “not” from its language. This change is approvable as it does not modify, and makes clearer, the meaning of the rule. During the required five year review of State rules, the Utah Division of Air Quality, Department of Environmental Quality, discovered that the term “not” was a typographical error. Rule R307-130-4, “Options,” under the General Penalty Policy Provisions of the UAC, reads: “Consideration may be given to suspension of monetary penalties in trade-off for expenditures resulting in additional controls and/or emissions reductions beyond those *not* [italics ours] required to meet existing requirements. Consideration may be given to an increased amount of suspended penalty as deterrent to future violations where appropriate.” It is clear that Utah intended for the rule to indicate that monetary penalties assessed for violations may be suspended by the State in exchange for a violator's investment in additional pollution control measure and/or emissions reductions “beyond those required to meet existing requirements,” thus, the change is appropriate. VI. Final Action EPA is approving, through direct final rulemaking, the addition of Section XXIII, Interstate Transport, to the Utah SIP, and of Rule R307-110-36 (which incorporates Section XXIII) to the Utah Administrative Code (UAC), to reflect that the State has adequately addressed the required elements of Section 110(a)(2)(D)(i) of the Clean Air Act. These revisions were adopted on February 7, 2007, and were submitted to EPA on March 22, 2007. Rule R307-110-36 became effective February 9, 2007. EPA is also approving the removal of the word “not,” a typographical error, from the provisions of Rule R307-130-4, “Options.” The amended text was adopted by the UAQB on June 21, 2007, effective July 13, 2007, and submitted by the Governor to EPA on September 17, 2007. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. This rule will be effective May 27, 2008 without further notice unless the Agency receives adverse comments by April 28, 2008. If the EPA receives adverse comments, EPA will publish a timely withdrawal in the **Federal Register** informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives 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. VII. Statutory and Executive Order Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by *May 27, 2008.* Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: March 12, 2008. Carol Rushin, Acting Regional Administrator, Region 8. 40 CFR part 52 is amended to read as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart TT—Utah 2. Section 52.2320 is amended by adding paragraph (c)(65) to read as follows: § 52.2320 Identification of plan.
(c)* * *
(65)On March 22, 2007 the Governor of Utah submitted the addition to the Utah Administrative Code
(UAC)of Rule R307-110-36. This rule incorporates by reference Section XXIII, Interstate Transport, of the Utah State Implementation Plan (SIP). The Interstate Transport declaration satisfies the requirements of Section 110(a)(2)(D)(i) of the Clean Air Act (CAA). On September 17, 2007, the Governor of Utah also submitted an amendment to the UAC Rule R307-130-4, “Options,” that removes from the text a typographical error. It removes the word “not” which had been accidentally placed in this rule.
(i)Incorporation by reference.
(A)Addition to the UAC of rule R307-110-36 that incorporates by reference Section XXIII, “Interstate Transport,” of the Utah SIP. Rule R307-110-36 was adopted by the UAQB on February 7, 2007, effective February 9, 2007, and it was submitted by the Governor to EPA on March 22, 2007.
(B)Revision to UAC Rule R307-130-4, “Options.” This revision removes from the text the word “not.” The amended text was adopted by the UAQB on June 21, 2007, effective July 13, 2007, and it was submitted by the Utah Governor to EPA on September 17, 2007.
(ii)Additional material.
(A)Replacement page for UAC Rule R307-110-36 attached to the March 22, 2007 submittal letter by the Utah Governor to EPA. The new page correctly refers to Section XXIII of the Utah SIP instead of the incorrect reference to Section XXII included in the corresponding page submitted with the Administrative Documentation for Rule R307-110-36. 3. Section 52.2354 is added to read as follows: § 52.2354 Interstate Transport. CAA Section 110(a)(2)(D)(i) requirements for the 1997 8-hour ozone and PM <sup>2.5</sup> standards. Section XXIII, Interstate Transport, of the Utah SIP submitted by the Utah Governor on March 22, 2007, satisfies the requirements of the Clean Air Act Section 110(a)(2)(D)(i) for the 8-hour ozone and PM <sup>2.5</sup> NAAQS promulgated by EPA in July 1997. Section XXIII, Interstate Transport, was adopted by the UAQB on February 9, 2007. The March 22, 2007 Governor's letter included as an attachment a set of replacement pages for the Interstate Transport text. The new pages reflect correctly that the Interstate Transport declaration is under Section XXIII of the Utah SIP and not under Section XXII as incorrectly indicated in the pages submitted with the Administrative Documentation for the adoption of this SIP section. [FR Doc. E8-6275 Filed 3-27-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 81 [EPA-R04-OAR-2007-0959-200804; FRL-8547-8] Determination of Nonattainment and Reclassification of the Memphis, TN/Crittenden County, AR 8-Hour Ozone Nonattainment Area AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This rule finalizes EPA's finding of nonattainment and reclassification of the Memphis, Tennessee and Crittenden County, Arkansas 8-hour ozone nonattainment area (Memphis TN-AR Nonattainment Area). EPA finds that the Memphis TN-AR Nonattainment Area has failed to attain the 8-hour ozone national ambient air quality standard (“NAAQS” or “standard”) by June 15, 2007, the attainment deadline set forth in the Clean Air Act
(CAA)and Code of Federal Regulations
(CFR)for marginal nonattainment areas. As a result, on the effective date of this rule, the Memphis TN-AR Nonattainment Area will be reclassified by operation of law as a moderate 8-hour ozone nonattainment area. The moderate area attainment date for the reclassified Memphis TN-AR Nonattainment Area would then be “as expeditiously as practicable,” but no later than June 15, 2010. Once reclassified, Tennessee and Arkansas must submit State Implementation Plan
(SIP)revisions that meet the 8-hour ozone nonattainment requirements for moderate areas, as required by the CAA. In this action, EPA is establishing the schedule for the States' submittal of the SIP revisions required for the nonattainment area once it is reclassified. EPA determines that the States must submit these SIP revisions by March 1, 2009. DATES: *Effective Date:* April 28, 2008. ADDRESSES: EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2007-0959. All documents in the docket are listed on the *www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *www.regulations.gov* or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960 or Air Planning Section, U.S. Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays. FOR FURTHER INFORMATION CONTACT: Jane Spann, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is
(404)562-9029. Mrs. Spann can also be reached via electronic mail at *spann.jane@epa.gov.* Or Jeffrey Riley, Air Planning Section, U.S. Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733. The telephone number is 214-665-8542. Mr. Riley can also be reached via electronic mail at *riley.jeffrey@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. What Is the Background for This Action? II. Response to Comments III. What Is the Effect of This Action? A. Determination of Nonattainment, Reclassification of Memphis TN-AR Nonattainment Area and New Attainment Date B. When Must Tennessee and Arkansas Submit SIP Revisions Fulfilling the Requirements for Moderate Ozone Nonattainment Areas IV. Final Action V. Statutory and Executive Order Reviews I. What Is the Background for This Action? On October 16, 2007, EPA proposed its finding that the Memphis TN-AR Nonattainment Area did not attain the 8-hour ozone NAAQS by June 15, 2007, the applicable attainment date (72 FR 58577). The proposed finding was based upon ambient air quality data from the years 2004, 2005, and 2006. In addition, as explained in the proposed rule, the Area did not qualify for an attainment date extension under the provisions of CAA section 181(a)(5) and 40 CFR 51.907, because the 4th highest daily value in the attainment year of 2006 was greater than 0.084 parts per million (ppm). In the October 16, 2007, proposal, EPA proposed that the appropriate reclassification of the area was to “moderate” nonattainment, in accordance with CAA Section 181(b)(2). II. Response to Comments EPA received comments from the Shelby County Government of Tennessee (Shelby County), the Arkansas Department of Environmental Quality (ADEQ), the Sierra Club Chickasaw Group-Tennessee Chapter and two citizens in response to the proposed reclassification of the Memphis TN-AR Nonattainment Area from marginal to moderate, published on October 16, 2007 (72 FR 58577). Comments can be found on the internet in the electronic docket for this action. To access the comments, please go to *http://www.regulations.gov* and search for Docket No. EPA-R04-OAR-2007-0959, or contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph above. A summary of the adverse comments received and EPA's response to the comments is presented below. *Comment:* All commenters discussed including DeSoto County, Mississippi in the 8-hour ozone nonattainment area. Shelby County commented that the area's failure to meet the attainment date is not due to a lack of local control measures and regulation of ozone precursors, but is due to errors made in the original designation and that EPA's decision to exclude DeSoto County was an error that is negatively affecting the Area's ability to achieve the standard. Shelby County also commented that the DeSoto County monitor is exhibiting a disturbing trend towards violation that should be reversed. Shelby County and ADEQ suggested that the appropriate action would be to expand the nonattainment area to include DeSoto County rather than to reclassify the current area to moderate status. *Response:* The validity of the 2004 designations for DeSoto County or the Memphis ozone nonattaiment area are not the subject of this rulemaking, nor is it relevant to EPA's determination of whether the Memphis area attained the 8-hour ozone NAAQS by its attainment date. The CAA establishes a process for air quality management for purposes of attaining and maintaining the NAAQS. After promulgation of a new or revised NAAQS, section 107(d)(1) of the CAA requires EPA to designate areas as meeting or not meeting the standard. EPA published the designations for the 8-hour ozone NAAQS on April 30, 2004. Prior to April 30, 2004, each State Governor had an opportunity to recommend air quality designations, including appropriate boundaries, to EPA. One hundred and twenty days prior to promulgating designations, EPA was required to notify the States, if EPA disagreed with a State's recommended designation and intended to modify the recommended designation. States then had an opportunity to provide a demonstration as to why the proposed modification was inappropriate. Any issues concerning the initial designations, including whether a county should have been included as part of a specific nonattainment area, should have been raised at that time and any challenges to EPA's final rule designating areas were required to be filed within 60 days of April 30, 2004. Thus, any claims now that DeSoto County should have been included as part of the Memphis ozone nonattainment area are not timely. The time for addressing the validity of the designations is past, and the appropriateness of the 2004 designations is not at issue in this rulemaking. As a result, all comments concerning purported deficiencies in the final designations for these areas are not relevant to this rulemaking. With respect to the commenters' contention that EPA should now expand the nonattainment area to include DeSoto County, this rulemaking action, which involves a determination of nonattainment for the Memphis 8-hour ozone nonattainment area pursuant to section 181(b)(2), is not the appropriate time in which to address a reevaluation of the designation for the area. In its proposed rulemaking EPA noted that DeSoto County is not included in the Memphis Area, but stated that “its monitoring data is regularly considered for potential contributions to the Memphis TN-AR Nonattainment Area airshed.” 72 FR 58579. EPA is clarifying in this final rulemaking that, while we reviewed the data from the DeSoto monitor, we are not relying on data from that monitor in reaching a final determination that the Memphis Area failed to attain the 8-hour ozone standard by its June 15, 2007, attainment date. Notably, for the years 2004-2006, the monitor in DeSoto County demonstrated attainment. Because this final determination was based upon the Marion, AR monitor which provided the Area its 2004-2006 design value of .087 ppm, the additional DeSoto County data would not alter this determination. EPA also notes that preliminary data for 2007 for both the Marion and DeSoto monitors show that, if the data were quality assured, both monitors would register as nonattainment for 2005-2007. Again, the additional DeSoto County data would not alter the determination that the Area did not attain the standard. *Comment:* Shelby County and ADEQ commented that EPA has invoked the legal principle known as “operation of law” as justification for reclassifying the Memphis, TN-AR Nonattainment Area from marginal to moderate. The commenters believe that the invocation of “operation of law” is, in this instance, a discretionary power. Shelby County commented that reclassification is not needed and will not serve to move the Area into attainment of the ozone standard any sooner than is currently predicted by the extensive computer modeling, and that reclassification will place an undue and completely unnecessary administrative cost on the taxpayers of Tennessee and Arkansas without improving air quality in the Area. ADEQ commented that reclassification is unmerited at this time and that “there would be no demonstrable harm to the public if the EPA Administrator used discretionary authority to waive the action otherwise the result of operation of law.” ADEQ also commented that delays in federal ozone programs were responsible for higher regional design values, and that “States and localities should not be required to take on new regulatory burdens as a result of programmatic delays over which they had no control. The EPA has not taken this into account in its deliberations as to whether redesignation [sic] is appropriate in this instance.” *Response:* EPA disagrees with the assertion that reclassification upon a determination of failure to attain is a discretionary power, and that EPA can “waive” reclassification after it has determined that the area has failed to attain by its attainment date. In the October 16, 2007, proposed rule (72 FR 58577), EPA cited section 181(b)(2)(A) of the CAA, which provides that, for reclassification upon failure to attain, “within 6 months following the applicable attainment date (including any extension thereof) for an ozone nonattainment area, the Administrator shall determine, based on the area's design value (as of the attainment date), whether the area attained the standard by that date. Except for any Severe or Extreme area, any area that the Administrator finds has not attained the standard by that date shall be reclassified by operation of law in accordance with table 1 of subsection
(a)(of Section 181) to the higher of—(i) the next higher classification for the area, or
(ii)the classification applicable to the area's design value as determined at the time of the notice required under subparagraph (B).” Pursuant to section 181(b)(2), EPA has determined that the Memphis TN-AR Nonattainment Area failed to attain the 8-hour ozone NAAQS by June 15, 2007, the attainment deadline set forth in the CAA and CFR for marginal nonattainment areas. Because the Area is not classified as severe or extreme, the area shall be reclassified by operation of law to the next higher classification. The next higher classification for the Area (moderate) is higher than the classification applicable to the Area's design value (marginal). Therefore, in accordance with the CAA, the Area must be reclassified by operation of law to a moderate nonattainment area. 72 FR 58579. As EPA noted above, under section 181(b)(2)(A), the attainment determination is made solely on the basis of air quality, and any reclassification is by operation of law. Thus, the resulting requirements apply regardless of how the nonattainment came about, and the CAA does not allow EPA to assess the need, or lack thereof, for additional local measures. With respect to any perceived burden imposed by the new planning requirements, EPA notes that the moderate area requirements are imposed by section 182(b) of the CAA and the impact, economic or otherwise, of a reclassification is not a consideration in making the attainment determination under section 181(b)(2). *Comment:* Shelby County and ADEQ commented that if EPA determines that it has no discretion on reclassification, the public comment process provides no opportunity for relevant comments on the proposed action to be considered. *Response:* EPA disagrees that the public comment process provides no opportunity for relevant comments on the proposed action. The process allows for an opportunity to ascertain whether EPA's analysis of the relevant data and CAA requirements is correct. Under section 182(b)(2)(A), the attainment determination is made solely on the basis of air quality data, and reclassification and the level to which an area is reclassified is by operation of law. Section 181(b)(2)(B) requires EPA to publish a notice in the **Federal Register** identifying the reclassification status of an area that has failed to attain the standard by its attainment date. Thus, in making the determinations required by the CAA, EPA solicits and will consider comments addressing EPA's determination with respect to whether air quality data show attainment or nonattainment by the applicable attainment date, and EPA's identification of any resulting reclassification that occurs by operation of law. There is, therefore, a meaningful role for public comments in determinations of attainment, specifically with regard to the data and EPA's analysis of the data, but this is not inconsistent with, and does not alter the statutory scheme that provides that reclassification occurs as a matter of law, and is not within EPA's discretion. *Comment:* ADEQ commented that for the 2007 ozone season to date, the fourth highest value in the nonattainment Area had not exceeded 0.084 ppm and that the Area's air quality appears to be improving. ADEQ further requested that EPA consider calendar year 2007 as an “extension year” and grant a one-year extension of the attainment date as a means of providing relief from the duplication of effort that will be required in the event that the recently proposed revisions to the ozone standard are promulgated in the near future. *Response:* Sections 172(a)(2)(C) and 181(a)(5) of the CAA provide states with an opportunity to apply to extend the attainment date by one year. Section 181(a)(5) applies to areas classified under Subpart 2 of the CAA, and 40 CFR 51.907 provides EPA's interpretation of section 172(a)(2)(C) and 181(a)(5) for purposes of the 8-hour ozone standard. For the 8-hour ozone standard, if an area's fourth highest daily maximum 8-hour average value in the attainment year is 0.084 ppm or less, the area is eligible for a 1-year extension of the attainment date (40 CFR 51.907). The attainment year is the year in which the last full ozone season relied on for purposes of demonstrating attainment occurs. Because the attainment date for the Memphis Area was June 15, 2007, the last full ozone season preceding the Area's attainment date was the 2006 ozone season and 2006 is considered the attainment year. In 2006, the Area's fourth highest daily maximum 8-hour average was 0.089 ppm. Based on this information, the Area does not qualify for a 1-year extension of the attainment date. Under the applicable statutory and regulatory provisions, EPA is unable to consider 2007 as an extension year. First, as explained above, the Area did not qualify for an initial 1-year extension based on its 2006 attainment year. Second, even if the Area had qualified for a 1-year extension based on 2006 data (which it did not), it would not qualify for a second 1-year extension based on preliminary data for 2007. This is because the Area's 4th highest daily 8-hour value, averaged over both 2006 (the original attainment year) and 2007 (the hypothetical “first extension year”) is greater than 0.84 ppm. 40 CFR 51.907(b). Finally, preliminary data for 2005-2007 show that the Area is still not attaining the standard. *Comment:* Shelby County commented that air quality in the Memphis Area has in recent years demonstrated a trend of improvement; that pollution measures in place are making a positive impact and will lead to further improvement; and that modeling shows that the Area will soon attain the standard. Shelby County also commented that reclassification could “result in an absurd conclusion since the possibility exists that, by next year, the only controlling monitor in the area could be located in a county that is attainment.” ADEQ commented that for the 2007 ozone season to date, the fourth highest 8-hour ozone value for any monitor in the Area did not exceed 0.084 ppm; that they are hopeful ozone levels in 2008 and beyond will continue to show improvement; and that it is unfortunate that EPA considers it necessary to increase the severity of the ozone classification from marginal to moderate when it appears that the Area's air quality is improving. ADEQ also commented that “the redesignation [sic] to moderate that is proposed would, in this instance, result in an absurd conclusion.” *Response:* EPA recognizes the efforts taken by Shelby County, ADEQ, the Tennessee Department of Environment and Conservation, and the Memphis Area in general to improve air quality. However, while it is encouraging that the Area's air quality appears to be improving, unfortunately, it did not improve enough to meet the June 15, 2007, deadline for attainment. 1 The statute requires an assessment of air quality as of an area's attainment date, and that assessment is the subject of today's rulemaking. (See also, our responses to previous comments.) Reclassification of the Area, which occurs by operation of law, as required by the CAA will lead to additional planning and emission controls, which will help ensure that the Area attains and maintains the 8-hour ozone standard. 1 Moreover, as noted above, preliminary data for 2005-2007 shows that the Area remains in nonattainment. III. What Is the Effect of This Action? A. Determination of Nonattainment, Reclassification of Memphis TN-AR Nonattainment Area and New Attainment Date Pursuant to section 181(b)(2), EPA finds that the Memphis TN-AR Nonattainment Area failed to attain the 8-hour ozone NAAQS by the June 15, 2007, attainment deadline prescribed under the CAA and 69 FR 23858 (April 30, 2004) for marginal ozone nonattainment areas. When this finding is effective, the Memphis TN-AR Nonattainment Area will be reclassified by operation of law from marginal nonattainment to moderate nonattainment. The reclassification to the next higher classification is mandated by Section 181(b)(2)(A) of the CAA. Moderate areas are required to attain the standard “as expeditiously as practicable” but no later than 6 years after designation or June 15, 2010. The “as expeditiously as practicable” attainment date will be determined as part of the action on the required SIP submittal demonstrating attainment of the 8-hour ozone standard. Also in this action, EPA is establishing a schedule by which Tennessee and Arkansas will submit the SIP revisions necessary for the reclassification to moderate nonattainment of the 8-hour ozone standard. B. When Must Tennessee and Arkansas Submit SIP Revisions Fulfilling the Requirements for Moderate Ozone Nonattainment Areas EPA must address the schedule by which Tennessee and Arkansas are required to submit revised SIPs addressing the requirements for the Memphis TN-AR moderate Nonattainment Area. When an area is reclassified, EPA has the authority under section 182(i) of the CAA to adjust the CAA's submittal deadlines for any new SIP revisions that are required as a result of the reclassification. Pursuant to 40 CFR 51.908(d), for each nonattainment area, a state must provide for implementation of all control measures needed for attainment no later than the beginning of the attainment year ozone season. The attainment year ozone season is the ozone season immediately preceding a nonattainment area's attainment date, in this case 2009 (40 CFR 51.900(g)). The ozone season is the ozone monitoring season as defined in 40 CFR part 58, Appendix D, section 4.1, Table D-3 (October 17, 2006, 71 FR 61236). For the purposes of this reclassification of the Memphis TN-AR Nonattainment Area, March 1, 2009, is the beginning of the ozone monitoring season. As a result, EPA is requiring that the necessary SIP revisions be submitted by both Tennessee and Arkansas as expeditiously as practicable, but no later than March 1, 2009. A revised SIP must include all the moderate area requirements in section 182(b) of the CAA including:
(1)An attainment demonstration (40 CFR 51.908);
(2)provisions for reasonably available control technology and reasonably available control measures (40 CFR 51.912);
(3)reasonable further progress reductions in volatile organic compound
(VOC)emissions (40 CFR 51.910);
(4)contingency measures to be implemented in the event of failure to meet a milestone or attain the standard (CAA 172(c)(9));
(5)a vehicle inspection and maintenance program (40 CFR 51.350); and
(6)nitrogen oxide and VOC emission offsets of 1.15 to 1 for major source permits (40 CFR 51.165(a)). IV. Final Action Pursuant to CAA section 181(b)(2), EPA is making a final determination that the Memphis TN-AR marginal 8-hour Ozone Nonattainment Area failed to attain the 8-hour ozone NAAQS by June 15, 2007. Upon the effective date of this rule, the Memphis TN-AR marginal 8-hour Ozone Nonattainment Area will be reclassified by operation of law as a moderate 8-hour ozone nonattainment area. Pursuant to section 182(i) of the CAA, EPA is establishing the schedule for submittal of the SIP revisions required for moderate areas once the area is reclassified. The required SIP revisions for Tennessee and Arkansas shall be submitted as expeditiously as practicable, but no later than March 1, 2009. V. Statutory and Executive Order Reviews A. Executive Order 12866, Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order. The Agency has determined that the finding of nonattainment would result in none of the effects identified in the Executive Order. Under section 181(b)(2) of the CAA, determinations of nonattainment are based upon air quality considerations and the resulting reclassifications must occur by operation of law. B. Paperwork Reduction Act This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* This action to reclassify the Memphis TN-AR Nonattainment Area as a moderate ozone nonattainment area and to adjust applicable deadlines does not establish any new information collection burden. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget
(OMB)control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this action on small entities, small entity is defined as:
(1)A small business that is a small industrial entity as defined in the U.S. Small Business Administration
(SBA)size standards (see, 13 CFR part 121);
(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. Determinations of nonattainment and the resulting reclassification of nonattainment areas by operation of law under section 181(b)(2) of the CAA do not in and of themselves create any new requirements. Instead, this rulemaking only makes a factual determination, and does not directly regulate any entities. After considering the economic impacts of today's action on small entities, I certify that this rule will not have a significant economic impact on a substantial number of small entities. D. 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, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation to why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. This action does not include a Federal mandate within the meaning of UMRA that may result in expenditures of $100 million or more in any one year by either State, local, or Tribal governments in the aggregate or to the private sector, and therefore, is not subject to the requirements of sections 202 and 205 of the UMRA. Also, EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments and therefore, is not subject to the requirements of sections 203. EPA believes, as discussed previously in this document, that the finding of nonattainment is a factual determination based upon air quality considerations and that the resulting reclassification of the area must occur by operation of law. Thus, EPA believes that the finding does not constitute a Federal mandate, as defined in section 101 of the UMRA, because it does not impose an enforceable duty on any entity. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action merely determines that the Memphis TN-AR Nonattainment Area had not attained by its applicable attainment date, reclassifies the Memphis TN-AR Nonattainment Area as a moderate ozone nonattainment area and adjusts applicable deadlines. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This action does not have “Tribal implications” as specified in Executive Order 13175. This action merely determines that the Memphis TN-AR Nonattainment Area has not attained by its applicable attainment date, reclassifies the Memphis TN-AR Nonattainment Area as a moderate ozone nonattainment area and adjusts applicable deadlines. The CAA and the Tribal Authority Rule establish the relationship of the Federal government and Tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045, entitled “Protection of Children From Environmental Health and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that
(1)is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health risks or safety risks addressed by this rule present a disproportionate risk to children. This action merely determines that the Memphis TN-AR Nonattainment Area has not attained by its applicable attainment date, reclassifies the Memphis TN-AR Nonattainment Area as a moderate ozone nonattainment area and adjusts applicable deadlines. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This action is not subject to Executive Order 13211, entitled “Actions That Significantly Affect Energy Supply, Distribution, or Use,” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer Advancement Act As noted in the proposed rule, Section 12(d) of the National Technology Transfer Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards
(VCS)in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS. This action merely determines that the Memphis TN-AR Nonattainment Area has not attained by its applicable attainment date, reclassifies the Memphis TN-AR “marginal” Nonattainment Area as a “moderate” ozone nonattainment area and adjusts applicable deadlines. Therefore, EPA did not consider the use of any voluntary consensus standards. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action merely determines that the Memphis TN-AR Nonattainment Area has not attained by its applicable attainment date, and reclassifies the Memphis TN-AR Nonattainment Area as a moderate ozone nonattainment area and adjusts applicable deadlines. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). L. Petitions for Judicial Review Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 27, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action to reclassify the Memphis TN-AR area as a moderate ozone nonattainment area and to adjust applicable deadlines may not be challenged later in proceedings to enforce its requirements. (See, section 307(b)(2).) List of Subjects in 40 CFR Part 81 Environmental protection, Air pollution control, National parks, Wilderness areas. Dated: March 14, 2008. J.I. Palmer, Jr., Regional Administrator, Region 4. Dated: March 19, 2008. Richard E. Greene, Regional Administrator, Region 6. 40 CFR part 81 is amended as follows: PART 81—[AMENDED] 1. The authority citation for part 81 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart C—Section 107 Attainment Status Designations 2. In § 81.304 the table for Arkansas—Ozone (8-hour Standard) is amended by revising the entry for Memphis, TN-AR and footnote 2 to read as follows: § 81.304 Arkansas. Arkansas—Ozone (8-Hour Standard) Designated area Designation a Date 1 Type Category/classification Date 1 Type Memphis, TN-AR: (AQCR 018 Metropolitan Memphis Interstate) Crittenden County Nonattainment ( 2 ) Subpart 2/Moderate. * * * * * * * a Includes Indian Country located in each county or area, except as otherwise specified. 1 This date is June 15, 2004, unless otherwise noted. 2 April 28, 2008. 3. In § 81.343 the table for Tennessee—Ozone (8-hour Standard) is amended by removing footnote 3 and revising the entry for “Memphis, TN-AR” to read as follows: § 81.343 Tennessee. Tennessee—Ozone (8-Hour Standard) Designated area Designation a Date 1 Type Category/classification Date 1 Type * * * * * * * Memphis, TN-AR: Shelby County Nonattainment March 28, 2008 Subpart 2/Moderate. * * * * * * * a Includes Indian Country located in each county or area, except as otherwise specified. 1 This date is June 15, 2004, unless otherwise noted. [FR Doc. E8-6287 Filed 3-27-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2005-0145; FRL-8354-4] Boscalid; Pesticide Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes tolerances for residues of boscalid in or on caneberry subgroup 13A at 6.0 parts per million (ppm); bushberry subgroup 13B at 13 ppm; cotton, undelinted seed at 1.0 ppm; cotton, gin by-products at 55 ppm; avocado at 1.5 ppm; sapote, black at 1.5 ppm; canistel at 1.5 ppm; sapote, mamey at 1.5 ppm; mango at 1.5 ppm; papaya at 1.5 ppm; sapodilla at 1.5 ppm; and star apple at 1.5 ppm. It revokes the existing berries, group 13 tolerance at 3.5 ppm because the two new caneberry and bushberry tolerances cover all commodities in the berries, group 13. Tolerances are being increased for cucumber from 0.20 ppm to 0.5 ppm, and vegetable, root, subgroup 1A, except sugarbeet, garden beet, radish, and turnip from 0.7 ppm to 1.0 ppm. BASF, Inc requested these tolerance actions under the Federal Food, Drug, and Cosmetic Act (FFDCA). In addition, this action establishes a time-limited tolerance for residues of boscalid in or on Endive, Belgian, in response to the approval of a crisis exemption under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizing the post harvest use of the fungicide on Endive, Belgian to control the fungal pathogen, scelerotinia sclerotiorum. This regulation establishes a maximum permissible level of residues of boscalid in this food commodity. The time-limited tolerance expires and is revoked on December 31, 2009. DATES: This regulation is effective March 28, 2008. Objections and requests for hearings must be received on or before May 27, 2008, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION) . ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2005-0145. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S- 4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Bryant Crowe, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)305-0025; e-mail address: *crowe.bryant@epa.gov.* SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities: • Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of FFDCA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2005-0145 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before May 27, 2008. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit this copy, identified by docket ID number EPA-HQ-OPP-2005-0145, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is
(703)305-5805. II. Petition for Tolerance In the **Federal Register** of February 15, 2006 (71 FR 7951) (FRL-7759-3), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5F6986) by BASF, 26 Davis Drive, P.O. Box 13528, Research Triangle Park, NC 27709. The petition requested that 40 CFR 180.589 be amended by increasing the tolerance for residues of the fungicide boscalid in or on berries, crop group 13 from 3.5 to 8.0 ppm; and increasing the tolerance for strawberries from 1.2 ppm to 4.0 ppm. That notice referenced a summary of the petition prepared by BASF, the registrant, which is available to the public in the docket, *http://www.regulations.gov.* On April 4, 2007, in the **Federal Register** (72 FR 16352) (FRL-8119-2), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 6E7164) by Interregional Research Project Number 4 (IR-4), 500 College Road East, Suite 201 W, Princeton, NJ 08540, proposes to establish a tolerance for residues of the fungicide boscalid in or on food commodities avocado at 1.5 ppm; sapote, black at 1.5 ppm; canistel at 1.5 ppm; sapote, mamey at 1.5 ppm; mango at 1.5 ppm; papaya at 1.5 ppm; sapodilla at 1.5 ppm; star apple at 1.5 ppm; and herbs, fresh, subgroup 19A at 60.0 ppm. Fresh herbs, subgroup 19A, tolerances were subsequently withdrawn from this petition, on February 6, 2008, by IR-4, in accordance with 40 CFR 180.8. The docket ID number EPA-HQ-OPP-2007-0115, identifies this petition. On June 27, 2007, EPA issued a notice pertaining to boscalid announcing the filing of a pesticide petition (PP 7F7169), (72 FR) (FRL-8133-4), by BASF, 26 Davis Drive, P.O. Box 13528, Research Triangle Park, NC 27709. The petition, identified by the docket ID number EPA-HQ-OPP-2007-0377, requested that 40 CFR 180.589 amended by increasing the tolerance for residues of the fungicide boscalid in or on cotton, undelinted seed at 1.0 ppm and cotton, gin byproducts at 55.0 ppm. In the **Federal Register** of February 13, 2008 (73 FR 7951) (FRL-7759-3), EPA issued a notice pertaining to boscalid announcing the filing of a pesticide petition (PP 5F6986) by BASF. The petition requested that 40 CFR 180.589 be amended by increasing the tolerance for residues of the fungicide boscalid in or on caneberry, crop group 13A at 6.0 ppm; bushberry, crop group 13B at 10.0 ppm; cucumber at 0.5 ppm; and vegetable, root, subgroup 1A, except sugar beet, garden beet, radish and turnip at 1.0 ppm. Each petition's notice referenced a summary of the petition prepared by the registrant BASF, which is available to the public in the docket, *http://www.regulations.gov.* For the foregoing petitions, there were no comments in response to their notice of filing Based upon review of the data supporting the petition, an increased strawberry tolerance to 4.5 ppm is not needed because EPA previously increased the strawberry tolerance to 4.5 ppm via the rule published May 3, 2006 (71 FR 25956) (FRL-8064-4). Furthermore, whereas the registrant requested the tolerance for the entire berry group 13 be increased from 3.5 ppm to 8.0 ppm, the Agency has established a separate tolerance for each of the two berry group 13 sub groups. Thus, where there was one tolerance for the entire group, there are now two separate tolerances covering all crops in the entire berry crop group 13. Thus, the existing berries, group 13 tolerance is being revoked because it is not needed. BASF submitted field trial data on cucumbers, mustard greens, and sunflower. These field trials were required as a condition for the registration of boscalid on these crops. BASF has also submitted supplemental field trials on fruiting vegetables, spearmint and peppermint, radishes, stone fruits, and grapes, which were conducted to support the use of boscalid on these crops in Canada. Review of these new data is the basis for the need to increase the existing tolerances in or on cucumber from 0.2 to 0.5 ppm, and vegetable, root, subgroup 1A, except sugarbeet, garden beet, radish, and turnip from 0.7 to 1.0 ppm. EPA is also establishing a time-limited tolerance for residues of the fungicide boscalid in or on Endive, Belgian at 16 ppm. This tolerance expires and is revoked on December 31, 2009. The Agency is establishing this time-limited tolerance in response to a crisis exemption request under FIFRA section 18 on behalf of the California Environmental Protection Agency, Department of Pesticide Regulation for emergency use of boscalid as a post harvest treatment on chicory roots to control fungal growth of scelerotinia sclerotiorum. According to the applicant, the dormant chicory roots are taken out of cold storage and propagated in sheds within a controlled environment to stimulate bud development. These edible buds are known as belgian endive, and are marketed in grocery stores throughout the year. Based on information provided in the submission, an emergency situation exists because the pathogen, scelerotinia sclerotiorum, resides in field soils and can grow on the chicory root during cold storage, which makes the produce unmarketable. Vinclozolin had been registered for control of this pest until it was cancelled in 2001. Existing stocks of vinclozolin were used until 2003, and there are currently no other fungicides registered for the post harvest treatment of chicory root to control fungal growth. Further, the State claims that good agricultural practices are not sufficient to control this fungal pathogen. As part of its assessment of the emergency exemption request, EPA assessed the potential risks presented by the residues of boscalid in or on endive, belgian, as discussed below. In doing so, EPA considered the safety standard in section 408
(2)of the FFDCA, and EPA decided that the necessary time-limited tolerance under section 408
(6)of the FFDCA would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address the urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing this time-limited tolerance without notice and opportunity for public comment as provided in section 408
(6)of the FFDCA. Although, this time-limited tolerance expires and is revoked on December 31, 2009, under section 408
(5)of the FFDCA, residues of the pesticide not in excess of the amount specified in the tolerance remaining in or on endive, belgian after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by this time-limited tolerance at the time of application. EPA will take action to revoke this time-limited tolerance earlier if any experience with, scientific data, or other relevant information on this pesticide indicates that the residues are not safe. Because this time-limited tolerance is being approved under emergency conditions, EPA has not made any decisions about whether boscalid meets EPA's registration requirements for use on endive, belgian or whether a permanent tolerance for this use would be appropriate. Under this circumstance, EPA does not believe that the time-limited tolerance serves as a basis for registration of boscalid by a State for special local needs under FIFRA section 24(c). Nor does the time-limited tolerance serve as the basis for any State other than California to use this pesticide on this crop under section 18 of FIFRA without following all provisions of EPA's regulations implementing FIFRA section 18 as identified in 40 CFR part 166. III. Aggregate Risk Assessment and Determination of Safety Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. * * * ” These provisions were added to FFDCA by the Food Quality Protection Act
(FQPA)of 1996. Consistent with FFDCA section 408(b)
(D)and the factors specified in FFDCA section 408(b)
(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the petitioned-for tolerances for residues of boscalid on caneberry subgroup 13A, and bushberry subgroup 13B, respectively at 6.0 and 13 ppm; cotton, undelinted seed at 1.0 ppm; cotton, gin byproducts at 55 ppm; avocado at 1.5 ppm; sapote, black at 1.5 ppm; canistel at 1.5 ppm; sapote, mamey at 1.5 ppm; mango at 1.5 ppm; papaya at 1.5 ppm; sapodilla at 1.5 ppm; star apple at 1.5 ppm; cucumber at 0.5 ppm; and vegetable, root, subgroup 1A, except sugar beet, garden beet, radish and turnip at 1.0 ppm, as well as the time-limited tolerance for residues of boscalid in or on endive, belgian at 16 ppm. EPA's assessment of exposures and risks associated with establishing these tolerances follows. A. Toxicological Profile EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Animal studies indicate that repeat dosing with boscalid results in effects in the liver and/or thyroid in various species. Mechanistic studies indicated that the thyroid effects were derivative of enzymatic effects on the liver. The boscalid database shows no effects that were attributable to a single dose, and thus boscalid is deemed not to pose an acute risk. Testing involving *in utero* and/or post-natal exposure of animals shows no developmental or reproductive effects; however, this testing resulted in some findings of qualitative or quantitative sensitivity with regard to body weight effects in the young. The Agency determined that boscalid shows suggestive evidence of carcinogenicity. This finding is based on the following weight of evidence considerations. First, in male wistar rats, there was a significant trend (but not pairwise comparison) for the combined thyroid adenomas and carcinomas. This trend is driven by the increase in adenomas. Second, in the female rats, there was only a borderline significant trend for thyroid adenomas (there were no carcinomas). Third, the mouse study was negative as were all of the mutagenic tests. Consistent with this weak evidence of carcinogenic effects, the Agency concluded that a quantitative risk and exposure assessment for cancer (either linear low-dose extrapolation or margin of exposure calculation) was not appropriate. Specific information on the studies received and the nature of the adverse effects caused by boscalid as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at *http://www.regulations.gov.* The referenced documents are available in the docket established by this action, which are described under ADDRESSES , and are identified as follows: • *Boscalid:* Human Health Risk Assessment for Section 3 Tolerance on Endive, an Amendment to the Tolerances for Strawberries and Berries, Crop Group 13, and an Increase in Tolerances in/on Cucumber and Vegetable, Root, Subgroup 1A, except Sugar Beet, Garden Beet, Radish, and Turnip, dated 7-10-07. • *Boscalid:* Addendum to the July 10, 2007 Human Risk Assessment to Support a Section 3 Use on Endive, an Amendment to the Tolerances for Strawberries and Berries, Crop Group 13, and an Increase in Tolerances in/on Cucumber and Vegetable, Root, Subgroup 1A, except Sugar Beet, Garden Beet, Radish, and Turnip.PC Code: 128008, Petition Nos: 5E7013, 5F6986, DP Barcode: 34857, dated 2-13-08. • *Boscalid:* Human Health Risk Assessment to Support Proposed New Uses on Fresh Herbs (Herbs Subgroup 19A), Avocado, Black Sapote, Canistel, Mamey Sapote, Mango, Papaya, Sapodilla, Star Apple and Cotton. PC Code: 128008; Petition Nos: 6E7164, 7F7169; DP Barcodes: 336182, 337369, dated 2-13-08. B. Toxicological Endpoints For hazards that have a threshold below which there is no appreciable risk, the toxicological level of concern
(LOC)is derived from the highest dose at which no adverse effects are observed (the NOAEL) in the toxicology study identified as appropriate for use in risk assessment. However, if a NOAEL cannot be determined, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment. Uncertainty/safety factors
(UFs)are used in conjunction with the LOC to take into account uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the acute population adjusted dose
(aPAD)and chronic population adjusted dose (cPAD). The aPAD and cPAD are calculated by dividing the LOC by all applicable UFs. Short-term, intermediate-term, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure
(MOE)called for by the product of all applicable UFs is not exceeded. For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk and estimates risk in terms of the probability of occurrence of additional adverse cases. Generally, cancer risks are considered non-threshold. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see: *http://www.epa.gov/oppfead1/trac/science* *http://www.epa.gov/pesticides/factsheets/riskassess.htm* *http://www.epa.gov/pesticides/trac/science/ aggregate.pdf* A summary of the toxicological endpoints for boscalid used for human risk assessment is discussed in Unit III.B of the final boscalid rule published in the **Federal Register** of July 30, 2003 (68 FR 44640) (FRL-7319-6). C. Exposure Assessment 1. *Dietary exposure from food and feed uses.* In evaluating dietary exposure to boscalid tolerances in (40 CFR 180.589), EPA assessed dietary exposures from boscalid in food as follows: i. *Acute exposure.* There are no toxic effects attributable to a single (acute) exposure to boscalid; therefore an acute reference dose was not established for boscalid and an acute dietary exposure assessment is not needed. ii. *Chronic exposure.* In conducting the chronic dietary exposure assessment EPA used the food consumption data from the United States Department of Agriculture
(USDA)Continuing Survey of Food Intake by Individuals (CSFII) 1994-1996 and 1998. As to residue levels in food, EPA assumed all foods for which there are tolerances were treated and contain tolerance-level residues. The Agency did not use anticipated residue estimates or percent crop treated
(PCT)information. iii. *Cancer.* For the reasons described in Unit III.A, the Agency concluded that a quantitative risk and exposure assessment for cancer (either linear low-dose extrapolation or margin of exposure calculation) was not appropriate. 2. *Dietary exposure from drinking water* . The Agency lacks sufficient monitoring data to complete a comprehensive dietary exposure analysis and risk assessment for boscalid in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the environmental fate characteristics of boscalid. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at *http://www.epa.gov/oppefed1/models/water/index.htm.* Based on the FQPA Index Reservoir Screening Tool (FIRST) and Screening Concentration in Ground Water (SCI-GROW) models, the maximum estimated surface and ground drinking water concentrations (EDWCs) of boscalid for chronic exposures are 29.6 parts per billion
(PPB)for surface water and 0.63 ppb for ground water. Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. The chronic dietary risk assessment used the surface water concentration value of 29.6 ppb to assess the contribution to drinking water. 3. *From non-dietary exposure.* The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Boscalid is registered for use on sites that would result in residential exposure. From boscalid, residential exposure is only possible on golf courses and at “U-Pick” farms and orchards. A non-occupational dermal post-application exposure/risk assessment for these exposures was conducted in the previous occupational and residential exposure assessment and is described in the final rule in the **Federal Register** of July 30, 2003 (68 FR 44640) (FRL-7319-6). 4. *Cumulative effects from substances with a common mechanism of toxicity.* Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to boscalid and any other substances and boscalid does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that boscalid has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at *http://www.epa.gov/pesticides/cumulative.* D. Safety Factor for Infants and Children 1. *In general.* Section 408 of FFDCA provides that EPA shall apply an additional (“10X”) tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA safety factor. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional FQPA safety factor value based on the use of traditional UFs and/or special FQPA safety factors, as appropriate. 2. *Prenatal and postnatal sensitivity.* In the 2-generation reproduction study in rats, body weight effects were seen in the mid and high doses in the second generation male pups. However, the degree of concern is low for the quantitative evidence of susceptibility seen in this study, since the body weight effects were seen in only one sex and only after dosing for two generations. There is a clear NOAEL for the body weight effects seen in the rat 2-generation reproduction study and EPA is regulating based on a point of departure below where these effects are seen. In the developmental neurotoxicity study, transient body weight effects were seen in one sex at post-natal days 1-4 with the animals recovering by post-natal day 11. Body weight effects were also seen in the high dose, which was the limit dose. The degree of concern for these effects are low since the effects are either transient in nature or occurred at the limit dose and EPA is regulating based on a point of departure below where these effects are seen. While qualitative sensitivity was seen in the rabbit developmental study, the fetal effects were seen only at the limit dose in the presence of maternal toxicity. Further, since EPA is regulating based on a point of departure which is an order of magnitude below where these effects are seen in the rabbit developmental study, EPA concludes that the qualitative sensitivity evidenced in the fetuses in the rabbit developmental study does not require retention of the 10X children's safety factor. 3. *Conclusion.* The FQPA safety factor has been reduced to 1X for boscalid for the following reasons. First, EPA has a complete toxicity database for boscalid. The toxicity studies for boscalid show it generally to have low mammalian toxicity. Further, while data involving the testing of young animals did show increased quantitative sensitivity in the young with regard to body weight effects and qualitative sensitivity in one developmental study, clear NOAELs were identified for all of these effects. Moreover, the body weight effects at the LOAELs in these studies were either transient or inconsistent and qualitative sensitivity occurred at the limit dose in the presence of maternal toxicity. EPA concludes that there are no residual uncertainties for pre-natal and/or post-natal toxicity. The NOAEL used for various risk assessments would address the body weight effects seen at higher doses in the developmental and reproductive studies. Finally, EPA has conservatively estimated human exposure to boscalid, relying on worst case exposures in food (assuming all registered crops contain residues at the tolerance level), and conservative models as well as pesticide-specific data in estimating exposure from residues in drinking water and from residential uses. E. Aggregate Risks and Determination of Safety Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the aPAD and cPAD. The aPAD and cPAD are calculated by dividing the LOC by all applicable UFs. For linear cancer risks, EPA calculates the probability of additional cancer cases given aggregate exposure. Short-term, intermediate-term, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the MOE called for by the product of all applicable UFs is not exceeded. 1. *Acute risk.* There were no toxic effects attributable to a single exposure to boscalid, therefore, neither an acute reference dose
(aRfD)nor aPAD were established and acute dietary risk assessment and acute aggregate risk assessment are not required for boscalid. 2. *Chronic risk.* The unrefined chronic dietary risk assessment for boscalid was made using tolerance level residues, default and empirical processing factors and 100% CT assumptions. Results of this analysis indicate that chronic risk from the dietary (food + drinking water) exposure from boscalid will not exceed EPA's level of concern for the general U.S. population, and all population subgroups. The chronic dietary risk estimate for the highest reported exposed population subgroup, children 1-2 years old, is 33% of the cPAD. Chronic residential exposure from residues of boscalid is not expected; therefore the aggregate chronic risk is equivalent to the chronic dietary risk described above. 3. *Short-term risk.* Short-term aggregate exposure takes into account residential exposure plus average exposure to food and water (considered to be a background exposure level). Boscalid is currently registered for uses that could result in short-term residential exposure and the Agency has determined that it is appropriate to aggregate average food and water exposures with short-term non-occupational exposures for boscalid. Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded that food, water, and residential exposures aggregated result in aggregate MOEs, which are below the Agency's level of concern. MOEs for the U.S. population, and all subpopulations of concern exceed 1,000. The level of concern for this assessment is for MOEs below 100. 4. *Intermediate-term risk.* Intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Because no intermediate term, non-occupational exposures are anticipated from the use of boscalid, an intermediate-term aggregate risk assessment is not required for boscalid. 5. *Aggregate cancer risk for U.S. population.* Given the data showing no more than weak evidence of carcinogenic effects for boscalid, EPA concludes that boscalid poses no greater than a negligible risk of cancer. 6. *Determination of safety.* Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to boscalid residues. IV. Other Considerations A. Analytical Enforcement Methodology Adequate enforcement methodology (gas chromatographic with mass spectrometric detection) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number:
(410)305-2905; e-mail address: *residuemethods@epa.gov* . B. International Residue Limits There are currently no Codex Maximum Residue Limits
(MRLs)for boscalid. Canada has established MRLs for boscalid, but not for the crops that are in this rule. V. Conclusion Therefore, this regulation establishes tolerances for residues of boscalid,3-pyridinecarboxamide, 2-chloro- *N* -(4'-chloro[1,1'-biphenyl]-2-yl), in or on caneberry subgroup 13A, and bushberry subgroup 13B, respectively at 6.0 and 13 ppm; cotton, undelinted seed at 1.0 ppm; cotton, gin byproducts at 55 ppm; avocado at 1.5 ppm; sapote, black at 1.5 ppm; canistel at 1.5 ppm; sapote, mamey at 1.5 ppm; mango at 1.5 ppm; papaya at 1.5 ppm; sapodilla at 1.5 ppm; star apple at 1.5 ppm; cucumber at 0.5 ppm; and vegetable, root, subgroup 1A, except sugar beet, garden beet, radish and turnip at 1.0 ppm. In addition, this regulation establishes a time-limited tolerance for residues of boscalid in or on endive, belgian at 16 ppm. VI. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq.* , nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq.* ) do not apply. This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000) do not apply to this rule. In addition, This rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). VII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register.** This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: March 18, 2008. Lois Rossi, Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.589 is amended by removing the entry for berry group 13, and alphabetically adding the following commodities to the table in paragraph (a)(1), and by revising paragraph
(b)to read as follows: § 180.589 Boscalid; tolerance for residues.
