Unknown. Direct final rule, request for comments
29,420 words·~134 min read·
/register/2008/03/31/08-1082A 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-2008-03-31.xml --- 73 62 Monday, March 31, 2008 Contents Alcohol Alcohol and Tobacco Tax and Trade Bureau RULES Puerto Rican Tobacco Products and Cigarette Papers and Tubes Shipped from Puerto Rico to the United States (2007R-368P), E8-6513 PROPOSED RULES Proposed Establishment of the Haw River Valley Viticultural Area (2007R-179P), 16800-16806 E8-6508 Army Army Department See Engineers Corps NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 16848 E8-6535 E8-6537 Centers Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16859-16860 E8-6471 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16860-16861 E8-6340 E8-6343 Coast Guard Coast Guard RULES Drawbridge Operation Regulations: Gulf Intracoastal Waterway, Bradenton Beach, FL, Schedule Change, 16759-16761 E8-6483 Gulf Intracoastal Waterway, Mile 113, St.
Petersburg Beach, FL, 16758-16759 E8-6481 Intracoastal Waterway (ICW); Atlantic City, NJ, Air Show Event, 16761-16762 E8-6475 Sacramento River, Rio Vista, CA, Drawbridge Maintenance, 16762 E8-6473 PROPOSED RULES Commercial Fishing Industry Vessels, 16815-16822 E8-6477 Safety Zone: Stars and Stripes Fourth of July Fireworks Event, Nansemond River, Suffolk, VA, 16809-16812 E8-6474 Safety Zones: Thames River, New London, Connecticut, 16812-16814 E8-6472 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 16836-16837 E8-6486 E8-6487 Consumer Consumer Product Safety Commission NOTICES Provisional Acceptance of a Settlement Agreement and Order: Reebok International Ltd., 16842-16844 E8-6407 Defense Defense Acquisition Regulations System RULES Defense Federal Acquisition Regulation Supplement: Contractor Personnel Authorized to Accompany U.S. Armed Forces, 16764-16777 E8-6582 Defense Defense Department See Army Department See Defense Acquisition Regulations System See Engineers Corps See Navy Department NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 16844-16846 E8-6528 E8-6529 E8-6530 E8-6532 E8-6543 Charter Amendment of Department of Defense Federal Advisory Committees, 16846-16847 E8-6531 Meetings: Defense Business Board, Correction, 16847 E8-6526 National Defense University Visitors, 16847 E8-6527 Drug Drug Enforcement Administration PROPOSED RULES Information on Foreign Chain of Distribution for Ephedrine, Pseudoephedrine, and Phenylpropanolamine, 16793-16797 E8-6357 Employment Employment and Training Administration NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 16912-16914 E8-6549 Energy Energy Department See Federal Energy Regulatory Commission NOTICES Meetings: Environmental Management Site-Specific Advisory Board, 16850 E8-6519 Engineers Engineers Corps NOTICES Cancellation of Intent to Prepare a Draft Environmental Impact Statement, 16848-16849 E8-6370 Equal Equal Employment Opportunity Commission PROPOSED RULES Disparate Impact Under the Age Discrimination in Employment Act, 16807-16809 E8-6517 Privacy Act Regulations, 16806-16807 E8-6551 NOTICES Privacy Act of 1974;
Publication of Notice of Proposed New Systems of Records and Amendment of Systems to Add New System Managers, 16852-16855 E8-6619 FAA Federal Aviation Administration RULES Class E Airspace; Modification: Staunton, VA, 16751-16752 E8-6330 PROPOSED RULES Airworthiness Directives: British Aerospace Regional Aircraft Model HP. 137 Jetstream MK 1, Jetstream Series 200, 3100, and 3200 Airplanes, 16790-16792 E8-6509 Dassault Model Falcon 2000EX Airplanes and Model Falcon 900EX Airplanes, 16787-16789 E8-6521 Dassault Model Mystere Falcon 900 and Falcon 900EX Airplanes, 16784-16787 E8-6522 Viking Air Limited Models DHC-6-1, DHC-6-100, DHC-6-200, and DHC-6-300 Airplanes, 16779-16784 E8-6468 E8-6469 Class E Airspace:
Deadhorse, AK, Revision, 16792-16793 E8-6597 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16922-16924 E8-6333 E8-6339 E8-6341 E8-6342 Airworthiness Criteria: Airship Design Criteria for Zeppelin Luftschifftechnik GmbH Model LZ N07 Airship, 16924-16944 E8-6600 Meetings: Commercial Space Transportation Advisory Committee; Open Meeting, 16944 E8-6589 FCC Federal Communications Commission RULES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16763 E8-6556 DTV Consumer Education Initiative, 16763-16764 E8-6683 PROPOSED RULES Improving Public Safety Communications in the 800 MHz Band, 16822-16826 E8-6494 NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 16855-16858 E8-6555 E8-6562 E8-6585 E8-6594 Federal Energy Federal Energy Regulatory Commission NOTICES Agenda for Technical Conference: Pipeline Posting Requirements under Section 23 of the Natural Gas Act, 16850-16851 E8-6533 Filing: Pacific Gas and Electric Co., 16851-16852 E8-6534 Federal Highway Federal Highway Administration NOTICES Final Federal Agency Actions on Proposed Highway in Minnesota, 16945-16946 E8-6352 E8-6354 Federal Housing Federal Housing Enterprise Oversight Office NOTICES Final Examination Guidance-Conforming Loan Limit Calculations;
Comment Response, 16895-16899 E8-6560 Federal Motor Federal Motor Carrier Safety Administration NOTICES Qualification of Drivers: Exemption Applications— Diabetes, 16946-16950 E8-6478 Vision, 16950-16952 E8-6485 Exemption Renewals— Vision, 16952-16953 E8-6488 E8-6489 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 16858-16859 E8-6525 Proposals to Engage in Permissible Nonbanking Activities or to Acquire Companies that are Engaged in Permissible Nonbanking Activities, 16859 E8-6524 Federal Transit Federal Transit Administration NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 16953-16954 E8-6484 Food Food and Drug Administration RULES Implantation or Injectable Dosage Form New Animal Drugs; Penicillin G Benzathine and Penicillin G Procaine Suspension, 16754 E8-6603 New Animal Drugs For Use in Animal Feed; Zilpaterol, 16754-16755 E8-6601 NOTICES Compliance Policy Guide Sec. 500.500 Guidance Levels for 3MCPD (3-chloro-1, 2-propanediol) in Acid-Hydrolyzed Protein and Asian-Style Sauces; Availability, 16861-16862 E8-6504 Geological Geological Survey NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 16899 E8-6612 Meetings: National Geospatial Advisory Committee, 16900 E8-6437 Health Health and Human Services Department See Centers for Disease Control and Prevention See Children and Families Administration See Food and Drug Administration See Indian Health Service See National Institutes of Health Homeland Homeland Security Department See Coast Guard See U.S. Citizenship and Immigration Services See U.S. Customs and Border Protection Housing Housing and Urban Development Department See Federal Housing Enterprise Oversight Office RULES Changes in Maximum Mortgage Limits for Multifamily Housing, 17238-17239 E8-6491 Indian Indian Health Service NOTICES Elder Care Initiative Long-Term Care Grant Program, 16862-16870 E8-6409 Reimbursement Rates for 2008 Calendar Year, 16870 E8-6431 Tribal Self-Governance Program:
Negotiation Cooperative Agreement, 16870-16874 E8-6428 Planning Cooperative Agreement, 16874-16878 E8-6406 Interior Interior Department See Geological Survey See Land Management Bureau See National Park Service See Surface Mining Reclamation and Enforcement Office IRS Internal Revenue Service PROPOSED RULES Travel Expenses of State Legislators, 16797-16800 E8-6500 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16962-16964 E8-6515 E8-6516 International International Trade Administration NOTICES Initiation of Antidumping and Countervailing Duty Administrative Reviews:
Request for Revocation in Part, and Deferral of Administrative Review, 16837-16838 E8-6564 Meetings: Environmental Technologies Trade Advisory Committee, 16838-16839 E8-6466 Stainless Steel Bar from France: Preliminary Results of Antidumping— Duty Administrative Review, 16839-16842 E8-6568 International International Trade Commission NOTICES Advice Concerning Possible Modifications to the U.S. Generalized System of Preferences, 2007 Review of Competitive Need Limit Waivers, 16909 E8-6498 Certain Low Antimony Phosphoric Acid:
Investigation No. 337-TA-620, 16909-16910 E8-6436 Certain Variable Speed Wind Turbines And Components, 16910 E8-6496 Remand Proceedings: Diamond Sawblades And Parts Thereof From China And Korea, 16910-16911 E8-6302 Welded Stainless Steel Pressure Pipe From China: Investigation Nos. 701-TA-454 and 731-TA-1144 (Preliminary), 16911-16912 E8-6497 Justice Justice Department See Drug Enforcement Administration Labor Labor Department See Employment and Training Administration NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 16912 E8-6467 Land Land Management Bureau NOTICES Public Land Order No. 7697; Transfer of Public Land for the Crescent Junction Uranium Mill Tailings Repository; Utah, 16900 E8-6598 Public Land Order No. 7698; Modification of Secretarial Orders, 16900-16901 E8-6583 Maritime Maritime Administration NOTICES Requested Administrative Waiver of the Coastwise Trade Laws, 16954-16955 E8-6576 E8-6578 Use of Foreign-Flag Anchor Handling Vessels in the Beaufort Sea or Chukchi Sea Adjacent to Alaska, 16955-16956 E8-6567 National Highway National Highway Traffic Safety Administration NOTICES Highway Safety Programs:
Model Specifications for Screening Devices to Measure Alcohol in Bodily Fluids, 16956-16960 E8-6520 Importation of Nonconforming 2000 Chevrolet Tahoe; Receipt of Petition for, 16960-16961 E8-6492 Petition for Decision that Nonconforming 1994 and 1995 Land Rover Defender 90 Multipurpose Passenger Vehicles Are Eligible for Importation, 16961-16962 E8-6503 NIH National Institutes of Health NOTICES Meetings: Center for Scientific Review, 16878 E8-6465 National Advisory Board on Medical Rehabilitation Research, 16878 E8-6463 National Institute of Allergy and Infectious Diseases, 16879-16880 E8-6458 E8-6459 National Institute of Child Health and Human Development, 16880 E8-6460 E8-6461 National Institute of Mental Health, 16881 E8-6464 National Institute of Neurological Disorders and Stroke, 16878-16879 E8-6326 National Institute on Alcohol Abuse and Alcoholism, 16880-16881 E8-6462 National Institute on Drug Abuse, 16879 E8-6327 E8-6329 Request for Information;
NIH Public Access Policy, 16881-16895 E8-6579 NOAA National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska: Pollock in Statistical Area 620 in the Gulf of Alaska, 16777-16778 08-1082 PROPOSED RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Amendment 30A, 16829-16830 E8-6523 Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Crab Rationalization Program, 16830-16835 E8-6584 National Park National Park Service NOTICES Intent to Repatriate Cultural Items:
Amerind Foundation Museum, Amerind Foundation, Inc., Dragoon, AZ; Correction, 16901-16902 E8-6571 Maryhill Museum of Art, Goldendale, WA, 16902 E8-6561 Science Museum of Minnesota, St. Paul, MN, 16903 E8-6573 Inventory Completion: Department of Defense, Army; University of Utah; Museum of Natural History, Salt Lake City, 16904-16905 E8-6557 Oregon State University Department of Anthropology, Corvallis, OR, 16903-16904 E8-6559 Paul H. Karshner Memorial Museum, Puyallup, WA; Correction, 16905-16906 E8-6558 U.S.