(a)* * *
(1)* * * Commodity Parts per million * * * * * Avocado 1.5 Bushberry, subgroup 13B 13.0 Caneberry, subgroup13A 6.0 Canistel 1.5 * * * * * Cotton, gin byproducts 55.0 Cotton, undelinted seed 1.0 Cucumber 0.5 * * * * * Mango 1.5 * * * * * Papya 1.5 Sapodilla 1.5 Sapote, black 1.5 Sapote, mamey 1.5 Star Apple 1.5 * * * * * Vegetable, root, subgroup 1A, except sugarbeet, garden beet, radish, and turnip 1.0 * * * * *
(b)*Section 18 emergency exemptions.* A time-limited tolerance is established for the residues of the fungicide boscalid, 2-chloro-N-(4'-chloro [1, 1'-biphenyl]-2-yl)-3-pyridinecarboxamide in connection with use of the pesticide under a section 18 emergency exemption granted by EPA. This tolerance will expire and is revoked on the date specified in the following table. Commodity Parts per million Expiration/Revocation Date Endive, Belgian 16 12/31/09 Tangerine 2.0 12/31/08 [FR Doc. E8-6264 Filed 3-27-08; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2008-0092; FRL-8357-4] S-Abscisic Acid, Temporary Exemption From the Requirement of a Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes a temporary exemption from the requirement of a tolerance for residues of the biochemical pesticide *S* -Abscisic Acid, ( *S* )-5-(1-hydroxy-2,6,6-trimethyl-4-oxo-1-cyclohex-2-enyl)-3-methyl-penta-(2Z,4E)-dienoic Acid in or on grapes when applied or used as a plant regulator in accordance with the terms of Experimental Use Permit 73049-EUP-4. Valent Biosciences Corporation submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996 (FQPA), requesting the temporary tolerance exemption. This regulation eliminates the need to establish a maximum permissible level for residues of *S* -Abscisic Acid, ( *S* )-5-(1-hydroxy-2,6,6-trimethyl-4-oxo-1-cyclohex-2-enyl)-3-methyl-penta-(2Z,4E)-dienoic Acid. The temporary tolerance exemption expires on October 1, 2010. DATES: This regulation is effective March 28, 2008. Objections and requests for hearings must be received on or before May 27, 2008, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION ). ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2008-0092. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Chris Pfeifer, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: 703-308-0031; e-mail address: *pfeifer.chris@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in section 5 of Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the regulations promulgated to carry out that provision of FIFRA (40 CFR part 172). If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this “ **Federal Register** ” document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of FFDCA, as amended by FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2008-0092 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before May 27, 2008. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2008-0092, by one of the following methods. • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is
(703)305-5805. II. Background and Statutory Findings In the **Federal Register** of April 30, 2007 (72 FR 21263) (FRL-8124-7), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 7G7202) by Valent Biosciences Corporation, 870 Technology Way, Libertyville, IL 60048. The petition requested that 40 CFR part 180 be amended by establishing a temporary exemption from the requirement of a tolerance for residues of *S* -Abscisic Acid, ( *S* )-5-(1-hydroxy-2,6,6-trimethyl-4-oxo-1-cyclohex-2-enyl)-3-methyl-penta-(2Z,4E)-dienoic Acid in or on grapes when used in accordance with the terms set forth in Experimental Use Permit 73049-EUP-4. Valent has requested an Experimental Use Permit (EUP)--EPA Experimental Use Permit Number 73049-EUP-4, under which it seeks to apply ABA to grapes in the vineyard to enhance color production of the grape berries. The terms of 73049-EUP-4 provide for a maximum rate of 8.8185 oz. per acre for a maximum annual application of 10.681 oz. per acre. This notice included a summary of the petition prepared by the petitioner, Valent BioSciences Corporation. There were no comments received in response to the notice of filing. Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe ” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to section 408(c)(2)(B) of FFDCA, in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in section 408(b)(2)(C) of FFDCA, which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” Additionally, section 408(b)(2)(D) of FFDCA requires that the Agency consider “available information concerning the cumulative effects of a particular pesticide's residues” and “other substances that have a common mechanism of toxicity.” EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. III. Toxicological Profile Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Acute toxicity for *S* -Abscisic Acid, ( *S* )-5-(1-hydroxy-2,6,6-trimethyl-4-oxo-1-cyclohex-2-enyl)-3-methyl-penta-(2Z,4E)-dienoic Acid (commonly abbreviated as ABA): Acute oral toxicity, acute dermal toxicity, acute inhalation toxicity, and acute dermal irritation are all Toxicity Category IV; acute eye irritation is Toxicity Category III; ABA is not a dermal sensitizer. The LD <sup>50</sup> for acute oral toxicity using the rat was greater than 5,000 milligrams/kilogram (mg/kg) of body weight in female rats. The LD <sup>50</sup> for acute dermal toxicity using the rat was greater than 5,000 mg/kg body weight in male and female rats. The LC <sup>50</sup> for acute inhalation toxicity was greater than 2.06 milligram/liter (mg/L) in male and female rats. Primary eye irritation, tested in rabbits, showed mild irritation to the eye. Iritis and conjunctivitis cleared after 24 hours. Primary skin irritation, tested in the rabbit, showed this material to be slightly irritating. This irritation cleared within 24 hours after treatment. ABA was tested for Sensitization in the Guinea Pig and found not to be a skin sensitizer. 1. *Genotoxicity* . Three mutagenicity studies determined that ABA was not mutagenic. (The three studies: an Ames test, a mouse micronucleus assay, and an unscheduled DNA synthesis assay in the rat.) 2. *Developmental toxicity and subchronic toxicity* . The Agency accepted the applicant's request to waive the data requirements for teratogenicity and 90-day feeding for the active ingredient based on the rationales, data and public information submitted. The Agency granted a waiver for teratogenicity on the basis of limited exposure for females because of directed applications, a lack of residues, and the pre-existing ubiquity of ABA in our diet without issue. Ninety day feeding was waived based on the limited application, virtual non-toxicity of oral exposure to ABA, and the commonality of ABA in our diets in excess of what would be present on treated grapes. Waiver requests for 90-day feeding emphasized the lack of potential oral exposure, and the relative non-toxicity of ABA through this route of exposure. In short, developmental toxicity and subchronic toxicity are not considered to be of concern. IV. Aggregate Exposures In examining aggregate exposure, section 408 of FFDCA directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses). A. Dietary Exposure ABA is a plant regulator present in all vascular plants, algae and some fungi. It is naturally present in fruits and vegetables at various levels, generally not in excess of 10 ppm, and has always been a component of any diet containing plant materials. The proposed uses of this product are not expected to result in residues in or on grapes, above the natural background levels typically found in other commonly consumed fruits or vegetables. 1. *Food* . Residues of ABA applied to grapes can be expected to rapidly dissipate to levels consistent with those observed naturally. Data submitted by the registrant confirm ABA's dissipation through rapid metabolism, photo-isomerization, and rapid degradation. Because of its ability to dissipate rapidly, ABA, when used in accordance with the terms of the EUP 73049-EUP-4, is not expected to result in residues in or on grapes, above the natural background levels typically found in other commonly consumed fruits or vegetables. As mentioned above, it is noted that ABA is already commonly consumed. It is naturally present in fruits and vegetables at various levels (up to 10 ppm) and has always been a component of any diet containing plant materials. 2. *Drinking water exposure* . Pursuant to the terms of the EUP 73049-EUP-4, applications are expected to be made to grape vineyards using a maximum application rate of 200 ppm per acre (using a maximum of 200 gallons). Due to the low concentration and volume of application solution, leaching into groundwater is unlikely. Applications are directed to the grape fruit clusters; therefore, accidental application to lakes or steams is unlikely. However, even if ABA leached into groundwater, data show that ABA is rapidly metabolized and photo-isomerized, further diminishing the likelihood of any extra-normal ABA residues being transferred to water. Data submitted to the Agency show ABA is also naturally present in water. The Agency therefore concludes that any residues resulting from the application of ABA to grapes are not expected to result in any significant drinking water exposure beyond natural background levels of ABA already present in water. B. Other Non-Occupational Exposure Potential non-occupational exposure is considered unlikely for this distinctly agricultural use. 1. *Dermal exposure* . Non-occupational dermal exposures to ABA when used as a pesticide are expected to be negligible because it is limited to an agricultural use. 2. *Inhalation exposure* . Non-occupational inhalation exposures to ABA when used as a pesticide are expected to be negligible because it is limited to an agricultural use. V. Cumulative Effects Section 408(b)(2)(D)(v) of FFDCA requires the Agency, when considering whether to establish, modify, or revoke a tolerance, to consider “available information” concerning the cumulative effects of pesticide residues and “other substances that have a common mechanism of toxicity.” These considerations include the cumulative effects of such residues on infants and children. Because there is no indication of mammalian toxicity from ABA, the Agency concludes that ABA cannot share a common mechanism of toxicity with other substances. Therefore, section 408(b)(2)(D)(v) does not apply. VI. Determination of Safety for U.S. Population, Infants and Children 1. *U.S. population* . The Agency has determined that there is a reasonable certainty that no harm will result from aggregate exposure to residues of ABA to the U.S. population. This includes all anticipated dietary exposures and other non- occupational exposures for which there is reliable information. The Agency arrived at this conclusion based on the relatively low levels of mammalian dietary toxicity associated with ABA, the natural ubiquity of ABA in our food stuffs, and data indicating that the pesticidal use of ABA on grapes results in residues that approximate natural background levels. For these reasons, the Agency has determined that ABA residues on grapes will be safe, i.e., there is a reasonable certainty that no harm will result from aggregate exposure to residues of ABA when used in accordance with the terms of EUP 73049-EUP-4. 2. *Infants and children* . FFDCA section 408 provides that EPA shall apply an additional tenfold margin of exposure (safety) for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database unless the EPA determines that a different margin of exposure (safety) will be safe for infants and children. Based on all the reliable available information the Agency reviewed on ABA, the Agency concludes that there are no residual uncertainties for prenatal/postnatal toxicity resulting from ABA and that ABA has relatively low toxicity to mammals from a dietary standpoint, including infants and children. Accordingly, there are no threshold effects of concern and an additional margin of safety is not necessary to protect infants and children. VII. Other Considerations A. Endocrine Disruptors Based on available data, no endocrine system-related effects have been identified with the consumption of *S* -Abscisic Acid, ( *S* )-5-(1-hydroxy-2,6,6-trimethyl-4-oxo-1-cyclohex-2-enyl)-3-methyl-penta-(2Z,4E)-dienoic Acid. B. Analytical Method(s) Through this action, the Agency proposes a temporary exemption from the requirement of a tolerance of ABA when used on grapes without any numerical limitations for residues. It has determined that residues resulting from the pesticidal uses of *S* -Abscisic Acid, ( *S* )-5-(1-hydroxy-2,6,6-trimethyl-4-oxo-1-cyclohex-2-enyl)-3-methyl-penta-(2Z,4E)-dienoic Acid, would be so low as to be indistinguishable from natural background levels. As a result, the Agency has concluded that an analytical method is not required for enforcement purposes for this proposed use of ABA. C. Codex Maximum Residue Level There are no codex maximum residue levels established for residues of *S* -Abscisic Acid, ( *S* )-5-(1-hydroxy-2,6,6-trimethyl-4-oxo-1-cyclohex-2-enyl)-3-methyl-penta-(2Z,4E)-dienoic Acid. VIII. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866, this rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq* .) do not apply. This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 9, 2000) do not apply to this rule. In addition, This rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). IX. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq* ., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: March 20, 2008. Debra Edwards, Director, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.1281 is added to subpart D to read as follows: § 180.1281 S-Abscisic Acid; exemption from the requirement of a tolerance. *S* -Abscisic Acid, ( *S* )-5-(1-hydroxy-2,6,6-trimethyl-4-oxo-1-cyclohex-2-enyl)-3-methyl-penta-(2Z,4E)-dienoic Acid, is temporarily exempt from the requirement of a tolerance when used as a plant regulator in or on grape in accordance with the Experimental Use Permit 73049-EUP-4. This temporary exemption from tolerance will expire October 1, 2010. [FR Doc. E8-6404 Filed 3-27-08; 8:45 am] BILLING CODE 6560-50-S DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 190, 191, 192, 193, 194, 195, and 199 RIN 2137-AE29 [Docket No. PHMSA-2007-0033] Pipeline Safety: Administrative Procedures, Address Updates, and Technical Amendments AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), U.S. Department of Transportation (DOT). ACTION: Interim final rule and request for comments. SUMMARY: This interim final rule conforms PHMSA's administrative procedures with the Pipeline Inspection, Protection, Enforcement, and Safety Act of 2006 (PIPES Act) by establishing the procedures PHMSA will follow in issuing safety orders and handling requests for special permits, including emergency special permits. This interim final rule also notifies operators about electronic docket information availability; updates addresses, telephone numbers, and routing symbols; and clarifies the time period for processing requests for written interpretations of the regulations. This interim final rule does not impose any new operating, maintenance, or other substantive requirements on pipeline owners or operators. DATES: *Effective Date:* This interim final rule is effective April 28, 2008. *Comment date:* Persons interested in submitting written comments on this interim final rule must do so by April 28, 2008. PHMSA will consider late filed comments so far as practicable. ADDRESSES: Comments should reference Docket No. PHMSA-2007-0033 and may be submitted in the following ways: • *E-Gov Web Site: http://www.regulations.gov.* This site allows the public to enter comments on any **Federal Register** notice issued by any agency. • *Fax:* 1-202-493-2251. • *Mail:* DOT Docket Operations Facility (M-30), U.S. Department of Transportation, West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* DOT Docket Operations Facility, U.S. Department of Transportation, West Building, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590 between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. *Instructions:* Identify the docket number, PHMSA-2007-0033, at the beginning of your comments. If you mail your comments, we request that you send two copies. To receive confirmation that PHMSA received your comments, include a self-addressed stamped postcard. **Note:** All comments are electronically posted without changes or edits, including any personal information provided. Privacy Act Statement Anyone can search the electronic form of comments received in response to any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). DOT's complete Privacy Act Statement was published in the **Federal Register** on April 11, 2000 (65 FR 19477). FOR FURTHER INFORMATION CONTACT: Larry White, PHMSA, Office of Chief Counsel, 202-366-4400, or by e-mail at *lawrence.white@dot.gov.* SUPPLEMENTARY INFORMATION: Background This interim final rule conforms PHMSA's administrative procedures with the PIPES Act by outlining the procedures PHMSA will follow in issuing safety orders under 49 U.S.C. 60117(l) and handling requests for special permits, including emergency special permits under 49 U.S.C. 60118(c). This interim final rule also notifies operators about electronic docket information availability; makes minor amendments reflecting the recent relocation of DOT headquarters; updates several Web site addresses, telephone numbers, and routing symbols; and clarifies the time period for processing requests for written interpretations of the regulations. This interim final rule does not impose any new operating, maintenance or other substantive requirements on pipeline operators. The following is a brief summary of each amendment. 1. Safety Orders Section 13 of the PIPES Act amended 49 U.S.C. 60117(l) to read as follows: “(1) In general.—Not later than December 31, 2007, the Secretary shall issue regulations providing that, after notice and opportunity for a hearing, if the Secretary determines that a pipeline facility has a condition that poses a pipeline integrity risk to public safety, property, or the environment, the Secretary may order the operator of the facility to take necessary corrective action, including physical inspection, testing, repair, or other appropriate action, to remedy that condition.
(2)Considerations.—In making a determination under paragraph (1), the Secretary, if relevant and pursuant to the regulations issued under paragraph (1), shall consider—
(A)The considerations specified in paragraphs
(1)through
(6)of section 60112(b);
(B)The likelihood that the condition will impair the serviceability of a pipeline;
(C)The likelihood that the condition will worsen over time; and
(D)The likelihood that the condition is present or could develop on other areas of the pipeline.” The Secretary has delegated to PHMSA all necessary authority to establish and enforce regulations under the pipeline safety laws, including the PIPES Act (49 CFR 1.53). Pursuant to this delegation, PHMSA is prepared to issue safety orders under the procedures and standards prescribed in Section 13 of the PIPES Act and this interim final rule. We will consider initiating safety order proceedings to address identified pipeline integrity risks that may not rise to the level of a hazardous condition requiring immediate corrective action under 49 U.S.C. 60112, but should be addressed over time to protect life, property, or the environment and prevent pipeline failures or conditions that could disrupt energy supplies. In keeping with legislative objectives, we intend to broadly consider all known integrity risks on a given pipeline or pipeline segment, including those related to external or environmental forces. Over time, changes in external factors, such as climate, geology, and land use, may pose direct threats to the integrity of a pipeline warranting additional monitoring and special precautions. The PIPES Act amended 49 U.S.C. 60117(l) by establishing statutory standards for issuance of a safety order. A safety order must be based on a finding by the Associate Administrator for Pipeline Safety that a pipeline facility has a condition that poses a pipeline integrity risk to public safety, property, or the environment. In making the required finding, the Associate Administrator will consider all relevant information, including the nine considerations expressly enumerated in § 60117(l)(2) (and by cross-reference to § 60112(b)): • The characteristics of the pipe and other equipment used in the pipeline facility involved, including its age, manufacturer, physical properties (including its resistance to corrosion and deterioration), and the method of its manufacture, construction or assembly; • The nature of the materials transported by such facility (including their corrosive and deteriorative qualities), the sequence in which such materials are transported, and the pressure required for such transportation; • The characteristics of the geographical areas in which the pipeline facility is located, in particular the climatic and geologic conditions (including soil characteristics) associated with such areas; • For hazardous liquid pipelines, the proximity of the area in which the pipeline facility is located to unusually sensitive areas; • The population density and population and growth patterns of the area in which the pipeline facility is located; • Any recommendation of the National Transportation Safety Board issued in connection with any investigation conducted by the Board; • The likelihood that the condition will impair the serviceability of the pipeline; • The likelihood that the condition will worsen over time; and • The likelihood that the condition is present or could develop on other areas of the pipeline. The statute also gives PHMSA broad authority to prescribe corrective action based on the nature of the identified risk condition. As provided in section 60117(l)(2), we are authorized to “order the operator of the facility to take necessary corrective action, including physical inspection, testing, repair, or other appropriate action, to remedy th[e] condition.” For purposes of this interim final rule, we have identified specific measures that may be considered appropriate for inclusion in a safety order. In addition to physical inspection, testing, integrity assessment, and repair, PHMSA will consider ordering an operator to establish procedures for continuous monitoring of pipeline conditions; implement or strengthen its data integration processes; and improve information management systems. Through such measures, the operator would identify and incorporate findings from its continuous evaluation of the pipeline's operations and performance. PHMSA believes this approach is consistent with the language and purpose of the PIPES Act and the clear legislative intent to address problems before they present immediate hazards. The amendment made by the PIPES Act also requires PHMSA to provide operators with notice and an opportunity for a hearing before issuing a safety order and directs PHMSA to issue applicable procedural regulations. This interim final rule establishes the procedures PHMSA will use to issue safety orders. In general, PHMSA will use its longstanding procedures for administrative enforcement proceedings set forth in 49 CFR part 190. In addition, PHMSA will provide operators with an opportunity for informal consultation in advance of a hearing. PHMSA believes the informal consultation process will benefit the agency, operators, and the public by providing a more streamlined and timely means of achieving safety improvements. The process is summarized as follows: *Notice of Proposed Safety Order.* PHMSA will initiate a safety order proceeding by serving written notice of a proposed safety order in accordance with § 190.5 upon the operator of the identified facility. The notice will allege the existence of a condition that poses a pipeline integrity risk to public safety, property, or the environment, and state the facts and circumstances that support issuing a safety order for the specified pipeline facility. The notice will also propose testing, integrity assessment, evaluations, repairs, or other corrective action to be taken by the operator and may propose that the operator submit a work plan and schedule to address the condition(s) identified in the notice. The notice will describe the respondent operator's response options, including procedures for requesting informal consultation and hearing. An operator receiving a notice will have 30 days to respond. *Informal consultation.* Upon timely request by the operator, PHMSA will provide an opportunity for informal consultation concerning the proposed safety order. Such informal consultation shall commence within 30 days, provided that PHMSA may extend this time by request or otherwise for good cause. Informal consultation provides an opportunity for the operator to explain the circumstances associated with the risk condition(s) alleged in the notice and, as appropriate, to present a proposal for remedial action, without prejudice to the operator's position in any subsequent hearing. If the operator and PHMSA agree within 30 days of informal consultation on a plan for the operator to address each identified risk condition, they may enter into a written consent agreement, and PHMSA will then issue an administrative consent order incorporating the terms of the agreement. If a consent agreement is reached, no further hearing will be provided in the matter and any pending hearing request will be considered withdrawn. If a consent agreement is not reached, any admissions made by the operator during the informal consultation shall be excluded from the record in any subsequent hearing. *Hearing and final action.* An operator receiving a notice of proposed safety order will be granted an administrative hearing upon written request filed within 30 days following receipt of the notice or within 10 days following the conclusion of informal consultation that did not result in a consent agreement, as applicable. The hearing will be conducted informally, without strict adherence to formal rules of evidence before a Presiding Official who has had no significant prior involvement in the case. The respondent may submit any relevant information or materials, call witnesses, and present arguments addressing the proposed safety order. After conclusion of a hearing under this section, based on the record and the recommendation of the Presiding Official, if the Associate Administrator finds the facility to have a condition that poses a pipeline integrity risk to public safety, property, or the environment, the Associate Administrator may issue a safety order under this section. If the Associate Administrator does not find that the facility has such a condition, or concludes that a safety order is otherwise not warranted, the Associate Administrator will withdraw the notice, and promptly notify the operator in writing. PHMSA and the operator may enter into a consent agreement at any time before a safety order is issued. *Termination of a safety order.* Once all remedial actions set forth in the safety order and associated work plans are completed, as determined by PHMSA, the Associate Administrator will terminate the safety order and notify the operator of such termination. In any case, the Associate Administrator may suspend or terminate a safety order upon a finding that the facility no longer has a condition or conditions that pose a pipeline integrity risk to public safety, property, or the environment. 2. Special Permits Section 10 of the PIPES Act amended 49 U.S.C. 60118(c) to read as follows:
(c)Waivers by Secretary.—
(1)Nonemergency waivers.—
(A)In general.—On application of an operator of a pipeline facility, the Secretary by order may waive compliance with any part of an applicable standard prescribed under this chapter with respect to such facility on terms the Secretary considers appropriate if the Secretary determines that the waiver is not inconsistent with pipeline safety.
(B)Hearing.—The Secretary may act on a waiver under this paragraph only after notice and an opportunity for a hearing.
(2)Emergency waivers.—
(A)In general.—The Secretary by order may waive compliance with any part of an applicable standard prescribed under this chapter on terms the Secretary considers appropriate without prior notice and comment if the Secretary determines that—
(i)It is in the public interest to grant the waiver;
(ii)The waiver is not inconsistent with pipeline safety; and
(iii)The waiver is necessary to address an actual or impending emergency involving pipeline transportation, including an emergency caused by a natural or manmade disaster.
(B)Period of waiver.—A waiver under this paragraph may be issued for a period of not more than 60 days and may be renewed upon application to the Secretary only after notice and an opportunity for a hearing on the waiver. The Secretary shall immediately revoke the waiver if continuation of the waiver would not be consistent with the goals and objectives of this chapter.
(3)Statement of reasons.—The Secretary shall state in an order issued under this subsection the reasons for granting the waiver. This amendment granted PHMSA new authority to waive compliance with a pipeline safety regulation on an emergency basis, without the prior notice and hearing required under the agency's general waiver authority. *Special Permit Applications and Procedures.* PHMSA now uses the term “special permits” to refer to orders granting regulatory waivers. In most cases, such orders impose conditions requiring the special permit holder to perform alternative measures, such as integrity assessment and additional inspections and monitoring, in lieu of the measures otherwise required by the relevant regulation. Therefore, PHMSA believes the term “special permit” better reflects the limited and conditional nature of these agency actions. To clarify the procedures governing special permits, and to establish new procedures for exercise of the agency's emergency authority, this interim final rule adds a new section entitled “Special permits,” to our administrative procedures in 49 CFR part 190. This interim final rule outlines the procedures under which pipeline operators (and prospective operators) may request special permits. It specifies the information that must be provided in each application and, in accordance with 49 U.S.C. 60118(c)(1)(B), provides for public notice and comment on applications for nonemergency special permits. Our procedures for notice and comment in these cases are comparable to those governing the adoption or repeal of regulations: PHMSA ordinarily publishes advance notice in the **Federal Register** of its intent to consider a special permit application; invites written comments on the proposal; and establishes a public docket for submission of all comments. PHMSA also notifies the state pipeline safety program manager or other appropriate authority in each affected state. We address all public comments in our decisions granting or denying special permits and publish all special permits on the PHMSA Web site. These general procedures govern all nonemergency special permit applications, including those involving proposed new pipelines. In the case of proposed pipelines, however, additional efforts may be warranted to notify affected communities of our proceeding. Because special permits may affect material orders and other investment decisions, and because a planned pipeline route is subject to change during the design and permitting process, a prospective operator may need to seek a special permit in advance of final site selection. In these cases, we will make special efforts to verify that communities likely to be affected have notice of the application and opportunity for comment. PHMSA has no authority over pipeline siting, but we work closely with appropriate authorities and members of the public to address site-specific safety concerns. In the case of proposed interstate natural gas transmission pipelines, PHMSA regularly provides technical assistance on safety issues to the Federal Energy Regulatory Commission (FERC), which has exclusive authority over pipeline siting, including authority to impose site-specific safety controls. PHMSA inspects new pipelines during construction to verify compliance with our requirements and engages in ongoing oversight of pipeline operations. PHMSA has a longstanding record of issuing corrective action orders to require operators to mitigate imminent hazards and, in accordance with this interim final rule, now is prepared to issue safety orders addressing less urgent risk conditions. On an appropriate record, moreover, PHMSA retains inherent authority to revoke a special permit, or impose additional conditions, in the interests of safety. As explained below, this interim final rule sets forth the procedures and standards that would govern such a determination. Accordingly, although we would not propose to revoke or impose additional conditions on a special permit simply because the pipeline route has changed since issuance, we are prepared to address safety concerns at any time. This interim final rule also clarifies the relationship between special permits and other administrative orders and sets forth the grounds and procedures under which a special permit may be modified, suspended, or revoked. To protect the integrity of the special permit process, PHMSA reserves the right to revoke, suspend, or modify a special permit at any time if it discovers a material or intentional misrepresentation or omission in the application; material error in the agency's evaluation of the special permit application; or a material change in the circumstances underlying the agency's decision. PHMSA also will monitor the operator's performance and may suspend or revoke a special permit based on the holder's failure to comply with any term or condition of the special permit. Except as may be warranted in an emergency, PHMSA will take such action only after providing the operator an opportunity to show cause why its special permit should not be revoked, suspended, or modified. This interim final rule also sets forth the administrative procedure for requesting reconsideration of a denial of an application for a special permit or revocation of an existing special permit. *Emergency Special Permits* . This interim final rule also outlines the procedures for operators to request emergency special permits. PHMSA has authority to issue an emergency waiver of a pipeline safety regulation without prior notice and comment if necessary to address an emergency involving pipeline transportation. This interim final rule specifies additional information that must be in the application concerning how the applicant is being affected by the emergency. In accordance with the PIPES Act, this rule limits the duration of an emergency special permit to no longer than 60 days unless renewed. *State Waivers for Intrastate Pipelines* . This interim final rule maintains the existing role that states participating in the oversight of pipelines pursuant to a certification under 49 U.S.C. 60105 or an agreement under section 60106 have in granting state waivers for intrastate pipelines. The PIPES Act does not alter the requirement that a state pipeline authority give PHMSA 60-day notice of a state waiver. However, if a state notifies PHMSA that it believes the waiver is necessary to respond to an emergency involving an intrastate pipeline subject to state regulation, PHMSA will expedite its review of the state's decision. Because the PIPES Act does not affect the authority of a state to waive the requirements of state law, each state regulator should review its particular state law to determine the extent to which it has the authority to grant emergency waivers of state pipeline requirements. 3. Electronic Docket Information Availability This interim final rule amends § 190.209 by adding a new paragraph notifying operators that all materials they submit in response to administrative enforcement actions may be placed on publicly accessible Web sites. Pursuant to section 6 of the PIPES Act and in accordance with its commitment to enforcement transparency, PHMSA has established a Web site that makes information and documents associated with an administrative enforcement action available to the public by electronic means. A Respondent that seeks confidential treatment under 5 U.S.C. 552(b) for any portion of its responsive materials must provide a second copy of such materials along with the complete original document. A Respondent may redact the portions it believes qualify for confidential treatment in the second copy but must provide an explanation for each redaction. The interim rule sets forth this procedure, along with other information concerning the agency's new enforcement transparency Web site. This interim rule also reflects the decommissioning of the Department's electronic docket management system and the recent migration to the government-wide electronic docket system found at regulations.gov and allows electronic service of enforcement documents. 4. Miscellaneous Amendments On April 20, 2007, PHMSA relocated its headquarters to the new DOT building at 1200 New Jersey Avenue, SE., Washington, DC 20590. Accordingly, this interim final rule amends 49 CFR parts 190, 191, 192, 193, 194, 195, and 199 to reflect the new address. In addition, this rule updates several Web site addresses, telephone numbers, and routing symbols, and clarifies the time period for processing requests for written interpretations of the regulations. Comments on This Interim Final Rule and Effective Date This interim final rule conforms agency practice and procedures to current public law and reflects the relocation of PHMSA headquarters. This rule does not impose any new substantive requirements on operators or the public. Accordingly, we have determined that it is unnecessary to precede it with a notice of proposed rulemaking. The Regulatory Policies and Procedures of DOT (44 FR 1134; February 26, 1979) provide that, to the maximum extent possible, DOT operating administrations should provide an opportunity for public comment on regulations issued without prior notice. Accordingly, we encourage persons to participate in this rulemaking by submitting comments containing relevant information, data, or views. We will consider all comments received on or before the closing date for comments. We will consider late filed comments so far as practicable. Although we may later amend it based on comments received, this interim final rule will go into effect in 30 days. Because the rule conforms agency practice and procedures to reflect current public law and does not impose any new substantive requirements on operators or the public, and because its expeditious issuance facilitates implementation of the PIPES Act, we find that there is good cause under 5 U.S.C. 553(d) to make this rule effective on April 28, 2008. Rulemaking Analyses and Notices A. Executive Order 12866 and DOT Regulatory Policies and Procedures This interim final rule is not considered a significant regulatory action under Section 3(f) of Executive Order 12866 and, therefore, was not subject to review by the Office of Management and Budget. This interim final rule is not significant under DOT Regulatory Policies and Procedures (44 FR 11034; Feb. 26, 1979). Because this rule conforms agency practice and procedure to reflect current public law and does not impose any new substantive requirements on operators or the public, it has no significant economic impact on regulated entities, and preparation of a regulatory impact analysis was not warranted. B. Executive Order 13132 This interim final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This rule does not introduce any regulation that:
(1)Has substantial direct effects on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government;
(2)imposes substantial direct compliance costs on state and local governments; or
(3)preempts state law. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. Further, this rule does not have impacts on federalism sufficient to warrant the preparation of a federalism assessment. C. Executive Order 13175 This interim final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this rule does not significantly or uniquely affect the communities of the Indian tribal governments, the funding and consultation requirements of Executive Order 13175 do not apply. D. Executive Order 13211 This interim final rule is not a significant energy action under Executive Order 13211. It is not a significant regulatory action under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, this rule has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. E. Regulatory Flexibility Act Because this interim final rule conforms 49 CFR part 190 to the PIPES Act, updates the part 190 procedures to reflect current public law, and reflects the relocation of PHMSA headquarters, and will have no direct or indirect economic impacts for government units, businesses, or other organizations, I certify that this rule will not have a significant economic impact on a substantial number of small entities. F. Paperwork Reduction Act This interim final rule contains no new information collection requirements and imposes no additional paperwork burdens. Therefore, submitting an analysis of the burdens to OMB pursuant to the Paperwork Reduction Act was unnecessary. G. Unfunded Mandates Reform Act This interim final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $100 million or more, as adjusted for inflation, to either state, local or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objectives of the rule. H. Environmental Assessment Because this interim final rule conforms agency practice and procedure to reflect current public law and does not impose any new substantive requirements on operators or the public, there are no significant environmental impacts associated with this rule. List of Subjects 49 CFR Part 190 Administrative practice and procedure; Penalties. For the reasons discussed in the preamble, PHMSA is amending 49 CFR parts 190, 191, 192, 193, 194, 195, and 199 as follows: PART 190—PIPELINE SAFETY PROGRAMS AND RULEMAKING PROCEDURES 1. The authority citation for part 190 continues to read as follows: Authority: 33 U.S.C. 1321; 49 U.S.C. 5101-5127, 60101 et seq.; 49 CFR 1.53. 2. In 49 CFR part 190, remove the words “400 7th Street, SW” and add, in their place, the words “1200 New Jersey Avenue, SE” in the following places: a. Section 190.9(b)(1)(ii) and (b)(2); b. Section 190.11(b)(1) and (b)(2); c. Section 190.305
(a)and (b); and d. Section 190.309 3. Section 190.5 is amended by revising paragraphs
(a)and
(c)to read as follows: § 190.5 Service.
(a)Each order, notice, or other document required to be served under this part shall be served personally, by registered or certified mail, overnight courier, or electronic transmission by facsimile or other electronic means that includes reliable acknowledgement of actual receipt.
(c)Service by registered or certified mail or overnight courier is complete upon mailing. Service by electronic transmission is complete upon transmission and acknowledgement of receipt. An official receipt for the mailing from the U.S. Postal Service or overnight courier, or a facsimile or other electronic transmission confirmation, constitutes prima facie evidence of service. § 190.11 [Amended] 4. Section 190.11 is amended as follows: A. The last sentence of § 190.11(a) is amended by removing the telephone number “(202) 366-0918” and adding in its place the number “(202) 366-4595”. B. The first sentence of § 190.11(b)(1) is amended by removing the routing symbol “(DPS-10)” and adding in its place “(PHP-30)”. C. Section 190.11(b)(1) is further amended by adding a new sentence at the end to read as follows: “Written requests should be submitted at least 120 days before the time the requestor needs the response.” 5-7. Section 190.209 is amended by adding a new paragraph
(d)to read as follows: § 190.209 Response options.
(d)All materials submitted by operators in response to enforcement actions may be placed on publicly accessible Web sites. A Respondent that seeks confidential treatment under 5 U.S.C. 552(b) for any portion of its responsive materials must provide a second copy of such materials along with the complete original document. A Respondent may redact the portions it believes qualify for confidential treatment in the second copy but must provide an explanation for each redaction. § 190.227 [Amended] 8. Section 190.227(a) is amended by removing the routing symbol “(AMZ-120)” and adding in its place “(AMZ-341)”. 9. Section 190.239 is added to read as follows: § 190.239 Safety orders.
(a)When may PHMSA issue a safety order? If the Associate Administrator, OPS finds, after notice and an opportunity for hearing under paragraph
(b)of this section, that a particular pipeline facility has a condition or conditions that pose a pipeline integrity risk to public safety, property, or the environment, the Associate Administrator may issue an order requiring the operator of the facility to take necessary corrective action. Such action may include physical inspection, testing, repair, risk assessment, risk control, data integration, information management, or other appropriate action to remedy the identified risk condition.
(b)How is an operator notified of the proposed issuance of a safety order and what are its response options?
(1)*Notice of proposed safety order.* PHMSA will serve written notice of a proposed safety order under § 190.5 to an operator of the pipeline facility. The notice will allege the existence of a condition that poses a pipeline integrity risk to public safety, property, or the environment, and state the facts and circumstances that support issuing a safety order for the specified pipeline or portion thereof. The notice will also specify proposed testing, evaluations, integrity assessment, or other actions to be taken by the operator and may propose that the operator submit a work plan and schedule to address the conditions identified in the notice. The notice will also provide the operator with its response options, including procedures for requesting informal consultation and a hearing. An operator receiving a notice will have 30 days to respond.
(2)*Informal consultation.* Upon timely request by the operator, PHMSA will provide an opportunity for informal consultation concerning the proposed safety order. Such informal consultation shall commence within 30 days, provided that PHMSA may extend this time by request or otherwise for good cause. Informal consultation provides an opportunity for the respondent to explain the circumstances associated with the risk condition(s) identified in the notice and, where appropriate, to present a proposal for corrective action, without prejudice to the operator's position in any subsequent hearing. If the respondent and PHMSA agree within 30 days of the informal consultation on a plan for the operator to address each risk condition, they may enter into a written consent agreement and PHMSA may issue a consent order incorporating the terms of the agreement. If a consent agreement is reached, no further hearing will be provided in the matter and any pending hearing request will be considered withdrawn. If a consent agreement is not reached within 30 days of the informal consultation (or if informal consultation is not requested), the Associate Administrator may proceed under paragraphs (b)(3) through
(5)of this section. If PHMSA subsequently determines that an operator has failed to comply with the terms of a consent order, PHMSA may obtain any administrative or judicial remedies available under 49 U.S.C. 60101 *et seq.* and this part. If a consent agreement is not reached, any admissions made by the operator during the informal consultation shall be excluded from the record in any subsequent hearing. Nothing in this paragraph
(b)precludes PHMSA from terminating the informal consultation process if it has reason to believe that the operator is not engaging in good faith discussions or otherwise concludes that further consultation would not be productive or in the public interest.
(3)*Hearing.* An operator receiving a notice of proposed safety order may contest the notice, or any portion thereof, by filing a written request for a hearing within 30 days following receipt of the notice or within 10 days following the conclusion of informal consultation that did not result in a consent agreement, as applicable. In the absence of a timely request for a hearing, the Associate Administrator may issue a safety order in the form of the proposed order in accordance with paragraphs
(c)through
(g)of this section.
(4)*Conduct of hearing.* An attorney from the Office of Chief Counsel, PHMSA, will serve as the Presiding Official in a hearing under this section. The hearing will be conducted informally, without strict adherence to formal rules of evidence in accordance with § 190.211. The respondent may submit any relevant information or materials, call witnesses, and present arguments on the issue of whether a safety order should be issued to address the alleged presence of a condition that poses a pipeline integrity risk to public safety, property, or the environment.
(5)*Post-hearing action.* Following a hearing under this section, the Presiding Official will submit a recommendation to the Associate Administrator concerning issuance of a final safety order. Upon receipt of the recommendation, the Associate Administrator may proceed under paragraphs
(c)through
(g)of this section. If the Associate Administrator finds the facility to have a condition that poses a pipeline integrity risk to public safety, property, or the environment, the Associate Administrator will issue a safety order under this section. If the Associate Administrator does not find that the facility has such a condition, or concludes that a safety order is otherwise not warranted, the Associate Administrator will withdraw the notice and promptly notify the operator in writing by service as prescribed in § 190.5. Nothing in this subsection precludes PHMSA and the operator from entering into a consent agreement at any time before a safety order is issued.
(6)*Termination of safety order.* Once all remedial actions set forth in the safety order and associated work plans are completed, as determined by PHMSA, the Associate Administrator will notify the operator that the safety order has been lifted. The Associate Administrator shall suspend or terminate a safety order whenever the Associate Administrator determines that the pipeline facility no longer has a condition or conditions that pose a pipeline integrity risk to public safety, property, or the environment.
(c)How is the determination made that a pipeline facility has a condition that poses an integrity risk? The Associate Administrator, OPS may find a pipeline facility to have a condition that poses a pipeline integrity risk to public safety, property, or the environment under paragraph
(a)of this section:
(1)If under the facts and circumstances the Associate Administrator determines the particular facility has such a condition; or
(2)If the pipeline facility or a component thereof has been constructed or operated with any equipment, material, or technique with a history of being susceptible to failure when used in pipeline service, unless the operator involved demonstrates that such equipment, material, or technique is not susceptible to failure given the manner it is being used for a particular facility.
(d)What factors must PHMSA consider in making a determination that a risk condition is present? In making a determination under paragraph
(c)of this section, the Associate Administrator, OPS shall consider, if relevant:
(1)The characteristics of the pipe and other equipment used in the pipeline facility involved, including its age, manufacturer, physical properties (including its resistance to corrosion and deterioration), and the method of its manufacture, construction or assembly;
(2)The nature of the materials transported by such facility (including their corrosive and deteriorative qualities), the sequence in which such materials are transported, and the pressure required for such transportation;
(3)The characteristics of the geographical areas where the pipeline facility is located, in particular the climatic and geologic conditions (including soil characteristics) associated with such areas;
(4)For hazardous liquid pipelines, the proximity of the pipeline to an unusually sensitive area;
(5)The population density and growth patterns of the area in which the pipeline facility is located;
(6)Any relevant recommendation of the National Transportation Safety Board issued in connection with any investigation conducted by the Board;
(7)The likelihood that the condition will impair the serviceability of the pipeline;
(8)The likelihood that the condition will worsen over time; and
(9)The likelihood that the condition is present or could develop on other areas of the pipeline.
(e)What information will be included in a safety order? A safety order shall contain the following:
(1)A finding that the pipeline facility has a condition that poses a pipeline integrity risk to public safety, property, or the environment;
(2)The relevant facts which form the basis of that finding;
(3)The legal basis for the order;
(4)The nature and description of any particular corrective actions to be required of the operator; and
(5)The date(s) by which the required corrective actions must be taken or completed and, where appropriate, the duration of the order.
(f)Can PHMSA take other enforcement actions on the affected facilities? Nothing in this section precludes PHMSA from issuing a Notice of Probable Violation under § 190.207 or taking other enforcement action if noncompliance is identified at the facilities that are the subject of a safety order proceeding. 10. Section 190.305(b) is revised to read as follows: § 190.305 Regulatory dockets.
(b)Once a public docket is established, docketed material may be accessed at *http://www.regulations.gov* . Public comments also may be submitted at *http://www.regulations.gov* . Comment submissions must identify the docket number. You may also examine public docket material at the offices of the Docket Operations Facility (M-30), U.S. Department of Transportation, West Building, First Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. You may obtain a copy during normal business hours, excluding Federal holidays, for a fee, with the exception of material which the Administrator of PHMSA determines should be withheld from public disclosure under 5 U.S.C. 552(b) or any other applicable statutory provision. 11. Section 190.341 is added to read as follows: § 190.341 Special permits.
(a)What is a special permit? A special permit is an order by which PHMSA waives compliance with one or more of the Federal pipeline safety regulations under the standards set forth in 49 U.S.C. 60118(c) and subject to conditions set forth in the order. A special permit is issued to a pipeline operator (or prospective operator) for specified facilities that are or, absent waiver, would be subject to the regulation.
(b)How do I apply for a special permit? Applications for special permits must be submitted at least 120 days before the requested effective date using any of the following methods:
(1)Direct fax to PHMSA at: 202-366-4566; or
(2)Mail, express mail, or overnight courier to the Associate Administrator for Pipeline Safety, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue, SE., East Building, Washington, DC 20590.
(c)What information must be contained in the application? Applications must contain the following information:
(1)The name, mailing address, and telephone number of the applicant and whether the applicant is an operator;
(2)A detailed description of the pipeline facilities for which the special permit is sought, including:
(i)The beginning and ending points of the pipeline mileage to be covered and the Counties and States in which it is located;
(ii)Whether the pipeline is interstate or intrastate and a general description of the right-of-way including proximity of the affected segments to populated areas and unusually sensitive areas;
(iii)Relevant pipeline design and construction information including the year of installation, the material, grade, diameter, wall thickness, and coating type; and
(iv)Relevant operating information including operating pressure, leak history, and most recent testing or assessment results;
(3)A list of the specific regulation(s) from which the applicant seeks relief;
(4)An explanation of the unique circumstances that the applicant believes make the applicability of that regulation or standard (or portion thereof) unnecessary or inappropriate for its facility;
(5)A description of any measures or activities the applicant proposes to undertake as an alternative to compliance with the relevant regulation, including an explanation of how such measures will mitigate any safety or environmental risks;
(6)A description of any positive or negative impacts on affected stakeholders and a statement indicating how operating the pipeline pursuant to a special permit would be in the public interest;
(7)A certification that operation of the applicant's pipeline under the requested special permit would not be inconsistent with pipeline safety; and
(8)If the application is for a renewal of a previously granted waiver or special permit, a copy of the original grant of the waiver or permit.
(d)How does PHMSA handle special permit applications?
(1)*Public notice.* Upon receipt of an application for a special permit, PHMSA will provide notice to the public of its intent to consider the application and invite comment. In addition, PHMSA may consult with other Federal agencies before granting or denying an application on matters that PHMSA believes may have significance for proceedings under their areas of responsibility.
(2)*Grants and denials.* If the Associate Administrator determines that the application complies with the requirements of this section and that the waiver of the relevant regulation or standard is not inconsistent with pipeline safety, the Associate Administrator may grant the application, in whole or in part, on a temporary or permanent basis. Conditions may be imposed on the grant if the Associate Administrator concludes they are necessary to assure safety, environmental protection, or are otherwise in the public interest. If the Associate Administrator determines that the application does not comply with the requirements of this section or that a waiver is not justified, the application will be denied. Whenever the Associate Administrator grants or denies an application, notice of the decision will be provided to the applicant. PHMSA will post all special permits on its Web site at *http://www.phmsa.dot.gov/* .
(e)Can a special permit be requested on an emergency basis? Yes. PHMSA may grant an application for an emergency special permit without notice and comment or hearing if the Associate Administrator determines that such action is in the public interest, is not inconsistent with pipeline safety, and is necessary to address an actual or impending emergency involving pipeline transportation. For purposes of this section, an emergency event may be local, regional, or national in scope and includes significant fuel supply disruptions and natural or manmade disasters such as hurricanes, floods, earthquakes, terrorist acts, biological outbreaks, releases of dangerous radiological, chemical, or biological materials, war-related activities, or other similar events. PHMSA will determine on a case-by-case basis what duration is necessary to address the emergency. However, as required by statute, no emergency special permit may be issued for a period of more than 60 days. Each emergency special permit will automatically expire on the date specified in the permit. Emergency special permits may be renewed upon application to PHMSA only after notice and opportunity for a hearing on the renewal.
(f)How do I apply for an emergency special permit? Applications for emergency special permits may be submitted to PHMSA using any of the following methods:
(1)Direct fax to the Crisis Management Center at: 202-366-3768;
(2)Direct e-mail to PHMSA at: *phmsa.pipeline-emergencyspecpermit@dot.gov* ; or
(3)Express mail/overnight courier to the Associate Administrator for Pipeline Safety, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue, SE., East Building, Washington, DC 20590.
(g)What must be contained in an application for an emergency special permit? In addition to the information required under paragraph
(c)of this section, applications for emergency special permits must include:
(1)An explanation of the actual or impending emergency and how the applicant is affected;
(2)A citation of the regulations that are implicated and the specific reasons the permit is necessary to address the emergency (e.g., lack of accessibility, damaged equipment, insufficient manpower);
(3)A statement indicating how operating the pipeline pursuant to an emergency special permit is in the public interest (e.g., continuity of service, service restoration);
(4)A description of any proposed alternatives to compliance with the regulation (e.g., additional inspections and tests, shortened reassessment intervals); and
(5)A description of any measures to be taken after the emergency situation or permit expires—whichever comes first—to confirm long-term operational reliability of the pipeline facility. Note to paragraph (g): If PHMSA determines that handling of the application on an emergency basis is not warranted, PHMSA will notify the applicant and process the application under normal special permit procedures of this section.
(h)In what circumstances will PHMSA revoke, suspend, or modify a special permit?
(1)PHMSA may revoke, suspend, or modify a special permit on a finding that:
(i)Intervening changes in Federal law mandate revocation, suspension, or modification of the special permit;
(ii)Based on a material change in conditions or circumstances, continued adherence to the terms of the special permit would be inconsistent with safety;
(iii)The application contained inaccurate or incomplete information, and the special permit would not have been granted had the application been accurate and complete;
(iv)The application contained deliberately inaccurate or incomplete information; or
(v)The holder has failed to comply with any term or condition of the special permit.
(2)Except as provided in paragraph (h)(3) of this section, before a special permit is modified, suspended or revoked, PHMSA will notify the holder in writing of the proposed action and the reasons for it, and provide an opportunity to show cause why the proposed action should not be taken.
(i)The holder may file a written response that shows cause why the proposed action should not be taken within 30 days of receipt of notice of the proposed action.
(ii)After considering the holder's written response, or after 30 days have passed without response since receipt of the notice, PHMSA will notify the holder in writing of the final decision with a brief statement of reasons.
(3)If necessary to avoid a risk of significant harm to persons, property, or the environment, PHMSA may in the notification declare the proposed action immediately effective.
(4)Unless otherwise specified, the terms and conditions of a corrective action order, compliance order, or other order applicable to a pipeline facility covered by a special permit will take precedence over the terms of the special permit.
(5)A special permit holder may seek reconsideration of a decision under paragraph
(h)of this section as provided in paragraph
(i)of this section.
(i)Can a denial of a request for a special permit or a revocation of an existing special permit be appealed? Reconsideration of the denial of an application for a special permit or a revocation of an existing special permit may be sought by petition to the Associate Administrator. Petitions for reconsideration must be received by PHMSA within 20 calendar days of the notice of the grant or denial and must contain a brief statement of the issue and an explanation of why the petitioner believes that the decision being appealed is not in the public interest. The Associate Administrator may grant or deny, in whole or in part, any petition for reconsideration without further proceedings. The Associate Administrator's decision is the final administrative action.