Department of the Interior, Bureau of Indian Affairs, Washington, DC; The University Museum, University of Arkansas, Fayetteville, AR, 16906-16907 E8-6569 University of Wisconsin-Stevens Point, 16907 E8-6575 National Register of Historic Places; Notification of Pending Nominations and Related Actions, 16907-16908 E8-6505 National Transportation National Transportation Safety Board PROPOSED RULES Notification and Reporting of Aircraft Accidents or Incidents and Overdue Aircraft, and Preservation of Aircraft Wreckage, Mail, Cargo, and Records, 16826-16829 E8-6393 Navy Navy Department NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 16849-16850 E8-6539 E8-6540 Meetings: Board of Advisors to the President, Naval Postgraduate School, 16850 E8-6512 Nuclear Nuclear Regulatory Commission RULES Fitness for Duty Programs, 16966-17235 E8-4998 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16914 E8-6518 Office Office of Federal Housing Enterprise Oversight See Federal Housing Enterprise Oversight Office SEC Securities and Exchange Commission NOTICES Self-Regulatory Organizations;
Proposed Rule Changes: International Securities Exchange, LLC, 16914-16919 E8-6476 E8-6545 E8-6546 SBA Small Business Administration NOTICES Community Express Pilot Program; extension, 16919 E8-6550 Disaster Declaration: Georgia, 16919 E8-6552 Kentucky, 16919-16920 E8-6554 Missouri, 16920 E8-6553 State State Department NOTICES Intent to Prepare an Environmental Impact Statement: Floodplain and Wetland Involvement; Enbridge Energy, Limited Partnership (”Alberta Clipper Project”), 16920-16921 E8-6565 Surface Surface Mining Reclamation and Enforcement Office NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 16908-16909 E8-6373 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See Federal Motor Carrier Safety Administration See Federal Transit Administration See Maritime Administration See National Highway Traffic Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16921-16922 E8-6591 Treasury Treasury Department See Alcohol and Tobacco Tax and Trade Bureau See Internal Revenue Service See United States Mint RULES United States - Jordan Free Trade Agreement, 16752-16754 E8-6511 MISSING FOR:
U.S. Citizenship and Immigration Services U.S. Citizenship and Immigration Services PROPOSED RULES Changes to Requirements Affecting H-2A Nonimmigrants, 16779 E8-6605 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16895 E8-6570 Customs U.S. Customs and Border Protection RULES United States - Jordan Free Trade Agreement, 16752-16754 E8-6511 U.S. Mint United States Mint NOTICES United States Mint Coin Product Price Adjustment, 16964 E8-6480 Separate Parts In This Issue Part II Nuclear Regulatory Commission, 16966-17235 E8-4998 Part III Housing and Urban Development Department, 17238-17239 E8-6491 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 62 Monday, March 31, 2008 Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2008-0170; Airspace Docket No. 08-AEA-16] Modification of Class E Airspace; Staunton, VA AGENCY:
Federal Aviation Administration (FAA), DOT. ACTION: Direct final rule, request for comments. SUMMARY: This action modifies the effective time of the Class E Airspace at Staunton, VA. The Shenandoah Valley Regional Airport Commission is requesting to change their current Class E2 Airspace from part time (currently 1200 to 0400 Zulu) to full time. This action enhances the safety and management of Instrument Flight Rule
(IFR)operations in the area by providing the required controlled airspace to support terminal operations continuously at Staunton, VA. DATES: Effective 0901 UTC, June 5, 2008. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments. Comments for inclusion in the Rules Docket must be received on or before May 15, 2008. ADDRESSES: Send comments on this rule to: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001; Telephone: 1-800-647-5527; Fax: 202-493-2251. You must identify the Docket Number FAA-2008-0170; Airspace Docket No. 08-AEA-16, at the beginning of your comments. You may also submit and review received comments through the Internet at *http://www.regulations.gov.* You may review the public docket containing the rule, any comments received, and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9 am. and 5 p.m., Monday through Friday, except Federal Holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Avenue, College Park, Georgia 30337. FOR FURTHER INFORMATION CONTACT: Melinda Giddens, System Support Group, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; Telephone
(404)305-5610, Fax 404-305-5572. SUPPLEMENTARY INFORMATION: The Direct Final Rule Procedure The FAA anticipates that this regulation will not result in adverse or negative comments, and, therefore, issues it as a direct final rule. The FAA has determined that this rule only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Unless a written adverse or negative comment or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the **Federal Register** indicating that no adverse or negative comments were received and confirming the effective date. If the FAA receives, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the **Federal Register** , and a notice of proposed rulemaking may be published with a new comment period. Comments Invited Although this action is in the form of a direct final rule, and was not preceded by a notice of proposed rulemaking, interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. The direct final rule is used in this case to facilitate the timing of the charting schedule and enhance the operation at the airport, while still allowing and requesting public comment on this rulemaking action. An electronic copy of this document may be downloaded from and comments submitted through *http://www.regulations.gov.* Communications should identify both docket numbers and be submitted in triplicate to the address specified under the caption ADDRESSES above or through the Web site. All communications received on or before the closing date for comments will be considered, and this rule may be amended or withdrawn in light of the comments received. Recently published rulemaking documents can also be accessed through the FAA's Web page at *http://wwwfaa.gov* or the Federal Register's Web page at *http://www.gpoaccess.gov/fr/index.html.* Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of this action and determining whether additional rulemaking action would be needed. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. Those wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2008-0170; Airspace Docket No. 08-AEA-16.” The postcard will be date stamped and returned to the commenter. The Rule This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies Class E2 airspace at Staunton, VA, establishing a 24 hour environment to support Instrument Flight Rule
(IFR)operations around the Shenandoah Valley Regional Airport. Controlled airspace extending upward from the surface of the Earth is designated to provide for terminal operations where a control tower is not operational. Due to the expanded hours and numbers of operation by Air Carrier and larger business and corporate aircraft, the Shenandoah Valley Regional Airport Commission is requesting their Class E2 airspace become continuous. The FAA is amending Title 14, Code of Federal Regulations (14 CFR) part 71 to modify Class E2 airspace at Staunton by removing language in its legal description to accommodate for this change thereby making the Class E Surface Airspace in effect 24 hours a day. Designations for Class E Airspace Designated as Surface Areas are published in FAA Order 7400.9R, signed August 15, 2007 effective September 15, 2007, which is incorporated by reference in 14 CFR part 71.1. The Class E designations listed in this document will be published subsequently in the Order. Agency Findings The regulations adopted herein 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 various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132. The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore,
(1)is not a “significant regulatory action” under Executive Order 12866;
(2)is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and
(3)does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will 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 United States Code. 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. 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 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 modifies controlled airspace at Staunton, VA. Lists of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (Air). Adoption of the Amendment In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, B, C, D AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 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 Federal Aviation Administration Order 7400.9R, Airspace Designations and Reporting Points, signed August 15, 2007, effective September 15, 2007, is amended as follows: Paragraph 6002 Class E Airspace Designated as Surface Areas. AEA VA E2 Staunton, VA [REVISED] Shenandoah Valley Regional Airport, Staunton/Waynesboro/Harrisonburg, VA (Lat. 38°15′50″ N., long 78°53′47″ W.) STAUT NDB
(LOM)(Lat. 38°12′06″ N., long 78°57′26″ W.) Within a 4.1-mile radius of Shenandoah Valley Regional Airport and within 2.5 miles each side of the Shenandoah Valley Regional Airport southwest localizer course extending from the 4.1-mile radius to 7 miles southwest of the STAUT NDB (LOM). Issued in College Park, Georgia, on March 7, 2008. Lynda G. Otting, Acting Manager, System Support Group, Eastern Service Center. [FR Doc. E8-6330 Filed 3-28-08; 8:45 am] BILLING CODE 4910-13-M DEPARTMENT OF HOMELAND SECURITY Bureau of Customs and Border Protection DEPARTMENT OF THE TREASURY 19 CFR Parts 10, 163, and 178 [Docket Number USCBP-2007-0001; CBP Dec. 08-03] RIN 1505-AB75 United States-Jordan Free Trade Agreement AGENCIES: Customs and Border Protection, Department of Homeland Security; Department of the Treasury. ACTION: Final rule. SUMMARY: This document adopts as a final rule, without change, interim amendments to title 19 of the Code of Federal Regulations which were published in the **Federal Register** on June 27, 2007, as CBP Dec. 07-50 to implement the preferential tariff treatment and other customs-related provisions of the United States-Jordan Free Trade Agreement signed by the United States and the Hashemite Kingdom of Jordan. DATES: Final rule effective April 30, 2008. FOR FURTHER INFORMATION CONTACT: *Operational Aspects:* Heather Sykes, Trade Policy and Programs, Office of International Trade (202-863-6099). *Legal Aspects:* Karen Greene, Regulations and Rulings, Office of International Trade (202-572-8838). SUPPLEMENTARY INFORMATION: On October 24, 2000, the United States and the Hashemite Kingdom of Jordan (the “Parties”) signed the U.S.-Jordan Free Trade Agreement (“US-JFTA”), which is designed to eliminate tariffs and other trade barriers between the two countries. The provisions of the US-JFTA were adopted by the United States with the enactment on September 28, 2001, of the United States-Jordan Free Trade Area Implementation Act (the “Act”), Public Law 107-43, 115 Stat. 243 (19 U.S.C. 2112 note). On December 7, 2001, the President signed Proclamation 7512 to implement the provisions of the US-JFTA. The Proclamation, which was published in the **Federal Register** on December 13, 2001 (66 FR 64497), modified the Harmonized Tariff Schedule of the United States (“HTSUS”) as set forth in Annexes I and II of the Proclamation. The modifications to the HTSUS included the addition of new General Note 18, the incorporation of the relevant US-JFTA rules of origin as set forth in the Act, and the insertion throughout the HTSUS of the preferential duty rates applicable to individual products under the US-JFTA where the special program indicator “JO” appears in parenthesis in the “Special” rate of duty subcolumn. Article 2 and Annex 2.2 of the US-JFTA set forth the rules of origin and documentary requirements that apply for purposes of obtaining preferential treatment under the US-JFTA. Annex 2.1 of the US-JFTA sets forth the terms for the immediate elimination or staged reduction of duties on products of Jordan, with all products to become duty free within a ten-year period (by the year 2010). Under Annex 2.2 of the US-JFTA and § 102 of the Act, to be eligible for reduced or duty-free treatment under the US-JFTA, a good imported into the United States from Jordan must meet three basic requirements:
(1)It must be imported directly from Jordan into the customs territory of the United States;
(2)it must be a product of Jordan, *i.e.* , it must be either wholly the growth, product, or manufacture of Jordan or a new or different article of commerce that has been grown, produced, or manufactured in Jordan; and
(3)if it is a new or different article of commerce, it must have a minimum domestic content, *i.e.* , at least 35 percent of its appraised value must be attributed to the cost or value of materials produced in Jordan plus the direct costs of processing operations performed in Jordan. Annex 2.2 of the US-JFTA further provides that:
(1)The cost or value of U.S.-produced materials may be counted toward the Jordanian domestic content requirement to a maximum of 15 percent of the appraised value of the imported good; and
(2)simple combining or packaging operations or mere dilution with water or another substance will confer neither Jordanian origin on an imported good nor Jordanian or U.S. origin on a constituent material of an imported good. In addition, for purposes of demonstrating compliance with the origin criteria, Annex 2.2 of the US-JFTA establishes the requirements for submitting a declaration, when requested by Customs and Border Protection (“CBP”), that provides all pertinent information concerning the production or manufacture of an imported good. CBP is responsible for administering the provisions of the US-JFTA and the Act that relate to the importation of goods into the United States from Jordan. On June 27, 2007, CBP published CBP Dec. 07-50 in the **Federal Register** (72 FR 35154), setting forth interim amendments to implement the preferential tariff treatment and customs-related provisions of the US-JFTA. In order to provide transparency and facilitate their use, the majority of the US-JFTA implementing regulations set forth in CBP Dec. 07-50 were included within new Subpart K in Part 10 of title 19 of the Code of Federal Regulations (19 CFR Subpart K, Part 10). However, in those cases in which US-JFTA implementation was more appropriate in the context of an existing regulatory provision, the US-JFTA regulatory text was incorporated in an existing part within the CBP regulations. The U.S.-JFTA implementing regulations set forth in CBP Dec. 07-50 pertain specifically to US-JFTA customs-related provisions, such as the rules of origin, that govern the duty-free or reduced-duty treatment of products imported into the United States from Jordan. These rules do not confer origin or establish a criterion for determining the origin of imported goods for any other purpose. For example, origin determinations for country of origin marking purposes under 19 U.S.C. 1304 are not affected. Although the interim regulatory amendments were promulgated without prior public notice and comment procedures and took effect on June 27, 2007, CBP Dec. 07-50 provided for the submission of public comments that would be considered before adopting the interim regulations as a final rule. The prescribed public comment period closed on August 27, 2007. No comments were received in response to the solicitation of public comments in CBP Dec. 07-50. Conclusion Accordingly, CBP has decided to adopt the interim rule published on June 27, 2007, without change. Executive Order 12866 CBP has determined that this document is not a regulation or rule subject to the provisions of Executive Order 12866 of September 30, 1993 (58 FR 51735, October 1993), because it pertains to a foreign affairs function of the United States and implements an international agreement and, therefore, is specifically exempted by section 3(d)(2) of Executive Order 12866. Regulatory Flexibility Act The regulations to implement the preferential tariff treatment and other customs-related provisions of the US-JFTA were previously published in CBP Dec. 07-50 as interim regulations. CBP issued the regulations as an interim rule because, as noted above, they pertained to a foreign affairs function of the United States and implemented an international agreement. Because no notice of proposed rulemaking was required, the provisions of the Regulatory Flexibility Act, as amended (5 U.S.C. 601 *et seq.