(j)Are documents related to an application for a special permit available for public inspection? Documents related to an application, including the application itself, are available for public inspection on regulations.gov or the Docket Operations Facility to the extent such documents do not include information exempt from public disclosure under 5 U.S.C. 552(b). Applicants may request confidential treatment under part 7 of this title. PART 191—TRANSPORTATION OF NATURAL AND OTHER GAS BY PIPELINE: ANNUAL REPORTS, INCIDENT REPORTS, AND SAFETY-RELATED CONDITION REPORTS 12. The authority citation for part 191 continues to read as follows: Authority: 49 U.S.C. 5121, 60102, 60103, 60104, 60108, 60117, 60118, and 60124; and 49 CFR 1.53. § 191.7 [Amended] 13. The first sentence of § 191.7 is amended by removing the words “the Information Resources Manager, Office of Pipeline Safety, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, Room 7128, 400 Seventh Street, SW.,” and adding in their place the words “Office of Pipeline Safety, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, PHP-10, 1200 New Jersey Avenue SE,”. § 191.27 [Amended] 14. Section § 191.27(b) is amended by removing the words “the Information Officer, Pipeline and Hazardous Materials Safety Administration, Department of Transportation, 400 Seventh Street, SW.,” and adding in its place “Pipeline and Hazardous Materials Safety Administration, Department of Transportation, PHP-10, 1200 New Jersey Avenue SE.” PART 192—TRANSPORTATION OF NATURAL AND OTHER GAS BY PIPELINE: MINIMUM FEDERAL SAFETY STANDARDS 15. The authority citation for part 192 continues to read as follows: Authority: 49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60110, 60113, 60116, and 60118; and 49 CFR 1.53. § 192.7 [Amended] 16. The first sentence of § 192.7(b) is amended by removing the words “400 Seventh Street, SW.” and adding in their place the words “1200 New Jersey Avenue, SE.” § 192.727 [Amended] 17. The seventh sentence of § 192.727(g)(1) is amended by removing the words “Room 2103, 400 Seventh Street, SW., Washington, DC 20590; fax
(202)366-4566; e-mail, *roger.little@dot.gov* .” and adding in their place the words “PHP-10, 1200 New Jersey Avenue, SE., Washington, DC 20590; fax
(202)366-4566; e-mail *InformationResourcesManager@phmsa.dot.gov* .” § 192.949 [Amended] 18. Section 192.949(a) is amended by removing the words “Room 2103, 400 Seventh Street, SW.” and adding in their place the words “PHP-10, 1200 New Jersey Avenue, SE.” § 192.951 [Amended] 19. Section 192.951(a) is amended by removing the words “Room 2103, 400 Seventh Street, SW.” and adding in their place the words “PHP-10, 1200 New Jersey Avenue, SE.” PART 193—LIQUEFIED NATURAL GAS FACILITIES: FEDERAL SAFETY STANDARDS 20. The authority citation for part 193 continues to read as follows: Authority: 49 U.S.C. 5103, 60102, 60103, 60104, 60108, 60109, 60110, 60113, 60118; and 49 CFR 1.53. § 193.2013 [Amended] 21. Section § 193.2013(b) is amended by removing the words “400 Seventh Street, SW.” and adding in their place the words “PHP-30, 1200 New Jersey Avenue, SE.” PART 194—RESPONSE PLANS FOR ONSHORE OIL PIPELINES 22. The authority citation for part 194 continues to read as follows: Authority: 33 U.S.C. 1231, 1321(j)(1)(C), (j)(5) and (j)(6); sec. 2, E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; 49 CFR 1.53. § 194.119 [Amended] 23. The second sentence of § 194.119(a) is amended by removing the words “Pipeline Response Plans Officer, Pipeline and Hazardous Materials Safety Administration, Department of Transportation, 400 Seventh Street, SW” and adding in their place the words “Pipeline and Hazardous Materials Safety Administration, Department of Transportation, PHP 80, 1200 New Jersey Avenue, SE”. PART 195—TRANSPORTATION OF HAZARDOUS LIQUIDS BY PIPELINE 24. The authority citation for part 195 continues to read as follows: Authority: 49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60118; and 49 CFR 1.53. § 195.3 [Amended] 25. Section 195.3(b) is amended by removing the words “400 Seventh Street, SW.” and adding in their place the words “1200 New Jersey Avenue, SE,” § 195.57 [Amended] 26. Section § 195.57(b), is amended by removing the words “Information Officer, Pipeline and Hazardous Materials Safety Administration, Department of Transportation, 400 Seventh Street, SW” and adding in their place the words “Pipeline and Hazardous Materials Safety Administration, Department of Transportation, PHP-10, 1200 New Jersey Avenue, SE.” § 195.59 [Amended] 27. Section 195.59(a) is amended by removing the words “Room 2103, 400 Seventh Street, SW., Washington, DC 20590; fax
(202)366-4566; e-mail, *roger.little@dot.gov* ”, and adding in their place the words “PHP-10, 1200 New Jersey Avenue, SE., Washington, DC 20590; fax
(202)366-4566; e-mail, “ *InformationResourcesManager@phmsa.dot.gov* ”. § 195.452 [Amended] 28. Section 195.452(m) is amended by removing the words, “Room 7128, 400 Seventh Street SW.” and adding in their place the words “1200 New Jersey Avenue, SE.” PART 199—DRUG AND ALCOHOL TESTING 29. The authority citation for part 199 continues to read as follows: Authority: 49 U.S.C. 5103, 60102, 60104, 60108, 60117, and 60118; 49 CFR 1.53. 30. In 49 CFR part 199, remove the words “Room 7128, 400 Seventh Street, SW.” and add in their place the words “PHP-60, 1200 New Jersey Avenue, SE” in the following places: a. Section 199.119(b); and b. Section 199.229(c). Issued in Washington, DC on March 18, 2008. Carl T. Johnson, Administrator. [FR Doc. E8-5926 Filed 3-27-08; 8:45 am] BILLING CODE 4910-60-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 060525140-6221-02] RIN 0648-XG34 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper/Grouper Resources of the South Atlantic; Trip Limit Reduction AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; trip limit reduction. SUMMARY: NMFS reduces the commercial trip limit for golden tilefish in the South Atlantic to 300 lb (136 kg) per trip in or from the exclusive economic zone (EEZ). This trip limit reduction is necessary to protect the South Atlantic golden tilefish resource. DATES: This rule is effective 12:01 a.m., local time, April 6, 2008, through December 31, 2008, unless changed by further notification in the **Federal Register** . FOR FURTHER INFORMATION CONTACT: Susan Gerhart, telephone 727-824-5305, fax 727-824-5308, e-mail *susan.gerhart@noaa.gov* . SUPPLEMENTARY INFORMATION: The snapper-grouper fishery of the South Atlantic is managed under the Fishery Management Plan for the Snapper-Grouper Resources of the South Atlantic (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. Under 50 CFR 622.44(c)(2), NMFS is required to reduce the trip limit in the commercial fishery for golden tilefish from 4,000 lb (1,814 kg) to 300 lb (136 kg) per trip when 75 percent of the fishing year quota is met, by filing a notification to that effect in the **Federal Register** . Based on current statistics, NMFS has determined that 75 percent of the available commercial quota of 295,000 lb (133,810 kg), gutted weight, for golden tilefish will be reached on or before April 6, 2008. Accordingly, NMFS is reducing the commercial golden tilefish trip limit to 300 lb (136 kg) in the South Atlantic EEZ from 12:01 a.m., local time, on April 6, 2008, until the quota is reached and the fishery closes or 12:01 a.m., local time, on January 1, 2009, whichever occurs first. Classification This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures would be unnecessary and contrary to the public interest, because the rule itself already has been subject to notice and comment, and all that remains is to notify the public of the trip limit reduction. NMFS also finds good cause that the implementation of this action cannot be delayed for 30 days. There is a need to implement this measure immediately to prevent an overrun of the commercial fishery for golden tilefish in the South Atlantic, given the capacity of the fishing fleet to harvest the quota quickly. Any delay in implementing this action would be contrary to the Magnuson-Stevens Act and the FMP. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is waived. This action is taken under 50 CFR 622.43(a) 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. E8-6434 Filed 3-27-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 071004577-8124-02] RIN 0648-AW13 Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Total Allowable Catches for Eastern Georges Bank Cod, Eastern Georges Bank Haddock, and Georges Bank Yellowtail Flounder in the U.S./Canada Management Area for Fishing Year 2008 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; specifications. SUMMARY: The following Total Allowable Catches
(TACs)in the U.S./Canada Management Area are implemented for the 2008 fishing year (FY): 667 mt of Eastern Georges Bank
(GB)cod, 8,050 mt of Eastern GB haddock, and 1,950 mt of GB yellowtail flounder. These TACs may be adjusted during FY 2008, if NMFS determines that the harvest of these stocks in FY 2007 exceeded the TACs specified for FY 2007. Further, NMFS is postponing the FY 2008 opening of the Eastern U.S./Canada Area until August 1, 2008, for trawl vessels. Longline gear vessels are allowed to fish in the Eastern U.S./Canada Area during the May through July 2008 period with a cap on the amount of cod caught during this period set at 5 percent of the cod TAC (i.e., 33.4 mt). The intent of this action is to provide for the conservation and management of the three shared stocks of fish, as required by the regulations implementing the Northeast Multispecies Fishery Management Plan. DATES: This rule is effective May 1, 2008, through April 30, 2009. ADDRESSES: Copies of the Transboundary Management Guidance Committee's (TMGC's) 2007 Guidance Document and copies of the Environmental Assessment
(EA)of the 2008 TACs (including the Regulatory Impact Review and Final Regulatory Flexibility Analysis
(FRFA)may be obtained from NMFS at the mailing address specified above; telephone
(978)281-9315. NMFS prepared a summary of the FRFA, which is contained in the Classification section of this final rule. FOR FURTHER INFORMATION CONTACT: Thomas Warren, Fishery Policy Analyst,
(978)281-9347, fax
(978)281-9135, e-mail *Thomas.Warren@NOAA.gov* . SUPPLEMENTARY INFORMATION: A proposed rule for this action was published on January 3, 2008 (73 FR 441), with public comment accepted though February 4, 2008. A detailed description of the administrative process used to develop the TACs was contained in the preamble of the proposed rule and is not repeated here. The 2008 TACs are based upon the most recent stock assessments (Transboundary Resource Assessment Committee
(TRAC)Status Reports for 2007), and the fishing mortality strategy shared by both the United States and Canada. For Eastern GB cod, the TMGC concluded that the most appropriate combined U.S./Canada TAC for FY 2008 is 2,300 mt. The United States is entitled to 29 percent and Canada to 71 percent, resulting in a quota of 667 mt of cod for the United States and 1,633 mt of cod for Canada. For Eastern GB haddock, the TMGC concluded that the most appropriate combined U.S./Canada TAC for FY 2008 is 23,000 mt. The United States is entitled to 35 percent and Canada to 65 percent, resulting in a quota of 8,050 mt of haddock for the United States and 14,950 mt of haddock for Canada. For GB yellowtail flounder, the TMGC concluded that the most appropriate combined U.S./Canada TAC for FY 2008 is 2,500 mt. The United States is entitled to 78 percent and Canada to 22 percent, resulting in a quota of 1,950 mt of yellowtail flounder for the United States and 550 mt of yellowtail flounder for Canada. On September 18, 2007, the New England Fishery Management Council (Council) approved, consistent with the 2007 Guidance Document, the U.S. TACs recommended by the TMGC and recommended their adoption to NMFS. The 2008 TACs represent increases over the 2007 TAC levels (Tables 1 and 2). Table 1: 2008 U.S./Canada TACs
(mt)and percentage shares (in parentheses) GB Cod GB Haddock GB Yellowtail flounder Total Shared TAC 2,300 23,000 2,500 U.S. TAC 667
(29)8,050
(35)1,950
(78)Canada TAC 1,633
(71)14,950
(65)550
(22)Table 2: 2007 U.S./Canada TACs
(mt)and percentage shares (in parentheses) GB Cod GB Haddock GB Yellowtail flounder Total Shared TAC 1,900 19,000 1,250 U.S. TAC 494
(26)6,270
(33)900
(72)Canada TAC 1,406
(74)12,730
(67)350
(28)The regulations for the U.S./Canada Management Understanding, implemented by Amendment 13 to the Northeast Multispecies Fishery Management Plan (FMP), at § 648.85(a)(2)(ii), state the following: “Any overages of the GB cod, haddock, or yellowtail flounder TACs that occur in a given fishing year will be subtracted from the respective TAC in the following fishing year.” Therefore, should an analysis of the catch of the shared stocks by U.S. vessels indicate that an overage occurred during FY 2007, the pertinent TAC will be adjusted downward in order to be consistent with the FMP and the Understanding. Although it is very unlikely, it is possible that a very large overage could result in an adjusted TAC of zero. If an adjustment to one of the 2008 TACs for cod, haddock, or yellowtail flounder is necessary, the public will be notified through publication in the **Federal Register** and through a letter to permit holders. On November 7, 2007, the Council voted to postpone the FY 2008 opening of the Eastern U.S./Canada Area for vessels fishing with trawl gear (from May 1, 2008) until August 1, 2008, and allow vessels fishing with more selective longline gear access during the May through July period, provided such vessels are limited to a cod catch of 5 percent of the cod TAC (i.e., 33.4 mt). The goal of the restriction, which is more fully described in the proposed rule, is to prolong access to the Eastern U.S./Canada Area in order to maximize the catch of available haddock, yellowtail flounder, and other species. The objective of the action is to prevent trawl fishing in the Eastern U.S./Canada Area during the time period when cod bycatch is likely to be very high, and prevent early closure of the Eastern U.S./Canada Area. Therefore, based upon pertinent information on the catch rate of cod in the Eastern U.S./Canada Area, the Regional Administrator is implementing (under existing authority for in- season management) the Council's recommendation to delay access to the Eastern U.S./Canada Area to trawl gear vessels in FY 2008 to August 1, 2008, in order to maximize total fishing opportunity. If NMFS projects that 33.4 mt of GB cod will be caught by longline vessels from the Eastern U.S./Canada Area prior to August 1, 2008, it will close the Eastern Area to such vessels until August 1. Comments and Responses One pertinent comment was received on the proposed rule from the Cape Cod Commercial Hook Fisherman's Association. *Comment:* The commenter expressed support for the delayed opening of the Eastern U.S./Canada Area to trawl vessels. *Response:* NMFS agrees with the commenter that delayed opening of the Eastern U.S./Canada Area will reduce bycatch of cod and result in increased catch of haddock and other species. Classification NMFS has determined that this final rule is consistent with the FMP and is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws. This temporary rule is published pursuant to 50 CFR part 648 and has been determined to be not significant for purposes of Executive Order 12866. NMFS prepared a FRFA, which incorporates the IRFA and this final rule, and describes the economic impact that this action may have on small entities. No comments on the economic impacts of the TACs were received. The specification of hard TACs for the U.S./Canada shared stocks of Eastern GB cod, Eastern GB haddock, and GB yellowtail flounder is necessary in order to ensure that the fishing mortality levels for these shared stocks are achieved in the U.S./Canada Management Area (the geographic area on GB defined to facilitate management of stocks of cod, haddock, and yellowtail flounder that are shared with Canada). A full description of the objectives and legal basis for the TACs is contained in the preamble of the proposed rule. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES ). Under the Small Business Administration
(SBA)size standards for small fishing entities ($ 4.0 million in annual revenue), all permitted and participating vessels in the groundfish fishery are considered to be small entities and, therefore, there are no differential impacts between large and small entities. Gross sales by any one entity (vessel) do not exceed this threshold. The maximum number of small entities that could be affected by the proposed TACs is approximately 1,000 vessels, i.e., those with limited access NE multispecies days-at-sea
(DAS)permits that have an allocation of Category A or B DAS. Realistically, however, the number of vessels that choose to fish in the U.S./Canada Management Area, and that therefore would be subject to the associated restrictions, including hard TACs, will be substantially less. The average number of vessels that fished in the U.S./Canada Management Area in a fishing year in the past was 169 (FY 2004 - 2006). During FYs 2004 through 2006, the number of vessels fishing in the U.S./Canada Management Area ranged from 161 to 184. Because the regulatory regime in FY 2008 will be similar to that in place in the past, and based on data from FY 2007, it is likely that the number of vessels that choose to fish in the U.S./Canada Management Area during FY 2008 will be similar to the past. The economic impacts of the proposed TACs are difficult to predict due to numerous factors that affect the amount of catch, as well as the price of the fish. In general, the rate at which cod is caught in the Eastern U.S./Canada Area, and the rate at which yellowtail flounder is caught in the Eastern and Western U.S./Canada Area, will determine the length of time the Eastern U.S./Canada Area will remain open. The length of time the Eastern U.S./Canada Area is open will determine the amount of haddock that is caught. During FYs 2004, 2005, and 2006, the TACs were not fully utilized, and inseason changes to the regulations impacted the fishery. The delayed opening of the Eastern U.S./Canada Area in FY 2008 for vessels fishing with trawl gear could result in an increase in total fishing opportunity, and increased revenues. The amount of GB cod, haddock, and yellowtail flounder landed and sold will not be equal to the sum of the TACs, but will be reduced as a result of discards (discards are counted against the hard TAC), and may be further reduced by limitations on access to stocks that may result from the associated rules. Reductions to the value of the fish may result from fishing derby behavior and the potential impact on markets. The overall economic impact of the proposed 2008 U.S./Canada TACs will also likely be more positive than the economic impacts of the 2007 TACs due to increased TACs for cod, haddock, and yellowtail flounder, that will likely result in increased revenue. For example, based on estimates in the EA, revenues from cod caught in the Eastern U.S./Canada Area could increase by approximately $786,000, and haddock revenue could increase by $1,069,000. Revenue associated with cod, haddock, and yellowtail flounder represented about 2 percent, 4 percent, and 10 percent, respectively, of the total revenue from trips to the U.S./Canada Management Area in FY 2006. Examples of other valuable species caught are winter flounder, witch flounder, and monkfish. If the larger FY 2008 GB cod TAC and the delayed opening of the Eastern U.S./Canada Area to trawl vessels result in a longer period of time that the Eastern U.S./Canada Area is open, and therefore maximizes the catch of the available TACs, it may result in additional revenue from all species. A downward adjustment to the TACs specified for FY 2008 could occur after the start of the fishing year, if it is determined that the U.S. catch of one or more of the shared stocks during the FY 2007 exceeded the relevant TACs specified for FY 2007. Based on information to date, it is possible that the catch of GB yellowtail flounder in FY 2007 may slightly exceed the FY 2007 TAC, due to discards, and an adjustment may be necessary. However, due to the increased size of all three TACs for the shared stocks for FY 2008, and the likelihood that any adjustment would be small, the economic effects of a downward TAC adjustment would be relatively small. Three alternatives were considered for FY 2008: The proposed TACs, the status quo TACs, and the no action alternative. No additional set of TACs are proposed because the process involving the TMGC and the Council yields only one proposed set of TACs. Accordingly, NMFS chooses to either accept or reject the recommendation of the Council. The proposed TACs would have a more positive economic impact than the status quo TACs. Adoption of the status quo TACs would not be consistent with the FMP because the status quo TACs are not based on the best available scientific information from the most recent TRAC. Although the no action alternative (no TACs) would not constrain catch in the U.S./Canada Management Area, and therefore would likely provide some additional fishing opportunity, the no action alternative is not a reasonable alternative because it is inconsistent with the FMP in both the short and long term, and result in the reduced probability in timely stock rebuilding. The FMP requires specification of hard TACs in order to limit catch of shared stocks to the appropriate level (i.e., consistent with the Understanding and the FMP). As such, the no action alternative would likely provide less economic benefits to the industry in the long term than the proposed alternative. The proposed TACs do not modify any collection of information, reporting, or recordkeeping requirements. The proposed TACs do not duplicate, overlap, or conflict with any other Federal rules. Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as a small entity compliance guide (the guide) was prepared. Copies of this final rule are available from the Northeast Regional Office, and the guide, i.e., permit holder letter, will be sent to all holders of limited access DAS permits for the NE multispecies fishery. The guide and this final rule will be posted on the NMFS NE Regional Office web site at http://www.nero.noaa.gov and will also be available upon request. Authority: 16 U.S.C. 1801 *et seq.* Dated: March 24, 2008. James W. Balsiger, Acting Assistant Administrator for Fisheries, National Marine Fisheries Service. [FR Doc. E8-6442 Filed 3-27-08; 8:45 am] BILLING CODE 3510-22-S 73 61 Friday, March 28, 2008 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0361; Directorate Identifier 2007-NM-279-AD] RIN 2120-AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model ERJ 170 and ERJ 190 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: A few hydraulic system tube clamps located inside the wing fuel tanks were found damaged. Further analysis has shown that damage to multiple clamps may cause sparks inside the tanks, which in turn may lead to ignition of flammable vapors inside the fuel tanks. 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: Kenny Kaulia, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2848; 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-2008-0361; Directorate Identifier 2007-NM-279-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 Agência Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil, has issued Brazilian Airworthiness Directives 2007-04-01R1 and 2007-04-02R1 (including Erratum, effective December 21, 2007), both effective December 21, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: A few hydraulic system tube clamps located inside the wing fuel tanks were found damaged. Further analysis has shown that damage to multiple clamps may cause sparks inside the tanks, which in turn may lead to ignition of flammable vapors inside the fuel tanks. Corrective action includes replacing tube attachment clamps having certain part numbers with new tube attachment clamps. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Embraer has issued Service Bulletins 170-29-0006 and 190-29-0003, both dated October 4, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 88 products of U.S. registry. We also estimate that it would take about 18 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 $269 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 about $150,392, or about $1,709 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: **Empresa Brasileira de Aeronautica S.A. (EMBRAER):** Docket No. FAA-2008-0361; Directorate Identifier 2007-NM-279-AD. Comments Due Date
(a)We must receive comments by April 28, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Embraer Model ERJ 170-100 LR, -100 STD, -100 SE, -100 SU, -200 LR, -200 STD, and -200 SU airplanes; as identified in Embraer Service Bulletin 170-29-0006, dated October 4, 2006; and Model ERJ 190-100 STD, -100 LR, -100 IGW, -200 STD, -200 LR, and -200 IGW airplanes; as identified in Embraer Service Bulletin 190-29-0003, dated October 4, 2006; certificated in any category. Subject
(d)Air Transport Association
(ATA)of America Code 29: Hydraulic Power. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: A few hydraulic system tube clamps located inside the wing fuel tanks were found damaged. Further analysis has shown that damage to multiple clamps may cause sparks inside the tanks, which in turn may lead to ignition of flammable vapors inside the fuel tanks. Corrective action includes replacing tube attachment clamps having certain part numbers with new tube attachment clamps. Actions and Compliance
(f)Within 8,000 flight hours after the effective date of this AD, unless already done, replace the clamps which attach the hydraulic tubes inside the wing fuel tanks with new clamps, as specified in paragraph (f)(1) or (f)(2) of this AD, as applicable; in accordance with the Accomplishment Instructions of Embraer Service Bulletin 170-29-0006 or 190-29-0003; both dated October 4, 2006; as applicable.
(1)For Model ERJ 170 airplanes: Replace any clamp having part number (P/N) PE27019RF4E with a new clamp having P/N PE27019FS4E; and any clamp having P/N PE27019RF8E with a new clamp having P/N PE27019FS8E.
(2)For Model ERJ 190 airplanes: Replace any clamp having P/N PE27019RF4E with a new clamp having P/N PE27019FS4E; and any clamp having P/N PE27019RF6E with a new clamp having P/N PE27019FS6E. FAA AD Differences Note 1: This AD differs from the MCAI and/or service information as follows. No differences. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Kenny Kaulia, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone
(425)227-2848; 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 Brazilian Airworthiness Directives 2007-04-01R1 and 2007-04-02R1 (including Erratum, effective December 21, 2007), both effective December 21, 2007; and Embraer Service Bulletins 170-29-0006 and 190-29-0003; both dated October 4, 2006; for related information. Issued in Renton, Washington, on March 3, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-6304 Filed 3-27-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0360; Directorate Identifier 2007-NM-368-AD] RIN 2120-AA64 Airworthiness Directives; Bombardier Model DHC-8-400 Series 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: Several production aircraft have been found with the elevator overload bungees installed in reverse orientation: i.e., larger end outboard rather than inboard. This bungee reversal does not impact normal operation of the elevator, and would not increase the probability of an elevator disconnect. However, if a bungee became disconnected at the inboard side, the corresponding side of the elevator may not center, and this could adversely affect the pitch control of the aircraft. Loss of elevator pitch control could result in reduced controllability of the airplane. 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: Fabio Buttitta, Aerospace Engineer, Systems and Flight Test Branch, ANE-172, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone
(516)228-7303; 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-2008-0360; Directorate Identifier 2007-NM-368-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-2007-30, dated November 28, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: Several production aircraft have been found with the elevator overload bungees installed in reverse orientation: i.e., larger end outboard rather than inboard. This bungee reversal does not impact normal operation of the elevator, and would not increase the probability of an elevator disconnect. However, if a bungee became disconnected at the inboard side, the corresponding side of the elevator may not center, and this could adversely affect the pitch control of the aircraft. Loss of elevator pitch control could result in reduced controllability of the airplane. Corrective action includes a visual inspection for correct installation of the elevator overload bungees, reinstallation if necessary, and installation of labels to the elevator overload bungees. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Bombardier has issued Service Bulletins 84-27-27, dated May 24, 2005; and 84-27-30, Revision `C' dated October 31, 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 38 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $36 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 $4,408, or $116 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 de Havilland, Inc.):** Docket No. FAA-2008-0360; Directorate Identifier 2007-NM-368-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 DHC-8-400, DHC-8-401, and DHC-8-402 airplanes; certificated in any category; having serial numbers 4003 and subsequent. Subject
(d)Air Transport Association
(ATA)of America Code 27: Flight controls. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: Several production aircraft have been found with the elevator overload bungees installed in reverse orientation: i.e., larger end outboard rather than inboard. This bungee reversal does not impact normal operation of the elevator, and would not increase the probability of an elevator disconnect. However, if a bungee became disconnected at the inboard side, the corresponding side of the elevator may not center, and this could adversely affect the pitch control of the aircraft. Loss of elevator pitch control could result in reduced controllability of the airplane. Corrective action includes a visual inspection for correct installation of the elevator overload bungees, reinstallation if necessary, and installation of labels to the elevator overload bungees. Actions and Compliance
(f)For airplanes having serial numbers 4003, 4004, 4006, and 4008 through 4159: unless already done, do the following actions.
(1)Within 5,000 flight hours after the effective date of this AD: Visually inspect both left and right elevator overload bungees, part number (P/N) FE289000000, to determine if they are correctly installed, in accordance with Bombardier Service Bulletin 84-27-30, Revision ‘C,' dated October 31, 2007. If any bungee is found installed incorrectly, remove the bungee and re-install it correctly before the next flight in accordance with the service bulletin.
(2)Within 5,000 flight hours after the effective date of this AD: Attach label, P/N FE289006200, to both left and right elevator overload bungees to show the correct orientation of the outboard end in accordance with Bombardier Service Bulletin 84-27-30, Revision ‘C,' dated October 31, 2007.
(3)Within 5,000 flight hours after the effective date of this AD: Re-identify the P/N to read “FE289000001” on the identification plate of both the left and right elevator overload bungees in accordance with Bombardier Service Bulletin 84-27-30, Revision ‘C,' dated October 31, 2007.
(4)Actions accomplished before the effective date of this AD in accordance with Bombardier Service Bulletin 84-27-27, dated May 24, 2005, are acceptable for compliance with the corresponding actions specified in paragraphs (f)(1), (f)(2), and (f)(3) of this AD.
(5)Actions accomplished before the effective date of this AD in accordance with Bombardier Service Bulletin 84-27-30, dated February 8, 2007; Revision ‘A,' dated March 2, 2007; or Revision ‘B,' dated May 3, 2007; are acceptable for compliance with the corresponding actions specified in this AD. Note 1: Paragraphs (f)(2) and (f)(3) of this AD constitute Modsum 4-113537.
(g)For all airplanes: As of the effective date of this AD, no replacement/spare elevator overload bungees, P/N FE289000000, are permitted to be installed on any airplane. Only elevator overload bungees identified with new P/N “FE289000001” on the identification plate are permitted to be installed. FAA AD Differences **Note 2:** This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(h)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: Fabio Buttitta, Aerospace Engineer, Systems and Flight Test Branch, ANE-172, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone
(516)228-7303; 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.
(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
(i)Refer to MCAI Canadian Airworthiness Directive CF-2007-30, dated November 28, 2007; and Bombardier Service Bulletin 84-27-30, Revision ‘C,' dated October 31, 2007; for related information. Issued in Renton, Washington, on March 20, 2008. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-6300 Filed 3-27-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2007-0293; Airspace Docket No. 07-ANM-18] Proposed Establishment of Class E Airspace; Salida, CO AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking. SUMMARY: This action proposes to establish Class E airspace at Salida, CO. Additional controlled airspace is necessary to accommodate aircraft using a new Area Navigation
(RNAV)Global Positioning System
(GPS)Standard Instrument Approach Procedure
(SIAP)at Harriet Alexander Field. The FAA is proposing this action to enhance the safety and management of IFR (Instrument Flight Rules) operations at Harriet Alexander Field, Salida, CO. DATES: Comments must be received on or before May 12, 2008. ADDRESSES: Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. Telephone
(202)366-9826. You must identify FAA Docket No. FAA-2007-0293; Airspace Docket No. 07-ANM-18, at the beginning of your comments. You may also submit comments through the Internet at *http://www.regulations.gov* . FOR FURTHER INFORMATION CONTACT: Eldon Taylor, Federal Aviation Administration, System Support Group, Western Service Area, 1601 Lind Avenue, SW., Renton, WA 98057; telephone
(425)203-4537. SUPPLEMENTARY INFORMATION: Comments Invited Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers (FAA Docket No. FAA 2007-0293 and Airspace Docket No. 07-ANM-18) and be submitted in triplicate to the Docket Management System (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at *http://www.regulations.gov* . Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2007-0293 and Airspace Docket No. 07-ANM-18”. The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket. Availability of NPRMs An electronic copy of this document may be downloaded through the Internet at *http://www.regulations.gov* . Recently published rulemaking documents can also be accessed through the FAA's Web page at *http://www.faa.gov* or the Federal Register's Web page at *http://www.gpoaccess.gov/fr/index.html* . You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Area, System Support Group, 1601 Lind Avenue, SW., Renton, WA 98057. Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking,
(202)267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure. The Proposal The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace at Salida, CO. Controlled airspace extending upward from 700 feet above the surface is necessary to accommodate aircraft using the new RNAV
(GPS)SIAP at Harriet Alexander Field. This action would enhance the safety and management of IFR operations at Harriet Alexander Field, Salida, CO. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9R, signed August 15, 2007, and effective September 15, 2007, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in this Order. The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation;
(1)is not a “significant regulatory action” under Executive Order 12866;
(2)is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and
(3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority for the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Harriet Alexander Field, Salida, CO. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). The Proposed Amendment Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. § 71.1 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of the FAA Order 7400.9R, Airspace Designations and Reporting Points, signed August 15, 2007, and effective September 15, 2007 is amended as follows: Paragraph 6005 Class E airspace areas extending upward from 700 feet or more above the surface of the earth. ANM CO E5 Salida, CO [New] Harriet Alexander Field, CO (Lat. 38°32′18″ N., long. 106°02′55″ W.) That airspace extending upward from 700 feet above the surface within a 9.5-mile radius of Harriet Alexander Field. Issued in Seattle, Washington, on March 17, 2008. Kevin Nolan, Acting Manager, System Support Group, Western Service Area. [FR Doc. E8-6317 Filed 3-27-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR Part 922 [Docket No. 080311420-8412-01] RIN 0648-AT17 Revisions to Channel Islands National Marine Sanctuary Regulations AGENCY: National Marine Sanctuary Program (NMSP), 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 a proposed rule (71 FR 29096, May 19, 2006) to adopt a revised set of regulations for the Channel Islands National Marine Sanctuary (CINMS or Sanctuary). This currently pending proposed rule includes both new regulations and changes to existing regulations, including the discharge prohibition. After reviewing public comments, considering the California Coastal Commission's federal consistency review (per the Coastal Zone Management Act, 16 U.S.C. 1451 *et seq.* ), and further analyzing vessel discharge issues, NOAA has decided to revise the Sanctuary's proposed discharge regulation to:
(1)Limit the exception for treated sewage discharges to vessels less than 300 gross registered tons (GRT);
(2)limit the exception for graywater discharges to vessels less than 300 GRT, and oceangoing ships without sufficient holding tank capacity to hold graywater while within the Sanctuary; and
(3)provide definitions for “oceangoing ship,” “graywater,” and “cruise ship”. DATES: Comments will be considered if received by May 30, 2008. ADDRESSES: Copies of the Supplemental Draft Environmental Impact Statement (SDEIS) and this supplemental proposed rule are available at Channel Islands National Marine Sanctuary, 113 Harbor Way, Suite 150, Santa Barbara, California and on the web at *http://www.channelislands.noaa.gov.* Comments on the SDEIS and this supplemental proposed rule, identified by RIN 0648-AT17, may be submitted by any of the following methods: • *Federal e-Rulemaking Portal* : *http://www.regulations.gov.* Follow the instructions for submitting comments for docket NOAA-NOS-2007-0846. • *E-mail:* *cinms.mgtplan@noaa.gov.* • *Fax:*
(805)568-1582. • *Mail:* Chris Mobley, Superintendent, Channel Islands National Marine Sanctuary, 113 Harbor Way, Suite 150, Santa Barbara, California 93109. • *Hand Delivery/Courier:* Channel Islands National Marine Sanctuary, 113 Harbor Way, Suite 150, Santa Barbara, California 93109. FOR FURTHER INFORMATION CONTACT: Michael Murray, Sanctuary Management Plan Coordinator, at
(805)884-1464 or *michael.murray@noaa.gov.* SUPPLEMENTARY INFORMATION: Introduction Pursuant to section 304(e) of the National Marine Sanctuaries Act (NMSA, 16 U.S.C. 1434(e)), NOAA conducted a review of the management plan and regulations for CINMS, which is located off the coast of southern California. The review resulted in a proposed new CINMS management plan, some proposed changes to existing CINMS regulations, some proposed new CINMS regulations, and some proposed changes to the CINMS terms of designation. “Discharge and deposit” was one of the existing CINMS regulations subject to proposed changes. The May 2006 proposed rule clarified that: • The discharge regulation's exception for discharges from marine sanitation devices is only applicable to discharges from Type I and Type II marine sanitation devices; and • The discharge regulation's exception for water (including cooling water) and other biodegradable effluents incidental to vessel use of the Sanctuary includes graywater as defined by section 312 of the Federal Water Pollution Control Act (Clean Water Act or CWA). The Draft Environmental Impact Statement
(DEIS)for the currently pending proposed rule included three alternatives consisting of NOAA's proposed action, alternative “1,” and a no-action alternative. With regard to vessel discharges, NOAA's proposed action would clarify that a type I or II marine sanitation device
(MSD)is required of all vessels for discharge of treated sewage within the Sanctuary, and proposes that graywater discharge from all vessels be excepted from the discharge prohibition. DEIS alternative 1 also proposes a graywater exception from the prohibition for all vessels, but would prohibit discharge into the Sanctuary of treated or untreated sewage from large vessels (300 gross registered tons or more). The DEIS no-action alternative would retain the status quo regulation on discharge, which is ambiguous with regard to graywater and imprecise with regard to the type of MSD required for vessel sewage discharge within the Sanctuary. After receiving comments on the DEIS and proposed rule, NOAA determined that this range of alternatives needed to be modified to better address potential impacts of sewage and graywater discharges from large vessels (300 GRT or greater). Thus, the SDEIS modifies the range of regulatory changes under consideration and discusses the potential environmental consequences of a revised discharge regulation. The revisions set forth in this supplemental proposed rule are now incorporated into the original proposed action and constitute NOAA's “revised proposed action.” NOAA is not taking final action with the SDEIS and this supplemental proposed rule, but rather is analyzing and putting forth for public review and comment a revision to its discharge regulation proposed in the DEIS and the proposed rule (71 FR 29096). Final CINMS regulations will be issued after NOAA has released the Final Management Plan/Final EIS. Background NOAA released the Draft Management Plan (DMP)/DEIS and published the proposed rule on May 19, 2006. Comments were accepted through July 21, 2006. During the public review period NOAA received a wide range of comments, including substantial public and agency comments about changes proposed for Sanctuary regulation of sewage and graywater discharges from large vessels. (Herein “large vessel” refers to a vessel 300 GRT or more). Comments included a request that NOAA adopt the discharge regulation under alternative “1,” which would prohibit any sewage discharges from large vessels, whether treated or untreated. Comments also included a request that NOAA prohibit cruise ship discharges in Sanctuary waters. In addition, there were suggestions that NOAA implement recommendations contained in the water quality needs assessment developed by a working group of the Sanctuary Advisory Council (Polgar *et al.* 2005; available online at *http://www.channelislands.noaa.gov/sac/pdf/10-17-5.pdf* ), which provides a comprehensive evaluation of water quality threats and provides a broad range of management advice. This assessment includes a recommendation that NOAA prohibit cruise ship discharges in Sanctuary waters. 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), which prohibits graywater discharges from vessels 300 GRT or more within state waters. The comments received on this issue were submitted by the Channel Islands National Park, three state agencies (California Resources Agency, State Water Resources Control Board, and California Coastal Commission), three non-governmental organizations (Bluewater Network, Environmental Defense Center, and Santa Barbara Channelkeeper), and the Sanctuary Advisory Council and its Conservation Working Group. The types of comments described above were the only types of comments received on the issues of graywater and sewage discharge from large vessels. In May 2006 NOAA submitted its Coastal Zone Management Act consistency determination to the California Coastal Commission (Commission), in compliance with federal consistency regulations (15 CFR part 930). In July 2006 the Commission conditionally concurred with NOAA's determination that the proposed revised Sanctuary management plan and regulations are consistent to the maximum extent practicable with the enforceable policies of the California Coastal Management Program. The Commission voted to concur with the consistency determination on the condition that NOAA revise the proposed discharge and deposit regulation to prohibit vessels of 300 GRT or more from discharging sewage or graywater into the waters of the Sanctuary. Also, the California State Water Resources Control Board requested that NOAA prohibit graywater and sewage discharges, among others, from cruise ships and other oceangoing vessels in California national marine sanctuaries. After reviewing the comments received, considering the Coastal Commission's action, and further analyzing the vessel discharge issues raised, NOAA decided to revise the Sanctuary's proposed discharge regulation. The revised proposed discharge regulation would:
(1)Limit the exception for treated sewage discharges to vessels less than 300 GRT;
(2)limit the exception for graywater discharges to vessels less than 300 GRT, and oceangoing ships without sufficient holding tank capacity to hold graywater while within the Sanctuary; and
(3)propose definitions for “oceangoing ship,” “graywater,” and “cruise ship” (see next paragraph). These new definitions would, through their operation, result in the prohibition of discharge of graywater from cruise ships. The graywater discharge exception for oceangoing ships that do not have sufficient holding tank capacity to hold graywater while within the Sanctuary is proposed because many oceangoing ships were designed without the ability to retain graywater, particularly those constructed prior to the early 1990s (personal communication, S. Young, U.S. Coast Guard). While many of these older ships, particularly those calling on U.S. ports, have since been modified to allow graywater retention, some must still discharge graywater directly as it is produced (personal communication, S. Young, U.S. Coast Guard). The proposed definition of “oceangoing ship” would read as follows: “Oceangoing ship means a private, commercial, government, or military vessel of 300 gross registered tons or more, not including cruise ships.” The proposed definition of “graywater” would read as follows: “Graywater means galley, bath, or shower water.” Section 312 of the CWA, as amended (33 U.S.C. 1321 *et seq.* ), is the basis for NOAA's definition of graywater. Other discharges, such as those from laundry facilities, are not included in this definition of graywater. The proposed definition of “cruise ship” would read as follows: “Cruise ship means a vessel with 250 or more passenger berths for hire.” These three definitions would be added to the other CINMS terms proposed to be defined at 15 CFR 922.71 in the currently pending proposed rule. NOAA is not proposing to define “sewage” in the CINMS regulations because the regulations do not use this term; however, herein sewage, also referred to as “blackwater,” means human body wastes and the wastes from toilets and other receptacles intended to receive or retain body wastes. The primary purpose of this revised regulation is to prevent potentially harmful effects of large-vessel sewage and graywater discharges on Sanctuary resources and qualities. To meet this purpose, the revised proposed regulation seeks to maximize protection of Sanctuary water quality from large-vessel sewage and graywater discharges. Furthermore, NOAA seeks to maintain the Sanctuary's nationally significant esthetic and recreational qualities, and to manage activities affecting the Sanctuary in a manner that complements existing regulatory authorities, as envisioned by the NMSA. The California Clean Coast Act prohibits graywater discharges into marine waters of the state from large passenger vessels and oceangoing ships with sufficient holding tank capacity. This act is also intended to prohibit releases of sewage and sewage sludge into marine waters of the state (including state waters within a national marine sanctuary) from both large passenger vessels and oceangoing ships with sufficient holding tank capacity. This revised proposed action would make the Sanctuary regulations consistent with the standards of the California Clean Coast Act. The proposed 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 and the exception for biodegradable matter including graywater. Proposed revisions would result in substantive changes regarding sewage and graywater, and would also result in minor, non-substantive changes in wording and organization regarding deck wash down and vessel engine cooling water. In this supplemental proposed rule, NOAA is not proposing to revise any other section of the DEIS proposed action or currently pending proposed rule, including other clauses of the discharge prohibition. As noted above, NOAA will publish the final CINMS regulations after reviewing all comments on the currently pending proposed rule and this supplemental proposed rule. Sanctuary Environment The Channel Islands area is a national treasure with a rich cultural history and unique environment. The Sanctuary's cultural values stem largely from its rich array of maritime heritage resources (e.g., shipwrecks, aircraft wrecks, material associated with wharves, piers and landings, prehistoric archaeological sites and their associated artifacts, and paleontological remains). The Sanctuary also contains a wealth of Chumash Native American artifacts dating back 13,000 years. (The oldest human remains yet discovered in North America were found on Santa Rosa Island.) Adjacent to the Channel Islands land mass is located a spectacular, unique, nationally significant marine environment, including kelp forests, surfgrass and eelgrass beds, intertidal, nearshore subtidal, deep-water benthic, and pelagic habitats. This marine environment supports rich biological communities possessing extensive conservation, recreational, commercial, ecological, historical, research, educational, and esthetic values. Two bioregions come together in and around the Sanctuary resulting in a unique and highly diverse array of marine life. Hundreds of species of plants and fish, thousands of invertebrate species, more than 27 species of cetaceans (whales and dolphins), five species of pinnipeds (seals and sea lions), four sea turtle species, and more than 60 species of birds may be found in the Sanctuary. Included among these are several endangered species, including blue, humpback and sei whales, southern sea otters, white abalone, leatherback sea turtles, California brown pelicans, and California least terns. The ecological and cultural values of the Channel Islands and surrounding waters are recognized by several special designations. In 1980, the United States not only designated the Sanctuary, but also designated Anacapa, San Miguel, Santa Barbara, Santa Cruz, and Santa Rosa islands (and the rocks, islets, submerged lands, and waters within one nautical mile of each island) as the Channel Islands National Park. In addition, the United Nations Educational, Scientific and Cultural Organization's (UNESCO) Man and the Biosphere Program designated the Sanctuary as a Biosphere Reserve in 1986. In 1991, in recognition of the need to protect Sanctuary resources and qualities from the potential damage from ship traffic, the International Maritime Organization designated an area to be avoided, or ATBA, around the Sanctuary for all cargo vessels, including tankers, bulk carriers, and barges, in order to avoid pollution risks within the CINMS. The State of California recognizes portions of the state waters surrounding the Channel Islands as “Areas of Special Biological Significance/State Water Quality Protection Areas.” The uniqueness of the Sanctuary region and its proximity to several major ports and harbors along the mainland coast make it a popular destination for numerous recreational and commercial activities. Sportfishing, diving, snorkeling, whale watching, pleasure boating, kayaking, surfing, and sightseeing are all popular pastimes within the Sanctuary, which is often referred to as “the Galapagos of North America.” Other human uses that occur adjacent to and in the Sanctuary are oil and gas activities, shipping, Departments of Defense and Homeland Security activities, scientific research, and education. Vessel Traffic and Discharges The Santa Barbara Channel, in which part of the Sanctuary is located, is also a major thoroughfare for oceangoing ships traveling between domestic and international ports along the Pacific coast of North America, and for large vessels traveling between ports in North America and Asia. Vessels calling at California ports identify the following last ports of call prior to arriving in California: Nearly 40 percent identify a Far Eastern port such as Japan, China, or Korea; 20 percent identify a North American port such as Canada or Mexico; and 13 percent identify a South American port (California State Lands Commission 2001). The Sanctuary is located about 70 miles northwest of the Port of Los Angeles/Long Beach (LA/Long Beach), which is the busiest container port in North America. The containerized trade at LA/Long Beach grew 150 percent from 1990 to 2002 (Port of Long Beach 2003), and the Santa Barbara Channel is a main thoroughfare for this trade. Approximately 75 percent of the departing vessel traffic from LA/Long Beach leaves northbound and 65 percent of arriving vessel traffic comes southbound, passing through the Santa Barbara Channel. While transiting the Santa Barbara Channel large vessel traffic is encouraged to use the Santa Barbara Channel Traffic Separation Scheme (TSS), both lanes of which traverse a small portion (approximately 4%) of the Sanctuary. The Santa Barbara Channel TSS is described at 33 CFR 167.450-167.452, and includes northwest and southeast-bound lanes, with a separation zone between the lanes. The distance through Sanctuary waters that vessels transit when in the northwest-bound lane is approximately 18 nmi, while in the southeast-bound lane it is approximately 37 nmi. The average container ship that travels at 25 knots would spend less than one hour in Sanctuary waters when using the northwest-bound lane, and approximately one-and-a-half hours when using the southeast-bound lane. For the year 2006, an estimated 6,980 vessels (including container ships and other large vessels) going to or coming from the ports of LA/Long Beach transited the Santa Barbara Channel and CINMS, with approximately 3,500 inbound to LA/Long Beach and 3,480 outbound (McKenna 2007). These “transit” numbers include multiple trips by the same vessel. The expansion of the global economy has resulted in a substantial increase in oceangoing ship traffic in the Santa Barbara Channel, and consequently in the Sanctuary. The average growth rate in container traffic at the Port of LA/Long Beach was 9.9% per year over the years 1990-2003. According to the Port of Long Beach Master Plan, the Los Angeles Port Authority plans to expand capacity of the harbor, which will increase both the number and size of the vessels that use the Santa Barbara Channel (Port of Long Beach 2003). The Los Angeles Port Authority plans to increase capacity by 100 percent by the year 2020. During the same time frame the size of the commercial vessels that use the Santa Barbara Channel is expected to increase with the 4,000 to 4,999 twenty-foot equivalent units (TEU; a measure of containerized cargo capacity equal to one standard 20 ft long x 8 ft wide x 8 ft 6 in high container) class, currently the most common size class, being supplemented by vessels as large as 10,000 to 12,000 TEU that are currently under construction (Mercator Transport Group 2005). The bulk of these larger vessels are expected to make their first port call at the Port of LA/Long Beach. This is because the Port of Oakland, the other large vessel port in California, will not be able to accommodate them due to the shallowness of San Francisco Bay. The expected tonnage carried by commercial vessels is also expected to increase from 75 million tons in 1980 to 202 million tons by the year 2020 (Temple et al. 1988; USACE 1984). With anticipated high import growth and expansion of the Panama Canal, the Port of LA/Long Beach forecasts that port calls by container vessels in 2020 could be nearly double that experienced in 2004, going from 3,224 to 6,292 (Mercator Transport Group 2005). Port Hueneme, the deep-water international port closest to the Sanctuary, also generates vessel traffic. In 2006, 410 cargo vessels, typically carrying automobiles or bananas, docked at Port Hueneme (Oxnard Harbor District 2007). Approximately 158 supply vessel trips are made each year to regional oil and gas facilities (Oxnard Harbor District 2002). NOAA's assessment of data collected by California in 2006, pursuant to California Senate Bill 771, indicates that on average oceangoing ships typically have crews of approximately twenty people, but may range from five to fifty people. Oceangoing ships are not passenger carrying vessels so crew sizes may be used to represent the total number of people on board. Based on the significantly lower number of people on board oceangoing ships compared with cruise ships, oceangoing ships are not likely to generate the large volume of sewage and graywater generated by cruise ships. At this time, cruise ships occasionally transit through the waters of the Sanctuary using the TSS, but are not known to stop in the Sanctuary. The Sanctuary Aerial Monitoring and Spatial Analysis Program (SAMSAP) surveys (which are not conducted at night, in foul weather, or when a pilot or aircraft is not available) have observed only two cruise ships since such flights began in 1997, and those two vessels were traveling within the TSS. These observations demonstrate that cruise ships do use the TSS, but may not be representative of the total number of cruise ships using the TSS because of the limitations on flight time. Direct observation by staff with the Channel Islands National Park indicates that more than 12 years ago cruise ship operation within the Sanctuary (and outside the TSS) did occasionally take place (Channel Islands National Park 2006, personal communication with J. Fitzgerald), but such operation has not been noted since. Thus, while cruise ships have stopped in the Sanctuary in the past (and the cruise line industry could do so again in the future), they are not presently known to stop in the Sanctuary. Given that cruise ships travel at between 15 to 20 knots, they should only be in Sanctuary waters for approximately one hour when transiting north in the TSS, and approximately two to two-and-a-half hours when transiting south in the TSS. Cruise ships occasionally visit the City of Santa Barbara while transiting between destinations to the north and south of the city and in doing so are likely to spend time in the Santa Barbara Channel TSS. Between 2002 and May 7, 2007 Santa Barbara received eight cruise ship visits from six different cruise ships (Santa Barbara Waterfront Department 2007, personal communication with B. Slagle). According to data that these ships provided to the City's Waterfront Department, they ranged in size from 16,927 to 116,000 GRT, and carried between 296 and 3,700 people (“total passenger/crew”) on board. According to the Cruise Line Industry Association, Inc. (CLIA), the cruise industry is the fastest growing segment of the travel industry, with 2,100% growth since 1970 (CLIA 2007), and an average annual passenger growth rate of 8.2% per year since 1980 (CLIA 2006b). By the end of 2007 about 100 new cruise ships will have been introduced since 2000 (CLIA 2007). The worldwide cruise ship fleet includes more than 230 ships, with vessel capacities of 3,000 passengers and crew not uncommon (U.S. EPA 2006a). A consistent increase in the size of cruise ships has occurred over the past three decades. The largest vessel currently in service is Royal Caribbean's Freedom of the Seas (3,634 passengers). However, the same cruise line has ordered two 5,400 passenger-capacity cruise ships as part of its “Genesis Project,” with vessel deliveries expected in 2009 and 2010 (Royal Caribbean Cruises 2007). Although most of the largest vessels are destined for operation in the Caribbean, the general trend in the industry is toward increased vessel size. The cruise industry is building its capacity based on its growth potential and untapped markets (CLIA 2007). This overall growth trend in the industry could yield increased cruise ship traffic through the Santa Barbara Channel, and consequently the Sanctuary. Cruise ships can produce and discharge extensive sewage wastes on par with some small cities, yet they are not subject to the same environmental regulations and monitoring requirements that land based facilities are required to comply with, such as obtaining discharge permits, meeting numerous permit conditions, and monitoring effluent discharges (NOAA 2003c). Estimates of blackwater production from large cruise ships range from a low of 5-7 gallons per person per day to a high of 17 gallons per person per day (EPA 2006c, d, e, f). The volume of treated blackwater generated and discharged varies considerably from ship to ship and region to region. Much of the variation depends on the treatment process. A typical 7-10 day cruise ship voyage produces more than one million gallons of graywater, making it by far the largest source of liquid waste on a cruise ship (Sweeting and Wayne 2003). The average large cruise ship with 2,500 passengers and crew onboard produces 211,200 gallons of wastewater per day, and 90-95% of this wastewater is graywater (Alaska Department of Environmental Conservation 2004a). The average small cruise ship with 100 passengers and crew onboard produces 2,500 gallons of wastewater per day (Alaska Department of Environmental Conservation 2004a). Some vessels mix graywater with blackwater where it gets treated in the blackwater treatment system or advanced treatment system. If graywater is retained in an MSD and, consequently, mixed with any sewage, it is considered blackwater. Summary of the Proposed Revised Regulatory Amendments Regulation of Vessel Sewage The revised regulation would amend the exception to the prohibition on discharging or depositing sewage from within or into the Sanctuary. The revised exception would apply exclusively to small vessels (less than 300 GRT) that generate sewage effluent treated by an operable Type I or II marine sanitation device. Consequently, large vessels would not be allowed to discharge sewage whether treated or untreated. The revised regulation would address NOAA's concerns about possible impacts from large volumes of sewage discharges in the Sanctuary, whether treated or not, from large vessels (such as cruise ships). Vessel sewage discharges are more concentrated than domestic land-based sewage. They may introduce disease-causing microorganisms (pathogens), such as bacteria, protozoans, and viruses, into the marine environment (EPA 2007). They may also 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 (diminishing Sanctuary resources and its ecological, conservation, esthetic, recreational and other qualities). The revised regulation would also address additional concerns NOAA has about failure of conventional MSDs on large vessels to adequately treat sewage waste streams, and lack of monitoring of those waste streams. Type II MSDs, used in approximately 75% of the large oceangoing vessels that called on California ports in 2006, have been found to generate waste streams that exceed federal standards (40 CFR part 140). While these devices are designed to lower fecal coliform bacteria counts and reduce total suspended solids, studies in Alaska of cruise ship waste water 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. Consequently, NOAA has determined that it is appropriate to require large vessels to hold both treated and untreated sewage while within the Sanctuary. At this time, NOAA is less concerned with treated sewage discharges from small vessels (less than 300 GRT). Although the exception for treated sewage discharge from Type I or II MSDs would be applicable to small vessels, most small vessels in the Sanctuary do not have Type I or II MSDs and as such remain prohibited from discharging their sewage in the Sanctuary. The U.S. Coast Guard's Marine Safety Detachment office in Santa Barbara has informed NOAA that most small vessels operating in the Sanctuary have Type III MSDs, discharges from which are prohibited throughout the Sanctuary, or no MSD at all. Additionally, single point sewage discharges from the few small vessels that have Type I or II MSDs are far less in quantity than those from cruise ships, thus discharging fewer nutrients, bacteria, and potential pathogens. Regulation of Vessel Graywater The revised regulation would amend the exception to the prohibition on discharging graywater from within or into the Sanctuary. The revised regulation would provide that the exception for graywater is only applicable to small vessels (less than 300 GRT), and to oceangoing ships without sufficient holding tank capacity to hold graywater while within the Sanctuary. Accordingly, the revised regulation would in effect prohibit the discharge of graywater by, for example, cruise ships when operating in the Sanctuary. Per this supplemental proposed rule, the proposed CINMS definition of “graywater” to be added to the National Marine Sanctuary Program regulations at 15 CFR part 922.71 would read as follows: “Graywater means galley, bath, or shower water.” Other discharges, such as those from laundry facilities, are not included in this definition, which is based on section 312 of the CWA. NOAA's May 2006 proposed rule (71 FR 29096) referred to the definition of graywater codified by the CWA; however, NOAA is proposing to provide the definition of graywater in the CINMS regulations so that Sanctuary users do not have to refer to the CWA for this definition. The revised regulation would address NOAA's concerns about the potential impacts of graywater discharges from large vessels in the Sanctuary. 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). Unlike cruise ships, many oceangoing ships were designed without the ability to retain graywater, particularly those constructed prior to the early 1990s (personal communication, S. Young, U.S. Coast Guard). While many of these older ships, particularly those calling on U.S. ports, have since been modified to allow graywater retention, some must still discharge graywater directly as it is produced (personal communication, S. Young, U.S. Coast Guard). Consequently, given that many older vessels are still in operation, NOAA proposes an exception for graywater discharge from oceangoing ships without sufficient holding tank capacity to retain graywater while in the Sanctuary. The California State Water Resources Control Board staff's preliminary review of 2006 survey data found that approximately 20% of oceangoing ships have sufficient holding tank capacity to hold graywater while within marine waters of the state (State Water Resources Control Board 2006, personal communication with R. Jauregui). This represents the best available data, and as such indicates that it is possible that the exception could apply to 80% of the oceangoing ships transiting the Sanctuary. However, given that the holding tank requirements for retaining graywater within all state marine waters are much greater than that which would be required for transiting the Sanctuary, NOAA believes the number of oceangoing vessels that would not have sufficient holding tank capacity to retain graywater within the Sanctuary would be much less than the possible 80% figure derived from state-collected data. Furthermore, the quantity of graywater generated by oceangoing ships, which typically have an average crew size of approximately twenty people, but may range from five to fifty people, is far less than the volume of graywater generated by cruise ships. As a general rule, large cruise ships generate 180 liters (50 gallons) of graywater per person per day. The average large cruise ship with 2,500 passengers and crew onboard produces 211,200 gallons of wastewater per day, and 90-95% of this wastewater is graywater (Alaska Department of Environmental Conservation 2004a). The average small cruise ship with 100 passengers and crew onboard produces 2,500 gallons of wastewater per day (Alaska Department of Environmental Conservation 2004a). Due to the much lower number of people on board oceangoing ships (as noted above, on average oceangoing ships carry crews of approximately twenty people, but may range from five to fifty people), graywater from oceangoing ships is not expected to contain the larger volume of possible harmful chemicals that can be found in cruise ship graywater (NOAA 2003c). To summarize, the revised proposed discharge regulation would in effect prohibit the following discharges from within or into the Sanctuary:
(1)Sewage from vessels 300 GRT or more, including cruise ships and oceangoing ships;
(2)graywater from cruise ships; and
(3)graywater from oceangoing ships with sufficient holding tank capacity to hold graywater while within the Sanctuary. For consistency purposes, NOAA is proposing to adopt, in part, the existing California Clean Coast Act definition of “oceangoing ship” (California Public Resources Code sec. 72410(j)). The proposed CINMS definition of “oceangoing ship” to be added to the National Marine Sanctuary Program regulations at 15 CFR part 922.71 would read as follows: “Oceangoing ship means a private, commercial, government, or military vessel of 300 gross registered tons or more, not including cruise ships.” The California Clean Coast Act definition is the same with one additional phrase at the end: “Calling on California ports or places.” The Sanctuary definition excludes this phrase since ships of this general description may traverse the Santa Barbara Channel TSS, and thereby the Sanctuary, without stopping in California ports or places. Also for consistency, NOAA is proposing application of the proposed Monterey Bay National Marine Sanctuary definition of “cruise ship” (71 FR 59050-59066). Therefore, the proposed CINMS definition of “cruise ship” to be added to the National Marine Sanctuary Program regulations at 15 CFR 922.71 would read as follows: “Cruise ship means a vessel with 250 or more passenger berths for hire.” Summary of Anticipated Impacts of This Rule Revisions to the treated sewage discharge exception are expected to have beneficial impacts on the Sanctuary's physical, biological, and recreational resources. In addition, prohibiting large volumes of sewage (treated and untreated) from being discharged in the Sanctuary may have beneficial esthetic impacts on certain Sanctuary users. For example, boating, paddle sports, fishing, and diving may benefit from not encountering large volume sewage wastewater plumes in the Sanctuary. The proposed revision to the treated sewage discharge exception is expected to create less than significant adverse socioeconomic impacts to operators of large vessels. Large vessels using the shipping lanes within the Santa Barbara Channel would only be required to hold sewage on board for a distance of 18 nmi (less than an hour at 25 knots) when transiting northwest across the CINMS, and for 37 nmi (approximately an hour and a half at 25 knots) when traveling southeast. Additionally, a portion of the southeast-bound shipping lane that transits through the Sanctuary also passes through state waters, where large vessel sewage discharge is already prohibited pursuant to the California Clean Coast Act. Revisions to the graywater discharge exception are expected to have cumulative beneficial impacts on the Sanctuary's physical, biological, and recreational resources. In addition, prohibiting large volumes of graywater from being discharged in the Sanctuary may have beneficial esthetic impacts on certain Sanctuary users. For example, boating, paddle sports, fishing, and diving may benefit from not encountering large volume graywater discharges in the Sanctuary. The proposed revision to the graywater discharge exception is expected to create less than significant adverse socioeconomic impacts on operators of large vessels. Potential socioeconomic impacts to large vessel operators are reduced given
(1)the limited time these vessels spend in the Sanctuary, and
(2)the proposed exception to the graywater discharge prohibition for oceangoing ships that do not have sufficient holding tank capacity to hold graywater while within the Sanctuary. An analysis of environmental consequences of the regulatory changes proposed in this rule is provided in the associated SDEIS. For information on how to obtain a copy of the SDEIS please see the ADDRESSES section of this proposed rule. Miscellaneous Rulemaking Requirements National Environmental Policy Act NOAA has prepared a SDEIS to evaluate the proposed revisions to the discharge/deposit regulation analyzed in the DEIS. Copies of the SDEIS are available at the address and Web site listed in the ADDRESSES section of this proposed rule. Responses to comments received on the SDEIS will be published in the Final Management Plan (FMP)/FEIS and preamble to the final rule. Coastal Zone Management Act Based upon discussions with staff for the California Coastal Commission, NOAA believes this proposed action meets the conditional concurrence issued by the Commission on July 18, 2006. NOAA will continue to consult with the Commission to ensure full compliance with all applicable requirements of the Coastal Zone Management Act. Executive Order 12866: Regulatory Impact This proposed rule has been determined to be not significant within the meaning of Executive Order 12866. Executive Order 12612: Federalism Assessment NOAA has concluded that this regulatory action does not have federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 12612. Sanctuary staff have consulted with members of the Sanctuary Advisory Council, California Coastal Commission staff, and California State Water Resources Control Board staff during the development of the revised proposed discharge regulation. 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 that 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: Small business concerns operating within the Sanctuary include over 500 commercial fishermen, approximately 28 consumptive recreational charter businesses, approximately 27 non-consumptive recreational charter businesses, one motorized personal watercraft business, approximately 20 marine salvage companies, and one aviation business. The approximately 40 small organizations operating within the Sanctuary include non-governmental organizations (NGO's) and/or non-profit organizations (NPO's) dedicated to environmental education, research, restoration, and conservation concerning marine and maritime heritage resources. There are no small governmental jurisdictions in the Sanctuary. Limiting the sewage discharge exception to vessels less than 300 GRT would not have a significant adverse impact on small entities. No small entities operate vessels 300 GRT or more within the Sanctuary, including cruise ships and oceangoing ships. The graywater discharge exception for vessels less than 300 GRT, and oceangoing ships 300 GRT or more without sufficient holding tank capacity to hold graywater while within the Sanctuary would not have a significant adverse impact on small entities. No small entities operate vessels 300 GRT or more within the Sanctuary, including cruise ships and oceangoing ships. Because this action would not have a significant economic impact on a substantial number of small entities, no initial regulatory flexibility analysis was prepared. Request for Comments NOAA is requesting comments on the amendments concerning vessel discharges of sewage and graywater made by this proposed rule to its May 2006 currently pending proposed rule (71 FR 29096). List of Subjects in 15 CFR Part 922 Administrative practice and procedure, Coastal zone, Historic preservation, Intergovernmental relations, Marine resources, Natural resources, Penalties, Recreation and recreation areas, Reporting and recordkeeping requirements, Wildlife. (Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary Program) References A complete list of all references cited herein is available upon request (see ADDRESSES section). Dated: March 21, 2008. Steve Kozak, Chief of Staff for Ocean Services and Coastal Zone Management. Accordingly, for the reasons set forth above, the proposed rule published at 71 FR 29096, May 19, 2006, is proposed to be further amended as follows: PART 922—NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS 1. The authority citation for part 922 continues to read as follows: Authority: 16 U.S.C. 1431 *et seq.* 2. Amend § 922.71 by adding the following paragraphs in alphabetical order: § 922.71 Definitions. *Cruise ship* means a vessel with 250 or more passenger berths for hire. *Graywater* means galley, bath, or shower water. *Oceangoing ship* means a private, commercial, government, or military vessel of 300 gross registered tons or more, not including cruise ships. 3. In § 922.72, revise paragraphs (a)(3)(i)(B) and
(C)to read as follows: § 922.72 Prohibited or otherwise regulated activities.
(a)* * * (3)(i) * * *
(B)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. 1321 *et seq.* , from a vessel less than 300 gross registered tons. Vessel operators must lock all marine sanitation devices in a manner that prevents discharge of untreated sewage;
(C)Biodegradable matter from:
(1)Vessel deck wash down;
(2)Vessel engine cooling water;
(3)Graywater from a vessel less than 300 gross registered tons;
(4)Graywater from an oceangoing ship without sufficient holding tank capacity to hold graywater while within the Sanctuary; [FR Doc. E8-6178 Filed 3-27-08; 8:45 am] BILLING CODE 3510-NK-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 40 [Docket No. RM08-3-000] Mandatory Reliability Standard for Nuclear Plant Interface Coordination March 20, 2008. AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Notice of Proposed Rulemaking. SUMMARY: Pursuant to section 215 of the Federal Power Act, the Commission proposes to approve the Nuclear Plant Interface Coordination Reliability Standard developed by the North American Electric Reliability Corporation (NERC). The proposed Reliability Standard requires a nuclear power plant operator and its suppliers of back-up power and related transmission and distribution services to coordinate concerning nuclear licensing requirements for safe nuclear plant operation and shutdown and system operating limits. The Commission also proposes to accept four related definitions for addition to the NERC Glossary of Terms and to direct various changes to proposed violation risk factors, which measure the potential impact of violations of the Reliability Standard on the reliability of the Bulk-Power System. The proposed rule would benefit the Reliable Operation of the Bulk-Power System by facilitating the provision of off-site power to ensure reliable and safe nuclear power plant operation and shutdown. DATES: Comments are due April 28, 2008. ADDRESSES: Interested persons may submit comments, identified by Docket No. RM08-3-000, by any of the following methods: • *eFiling:* Comments may be filed electronically via the eFiling link on the Commission's Web site at: *http://www.ferc.gov* . Documents created electronically using word processing software should be filed in the native application or print-to-PDF format and not in a scanned format. This will enhance document retrieval for both the Commission and the public. The Commission accepts most standard word processing formats and commenters may attach additional files with supporting information in certain other file formats. Attachments that exist only in paper form may be scanned. Commenters filing electronically should not make a paper filing. Service of rulemaking comments is not required. • *Mail/Hand Delivery:* Commenters that are not able to file 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. *Instructions:* For detailed instructions on submitting comments and additional information on the rulemaking process, see the Comment Procedures Section of this document. FOR FURTHER INFORMATION CONTACT : Richard M. Wartchow (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-8744. Christy Walsh (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-6523. Robert Snow (Technical Information), Office of Electric Reliability, Division of Reliability Standards, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-6716. Kevin Thundiyil (Technical Information), Office of Electric Reliability, Division of Reliability Standards, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-6490. SUPPLEMENTARY INFORMATION: Table of Contents Paragraph numbers I. Background 2 A. EPAct 2005 and Mandatory Reliability Standards 2 1. NERC's Proposed Nuclear Reliability Standard 4 2. Proposed NERC Glossary Definitions 10 3. Nuclear Reliability Standard Requirements 11 4. Nuclear Reliability Standard Development 15 II. Discussion 17 A. Applicability 18 1. Notification of Parties to Interface Agreements 20 2. Transmission Entities 22 3. Agreement on NPIRs 31 B. Scope of Agreements 38 1. Generally 39 2. Revisions to Interface Agreements To Reflect Interim Changes 40 C. Coordination 43 D. Proposed Terms for Addition to the NERC Glossary 46 E. Violation Risk Factors 48 F. Violation Severity Levels 60 III. Information Collection Statement 63 IV. Environmental Analysis 73 V. Regulatory Flexibility Act Analysis 74 VI. Comment Procedures 77 VII. Document Availability 81 1. Pursuant to section 215 of the Federal Power Act (FPA), the Commission proposes to approve the Nuclear Plant Interface Coordination Reliability Standard (NUC-001-1) developed by the North American Electric Reliability Corporation (NERC). The proposed Reliability Standard requires a nuclear power plant operator and its suppliers of back-up power and transmission and distribution services 1 to coordinate concerning nuclear licensing requirements for safe nuclear plant operation and shutdown and system operating limits (SOLs). The Commission also proposes to accept four related definitions for addition to the NERC Glossary of Terms 2 and to direct various changes to proposed violation risk factors, which measure the potential impact of violations of the Reliability Standard on the reliability of the Bulk-Power System. The proposed rule would benefit the Reliable Operation of the Bulk-Power System by facilitating the provision of off-site power to ensure reliable and safe nuclear power plant operation and shutdown. 3 1 The Reliability Standard defines those suppliers who provide such generation, transmission and distribution services pursuant to agreements under the Nuclear Reliability Standard as “transmission entities,” as discussed below. 2 *See* the NERC Glossary of Terms Used in Reliability Standards (as revised) (Glossary), *originally filed in Mandatory Reliability Standards for the Bulk-Power System* , NERC Request for Approval of Reliability Standards, Docket No. RM06-16-000 (Apr. 4, 2006), *and affirmed by* Order No. 693, 72 FR 16416 (Apr. 4, 2007), FERC Stats. and Regs. ¶ 31,242 (2007), *order on reh'g* , Order No. 693-A, 72 FR 40717 (July 25, 2007), 120 FERC ¶ 61,053 (2007). 3 The Commission is not proposing any new or modified text to its regulations. Rather, as set forth in 18 CFR part 40, a proposed Reliability Standard will not become effective until approved by the Commission, and the Electric Reliability Organization
(ERO)must post on its Web site each effective Reliability Standard. I. Background A. EPAct 2005 and Mandatory Reliability Standards 2. On August 8, 2005, the Electricity Modernization Act of 2005 was enacted as Title XII, Subtitle A, of the Energy Policy Act of 2005 (EPAct 2005). 4 EPAct 2005 added section 215 to the FPA, requiring the Commission-certified Electric Reliability Organization
(ERO)to develop mandatory and enforceable Reliability Standards, subject to Commission review and approval. Once approved, the Reliability Standards may be enforced by the ERO, subject to Commission oversight, or by the Commission independently. 5 4 Energy Policy Act of 2005, (Pub. L. 109-58), Title XII, Subtitle A, 119 Stat. 594, 941 (2005), 16 U.S.C. 824o (2000 & Supp. V 2005). 5 16 U.S.C. 824o(e)(3). 3. On February 3, 2006, the Commission issued Order No. 672, implementing section 215. 6 Pursuant to Order No. 672, the Commission certified NERC as the ERO. 7 The ERO is required to develop Reliability Standards, subject to Commission review and approval, applicable to users, owners and operators of the Bulk-Power System, as set forth in each Reliability Standard. 6 *Rules Concerning Certification of the Electric Reliability Organization; and Procedures for the Establishment, Approval, and Enforcement of Electric Reliability Standards,* Order No. 672, 71 FR 8662 (Feb. 17, 2006), FERC Stats. & Regs. ¶ 31,204, *order on reh'g* , Order No. 672-A, 71 FR 19814 (Apr. 18, 2006), FERC Stats. & Regs. ¶ 31,212 (2006). 7 *North American Electric Reliability Corp.* , 116 FERC ¶ 61,062, *order on reh'g & compliance* , 117 FERC ¶ 61,126 (2006). 1. NERC's Proposed Nuclear Reliability Standard 4. On November 19, 2007, NERC filed its petition for Commission approval of the Nuclear Plant Interface Coordination Reliability Standard, designated NUC-001-1 (November 19, 2007 Petition). NERC supplemented the filing on December 11, 2007 (December 11, 2007 Supplement) to propose four related NERC Glossary terms: “Nuclear Plant Generator Operator,” “Nuclear Plant Off-site Power Supply (Off-site Power),” “Nuclear Plant Licensing Requirements (NPLRs),” and “Nuclear Plant Interface Requirements (NPIRs).” The November 19, 2007 Petition states that the proposed Reliability Standard addresses the coordination of interface requirements for two domains:
(i)Bulk-Power System planning and operations; and
(ii)nuclear power plant licensing requirements for off-site power necessary to enable safe nuclear plant operation and shutdown. 5. The Nuclear Reliability Standard applies to nuclear plant generator operators (generally nuclear power plant owners and operators, including licensees) and “transmission entities,” defined in the Reliability Standard as including a nuclear plant's suppliers of off-site power and related transmission and distribution services. To account for the variations in nuclear plant design and grid interconnection characteristics, the Reliability Standard defines transmission entities as “all entities that are responsible for providing services related to Nuclear Plant Interface Requirements (NPIRs),” and lists eleven types of functional entities that could provide services related to NPIRs. 8 8 The list of functional entities consists of transmission operators, transmission owners, transmission planners, transmission service providers, balancing authorities, reliability coordinators, planning authorities, distribution providers, load-serving entities, generator owners and generator operators. Additional applicability issues are discussed in a separate section below. 6. According to NERC, nuclear plant generator operators and transmission entities operate according to separate, established reliability and safety procedures. NERC states that the proposed Reliability Standard requires a nuclear plant generator operator to coordinate operations and planning with its transmission entities by developing procedures that reflect nuclear plant licensing requirements and SOLs, 9 including interconnection reliability operating limits (IROLs), affecting nuclear plant operations. 10 The proposed Nuclear Reliability Standard requires nuclear plant generator operators and transmission entities, including off-site power suppliers, to develop expectations and procedures for coordinating operations to meet the nuclear plant licensing requirements, SOLs and IROLs and to execute agreements, called interface agreements, reflecting those expectations and procedures. The resulting operations and planning requirements developed in the agreements to address the nuclear plant licensing requirements, SOLs and IROLs are called NPIRs. 11 NERC states that Requirements R3 through R8, which state that the interface agreement parties will address the NPIRs in planning, operations and facility upgrade and outage coordination, provide additional specificity on these expectations. 9 The NERC glossary defines system operating limit or SOL as “the value * * * that satisfies the most limiting of the prescribed operating criteria for a specified system configuration to ensure operation within acceptable reliability criteria * * *” 18 CFR part 40, *Facilities Design, Connections and Maintenance Mandatory Reliability Standards* , Notice of Proposed Rulemaking, 72 FR 46413 (Aug. 20, 2007), FERC Stats. and Regs. ¶ 32,622, at P 19
(2007)(Aug. 13, 2007). 10 The NERC glossary defines IROL as a “system operating limit that, if violated, could lead to instability, uncontrolled separation, or Cascading Outages that adversely impact the reliability of the bulk electric system.” 18 CFR part 40, *Facilities Design, Connections and Maintenance Mandatory Reliability Standards* , Order No. 705, 73 FR 1770 (Jan. 9, 2008), 121 FERC ¶ 61,296, at P 118
(2007)(Dec. 27, 2007). 11 *See* NUC-001-1, Requirement R2 and the proposed NERC Glossary term, Nuclear Plant Interface Requirements. 7. NERC's November 19, 2007 Petition notes that nuclear plant generator operators must already fulfill nuclear licensing requirements for off-site power. 12 NERC states that, while various forms of agreements exist to meet the nuclear power plant general design criterion for off-site power, NUC-001-1 places a new, mandatory and enforceable obligation under section 215 of the FPA on both nuclear plant generator operators and transmission entities. NUC-001-1 requires these entities to inform one another of limits and requirements on their systems and to enter into agreements to coordinate and operate their systems to address nuclear plant licensing requirements and related system limits. 12 *See also* the U.S.-Canada Power System Outage Task Force, Final Report on the August 14, 2003 Blackout in the United States and Canada: Causes and Recommendations, at 112 (April 2004) (Blackout Report), for a description of Nuclear Regulatory Commission
(NRC)oversight; available at: *http://www.ferc.gov/industries/electric/indus-act/blackout.asp:* The NRC, which regulates U.S. commercial nuclear power plants, has regulatory requirements for offsite power systems. These requirements address the number of offsite power sources and the ability to withstand certain transients. Offsite power is the normal source of alternating current
(AC)power to the safety systems in the plants when the plant main generator is not in operation. The requirements also are designed to protect safety systems from potentially damaging variations (in voltage and frequency) in the supplied power. For loss of offsite power events, the NRC requires emergency generation (typically emergency diesel generators) to provide AC power to safety systems. In addition, the NRC provides oversight of the safety aspects of offsite power issues through its inspection program, by monitoring operating experience, and by performing technical studies. 8. The nuclear plant licensing requirements addressed in the proposed Reliability Standard include requirements for off-site power to enable safe operation and shutdown during an electric system or plant event, and requirements for avoiding nuclear safety issues as a result of changes in electric system conditions during a disturbance, transient or normal conditions. NERC cites general design criterion 17 for nuclear power plants, which requires nuclear plant generator operators to obtain off-site electric power that will provide sufficient capacity to permit safety systems to function, assure that reactor coolant design limits are not exceeded, prevent core cooling, and maintain containment integrity and other vital functions. 13 13 NERC November 19, 2007 Petition at 22-23, *citing the NRC regulations* , 10 CFR part 50, Appendix A—General Design Criteria for Nuclear Power Plants. 9. NERC states that NUC-001-1, in combination with the nuclear license general design criteria requirements, achieves the vital public interest of assuring safe nuclear power generation. According to NERC, the Reliability Standard is beneficial to nuclear plant generator operators because it will assist them in meeting nuclear plant licensing requirements to safely produce nuclear power. It is also beneficial to Bulk-Power System users, due to the significant support that nuclear plants provide to the Reliable Operation of the Bulk-Power System. This Reliability Standard was assigned to a new rulemaking proceeding, Docket No. RM08-3-000, and is the subject of the current Notice of Proposed Rulemaking (NOPR). 14 14 The Nuclear Reliability Standard is attached in Appendix A to this NOPR and is available on the Commission's eLibrary document retrieval system in Docket No. RM08-3-000 and also on NERC's Web site, *http://www.nerc.com.* 2. Proposed NERC Glossary Definitions 10. NERC proposes in its December 11, 2007 Supplement to add the following four terms to the NERC Glossary: 15 15 The Commission reviews and approves revisions to the NERC Glossary, directing modifications where necessary. *See, e.g.* , Order No. 693 at P 1893-98. *Nuclear Plant Generator Operator:* Any Generator Operator or Generator Owner that is a [n]uclear [p]lant [l]icensee responsible for operation of a nuclear facility licensed to produce commercial power. *Nuclear Plant Off-site Power Supply or Off-site Power:* The electric power supply provided from the electric system to the nuclear power plant distribution system as required per the nuclear power plant license. *Nuclear Plant Licensing Requirements (NPLRs):* Requirements included in the design basis of the nuclear plant and statutorily mandated for the operation of the plant, including nuclear power plant licensing requirements for:
(1)Off-site power supply to enable safe shutdown of the plant during an electric system or plant event; and
(2)Avoiding preventable challenges to nuclear safety as a result of an electric system disturbance, transient, or condition. 16 16 The proposed Reliability Standard incorporates a regional difference that provides an alternative definition of nuclear plant licensing requirements that applies to units located in Canada. *Nuclear Plant Interface Requirements (NPIRs):* The requirements, based on NPLRs and Bulk Electric System requirements, that have been mutually agreed to by the Nuclear Plant Generator Operator and the applicable [t]ransmission [e]ntities. 3. Nuclear Reliability Standard Requirements 11. NERC's November 19, 2007 Petition summarizes the Nuclear Reliability Standard's nine compliance Requirements. Requirement R1 states that a nuclear plant generator operator shall provide proposed NPIRs to its transmission entities. Requirement R2 states that a nuclear plant generator operator and its transmission entities shall execute one or more agreements “that include mutually agreed to NPIRs” and document how the nuclear plant generator operator and the applicable transmission entities shall address and implement these NPIRs as further described in Requirement R9. 12. Requirements R3 through R8 dictate various operating and planning obligations that the nuclear plant generator operator and transmission entities shall meet per the interface agreements. Requirement R3 states that the transmission entities shall incorporate NPIR information into planning analyses and communicate the study results to the nuclear plant generator operator. Requirement R4 directs transmission entities to incorporate the NPIRs into operating analyses and meet the resulting operating targets or inform the nuclear plant generator operator when the transmission entity loses the ability to assess its performance. Requirement R5 places an obligation on the nuclear plant generator operator to operate its facilities in accordance with the interface agreements. Requirement R6 provides that a nuclear plant generator operator and its transmission entities shall coordinate outages and maintenance activities that affect the NPIRs (additional details concerning operations and maintenance coordination are set forth in Requirement R9.3). Requirements R7 and R8 oblige a nuclear plant generator operator and its transmission entities, respectively, to inform each other under their interface agreement of actual or proposed facility changes affecting the NPIRs. 13. Requirement R9, including sub-Requirements R9.1.1 through R9.4.4, outline certain administrative, technical, operations and maintenance, and communications and training provisions that must be included in an interface agreement. Provisions concerning technical requirements and analysis direct the interface agreement parties to:
(1)Identify limits, configurations and operating scenarios included in the NPIRs (Requirement R9.2.1);
(2)identify essential facilities, components and configuration restrictions (Requirement R9.2.2); and
(3)describe planning and operational analyses, including scope and timing, to support the NPIRs (Requirement R9.2.3). 14. The operations and maintenance coordination provisions mandate that the interface agreements provide for coordination of operations and maintenance of electrical facilities at the interface between the electrical system and the nuclear plant and power supply systems, including off-site power (Requirements R9.3.1-.3). Further, an interface agreement must coordinate responses to unusual conditions on the grid such as loss of ability to monitor grid performance, loss of off-site power, use of special protection systems, and underfrequency and undervoltage load shedding programs (Requirements R9.3.4, R9.3.5, and R9.3.7). Requirement R9.3.6 requires coordination of physical and cyber security systems. The interface agreements also must adopt terms and protocols for communications between the nuclear plant generator operator and transmission entities, coordination and communication during atypical operating conditions or emergency events, investigation and resolution of the causes of unplanned events, compliance with regulatory information requirements, and personnel training relating to NPIRs (Requirements R9.4.1-.5) and dispute resolution procedures (Requirement R9.1.3). 4. Nuclear Reliability Standard Development 15. NERC reports that in October 2004 it received a Standard Authorization Request
(SAR)for NUC-001-1 from the Nuclear Energy Institute Grid Reliability Task Force. The NERC Standards Committee approved the SAR in May 2005 and authorized development of the Reliability Standard. After more than 50 stakeholders, including Nuclear Regulatory Commission
(NRC)staff, provided comments on the draft, the NERC Nuclear Reliability Standard drafting team finalized the proposed Reliability Standard and set it for vote. NERC reports that, while the first ballot in March 2007 indicated approval by 77 percent of the weighted segment votes, negative ballots with comments triggered a recirculation ballot. NERC describes the negative comments as being largely concerned with two issues:
(1)Whether the term “transmission entities” is too ambiguous to be enforceable; and
(2)whether the proposed Reliability Standard makes SOL determinations and Bulk-Power System integrity procedures subservient to nuclear plant licensing requirements. NERC reports the drafting team's responses to these comments on “nsmission entities” and SOL coordination. The drafting team supported its proposal for identifying transmission entities by stating that the proposed generic treatment was appropriate because it reflected the variety of potential interactions between a given nuclear plant generator operator and grid operators with nuclear plant interconnections. According to NERC, the drafting team indicated that the specific entities covered by the proposed Reliability Standard would be determined through the NUC-001-1 implementation plan. NERC states that the drafting team responded to criticisms that SOL coordination was not adequately supported by pointing out that the nuclear plant generator operators and transmission entities will develop NPIRs under NUC-001-1 through a collaborative process that permits both groups to identify and address both nuclear requirements and Bulk-Power System limits in the resulting agreements. 16. With these responses, the proposed Reliability Standard passed in a recirculation ballot with an 80 percent weighted segment approval and a 96 percent quorum. The NERC Board of Trustees adopted the proposed Reliability Standard on May 2, 2007. To provide time for nuclear plant generator operators and transmission entities to identify NPIRs and negotiate and execute interface agreements, NERC proposes that NUC-001-1 become effective in the United States on the first day of the calendar quarter falling 15 months after Commission approval. II. Discussion 17. The Commission proposes to approve the Reliability Standard, NUC-001-1, effective as proposed by NERC, but seeks comment on several specific issues concerning the applicability of the Reliability Standard, coordination among transmission entities, and the scope of nuclear plant interface agreements. The Commission is not taking any action on the regional difference, because it applies outside of the United States and is not applicable to any facilities within the Commission's jurisdiction. 17 Further, the Commission proposes to order several modifications to the violation risk factors for the Reliability Standard and approve the proposed violation severity levels until they are superseded in an upcoming proceeding, as discussed below. The Commission also proposes to approve the proposed Glossary terms. 17 NERC proposes to adopt as a regional difference for Canada a separate definition of Nuclear Plant Licensing Requirements that does not reference regulatory requirements for off-site power supply for safe plant shutdown because Canada does not have regulatory standards for off-site power comparable to those established by the NRC. A. Applicability 18. Reliability Standard NUC-001-1 applies to nuclear plant generator operators and transmission entities, including off-site power suppliers and entities that provide distribution and transmission services that affect plant operations. NERC states that the Reliability Standard meets the criteria that it apply to users, owners and operators of the Bulk-Power System because NUC-001-1 will apply to transmission entities that are responsible for providing services relating to NPIRs. According to NERC, these transmission entities can affect the safety and reliability of the nuclear plant and Bulk-Power System, for instance in the case of a distribution service provider that supplies off-site power from a low-voltage, local distribution system. Therefore, these entities are subject to the Reliability Standard Requirements and may be registered under the NERC compliance registry process. 19. While the Commission does not at this time propose to modify the Reliability Standard, this NOPR seeks comment on several issues concerning:
(1)A nuclear plant generator operator's role in notifying applicable transmission entities that they may be responsible for NPIRs,
(2)when NUC-001-1 becomes applicable to transmission entities; and
(3)the applicability of NERC's compliance procedures when potential parties to interface agreements fail to reach agreement. The Commission presents its understanding of these applicability issues and seeks comment as discussed below. 1. Notification of Parties to Interface Agreements 20. Requirement R1 provides: “The Nuclear Plant Generator Operator shall provide the proposed NPIRs in writing to the applicable transmission entities and shall verify receipt.” Thus, it is the responsibility of a nuclear plant generator operator to notify its appropriate transmission entities that they are responsible for meeting the provisions of NUC-001-1. In response, a nuclear plant generator operator and its transmission entities are expected to negotiate and execute interface agreements “that include mutually agreed to NPIRs.” Commission Proposal 21. The Commission understands Requirement R1 to provide that, if a nuclear plant generator operator fails to provide all appropriate NPIRs to an applicable transmission entity, the nuclear plant generator operator will not be in compliance with the Reliability Standard. However, the Commission also understands that the impact of such an implication is limited, because a nuclear plant generator operator will know, as a result of the NRC licensing approval and review processes, which applicable entities to contact and what services are needed to meet NRC licensing requirements. Thus, it is unlikely that a nuclear plant generator operator would fail to obtain appropriate services and contact the necessary off-site power suppliers and transmission entities. With this understanding, the Commission preliminarily finds that the Requirement R1 obligation on a nuclear plant generator operator to contact transmission entities that will be subject to NUC-001-1 is appropriate. 2. Transmission Entities 22. The proposed Reliability Standard includes the term “transmission entities,” defined in the Applicability section of NUC-001-1 as “all entities that are responsible for providing services related to Nuclear Plant Interface Requirements (NPIRs).” NERC explains that each of the functional entities listed as transmission entities is defined as a user, owner, or operator of the Bulk-Power System. NERC notes that entities defined as transmission entities, such as distribution providers, are transmission entities by virtue of their involvement with a nuclear plant, by agreeing to meet an NPIR. 18 NERC states that a distribution provider that supplies backup power to a nuclear plant from a local, lower voltage distribution system to meet the plant's licensing requirements for offsite power will be considered a transmission entity, because the distribution provider can impact the safety and reliability of the nuclear plant and the Bulk-Power System. 19 In particular, the November 19, 2007 Petition states: 18 *See* NERC November 19, 2007 Petition at 12. 19 *Id* . Because the relationship of each nuclear plant generator operator with its provider of transmission-related services is unique, it will be important and necessary for the registration process to identify on a plant-by-plant basis the specific transmission entities required to identify NPIRs and develop the requisite agreement. Once the agreement becomes final, all applicable nuclear plant generator operator and transmission entities for each agreement will be identified by name and specific function. The respective Regional Entity will then be responsible for ensuring that each nuclear plant generator operator and transmission entities identified in the agreement(s) is registered on the NERC Compliance Registry for the applicable function(s). NERC will work with the Regional Entities to ensure that all nuclear plant generator operators and transmission entities included in the agreements that result from the NPIRs are listed in the Compliance Registry for this specific reliability standard. 20 20 NERC November 19, 2007 Petition at 12-13. 23. NERC explains that the term “transmission entities” is used to refer to all the entities that may provide services to meet NPIRs for the 104 various nuclear plants subject to NUC-001-1 Requirements. NERC adopted this approach to applicability because, due to the unique characteristics of the interconnection of each nuclear facility with its transmission grid, it is not possible to specify in advance and on a generic basis which functional entities operating near a given nuclear plant would be responsible for meeting the Requirements of NUC-001-1. 24. NERC indicates that the particular transmission entities subject to the Reliability Standard will be determined as they are identified by the nuclear plant generator operator as providing services related to NPIRs, pursuant to Requirement R1. According to NERC, once a nuclear plant generator operator and its applicable transmission entities execute one or more interface agreements, a Regional Entity shall ensure that the transmission entities that are parties to the interface agreement are listed in the compliance registry and add to it any interface agreement parties that are subject to NUC-001-1 but that were not previously identified in the NERC compliance registry process. 21 21 *See* Order No. 693 at P 92-96 (approving NERC compliance registry process) *and* NERC, “Statement of Compliance Registry Criteria (Revision 3),” filed with its Supplemental Information Filing, Docket No. RM06-16-000 (Feb. 6, 2007) (describing NERC procedures to identify and register owners, operators and users of the Bulk-Power System, including organizations performing functions listed in the definition of transmission entities, generators that are material to the Reliable Operation of the Bulk-Power System, and organizations that “should be subject to the Reliability Standards”). Commission Proposal 25. The Commission proposes to accept the identification and registration process set forth in the November 19, 2007 Petition to determine applicability for NUC-001-1. This proposed acceptance comes with the Commission's understanding that NERC will use its authority under the compliance registry process to register all users, owners and operators of the Bulk-Power System that provide transmission or generating services relating to off-site power supply or delivery. 22 22 *See* NERC November 19, 2007 Petition at 12. 26. Certain auxiliary power suppliers and transmission service providers may serve nuclear power plants through facilities that fall outside of the current Regional Entity definitions of bulk electric system that NERC uses to establish the applicability of the Reliability Standards. For instance, some nuclear power plants may obtain auxiliary power through lower voltage facilities that are not included in the Regional Entity's definition of bulk electric system. Other nuclear power plants may retain alternate sources of auxiliary power provided through lower voltage facilities operated by a small utility or cooperative that is not included in a Regional Entity's definition of bulk electric system. The Commission understands that NERC and the Regional Entities will register these and other service providers that provide interconnection and/or auxiliary power facilities vital to nuclear plant operation through NERC's authority to register an owner or operator of an otherwise exempt facility that is needed for Bulk-Power System reliability, on a facility-by-facility basis. 23 Once registered, the transmission entity providing such services to a nuclear generating plant may be subject to other Reliability Standards applicable to the functional class within the NERC functional model for which the transmission entity has been registered, as deemed appropriate through the registration process. With this understanding, the Commission proposes to accept the scope of the definition of transmission entities as appropriate. 23 *See* Order No. 693 at P 101; NERC Statement of Compliance Registry, Revision 3.1 at 8. 27. In addition, the Commission seeks clarification from the ERO, and public comment, on several concerns regarding the implementation of the Reliability Standard and the registration of transmission entities. 28. First, the Commission asks NERC to clarify its statement in the November 19, 2007 Petition that the registry process will identify on a plant-by-plant basis the specific transmission entities that provide services relating to NPIRs. Specifically, does NERC intend, for entities that are not otherwise registered, to limit registration to those facilities that provide such services? How does this relate to the definition of bulk electric system? For example, when identifying “on a plant-by-plant basis the specific transmission entities required to identify NPIRs and develop the requisite agreement,” 24 would the “plant” be identified as a critical facility that is included in the bulk electric system? 25 24 November 19, 2007 Petition at 12. 25 *See* Order No. 693 at P 101 (holding generally, in the context of a specific Reliability Standard that identifies a threshold, that “despite the existence of a voltage or demand threshold for a particular Reliability Standard, the ERO or Regional Entity should be permitted to include an otherwise exempt facility on a facility-by-facility basis if it determines that the facility is needed for Bulk-Power System reliability”). 29. Second, the Commission understands the Nuclear Reliability Standard is not enforceable against an entity, other than a nuclear plant generator operator, until it executes an interface agreement. Upon execution, such an entity becomes a “transmission entity” subject to the Nuclear Reliability Standard and other Reliability Standards as noted above. The Commission requests comment on this understanding. 30. Third, the Commission has concerns regarding the implementation of NUC-001-1 in the context of a single entity that both operates a nuclear plant and is responsible to provide services related to NPIRs, as may be the case with an integrated utility. In that situation, a single entity would be both the nuclear plant generator operator and the transmission entity. The Commission seeks clarification from the ERO, and public comment, on whether an agreement or arrangement would be required in a situation where one entity both operates the nuclear plant and provide services related to NPIRs. If an agreement or arrangement is required, who would execute it, *e.g.* , different functional units or divisions within the same entity? Would such an agreement or arrangement be accessible during a compliance audit? If an agreement is not required in this situation, will there be reasonable assurance of adequate coordination between the nuclear plant operator and other units within the entity that are responsible to provide services related NPIRs? 3. Agreement on NPIRs 31. Other than Requirement R1, NUC-001-1 utilizes a consensus approach, in that the NPIRs contained in an interface agreement must be “mutually agreed to.” The proposed NERC Glossary term NPIR is defined, “The requirements, based on NPLRs [nuclear plant licensing requirements] and Bulk-Electric System requirements, *that have been mutually agreed to* by the nuclear plant generator operator and the applicable Transmission Entities” [emphasis added]. This emphasis on agreement is reflected in Requirement R2, which states that the interface agreements shall include “mutually agreed to NPIRs.” Requirement R2 also provides that the interface agreements shall document how the interface agreement parties will address and implement the NPIRs, and states that the resulting interface agreement “may include mutually agreed upon procedures or protocols.” 32. According to NERC, the proposed Reliability Standard was initially drafted such that the nuclear power generator operators might unilaterally identify or change the NPIRs as then defined without mutual collaboration and agreement with the transmission entity. NERC states that this approach could have created limitations on the Bulk-Power System solely as a result of the NPIR declaration and resultant obligation of the transmission entity to operate the Bulk-Power System in accordance with these modified NPIRs. The standard drafting team responded to these initial comments and created the term “Nuclear Plant Licensing Requirements” for subsequent drafts. The term NPIR was also modified to reflect the requirements based on Nuclear Plant Licensing Requirements and Bulk-Power System requirements that have been mutually agreed to by the nuclear plant generator operator and the applicable transmission entity. According to NERC, these changes ensured that the transmission entities actively participated in the establishment of NPIRs and mitigated the potential for transmission limitations caused by unilateral decisions by the nuclear plant generator operators. 26 Additionally, in defining NPIRs and documenting them in the required agreements per Requirement R2, the transmission entities can safeguard against the acceptance of NPIRs not expressly tied to licensing requirements that could impose a constraint to grid operation and limit available transmission capability. 26 November 19, 2007 Petition at 27. 33. Also, NERC reports that the drafting team replied to comments that the proposed Reliability Standard subordinates SOLs and Bulk-Power System integrity to nuclear licensing requirements by noting that the NPIRs are to be developed through mutual collaboration. Therefore, the consensus approach provides parties to an interface agreement with the obligation and expectation to identify NPIRs and develop responses. Commission Proposal 34. The Commission proposes to find this consensus approach an acceptable and appropriate means to resolve concerns with the differing operational requirements faced by nuclear plant generator operators and transmission entities, as well as the variety of issues that could arise among them. However, the Commission seeks clarification of what compliance options are available under the Reliability Standard when nuclear plant generator operators and transmission entities fail to reach agreement. 35. The Commission notes that NPIRs are comprised of two distinct types of operational limits:
(1)Nuclear plant licensing requirements representing nuclear plant system limits, and
(2)SOLs and IROLs representing transmission system limits. Each of these types of operational limits is determined through processes outside of NUC-001-1. Nuclear plant licensing requirements are developed through the NRC licensing procedures, and SOLs and IROLs are determined in accordance with methodologies required by the Facilities Design, Connection and Maintenance Reliability Standards. 27 27 Consequently, although the NPIRs are “mutually agreed to,” the Commission understands that the parties to the interface agreement may not alter by agreement the specific determinations of the limits contained in the nuclear plant licensing requirements, SOLs and IROLs that are established elsewhere. 36. The Commission is concerned with the possibility that nuclear plant generator operators and transmission entities may fail to come to agreement while attempting to draft an interface agreement. The Commission therefore asks NERC to clarify what compliance options are available when a nuclear plant generator operator and a designated transmission entity fail to come to agreement over a proposed NPIR or a suitable approach to resolve any failure to agree. 28 28 Requirement R9.1.4 states that an interface agreement must include a dispute resolution mechanism, which would apply to disagreements *after* the agreement is signed. 37. It appears that, prior to executing an interface agreement, no compliance registry process would be triggered and no agreed-to NPIRs would exist to support the remaining Requirements of the Reliability Standard. The Commission seeks clarification from NERC, and public comment, on a circumstance involving an off-site power supplier or other potential transmission entity that disagrees with the nuclear plant generator operator that it should execute an interface agreement. In such circumstance, how would NERC resolve the impasse? Also, would NERC proceed to register such an entity (if not previously registered) without an executed interface agreement? B. Scope of Agreements 38. Although the Requirements of NUC-001-1 dictate that interface agreements contain various contractual terms and provide for various studies and procedures, the Reliability Standard does not describe specific substantive terms to be included in the agreements. NERC states that the Nuclear Reliability Standard drafting team adopted this consensus approach to coordinating nuclear plant and transmission grid operations to provide a platform for coordination at the interface that allows both nuclear plant generator operators and transmission entities to respect their main system drivers. NERC explains that the time and effort needed to coordinate nuclear and transmission system requirements in advance and on a generic basis was deemed to be prohibitive and the results of such an exercise deemed questionable. Therefore, according to NERC, the Nuclear Reliability Standard drafting team decided to focus on the interface agreement as the historical model for coordination. The interface agreement model, by its nature, places the obligation on nuclear plant generator operators and transmission entities to coordinate differing operational requirements by consensus. 1. Generally 39. Based on the existence of workable interface agreements that are already in place to meet existing nuclear licensing requirements, the Commission understands that the studies, analysis and plant requirements are developed in the licensing process, prior to the NRC's grant of a license or authority for continued operations. Thus, the required studies and licensing requirements to be addressed are typically established prior to the development of the interface agreements. In light of this process, the Commission proposes to find that the level of detail provided in the proposed Reliability Standard Requirements to define substantive provisions of the interface agreements is appropriate. However, the Commission has concerns about the interpretation of particular Requirements of NUC-001-1 on the development of the interface agreements, as described below. 2. Revisions to Interface Agreements To Reflect Interim Changes 40. Several of the Requirements direct the parties to interface agreements to include provisions to address changes to the nuclear plant or transmission grid characteristics. For example, Requirements R8 and R9 require nuclear plant generator operators and transmission entities to incorporate provisions in the interface agreements to inform one another of actual and proposed changes to their facilities that may impact their ability to meet the NPIRs. Furthermore, the Reliability Standard obligates the parties to interface agreements to incorporate provisions to review and update the agreement “at least every three years” under Requirement R9.1.3 and to address mitigation actions needed to avoid violating NPIRs under Requirement R9.3.4. Commission Proposal 41. The Commission is concerned that an interface agreement may not be updated for significant system changes outside of the three-year review process. However, the Commission does not at this time expect revisions to the Reliability Standard to be necessary to address its concern. The Commission, therefore, proposes to find acceptable the provisions for revision to interface agreements, but seeks comment on whether NUC-001-1 adequately provides for revisions to reflect interim changes. 42. The Commission notes that the Requirements of NUC-001-1 describe a minimum set of elements that must be included in an interface agreement. The Commission understands that the NRC requires a nuclear plant generator operator to have operationally feasible solutions in place prior to authorizing plant start up or continued operation following licensing review procedures. As operating solutions are worked out in advance, the Commission would prefer that the updated operational procedures be reflected in the interface agreements prior to being implemented upon plant start up or reauthorization, or shortly thereafter. The Commission therefore seeks comment whether it is feasible for the nuclear plant interface agreements to provide for negotiation and amendments to address emerging transmission and generating system limits and revised nuclear plant licensing requirements prior to, or contemporaneously with, implementing operations solutions. At this time, the Commission anticipates that such an approach would not require revision to the Reliability Standard itself, and that such provision could be made to implement the standard contractual practice requiring negotiation and revision whenever external circumstances represent a material change to the original assumptions that forms the basis of the agreement. The Commission views such a provision as being consistent with Requirement R9.1.3, providing for review and update of an agreement “at least every three years,” and Requirement R9.3.4, providing for review and updates to address mitigation actions needed to avoid violating NPIRs. C. Coordination 43. Requirements R7 and R8 require communication between nuclear plant generator operators and transmission entities regarding significant changes in design, configuration, operation or limits of their facilities: *Requirement R7:* Per the Agreements developed in accordance with this standard, the Nuclear Plant Generator Operator shall inform the applicable Transmission Entities of actual or proposed changes to nuclear plant design, configuration, operations, limits, protection systems, or capabilities that may impact the ability of the electric system to meet the NPIRs. *Requirement R8:* Per the Agreements developed in accordance with this standard, the applicable Transmission Entities shall inform the Nuclear Plant Generator Operator of actual or proposed changes to electric system design, configuration, operations, limits, protection systems, or capabilities that may impact the ability of the electric system to meet the NPIRs. 44. Furthermore, Requirement R6 obligates interface agreement parties to coordinate outages and maintenance activities; Requirement R9.3.6 requires coordination of physical and cyber-security protections; and Requirement R9.3.7 requires coordination of special protection systems and load shedding. Thus, these Requirements provide for communication between a nuclear plant generator operator and its individual transmission entities, as well as the reverse for communication from the transmission entities to the nuclear plant generator operator. However, these Requirements do not explicitly provide for communication and coordination among the various transmission entities that is necessary to facilitate the provision of generation and transmission services to support the nuclear power plant operations. Commission Proposal 45. The NUC-001-1 Requirements cited above explicitly provide for bilateral coordination between the nuclear plant generator operator and each individual transmission entity. However, the Reliability Standard does not explicitly require communication and coordination among the transmission entities necessary to meet the NPIRs. The Commission understands that the historical practice is for the interface agreement to provide for all necessary coordination, typically by obligating control area operators to communicate with neighboring entities, including Regional Transmission Organization-type grid operators and other interconnected utilities and load serving entities, when necessary. The Commission anticipates that, pursuant to the Requirements of the proposed Reliability Standard, the parties to nuclear plant interface agreements will continue to provide for coordination among transmission entities, in order to comply with NUC-001-1 Requirement R9.3.1 obligations to provide for coordination of interface facilities. Interface agreement parties may continue to designate former integrated control area operators when appropriate or may revise their approach, reflecting changes under restructuring to grid operations when necessary, consistent with coordination responsibilities provided for in existing Reliability Standards. Consistent with this understanding, the Commission proposes to accept the coordination provisions as requiring all appropriate coordination among transmission entities. D. Proposed Terms for Addition to the NERC Glossary 46. In its November 19, 2007 Petition, NERC submitted and requested approval of additional terms that relate to the Nuclear Reliability Standard to be added to the NERC Glossary. The NERC Glossary initially became effective on April 1, 2005 and is updated whenever a new or revised Reliability Standard is approved that includes a new term or definition. Commission Proposal 47. Earlier in this NOPR, 29 the Commission sought comment on implications of the phrase “mutually agreed to” in the NPIR definition. The Commission does not propose any revisions to the Glossary terms at this time, however, it is possible that comments received in response to this NOPR may raise unforeseen issues. With this understanding, the Commission proposes to approve the additional terms for the NERC Glossary. 29 *See* section II(A)(3), above, discussing “Agreement on NPIRs.” E. Violation Risk Factors 48. As part of its compliance and enforcement program, NERC plans to assign a lower, medium or high violation risk factor to each Requirement of each mandatory Reliability Standard to associate a violation of the Requirement with its potential impact on the reliability of the Bulk-Power System. Violation risk factors are defined as follows: *High Risk Requirement:*
(a)Is a requirement that, if violated, could directly cause or contribute to Bulk-Power System instability, separation, or a cascading sequence of failures, or could place the Bulk-Power System at an unacceptable risk of instability, separation, or cascading failures; or
(b)is a requirement in a planning time frame that, if violated, could, under emergency, abnormal, or restorative conditions anticipated by the preparations, directly cause or contribute to Bulk-Power System instability, separation, or a cascading sequence of failures, or could place the Bulk-Power System at an unacceptable risk of instability, separation, or cascading failures, or could hinder restoration to a normal condition. *Medium Risk Requirement:*
(a)Is a requirement that, if violated, could directly affect the electrical state or the capability of the Bulk-Power System, or the ability to effectively monitor and control the Bulk-Power System, but is unlikely to lead to Bulk-Power System instability, separation, or cascading failures; or
(b)is a requirement in a planning time frame that, if violated, could, under emergency, abnormal, or restorative conditions anticipated by the preparations, directly affect the electrical state or capability of the Bulk-Power System, or the ability to effectively monitor, control, or restore the Bulk-Power System, but is unlikely, under emergency, abnormal, or restoration conditions anticipated by the preparations, to lead to Bulk-Power System instability, separation, or cascading failures, nor to hinder restoration to a normal condition. *Lower Risk Requirement:* Is administrative in nature and
(a)is a requirement that, if violated, would not be expected to affect the electrical state or capability of the Bulk-Power System, or the ability to effectively monitor and control the Bulk-Power System; or
(b)is a requirement in a planning time frame that, if violated, would not, under the emergency, abnormal, or restorative conditions anticipated by the preparations, be expected to affect the electrical state or capability of the Bulk-Power System, or the ability to effectively monitor, control, or restore the Bulk-Power System. 30 30 *North American Electric Reliability Corp.* , 119 FERC ¶ 61,145, at P 9
(2007)( *Violation Risk Factor Order* ). 49. In its November 19, 2007 Petition, NERC identifies violation risk factors for each Requirement of proposed Reliability Standard NUC-001-1. NERC proposes either a lower or medium violation risk factor for each Requirement of NUC-001-1. 31 NERC requests that the Commission approve the violation risk factors when it takes action on the Nuclear Reliability Standard. 31 NERC proposes a lower violation risk factor for Requirements R1, R2, and R9 and a medium violation risk factor for Requirements R3 through R8. 50. In the *Violation Risk Factor Order* , the Commission addressed violation risk factors filed by NERC for Version 0 and Version 1 Reliability Standards. In that order, the Commission used five guidelines for evaluating the validity of each violation risk factor assignment:
(1)Consistency with the conclusions of the Blackout Report,
(2)consistency within a Reliability Standard,
(3)consistency among Reliability Standards with similar Requirements,
(4)consistency with NERC's proposed definition of the violation risk factor level, and
(5)assignment of violation risk factor levels to those Requirements in certain Reliability Standards that co-mingle a higher risk reliability objective and a lower risk reliability objective. 32 32 For a complete discussion of each factor, *see* the *Violation Risk Factor Order* at: P 19-36. Commission Proposal 51. The Commission proposes to direct NERC to raise violation risk factors for several Requirements, as discussed below. The Commission generally views a Reliability Standard that ensures safe and reliable nuclear power plant operation and shutdown as meriting violation risk factors of medium or high, rather than lower, due to the reliability benefits of nuclear power and the impact of separating a plant from the grid. While it is true that many of the Requirements are administrative in nature, these same Requirements provide for the development of procedures to ensure the safe and reliable operation of the grid, and responses to potential emergency conditions. If the Requirements are not met, the procedures will not be in place to address changing or emergency conditions or provide for safe operation and shutdown of a nuclear power plant. In short, the Requirements co-mingle the administrative tasks with the more critical reliability objective of ensuring safe nuclear power plant operation and shutdown. The Commission understands that NERC will apply the violation risk factor for the main Requirement to any violation of a sub-Requirement, unless separate violation risk factors are assigned to the Requirement and the sub-Requirement. The Commission discusses individual Requirements of NUC-001-1 and proposes changes, below. a. Requirement R2 52. The Commission proposes to direct NERC to raise the violation risk factor for Requirement R2 from lower to medium and seeks comment on this proposal. Requirement R2 places an obligation on a nuclear plant generator operator and transmission entities that agree to provide services relating to NPIRs to have an interface agreement in place to document how nuclear licensing requirements and transmission system limits will be addressed. Thus, the Requirement co-mingles the administrative element of having an executed agreement in place with the operational element of determining how the parties to the interface agreement will address nuclear plant licensing requirements and SOLs in order to provide for safe nuclear plant operation and shutdown. The operational requirements established in the interface agreements include requirements for off-site power to enable safe operation and shutdown during an electric system or plant event and requirements for avoiding nuclear safety issues as a result of changes in electric system conditions during a disturbance, transient or normal conditions. Therefore, because a violation of Requirement R2 “could, under emergency, abnormal, or restorative conditions anticipated by the preparations, directly affect the electrical state or capability of the Bulk-Power System,” a medium violation risk factor is appropriate for this Requirement. b. Requirement R4 53. The Commission proposes to direct NERC to raise the violation risk factors for sub-Requirements R4.2 and R4.3 to high, and seeks comment on its proposal. NERC proposes a medium violation risk factor for sub-Requirement R4.1, R4.2, and R4.3, which state that transmission entities shall incorporate the NPIRs into operating analyses, operate to meet the NPIRs and inform the nuclear plant generator operator when it loses the ability to assess its performance to meet the NPIRs. 54. Requirement R4.2 states that transmission entities shall operate their electric systems to meet the NPIRs established in the interface agreements. According to NERC, the NPIRs form the basis under which nuclear plant generator operators and transmission entities will “coordinate planning, assessment, analysis, and operation of the bulk power system to ensure safe nuclear plant operations and shutdowns.” Therefore, under emergency, abnormal, or restorative conditions a violation of Requirement R4.2 could directly cause or contribute to Bulk-Power System instability, separation, or a cascading sequence of failures, or could place the Bulk-Power System at an unacceptable risk of instability, separation, or cascading failures. 33 For these reasons, the Commission believes that a high violation risk factor is appropriate for Requirement R4.2. 33 *See also* the NERC November 19, 2007 Petition at 20: “The proposed reliability standard also acknowledges that the obligation to public safety relative to nuclear plant operation establishes a unique set of requirements that other generating facilities are not subjected to. In order to protect the common good, the applicable transmission entities must respect these unique requirements that maintain and/or restore offsite power adequate to supply minimum nuclear safety requirements.” 55. Under Requirement R4.3, when the transmission entities have lost the ability to monitor the system to ensure that NPIRs are met, they must inform the nuclear plant generator operators. The Commission believes that, if a nuclear plant generator operator is unaware of the fact that a transmission entity can no longer guarantee that NPIRs are met, the nuclear plant generator operator's ability to respond to, or anticipate, emergencies and changing system conditions will be impaired. Such an event could increase the likelihood that the plant is separated from the transmission system, causing significant degradation in Bulk-Power System reliability, characterized by instability, uncontrolled islanding and cascading. Therefore, the Commission proposes to direct NERC to raise the violation risk factor for Requirements R4.2 and R4.3 from medium to high, and requests comment on this proposal. c. Requirement R5 56. The Commission proposes to direct NERC to raise the violation risk factor for Requirement R5 from medium to high, and seeks comment on its proposal. Requirement R5 states that a nuclear plant generator operator shall operate its system consistent with the interface agreement developed under NUC-001-1. Due to the size of nuclear power plants, the separation of a nuclear power plant from the grid may significantly affect grid operations. Not all nuclear power plant service interruptions are initiated by incidents occurring off the nuclear power plant system. For instance, if a nuclear power plant breaker opens, separating a turbine from the grid, the resulting lack of power could cause degraded voltage near the plant. As a result, the transmission system may be unable to deliver off-site power to the plant, causing the entire plant to separate from the grid. 34 Due to the possibility for a violation of Requirement R5 to directly affect the reliability of the system, the Commission proposes to direct NERC to raise the violation risk factor for this Requirement from medium to high. 34 Nuclear power plants are large, typically consisting of two large turbines on the order of 1,000 MW or more, so disruptions within the nuclear plant system can have significant reciprocal impacts on the interconnected system. d. Requirements R7 and R8 57. The Commission proposes to direct NERC to raise the violation risk factors for Requirements R7 and R8 from medium to high, and seeks comment on its proposal. Requirements R7 and R8 state that a nuclear plant generator operator and its transmission entities must inform each other of actual or proposed changes to their facilities that affect their ability to meet NPIRs. The information to be exchanged, such as “limits” and “protection systems,” is relevant for a transmission entity to determine its system capability and configuration, which affect the ability of a plant to remain connected to the Bulk-Power System. Due to the safety implications of nuclear generation, a transmission entity must plan and operate to meet a nuclear power plant's operating requirements, which are more stringent than for other generators. To permit the necessary planning and system operations, a nuclear plant generator operator and its applicable transmission entities must exchange information relating to proposed and actual system changes. If transmission entities and nuclear plant generator operators do not provide information concerning system changes to each other, their planning and operating analyses may not be based on accurate data. As a result, unanticipated events could result in the nuclear plant disconnecting from the Bulk-Power System, placing the Bulk-Power System at risk for cascading outages. 58. The Blackout Report highlighted the importance of coordinated planning and operations between the Bulk-Power System and nuclear power plants, stating “[a]s the design and operation of the electricity grid is taken into account when evaluating the safety analysis of nuclear power plants, changes to the electricity grid must be evaluated for the impact on plant safety.” 35 To account for the potential impact on safety and the integrity of the transmission system, the Commission proposes to direct NERC to raise the violation risk factors for Requirements R7 and R8 from medium to high. 35 Blackout Report at 129. e. Requirement R9 59. The Commission proposes to direct NERC to raise the violation risk factor for Requirement R9 from lower to medium, and seeks comment on its proposal. According to NERC, Requirement R9 sets forth the specific administrative, technical, operations, maintenance, coordination, communications, and training elements that a nuclear plant generator operator and its transmission entities must include in their interface agreement. Thus, similar to Requirement R2, Requirement R9 co-mingles the administrative element of incorporating the various elements into the interface agreement with the operational element of determining how the parties to the interface agreement will address the administrative, technical, operations, maintenance, coordination, communications, and training issues in order to provide for safe nuclear plant operation and shutdown. A violation of Requirement R9 may mean that the necessary operational or emergency planning elements are not in place, resulting in an inability to resolve system conditions in an emergency. Therefore, a violation of Requirement R9 “could, under emergency, abnormal, or restorative conditions anticipated by the preparations, directly affect the electrical state or capability of the Bulk-Power System.” Consequently, the Commission proposes to find that a medium violation risk factor is appropriate for Requirement R9. Should NERC wish to assign a lower violation risk factor to any of the purely administrative sub-Requirements of Requirement R9, it may propose appropriate differentiation in its comments. F. Violation Severity Levels 60. For each Requirement of a Reliability Standard, NERC states that it will also define up to four violation severity levels—lower, moderate, high and severe—as measurements of the degree to which the Requirement was violated. For a specific violation of a particular Requirement, NERC or the Regional Entity will establish the initial value range for the base penalty amount by finding the intersection of the applicable violation risk factor and violation severity level in the Base Penalty Amount Table in Appendix A of the Sanction Guidelines. 36 36 *See North American Electric Reliability Corp.* , 119 FERC ¶ 61,248, at P 74
(2007)(directing NERC to develop up to four violation severity levels (lower, moderate, high, and severe) as measurements of the degree of a violation for each requirement and sub-requirement of a Reliability Standard and submit a compliance filing by March 1, 2008). 61. In its November 19, 2007 Petition, NERC proposes violation severity levels that apply generally to all violations of the Requirements of NUC-001-1, rather than to specific Requirements and sub-Requirements. However, NERC submitted proposed violation severity levels for each Requirement and sub-Requirement of NUC-001-1 that supersede those from the November 19, 2007 Petition pursuant to its March 3, 2008 compliance filing in Docket No. RR08-4-000. 37 37 The updated NUC-001-1 violation severity levels are provided in NERC's March 4, 2008 filing of revised Exhibit A in Docket No. RR08-4-000. Commission Proposal 62. Because NERC has recently filed new Requirement and sub-Requirement-specific violation severity levels in Docket No. RR08-4-000, the Commission intends to address all issues relating to NUC-001-1 violation severity levels in that proceeding. In the interim, should the review process in Docket No. RR08-4-000 not approve revised violation risk factors before the NUC-001-1 effective date, the Commission proposes to approve the interim violation severity levels proposed in this proceeding, until acceptance of the superseding violation severity levels. The Commission notes that the proposed violation severity levels for NUC-001-1 resemble the levels of non-compliance that will also be replaced by NERC's compliance filing in Docket No. RR08-4-000 because they describe violation severity levels for groups of Requirements in the Reliability Standard rather than on a per-Requirement and sub-Requirement basis. Because NERC's proposed violation severity levels do not specifically refer to each Requirement and sub-Requirement in NUC-001-1, the Commission is concerned that, if the new violation risk factors are not approved by the time NUC-001-1 takes effect, Regional Entities may have difficulty using NERC's Base Penalty Amount Table to compute penalties for violations of all Requirements and sub-Requirements. 38 While the Commission believes that the proposed effective date for NUC-001-1 provides ample time to address the violation severity levels filed in Docket No. RR08-4-000, the Commission proposes to treat the proposed, undifferentiated violation severity levels for NUC-001-1 consistent with the treatment adopted for levels of non-compliance, until Requirement and sub-Requirement-specific violation severity levels are in place. 39 38 *See North American Electric Reliability Corp.* , 119 FERC ¶ 61,248 at P 78-80. 39 *See id.* P 79. III. Information Collection Statement 63. The Office of Management and Budget
(OMB)regulations require approval of certain information collection requirements imposed by agency rules. 40 Upon approval of a collection(s) of information, OMB will assign an OMB control number and an expiration date. Respondents subject to the filing requirements of this rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB control number. The Paperwork Reduction Act
(PRA)41 requires each federal agency to seek and obtain OMB approval before undertaking a collection of information directed to ten or more persons, or continuing a collection for which OMB approval and validity of the control number are about to expire. 42 The PRA defines the phrase “collection of information” to be the “obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format, calling for either— 40 5 CFR 1320.11. 41 44 U.S.C. 3501-20. 42 44 U.S.C. 3502(3)(A)(i), 44 U.S.C. 3507(a)(3).