* ), do not apply. Accordingly, this final rule is not subject to the regulatory analysis requirements or other requirements of 5 U.S.C. 603 and 604. Paperwork Reduction Act The collection of information in this final rule has previously been reviewed and approved by the Office of Management and Budget in accordance with the requirements of the Paperwork Reduction Act (44 U.S.C. 3507) under control number 1651-0128. The collections of information in these regulations are in §§ 10.703 and 10.704. This information is required in connection with claims for preferential tariff treatment and for the purpose of the exercise of other rights under the US-JFTA and the Act and will be used by CBP to determine eligibility for a tariff preference or other rights or benefits under the US-JFTA and the Act. The likely respondents are business organizations including importers, exporters, and manufacturers. The estimated average annual burden associated with the collection of information in this final rule is 0.2 hours per respondent or record keeper. Comments concerning the accuracy of this burden estimate and suggestions for reducing that burden, should be directed to the Office of Management and Budget, Attention: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503. A copy should also be sent to the Trade and Commercial Regulations Branch, Regulations and Rulings, Customs and Border Protection, 1300 Pennsylvania Avenue, NW. (Mint Annex), Washington, DC 20229. Signing Authority This document is being issued in accordance with section 0.1(a)(1) of the CBP Regulations (19 CFR 0.1(a)(1)) pertaining to the authority of the Secretary of the Treasury (or his/her delegate) to approve regulations related to certain customs revenue functions. List of Subjects 19 CFR Part 10 Customs duties and inspection, Exports, Imports, Preference programs, Reporting and recordkeeping requirements, Trade agreements (United States-Jordan Free Trade Agreement). 19 CFR Part 163 Administrative practice and procedure, Customs duties and inspection, Exports, Imports, Reporting and recordkeeping requirements, Trade agreements. 19 CFR Part 178 Administrative practice and procedure, Exports, Imports, Reporting and recordkeeping requirements. Amendments to the CBP Regulations Accordingly, the interim rule amending Parts 10, 163, and 178 of the CBP regulations (19 CFR parts 10, 163, and 178), which was published at 72 FR 35154 on June 27, 2007, is adopted as a final rule without change. W. Ralph Basham, Commissioner, U.S. Customs and Border Protection. Approved: March 25, 2008. Timothy E. Skud, Deputy Assistant Secretary of the Treasury. [FR Doc. E8-6511 Filed 3-28-08; 8:45 am] BILLING CODE 9111-14-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 522 Implantation or Injectable Dosage Form New Animal Drugs; Penicillin G Benzathine and Penicillin G Procaine Suspension AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration
(FDA)is amending the animal drug regulations to reflect approval of a supplemental new animal drug application
(NADA)filed by IVX Animal Health, Inc. The supplemental NADA provides for changing scientific nomenclature for a bovine pathogen on labeling for penicillin G benzathine and penicillin G procaine injectable suspension. DATES: This rule is effective March 31, 2008. FOR FURTHER INFORMATION CONTACT: Cindy L. Burnsteel, Center for Veterinary Medicine (HFV-130), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-276-8341, e-mail: *cindy.burnsteel@fda.hhs.gov* . SUPPLEMENTARY INFORMATION: IVX Animal Health, Inc., 3915 South 48th Street Ter., St. Joseph, MO 64503, filed a supplement to NADA 65-498 for PEN BP-48 (penicillin G benzathine and penicillin G procaine) injectable suspension used for the treatment of animal diseases associated with several bacterial pathogens. The supplemental NADA provides for changing a bovine pathogen name from *Corynebacterium pyogenes* to *Actinomyces pyogenes* on product labeling. The supplemental NADA is approved as of February 22, 2008, and the regulations in 21 CFR 522.1696a are amended to reflect the approval. Approval of this supplemental NADA did not require review of additional safety or effectiveness data or information. Therefore, a freedom of information summary is not required. The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects in 21 CFR Part 522 Animal drugs. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 522 is amended as follows: PART 522—IMPLANTATION OR INJECTABLE DOSAGE FORM NEW ANIMAL DRUGS 1. The authority citation for 21 CFR part 522 continues to read as follows: Authority: 21 U.S.C. 360b. § 522.1696a [Amended] 2. In § 522.1696a, in paragraph (d)(2)(ii)(A), remove “ *Corynebacterium pyogenes* ” and “( *C. pyogenes* )” and in their places add “ *Actinomyces pyogenes* ” and “( *A. pyogenes* )”. Dated: March 21, 2008. Bernadette Dunham, Director, Center for Veterinary Medicine. [FR Doc. E8-6603 Filed 3-28-08; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 558 New Animal Drugs For Use in Animal Feed; Zilpaterol AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration
(FDA)is amending the animal drug regulations to reflect approval of a new animal drug application
(NADA)filed by Intervet Inc. The NADA provides for use of approved, single-ingredient Type A medicated articles containing zilpaterol hydrochloride and melengestrol acetate in two-way combination Type B and Type C medicated feeds for heifers fed in confinement for slaughter. DATES: This rule is effective March 31, 2008. FOR FURTHER INFORMATION CONTACT: Gerald L. Rushin, Center for Veterinary Medicine (HFV-126), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-276-8103, e-mail: *gerald.rushin@cvm.fda.gov* . SUPPLEMENTARY INFORMATION: Intervet Inc., P.O. Box 318, 29160 Intervet Lane, Millsboro, DE 19966, filed NADA 141-284 that provides for use of ZILMAX (zilpaterol hydrochloride) and MGA (melengestrol acetate) Type A medicated articles to make dry and liquid two-way combination Type B and Type C medicated feeds used for increased rate of weight gain, improved feed efficiency, and increased carcass leanness; and for suppression of estrus
(heat)in heifers fed in confinement for slaughter during the last 20 to 40 days on feed. The NADA is approved as of February 29, 2008, and the regulations in 21 CFR 558.665 are amended to reflect the approval. In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. The agency has determined under 21 CFR 25.33(a)(2) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor environmental impact statement is required. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects in 21 CFR Part 558 Animal drugs, Animal feeds. Therefore, under the Federal Food, Drug, and Cosmetic Act and under the authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 558 is amended as follows: PART 558—NEW ANIMAL DRUGS FOR USE IN ANIMAL FEEDS 1. The authority citation for 21 CFR part 558 continues to read as follows: Authority: 21 U.S.C. 360b, 371. 2. In § 558.665, add paragraph (e)(2) to read as follows: § 558.665 Zilpaterol.