(i)Answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on ten or more persons, other than agencies, instrumentalities, or employees of the United States; or
(ii)answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes.” 43 43 44 U.S.C. 3502(3)(A). 64. This NOPR proposes to approve the new Reliability Standard developed by NERC as the ERO. Section 215 of the FPA authorizes the ERO to develop and enforce Reliability Standards that provide for an adequate level of reliability of the Bulk-Power System. Pursuant to the statute, the ERO must submit each Reliability Standard that it proposes to be made effective to the Commission for approval. 44 44 *See* 16 U.S.C. 824o(d). 65. Proposed Reliability Standard NUC-001-1 does not require responsible entities to file information with the Commission. Nor, with the exception of a three year self-certification of compliance, does the Reliability Standard require responsible entities to file information with the ERO or Regional Entities. However, the Reliability Standard does require responsible entities to develop and maintain certain information for a specified period of time, subject to inspection by the ERO or Regional Entities. 66. Reliability Standard NUC-001-1 requires nuclear plant generator operators and entities that provide generation, transmission and distribution services relating to off-site power (these entities are defined as “transmission entities”) to enter into interface agreements with nuclear plant generator operators that will govern certain communication, training, operational and planning elements for use in addressing generation and transmission system limits and nuclear licensing requirements. The Commission understands that most entities subject to this Reliability Standard already have such agreements in place. The responsible entities are also required to retain evidence that they executed such an agreement and incorporated its terms into systems planning and operations. Further, each nuclear plant generator operator and transmission entity must self-certify its compliance to the compliance monitor once every three years. 67. The Commission is submitting these reporting and recordkeeping requirements to OMB for its review and approval under section 3507(d) of the PRA. 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 for minimizing the respondent's burden, including the use of automated information techniques. 68. Our estimate below regarding the number of respondents is based on the NERC compliance registry as of April 2007 and NERC's November 19, 2007 Petition that is the subject of this proceeding. In its Petition, NERC states that 104 nuclear power plants are subject to the proposed Reliability Standard. These plants are run by approximately 30 different utilities and are located on 65 different sites. Each plant must contract with transmission entities to obtain off-site power, and coordinate distribution and transmission services for such power. 69. The proposed Reliability Standard identifies eleven categories of functional entities that could be a transmission entity when providing covered services, including transmission operators, transmission owners, transmission planners, transmission service providers, balancing authorities, reliability coordinators, planning authorities, distribution providers, load-serving entities, generator owners and generator operators. NERC's compliance registry indicates that there is a significant amount of overlap among the entities that perform these functions. Therefore, in some instances, a single entity may be registered under several of these functions. The November 19, 2007 Petition includes NERC drafting team comments which report, “In many cases, agreements are not two-party [agreements]—they are often multi-party agreements involving RTO/ISO Protocols, transmission and generation owners and others.” 45 Therefore, this analysis attempts to account for the overlap of services to be provided by entities responsible for the various roles identified in the Reliability Standard, as well as the fact that certain plants may need to coordinate with multiple entities. 45 NERC Nuclear Reliability Standard drafting team, “Consideration of Comments, Draft 2—SAR on Nuclear Plant Offsite Power Reliability,” p. 2 of 25 (May 23, 2005), filed in November 19, 2007 Petition, Exhibit B, Record of Development of Proposed Reliability Standard. 70. Under NUC-001-1, the 104 nuclear power plants must coordinate with off-site power suppliers and related transmission and/or distribution service providers. The Nuclear Reliability Standard drafting team reports in its responses to SAR comments, “Nuclear plant generators and most nuclear offsite power supplies interconnect with the bulk electric system at transmission system voltage levels. While backup station service for some plants may be provided via distribution lines, these cases are the exception, not the rule.” 46 Assuming conservatively, that not more than half of the nuclear power plants call for multi-party coordination and those that do involve all the types of parties listed by the drafting team, the Commission estimates that 52 nuclear plants will execute bi-lateral interface agreements and 52 nuclear plants will execute multi-lateral interface agreements with approximately four other parties. Thus, the Commission estimates that the 104 nuclear plants will enter into agreements with an additional 260 parties to bilateral and multi-party agreements, providing 364 as the total number of entities required to comply with the information “reporting” or development requirements of the proposed Reliability Standard. 47 46 NERC Nuclear Reliability Standard drafting team, “Consideration of Comments on 2nd Draft of Nuclear Off-site Power Supply Standard,” p. 54 of 60 (Feb. 7, 2007), filed in November 19, 2007 Petition, Exhibit B, Record of Development of Proposed Reliability Standard. 47 Because it is assumed that each plant operator must ensure that appropriate agreements are in place for each plant, this analysis assesses the workload by measuring the work for 104 plants, rather than for the 30 nuclear plant operators. 71. *Burden Estimate:* The Public Reporting burden for the requirements contained in the NOPR is as follows: Data collection Number of respondents Number of responses Hours per respondent Total annual hours FERC-725F: Nuclear Plant Owners or Operators 104 1 Reporting: 80 Reporting: 8,320. Recordkeeping: 40 Recordkeeping: 4,160. Investor-Owned Utilities 130 1 Reporting: 80 Reporting: 10,400. Recordkeeping: 40 Recordkeeping: 5,200. Large Municipals, Cooperatives and other agencies 130 1 Reporting: 80 Reporting: 10,400. Recordkeeping: 40 Recordkeeping: 5,200. Total 364 43,680. Total Hours: (Reporting 29,120 hours + Recordkeeping 14,560 hours) = 43,680 hours. ( *FTE=Full Time Equivalent or 2,080 hours* ). *Total Annual hours for Collection:* Reporting + Recordkeeping = 43,680 hours. *Information Collection Costs:* The Commission seeks comments on the costs to comply with these requirements. It has projected the average annualized cost to be the total annual hours (Reporting) 29,120 times $120 = $3,494,400. Recordkeeping = @ $40/hour = $582,400, with labor calculated as file/record clerk @ $17 an hour + supervisory @ $23 an hour. Total costs = $4,076,800. The Commission believes that this estimate may be conservative because most if not all of the applicable entities currently have agreements in place to provide for coordination between a nuclear plant generator operator and its local transmission, distribution and off-site power suppliers. Furthermore, multiple plants are located on certain sites, and one entity may operate multiple plants, providing for potential economies in updating, drafting and executing the interface agreements. *Title:* FERC-725F, Mandatory Reliability Standard for Nuclear Plant Interface Coordination. *Action:* Proposed Collection of Information. *OMB Control No:* [To be determined]. *Respondents:* Business or other for profit, and/or not for profit institutions. *Frequency of Responses:* One time to initially comply with the rule, and then on occasion as needed to revise or modify. In addition, annual and three-year self-certification requirements will apply. *Necessity of the Information:* The Nuclear Reliability Standard, if adopted, would implement the Congressional mandate of the Energy Policy Act of 2005 to develop mandatory and enforceable Reliability Standards to better ensure the reliability of the nation's Bulk-Power System. Specifically, the proposed Reliability Standard would ensure that system operating limits or SOLs used in the reliability planning and operation of the Bulk-Power System are coordinated with nuclear licensing requirements in order to ensure the safe operation and shut down of nuclear power plants. *Internal review:* The Commission has reviewed the requirements pertaining to the proposed Reliability Standard for the Bulk-Power System and determined that the proposed requirements are necessary to meet the statutory provisions of the Energy Policy Act of 2005. These requirements conform to the Commission's plan for efficient information collection, communication and management within the energy industry. 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 Executive Director, Phone:
(202)502-8415, fax:
(202)273-0873, e-mail: *michael.miller@ferc.gov* ]. Comments on the requirements of the proposed rule may also 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], e-mail: *oira_submission@omb.eop.gov* . IV. 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. 48 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. The actions proposed here fall within the categorical exclusion in the Commission's regulations for rules that are clarifying, corrective or procedural, for information gathering, analysis, and dissemination. 49 Accordingly, neither an environmental impact statement nor environmental assessment is required. 48 Order No. 486, Regulations Implementing the National Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. ¶ 30,783 (1987). 49 18 CFR 380.4(a)(5). V. Regulatory Flexibility Act Analysis 74. The Regulatory Flexibility Act of 1980
(RFA)50 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. Most of the entities, *i.e.* , planning authorities, reliability coordinators, transmission planners and transmission operators, to which the requirements of this rule would apply do not fall within the definition of small entities. 51 50 5 U.S.C. 601-12. 51 The RFA definition of “small entity” refers to the definition provided in the Small Business Act, which defines a “small business concern” as a business that is independently owned and operated and that is not dominant in its field of operation. *See* 15 U.S.C. 632 (2000). According to the SBA, a small electric utility is defined as one that has a total electric output of less than four million MWh in the preceding year. 75. As indicated above, based on available information regarding NERC's compliance registry, approximately 364 entities, including owners and operators of 104 nuclear power plants, will be responsible for compliance with the new Reliability Standard. It is estimated that one-third of the responsible entities, about 130 entities, would be municipal and cooperative organizations. In addition to generator owners and operators and distribution service providers, the proposed Reliability Standard would apply to planning authorities, transmission planners, transmission operators and reliability coordinators, which tend to be larger entities. Thus, the Commission believes that only a portion, approximately 30 to 40 of the municipal and cooperative organizations to which the proposed Reliability Standard would apply, qualify as small entities. 52 The Commission does not consider this a substantial number of all municipal and cooperative organizations. Moreover, as discussed above, the proposed Reliability Standard will not be a burden on the industry since most if not all of the applicable entities currently coordinate operations and planning with nuclear plant generator operators and the proposed Reliability Standard will simply provide a common framework for agreements governing such coordination and many of the entities already have agreements in place to meet prior NRC requirements. Accordingly, the Commission certifies that the proposed Reliability Standard will not have a significant adverse impact on a substantial number of small entities. 52 According to the DOE's Energy Information Administration (EIA), there were 3,284 electric utility companies in the United States in 2005, and 3,029 of these electric utilities qualify as small entities under the SBA definition. Among these 3,284 electric utility companies are:
(1)883 cooperatives of which 852 are small entity cooperatives;
(2)1,862 municipal utilities, of which 1842 are small entity municipal utilities;
(3)127 political subdivisions, of which 114 are small entity political subdivisions; and
(4)219 privately owned utilities, of which 104 could be considered small entity private utilities. *See* Energy Information Administration Database, Form EIA-861, Dept. of Energy (2005), *available at http://www.eia.doe.gov/cneaf/electricity/page/eia861.html.* 76. Based on this understanding, the Commission certifies that this rule will not have a significant economic impact on a substantial number of small entities. Accordingly, no regulatory flexibility analysis is required. VI. Comment Procedures 77. 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 April 28, 2008. Comments must refer to Docket No. RM08-3-000, and must include the commenter's name, the organization they represent, if applicable, and their address in their comments. 78. 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. 79. Commenters that 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. 80. 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 proposal are not required to serve copies of their comments on other commenters. VII. Document Availability 81. 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. 82. 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. 83. 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
(866)208-3676) or email 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 40 Electric power, Reporting and recordkeeping requirements. By direction of the Commission. Nathaniel J. Davis, Sr., Deputy Secretary. BILLING CODE 6717-01-P ER28MR08.000 ER28MR08.001 ER28MR08.002 ER28MR08.003 ER28MR08.004 ER28MR08.005 [FR Doc. E8-6320 Filed 3-27-08; 8:45 am] BILLING CODE 6717-01-C DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 24 CFR Part 25 [Docket No. FR-5082-P-01] RIN 2510-AA01 Mortgagee Review Board AGENCY: Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD. ACTION: Proposed rule. SUMMARY: This proposed rule would make changes to the Department's Mortgagee Review Board (Board) regulations to clarify and better reflect statutory directives and amend current practice. This proposed rule would modify the Board's procedures governing hearings. Additional revisions proposed by this rule would remove provisions that unnecessarily duplicate the authorizing statute and would clarify the authority and duties of the Board in taking administrative action against mortgagees approved by the Federal Housing Administration. This proposed rule would separate and clarify the grounds for administrative action and the factors considered by the Board in evaluating whether to take administrative action, as well as require the mortgagee to address these factors in its response to the Board's notice of violation. Finally, other organizational changes would be made to improve overall clarity. DATES: *Comment Due Date:* May 27, 2008. ADDRESSES: Interested persons are invited to submit comments regarding this proposed rule to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 10276, Washington, DC 20410-0500. Communications must refer to the above docket number and title. There are two methods for submitting public comments. All submissions must refer to the above docket number and title. 1. Submission of Comments by Mail. Comments may be submitted by mail to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 10276, Washington, DC 20410-0001. 2. Electronic Submission of Comments. Interested persons may submit comments electronically through the Federal eRulemaking Portal at *www.regulations.gov.* HUD strongly encourages commenters to submit comments electronically. Electronic submission of comments allows the commenter maximum time to prepare and submit a comment, ensures timely receipt by HUD, and enables HUD to make them immediately available to the public. Comments submitted electronically through the *www.regulations.gov* Web site can be viewed by other commenters and interested members of the public. Commenters should follow the instructions provided on that site to submit comments electronically. Note: To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the rule. *No Facsimile Comments.* Facsimile
(FAX)comments are not acceptable. *Public Inspection of Public Comments.* All properly submitted comments and communications submitted to HUD will be available for public inspection and copying between 8 a.m. and 5 p.m. weekdays at the above address. Due to security measures at the HUD Headquarters building, an advance appointment to review the public comments must be scheduled by calling the Regulations Division at
(202)708-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the Federal Information Relay Service at
(800)877-8339. Copies of all comments submitted are available for inspection and downloading at *www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: Dane Narode, Acting Associate General Counsel for Program Enforcement, Department of Housing and Urban Development, 1250 Maryland Avenue, Suite 200, Washington, DC 20024-0500; telephone number
(202)708-2350 (this is not a toll-free number); e-mail: *Dane_M._Narode@hud.gov* . Hearing- and speech-impaired persons may access the voice telephone number listed above by calling the toll-free Federal Information Relay Service at 1-(800) 877-8339. SUPPLEMENTARY INFORMATION: I. Background The Mortgagee Review Board (Board) oversees the performance of lenders participating in the Federal Housing Administration
(FHA)mortgage insurance programs. Section 1708(c) of the National Housing Act (12 U.S.C. 1708(c)) empowers the Board to initiate the issuance of a letter of reprimand, probation, suspension, or withdrawal of any mortgagee found to be engaging in activities in violation of FHA requirements or the nondiscrimination requirements of the Equal Credit Opportunity Act (15 U.S.C. 1691 *et seq.* ), the Fair Housing Act (42 U.S.C. 3601 *et seq.* ), or Executive Order 11063, entitled “Equal opportunity in housing.” HUD's regulations implementing section 1708(c) are located in 24 CFR part 25. The regulations governing the Board set forth the authority of the Board; administrative actions available and factors to be considered by the Board in taking such action; violations that give rise to administrative actions; the procedures involved in notifying mortgagees of a violation and administrative action, as well as any hearing that results; and provide for the publication and dissemination of information regarding actions. II. This Proposed Rule This proposed rule would amend the regulations governing the Board at 24 CFR part 25. This section of the preamble describes the proposed regulatory changes. A. Hearings To Be Conducted by Administrative Law Judges This proposed rule would permit hearings to be conducted by an Administrative Law Judge (ALJ). As proposed, hearings would be conducted in accordance with the applicable provisions of 24 CFR part 26, with two modifications identified in the regulatory text. (The regulations codified in 24 CFR part 26 governing hearings that HUD is required to conduct pursuant to the Administrative Procedure Act (5 U.S.C. 551 *et seq.* ) will apply to these matters.) This change would eliminate the procedural delay whereby a matter is referred to a hearing official, who then perfunctorily refers the matter to a hearing officer. HUD is also proposing the removal of the definitions of “Hearing Official” and “Hearing Officer” from § 25.3, as a conforming change. B. Inclusion of References To Authorizing Statute Additional revisions proposed by this rule would remove provisions that unnecessarily duplicate the authorizing statute (i.e., 12 U.S.C. 1708), and are designed to clarify the authority and duties of the Board in taking administrative action against FHA-approved mortgagees. For example, § 25.5, entitled “Administrative Actions,” addresses administrative actions available to the Board against those mortgagees that fail to comply with either a directive of a letter of reprimand or a term of probation. Paragraphs
(b)and
(c)of § 25.5 would be revised by referencing the statute as the source of actions available to the Board rather than the current reference of part 25. C. Clarifying and Organizational Changes *Section 25.2 would be revised to incorporate § 25.12, as currently designated.* The proposed rule would revise § 25.2, which describes the authority for the establishment of the Board, to incorporate the provisions of current § 25.12, regarding the authority of the Board to impose civil money penalties. Section 25.12 would be removed. Additionally, the proposed rule would remove the authority to delegate the power to impose administrative sanctions on the grounds specified in paragraphs (e), (h), and
(u)of § 25.6 or to take administrative actions for failure to remain in compliance with the requirements for approval in 24 CFR 202.5(i), 202.5(n), 202.7(b)(4), 202.8(b)(1), and 202.8(b)(3). The Department has decided to return this action to the Board, conforming it to the Board's practice regarding sanctions for other violations. Finally, this proposed rule would remove reference to the delegation of the Board's authority to hold hearings under this part. This part now specifies that hearings are to be conducted by an Administrative Law Judge in accordance with the provisions of the Administrative Procedure Act, 5 U.S.C. 551 *et seq.* Therefore, the provision authorizing delegation of this authority is no longer necessary. *Section 25.4 would be revised to cite directly to the statute and clarify the title of an advisor.* Section 25.4(a) would be revised to cite to the statute for the identity of the members of the Board. Section 25.4(b) would be revised based on the change in title of one advisor to Director of the Office of Lender Activities and Program Compliance. *Current § 25.9 would be redesignated as new § 25.6.* Section 25.9, entitled “Violations creating grounds for administrative action,” would be redesignated as § 25.6 so that the regulations reflect the progression of the administrative process. In addition to the redesignation, this section would also be revised. The language of the introductory paragraph has been moved to create a new § 25.8. Redesignated § 25.6(g) would be revised to provide that grounds for administrative action exist if a mortgagee fails to comply with any agreement, certification, undertaking, or condition of approval listed on, or applicable to, either a mortgagee's application for approval or an approved mortgagee's branch office notification. Redesignated § 25.6(i) would be revised to change the reference from hearing official or officers to Administrative Law Judge to reflect the change in hearing procedures proposed by this rule. Redesignated § 25.6(j) would be revised to include the violation of an agreement with HUD as creating grounds for administrative action. Redesignated § 25.6(ff) would be revised to include a catchall provision whereby a violation of FHA requirements that the Board or the Secretary determines to be so serious creates grounds for administrative action. *Current § 25.6 would be redesignated as new § 25.7.* Section 25.6, entitled “Notice of violation,” would be redesignated as § 25.7. This section would also be revised to clarify that proof of delivery of the notice of violation to the mortgagee's address of record establishes that the mortgagee has received the notice. New § 25.7 also would provide that in responding to the notice, mortgagees must address the factors listed in new § 25.8. HUD also proposes to add a provision to this section that would create an exception to the written notice of violation requirement before issuing a letter of reprimand, provided that the Board has received information that discloses a basis for the issuance of a letter of reprimand. *Addition of a new § 25.8.* This proposed rule would separate and clarify the grounds for administrative action and the factors considered by the Board in evaluating whether to take administrative action under 12 U.S.C. 1708(c). Further, this proposed rule would also require the mortgagee to address these factors in its response to the Board's notice of violation, which would assist in the Board's informed consideration of the factors. This proposed rule would eliminate the existing exception from consideration of the enumerated factors for those cases that are based on a mortgagee's failure to maintain basic threshold eligibility for FHA approval, as set forth in paragraphs (e), (h), and
(u)of § 25 (i.e.,
(e)failure of a nonsupervised mortgagee to submit the required annual audit report of its financial condition prepared in accordance with instructions issued by the Secretary within 90 days of the close of its fiscal year, or such longer period as the Assistant Secretary of Housing—Federal Housing Commissioner may authorize in writing prior to the expiration of 90 days;
(h)failure of an approved mortgagee to meet or maintain the applicable net worth, liquidity, or warehouse line of credit requirements of 24 CFR part 202 pertaining to net worth, liquid assets, and warehouse line of credit or other acceptable funding plan; and
(u)failure to pay the application and annual fees required by 24 CFR part 202.) With the removal of the delegation from § 25.2 for these cases, the Board will now consider the mortgagee's response to the Notice of Violation in the same manner as all other cases it considers. *Current § 25.7 is redesignated as new § 25.9.* Section 25.7, entitled “Notice of administrative action,” would be redesignated as § 25.9. This section would also be revised to clarify that proof of delivery of a notice of administrative action to the mortgagee's address of record establishes that the mortgagee has received the notice. The section would also be amended to require that in actions for probation, suspension, or withdrawal, the notice must describe the nature and duration of the administrative action, specify the reasons for the action, inform the mortgagee of its right to a hearing, and inform the mortgagee of the time and manner in which to request a hearing. *Current § 25.8 is being redesignated as new § 25.10.* Section 25.8, entitled “Hearings and hearing request,” would be redesignated as § 25.10. This section would also be revised to clarify that mortgagees that may be subject to probation, suspension, or withdrawal are entitled to a hearing, but a hearing must be requested. This section would also be revised to reflect the authority of an ALJ to conduct the hearing. As such, former § 25.8(d)(2), entitled “Referral to a hearing officer or other independent official,” has been removed. Additionally, the proposed rule would revise the procedural rules governing a hearing. Hearings would be conducted in accordance with the provisions of 24 CFR part 26 governing hearings that are conducted in accordance with the Administrative Procedure Act, as those provisions are modified by this section. *Current § 25.14 is being redesignated as new § 25.11.* Section 25.14, entitled “Prohibition against modification of Board orders,” would be redesignated as new § 25.11. This section would also be revised to reflect that under the proposed rule hearings are to be conducted by ALJs. *Current §§ 25.10, 25.11, and 25.13 are being consolidated into new § 25.12.* Section 25.10, entitled “Publication in **Federal Register** of actions,” § 25.11, entitled “Notification to other agencies,” and § 25.13, entitled “Notifying GNMA of withdrawal actions,” are being combined and redesignated as § 25.12. In addition to including each of the referenced provisions, § 25.12 would be revised to include a paragraph that provides for the availability of all non-privileged information regarding the nature of the violation and the resolution of the action to the public in cases where the notice of administrative action does not result in a hearing or in any case in which a settlement is entered into by the Board and a mortgagee. III. Small Business Concerns Related to Board Enforcement Actions With respect to enforcement actions undertaken by the Board against a mortgagee, HUD is cognizant that section 222 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) (SBREFA) requires the Small Business and Agriculture Regulatory Enforcement Ombudsman to “work with each agency with regulatory authority over small businesses to ensure that small business concerns that receive or are subject to an audit, on-site inspection, compliance assistance effort, or other enforcement related communication or contact by agency personnel are provided with a means to comment on the enforcement activity conducted by this personnel.” To implement this statutory provision, the Small Business Administration has requested that federal agencies include the following language on agency publications and notices that are provided to small business concerns at the time the enforcement action is undertaken. The language is as follows: Your Comments Are Important The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the enforcement actions of [insert agency name], you will find the necessary comment forms at *www.sba.gov/ombudsman* or call 1-888-REG-FAIR (1-888-734-3247). In accordance with its notice describing HUD's actions on the implementation of SBREFA, which was published on May 21, 1998 (63 FR 28214), HUD will provide small entities with information on the Fairness Boards and National Ombudsman program, at the time enforcement actions are taken, to ensure that small entities have the full means to comment on the enforcement activity conducted by HUD. IV. Findings and Certifications Paperwork Reduction Act The information collection requirements contained in this rule have been approved by the Office of Management and Budget
(OMB)under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB Control Number 2502-0523. In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a valid OMB control number. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 605(b))
(RFA)generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This proposed rule would make changes to HUD's Mortgagee Review Board regulations at 24 CFR part 25 to clarify and better reflect statutory directives and to amend current practice. All entities, small or large, are subject to the same penalties for violations of HUD requirements, as established by statute and implemented by the part 25 regulations. To the extent the rule has any impact on a small entity, it would be a result of the entity's failure to comply with HUD requirements. Accordingly, the undersigned certifies that this rule will not have a significant economic impact on a substantial number of small entities. Notwithstanding HUD's determination that this rule will not have a significant effect on a substantial number of small entities, HUD specifically invites comments regarding any less burdensome alternatives to this rule that will meet HUD's objectives, as described in this preamble. Environmental Impact This proposed rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this proposed rule is categorically excluded from environmental review under the National Environmental Policy Act (42 U.S.C. 4321 *et seq.* ). Executive Order 13132, Federalism Executive Order 13132 (entitled “Federalism”) prohibits, to the extent practicable and permitted by law, an agency from promulgating a regulation that has federalism implications and either imposes substantial direct compliance costs on state and local governments and is not required by statute, or preempts state law, unless the relevant requirements of Section 6 of the Executive Order are met. This rule affects only mortgagees and does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
(UMRA)establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. This proposed rule does not impose any federal mandates on any state, local, or tribal government or the private sector within the meaning of UMRA. List of Subjects in 24 CFR Part 25 Administrative practice and procedure, Loan programs-housing and community development, Organization and functions (Government agencies), Reporting and recordkeeping requirements. For the reasons discussed in the preamble, HUD proposes to amend 24 CFR part 25 to read as follows: PART 25—MORTGAGEE REVIEW BOARD 1. The authority citation for 24 CFR part 25 continues to read as follows: Authority: 12 U.S.C. 1708(c), 1708(d), 1709(s), 1715b, and 1735f-14; 42 U.S.C. 3535(d). 2. Revise § 25.2 to read as follows: § 25.2 Establishment and authority of Board.
(a)*Establishment of the Board.* The Mortgagee Review Board (Board) was established in the Federal Housing Administration, which is in the Office of the Assistant Secretary for Housing— Federal Housing Commissioner, by section 202(c)(1) of the National Housing Act (12 U.S.C. 1708(c)(1)), as added by section 142 of the Department of Housing and Urban Development Reform Act of 1989 (Pub. L. 101-235, approved December 15, 1989).
(b)*Authority of the Board.* The Board has the authority to initiate administrative actions against mortgagees and lenders under 12 U.S.C. 1708(c) and shall exercise all of the functions of the Secretary with respect to administrative actions against mortgagees and lenders and such other functions as are provided in this part. The Board shall have all powers necessary and incident to the performance of these functions and such other functions as are provided in this part, except as limited by this part.
(1)*Administrative Actions.* The Board has the authority to take any administrative action against mortgagees and lenders as provided in 12 U.S.C. 1708(c). The Board may delegate its authority to take all nondiscretionary acts.
(2)*Civil Money Penalties.* The Board is authorized pursuant to section 536 of the National Housing Act (12 U.S.C. 1735(f)-14) to impose civil money penalties upon mortgagees and lenders, as set forth in 24 CFR part 30. The violations for which a civil money penalty may be imposed are listed in subpart B (Violations) of 24 CFR part 30. Hearings to challenge the imposition of civil money penalties shall be conducted according to the applicable rules of 24 CFR part 30.
(3)*Authorization for other administrative actions.* The Board may, in its discretion, approve the initiation of a suspension or debarment action against a mortgagee or lender by any Suspending or Debarring Official under 24 CFR part 24. 3. In § 25.3, remove the definitions of “Hearing Official” and “Hearing Officer.” 4. In § 25.4, revise paragraphs
(a)and
(b)to read as follows: § 25.4 Operation of the Mortgagee Review Board.
(a)*Members.* The Board consists of those HUD officials designated to serve on the Board by section 202(c)(2) of the National Housing Act (12 U.S.C. 1708(c)(2)).
(b)*Advisors.* The Inspector General or his or her designee, and the Director of the Office of Lender Activities and Program Compliance (or such other position as may be assigned such duties), and such other persons as the Board may appoint, shall serve as nonvoting advisors to the Board. 5. Revise § 25.5 to read as follows: § 25.5 Administrative actions.
(a)*General.* The Board is authorized to take administrative actions in accordance with 12 U.S.C. 1708(c), including, but not limited to, the following: issue a letter of reprimand, probation, suspension, or withdrawal; or enter into a settlement agreement.
(b)*Letter of reprimand.* A letter of reprimand shall be effective upon receipt of the letter by the mortgagee. Failure to comply with a directive in the letter of reprimand may result in any other administrative action as provided by 12 U.S.C. 1708(c) that the Board finds appropriate.
(c)*Probation.* Probation shall be effective upon receipt of the notice of probation by the mortgagee. Failure to comply with the terms of probation may result in any other administrative action as provided by 12 U.S.C. 1708(c) that the Board finds appropriate.
(d)*Suspension.*
(1)*Effect of suspension.*
(i)During the period of suspension, HUD will not endorse any mortgage originated by the suspended mortgagee under the Title II program unless prior to the date of suspension:
(A)A firm commitment has been issued relating to any such mortgage; or
(B)A Direct Endorsement underwriter has approved the mortgagor for any such mortgage.
(ii)During the period of suspension, a lender or loan correspondent may not originate new Title I loans under its Title I Contract of Insurance or apply for a new Contract of Insurance.
(2)*Effective date of suspension.* A suspension issued pursuant to § 25.7(d) is effective upon issuance. Any other suspension is effective upon receipt of the notice of suspension by the mortgagee.
(e)*Withdrawal.*
(1)*Effect of withdrawal.*
(i)During the period of withdrawal, HUD will not endorse any mortgage originated by the withdrawn mortgagee under the Title II program, unless prior to the date of withdrawal:
(A)A firm commitment has been issued relating to any such mortgage; or
(B)A Direct Endorsement underwriter has approved the mortgagor for any such mortgage.
(ii)During the period of withdrawal, a lender or loan correspondent may not originate new Title I loans under its Title I Contract of Insurance or apply for a new Contract of Insurance. The Board may limit the geographical extent of the withdrawal, or limit its scope ( *e.g.* , to either the single family or multifamily activities of a withdrawn mortgagee). Upon the expiration of the period of withdrawal, the mortgagee may file a new application for approval under 24 CFR part 202.
(2)*Effective date of withdrawal.*
(i)If the Board determines that immediate action is in the public interest or in the best interests of the Department, then withdrawal shall be effective upon receipt of the Board's notice of withdrawal.
(ii)If the Board does not determine that immediate action is necessary according to paragraph (e)(2)(i) of this section, then withdrawal shall be effective either:
(A)Upon the expiration of the 30-day period specified in § 25.10, if the mortgagee has not requested a hearing; or
(B)Upon receipt of the Board's decision under § 25.10, if the mortgagee requests a hearing. §§ 25.10 and 25.11 [Removed] 6. Remove §§ 25.10 and 25.11. 7. Redesignate §§ 25.6, 25.7, 25.8, and 25.9 as §§ 25.7, 25.9, 25.10, and 25.6, respectively. 8. In newly designated § 25.6, revise the section heading, the introductory text, and paragraphs (g), (j), (x), and (ff), to read as follows: § 25.6 Violations creating grounds for administrative action. Any administrative action imposed under 12 U.S.C. 1708(c) shall be based upon one or more of the following violations:
(g)Failure to comply with any agreement, certification, undertaking, or condition of approval listed on, or applicable to, either a mortgagee's application for approval or an approved mortgagee's branch office notification;
(j)Violation of the requirements of any contract or agreement with the Department, or violation of the requirements set forth in any statute, regulation, handbook, mortgagee letter, or other written rule or instruction;
(x)Failure to submit a report required under 24 CFR 202.12(c) within the time determined by the Commissioner, or to commence or complete a plan for corrective action under that section within the time agreed upon with the Commissioner.
(ff)Any other violation of Federal Housing Administration requirements that the Board or the Secretary determines to be so serious as to justify an administrative sanction. 9. Revise newly designated § 25.7, to read as follows: § 25.7 Notice of violation.
(a)*General.* The Chairperson of the Board, or the Chairperson's designee, shall issue a written notice to the mortgagee at the mortgagee's address of record at least 30 days prior to taking any action under 12 U.S.C. 1708(c) against the mortgagee. Proof of delivery to the mortgagee's address of record shall establish the mortgagee's receipt of the notice. The notice shall state the specific violations that have been alleged, and shall direct the mortgagee to reply in writing to the Board within 30 days after receipt of the notice by the mortgagee. The notice shall also provide the address to which the response shall be sent. If the mortgagee fails to reply during such time period, the Board may make a determination without considering any comments of the mortgagee.
(b)*Mortgagee's response.* The mortgagee's response to the Board shall be in a format prescribed by the Secretary and shall not exceed 15 double-spaced typewritten pages. The response shall include an executive summary, a statement of the facts surrounding the matter, an argument, and a conclusion. Such response shall also address the factors listed in § 25.8. A more lengthy submission, including documents and other exhibits, may be simultaneously submitted to Board staff for review.
(c)*Exception for letter of reprimand.* Whenever information comes before the Board that discloses a basis for the issuance of a letter of reprimand, the Board may issue the letter without having previously issued a notice of violation.
(d)*Exception for immediate suspension.* If the Board determines that there exists adequate evidence that immediate action is required to protect the financial interests of the Department or the public, the Board may take a suspension action without having previously issued a notice of violation. 10. Add § 25.8, to read as follows: § 25.8 Factors considered in taking administrative action. In determining which administrative action under 12 U.S.C. 1708(c), if any, should be taken, the Board will consider, among other factors, the seriousness and extent of the violations, the degree of mortgagee responsibility for the occurrences, and any other mitigating or aggravating facts. Where the Board is considering the taking of a withdrawal action, the Board will also consider whether the violations were egregious or willful in order to determine whether a permanent withdrawal is mandated by 12 U.S.C. 1708(c). 11. Revise newly designated § 25.9 to read as follows: § 25.9 Notice of administrative action.
(a)Whenever the Board decides to take an action in accordance with 12 U.S.C. 1708(c)(3), the Chairperson of the Board, or the Chairperson's designee, shall issue a written notice of the action to the mortgagee at the mortgagee's address of record of the determination. Proof of delivery to the mortgagee's address of record shall establish the mortgagee's receipt of the notice.
(b)In actions for probation, suspension, or withdrawal, the notice shall describe the nature and duration of the administrative action, and shall specifically state the reasons for the action. In actions for probation, suspension, or withdrawal, the notice shall inform the mortgagee of its right to a hearing, pursuant to § 25.10, regarding the administrative action and of the manner and time in which to request a hearing. 12. Revise newly designated § 25.10 to read as follows: § 25.10 Hearings and hearing request.
(a)*Hearing request.* A mortgagee subject to administrative action under 12 U.S.C. 1708(c) (except for a letter of reprimand) is entitled to a hearing, which, when requested, shall be held on the record. The mortgagee shall submit its request for a hearing within 30 days of receiving the Board's notice of administrative action. The request shall be addressed to the Mortgagee Review Board Docket Clerk, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410. The request shall specifically respond to the violations set forth in the notice of administrative action. If the mortgagee fails to request a hearing within 30 days after receiving the notice of administrative action, the Board's action shall become final.
(b)*Hearing by Administrative Law Judge.* Hearings are to be conducted by an Administrative Law Judge (ALJ), as set forth in this part. The ALJ shall commence a de novo hearing within 30 days of HUD's receipt of the mortgagee's request, unless the parties agree to an extension. The ALJ may extend this time period for good cause.
(c)*Procedural rules* . The hearing shall be conducted in accordance with the applicable provisions of 24 CFR part 26, with the following modifications:
(1)The mortgagee or its representative shall be afforded an opportunity to appear, submit documentary evidence, present witnesses, and confront any witness the agency presents, except that the parties shall not be allowed to present members of the Board as witnesses.
(2)Discovery of information and/or documents that do not pertain to the appealing mortgagee, including, but not limited to, reviews or audits by the Department or administrative actions by the Board against mortgagees other than the appealing mortgagee, shall not be permitted. Members of the Board shall not be subject to deposition.
(3)The hearing shall generally be held in Washington, DC. However, upon a showing of undue hardship or other cause, the ALJ may, in his or her discretion, order the hearing to be held in a location other than Washington, DC. 13. Revise § 25.12 to read as follows: § 25.12 Public access to information; Publication of actions.
(a)Where a notice of administrative action does not result in a hearing and in any cases in which a settlement is entered into by the Board and a mortgagee, all non-privileged information regarding the nature of the violation and the resolution of the action shall be available to the public.
(b)*Publication in the Federal Register* . The Secretary shall publish, in the **Federal Register** , a description of and the cause for each administrative action taken by the Board against a mortgagee.
(c)*Notification of other agencies* . Whenever the Board has taken any discretionary action to suspend and/or withdraw the approval of a mortgagee, the Secretary shall provide prompt notice of the action and a statement of the reasons for the action to the Secretary of Veterans Affairs; the chief executive officer of the Federal National Mortgage Association; the chief executive officer of the Federal Home Loan Mortgage Corporation; the Administrator of the Rural Housing Service (formerly the Farmers Home Administration); the Comptroller of the Currency, if the mortgagee is a National Bank or District Bank or subsidiary or affiliate of such a bank; the Board of Governors of the Federal Reserve System, if the mortgagee is a state bank that is a member of the Federal Reserve System or a subsidiary or affiliate of such a bank, or a bank holding company or a subsidiary or affiliate of such a company; the Board of Directors of the Federal Deposit Insurance Corporation, if the mortgagee is a state bank that is not a member of the Federal Reserve System, or is a subsidiary or affiliate of such a bank; and the Director of the Office of Thrift Supervision, if the mortgagee is a federal or state savings association or a subsidiary or affiliate of a savings association.
(d)*Notification to GNMA of withdrawal actions* . Whenever the Board issues a notice of violation that could lead to withdrawal of a mortgagee's approval, or is notified by GNMA of an action that could lead to withdrawal of GNMA approval, the Board shall proceed in accordance with 12 U.S.C. 1708(d). § 25.13 [Removed] 14. Section 25.13 is removed. 15. Section 25.14 is redesignated as § 25.11 and is revised to read as follows: § 25.11 Prohibition against modification of Board orders. No ALJ before whom proceedings are conducted under § 25.10 shall modify or otherwise disturb in any way an order or notice by the Board until the hearing under § 25.10 has been concluded. Any order issued by the presiding ALJ following the conclusion of the hearing under § 25.10 shall not become effective until all administrative appeals have been exhausted. 16. Redesignate § 25.15 as § 25.13. Dated: *February 26, 2008* . Brian D. Montgomery, Assistant Secretary for Housing—Federal Housing Commissioner . [FR Doc. E8-6323 Filed 3-27-08; 8:45 am] BILLING CODE 4210-67-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-133300-07] RIN 1545-BG80 Automatic Contribution Arrangements; Hearing AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of public hearing on proposed rulemaking. SUMMARY: This document provides notice of public hearing on a notice of proposed rulemaking under sections 401(k), 401(m), 402(c), 411(a), 414(w), and 4979(f) of the Internal Revenue Code relating to automatic contribution arrangements. These proposed regulations will affect administrators of, employers maintaining, participants in, and beneficiaries of eligible plans that include an automatic contribution arrangement under section 401(k)(13), 401(m)(12), or 414(w). DATES: The public hearing is being held on Monday, May 19, 2008, at 10 a.m. The IRS must receive outlines of the topics to be discussed at the hearing by Monday, April 28, 2008. ADDRESSES: The public hearing is being held in the auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Send submissions to: CC: PA: LPD: PR (REG-133300-07), room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC: PA: LPD: PR (REG-133300-07), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC. Alternatively, taxpayers may submit electronic outlines of oral comments via the Federal eRulemaking Portal at *http://www.regulations.gov* . FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, R. Lisa Mojiri-Azad, Dana Barry or William D. Gibbs at
(202)622-6060; concerning submissions of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Richard A. Hurst at *Richard.A.Hurst@irscounsel.treas.gov* or
(202)622-7180 (not toll-free numbers). SUPPLEMENTARY INFORMATION: The subject of the public hearing is the notice of proposed rulemaking (REG-133300-07) that was published in the **Federal Register** on Thursday, November 8, 2007 (72 FR 63144). Persons, who wish to present oral comments at the hearing that submitted written comments, must submit an outline of the topics to be discussed and the amount of time to be devoted to each topic (signed original and eight
(8)copies) by April 28, 2008. A period of 10 minutes is allotted to each person for presenting oral comments. After the deadline for receiving outlines has passed, the IRS will prepare an agenda containing the schedule of speakers. Copies of the agenda will be made available, free of charge, at the hearing or in the Freedom of Information Reading Room (FOIA RR) (Room 1621) which is located at the 11th and Pennsylvania Avenue, NW., entrance, 1111 Constitution Avenue, NW., Washington, DC. Because of access restrictions, the IRS will not admit visitors beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this document. LaNita Van Dyke, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration). [FR Doc. E8-6308 Filed 3-27-08; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-114126-07] RIN 1545-BG54 Reduction of Foreign Tax Credit Limitation Categories Under Section 904(d); Hearing Cancellation AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Cancellation of notice of public hearing on proposed rulemaking by cross-reference to temporary regulations. SUMMARY: This document cancels a public hearing on proposed regulations that provide guidance relating to the reduction of the number of separate foreign tax credit limitation categories under section 904(d) of the Internal Revenue Code. Changes to the applicable law were made by the American Jobs Creation Act of 2004 reducing the number of section 904(d) separate categories from eight to two, effective for taxable years beginning after December 31, 2006. DATES: The public hearing, originally scheduled for April 22, 2008, at 10 a.m. is cancelled. FOR FURTHER INFORMATION CONTACT: Funmi Taylor of the Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration) at
(202)622-3628 (not a toll-free number). SUPPLEMENTARY INFORMATION: A notice of proposed rulemaking by cross-reference to temporary regulations and a notice of public hearing that appeared in the **Federal Register** on Friday, December 21, 2007 (72 FR 72645), announced that a public hearing was scheduled for April 22, 2008, at 10 a.m. in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. The subject of the public hearing is under the section 904 of the Internal Revenue Code. The public comment period for these regulations expired on March 20, 2008. The notice of proposed rulemaking by cross-reference to temporary regulations and notice of public hearing instructed those interested in testifying at the public hearing to submit a request to speak and an outline of the topics to be addressed. As of Tuesday, March 25, 2008, no one has requested to speak. Therefore, the public hearing scheduled for April 22, 2008, is cancelled. LaNita Van Dyke, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration). [FR Doc. E8-6306 Filed 3-27-08; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-141399-07] RIN 1545-BH13 Treatment of Overall Foreign and Domestic Losses; Hearing AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Cancellation of notice of public hearing on proposed rulemaking by cross-reference to temporary regulations. SUMMARY: This document cancels a public hearing on proposed rulemaking by cross-reference to temporary regulations providing guidance relating to the recapture of overall foreign and domestic losses. DATES: The public hearing, originally scheduled for April 10, 2008, at 10 a.m., is cancelled. FOR FURTHER INFORMATION CONTACT: Richard A. Hurst of the Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration), at *Richard.A.Hurst@irscounsel.treas.gov* . SUPPLEMENTARY INFORMATION: A notice of public hearing that appeared in the **Federal Register** on Friday, December 21, 2007 (72 FR 72646), announced that a public hearing was scheduled for April 10, 2008, at 10 a.m., in the auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. The subject of the public hearing is under section 904 of the Internal Revenue Code. The public comment period for these regulations expired on March 20, 2008. Outlines of topics to be discussed at the hearing were due on March 20, 2008. The notice of proposed rulemaking by cross-reference to temporary regulations and notice of public hearing instructed those interested in testifying at the public hearing to submit an outline of the topics to be addressed. As of Friday, March 21, 2008, no one has requested to speak. Therefore, the public hearing scheduled for April 10, 2008, is cancelled. LaNita Van Dyke, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration). [FR Doc. E8-6307 Filed 3-27-08; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF LABOR Office of Labor-Management Standards 29 CFR Part 403 RIN 1215-AB64 Labor Organization Annual Financial Reports AGENCY: Office of Labor-Management Standards, Employment Standards Administration, United States Department of Labor. ACTION: Proposed rule; extension of comment period. SUMMARY: This document extends the period for comments on the proposed rule published on March 4, 2008 (73 FR 11754). The proposed rule would establish the financial report (Form T-1) required to be filed by labor organizations under the Labor-Management Reporting and Disclosure Act of 1959, as amended, on trusts in which they are interested. The comment period, which was to expire on April 18, 2008, is extended to May 5, 2008. DATES: Comments on the proposed rule published on March 4, 2008 (73 FR 11754) must be received on or before May 5, 2008. ADDRESSES: You may submit comments, identified by RIN 1215-AB64, by any of the following methods: *Internet* —Federal eRulemaking Portal. Electronic comments may be submitted through *http://www.regulations.gov* . To locate the proposed rule, use key words such as “Labor-Management Standards” or “Labor Organization Annual Financial Reports” to search documents accepting comments. Follow the instructions for submitting comments. Please be advised that comments received will be posted without change to *http://www.regulations.gov* , including any personal information provided. *Mail:* Mailed comments should be sent to: Kay H. Oshel, Director of the Office of Policy, Reports and Disclosure, Office of Labor-Management Standards, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5609, Washington, DC 20210. Because of security precautions, the Department continues to experience delays in U.S. mail delivery. You should take this into consideration when preparing to meet the deadline for submitting comments. OLMS recommends that you confirm receipt of your mailed comments by contacting
(202)693-0123 (this is not a toll-free number). Individuals with hearing impairments may call
(800)877-8339 (TTY/TDD). Only those comments submitted through *www.regulations.gov* , hand-delivered, or mailed will be accepted. Comments will be available for public inspection during normal business hours at the above address. FOR FURTHER INFORMATION CONTACT: Kay H. Oshel, Director of the Office of Policy, Reports and Disclosure, at: Kay H. Oshel, U.S. Department of Labor, Office of Labor-Management Standards, 200 Constitution Avenue, NW., Room N-5609, Washington, DC 20210,
(202)693-1233 (this is not a toll-free number),
(800)877-8339 (TTY/TDD). SUPPLEMENTARY INFORMATION: In the **Federal Register** of March 4, 2008 (73 FR 11754), the Department published a notice of proposed rulemaking that would establish the Form T-1 to be used by labor organizations to file annual financial reports on trusts in which they are interested. Interested persons were invited to submit comments on or before April 18, 2008, 45 days after the publication of the notice. Based on requests that the Department extend the period for submitting comments, the Department has decided to extend the comment period until May 5, 2008. The proposed rule, including the proposed Form T-1 and its instructions, is available on the Web site maintained by OLMS at: *http://www.olms.dol.gov* . (Anyone who is unable to access this information on the Internet can obtain the information by contacting the Employment Standards Administration at 200 Constitution Avenue, NW., Room N-5609, Washington, DC 20210, at: *olms-public@dol.gov* or at
(202)693-0123 (this is not a toll-free number). Individuals with hearing impairments may call 1-800-877-8339 (TTY/TDD). Signed at Washington, DC, this 24th day of March, 2008. Victoria A. Lipnic, Assistant Secretary for Employment Standards. Don Todd, Deputy Assistant Secretary for Labor-Management Programs. [FR Doc. E8-6301 Filed 3-27-08; 8:45 am] BILLING CODE 4510-86-P DEPARTMENT OF DEFENSE Office of the Secretary 32 CFR Part 199 [DoD-2007-HA-0078; RIN 0720-AB17] TRICARE; Relationship Between the TRICARE Program and Employer-Sponsored Group Health Plans AGENCY: Office of the Secretary, Department of Defense. ACTION: Proposed Rule. SUMMARY: This proposed rule implements Section 1097c of Title 10, United States Code. This law prohibits employers from offering incentives to TRICARE-eligible employees to not enroll, or to terminate enrollment, in an employer-offered Group Health Plan
(GHP)that is or would be primary to TRICARE. Cafeteria plans that comport with section 125 of the Internal Revenue Code will be permissible so long as the plan treats all employees the same and does not illegally take TRICARE eligibility into account. DATES: Written comments received at the address indicated below by May 27, 2008 will be accepted. ADDRESSES: You may submit comments, identified by docket number and/or RIN number and title, by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the instructions for submitting comments. • *Mail:* Federal Docket Management System Office, 1160 Defense Pentagon, Washington, DC 20301-1160. *Instructions:* All submissions received must include the agency name and docket number or Regulatory Information Number
(RIN)for this **Federal Register** document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at *http://regulations.gov* as they are received without change, including any personal identifiers or contact information. FOR FURTHER INFORMATION CONTACT: Anne Giese, TRICARE Policy and Operations, TRICARE Management Activity, 5111 Leesburg Pike, Suite 810, Falls Church, VA, 22041, telephone
(703)681-0039. SUPPLEMENTARY INFORMATION: I. Background Section 707 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364) added Section 1097c to Title 10, United States Code. Section 1097c prohibits employers from offering financial or other incentives to certain TRICARE-eligible employees (essentially retirees and their family members) to not enroll in an employer-offered GHP in the same manner as employers are currently prohibited from offering incentives to Medicare-eligible employees under section 1862(b)(3)(C) of the Social Security Act (42 U.S.C. 1395y(b)(3)(C)). Many employers, including state and local governments, have begun to offer their employees who are TRICARE-eligible a TRICARE supplemental insurance as an incentive not to enroll in the employer's primary GHP. These actions shift thousands of dollars of annual health costs per employee to the Defense Department, draining resources from higher national security priorities. TRICARE, as is Medicare, is a secondary payer to employer-provided health insurance. In all instances where a TRICARE beneficiary is employed by a public or private entity and elects to participate in a GHP, reimbursements for TRICARE claims will be paid as a secondary payer to the TRICARE beneficiary's employer-sponsored GHP. TRICARE is not responsible for paying first as it relates to reimbursements for a TRICARE beneficiary's health care and the coordination of benefits with employer-sponsored GHPs. An identified employer-sponsored health insurance plan will be the primary payer and TRICARE will be the secondary payer. TRICARE will generally pay no more than the amount it would have paid if there were no employer GHP. As applicable to both the Medicare and TRICARE secondary payer programs, the term “group health plan” means a plan (including a self-insured plan) of, or contributed to by, an employer (including a self-employed person) or employee organization to provide health care (directly or otherwise) to the employees, former employees, the employer, others associated or formerly associated with the employer in a business relationship, or their families. It should be noted that by including any plan of an employer to provide health care to the employees, this definition is very broad. It should also be noted that Section 1097c also reaches to any other plan that would be primary to TRICARE. Prohibition on incentives not to enroll in employer-sponsored GHPs is to prevent employers from shifting their responsibility for their employees onto the Federal taxpayers. Certain common employer benefits programs do not constitute improper incentives under the law. For example, supplemental insurance offered under an employer's cafeteria plan which comports with section 125 of the Internal Revenue Code would not be considered improper incentive, as long as it is not a TRICARE-exclusive plan. A cafeteria plan is defined by the Internal Revenue Code, 26 U.S.C. 125(d), as a written plan under which all participants are employees and the participants may choose among two or more benefits consisting of cash and qualified benefits. Employers who adhere to the requirements of section 125 and offer all employees without regard to TRICARE eligibility a choice between health insurance and cash payment equivalents are not considered in violation of 42 U.S.C. 1395y(b)(3)(C). Therefore, if a TRICARE beneficiary elects the cash payment option as a benefit offered under the employer's cafeteria plan, one which meets section 125 requirements, then the employer would not be in violation of these provisions. 10 U.S.C. 1097c prohibits TRICARE supplemental insurance plans as an option for health coverage under an employer-sponsored GHP to TRICARE-eligible beneficiaries. Such plans cannot be included in cafeteria plans because they are not open to all employees, and constitute an improper incentive targeted only at TRICARE beneficiaries for not enrolling in the employer's main health plan option or options. Section 1097c does not impact TRICARE supplemental insurance plans that are not offered by an employer; but are sold by an insurer and/or beneficiary association working in conjunction with an insurer. Such non-employer-sponsored TRICARE supplemental insurance will continue to be expressly excluded as double coverage under 32 CFR 199.2(b) and 199.8(b)(4)(ii), so that TRICARE is the primary payer and the TRICARE Supplemental plan is the secondary payer. These plans have been sold by beneficiary associations or insurers. *Cafeteria plans* . Cafeteria plans that comport with section 125 of the Internal Revenue Code are permissible. Additional requirements of any plan offered by the employer are permissible so long as the plan treats all employees the same and does not illegally take TRICARE eligibility into account. The Conference Report accompanying the enactment of section 1097c made clear that supplemental insurance offered by employers through cafeteria plans are permissible under 1097c only if they are “non-TRICARE exclusive employer-provider health care incentives.” TRICARE-exclusive plans even if offered under cafeteria plans, are not allowed. However, an employer incentive not to enroll in the employer's Group Health plan does not violate this new law if the incentive is available to and can be used by all employees, and not limited to employees who are also TRICARE beneficiaries. For example, non-TRICARE exclusive employer-provided health care incentives offered under an otherwise proper employer-sponsored Cafeteria Plan would not be a violation. Similarly, cash payments or other bona fide fringe benefits may properly be offered under the Services Contract Act in lieu of health care coverage so long as the employer does not consider TRICARE eligibility when formulating the cash payment or fringe benefits options for an employee. It has been determined that the regulation is economically significant. An economic analysis has been completed. II. Regulatory Enforcement Enforcement of this prohibition is afforded through the authority provided by section 1097c: civil monetary penalties not to exceed $5000 for each violation, investigative authorities of the Department of Defense Inspector General, recourse under the Debt Collection Improvement Act, 31 U.S.C. 3701 *et seq.* , and any other authority provided by law. Procedures for civil monetary penalties will be considered with reference to section 1097c(a)(2)(B), which authorizes agreements between DoD and the Department of Health and Human Services. III. Regulatory Procedures Executive Order 12866, “Regulatory Planning and Review” and Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601) Executive Order 12866 requires that a comprehensive regulatory impact analysis be performed on any economically significant regulatory action, defined as one that would result in an annual effect of $100 million or more on the national economy or which would have other substantial impacts. This rule is an economically significant regulatory action. The Regulatory Flexibility Act
(RFA)requires that each Federal agency prepare, and make available for public comment, a regulatory flexibility analysis when the agency issues a regulation which would have a significant impact on a substantial number of small entities. This rule will not have a significant impact on a substantial number of small entities for purposes of the RFA. This proposed rule is subject to an economic analysis. Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3511) This rule will not impose additional information collection requirements on the public under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3511). Executive Order 13132, “Federalism” We have examined the impact(s) of the proposed rule under Executive Order 13132 and it does not have policies that have federalism implications that would have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, therefore, consultation with State and local officials is not required. Section 202, Public Law 104-4, “Unfunded Mandates Reform Act” This rule does not contain unfunded mandates. It does not contain a Federal mandate that may result in the expenditure by State, local and tribunal governments, in aggregate, or by the private sector, of $100 million or more in any one year. List of Subjects in 32 CFR Part 199 Claims, Health care, Health Insurance, Military personnel. Accordingly, 32 CFR part 199 is proposed to be amended as follows: PART 199—CIVILIAN HEALTH AND MEDICAL PROGRAM OF THE UNIFORMED SERVICES (CHAMPUS) [AMENDED] 1. The authority citation for part 199 continues to read as follows: Authority: 5 U.S.C. 301; 10 U.S.C. chapter 55. 2. Section 199.8 is amended by adding a new paragraph (d)(6) to read as follows: § 199.8 Double coverage.
(d)* * *
(6)*Prohibition against financial and other incentives not to enroll in a group health plan* —(i) *General rule* . An employer or other entity is prohibited from offering TRICARE beneficiaries financial or other benefits as incentives not to enroll in, or to terminate enrollment in, a group health plan that is, or would be, primary to TRICARE. This prohibition applies in the same manner as section 1862(b)(3)(C) of the Social Security Act applies to incentives for a Medicare-eligible employee not to enroll in a group health plan that is or would be primary to Medicare. This prohibition precludes offering to TRICARE beneficiaries an alternative to the employer primary plan unless:
(A)The beneficiary has primary coverage other than TRICARE; or
(B)The benefit is a Cafeteria Plan offered under Section 125 of the Internal Revenue Code and is offered to all employees, including non-TRICARE eligible employees.
(ii)*Remedies and penalties* .
(A)Remedies for violation include, but are not limited to, remedies under the Federal Claims Collection Act, 31 U.S.C. 3701 *et seq.*
(B)Penalties for violation include a civil money penalty of up to $5000 for each violation. The provisions of Section 1128A of the Social Security Act, 42 U.S.C. 1320a-7a, (other than subsections
(a)and (b)) apply to the civil money penalty in the same manner as the provisions apply to a penalty or proceeding under Section 1128A.
(iii)*Definitions* . For the purposes of this paragraph (d)(6):
(A)The term `employer' includes any State or unit of local government and any employer that employs at least 20 employees.
(B)The term `group health plan' means a group health plan (as that term is defined in section 5000(b)(1) of the Internal Revenue Code of 1986 without regard to section 5000(d) of the Internal Revenue Code of 1986).
(C)The term `TRICARE-eligible employee' means a covered beneficiary under section 1086 of title 10, United States Code, Chapter 55, entitled to health care benefits under the TRICARE program.
(iv)*Procedures* . The Departments of Defense and Health and Human Services are authorized to enter into agreements to further carry out this section. Dated: March 21, 2008. L.M. Bynum, Alternate OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. E8-6419 Filed 3-27-08; 8:45 am] BILLING CODE 5001-06-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2007-0647; FRL-8546-4] Approval and Promulgation of State Implementation Plans; State of Utah; Interstate Transport of Pollution and Other Revisions AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve State Implementation Plan
(SIP)revisions submitted by the State of Utah on March 22 and September 17, 2007. The revisions address Interstate Transport Pollution requirements of section 110(a)(2)(D)(i) of the Clean Air Act and a typographical error in Rule R307-130-4, “Options.” The March 22, 2007 submittal adds “Section XXIII, Interstate Transport” to the Utah SIP, and Rule R307-110-36 to the Utah Administrative Code (UAC). The new Rule R307-110-36 incorporates by reference the Interstate Transport declaration into the State rules. The September 17, 2007 submittal amends UAC Rule R307-130-4, “Options,” by removing from the text the word “not” which had been accidentally placed in this rule. This action is being taken under section 110 of the Clean Air Act. In the “Rules and Regulations” section of this **Federal Register** , EPA is approving the State's SIP revision as a direct final rule without prior proposal because the Agency views this as a non-controversial SIP revision and anticipates no adverse comments. A detailed rationale for the approval is set forth in the preamble to the direct final rule. If EPA receives no adverse comments, EPA will not take further action on this proposed rule. If EPA receives adverse comments, EPA will withdraw the direct final rule and it will not take effect. EPA will address all public comments in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. DATES: Written comments must be received on or before April 28, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-OAR-2007-0647, by one of the following methods: • *http://www.regulations.gov* . Follow the online instructions for submitting comments. • E-mail: *videtich.callie@epa.gov* and *mastrangelo.domenico@epa.gov* . Fax:
(303)312-6064 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments). • Mail: Callie Videtich, Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129. • Hand Delivery: Callie Videtich, Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129. Such deliveries are only accepted Monday through Friday, 8 a.m. to 4:55 p.m., excluding Federal holidays. Special arrangements should be made for deliveries of boxed information. Please see the direct final rule which is located in the Rules section of this **Federal Register** for detailed instruction on how to submit comments. FOR FURTHER INFORMATION CONTACT: Domenico Mastrangelo, Air Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129,
(303)312-6436, *mastrangelo.domenico@epa.gov* . SUPPLEMENTARY INFORMATION: See the information provided in the Direct Final action of the same title which is located in the Rules and Regulations section of this **Federal Register** . Authority: 42 U.S.C. 7401 *et seq.* Dated: March 12, 2008. Carol Rushin, Acting Regional Administrator, Region 8. [FR Doc. E8-6272 Filed 3-27-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 165 [EPA-HQ-OPP-2006-0688; FRL-8357-6] RIN 2070-AJ29 Pesticide Container Recycling; Notification to the Secretary of Agriculture AGENCY: Environmental Protection Agency (EPA). ACTION: Notification to the Secretary of Agriculture. SUMMARY: This document notifies the public that the Administrator of EPA has forwarded to the Secretary of Agriculture a draft proposed rule as required by section 25(a) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). As described in the Agency's semi-annual Regulatory Agenda, the draft proposed rule would require that manufacturers of agricultural and professional specialty pesticides support (either by managing and operating, or contracting with another organization) a container recycling program that meets the standards of the American National Standards Institute. ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2006-0688. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the Office of Pesticide Programs
(OPP)Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Jeanne Kasai, Field and External Affairs Division, (7506P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington DC 20460-0001; telephone number:
(703)308-3240; e-mail address: kasai.jeanne *@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? This action is directed to the public in general. It simply announces the submission of a draft proposed rule to the United States Department of Agriculture
(USDA)and does not otherwise affect any specific entities. This action may, however, be of particular interest to pesticide formulators, pesticide container recycling programs, third party certification bodies and accreditation organizations. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be interested in this action. If you have any questions regarding this action, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document and Other Related Information? In addition to using regulations.gov, you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . II. What Action is EPA Taking? Section 25(a)(2) of FIFRA requires the Administrator to provide the Secretary of Agriculture with a copy of any proposed regulation at least 60 days before signing it for publication in the **Federal Register** . The draft proposed rule is not available to the public until after it has been signed by EPA. If the Secretary comments in writing regarding the draft proposed rule within 30 days after receiving it, the Administrator shall include the comments of the Secretary and the Administrator's response to those comments in the proposed rule when published in the **Federal Register** . If the Secretary does not comment in writing within 30 days after receiving the draft proposed rule, the Administrator may sign the proposed regulation for publication in the **Federal Register** anytime after the 30-day period. III. Do Any Statutory and Executive Order Reviews Apply to this Notification? No. This document is not a proposed rule, it is merely a notification of submission to the Secretary of Agriculture. As such, none of the regulatory assessment requirements apply to this document. List of Subjects in Part 165 Environmental protection, packaging and containers, pesticides and pests, recycling. Dated: March 19, 2008. Debra Edwards, Director, Office of Pesticide Programs. [FR Doc. E8-6396 Filed 3-27-08; 8:45 am] BILLING CODE 6560-50-S DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Parts 531 and 533 [Docket No. NHTSA-2008-0060] Notice of Intent to Prepare an Environmental Impact Statement for New Corporate Average Fuel Economy Standards AGENCY: National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Notice of intent; request for scoping comments. SUMMARY: Pursuant to the National Environmental Policy Act (NEPA), NHTSA plans to prepare an Environmental Impact Statement
(EIS)to address the potential environmental impacts of the agency's Corporate Average Fuel Economy program for passenger automobiles (referred to herein as “passenger cars”) and non-passenger automobiles (referred to herein as “light trucks”). The EIS will consider the potential environmental impacts of new fuel economy standards for model year 2011-2015 passenger cars and light trucks that NHTSA will be proposing pursuant to the Energy Independence and Security Act of 2007. To this end, this notice initiates the NEPA scoping process to identify the environmental issues and reasonable alternatives to be examined in the EIS, and requests comments regarding those and other matters related to the scope of NHTSA'S NEPA analysis for the new standards. NHTSA will provide further guidance for the public about the scoping process in a separate notice that will be published when the proposal itself is published. DATES: The scoping process will culminate in the preparation and issuance of a Draft EIS, which will be made available for public comment. Interested persons are requested to submit their scoping comments as soon as possible after the issuance of the proposal in order to ensure their consideration and facilitate the agency's prompt preparation of the Draft EIS. ADDRESSES: You may submit comments to the docket number identified in the heading of this document by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the online instructions for submitting comments. • *Mail:* Docket Management Facility, M-30, U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery or Courier:* U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. Eastern time, Monday through Friday, except Federal holidays. • *Fax:* 202-493-2251. Regardless of how you submit your comments, you should mention the docket number of this document. You may call the Docket at 202-366-9324. Note that all comments received, including any personal information provided, will be posted without change to *http://www.regulations.gov* . FOR FURTHER INFORMATION CONTACT: For technical issues, contact Carol Hammel-Smith, Fuel Economy Division, Office of International Vehicle, Fuel Economy and Consumer Standards, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590. Telephone: 202-366-5206. For legal issues, contact Kerry E. Rodgers, Vehicle Safety Standards & Harmonization Division, Office of the Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590. Telephone: 202-366-5552. SUPPLEMENTARY INFORMATION: NHTSA is preparing a notice of proposed rulemaking
(NPRM)to propose Corporate Average Fuel Economy
(CAFE)standards for model year
(MY)2011-2015 passenger cars and light trucks pursuant to the amendments made by the Energy Independence and Security Act of 2007, Public Law 110-140, 121 Stat. 1492 (December 19, 2007) (EISA), to the Energy Policy and Conservation Act (EPCA). 1 49 U.S.C.A. 32901 *et seq.* NHTSA intends to prepare an Environmental Impact Statement
(EIS)to address the potential environmental impacts of the proposed standards in the context of NHTSA's CAFE program. 1 On February 20, 2008, NHTSA submitted a draft NPRM proposing those standards to the Office of Management and Budget for review pursuant to Executive Order 12,866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), as amended. This notice of intent initiates the scoping process for the EIS under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4347, and implementing regulations issued by the Council on Environmental Quality (CEQ), 40 CFR Pt. 1500, and NHTSA, 49 CFR Pt. 520. See 40 CFR 1501.7, 1508.22; 49 CFR 520.21(g). Specifically, this notice of intent requests public input on the scope of NHTSA's NEPA analysis relating to the CAFE standards for MY 2011-2015 automobiles. As a related part of the NEPA scoping process, NHTSA intends to describe proposed standards to meet EPCA's requirements and the possible alternatives NHTSA plans to consider for purposes of its NEPA analysis in its NPRM and in a separate scoping notice that will provide further guidance for the public about the scoping process. See 40 CFR 1508.22. EPCA sets forth extensive requirements concerning the rulemaking to establish MY 2011-2015 CAFE standards. It requires the Secretary of Transportation 2 to establish CAFE standards at least 18 months before each model year and to set them at “the maximum feasible average fuel economy level that the Secretary decides the manufacturers can achieve in that model year.” 49 U.S.C.A. 32902(a). In making decisions about “maximum feasible” levels of fuel economy, the Secretary is required to “consider technological feasibility, economic practicability, the effect of other motor vehicle standards of the Government on fuel economy, and the need of the United States to conserve energy.” 49 U.S.C. 32902(a), 32902(f). In past rulemakings, NHTSA has construed these statutory factors as including environmental and safety considerations. 3 NHTSA also considers environmental impacts under NEPA when setting CAFE standards. 2 NHTSA is delegated responsibility for implementing the EPCA fuel economy requirements assigned to the Secretary of Transportation. 49 CFR 1.50, 501.2(a)(8). 3 There is case law with respect to the consideration of safety. See, e.g., *Competitive Enterprise Inst.* v. *NUTSA* , 956 F.2d 321, 322 (D.C. Cir. 1992) (citing *Competitive Enterprise Inst.* v. *NIHTSA* , 901 F.2d 107, 120 n.11 (D.C. Cir. 1990)): *see also Center for Biological Diversity* v. *NHTSA* , 508 F.3d 508, 547 (9th Cir. 2007). EPCA further directs the Secretary, after consultation with the Secretary of Energy and the Administrator of the Environmental Protection Agency, to establish separate average fuel economy standards for passenger cars and for light trucks manufactured in each model year beginning with model year 2011 “to achieve a combined fuel economy average for model year 2020 of at least 35 miles per gallon for the total fleet of passenger and non-passenger automobiles manufactured for sale in the United States for that model year.” 49 U.S.C.A. 32902(b)(1), 32902(b)(2)(A). In doing so, the Secretary of Transportation is required to “prescribe annual fuel economy standard increases that increase the applicable average fuel economy standard ratably beginning with model year 2011 and ending with model year 2020.” 49 U.S.C.A. 32902(b)(2)(C). The standards for passenger cars and light trucks must be “based on 1 or more vehicle attributes related to fuel economy,” 49 U.S.C.A. 32902(b)(3)(A). In any single rulemaking, standards may be established for not more than five model years. 49 U.S.C.A. 32902(b)(3)(B). EPCA also specifies a minimum standard for domestically manufactured passenger cars. 49 U.S.C.A. 32902(b)(4). In preparing an EIS for the new MY 2011-2015 CAFE standards, NHTSA intends to consider issues raised in litigation concerning a 2006 final rule, “Average Fuel Economy Standards for Light Trucks, Model Years 2008-2011,” 71 FR 17,566, April 6, 2006 (2006 Rule). NHTSA prepared a final EA for the 2006 Rule after publishing a draft EA for public comment and considering the comments received. Based on the final EA, NHTSA determined that the 2006 Rule would not have a significant effect on the quality of the human environment and that the agency therefore was not required to prepare an EIS. See 71 FR at 17,671; 42 U.S.C. 4332(2)(C). 4 4 Before preparing an EIS, an agency may prepare a more concise environmental assessment
(EA)to present “sufficient evidence and analysis for determining whether to prepare an [EIS] or a finding of no significant impact” and to “[f]acilitate preparation of [an EIS] when one is necessary.” 40 CFR 1508.9(a)(1), (3). NHTSA's final EA and Finding of No Significant Impact (FONSI) are available in the docket for the 2006 Rule. *See* Docket No. NHTSA-2006-24309-0006 (Final Environmental Assessment: NHTSA Corporate Average Fuel Economy
(CAFE)Standards, March 29, 2006): Docket No. NHTSA 2006-24309-0003[1] (Finding of No Significant Environmental Impact for Model Year 2008-2011 Light Truck Fuel Economy Standards, March 28, 2006). In a challenge to the 2006 Rule, petitioners argued in the U.S. Court of Appeals for the Ninth Circuit that NHTSA's EA did not comply with NEPA and that NEPA requires the agency to prepare an EIS. *See Center for Biological Diversity* v. *NHTSA* , 508 F.3d 508, 514, 545-58 (9th Cir. 2007). 5 The Court held, among other things, that NHTSA did not prepare an adequate EA under NEPA. 508 F.3d at 548-558. The Court's remedy was to order the agency to prepare an EIS. 508 F.3d 558. The Government is presently seeking rehearing in the Ninth Circuit on the appropriateness of that remedy. 5 The Petitioners also challenged the 2006 Rule under EPCA. *See Center for Biological Diversity* v. *NHTSA* , 508 F.3d at 527-45. In any event, NHTSA must now propose CAFE standards for MY 2011 and beyond, pursuant to the recent amendments to EPCA, to begin increasing CAFE levels so that the combined fleet of all passenger cars and light trucks in MY 2020 will achieve at least 35 mpg. NHTSA, therefore, now needs to engage in a new analysis, including taking a fresh look at potential environmental impacts under NEPA, and assessing whether or not those impacts are “significant” within the meaning of NEPA law. See 40 CFR 1508.27. NHTSA is beginning the EIS process for that rule, which includes light truck standards for one model year previously covered by the 2006 Rule (MY 2011). We are doing so now because a standard for MY 2011 must be issued by the end of March 2009 and achieving an industry-wide combined fleet average of at least 35 miles per gallon for MY 2020 depends, in substantial part, upon setting standards well in advance so as to provide the automobile manufacturers with as much lead time as possible to make the extensive necessary changes to their automobiles. The scoping process initiated by this notice seeks to determine “the range of actions, alternatives, and impacts to be considered” in the EIS and to identify the most important issues for analysis involving the potential environmental impacts of NHTSA's CAFE standards. See 40 CFR 1501.7, 1508.25. NHTSA invites stakeholders to participate in the scoping process by submitting written comments to the docket number identified in the heading of this notice using any of the methods described in the ADDRESSES section of this notice. NHTSA believes that the EPCA provisions described above regarding the levels of the standards to be established and NHTSA's implementation of the CAFE program to date provide sufficient information to begin the scoping process. This assessment is supported by the public comments submitted on the 2005 NPRM that led to the 2006 Rule (70 FR 51414, August 30, 2005). As noted above, NHTSA plans to publish a separate scoping notice in the **Federal Register** to provide further information and guidance to facilitate public participation in the scoping process. Based on comments received during scoping, NHTSA expects to prepare a draft EIS for public comment and a final EIS to support a final rule later this year. Issued: March 21, 2008. Ronald Medford, Senior Associate Administrator for Vehicle Safety. [FR Doc. E8-6227 Filed 3-27-08; 8:45 am] BILLING CODE 4910-59-M DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 216 [Docket No. 071105649-8028-01] RIN 0648-AW22 Marine Mammals; Advance Notice of Proposed Rulemaking AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Advance notice of proposed rulemaking; extension of comment period. SUMMARY: On January 31, 2008, NMFS published an Advanced Notice of Proposed Rulemaking
(ANPR)soliciting public comments on revisions to its implementing regulations governing the taking of stranded marine mammals. Written comments were due by March 31, 2008. NMFS has decided to allow additional time for submission of public comments on this action. DATES: The public comment period for this action has been extended for 30 days. Written comments must be received or postmarked by April 30, 2008. ADDRESSES: You may submit comments by any one of the following methods: • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal: *http://www.regulations.gov* ; • Fax: 301-427-2522, Attn: Chief, Marine Mammal and Sea Turtle Conservation Division (Stranding Regulations ANPR); or • Mail: Chief, Marine Mammal and Sea Turtle Conservation Division, Attn: Stranding Regulations ANPR, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13635, Silver Spring, MD 20910. Instructions: All comments received are part of the public record and will generally be posted to *http://www.regulations.gov* without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. FOR FURTHER INFORMATION CONTACT: Sarah Howlett at
(301)713-2322. SUPPLEMENTARY INFORMATION: The ANPR, published on January 31, 2008 (73 FR 5786), is available upon request and can be found on the NMFS Office of Protected Resources web site: *http://www.nmfs.noaa.gov/pr/health/mmpa_anpr.htm* . Dated: March 24, 2008. David Cottingham, Chief, Marine Mammal and Sea Turtle Conservation Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E8-6443 Filed 3-27-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR 223 and 224 [Docket No. 080318441-8467-01] RIN 0648-AV36 Endangered and Threatened Wildlife; Notice of 90-Day Finding on a Petition to List the Ribbon Seal as a Threatened or Endangered Species AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce. ACTION: Notice of a 90-day petition finding; request for information; and initiation of status reviews of ribbon, bearded, ringed, and spotted seals. SUMMARY: We
(NMFS)announce a 90-day finding on a petition to list the ribbon seal ( *Histriophoca fasciata* ) as a threatened or endangered species under the Endangered Species Act (ESA). We find that the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. Therefore, we initiate a status review of the ribbon seal to determine if listing under the ESA is warranted. Concurrently, we also initiate a status review of the other ice seal species: bearded ( *Erignathus barbatus* ), ringed ( *Phoca fasciata* ), and spotted ( *Phoca largha* ). To ensure these status reviews are comprehensive, we solicit scientific and commercial information regarding all of these ice seal species. DATES: Information and comments must be submitted to NMFS by May 27, 2008. ADDRESSES: You may submit comments, information, or data, identified by the Regulation Identifier Number (RIN), 0648-AV36, by any of the following methods: Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal: *http://www.regulations.gov* . Mail: Assistant Regional Administrator, Protected Resources Division, NMFS, Alaska Regional Office, P.O. Box 21668, Juneau, AK 99802. Facsimile (fax): 907-586-7012. Instructions: All comments received are a part of the public record and will generally be posted to *http://www.regulations.gov* without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. Interested persons may obtain a copy of the ribbon seal petition from the above address or online from the NMFS Alaska Region website: *http://www.fakr.noaa.gov/protectedresources/seals/ice.htm* . FOR FURTHER INFORMATION CONTACT: James Wilder, NMFS Alaska Region,
(907)271 6620; Kaja Brix, NMFS Alaska Region,
(907)586-7235; or Marta Nammack, NMFS, Office of Protected Resources,
(301)713-1401. SUPPLEMENTARY INFORMATION: Section 4(b)(3)(A) of the ESA of 1973, as amended (U.S.C. 1531 *et seq.* ), requires, to the maximum extent practicable, that within 90 days of receipt of a petition to designate a species as threatened or endangered, the Secretary of Commerce (Secretary) make a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. Joint ESA-implementing regulations between NMFS and U.S. Fish and Wildlife Service (50 CFR 424.14) define “substantial information” as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. In making a finding on a petition to list a species, the Secretary must consider whether the petition:
(i)clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved;
(ii)contains a detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species;
(iii)provides information regarding the status of the species over all or a significant portion of its range; and
(iv)is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)). To the maximum extent practicable, this finding is to be made within 90 days of the date the petition was received, and the finding is to be published promptly in the **Federal Register** . When it is found that substantial information is presented in the petition, we are required to promptly commence a review of the status of the species concerned. Within 1 year of receipt of the petition, we shall conclude the review with a finding as to whether or not the petitioned action is warranted. Under the ESA, a listing determination may address a species, subspecies, or a distinct population segment
(DPS)of any vertebrate species which interbreeds when mature (16 U.S.C. 1532(15)). A joint NOAA-USFWS policy clarifies the agencies' interpretation of the phrase “distinct population segment of any species of vertebrate fish or wildlife” (ESA section 3(16)) for the purposes of listing, delisting, and reclassifying a species under the ESA (61 FR 4722, February 7, 1996). The joint DPS policy established two criteria that must be met for a population or group of populations to be considered a DPS:
(1)the population segment must be discrete in relation to the remainder of the species (or subspecies) to which it belongs; and
(2)the population segment must be significant to the remainder of the species (or subspecies) to which it belongs. A population segment may be considered discrete if it satisfies either one of the following conditions:
(1)it is markedly separated from other populations of the same biological taxon as a consequence of physical, physiological, ecological, or behavioral factors (quantitative measures of genetic or morphological discontinuity may provide evidence of this separation); or
(2)it is delimited by international governmental boundaries across which there is a significant difference in exploitation control, habitat management, conservation status, or if regulatory mechanisms exist that are significant in light of section 4(a)(1) of the ESA. If a population is determined to be discrete, the agency must then consider whether it is significant to the taxon to which it belongs. Considerations in evaluating the significance of a discrete population include:
(1)persistence of the discrete population in an unusual or unique ecological setting for the taxon;
(2)evidence that the loss of the discrete population segment would cause a significant gap in the taxon's range;
(3)evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere outside its historical geographic range; or
(4)evidence that the discrete population has marked genetic differences from other populations of the species. A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, or “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively). Background On December 20, 2007, we received a petition from the Center for Biological Diversity to list the ribbon seal as an endangered species under the ESA. The petitioner also requested that critical habitat be designated for ribbon seals concurrent with listing under the ESA. The petition states the ribbon seal population is a “species” under the definition of the ESA, with distinctive characteristics, morphology, and mtDNA to be considered its own genus, which is the current accepted taxonomy. The petitioner provides genetic and physiological information to support that ribbon seals are discrete from other pinnipeds of the Arctic shelf region. It is the petitioner's contention that the ribbon seal faces global extinction in the wild, and therefore, is an endangered species as defined under 16 U.S.C. 1532(6). The petition presents information on
(1)“global warming which is resulting in the rapid melt of the [seals'] sea-ice habitat;”
(2)“high harvest levels allowed by the Russian Federation;”
(3)“current oil and gas development;”
(4)“rising contaminant levels in the Arctic;” and
(5)“bycatch mortality and competition for prey resources from commercial fisheries.” The petition also presents information on the taxonomy, distribution, habitat requirements, reproduction, diet, natural mortality, and demographics; as well as a discussion of the applicability of the five factors listed under ESA section 4(a)(1). We have reviewed the petition, the literature cited in the petition, and other literature and information available in our files. Based on that literature and information, we find that the petition meets the aforementioned requirements of the regulations under 50 CFR 424.14(b)(2) and, therefore, determine that the petition presents substantial information indicating that the requested listing action may be warranted. It is also our prerogative to broaden the scope of the review if available information indicates such an action is appropriate. In this case, we have also chosen to initiate a status review of the other ice seal species (bearded-- *Erignathus barbatus* , ringed-- *Phoca fasciata* , and spotted-- *Phoca largha* ) in the Alaska region that share similar habitat and biological requirements as ribbon seals ( *Histriophoca fasciata* ). This status review is not subject to the statutory timelines which govern the ribbon seal status review, as outlined above, and will be completed as agency resources allow. Status Review As a result of this finding, we will commence a status review to determine whether or not listing ribbon seals under the ESA is warranted. We intend that any final action resulting from this status review be as accurate and as effective as possible. Because the ribbon seal is one of three marine mammals in Arctic waters (the other two are polar bears— *Ursus maritimus* --and walrus— *Odobenus rosmarus divergens* ), which have been petitioned under the ESA in recent years primarily due to the effects of global climate change, we have decided to also initiate a status review of the other ice seals in U.S. waters. These other ice seal species include the bearded, ringed, and spotted seals. Therefore, we are opening a 60-day public comment period to solicit comments, suggestions, and information from the public, government agencies, the scientific community, industry, and any other interested parties on the status of the ribbon seal and other ice seals throughout their range, including:
(1)Information on taxonomy, abundance, reproductive success, age structure, distribution, habitat selection, food habits, population density and trends, habitat trends, and effects of management on ribbon seals and other ice seals;
(2)Information on the effects of climate change and sea ice change on the distribution and abundance of ribbon seals, and other ice seals, and their principal prey over the short- and long-term;
(3)Information on the effects of other potential threat factors, including oil and gas development, contaminants, hunting, and poaching, on the distribution and abundance of ribbon seals, and other ice seals, and their principal prey over the short- and long-term;
(4)Information on management programs for ribbon seal conservation, including mitigation measures related to oil and gas exploration and development, hunting conservation programs, anti-poaching programs, and any other private, tribal, or governmental conservation programs which benefit ribbon seals and other ice seals; and
(5)Information relevant to whether any populations of the ice seal species may qualify as distinct population segments. We will base our findings on a review of the best scientific and commercial information available, including all information received during the public comment period. Authority The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ). Dated: March 25, 2008. Samuel D. Rauch III, Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. E8-6432 Filed 3-27-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 [Docket No. 080118059-8067-01] RIN 0648-AW41 South Pacific Tuna Fisheries; Establishment of Limits on Entry or Effort in the Purse Seine Fishery in the Western and Central Pacific Ocean AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Advance notice of proposed rulemaking; notification of control date; request for comments. SUMMARY: NMFS announces that persons who enter the purse seine fishery in the western and central Pacific Ocean (WCPO), as managed under the South Pacific Tuna Act of 1988 (SPTA), the Western and Central Pacific Convention Implementation Act (WCPFCIA) and other law, after March 28, 2008 (“control date”), are not guaranteed future participation in the fishery if NMFS decides to revise the criteria and procedures used to process license applications and/or to limit further the number of licenses available in the fishery. NMFS is considering the need to undertake such actions in order to provide greater clarity about the process used and thus help license holders and prospective license applicants in making business decisions, as well as to fulfill the obligations of the United States under international agreements to which it is party. This action does not commit NMFS to revising the criteria and procedures it uses or to establishing a new limit, and it does not prevent any other date or criteria from being selected for eligibility to participate in the fishery. DATES: Comments must be submitted in writing by April 28, 2008. ADDRESSES: You may submit comments on this advance notice of proposed rulemaking by any of the following methods: • Federal e-Rulemaking portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. • Mail: William L. Robinson, Regional Administrator, NMFS Pacific Islands Regional Office (PIRO), 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814. Include the identifier “0648-AW41” in the comments. • Fax: 808-973-2941. Include the identifier “0648-AW41” in the comments. Instructions: All comments received are part of the public record and will generally be posted to *http://www.regulations.gov* without change. All personal identifying information (for example, name and address) voluntarily submitted by the commenter may be publically accessible. Do not submit confidential business information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. FOR FURTHER INFORMATION CONTACT: Tom Graham, NMFS PIRO, 808-944-2219. SUPPLEMENTARY INFORMATION: Background The WCPO purse seine fishery is regulated primarily under the authority of the SPTA (16 U.S.C. 973-973r) via implementing regulations at 50 CFR part 300, subpart D. The SPTA and its implementing regulations implement the terms of a treaty between the United States and 16 Members of the Pacific Islands Forum Fisheries Agency (Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America and its annexes, schedules, and implementing agreements, as amended; hereafter called “the Treaty”). The Treaty governs the conduct of U.S. fishing vessel operations in the Treaty Area. The Treaty Area, which is defined at 50 CFR 300.31, encompasses approximately 10 million square miles (26 million square kilometers). The Treaty provides access by U.S. purse seine vessels to a large portion of the WCPO by authorizing, and regulating through a licensing system, U.S. purse seine vessels operations within all or part of the exclusive economic zones
(EEZs)of the 16 Pacific Island Parties to the Treaty (PIPs). Licenses are issued by the Pacific Islands Forum Fisheries Agency (FFA), based in Honiara, Solomon Islands, which acts as the Treaty administrator on behalf of the PIPs. The Treaty and SPTA and its implementing regulations allow U.S. longline vessels and U.S. vessels fishing for albacore by the trolling method to fish in the high seas portion of the Treaty Area, but such vessels are not subject to the Treaty's or SPTA's licensing requirements. The Treaty entered into force in 1988 following ratification by the U.S. and the PIPs. After an initial 5-year agreement, the Treaty was renewed in 1993 for an additional 10 years and renewed again in 2003 for an additional 10 years (through June 14, 2013). Currently, the Treaty allows for a maximum of 45 licenses to U.S. purse seine fishing vessels to fish in the Licensing Area of the Treaty. Of the 45 licenses, 5 are reserved for “joint venture” arrangements with PIPs. The Licensing Area includes all or part of the EEZs of the following countries: Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, and Vanuatu. Licenses are issued by the FFA, but license applications are first submitted to NMFS, which ensures they are complete and forwards them to the FFA on a first-come, first-served basis. In addition to being governed by the Treaty and the SPTA, the WCPO purse seine fishery is subject to the authority of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 *et seq.* ), particularly with respect to the operation of the fishery within the U.S. EEZ. The fishery is also subject to the authority of the High Seas Fishing Compliance Act (16 U.S.C. 5501 *et seq.* ), which governs the conduct of U.S. fishing vessels on the high seas. The fishery also falls under the purview of the Western and Central Pacific Fisheries Convention Implementation Act (WCPFCIA) (Public Law 109-479, sec 501-511), which implements the provisions of the Western and Central Pacific Fisheries
(WCPF)Convention and the decisions of the WCPF Commission, established under the Convention. The area of competence of the WCPF Commission, or the Convention Area, includes the majority of the Treaty Area. As a Party to the WCPF Convention and a Member of the WCPF Commission, the United States is obligated to implement the decisions of the Commission. To date, the Commission has made several decisions that might affect the level of activity of the WCPO purse seine fishery, including decisions related to allowable levels of fishing capacity (e.g. numbers of vessels or some other measure of fishing power present in the fishery) as well as allowable levels of fishing effort (e.g. numbers of days fished or sets made per unit of time). These decisions can be found on the web site of the WCPF Commission ( *http://www.wcpfc.int/* ). Recent Developments in the Fishery The number of U.S. purse seine vessels licensed under the Treaty has varied widely since its entry into force in 1988. The number of licensed vessels reached a high of 49 in 1994 (at which time the Treaty authorized up to 55 licenses, with 5 reserved for joint ventures) and a low of 11 in 2007. As of February 2008, there were 22 licenses issued and several additional license applications were being processed. No joint venture licenses have been issued under the Treaty. Establishment of Control Date and Possible Rulemaking In part because of the recent increase in the number of purse seine vessel licenses issued and applications pending under the Treaty, NMFS is considering clarifying, and possibly revising, the criteria and procedures used to process license applications. Such clarification would help both current license holders and prospective license applicants in making future business decisions. Also, in order to comply with the decisions of the WCPF Commission and to implement the provisions of the WCPFCIA, NMFS may be required to limit the number of vessels in the WCPO purse seine fishery. This rulemaking may be used to implement future actions in that fishery. In addition, on August 15, 2005, NMFS published an advance notice of proposed rulemaking (70 FR 47782) that established a control date of June 2, 2005, applicable to persons contemplating entering the purse seine fishery in the U.S. EEZ in the western Pacific region (the control date also applied to persons interested in the longline fishery in the western Pacific region). That decision was based on a recommendation made by the Western Pacific Fishery Management Council on June 2, 2005, at its 127th meeting. The control date is limited in application (with respect to purse seine vessels) to vessels that operate within the U.S. EEZ. This control date has not yet been acted on. The control date announced here applies more broadly than the June 2, 2005, control date: it applies to purse seine vessels that are subject to the Treaty and the SPTA; that is, to purse seine vessels operating anywhere on the high seas in the Treaty Area or in the EEZs of the 16 PIPs. The June 2, 2005, control date for the U.S. EEZ also remains in effect. One purpose of this advance notice of proposed rulemaking is to notify fishermen that if they attempt to enter the WCPO purse seine fishery after the control date of March 28, 2008, there is no assurance of being granted entry or of future participation if all available licenses have been issued or if NMFS must limit the number of available licenses or impose other management measures in the fishery. The second purpose is to solicit comments and input on possible criteria and procedures that could be used by NMFS to review, order, and process license applications. These criteria and procedures would be used by NMFS in determining eligibility for processing applications and requesting the FFA to provide licenses for US purse seine vessels operating in this fishery. Establishment of this control date does not commit NMFS to any particular management regime or any particular criteria for limiting entry into the WCPO purse seine fishery. Fishermen are not guaranteed future participation in the fishery, regardless of their level of participation before or after the control date. NMFS might adopt a different control date or it might adopt a management regime that does not involve a control date. Any number of possible criteria might be used to determine eligibility for participation in the fishery, including criteria involving date of license application (e.g. first-come-first-served), historical participation (e.g. history of licenses or landings), vessel size or capacity, or a vessel hull's country of origin, among others. If and until NMFS issues a final rule to clarify and/or revise the process it uses to process license applications, NMFS will continue its practice of doing so on a first-come, first-served basis. Classification This advance notice of proposed rulemaking has been determined to be not significant for the purposes of Executive Order 12866. Authority: 16 U.S.C. 973-973r; PL 109-479 sec 501-511; 16 U.S.C. 5501 *et seq.* ; 16 U.S.C. 1801 *et seq.* ]. Dated: March 24, 2008. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. E8-6457 Filed 3-27-08; 8:45 am] BILLING CODE 3510-22-S 73 61 Friday, March 28, 2008 Notices DEPARTMENT OF AGRICULTURE Forest Service Cibola National Forest Invasive Plant Management Project AGENCY: Forest Service, USDA. ACTION: Cancellation of notice of intent to prepare an environmental impact statement. SUMMARY: On April 29, 2002, Forest Supervisor Liz Agpaoa signed a Notice of Intent
(NOT)to prepare an Environmental Impact Statement
(EIS)for the Cibola National Forest Invasive Plant Management Project. On May 3, 2002, the **Federal Register** published the Notice of Intent
(NOT)(Volume 67, Number 86, pages 22389-22390). The Department of Agriculture, Forest Service is issuing this notice to advise the public that we are cancelling the notice of intent to prepare an environmental impact statement for this proposed action. The initial proposal provided for the inclusion of all the administrative units on the Cibola National Forest including the Kiowa, Rita Blanca, Black Kettle, and McClellan Creek National Grasslands. The areas included in the proposal vary widely in geographical and ecological settings and conditions, from woodlands and forests to short-grass and tall-grass prairies. The wide range of biological and physical settings complicates the analysis and disclosure of effects. The Forest Service plans to reassess the proposal and determine the appropriate scope of the proposal and form of environmental documentation. The NEPA process will be re-initiated for any new proposed actions. FOR FURTHER INFORMATION CONTACT: Keith Baker, NEPA Coordinator, Cibola National Forest, 2113 Osuna Road NE., Albuquerque, NM 87113, Phone
(505)346-3820, Fax
(505)346-3901. Dated: March 18, 2008. Nancy Rose, Forest Supervisor. [FR Doc. E8-6328 Filed 3-27-08; 8:45 am] BILLING CODE 3410-11-M DEPARTMENT OF AGRICULTURE Forest Service Bridger-Teton National Forest; Revised Notice of Intent To Prepare a Supplemental Environmental Impact Statement To Analyze and Disclose New Information Relative to Oil and Gas Leasing of 44,720 Acres on the Big Piney Ranger District AGENCY: Forest Service, USDA. SUMMARY: This notice revises an earlier Notice of Intent
(NOI)to prepare a supplemental environmental impact statement
(SEIS)to analyze and disclose new information relative to oil and gas leasing of 44,720 acres on the Big Piney Ranger District. The Forest Service is providing this revised notice because the public scoping period is being extended. Scoping for a supplemental statement is not required [40 CFR 1502.9(c)(4)], but due to the length of time since scoping associated with the current leasing decision was conducted, comments specific to new issues or information that was not considered are being solicited. DATES: Comments concerning new information or issues not previously considered in the leasing analysis must be postmarked by April 28, 2008. The Draft SEIS (DSEIS) is expected in November 2008. The estimated completion date for the Final SEIS (FSEIS) is April 2009. ADDRESSES: Send written comments to Stephen Haydon, Forest Minerals Staff, Bridger-Teton National Forest, 340 N. Cache, PO Box 1888, Jackson, WY 83001-1888. Send electronic comments to: *comments-intermtn-bridger-teton@fs.fed.us* with the subject clearly titled “Leasing SEIS”. FOR FURTHER INFORMATION CONTACT: Stephen Haydon, Project Leader. SUPPLEMENTARY INFORMATION: This revised notice updates the original NOI, which appeared Monday, February 4, 2008, in the **Federal Register** (73 FR pages 6453-6454). The Bridger-Teton National Forest
(BTNF)made an oil and gas leasing decision in the Forest Plan signed in 1990 after preparing an environmental impact statement (EIS). Subsequent Environmental Assessments were completed in the early 1990s to consider the impacts of oil and gas leasing in various Management Areas throughout the Forest. Since the early 1990s, several new issues bearing on oil and gas leasing have arisen and new information has become available since that decision. The Forest reviewed those issues and the new information and documented that review in a Supplemental Information Report dated February 25, 2004. The Forest Supervisor concluded that the new issues and information did not alter the previous leasing decision in the Forest Plan. Subsequently, in 2005 the Forest Service sent lease parcels covering 44,720 acres to the Bureau of Land Management
(BLM)for competitive lease sale. The BLM offered, sold and issued leases on 20,963 acres in December 2005 and April 2006, and sold but did not issue leases on the remaining 23,757 acres in June and August 2006. Following protest and BLM State Director's Review, an appeal to the Interior Board of Land Appeals
(IBLA)was filed for the December and April lease sales. This appeal included a “Request for Stay”, which was granted. Upon request by the BLM, IBLA remanded the appeals back to the BLM for resolution. This supplemental analysis will address the resource issues and effects analysis concerns identified by IBLA or as identified though this scoping effort. Purpose and Need for Action The purpose and need for action is to determine whether and to what extent analysis of new issues and information might alter the oil and gas leasing decision as it relates to the 44,720 acres forwarded to the BLM for competitive lease sale. This action is needed to address the appropriateness of the previous leasing decisions, to decide the final disposition of the suspended existing leases and lease parcels, and to be responsive to the IBLA remand requiring incorporation of the new issues and information in the BLM decision to lift the suspension of lease parcels and issue oil and gas leases. Proposed Action The proposed federal action is to lift the current suspension on the issued December 2005 and April 2006 leases and to issue those that were sold but not issued from the June and August 2006 sales. To do so requires the analysis of new issues and information not available to the deciding officials at the time the leasing decision was made. Possible Alternatives The alternatives to be considered may include continuation of the current leasing decision contained in the Forest Plan, the no action alternative, and potentially others identified in scoping. The no action alternative would involve not issuing the leases that have been sold but not issued, and cancelling the leases that were sold. Additional alternatives may be identified once scoping is completed. Lead and Cooperating Agencies The Forest Service is the lead agency. The BLM and the State of Wyoming are cooperating agencies. Responsible Official The Forest Service responsible official for determining if and to what extent the analysis of new issues and information would alter the oil and gas leasing decision contained in the BTNF Forest Plan [36 CFR 228.102(d)] is Carol “Kniffy” Hamilton, Forest Supervisor, Bridger-Teton National Forest, 340 N. Cache (P.O. Box 1888), Jackson, Wyoming 83001. The BLM responsible official for final decision (43 CFR 3101.7) relative to the issuance or disposition of the leases and lease parcels is Robert A. Bennett, State Director, BLM, Wyoming State Office, 5353 Yellowstone (P.O. Box 1828), Cheyenne, Wyoming 82009. Nature of Decision To Be Made The Forest Service will determine if and how the current Forest Plan oil and gas leasing decision, as it relates to the 44,720 acres, should be changed based on new information. If a new decision is determined not to be needed following preparation of the supplemental environmental impact statement, that determination is not subject to appeal in accordance with 36 CFR 215.12. The BLM will then decide whether or not the revised Forest Service National Environmental Policy Act
(NEPA)analysis is adequate, and subsequently whether to lift the suspension on the existing leases and whether to issue leases on the other lease parcels. Scoping Process Scoping for a supplemental statement is not required [40 CFR 1502.9(c)(4)], but due to the length of time since scoping associated with the current leasing decision was conducted, the agencies are soliciting comments specific to new issues or information that was not considered. Letters will be sent to the Forest mailing list of known interested parties. Public meetings held in 2006 in association with Forest Plan revision efforts generated issues relative to oil and gas leasing. Comments received during those meetings will be considered in this supplemental analysis. The scoping process will assist the agencies in identifying specific issues to be addressed related to the purpose and need and the scope of the decision. Ongoing information related to the proposed action and related analysis will be posted on the BTNF Web site at *http://www.fs.fed.us/r4/btnf.* Preliminary Issues Preliminary issues associated with the proposed action include:
(1)The drilling and production of wells subsequent to leasing could impact air quality and air quality related values, with emphasis on cumulative effects due to extensive development in the Pinedale area.