(e)* * * Zilpaterol in grams/ton Combination in grams/ton Indications for use Limitations Sponsor * * * * * * *
(2)6.8 to provide 60 to 90 mg/head/day Melengestrol acetate to provide 0.25 to 0.5 mg/ head/day Heifers fed in confinement for slaughter: As in paragraph (e)(1) of this section; and for suppression of estrus (heat). As in paragraph (e)(1) of this section; see paragraph §§ 558.342(d) of this chapter. Melengestrol acetate as provided by No. 000009 in § 510.600(c) of this chapter. 057926 * * * * * * * Dated: March 21, 2008. Bernadette Dunham, Director, Center for Veterinary Medicine. [FR Doc. E8-6601 Filed 3-28-08; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF THE TREASURY Alcohol and Tobacco Tax and Trade Bureau 27 CFR Part 41 [T.D. TTB-68; Re: T.D. ATF-444 and Notice No. 912] RIN 1513-AB38 Puerto Rican Tobacco Products and Cigarette Papers and Tubes Shipped From Puerto Rico to the United States (2007R-368P) AGENCY: Alcohol and Tobacco Tax and Trade Bureau, Treasury. ACTION: Final rule (Treasury decision). SUMMARY: The Alcohol and Tobacco Tax and Trade Bureau is adopting as a final rule, with some clarifying changes and editorial corrections, the temporary regulations set forth in T.D. ATF-444. These temporary regulations eliminated the onsite preshipment inspection of, and the requirement to complete several ATF forms for, shipments to the United States of tobacco products and cigarette papers and tubes manufactured in Puerto Rico. DATES: *Effective Date:* March 31, 2008. FOR FURTHER INFORMATION CONTACT: Amy R. Greenberg, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street, NW., Suite 200E, Washington, DC 20220; telephone 202-927-8210; or e-mail *Amy.Greenberg@ttb.gov* . SUPPLEMENTARY INFORMATION: Background Chapter 52 of the Internal Revenue Code of 1986
(IRC)pertains to the Federal excise tax on tobacco products and cigarette papers and tubes. Section 5701 of the IRC (26 U.S.C. 5701) imposes a tax on such products manufactured in, or imported into, the United States. Section 7652(a) of the IRC (26 U.S.C. 7652(a)) imposes the same tax, with certain exceptions not pertinent here, on articles of merchandise of Puerto Rican manufacture coming into the United States and withdrawn for consumption or sale. The Alcohol and Tobacco Tax and Trade Bureau
(TTB)is responsible for administering the provisions of chapter 52 and section 7652(a) of the IRC as they pertain to the tax on tobacco products and cigarette papers and tubes, including promulgating regulations concerning payment and collection of the tax and other requirements that protect the revenue. Prior to January 24, 2003, our predecessor agency, the Bureau of Alcohol, Tobacco and Firearms
(ATF)administered these regulations. On March 8, 2001, ATF published in the **Federal Register** (66 FR 13849) a temporary rule, T.D. ATF-444, amending the regulations in 27 CFR part 275 to eliminate certain regulatory requirements related to the shipment of tobacco products and cigarette papers and tubes of Puerto Rican manufacture from Puerto Rico to the United States. Specifically, ATF amended §§ 275.105, 275.106, 275.110, and 275.111 to eliminate the requirement that persons who ship tobacco products and cigarette papers and tubes of Puerto Rican manufacture from Puerto Rico to the United States notify ATF prior to the shipment, and to eliminate the requirements that an ATF officer:
(1)Inspect each shipment of such articles;
(2)certify that the amount of tax on the articles has been calculated correctly; and
(3)release each shipment. The amended regulations set forth recordkeeping requirements in place of the former processes of notification, physical inspection, certification, and release. Under the temporary rule, persons who ship Puerto Rican tobacco products and cigarette papers and tubes to the United States must keep and maintain records to show that the amount of tax is correctly calculated, paid (where applicable), and recorded for audit and examination purposes. The temporary rule amendments to §§ 275.106, 275.110, and 275.111 also eliminated the requirements for the completion of four specific forms. Two forms, ATF forms 2987 (5210.8) and 3075 (5200.9), were required to be submitted to ATF by the company shipping the products to the United States, and contained information readily available from common commercial records. The elimination of these forms was intended to relieve the taxpayer of a duplicative recordkeeping requirement. The other two forms, ATF forms 2989 and 3074 (5200.6), were certificates which were prepared by ATF officers and affixed to the outside of each shipping container, affirming that the appropriate tax had been paid. These forms were eliminated because ATF determined that they were not necessary to protect the Federal excise tax revenue due on tobacco products and cigarette papers and tubes. T.D. ATF-444 also included some technical corrections to the regulations, including updating the delegation order numbers appearing in §§ 275.11 and 275.29. On the same day that T.D. ATF-444 was published, ATF also published in the **Federal Register** (66 FR 13864), a notice of proposed rulemaking (NPRM), (Notice No. 912) soliciting comments on the regulatory amendments contained in T.D. ATF-444. ATF did not receive any comments in response to Notice No. 912 by the close of the public comment period. Since the publication of T.D. ATF-444, ATF and then TTB continued to conduct audits of the commercial records of companies that ship Puerto Rican tobacco products or cigarette papers and tubes from Puerto Rico to the United States. These audits have demonstrated that the elimination of the required inspection prior to shipment, the elimination of certain forms, and the replacement of other forms with the requirement to maintain records, have allowed TTB and the regulated industry members to avoid unnecessary administrative burdens without creating any jeopardy to the revenue. Subsequent Regulatory Changes Following the publication of T.D. ATF-444, 27 CFR part 275 was recodified as 27 CFR part 41 pursuant to T.D. TTB-16, published in the **Federal Register** (69 FR 52421) on August 26, 2004. Thus, all provisions of the temporary rule identified as sections in part 275 appear in this final rule as sections in part 41. Adoption of Final Rule Based on the background information provided above, TTB has determined that the temporary regulations published in T.D. ATF-444, recodified and updated pursuant to T.D. TTB-16, should be adopted as a final rule with only minor organizational, plain language, and editorial changes. We have made such changes to §§ 41.105, 41.106, 41.110, 41.111, and 41.121 to enhance their clarity and readability without substantively affecting their texts. We have modified the section headings to §§ 41.106 and 41.111 to more clearly reflect the content of these provisions. We have also updated the Office of Management and Budget
(OMB)control numbers for §§ 41.105, 41.106, 41.110, and 41.121. Inapplicability of Delayed Effective Date Pursuant to the provisions of 5 U.S.C. 553(d)(1) and (d)(3), we are issuing these regulations without a delayed effective date. This rule finalizes regulations which provided relief from regulatory restrictions by eliminating several administrative burdens on industry members associated with onsite preshipment inspection of, and the requirement to complete several ATF forms for, shipments to the United States of tobacco products and cigarette papers and tubes manufactured in Puerto Rico. By eliminating these administrative burdens, these final regulations fit within the meaning of the relief from a restriction standard in section 553(d)(1). Furthermore, TTB has determined that good cause exists in accordance with section 553(d)(3) to finalize these regulations immediately, and without delayed effective date, in order to continue the alleviation of these administrative burdens on the industry. Regulatory Flexibility Act Pursuant to the requirements of the Regulatory Flexibility Act (5 U.S.C. chapter 6), we certify that these regulations will not have a significant economic impact on a substantial number of small entities. These regulations relieve and simplify certain administrative obligations. Primarily, the regulations replace onsite, preshipment inspections with less burdensome, periodic recordkeeping and audit requirements. The regulations also eliminate four reporting forms in further reducing administrative and recordkeeping burdens. Accordingly, these regulations will not have a significant economic impact on a substantial number of small entities and a regulatory flexibility analysis is not required. Pursuant to 26 U.S.C. 7805(f), the temporary regulation was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses, and we received no comments. Executive Order 12866 It has been determined that this rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, a regulatory assessment is not required. Paperwork Reduction Act The collections of information in the regulations contained in this final rule have been previously reviewed and approved by Office of Management and Budget
(OMB)in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3504(h)) and assigned control numbers 1513-0083, 1513-0090, and 1513-0108. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB. Although sections of the regulations covered by these approvals are amended for clarity, this final rule imposes no new or revised collection of information, and does not change the reporting or recordkeeping burden. Comments concerning suggestions for reducing the burden of the collections of information should be directed to Mary A. Wood, Alcohol and Tobacco Tax and Trade Bureau, at any of these addresses: • P.O. Box 14412, Washington, DC 20044-4412; • 202-927-8525 (facsimile); or • *formcomments@ttb.gov* (e-mail). Drafting Information Amy R. Greenberg of the Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, drafted this document. List of Subjects in 27 CFR Part 41 Administrative practice and procedure, Authority delegations, Cigarette papers and tubes, Claims, Electronic fund transfer, Customs duties and inspection, Excise taxes, Imports, Labeling, Packaging and containers, Penalties, Reporting requirements, Seizures and forfeitures, Surety bonds, Tobacco products, U.S. possessions, Warehouses. Amendments to the Regulations Accordingly, for the reasons set forth in the preamble, the temporary rule published on March 8, 2001, at 66 FR 13849, is adopted as a final rule with the changes as discussed above and set forth below. PART 41—IMPORTATION OF TOBACCO PRODUCTS AND CIGARETTE PAPERS AND TUBES 1. The authority citation for part 41 continues to read as follows: Authority: 18 U.S.C. 2342; 26 U.S.C. 5701, 5703, 5704, 5705, 5708, 5712, 5713, 5721, 5722, 5723, 5741, 5754, 5761, 5762, 5763, 6301, 6302, 6313, 6404, 7101, 7212, 7342, 7606, 7651, 7652, 7805; 31 U.S.C. 9301, 9303, 9304, 9306. 2. Section 41.105 is revised to read as follows: § 41.105 Prepayment of tax. To prepay, in Puerto Rico, the internal revenue tax imposed by 26 U.S.C. 7652(a) on tobacco products and cigarette papers and tubes of Puerto Rican manufacture to be shipped to the United States, the shipper must file, or cause to be filed, a tax return, TTB F 5000.25, with full remittance of the tax which will become due on those products. (Approved by the Office of Management and Budget under control number 1513-0090) 3. Section 41.106 is revised to read as follows: § 41.106 Record of shipment by taxpayer.
(a)*Shipments other than noncommercial mail shipments* . The taxpayer must ensure that the tax has been prepaid on the tobacco products and cigarette papers and tubes in each shipment. The taxpayer must identify the tobacco products or cigarette papers or tubes by including on the bill of lading or similar record accompanying the shipment the following information:
(1)The marks and numbers on the shipping containers;
(2)The number of containers to be shipped;
(3)The kind of taxable article(s) to be shipped and the rate of tax applicable to each kind of article, as specified in §§ 41.30 through 41.35;
(4)The number of small cigarettes, large cigarettes, or small cigars to be shipped;
(5)The number and total sale price of large cigars having a sale price of not more than $235.294 per thousand to be shipped;
(6)The number of large cigars having a sale price equal to or more than $235.294 per thousand to be shipped;
(7)The pounds and ounces of chewing tobacco or snuff to be shipped;
(8)The pounds and ounces of pipe tobacco or roll-your-own tobacco to be shipped;
(9)The number of cigarette papers or tubes to be shipped;
(10)The amount of the tax paid for each kind of article under this subpart;
(11)The name and address of the consignee in the United States to whom the products are to be shipped; and
(12)A notation identifying the particular TTB F 5000.25 by which the taxes were prepaid.
(b)*Noncommercial mail shipments.* Noncommercial mail shipments of tobacco products and cigarette papers and tubes to the United States are exempt from the requirements of paragraph
(a)of this section, except that the taxpayer must provide a copy of the TTB F 5000.25 upon the request of an appropriate TTB officer. (Approved by the Office of Management and Budget under control number 1513-0108) 4. Section 41.110 is revised to read as follows: § 41.110 Record of tax computation and shipment by bonded manufacturer under deferred taxpayment. Where tobacco products or cigarette papers or tubes are to be shipped to the United States with deferred taxpayment, the bonded manufacturer must calculate the tax prior to shipment. The tax calculation must conform to the information on the bill of lading or a similar record accompanying the shipment, and the date of completing the bill of lading or similar record accompanying the shipment will be treated as the date of computation of the tax. Tobacco products or cigarette papers or tubes may be shipped to the United States in accordance with the provisions of this section only after computation of the tax. The bill of lading or similar record accompanying the shipment must include the following information:
(a)The marks and numbers on the shipping containers;
(b)The number of containers to be shipped;
(c)The kind of taxable article(s) to be shipped and the rate of tax applicable to each kind of article, as specified in §§ 41.30 through 41.35;
(d)The number of small cigarettes, large cigarettes, or small cigars to be shipped;
(e)The number and total sale price of large cigars having a sale price of not more than $235.294 per thousand to be shipped;
(f)The number of large cigars having a sale price equal to or more than $235.294 per thousand to be shipped;
(g)The pounds and ounces of chewing tobacco or snuff to be shipped;
(h)The pounds and ounces of pipe tobacco or roll-your-own tobacco to be shipped;
(i)The number of cigarette papers or tubes to be shipped;
(j)The amount of the tax to be paid for each kind of article under this subpart; and
(k)The name and address of the consignee in the United States to whom the products are to be shipped. (Approved by the Office of Management and Budget under control number 1513-0108) 5. Section 41.111 is revised to read as follows: § 41.111 Verification of bond and agreement to pay tax.