(2)The T&E listed Canada lynx, or its habitat, could be impacted by subsequent exploration and development activities.
(3)Impacts to water quality due to subsequent surface disturbing activities could adversely affect the Colorado River cutthroat trout.
(4)The development of a transportation system to support field development could adversely affect mule deer migration routes in the area and fragment habitat. Comment Requested This revised notice extends the scoping process which guides the development of the supplemental environmental impact statement. Send written comments to the addresses given above for further information. No meetings are planned at this time. *Early Notice of Importance of Public Participation in Subsequent Environmental Review:* A DSEIS will be prepared for comment. The comment period on the DSEIS will be for a period of 45 days from the date the Environmental Protection Agency publishes the notice of availability in the **Federal Register** . The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of a draft environmental impact statement
(DEIS)or a DSEIS must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions. *Vermont Yankee Nuclear Power Corp.* v. *NRDC* , 435 U.S. 519, 553 (1978). Also, environmental objections that could be raised at the DEIS stage but that are not raised until after completion of the final environmental impact statement may be waived or dismissed by the courts. *City of Angoon* v. *Hodel* , 803 F.2d 1016, 1022 (9th Cir. 1986) and *Wisconsin Heritages, Inc.* v. *Harris* , 490 F. Supp. 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, it is very important that those interested in this proposed action participate by the close of the 45 day comment period so that substantive comments and objections are made available to the Forest Service at a time when the agency can meaningfully consider them and respond to them in the final environmental impact statement. To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the DEIS should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the DEIS or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points. Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection. Authority: 40 CFR 1501.7 and 1508.22; Forest Service Handbook 1909.15, Section 21. Dated: March 19, 2008. Carole “Kniffy” Hamilton, Forest Supervisor, Bridger-Teton National Forest. [FR Doc. E8-6229 Filed 3-27-08; 8:45 am] BILLING CODE 3410-11-M DEPARTMENT OF AGRICULTURE Forest Service Notice of New Recreation Fee Site; Federal Lands Recreation Enhancement Act, (Title VIII, Pub. L. 108-447) AGENCY: National Forests in Mississippi, USDA Forest Service. ACTION: Notice of Proposed Recreation Fees. SUMMARY: The National Forests in Mississippi is proposing new fees for two horse trails. *Witch Dance Horse Trail* is located on the Tombigbee National Forest within Chickasaw County, MS. This trail is 18 miles long with multiple loops and 1 trailhead that provides a toilet, hitching posts, and designated developed parking. *Big Foot Horse Trail* is located on the De Soto National Forest, De Soto Ranger District within Harrison County, MS. This trail is 22 miles long trail with multiple loops and 1 trailhead that provides a toilet, hitching posts and designated developed parking. The Forest Service proposes to charge $5 per rider per day for use of these trails. Funds received from these fees will be used for continued operation and maintenance of these trails and would allow additional amenities to be added in the future. The purpose of this notice is to solicit public input on this proposal. Please contact us or provide written comments (information below) within 6 months from the date of this publication. DATES: These trails are available for public use now. However, fees will not be initiated until after public comments have been considered and reviewed by the Recreation Resource (citizen) Advisory Committee. FOR FURTHER INFORMATION CONTACT: Jeff Gainey, Recreation Program Manager, 601-965-1617, National Forests in Mississippi, 100 West Capitol Street, Suite 1141, Jackson, MS 39269. SUPPLEMENTARY INFORMATION: The Federal Recreation Lands Enhancement Act (Title VII, Pub. L. 108-447) directed the Secretary of Agriculture to publish advance notice in the **Federal Register** whenever new recreation fee areas are established. The National Forests in Mississippi currently manages two other horse trails. Comparable recreational use fees are currently charged at these sites. Dated: March 10, 2008. R.E. Vann III, Acting Forest Supervisor, National Forest in Mississippi. [FR Doc. E8-6191 Filed 3-27-08; 8:45 am] BILLING CODE 3410-11-M DEPARTMENT OF AGRICULTURE Forest Service Notice of New Recreation Fee Site; Federal Lands Recreation Enhancement Act, (Title VIII, Pub. L. 108-447) AGENCY: National Forests in Mississippi, USDA Forest Service. ACTION: Notice of Proposed Recreation Fees. SUMMARY: The National Forests in Mississippi is proposing new fees for two motorized trails. *Rattlesnake Bay ATV Trail* is located on the De Soto Ranger District, De Soto National Forest within Perry County, MS. This site has a trailhead with a restroom, designated improved parking, and bulletin board with trail map. This trail is 31 miles long. *Bethel Motorcycle Trail* is located on the De Soto Ranger District, De Soto National Forest within Harrison County, MS. This site has a trailhead with designated improved parking, picnic tables, grills, and bulletin board with trail map. This trail is 15 miles long. The Forest Service proposes to charge $5 per operator per day for use of these trails. Funds received from these fees would be used for continued operation and maintenance of these trails and would allow additional amenities to be added in the future. The purpose of this notice is to solicit public input on this proposal. Please contact us or provide written comments (contact information below) within 6 months from the date of this publication. DATES: These trails will be available for public use in summer, 2008. However, fees will not be initiated until after public comments have been considered and reviewed by the Recreation Resource (citizen) Advisory Committee. FOR FURTHER INFORMATION CONTACT: Jeff Gainey, Recreation Program Manager, 601-965-1617, National Forests in Mississippi, 100 West Capitol Street, Suite 1141, Jackson, MS 39269. SUPPLEMENTARY INFORMATION: The Federal Recreation Lands Enhancement Act (Title VII, Pub. L. 108-447) directed the Secretary of Agriculture to publish advance notice in the **Federal Register** whenever new recreation fee areas are established. The National Forests in Mississippi currently manages two other ATV/motorcycle trails. Comparable recreational use fees are currently charged at these sites. Dated: March 10, 2008. R.E. Vann III, Acting Forest Supervisor, National Forest in Mississippi. [FR Doc. E8-6192 Filed 3-27-08; 8:45 am] BILLING CODE 3410-11-M DEPARTMENT OF AGRICULTURE Forest Service Woody Biomass Utilization Grant Award AGENCY: Forest Service, USDA. ACTION: Notice of award. SUMMARY: The USDA Forest Service, State and Private Forestry, Forest Products Laboratory, Madison, WI, awarded a grant to Flambeau River Papers, LLC, Park Falls, WI in the amount of $1.925MIL for a project titled “Biomass-to-Fuel”. This grant is being used by the grantee to support its ongoing effort in determining the potential technical and economic viability of constructing and operating a demonstration biomass-to-liquids biofuels facility, which would be co-located with the company's existing pulp and paper mill. If successful, the biomass-to-liquids facility would generate renewable energy to operate the pulp and paper mill, as well as producing a marketable liquid transportation fuel. DATES: Grant award—March 17, 2008. ADDRESSES: USDA Forest Service, Forest Products Laboratory, One Gifford Pinchot Drive, Madison, WI 53726-2398. FOR FURTHER INFORMATION CONTACT: For questions regarding the grant award, contact William Clark, Grants and Agreements Specialist,
(608)231-9282, *wlclark@fs.fed.us.* Individuals who use telecommunication devices for the deaf
(TDD)may call the Federal Information Relay Service
(FIRS)at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday. Dated: March 24, 2008. Ann M. Bartuska, Deputy Chief for Research & Development. [FR Doc. E8-6395 Filed 3-27-08; 8:45 am] BILLING CODE 3410-11-P DEPARTMENT OF AGRICULTURE Rural Business-Cooperative Service Inviting Applications for Rural Economic Development Loan and Grant Program for Fiscal Year 2008 AGENCY: Rural Business-Cooperative Service, USDA. ACTION: Notice. SUMMARY: The Rural Business-Cooperative Service
(RBS)announces the dollar amount available for grants is up to $300,000 per application for Rural Economic Development Grants with the aggregate amount of grant funds not to exceed $10,000,000 during fiscal year 2008. SUPPLEMENTARY INFORMATION: RBS published a Notice on February 5, 2008, [73 FR 6696] of funds available. This Notice announces the amounts available for Rural Economic Development Grants. Dated: March 21, 2008. Ben Anderson, Administrator, Rural Business-Cooperative Service. [FR Doc. E8-6322 Filed 3-27-08; 8:45 am] BILLING CODE 3410-XY-P DEPARTMENT OF AGRICULTURE Rural Housing Service Notice of Availability of Funds; Multi-Family Housing, Single Family Housing AGENCY: Rural Housing Service, USDA. ACTION: Notice. SUMMARY: The Rural Housing Service, hereinafter referred to as Housing and Community Facilities Programs (HCFP), announces the availability of housing funds for fiscal year
(FY)2008. This action is taken to comply with 42 U.S.C. 1490p, which requires that HCFP publish in the **Federal Register** notice of the availability of any housing assistance. DATES: Unless otherwise indicated below, applications are accepted year-round at a local Rural Development office. *Effective Date:* March 28, 2008. FOR FURTHER INFORMATION CONTACT: For information and application assistance contact the appropriate state office from the attached state office listing, or visit our Internet Web site at *http://www.offices.usda.gov* and select your State. Applicants can also obtain local contact information in a local telephone directory's blue pages under “Rural Development.” For information regarding this notice contact Myron Wooden, Loan Specialist, Single Family Housing Direct Loan Division, telephone 202-720-4780, for single family housing
(SFH)issues and Tammy S. Daniels, Senior Loan Specialist, Multi-Family Housing
(MFH)Processing Division, telephone 202-720-0021, for multi-family housing issues, U.S. Department of Agriculture, 1400 Independence Ave., SW., Washington, DC 20250. (The telephone numbers listed are not toll free numbers). SUPPLEMENTARY INFORMATION: The information in this Notice describes how funds for the various Rural Development HCFP programs are distributed. Programs Affected The following programs are subject to the provisions of Executive Order 12372 that requires intergovernmental consultation with State and local officials. These programs or activities are listed in the Catalog of Federal Domestic Assistance under Nos. 10.405 Farm Labor Housing
(LH)Loans and Grants. 10.410 Very Low to Moderate Income Housing Loans. 10.411 Rural Housing Site Loans and Self-Help Housing Land Development Loans. 10.415 Rural Rental Housing Loans. 10.417 Very Low Income Housing Repair Loans and Grants. 10.420 Rural Self-Help Housing Technical Assistance. 10.427 Rural Rental Assistance Payments. 10.433 Rural Housing Preservation Grants. 10.442 Housing Application Packaging Grants. Part 1940, subpart L of 7 CFR contains the “Methodology and Formulas for Allocation of Loan and Grant Program Funds.” To apply for assistance under these programs or for more information, contact the USDA Rural Development Office for your area. Multi-Family Housing
(MFH)I. General A. This Notice provides guidance on MFH funding for the Rural Rental Housing program
(RRH)for FY 2008. Allocation computations have been performed in accordance with 7 CFR 1940.575 and 1940.578. For FY 2008, State Directors, under the Rural Housing Assistance Grants (RHAG), will have the flexibility to transfer their initial allocations of budget authority between the Single Family Housing
(SFH)Section 504 Rural Housing Grants and section 533 Housing Preservation Grant
(HPG)programs. B. MFH loan and grant levels for FY 2008 are as follows: MFH Loan Programs Credit Sales $1,475,864 Section 514 Farm Labor Housing
(LH)loans* 27,545,076 Section 515 Rural Rental Housing
(RRH)loans 69,510,000 Section 521 Rental Assistance
(RA)and 502(c)(5)(C) Advance 472,757,370 Section 516 LH grants 9,930,000 Sections 525 Technical and Supervisory Assistance
(TSA)and Section 509 Housing Application Packaging Grants
(HAPG)(Shared between single and multi-family housing)* 0 Section 533 Housing Preservation grants (HPG)** 9,593,704 Section 538 Guaranteed Rural Rental Housing Program 129,090,000 Preservation Revolving Loan Fund Demonstration Program* 6,421,642 Sections 514, 515 and 516 Multi-Family Housing Revitalization Demonstration Program (MPR)*** 19,860,000 Rural Housing Voucher Demonstration Program* 4,965,000 * Does Not Include Carryover Funds. ** Includes Carryover Funds. *** Stated at the budget authority level, rather than at the program level. II. Funds Not Allocated to States A. *Credit Sales Authority* . For FY 2008, $1,475,864 will be made available for credit sales to program and nonprogram buyers. Credit sale funding will not be allocated by State. B. *Section 538 Guaranteed Rural Rental Housing Program* . Guaranteed loan funds have been made available under a Notice of Funding Availability
(NOFA)published in the **Federal Register** on February 4, 2008. Additional guidance is provided in the NOFA. C. *Sections 514, 515 and 516 Multi-Family Housing and Revitalization Demonstration Program
(MPR)for Fiscal Year 2008* . The MPR program is designed to preserve and revitalize Section 515 multi-family rental housing properties and sections 514/516 Off-farm labor housing properties. The program is designed to utilize several demonstration revitalization tools to restructure debt and financing of an aging portfolio of rental properties. The goal of the MPR program is to ensure that properties have sufficient resources to continue providing safe and affordable housing for low-income rural residents. D. *USDA Rural Development Voucher Demonstration Program* . The USDA Rural Development Voucher program, authorized under section 542 of the Housing Act of 1949, is designed to provide tenant protections in properties that prepay their mortgages after October 1, 2005. These vouchers are portable and will enable tenants to continue to access affordable housing without benefit of the traditional rental assistance program. III. Farm Labor Housing
(LH)Loans and Grants. The Administrator has the authority to transfer the allocation of budget authority between the two programs. Upon the closing date of the NOFA, the Administrator will evaluate the responses and determine proper distribution of funds between loans and grants. A. Section 514 Farm LH Loans 1. These loans are funded in accordance with 7 CFR 1940.579(a). FY 2008 Appropriation $27,545,076 Available for Off-Farm Loans 19,158,807 Available for On-Farm Loans 2,000,000 National Office Reserve 6,386,269 2. Off-Farm loan funds have been made available under a NOFA published in the **Federal Register** on March 12, 2008. Additional guidance is provided in the NOFA. B. Section 516 Farm LH Grants 1. Grants are funded in accordance with 7 CFR 1940.579(b). Unobligated prior year balances and cancellations will be added to the amount shown. FY 2008 Appropriation $9,930,000 Available for LH Grants for Off-Farm 7,447,500 National Office Reserve 2,482,500 2. Labor Housing grant funds for Off-Farm have been made available under a NOFA published in the **Federal Register** on March 12, 2008. Additional guidance is provided in the NOFA. C. *Labor Housing Rental Assistance (RA)* . It is anticipated that Labor Housing RA will not be available for Fiscal Year 2008. IV. Section 515 RRH Loan Funds FY 2008 Section 515 Rural Rental Housing allocation (Total) $69,510,000 New Construction funds and set-asides 14,529,124 Non-Restricted 2,341,200 Set-aside for nonprofits 6,255,900 Set-aside for underserved counties and colonias 3,475,500 Set-aside for EZ, EC, or REAP Zones 1,456,524 State RA designated reserve 1,000,000 Rehab and repair funds and equity 40,036,226 Rehab and repair loans 35,036,226 Designated equity loan reserve 5,000,000 General Reserve 14,944,650 A. *New Construction Loan Funds* . New construction loan funds have been made available using a national NOFA published in the **Federal Register** on March 12, 2008. Additional guidance is provided in the NOFA. B. *National Office New Construction Set-asides* . The following legislatively mandated set-asides of funds are part of the National office set-aside: 1. *Nonprofit Set-aside* . An amount of $6,255,900 has been set-aside for nonprofit applicants. All nonprofit loan proposals must be located in designated places as defined in 7 CFR 3560. 2. *Underserved Counties and Colonias Set-aside* . An amount of $3,475,500 has been set aside for loan requests to develop units in the underserved 100 most needy counties or colonias as defined in section 509(f) of the Housing Act of 1949 as amended. Priority will be given to proposals to develop units in colonias or tribal lands. 3. *EZ, EC or REAP Zone Set-aside* . An amount of $1,456,524 has been set-aside for loan requests to develop units in EZ or EC communities or REAP Zones until June 30, 2008. C. *Designated Reserves for State RA* . An amount of $1,000,000 of Section 515 loan funds has been set-aside for matching with projects in which an active State sponsored RA program is available. The State RA program must be comparable to the HCFP RA program. D. *Repair and Rehabilitation Loans* . All funds will be held in the National Office and will be distributed based upon rehabilitation needs to projects selected and processed under the FY 2008 MPR NOFA. E. *Designated Reserve for Equity Loans.* An amount of $5,000,000 has been designated for the equity loan preservation incentive described in 7 CFR 3560. The $5 million will be further divided into $4 million for equity loan requests currently on the pending funding list and $1 million to facilitate the transfer of properties from for-profit owners to nonprofit corporations and public bodies. Funds for such transfers would be authorized only for for-profit owners who are currently on the pending funding list who agree to transfer to nonprofit corporations or public bodies rather than to remain on the pending list. If insufficient transfer requests are generated to utilize the full $1 million set-aside for nonprofit and public body transfers, the balance will revert to the existing pending equity loan funding list. F. *General Reserve.* There is one general reserve fund of $14,944,650. Some examples of immediate allowable uses include, but are not limited to, hardships and emergencies, HCFP cooperatives or group homes, or RRH preservation. V. Section 533 HPG Total Available (Includes carryover funds) $9,593,704.00 Less General Reserve 957,570.40 Less Set-aside for EZ, EC or REAP Zones 595,800.00 Total Available for Distribution 8,040,333.60 See the end of this Notice for HPG state allocations. Fund availability has been announced in a NOFA that was published in the **Federal Register** on February 20, 2008. The amount of $595,800 is set-aside for EZ, EC or REAP Zones until June 30, 2008. Single Family Housing
(SFH)I. *General.* All SFH programs are administered through field offices. For more information or to make application, please contact the Rural Development office servicing your area. To locate these offices, contact the appropriate state office from the attached state office listing, visit our Web site at: *http://www.offices.usda.gov,* or search the blue pages in your local telephone directory under “Rural Development” for the office serving your area. A. This Notice provides SFH allocations for FY 2008. Allocation computations have been made in accordance with 7 CFR 1940.563 through 1940.568. Information on basic formula criteria, data source and weight, administrative allocation, pooling of funds, and availability of the allocation are located on a chart at the end of this notice. B. The SFH levels authorized for FY 2008 are as follows: Section 502 Guaranteed Rural Housing
(RH)loans: Nonsubsidized Guarantees—Purchase $4,958,563,379 Nonsubsidized Guarantees—Refinance 269,375,804 Section 502 Direct RH Loans* 1,121,485,933 Credit sales (Nonprogram) 10,000,000 Section 504 Housing Repair Loans* 34,409,013 Section 504 Housing Repair Grants*/** 29,790,000 Section 509 Compensation for Construction Defects** 0 Section 523 Mutual and Self-help Housing Grants and Contracts*/** 38,727,000 Section 523 Self-Help Site Loans 4,965,000 Section 524 RH site Loans 5,045,000 Section 306C Water and Waste Disposal
(WWD)Grants** 1,000,000 Total available 6,473,961,129 * Includes funds for EZ/EC and REAP communities until June 30, 2008. ** Carryover funds are not included in the balance. C. *SFH Funding Not Allocated to States.* The following funding is not allocated to states by formula. Funds are made available to each state on a case-by-case basis. 1. *Credit sale authority.* Credit sale funds in the amount of $10,000,000 are available only for nonprogram sales of Real Estate Owned
(REO)property. 2. *Section 523 Mutual and Self-Help Technical Assistance Grants.* $38,727,000 is available for Section 523 Mutual and Self-Help Technical Assistance Grants. Of these funds, $993,000 is set-aside for EZ, EC or REAP Zones until June 30, 2008. A technical review and analysis must be completed by the Technical and Management Assistance (T&MA) contractor on all predevelopment, new, and existing (refunding) grant applications. 3. *Section 523 Mutual and Self-Help Site Loans and Section 524 RH Site Loans.* $4,965,000 and $5,045,000 are available for Section 523 Mutual Self-Help and Section 524 RH Site loans, respectively. 4. *Section 306C WWD Grants to Individuals in Colonias.* The objective of the Section 306C WWD individual grant program is to facilitate the use of community water or waste disposal systems for the residents of the colonias along the U.S.-Mexico border. The total amount available to Arizona, California, New Mexico, and Texas will be $1,000,000 for FY 2008. This amount is transferred from the Rural Utilities Service
(RUS)to HCFP for processing individual grant applications. 5. *Natural Disaster Funds.* Funds are available until exhausted to those states with active Presidential Declarations. II. State Allocations A. Section 502 Nonsubsidized Guaranteed RH
(GRH)Loans 1. *Purchase—Amount Available for Allocation.* Total Available—Purchase $4,958,563,379 Less National Office General Reserve 1,090,994,365 Less Special Outreach Area Reserve 467,569,014 Basic Formula—Administrative Allocation 3,400,000,000 a. *National Office General Reserve.* The Administrator may restrict access to this reserve for states not meeting their goals in special outreach areas. b. *Special Outreach Areas.* FY 2008 GRH funding is allocated to states in two funding streams. Seventy percent of GRH funds may be used in any eligible area. Thirty percent of GRH funds are to be used in special outreach areas. Special outreach areas for the GRH program are defined as those areas within a state that are not located within a metropolitan statistical area (MSA). c. *National Office Special Area Outreach Reserve.* A special outreach area reserve fund has been established at the National Office. Funds from this reserve may only be used in special outreach areas. 2. Refinance—Amount available for allocation. Total Available—Refinance $269,375,804 Less National Office General Reserve 269,375,804 Basic Formula—Administrative Allocation 0 a. *Refinance Funds.* Refinance loan funds will be distributed from the National Office on a case-by-case basis. b. *National Office General Reserve.* The Administrator may restrict access to this reserve for states not meeting their goals in special outreach areas. B. Section 502 Direct RH Loans 1. *Amount Available for Allocation.* Total Available $1,121,485,933 Less Required Set-Aside for: Underserved Counties and Colonias 56,074,296 EZ, EC and REAP Set-aside 17,978,388 Less General Reserve 170,148,593 Administrator's Reserve 30,000,000 Hardships & Homelessness 2,000,000 Rural Housing Demonstration Program 1,000,000 Homeownership Partnership 112,148,593 Program funds for the sale of REO properties 25,000,000 Less Designated Reserve for Self-Help 175,000,000 Basic Formula—Administrative Allocation 702,284,655 2. *Reserves.* a. *State Office Reserve.* State Directors must maintain an adequate reserve to fund the following applications:
(i)Hardship and homeless applicants including the Direct Section 502 loan and Section 504 loan and grant programs.
(ii)Rural Home Loan Partnerships
(RHLP)and Community Development Financial Institutions
(CDFI)loans.
(iii)States will leverage with funding from other sources.
(iv)Areas targeted by the state, according to its strategic plan. b. *National Office Reserves.*
(i)General Reserve. The National Office has a general reserve of $170.1 million. Of this amount, the Administrator's reserve is $30,000,000. One of the purposes of the Administrator's reserve will be for loans in Indian Country. Indian Country consists of land inside the boundaries of Indian reservations, communities made up mainly of Native Americans, Indian trust and restricted land, and tribal allotted lands. Another purpose of the reserve will be to provide funding for subsequent loans for essential improvements or repairs and transfers with assumptions. The Administrator's reserve may also be made available to states beginning in the 3rd quarter when demand for funds is unusually high.
(ii)Hardship and Homelessness Reserve. $2 million has been set aside for hardships and homeless.
(iii)Rural Housing Demonstration Program. $1 million has been set aside for innovative demonstration initiatives.
(iv)Program Credit Sales. $25 million has been set aside for program sales of REO property. c. *Homeownership Partnership.* $112.1 million has been set aside for Homeownership Partnerships. These funds will be used to expand existing partnerships and create new partnerships, such as the following:
(i)Department of the Treasury, Community Development Financial Institutions (CDFI). Funds will be available to fund leveraged loans made in partnership with the Department of Treasury CDFI participants.
(ii)Partnership initiatives established to carry out the objectives of the Rural Home Loan Partnership (RHLP). d. *Designated Reserve for Self-Help.* $175 million has been set-aside to assist participating Self-Help applicants. The National Office will contribute 100 percent from the National Office reserve. States are not required to contribute from their allocated Section 502 funds. e. *Underserved Counties and Colonias.* An amount of $56,074,296 has been set-aside for the 100 underserved counties and colonias. f. *Empowerment Zone (EZ), Enterprise Community
(EC)or Rural Economic Area Partnership
(REAP)set-aside.* An amount of $17,978,388 has been set-aside until June 30, 2008, for loans in EZ, EC or REAP zones. g. *State Office Pooling.* If pooling is conducted within a state, it must not take place within the first 30 calendar days of the first, second, or third quarter. (There are no restrictions on pooling in the fourth quarter.) h. *Suballocation by the State Director.* The State Director may suballocate to each area office using the methodology and formulas required by 7 CFR part 1940, subpart L. If suballocated to the area level, the Rural Development Manager will make funds available on a first-come, first-served basis to all offices at the field or area level. No field office will have its access to funds restricted without the prior written approval of the Administrator. C. *Section 504 Housing Loans and Grants.* Section 504 grant funds are included in the Rural Housing Assistance Grant program
(RHAG)in the FY 2008 appropriation. 1. *Amount available for allocation.* Section 504 Loans Total Available $34,409,013 Less 5% for 100 Underserved Counties and Colonias 1,720,450 EZ, EC or REAP Zone Set-aside 627,666 Less General Reserve 733,915 Basic Formula—Administrative Allocation 31,326,982 Section 504 Grants Total Available $29,790,000 Less 5% for 100 Underserved Counties and Colonias 1,489,500 Less EZ, EC or REAP Set-aside 595,800 Less General Reserve 1,649,895 Basic Formula—Administrative Allocation 26,054,805 2. *Reserves and Set-asides.* a. *State Office Reserve.* State Directors must maintain an adequate reserve to handle all anticipated hardship applicants based upon historical data and projected demand. b. *Underserved Counties and Colonias.* $1,720,450 and $1,489,500 have been set-aside for the 100 underserved counties and colonias until June 30, 2008, for the Section 504 loan and grant programs, respectively. c. *Empowerment Zone
(EZ)and Enterprise Community
(EC)or Rural Economic Area Partnership
(REAP)Set-aside (Loan Funds Only).* $627,666 and $595,800 have been set-aside through June 30, 2008, for EZ, EC or REAPs for the Section 504 loan and grant programs, respectively. d. *General Reserve.* $733,915 for Section 504 loan hardships and $1,649,895 for Section 504 grant extreme hardships have been set-aside in the general reserve. For Section 504 grants, an extreme hardship case is one requiring a significant priority in funding, ahead of other requests, due to severe health or safety hazards, or physical needs of the applicant. Information on Basic Formula Criteria, Data Source and Weight, Administrative Allocation, Pooling of Funds, and Availability of the Allocation No. Description Section 502 nonsubsidized guaranteed RH loans Section 502 direct RH loans Section 504 loans and grants 1 Basic formula criteria, data source, and weight See 7 CFR 1940.563(b) See 7 CFR 1940.565(b) See 7 CFR 1940.566(b) and 1940.567(b). 2 Administrative Allocation: Western Pacific Area $4,000,000 $2,000,000 $500,000 loan $500,000 grant. 3 Pooling of funds: a. Mid-year pooling If necessary If necessary If necessary. b. Year-end pooling August 14, 2008 July 17, 2008 July 17, 2008. c. Underserved counties & colonias N/A June 30, 2008 June 30, 2008. d. EZ, EC or REAP N/A June 30, 2008 June 30, 2008. e. Credit sales N/A June 30, 2008 N/A. 4 Availability of the allocation: a. first quarter 40 percent 25 percent 25 percent. b. second quarter 70 percent 50 percent 50 percent. c. third quarter 90 percent 75 percent 75 percent. d. fourth quarter 100 percent 100 percent 100 percent. 1. Data derived from the 2000 U.S. Census is available on the Web at: *http://census.sc.egov.usda.gov* . 2. Due to the absence of Census data. 3. All dates are tentative and are for the close of business (COB). Pooled funds will be placed in the National Office reserve and made available administratively. The Administrator reserves the right to redistribute funds based upon program performance. 4. Funds will be distributed cumulatively through each quarter listed until the National Office year-end pooling date. The U.S. Department of Agriculture
(USDA)prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at
(202)720-2600 (voice and TDD). To file a complaint of discrimination write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue, SW., Washington, DC 20250-9410 or call
(800)795-3272 (voice) or
(202)720-6382 (TDD). USDA is an equal opportunity provider, employer, and lender. Dated: March 20, 2008. Russell T. Davis, Administrator, Rural Housing Service. HCFP Fiscal Year 2008—Section 533—Housing Preservation Grant [Allocation in Thousands] State Formula factor Total allocation ALABAMA 0.02957 237,752.66 ALASKA 0.00587 47,196.76 ARIZONA 0.01780 143,117.94 ARKANSAS 0.02310 185,731.71 CALIFORNIA 0.04653 374,116.72 COLORADO 0.00840 67,538.80 DELAWARE 0.00190 15,276.63 MARYLAND 0.00880 70,754.94 FLORIDA 0.02890 232,365.64 VIRGIN ISLANDS 0.00273 21,950.11 GEORGIA 0.03867 310,919.70 HAWAII 0.00790 63,518.64 WPA 0.00647 52,020.96 IDAHO 0.00743 59,739.68 ILLINOIS 0.02250 180,907.51 INDIANA 0.02157 173,430.00 IOWA 0.01340 107,740.47 KANSAS 0.01130 90,855.77 KENTUCKY 0.03483 280,044.82 LOUISIANA 0.03170 254,878.58 MAINE 0.00913 73,408.25 MASSACHUSETTS 0.00793 63,759.85 CONNECTICUT 0.00453 36,422.71 RHODE ISLAND 0.00100 8,040.33 MICHIGAN 0.02977 239,360.73 MINNESOTA 0.01673 134,514.78 MISSISSIPPI 0.03180 255,682.61 MISSOURI 0.02460 197,792.21 MONTANA 0.00620 49,850.07 NEBRASKA 0.00713 57,327.58 NEVADA 0.00263 21,146.08 NEW JERSEY 0.00657 52,824.99 NEW MEXICO 0.01437 115,539.59 NEW YORK 0.02753 221,350.38 NORTH CAROLINA 0.04497 361,573.80 NORTH DAKOTA 0.00413 33,206.58 OHIO 0.03450 277,391.51 OKLAHOMA 0.01917 154,133.20 OREGON 0.01423 114,413.95 PENNSYLVANIA 0.03687 296,447.10 PUERTO RICO 0.04923 395,825.62 SOUTH CAROLINA 0.02690 216,284.97 SOUTH DAKOTA 0.00597 48,000.79 TENNESSEE 0.02973 239,039.12 TEXAS 0.07645 614,683.50 UTAH 0.00430 34,573.43 VERMONT 0.00403 32,402.54 NEW HAMPSHIRE 0.00503 40,442.88 VIRGINIA 0.02660 213,872.87 WASHINGTON 0.01743 140,143.01 WEST VIRGINIA 0.01937 155,741.26 WISCONSIN 0.01873 150,595.45 WYOMING 0.00307 24,683.82 DISTR. 1.00000 8,040,333.60 N/O RES. 957,570.40 EZ/EC/REAP 595,800.00 Ttl Avail. 9,593,704.00 USDA Rural Development State Office Locations—State Directors/HCFP Program Directors ALABAMA Steve Pelham, Vann McCloud, Sterling Centre, 4121 Carmichael Road, Suite 601, Montgomery, AL 36106-3683,
(334)279-3400 ALASKA Chad Padgett, Deborah Davis, Suite 201, 800 W. Evergreen, Palmer, AK 99645-6539,
(907)761-7705 ARIZONA Eddie Browning, Ernie Wetherbee, Phoenix Corporate Center, 230 North First Avenue, Suite 206, Phoenix, AZ 85003-1706,
(602)280-8755 ARKANSAS Roy Smith, Lawrence McCullough, Room 3416, 700 W. Capitol, Little Rock, AR 72201-3225,
(501)301-3200 CALIFORNIA Benjamin Higgins, Bob Anderson, Agency 4169, 430 G Street, Davis, CA 95616-4169,
(530)792-5800 COLORADO Mike Bennett, Jamie Spakow, Room E100, 655 Parfet Street, Lakewood, CO 80215,
(720)544-2903 DELAWARE & MARYLAND Marlene B. Elliott, Pat Baker, 1221 College Park Drive, Suite 200, Dover, DE 19904,
(302)857-3625 FLORIDA & VIRGIN ISLANDS Jennifer Delattibodier (Acting), Daryl Cooper, P.O. Box 147010, 4440 NW. 25th Place, Gainesville, FL 32614-7010,
(352)338-3435 GEORGIA F. Stone Workman, Douglas Canup, Stephens Federal Building, 355 E. Hancock Avenue, Athens, GA 30601-2768,
(706)546-2162 HAWAII Lorraine Shin, Donald Etes, Room 311, Federal Building, 154 Waianuenue Avenue, Hilo, HI 96720,
(808)933-8309 IDAHO Michael A. Field, Roni Atkins, Suite A1, 9173 W. Barnes Dr., Boise, ID 83709,
(208)378-5600 ILLINOIS Douglas Wilson, Barry Ramsey, 2118 W. Park Court, Suite A, Champaign, IL 61821,
(217)403-6222 INDIANA Robert White, Paul Neumann, 5975 Lakeside Boulevard, Indianapolis, IN 46278,
(317)290-3100 IOWA Mark Reisinger, Tim Helmbrecht, Acting, 873 Federal Bldg., 210 Walnut Street, Des Moines, IA 50309,
(515)284-4663 KANSAS Charles (Chuck) R. Banks, Tim Rogers, 1303 SW. First American Place, Suite 100, Topeka, KS 66604-4040,
(785)271-2700 KENTUCKY Kenneth Slone, Paul Higgins (Acting), Suite 200, 771 Corporate Drive, Lexington, KY 40503,
(859)224-7322 LOUISIANA Clyde Holloway, Debbie Redfearn, 3727 Government Street, Alexandria, LA 71302,
(318)473-7920 MAINE Michael W. Aube, Dale Holmes, P.O. Box 405, 967 Illinois Avenue, Suite 4, Bangor, ME 04402-0405,
(207)990-9118 MASSACHUSETTS/CT/RI David H. Tuttle, 451 West Street, Amherst, MA 01002,
(413)253-4300 MICHIGAN Gene DeRossett, Richard Annis, 3001 Coolidge Road, Suite 200, East Lansing, MI 48823,
(517)324-5100 MINNESOTA Stephen G. Wenzel, Lance Larson, 410 AgriBank Bldg., 375 Jackson Street, St. Paul, MN 55101-1853,
(651)602-7792 MISSISSIPPI George Irvin, Johnny Jones, Federal Bldg., Suite 831, 100 W. Capitol Street, Jackson, MS 39269,
(601)965-4325 MISSOURI Anita J. (Janie) Dunning, Acting, Randy Griffith, Parkade Center, Suite 235, 601 Business Loop 70 West, Columbia, MO 65203,
(573)876-9301 MONTANA Clark Johnson, Debra Chorlton, Suite B, 900 Technology Boulevard, Bozeman, MT 59715,
(406)585-2551 NEBRASKA Scot Blehm, Byron Fischer, Federal Bldg., Room 152, 100 Centennial Mall N., Lincoln, NE 68508,
(402)437-5551 NEVADA Larry J. Smith, Bill Brewer, 1390 South Curry Street, Carson City, NV 89703,
(775)887-1222 NEW JERSEY Andrew
(Andy)M.G. Law, George Hyatt, 5th Floor N. Suite 500, 8000 Midlantic Drive, Mt. Laurel, NJ 08054,
(856)787-7700 NEW MEXICO Ryan Gleason, Art Garcia, Room 255, 6200 Jefferson Street, NE., Albuquerque, NM 87109,
(505)761-4973 NEW YORK Patrick Brennan, Jennifer Jackson, The Galleries of Syracuse, 441 S. Salina Street, Suite 357, Syracuse, NY 13202-2541,
(315)477-6417 NORTH CAROLINA John Cooper, Mel Ellis, Suite 260, 4405 Bland Road, Raleigh, NC 27609,
(919)873-2000 NORTH DAKOTA Clare Carlson, Mark Wax, Federal Bldg., Room 208, 220 East Rooser, P.O. Box 1737, Bismarck, ND 58502-1737,
(701)530-2061 OHIO Randall Hunt, Gerald Arnott, Federal Bldg., Room 507, 200 N. High Street, Columbus, OH 43215-2477,
(614)255-2500 OKLAHOMA Brent J. Kisling, Tommy Earls, Suite 108, 100 USDA, Stillwater, OK 74074-2654,
(405)742-1000 OREGON Mark Simmons, Rod Hansen, 1201 NE. Lloyd Blvd., Suite 801, Portland, OR 97232,
(503)414-3300 PENNSYLVANIA Gary Groves, Frank Wetherhold, Suite 330, One Credit Union Place, Harrisburg, PA 17110-2996,
(717)237-2299 PUERTO RICO Jose Otero-Garcia, Pedro Gomez, IBM Building, Suite 601, 654 Munoz Rivera Avenue, San Juan, PR 00936-6106,
(787)766-5095 SOUTH CAROLINA Tee Miller, Herbert Koon, Strom Thurmond Federal Bldg., 1835 Assembly Street, Room 1007, Columbia, SC 29201,
(803)765-5163 SOUTH DAKOTA Mike Jaspers, Roger Hazuka, Federal Bldg., Room 210, 200 Fourth Street, SW., Huron, SD 57350,
(605)352-1100 TENNESSEE Mary
(Ruth)Tackett, Donald L. Harris, Suite 300, 3322 W. End Avenue, Nashville, TN 37203-1084,
(615)783-1300 TEXAS Scooter Brockette, Acting, Scooter Brockette, Federal Bldg., Suite 102, 101 S. Main, Temple, TX 76501,
(254)742-9700 UTAH John R. Cox, Dave Brown, Wallace F. Bennett Federal Bldg., 125 S. State Street, Room 4311, Salt Lake City, UT 84147,
(801)524-4320 VERMONT & NEW HAMPSHIRE Jolinda H. LaClair, Bob McDonald, City Center, 3rd Floor, 89 Main Street, Montpelier, VT 05602,
(802)828-6000 VIRGINIA Ellen M. Davis, James Reid, 1606 Santa Rosa Road, Suite 238, Richmond, VA 23229-5014,
(804)287-1598 WASHINGTON Jon DeVaney, Robert Lund, Suite B, 1835 Black Lake Blvd., SW. Olympia, WA 98512-5715,
(360)704-7740 WEST VIRGINIA Rick Rice, Dianne Crysler, Federal Bldg., Room 320, 75 High Street, Morgantown, WV 26505-7500,
(304)284-4860 WISCONSIN Frank Frassetto, 4949 Kirschling Court, Stevens Point, WI 54481,
(715)345-7600 WYOMING Del Tinsley, Alan Brooks, Federal Building, Room 1005, 100 East B, P.O. Box 11005, Casper, WY 82602,
(307)233-6700 HCFP—Fiscal Year 2008—Section 502 Direct Rural Housing Loans [Allocations in thousands] State State basic formula factor Total FY 2008 allocation ALABAMA 0.02893348 $18,168 ALASKA 0.00623983 7,055 ARIZONA 0.01551438 11,597 ARKANSAS 0.02202430 14,785 CALIFORNIA 0.04281159 24,964 COLORADO 0.01225178 9,999 CONNECTICUT 0.00445853 6,183 DELAWARE 0.00293815 5,439 FLORIDA 0.02769317 17,561 GEORGIA 0.03803061 22,623 HAWAII 0.00623301 7,052 IDAHO 0.00847438 8,150 ILLINOIS 0.02627571 16,866 INDIANA 0.02616726 16,813 IOWA 0.01764334 12,639 KANSAS 0.01336777 10,546 KENTUCKY 0.02807301 17,747 LOUISIANA 0.02361424 15,563 MAINE 0.01109070 9,431 MARYLAND 0.01010209 8,947 MASSACHUSETTS 0.00622585 7,049 MICHIGAN 0.03579346 21,527 MINNESOTA 0.02361828 15,565 MISSISSIPPI 0.02636473 16,910 MISSOURI 0.02809053 17,755 MONTANA 0.00738806 7,618 NEBRASKA 0.00953784 8,670 NEVADA 0.00339314 5,662 NEW HAMPSHIRE 0.00666198 7,262 NEW JERSEY 0.00551402 6,700 NEW MEXICO 0.01296637 10,349 NEW YORK 0.03378933 20,546 NORTH CAROLINA 0.05148079 29,209 NORTH DAKOTA 0.00469453 6,299 OHIO 0.03725173 22,241 OKLAHOMA 0.02019475 13,889 OREGON 0.01654303 12,101 PENNSYLVANIA 0.04269918 24,909 PUERTO RICO 0.00884495 10,123 RHODE ISLAND 0.00090026 4,441 SOUTH CAROLINA 0.02669849 17,074 SOUTH DAKOTA 0.00705037 7,452 TENNESSEE 0.03062418 18,996 TEXAS 0.07365688 40,068 UTAH 0.00500465 6,451 VERMONT 0.00579860 6,839 VIRGIN ISLANDS 0.00217552 5,065 VIRGINIA 0.02711459 17,277 WASHINGTON 0.01939199 13,496 WEST PAC ISLANDS 0.00239453 2,000 WEST VIRGINIA 0.01591004 11,791 WISCONSIN 0.02634031 16,898 WYOMING 0.00393497 5,927 State Totals 702,285 100 Underserved Counties/Colonias 56,074 Empowerment Zones and Enterprise Community Set-Aside 17,978 General Reserve 170,149 Self Help 175,000 Total 1,121,485 HCFP—Fiscal Year 2008—Section 502 Direct Rural Housing Loans [Allocation in thousands] State Total FY 2008 allocation Very low income allocation 45 percent Low income allocation 55 percent 1 ALABAMA $18,168 $8,176 $9,992 60 ALASKA 7,055 3,175 3,880 2 ARIZONA 11,597 5,219 6,378 3 ARKANSAS 14,785 6,653 8,132 4 CALIFORNIA 24,964 11,234 13,730 5 COLORADO 9,999 4,500 5,499 6 CONNECTICUT 6,183 2,782 3,401 7 DELAWARE 5,439 2,448 2,991 9 FLORIDA 17,561 7,902 9,659 10 GEORGIA 22,623 10,180 12,443 61 HAWAII 7,052 3,173 3,879 12 IDAHO 8,150 3,668 4,483 13 ILLINOIS 16,866 7,590 9,276 15 INDIANA 16,813 7,566 9,247 16 IOWA 12,639 5,688 6,951 18 KANSAS 10,546 4,746 5,800 20 KENTUCKY 17,747 7,986 9,761 22 LOUISIANA 15,563 7,003 8,560 23 MAINE 9,431 4,244 5,187 24 MARYLAND 8,947 4,026 4,921 25 MASSACHUSETTS 7,049 3,172 3,877 26 MICHIGAN 21,527 9,687 11,840 27 MINNESOTA 15,565 7,004 8,561 28 MISSISSIPPI 16,910 7,610 9,301 29 MISSOURI 17,755 7,990 9,765 31 MONTANA 7,618 3,428 4,190 32 NEBRASKA 8,670 3,902 4,769 33 NEVADA 5,662 2,548 3,114 34 NEW HAMPSHIRE 7,262 3,268 3,994 35 NEW JERSY 6,700 3,015 3,685 36 NEW MEXICO 10,349 4,657 5,692 37 NEW YORK 20,546 9,246 11,300 38 NORTH CAROLINA 29,209 13,144 16,065 40 NORTH DAKOTA 6,299 2,835 3,464 41 OHIO 22,241 10,008 12,233 42 OKLAHOMA 13,889 6,250 7,639 43 OREGON 12,101 5,445 6,656 44 PENNSYLVANIA 24,909 11,209 13,700 63 PUERTO RICO 10,123 4,555 5,568 45 RHODE ISLAND 4,441 1,998 2,443 46 SOUTH CAROLINA 17,074 7,683 9,391 47 SOUTH DAKOTA 7,452 3,353 4,099 48 TENNESSEE 18,996 8,548 10,448 49 TEXAS 40,068 18,031 22,037 52 UTAH 6,451 2,903 3,548 53 VERMONT 6,839 3,078 3,761 64 VIRGIN ISLANDS 5,065 2,279 2,786 54 VIRGINIA 17,277 7,775 9,502 56 WASHINGTON 13,496 6,073 7,423 62 WEST PAC ISLANDS 2,000 900 1,100 57 WEST VIRGINIA 11,791 5,306 6,485 58 WISCONSIN 16,898 7,604 9,294 59 WYOMING 5,927 2,667 3,260 State Totals 702,285 316,028 386,257 100 Underserved Counties/Colonias 56,074 25,233 30,841 EZ/EC/REAP Reserve 17,978 8,090 9,888 General Reserve 170,149 76,567 93,582 Self Help 175,000 78,750 96,250 Total 1,121,485 504,668 616,817 HCFP—Fiscal Year 2008—Section 502 Guaranteed Purchase Loans (Nonsubsidized) [Allocation in actual dollars] State State basic formula factor FY 2008 state basic formula allocation Additional administrative allocation FY 2008 Total FY 2008 allocation Alabama 0.02657575 $66,439,375 $0 $66,439,375 Alaska 0.00722325 18,058,125 10,937,359 28,995,484 Arizona 0.01640900 41,022,500 0 41,022,500 Arkansas 0.02282102 57,052,550 63,553,262 120,605,812 California 0.05030996 125,774,900 0 125,774,900 Colorado 0.01357525 33,938,125 0 33,938,125 Connecticut 0.00408986 10,224,650 0 10,224,650 Delaware 0.00276106 6,902,650 1,713,350 8,616,000 Florida 0.02650361 66,259,025 0 66,259,025 Georgia 0.03793281 94,832,025 0 94,832,025 Hawaii 0.00796215 19,905,375 0 19,905,375 Idaho 0.00888491 22,212,275 5,620,284 27,832,559 Illinois 0.02591265 64,781,625 129,541,273 194,322,898 Indiana 0.02361952 59,048,800 0 59,048,800 Iowa 0.01674764 $41,869,100 $11,998,164 $53,867,264 Kansas 0.01333450 33,336,250 36,218,726 69,554,976 Kentucky 0.02667768 66,694,200 38,659,598 105,353,798 Louisiana 0.02306785 57,669,625 0 57,669,625 Maine 0.01154316 28,857,900 13,702,932 42,560,832 Maryland 0.00944838 23,620,950 4,968,254 28,589,204 Massachusetts 0.00620846 15,521,150 0 15,521,150 Michigan 0.03318174 82,954,350 98,230,746 181,185,096 Minnesota 0.02265572 56,639,300 75,312,997 131,952,297 Mississippi 0.02650848 66,271,200 0 66,271,200 Missouri 0.02830414 70,760,350 69,488,422 140,248,772 Montana 0.00778549 19,463,725 17,437,568 36,901,293 Nebraska 0.00963559 24,088,975 4,998,792 29,087,767 Nevada 0.00373060 9,326,500 0 9,326,500 New Hampshire 0.00696793 17,419,825 0 17,419,825 New Jersey 0.00489407 12,235,175 4,339,860 16,575,035 New Mexico 0.01349689 33,742,225 0 33,742,225 New York 0.03640605 91,015,125 0 91,015,125 North Carolina 0.05076681 126,917,025 0 126,917,025 North Dakota 0.00440032 11,000,800 2,080,579 13,081,379 Ohio 0.03518978 87,974,450 2,418,898 90,393,348 Oklahoma 0.02008600 50,215,000 10,401,466 60,616,466 Oregon 0.01909631 47,740,775 0 47,740,775 Pennsylvania 0.04089133 102,228,325 0 102,228,325 Puerto Rico 0.00919939 22,998,475 131,612,371 154,610,846 Rhode Island 0.00075627 1,890,675 0 1,890,675 South Carolina 0.02526494 63,162,350 0 63,162,350 South Dakota 0.00751015 18,775,375 53,138,707 71,914,082 Tennessee 0.02902148 72,553,700 45,526,777 118,080,477 Texas 0.07276234 181,905,850 0 181,905,850 Utah 0.00510515 12,762,875 11,985,564 24,748,439 Vermont 0.00663633 16,590,825 0 16,590,825 Virgin Islands 0.00306743 7,668,575 0 7,668,575 Virginia 0.02554389 63,859,725 37,186,762 101,046,487 Washington 0.02205374 55,134,350 0 55,134,350 West Pac N/A 0 8,298,821 8,298,821 West Virginia 0.01502432 37,560,800 8,274,490 45,835,290 Wisconsin 0.02575423 64,385,575 9,211,203 73,596,778 Wyoming 0.00395173 9,879,325 0 9,879,325 State Totals 3,400,000,000 General Reserve 1,090,994,365 Special Outreach Areas Reserve 467,569,014 Total 4,958,563,379 **Total includes FY 2007 Carryover and Rescission. HCFP—Fiscal Year 2008—Section 502 Guaranteed Refinance Loans (Nonsubsidized) [Allocation in actual dollars] State State basic formula factor Total FY 2008 allocation Alabama N/A $0 Alaska N/A 0 Arizona N/A 0 Arkansas N/A 0 California N/A 0 Colorado N/A 0 Connecticut N/A 0 Delaware N/A 0 Florida N/A 0 Georgia N/A 0 Hawaii N/A 0 Idaho N/A 0 Illinois N/A 0 Indiana N/A 0 Iowa N/A 0 Kansas N/A 0 Kentucky N/A 0 Louisiana N/A 0 Maine N/A 0 Maryland N/A 0 Massachusetts N/A 0 Michigan N/A 0 Minnesota N/A 0 Mississippi N/A 0 Missouri N/A 0 Montana N/A 0 Nebraska N/A 0 Nevada N/A 0 New Hampshire N/A 0 New Jersey N/A 0 New Mexico N/A 0 New York N/A 0 North Carolina N/A 0 North Dakota N/A 0 Ohio N/A 0 Oklahoma N/A 0 Oregon N/A 0 Pennsylvania N/A 0 Puerto Rico N/A 0 Rhode Island N/A 0 South Carolina N/A 0 South Dakota N/A 0 Tennessee N/A 0 Texas N/A 0 Utah N/A 0 Vermont N/A 0 Virgin Islands N/A 0 Virginia N/A 0 Washington N/A 0 West Pac N/A 0 West Virginia N/A 0 Wisconsin N/A 0 Wyoming N/A 0 State Totals 0 National Office Reserve 269,375,804 Total 269,375,804 ** Includes FY 2007 Carryover. HCFP—Fiscal Year 2008—Section 504 Direct Rural Housing Loans [Allocation in Thousands] State State basic formula factor Total FY 2008 allocation 1 ALABAMA 0.02914691 $903 60 ALASKA 0.00945161 293 2 ARIZONA 0.02165916 671 3 ARKANSAS 0.02301181 713 4 CALIFORNIA 0.05356026 1,659 5 COLORADO 0.01244796 386 6 CONNECTICUT 0.00301503 93 7 DELAWARE 0.00260858 81 9 FLORIDA 0.02862195 887 10 GEORGIA 0.03870552 1,199 61 HAWAII 0.00914234 283 12 IDAHO 0.00926157 287 13 ILLINOIS 0.02289193 709 15 INDIANA 0.02163577 670 16 IOWA 0.01497537 464 18 KANSAS 0.01252499 388 20 KENTUCKY 0.02699175 836 22 LOUISIANA 0.02658801 824 23 MAINE 0.01004646 311 24 MARYLAND 0.00809012 251 25 MASSACHUSETTS 0.00467784 145 26 MICHIGAN 0.03036170 941 27 MINNESOTA 0.02241926 695 28 MISSISSIPPI 0.02944306 912 29 MISSOURI 0.02649320 821 31 MONTANA 0.00748030 232 32 NEBRASKA 0.00889870 276 33 NEVADA 0.00389431 121 34 NEW HAMPSHIRE 0.00533998 165 35 NEW JERSEY 0.00402807 125 36 NEW MEXICO 0.01723147 534 37 NEW YORK 0.02829025 876 38 NORTH CAROLINA 0.04993409 1,547 40 NORTH DAKOTA 0.00445144 138 41 OHIO 0.03025666 937 42 OKLAHOMA 0.02084848 646 43 OREGON 0.01749746 542 44 PENNSYLVANIA 0.03508076 1,087 63 PUERTO RICO 0.01361295 422 45 RHODE ISLAND 0.00061002 19 46 SOUTH CAROLINA 0.02721728 843 47 SOUTH DAKOTA 0.00727218 225 48 TENNESSEE 0.02874616 891 49 TEXAS 0.08626859 2,673 52 UTAH 0.00539086 167 53 VERMONT 0.00496554 154 64 VIRGIN ISLANDS 0.00348170 108 54 VIRGINIA 0.02455868 761 56 WASHINGTON 0.02114040 655 62 WEST PAC ISLANDS 0.00407807 500 57 WEST VIRGINIA 0.01464971 454 58 WISCONSIN 0.02300364 713 59 WYOMING 0.00397110 123 State Totals 31,327 100 Underserved Counties/Colonias 1,720 Empowerment Zones and Enterprise Community Set-Aside 628 General Reserve 734 Total 34,409 HCFP—Fiscal Year 2008—Section 504 Direct Rural Housing Grants [Allocation in thousands] State State basic formula factor Total FY 2008 allocation 1 ALABAMA 0.02895129 $742 60 ALASKA 0.00683910 175 2 ARIZONA 0.01822198 467 3 ARKANSAS 0.02307817 591 4 CALIFORNIA 0.04712512 1,208 5 COLORADO 0.01159403 297 6 CONNECTICUT 0.00371268 95 7 DELAWARE 0.00293163 75 9 FLORIDA 0.03041312 779 10 GEORGIA 0.03661908 939 61 HAWAII 0.00731435 187 12 IDAHO 0.00852842 219 13 ILLINOIS 0.02641754 677 15 INDIANA 0.02405959 617 16 IOWA 0.01786210 458 18 KANSAS 0.01364909 350 20 KENTUCKY 0.02688977 689 22 LOUISIANA 0.02413924 619 23 MAINE 0.01074827 275 24 MARYLAND 0.00927164 238 25 MASSACHUSETTS 0.00548024 140 26 MICHIGAN 0.03302491 846 27 MINNESOTA 0.02348925 602 28 MISSISSIPPI 0.02699213 692 29 MISSOURI 0.02801252 718 31 MONTANA 0.00736568 189 32 NEBRASKA 0.00983363 252 33 NEVADA 0.00359134 92 34 NEW HAMPSHIRE 0.00589663 151 35 NEW JERSEY 0.00461712 118 36 NEW MEXICO 0.01420178 364 37 NEW YORK 0.03156987 809 38 NORTH CAROLINA 0.05019393 1,286 40 NORTH DAKOTA 0.00470192 121 41 OHIO 0.03422496 877 42 OKLAHOMA 0.02108316 540 43 OREGON 0.01770850 454 44 PENNSYLVANIA 0.04090487 1,048 63 PUERTO RICO 0.01023070 262 45 RHODE ISLAND 0.00074832 19 46 SOUTH CAROLINA 0.02591134 664 47 SOUTH DAKOTA 0.00723669 185 48 TENNESSEE 0.02972644 762 49 TEXAS 0.07876808 2,019 52 UTAH 0.00493463 126 53 VERMONT 0.00527848 135 64 VIRGIN ISLANDS 0.00243791 62 54 VIRGINIA 0.02623675 672 56 WASHINGTON 0.01980392 508 62 WEST PAC ISLANDS 0.00280568 500 57 WEST VIRGINIA 0.01559911 400 58 WISCONSIN 0.02514997 645 59 WYOMING 0.00385395 99 State Totals 26,054 100 Underserved Counties/Colonias 1,490 Empowerment Zones and Enterprise Community Set-Aside 596 General Reserve 1,650 Total 29,790 HCFP—Fiscal Year 2008—Underserved and Colonias Funds [Allocation in thousands] Underserved state Sum of rural populations Percentage Weight 502 Direct 502 VL (45%) 502 Low (55%) 504 Loan 504 Grant Alabama 34,310 2.62 3 $1,121 $505 $617 $34 $30 Alaska 29,320 2.24 3 1,121 505 617 34 30 Hawaii 33,480 2.56 3 1,121 505 617 34 30 Arizona 217,690 16.63 5 1,869 841 1,028 57 50 California 69,640 5.32 4 1,495 673 822 46 40 Colorado 3,670 0.28 1 374 168 206 11 10 Florida 72,310 5.52 4 1,495 673 822 46 40 Georgia 14,230 1.09 2 748 336 411 23 20 Idaho 1,030 0.08 1 374 168 206 11 10 Louisiana 36,260 2.77 3 1,121 505 617 34 30 Mississippi 92,260 7.05 4 1,495 673 822 46 40 Montana 32,540 2.49 3 1,121 505 617 34 30 Nebraska 7,160 0.55 1 374 168 206 11 10 New Mexico 57,970 4.43 4 1,495 673 822 46 40 North Dakota 17,550 1.34 2 748 336 411 23 20 West Pac Islands 5,920 0.45 1 374 168 206 11 10 Puerto Rico 301,960 23.07 5 1,869 841 1,028 57 50 South Dakota 41,840 3.20 3 1,121 505 617 34 30 Texas 189,070 14.45 5 1,869 841 1,028 57 50 Virgin Islands 50,580 3.86 3 1,121 505 617 34 30 1,308,790 100.00 60 22,430 10,093 12,336 688 596 Subtotal 22,430 688 596 Reserve 11,215 344 298 Colonias 22,430 688 596 Total FY 08 56,074 1,720 1,490 Base Allocation 373.83 11.47 9.93 COLONIAS 502 Direct 502 VL 502 Low 504 Loan 504 Grant Arizona 5,607 2,523 3,084 172 149 California 5,607 2,523 3,084 172 149 New Mexico 5,607 2,523 3,084 172 149 Texas 5,607 2,523 3,084 172 149 Total 22,430 10,093 12,336 688 596 HCFP—Fiscal Year 2008—Empowerment Zone, Enterprise Community and Rural Economic Partnership Funds [Allocation in thousands] State No. 502 VL EZ/EC/REAP amount 502 Low EZ/EC/REAP amount 504 Loan EZ/EC/REAP amount AK 1 $115 $135 $15 AZ 1 115 135 15 CA 2 230 270 30 FL 1 115 135 15 GA 1 115 135 15 HI 1 115 135 15 IL 1 115 135 15 IN 1 115 135 15 KS 1 115 135 15 KY 2 230 270 30 ME 2 230 270 30 MI 1 115 135 15 MO 1 115 135 15 MS 1 115 135 15 MT 1 115 135 15 ND 3 345 405 45 NM 1 115 135 15 NY 2 230 270 30 OK 1 115 135 15 PA 1 115 135 15 SC 1 115 135 15 SD 1 115 135 15 TN 1 115 135 15 TX 2 230 270 30 VT 1 115 135 15 WA 1 115 135 15 WI 1 115 135 15 WV 1 115 135 15 Reserve 4,065 5,163 103 Available 35 8,090 9,888 627 HCFP—Fiscal Year 2008—Section 502 Guaranteed Purchase 2005 Hurricane Disaster Loans (Nonsubsidized) [Allocation in actual dollars] State State basic formula factor Total FY 2008 allocation Alabama N/A $28,313,769 Alaska N/A 0 Arizona N/A 0 Arkansas N/A 0 California N/A 0 Colorado N/A 0 Connecticut N/A 0 Delaware N/A 0 Florida N/A 28,313,769 Georgia N/A 0 Hawaii N/A 0 Idaho N/A 0 Illinois N/A 0 Indiana N/A 0 Iowa N/A 0 Kansas N/A 0 Kentucky N/A 0 Louisiana N/A 356,753,491 Maine N/A 0 Maryland N/A 0 Massachusetts N/A 0 Michigan N/A 0 Minnesota N/A 0 Mississippi N/A 237,835,660 Missouri N/A 0 Montana N/A 0 Nebraska N/A 0 Nevada N/A 0 New Hampshire N/A 0 New Jersey N/A 0 New Mexico N/A 0 New York N/A 0 North Carolina N/A 0 North Dakota N/A 0 Ohio N/A 0 Oklahoma N/A 0 Oregon N/A 0 Pennsylvania N/A 0 Puerto Rico N/A 0 Rhode Island N/A 0 South Carolina N/A 0 South Dakota N/A 0 Tennessee N/A 0 Texas N/A 28,313,769 Utah N/A 0 Vermont N/A 0 Virgin Islands N/A 0 Virginia N/A 0 Washington N/A 0 West Pac N/A 0 West Virginia N/A 0 Wisconsin N/A 0 Wyoming N/A 0 State Totals 679,530,458 National Office Reserve 75,503,383 Total 755,033,841 ** Includes FY 2007 Carryover. [FR Doc. E8-6332 Filed 3-27-08; 8:45 am] BILLING CODE 3410-XV-P COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Proposed Addition and Deletion AGENCY: Committee for Purchase From People Who Are Blind or Severely Disabled. ACTION: Proposed Addition to and Deletion from the Procurement List. SUMMARY: The Committee is proposing to add to the Procurement List a service to be furnished by a nonprofit agency employing persons who are blind or have other severe disabilities, and to delete a product previously furnished by such an agency. *Comments Must be Received on or Before:* April 27, 2008. ADDRESSES: Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259. FOR FURTHER INFORMATION OR TO SUBMIT COMMENTS CONTACT: Kimberly M. Zeich, Telephone:
(703)603-7740, Fax:
(703)603-0655, or e-mail *CMTEFedReg@jwod.gov* . SUPPLEMENTARY INFORMATION: This notice is published pursuant to 41 U.S.C. 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions. Addition If the Committee approves the proposed addition, the entities of the Federal Government identified in this notice for each service will be required to procure the service listed below from nonprofit agencies employing persons who are blind or have other severe disabilities. Regulatory Flexibility Act Certification I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were: 1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the service to the Government. 2. If approved, the action will result in authorizing small entities to furnish the service to the Government. 3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the service proposed for addition to the Procurement List. Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information. End of Certification The following service is proposed for addition to Procurement List for production by the nonprofit agencies listed: Service *Service Type/Location:* Custodial Services, Andersen Air Force Base (Basewide), APO AP, GU. *NPA:* Able Industries of the Pacific, Santa Rita, GU Contracting Activity: U.S. Air Force, Andersen Air Force Base, 36th Contracting Squadron, APO AP, GU. Deletion Regulatory Flexibility Act Certification I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were: 1. If approved, the action should not result in additional reporting, recordkeeping or other compliance requirements for small entities. 2. If approved, the action may result in authorizing small entities to furnish the product to the Government. 3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the product proposed for deletion from the Procurement List. Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information. End of Certification The following product is proposed for deletion from the Procurement List: Product Cover, Ironing Board and Pad Set *NSN:* M.R. 968 *NPA:* Chester County Branch of the PAB, Coatesville, PA *Contracting Activity:* Defense Commissary Agency (DeCA), Fort Lee, VA Kimberly M. Zeich, Director, Program Operations. [FR Doc. E8-6402 Filed 3-27-08; 8:45 am] BILLING CODE 6353-01-P COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Addition AGENCY: Committee for Purchase From People Who Are Blind or Severely Disabled. ACTION: Addition to the Procurement List. SUMMARY: This action adds to the Procurement List a service to be furnished by a nonprofit agency employing persons who are blind or have other severe disabilities. DATES: *Effective Date:* April 27, 2008. ADDRESSES: Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259. FOR FURTHER INFORMATION CONTACT: Kimberly M. Zeich, Telephone:
(703)603-7740, Fax:
(703)603-0655, or e-mail *CMTEFedReg@jwod.gov.* SUPPLEMENTARY INFORMATION: On January 25, 2008, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice (73 FR 4519) of proposed additions to the Procurement List. After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the services and impact of the additions on the current or most recent contractors, the Committee has determined that the services listed below are suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4. Regulatory Flexibility Act Certification I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were: 1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the service to the Government. 2. The action will result in authorizing small entities to furnish the service to the Government. 3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the service proposed for addition to the Procurement List. End of Certification Accordingly, the following service is added to the Procurement List: Service: *Service Type/Location:* Grounds Maintenance, Janitorial & Facility Maintenance Services, Loyalhanna & Conemaugh Dam, 400 Loyalhanna Dam Road, Saltsburgh, PA. *NPA:* The Burnley Workshop of the Poconos, Inc., Stroudsburg, PA. *Contracting Activity:* U.S. Army Corps of Engineers—Pittsburgh District, Pittsburgh, PA. This action does not affect current contracts awarded prior to the effective date of this addition or options that may be exercised under those contracts. Kimberly M. Zeich, Director, Program Operations. [FR Doc. E8-6403 Filed 3-27-08; 8:45 am] BILLING CODE 6353-01-P DEPARTMENT OF COMMERCE International Trade Administration A-570-831 Fresh Garlic from the People's Republic Republic of China: Extension of Time Limit for Final Results of the Twelfth Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: March 28, 2008. FOR FURTHER INFORMATION CONTACT: Julia Hancock or Matthew Renkey, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230; telephone:
(202)482-1394 and
(202)482-2312, respectively. SUPPLEMENTARY INFORMATION: Background On December 10, 2007, the Department of Commerce (“Department”) published the preliminary results of this administrative review. *See Fresh Garlic from the People's Republic of China: Notice of Preliminary Results and Preliminary Partial Rescission of the Twelfth Administrative Review* , 72 FR 69652 (December 10, 2007) (“ *Preliminary Results* ”). The period of review for this administrative review is November 1, 2005, through October 31, 2006. The final results are currently due on April 8, 2008. Extension of Time Limits for Final Results Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“Act”), requires the Department to issue the final results in an administrative review of an antidumping duty order 120 days after the date on which the preliminary results are published. The Department may, however, extend the deadline for completion of the final results of an administrative review to 180 days if it determines it is not practicable to complete the review within the foregoing time period. *See* section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2). The Department finds that it is not practicable to complete the final results of the administrative review within this time limit. Specifically, after coordinating with the interested parties, the Department is extending the deadline for the final results to accommodate parties' public hearing requests so that parties may address all issues. Additionally, the Department requires additional time to complete the analysis of certain fact-intensive issues, such as questions regarding the selection of surrogate values, raised in the case briefs. For the reasons noted above, we are extending the time for the completion of the final results of this review by 60 days to June 9, 2008. This notice is published in accordance with sections 751(a)(1) and 777(i)(1) of the Act. Dated: March 14, 2008. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E8-6449 Filed 3-27-08; 8:45 am] Billing Code: 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration A-533-845 Notice of Final Determination of Sales at Less Than Fair Value: Glycine from India AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: March 28, 2008. SUMMARY: On November 7, 2007, the Department of Commerce published its preliminary determination and amended preliminary determination, respectively, of the investigation of sales at less than fair value in the antidumping duty investigation of glycine from India. See *Notice of Preliminary Determination of Sales at Less Than Fair Value: Glycine From India* , 72 FR 62827 (November 7, 2007), and *Notice of Amended Preliminary Determination of Sales at Less Than Fair Value: Glycine From India* , 72 FR 62826 (November 7, 2007). The Department of Commerce has determined that glycine from India is being, or is likely to be, sold in the United States at less than fair value, as provided in section 735 of the Tariff Act of 1930, as amended (the Act). The estimated margins of sales at less than fair value are listed below in the section entitled “Final Determination of Investigation.” FOR FURTHER INFORMATION CONTACT: George Callen or Richard Rimlinger, AD/CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:
(202)482-0180 or
(202)482-4477, respectively. SUPPLEMENTARY INFORMATION: Case History The preliminary and amended preliminary determinations in this investigation were published on November 7, 2007. See *Notice of Preliminary Determination of Sales at Less Than Fair Value: Glycine From India* , 72 FR 62827 (November 7, 2007) ( *Preliminary Determination* ), and *Notice of Amended Preliminary Determination of Sales at Less Than Fair Value: Glycine From India* , 72 FR 62826 (November 7, 2007). Since then, we determined that an allegation of critical circumstances submitted by the petitioner on October 12 and 25, 2007, was inadequate. See Memorandum from Kristin Case to Laurie Parkhill dated November 13, 2007. We have also conducted sales and cost verifications of the responses submitted by Paras Intermediates, Ltd. (Paras). See Memoranda to the file entitled “Verification of the Sales Response of Paras Intermediates Pvt. Ltd. in the Antidumping Duty Investigation of Glycine from India” dated January 23, 2008, and “Verification of the Cost Response of Paras Intermediates Private Ltd, in the Antidumping Investigation of Glycine from India” dated February 20, 2008, available in the Central Records Unit (CRU), room 1117 of the main Department of Commerce building. On February 22, 2008, we released a memorandum entitled “Proposed Adjustments to the Cost of Production and Constructed Value Data Paras Intermediates Pvt. Ltd.” and invited interested parties to submit comments. We received a case brief from Paras on March 3, 2008; the petitioner, GEO Specialty Chemicals, Inc. (GEO), filed a rebuttal brief on March 5, 2008. Analysis of Comments Received All issues raised in the case and rebuttal briefs by parties to this antidumping investigation are addressed in the “Issues and Decision Memorandum for the Antidumping Duty Investigation of Glycine from India for the Period of Investigation January 1, 2006, through December 31, 2006” (Decision Memorandum) from Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, to David M. Spooner, Assistant Secretary for Import Administration, dated March 21, 2008, which is hereby adopted by this notice. A list of the issues which parties have raised and to which we have responded, all of which are in the Decision Memorandum, is attached to this notice as an appendix. Parties can find a complete discussion of all issues raised in this investigation and the corresponding recommendations in the Decision Memorandum which is on file in CRU. In addition, a complete version of the Decision Memorandum can be accessed directly on the Web at http://ia.ita.doc.gov/. The paper copy and electronic version of the Decision Memorandum are identical in content. Scope of Investigation The merchandise covered by this investigation is glycine, which in its solid, *i.e.* , crystallized, form is a free-flowing crystalline material. Glycine is used as a sweetener/taste enhancer, buffering agent, reabsorbable amino acid, chemical intermediate, metal complexing agent, dietary supplement, and is used in certain pharmaceuticals. The scope of this investigation covers glycine in any form and purity level. Although glycine blended with other materials is not covered by the scope of this investigation, glycine to which relatively small quantities of other materials have been added is covered by the scope. Glycine's chemical composition is C2H5NO2 and is normally classified under subheading 2922.49.4020 of the Harmonized Tariff Schedule of the United States (HTSUS). The scope of this investigation also covers precursors of dried crystalline glycine, including, but not limited to, glycine slurry, *i.e.* , glycine in a non-crystallized form, and sodium glycinate. Glycine slurry is classified under the same HTSUS subheading as crystallized glycine (2922.49.4020) and sodium glycinate is classified under subheading HTSUS 2922.49.8000. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive. Period of Investigation The period of investigation is from January 1, 2006, through December 31, 2006. Changes Since the Preliminary Determination Based on our analysis of the comments received and our findings at verification, we have made certain changes to the margin calculation for Paras. For a discussion of these changes, see memorandum from George Callen to The File entitled “Glycine from India - Final Determination of Sales at Less Than Fair Value Analysis Memorandum for Paras” dated March 21, 2008, and the memorandum from Angela Strom to Neal Halper entitled “Cost of Production and Constructed Value Calculation Adjustments for the Final Determination Paras Intermediates Pvt. Ltd.” dated March 21, 2008. Adverse Facts Available For the final determination, we continue to find that, by failing to provide information we requested, certain producers and/or exporters of glycine from India did not act to the best of their ability in responding to our requests for information. Thus, the Department continues to find that the use of adverse facts available is warranted for these companies under sections 776(a)(2) and
(b)of the Act. See *Preliminary Determination* , 72 FR at 62829. As we explained in the *Preliminary Determination* , the rate of 121.62 percent we selected as the adverse facts-available rate is the highest margin alleged in the petition, as recalculated in the April 19, 2007, “Office of AD/CVD Operations Initiation Checklist for the Antidumping Duty Petition on Glycine from India” (the Initiation Checklist) on file in CRU. See also *Petition for the Imposition of Antidumping Duties on Imports of Glycine from India, Japan, and the Republic of Korea* filed on March 30, 2007 (the Petition), and the April 3, 12, 13, 17, and 18, 2007, supplements to the Petition submitted by GEO. We selected this rate from the range of margins we re-calculated in the Initiation Checklist in *Glycine from India, Japan, and the Republic of Korea: Initiation of Antidumping Duty Investigations* , 72 FR 20816 (April 26, 2007) ( *Initiation Notice* ). Further, as discussed in the *Preliminary Determination* , we corroborated the adverse facts-available rate pursuant to section 776(c) of the Act. All-Others Rate Section 735(c)(5)(A) of the Act provides that the estimated all-others rate shall be an amount equal to the weighted-average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and *de minimis* margins and any margins determined entirely under section 776 of the Act. For this final determination we have calculated a margin for Paras that is above *de minimis* . Therefore, for purposes of determining the all-others rate and pursuant to section 735(c)(5)(A) of the Act, because other respondents are receiving margins based on adverse facts available, we are using the dumping margin we have calculated for Paras as indicated in the “Final Determination of Investigation” section below. Final Determination of Investigation We determine that the following weighted-average dumping margins exist for the period January 1, 2006, through December 31, 2006: Manufacturer or Exporter Margin (percent) Paras Intermediates, Ltd. 10.90 Abhiyan Media Pvt. Ltd. 121.62 Advanced Exports/Aico Laboratories 121.62 Ashok Alco-Chem, Ltd. 121.62 Bimal Pharma, Pvt., Ltd. 121.62 Euro Asian Industrial Co. 121.62 EPIC Enzymes Pharmaceuticals & Industrial 121.62 Indian Chemical Industries 121.62 Kumar Industries 121.62 Nutracare International/Salvi Chemical Industries 121.62 Sisco Research Laboratories Pvt. Ltd 121.62 Sealink International, Inc. 121.62 All Others 10.90 Continuation of Suspension of Liquidation Pursuant to section 735(c)(1)(B) of the Act and 19 CFR 351.211(b)(1), we will instruct U.S. Customs and Border Protection
(CBP)to continue to suspend liquidation of all entries of subject merchandise from India entered, or withdrawn from warehouse, for consumption on or after November 7, 2007, the date of the publication of *Preliminary Determination* , for all producers/exporters other than Paras. Because we found Paras to have a *de minimis* margin in the *Preliminary Determination* , we will instruct U.S. Customs and Border Protection
(CBP)to suspend liquidation of all entries of subject merchandise from India from Paras and entered, or withdrawn from warehouse, for consumption on or after the date of the publication of this final determination. We will instruct CBP to require a cash deposit or the posting of a bond equal to the weighted-average margin, as indicated in the chart above, as follows:
(1)the rate for the respondents will be the rates we have determined in this final determination;
(2)if the exporter is not a firm identified in this investigation but the producer is, the rate will be the rate established for the producer of the subject merchandise;
(3)the rate for all other producers or exporters will be 10.90 percent. These suspension-of-liquidation instructions will remain in effect until further notice. International Trade Commission Notification In accordance with section 735(d) of the Act, we have notified the International Trade Commission
(ITC)of our final determination. As our final determination is affirmative and in accordance with section 735(b)(2) of the Act, the ITC will determine, within 45 days, whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports or sales (or the likelihood of sales) for importation of the subject merchandise. If the ITC determines that material injury or threat of material injury does not exist, the proceeding will be terminated and all securities posted will be refunded or canceled. If the ITC determines that such injury does exist, the Department will issue an antidumping duty order directing CBP to assess antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation. Notification Regarding APO This notice also serves as a reminder to parties subject to administrative protective order
(APO)of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation. This determination is issued and published pursuant to sections 735(d) and 777(i)(1) of the Act. Dated: March 21, 2008. David M. Spooner, Assistant Secretary for Import Administration. Appendix *Comment 1:* Work-in-Process Inventories *Comment 2:* Recovery of Bad Debts *Comment 3:* Duty Drawback *Comment 4:* Interest Income Offset *Comment 5:* Appropriate Sales Database to Use [FR Doc. E8-6450 Filed 3-27-08; 8:45 am] Billing Code: 3510-DS-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG69 Fisheries Off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; Application for an Exempted Fishing Permit AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; intent to issue the EFP; request for comments. SUMMARY: NMFS announces the intent to issue exempted fishing permits
(EFPs)to Pacific whiting shoreside vessels and first receivers that participate in a maximized retention and monitor program for the 2008 Pacific whiting shoreside fishery. EFPs are needed to allow vessels to retain catch in excess of the cumulative limits and to retain prohibited species until offloading. EFPs are also needed to allow first receivers to possess catch from a vessel that is in excess of cumulative limits and to used hopper type scales to derive accurate catch weights prior to sorting. Issuance of the EFPs would allow NMFS to collect catch data on incidentally caught species, including salmonids listed under the Endangered Species Act, and would allow new components of an overall monitoring program to be investigated before implementation of a regulatory program. DATES: Comments must be received by April 14, 2008. ADDRESSES: You may submit comments, identified by RIN 0648-XG69 by any one of the following methods: • Fax: 206-526-6736, Attn: Becky Renko • Mail: D. Robert Lohn, Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Becky Renko. Instructions: All comments received are a part of the public record and will generally be posted to *http://www.regulations.gov* without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. FOR FURTHER INFORMATION CONTACT: Becky Renko or Gretchen Arentzen or (206)526(6140. SUPPLEMENTARY INFORMATION: This action is authorized by the Magnuson-Stevens Fishery Conservation and Management Act provisions at 50 CFR 600.745 which states that EFPs may be used to authorize fishing activities that would otherwise be prohibited. At the March 10-14, 2008, Pacific Fishery Management Council (Council) meeting in Sacramento, California, NMFS Northwest Region presented a proposal for issuance of EFPs to vessels and first receivers participating in the 2008 Pacific whiting shoreside fishery. If issued, the EFPs would provide for a maximized retention and monitoring program for the Pacific whiting shoreside fishery. The proposed maximized retention and monitoring program regulations are intended to allow for the Pacific whiting shoreside fishery to be efficiently prosecuted while providing accurate catch data such that the Endangered Species Act and Magnuson-Stevens Fishery Conservation and Management Act requirements for this fishery are adequately met. An opportunity for Council discussion and public testimony were provided during the Councils March 2008 meeting in Sacramento, California. The issuance of EFPs would allow approximately 40 vessels to delay sorting of groundfish catch and to retain catch in excess of cumulative trip limits and prohibited species catch until offloading. These activities are otherwise prohibited by regulations at 50 CFR 660.306(a)(10) and 660.306(a)(2), respectively. Issuance of the EFPs, to approximately 15 first receivers, will allow first receivers to possess more than a single cumulative limit of a particular species, per vessel, per applicable cumulative limit period. The possession of catch in excess of the cumulative limits is otherwise prohibited by regulations at 50 CFR 660.306(a)(10). In addition, the EFPs will include an allowance for first receivers to use hopper type scales to derive an accurate total catch weight prior to sorting. Regulations pertaining to sorting at § 660.370(h)(6) and prohibitions at § 660.306(a)(7) require vessels to sort the catch before weighing. Issuance of these EFPs will allow for the collection of information on the catch of salmon, non-whiting groundfish, and other non-groundfish species incidentally taken with Pacific whiting. These data are needed to monitor the attainment of the shore-based whiting allocation while assuring that the fishery specifications (bycatch limits, species allocations, OYs, and biological opinion thresholds) are not exceeded. Because whiting flesh deteriorates rapidly once the fish are caught, whiting must be minimally handled and immediately chilled to maintain the flesh quality. Allowing Pacific whiting shoreside vessels to retain unsorted catch will also enable whiting quality to be maintained. At the June 2007 Pacific Fishery Management Council
(PFMC)meeting, the PFMC recommended that NMFS implement a maximized retention program in Federal regulations that would allow full retention of Pacific whiting catch by the vessels and delivered to first receivers on shore. NMFS Northwest Region is in the process of transitioning the Pacific whiting shoreside fishery from a maximized retention and monitoring program conducted under a state-run EFP to a Federal regulatory program. Though it was expected that the program would be in place at the start of the 2008 fishing season, it will not be possible given the complexity of the rulemaking and other workload priorities. The EFP, as proposed, would be used to investigate the new components of the overall monitoring program before regulatory implementation. The EFP would be in effect until the effective date of the new Federal maximized retention and monitoring program, later in 2008. Proposed Federal regulations for a maximized retention and monitoring program would require Pacific whiting shoreside vessels to dump unsorted catch directly below deck and would allow unsorted catch to be landed, providing that an electronic monitoring system
(EMS)is used on all fishing trips to verify retention of catch at sea. The EMS is an effective tool for accurately monitoring catch retention and identifying the time and location of discard events. The EFP would include provisions for EMS, paid for by the vessels, similar to the 2007 EFP and similar to the proposed Federal regulatory program. Proposed Federal regulations for a maximized retention and monitoring program would also require first receivers to have on shore monitoring conducted by catch monitors. Catch monitors would be third party employees, paid for by industry, and trained to NMFS standards. The EFP would include provisions for third party catch monitors from a NMFS specified provider. Like the proposed Federal regulatory program, catch monitors used under the EFP would be trained in techniques that would be used for the verification of fish ticket data and in species identification. Catch monitor duties would include overseeing the sorting, weighing, and recordkeeping process, as well as gathering information on incidentally caught salmon. Catch monitors would verify the accuracy of electronic fish ticket data used to manage the Pacific whiting shoreside fishery such that inaccurate or delayed information does not result in any fishery specifications (bycatch limits, species allocations, OYs, and biological opinion thresholds) being exceeded. Authority: 16 U.S.C. 1801 *et seq.* Dated: March 25, 2008. Alan D. Risenhoover Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E8-6430 Filed 3-27-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN: 0648-XG68 New England Fishery Management Council; Public Meeting AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; public meeting. SUMMARY: The New England Fishery Management Council (Council) is scheduling a public meeting of its Monkfish Oversight Committee in April, 2008, to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate. DATES: This meeting will be held on Tuesday, April 15, 2008, at 5:30 p.m. ADDRESSES: The meeting will be held at the Providence Biltmore Hotel, 11 Dorrance Street, Providence, RI 02903; telephone:
(401)421-0700; fax:
(401)455-3040. *Council address* : New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. FOR FURTHER INFORMATION CONTACT: Paul J. Howard, Executive Director, New England Fishery Management Council; telephone:
(978)465-0492. SUPPLEMENTARY INFORMATION: The Committee will recommend final action on Framework Adjustment 6 to the Monkfish Fishery Management Plan
(FMP)following a review of the draft Framework Adjustment 6 document and the decision of the Mid-Atlantic Fishery Management Council (which will have voted on Framework 6 at their Council meeting on April 9). Based on the recent stock assessment and change in stock status, the Councils are considering eliminating the backstop measure adopted in Framework Adjustment 4, an action that would reduce or eliminate monkfish days-at-sea in fishing year 2009 if landings exceed the catch targets in either or both of the two management areas during this current fishing year. Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency. Special Accommodations This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard, Executive Director, at
(978)465-0492, at least 5 days prior to the meeting date. Authority: 16 U.S.C. 1801 *et seq.* Dated: March 25, 2008. William D. Chappell, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E8-6438 Filed 3-27-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG67 New England Fishery Management Council; Public Meeting AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; public meeting. SUMMARY: The New England Fishery Management Council (Council) is scheduling a public meeting of its Scientific and Statistical Committee on April 14-15, 2008, to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate. DATES: This meeting will be held on Monday, April 14 beginning at 1 p.m. and April 15 beginning at 8 a.m. ADDRESSES: The meeting will be held at the Providence Biltmore Hotel, 11 Dorrance Street, Providence, RI 02903; telephone:
(401)421-0700; fax:
(401)455-3040. *Council address* : New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. FOR FURTHER INFORMATION CONTACT: Paul J. Howard, Executive Director, New England Fishery Management Council; telephone:
(978)465-0492. SUPPLEMENTARY INFORMATION: The Committee will review Skate Plan Development Team analyses regarding skate catch limits and develop allowable biological catch limit recommendations that are consistent with Skate Fishery Management Plan objectives to prevent overfishing and rebuild thorny and winter skates. Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency. Special Accommodations This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard, Executive Director, at
(978)465-0492, at least 5 days prior to the meeting date. Authority: 16 U.S.C. 1801 *et seq.* Dated: March 25, 2008. William D. Chappell, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E8-6439 Filed 3-27-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG66 New England Fishery Management Council; Public Meeting AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of a public meeting. SUMMARY: The New England Fishery Management Council (Council) will hold a 3-day Council meeting on April 15-17, 2008, to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). DATES: The meeting will be held on Tuesday, April 15 beginning at 10 a.m., and Wednesday and Thursday, April 16 and 17, beginning at 8:30 a.m. ADDRESSES: The meeting will be held at the Providence Biltmore Hotel, 11 Dorrance Street, Providence, RI 02903; telephone:
(401)421-0700. *Council address* : New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. FOR FURTHER INFORMATION CONTACT: Paul J. Howard, Executive Director, New England Fishery Management Council; telephone:
(978)465-0492. SUPPLEMENTARY INFORMATION: Tuesday, April 15, 2008 Following introductions and any announcements, the Council will receive a series of brief reports from the Council Chairman and Executive Director, the NOAA Fisheries Northeast Regional Administrator, Northeast Fisheries Science Center and Mid-Atlantic Fishery Management Council liaisons, NOAA General Counsel, NOAA Enforcement and representatives of the U.S. Coast Guard and the Atlantic States Marine Fisheries Commission. The Council also will review any experimental fishery permits requests published since the last Council meeting and possibly offer comments. Following a lunch break, the Council's Scientific and Statistical Committee will make recommendations concerning acceptable biological catch levels for winter and thorny skates while the Skate Committee will report on progress to develop winter and thorny skate rebuilding and management alternatives for inclusion in Amendment 3 to the Skate Fishery Management Plan (FMP). The committee will ask the Council to consider and approve precautionary annual catch limits, accountability measures and additional management measures to address recent changes in the skate fishery. The last agenda item of the day will involve an update by Virginia Institute of Marine Science staff on the institution's Northeast Area Monitoring and Assessment Program. Wednesday, April 16, 2008 The Council will review and approve comment letters regarding the Minerals Management Service's Draft Environmental Impact Statement for the Cape Wind Energy Project and the Revised Framework for Developing a National System for Marine Protected Areas. A report from the Monkfish Committee will follow, during which the Council intends to take final action on Framework 6 to the Monkfish FMP. The Mid-Atlantic and New England Councils are considering eliminating backstop measures adopted in an earlier action that would reduce or eliminate days-at-sea in 2009 if landings exceeded catch targets in either or both of the two monkfish management areas during this current fishing year. The Enforcement Committee will review its recommendations concerning any changes to the running clock prohibition and review its initial discussion about sector monitoring and enforcement. During the afternoon session there will be a preliminary report on a Gulf of Maine Research Institute project to evaluate the monitoring, reporting and enforcement needs necessary to effectively track catch by sector vessels in New England. During the last agenda item, the Council's Groundfish Committee will provide an update on Amendment 16, including a review of annual catch limit and accountability measures, as well as effort control measures and sector policy issues. Thursday, April 17, 2008 During the Herring Committee report the Council will review and approve a scoping document for Amendment 4 to the Atlantic Herring FMP and review the amendment timeline. The Northeast Fisheries Science Center will provide an update on trawl survey gear and calibration exercises regarding the FSVs Albatross and Bigelow. The Scallop Survey Advisory Panel will discuss new terms of reference and plans to calibrate the new survey dredge on the RV Sharp during the 2008 sea scallop survey. This report will be followed by a period for the public to comment on fisheries related issues that are not listed on the agenda. Any other outstanding business will be addressed before the meeting adjourns. Although other non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subjects of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided that the public has been notified of the Council's intent to take final action to address the emergency. Special Accommodations This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see ADDRESSES ) at least 5 days prior to the meeting date. Dated: March 25, 2008. William D. Chappell, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E8-6440 Filed 3-27-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG75 Western Pacific Fishery Management Council; Public Meetings AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of public meetings and hearings. SUMMARY: The Western Pacific Fishery Management Council (Council) will hold its 141st meeting to consider and take actions on fishery management issues in the Western Pacific Region. DATES: The 141st Council meeting and public hearings will be held at 1 p.m. (Hawaii Standard Time) on Monday, April 14, 2008 (12 noon in American Samoa and 9 a.m. on Tuesday, April 15, 2008, in Guam and the Commonwealth of the Northern Mariana Islands) at the Council Office in Honolulu, HI and by teleconference. For specific times and the agenda, see SUPPLEMENTARY INFORMATION . ADDRESSES: The 141st Council meeting and public hearings will be held at the Council's office, 1164 Bishop Street, Suite 1400, Honolulu, HI 96813. For participants residing in American Samoa, the Northern Mariana Islands, Guam, Hawaii and the continental United States, the 141st Council meeting telephone conference call-in-number is: 1-888-482-3560; Access Code; 5228220. For Guam and international participants, the call-in-number is: 1-647-723-3959; Access Code: 5228220. FOR FURTHER INFORMATION CONTACT: Kitty M. Simonds, Executive Director; telephone: 808-522-8220; FAX: 808-522-8226. SUPPLEMENTARY INFORMATION: The Council transmitted the 140th Council Meeting **Federal Register** notice to *NMFS.Regs@noaa.gov* on February 15, 2008, in accordance with the NMFS Regulatory Unit guidelines. NMFS failed to transmit this notice to the Office of the Federal Register for publication and the lack of publication was announced on the last day of the 140th Council Meeting. While the notice was published on the last day of the meeting, this did not fulfill the requirement of advance notification to the public pursuant to the Magnuson-Stevens Fishery Conservation and Management Act. This notice advises the public that the Council will convene its 141st Meeting at 1 p.m. (Hawaii Standard Time) Monday, April 14, 2008 (12 noon in American Samoa and 9 a.m. on Tuesday, April 15, 2008, in Guam and the Commonwealth of the Northern Mariana Islands) at the Council Office in Honolulu, HI and by teleconference. The Council will consider, and take action on, regulatory action items discussed at the 140th meeting and provide the public with an opportunity for comment on items listed as regulatory actions in the proposed 141st meeting agenda. The documents and records for the 140th Council Meeting action items are available for public inspection on the Council's website, *http://www.wpcouncil.org* and at the Council Office at 1164 Bishop St, Suite 1400, Honolulu, HI 96813. In addition to the agenda items listed here, the Council will hear recommendations from other Council advisory groups. Public comment periods will be provided near the end of the meeting agenda before Council discussion and action. The order in which agenda items are addressed may change. The Council will meet as late as necessary to complete scheduled business. Schedule and Agenda for Council Meeting 1 p.m. 5 p.m. Monday, April 14, 2008 1. Introductions 2. Approval of Agenda 3. Approval of 139th Minutes 4. Pelagics Fisheries Regulatory Actions a. Hawaii Swordfish Fishery Effort b. Squid Permits c. American Samoa Longline Program Modifications d. Commonwealth of the Northern Mariana Islands(CNMI)Longline Exclusion Zone e. American Samoa Purse-Seine Exclusion Zones f. Guam Purse-Seine Exclusion Zones g. CNMI Purse-Seine Exclusion Zones 5. Hawaii Bottomfish Fisheries Regulatory Actions a. Main Hawaiian Islands
(MHI)Bottomfish Risk Analysis 6. Program Planning, Research, and Executive/Budget Actions a. Annual Catch Limits b. Community Development Plan
(CDP)Regulatory Amendment to Allow Future CDPs 7. Public Hearing 8. Council Discussion and Action 9. Other Business Special Accommodations These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, 808-522-8220 (voice) or (808)522-8226 (fax), at least 5 days prior to the meeting date. Authority: 16 U.S.C. 1801 *et seq.* Dated: March 26, 2008. William D. Chappell, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 08-1083 Filed 3-26-08; 11:16 am]
Connectionstraces to 91
Traces to 91 documents
U.S. Code
CFR
118 references not yet in our index
  • 14 CFR 39
  • 19 CFR 351
  • 281 F. Supp. 2d 1334
  • 411 F.3d 1355
  • 723 F.2d 175
  • 958 F.2d 1479
  • 26 CFR 1
  • T.D. 9381
  • T.D. 9390
  • Pub. L. 109-280
  • 120 Stat. 780
  • 26 CFR 53
  • 32 CFR 216
  • Pub. L. 108-375
  • Pub. L. 106-79
  • 113 Stat. 1260
  • Pub. L. 104-4
  • Pub. L. 96-354
  • Pub. L. 96-511
  • 32 CFR 1701
  • Pub. L. 108-458
  • 118 Stat. 3638
  • 5 USC 601-612
  • 109 Stat. 48
  • 42 USC 4321-4347
  • Pub. L. 94-163
  • 50 USC 401-442
  • 48 CFR 24
  • 40 CFR 52
  • 40 CFR 2
  • 40 CFR 81
  • 40 CFR 58
  • 40 CFR 9
  • 13 CFR 121
  • Pub. L. 104-113
  • 40 CFR 180
  • 40 CFR 178
  • 40 CFR 180.589
  • 40 CFR 180.8
  • 40 CFR 166
+ 78 more
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C.F.R.§ 39.19
C.F.R.§ 351.401
U.S.C.§ 1677
U.S.C.§ 553
U.S.C.§ 601
F. Supp.281 F. Supp. 2d 1334
F. App'x411 F.3d 1355
F. App'x723 F.2d 175
Cites 209 · showing 12Cited by 0 across 0 sources
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