(a)*Verification of bond.* Prior to shipment of tobacco products or cigarette papers or tubes to the United States, the manufacturer must verify:
(1)That there is no default in payment of tax chargeable against the manufacturer's bond on TTB F 2986 (5210.12); and
(2)That the amount of the manufacturer's bond is sufficient or is in the maximum penal sum to cover the tax that will become due on the shipment.
(b)*Agreement to pay tax.* The shipment of tobacco products or cigarette papers or tubes by the bonded manufacturer serves as an agreement by the manufacturer to pay the tax on that shipment. 6. Section 41.121 is revised to read as follows: § 41.121 Amount and account of bond.
(a)*Bond amount.* Except for the maximum and minimum amounts stated in this paragraph, the total amount of the bond or bonds required under this subpart must be in an amount not less than the amount of unpaid tax chargeable at any one time against the bond or bonds. The maximum and minimum amounts of such bond or bonds are as follows: Taxable article Bond amount maximum (in dollars) Bond amount minimum (in dollars)
(1)Cigarettes 250,000 1,000
(2)Any combination of taxable articles 250,000 1,000
(3)One kind of taxable article other than cigarettes 150,000 1,000
(b)*Bond account.* Where the amount of a bonded manufacturer's bond is less than the maximum amount prescribed in paragraph
(a)of this section, the bonded manufacturer must maintain an account reflecting all outstanding taxes for which the manufacturer's bond is chargeable. A manufacturer must debit that account with the amount of tax that was agreed to be paid under § 41.111 or that is otherwise chargeable against the bond and then must credit the account for the amount paid on TTB F 5000.25 or other TTB-prescribed document, at the time it is filed. A manufacturer who will defer payment of tax for a shipment of tobacco products or cigarette papers or tubes under this subpart must have sufficient credit in this account to cover the taxes prior to making the shipment to the United States. (Approved by the Office of Management and Budget under control number 1513-0108) Signed: January 17, 2008. John J. Manfreda, Administrator. Approved: February 27, 2008. Timothy E. Skud, Deputy Assistant Secretary (Tax, Trade, and Tariff Policy). [FR Doc. E8-6513 Filed 3-28-08; 8:45 am] BILLING CODE 4810-31-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2007-0096] RIN 1625-AA09 Drawbridge Operation Regulation; Gulf Intracoastal Waterway, Mile 113, St. Petersburg Beach, FL AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: The Coast Guard is changing the operating regulations governing the Pinellas Bayway Structure “E” (SR 679 Bridge), Gulf Intracoastal Waterway, mile 113, St. Petersburg Beach, Pinellas County, Florida. This rule will provide vehicular traffic relief during heavy vehicular traffic periods flowing into a nearby county park and will meet the reasonable needs of navigation. DATES: This rule is effective April 30, 2008. ADDRESSES: Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket [Docket No. USCG-2007-0096] and are available online at *www.regulations.gov.* This material is also available for inspection or copying at two locations: the Docket Management Facility (M30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays and at Commander (dpb), Seventh Coast Guard District, 909 S.E. 1st Avenue, Room 432, Miami, Florida 33131-3028 between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call Mr. Michael Lieberum, Seventh Coast Guard District, Bridge Administration Branch, telephone 305-415-6744. If you have questions on viewing the docket, call Renee W. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Regulatory Information On December 4, 2007, we published a notice of proposed rulemaking
(NPRM)entitled Drawbridge Operation Regulations; Gulf Intracoastal Waterway, mile 113, St. Petersburg Beach, FL in the **Federal Register** . 72 FR 68116. We have received no comments on the proposed rule. No public meeting was requested, and none was held. Background and Purpose The Pinellas Bayway Structure “E” (SR 679) Bridge, Gulf Intracoastal Waterway mile 113, St. Petersburg Beach, Pinellas County, Florida, currently opens on signal; except that, from 9 a.m. to 7 p.m. the draw need only open on the hour, 20 minutes after the hour, and 40 minutes after the hour. The bridge provides vehicular access into and out of a popular county park. At the request of Florida State Representative Frishe's office, who is acting on behalf of local citizens, the Coast Guard is changing this regulation which will require the Pinellas Bayway “E” Bridge to open on signal, except that from 7 a.m. to 9 p.m. the bridge will open on the hour and half-hour. Public vessels of the United States, tugs with tows and vessels in distress shall be allowed to pass at any time. Discussion of Comments and Changes The Coast Guard received no comments in response to the notice of proposed rulemaking (NPRM). For this reason no changes were made to the proposals for this final rule. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. This rule allows for scheduled bridge openings, and all waterway restrictions or closure times are published, giving adequate time for mariners to plan accordingly. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. For the reason stated above, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about the rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because 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. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (32)(e), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. List of Subjects in 33 CFR Part 117 Bridges. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1. 2. Revise § 117.287(d)(4) to read as follows: § 117.287 Gulf Intracoastal Waterway. (d)(4) Pinellas Bayway Structure “E” (SR 679) bridge, mile 113.0 at St. Petersburg Beach. The draw shall open on signal, except that from 9 a.m. to 7 p.m. the draw need open only on the hour and 30 minutes past the hour. Dated: March 13, 2008. W.D. Lee, Captain, U.S. Coast Guard, Acting Commander, Seventh Coast Guard District. [FR Doc. E8-6481 Filed 3-28-08; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2008-0117] RIN 1625-AA09 Drawbridge Operation Regulation; Gulf Intracoastal Waterway, Bradenton Beach, FL, Schedule Change AGENCY: Coast Guard, DHS. ACTION: Temporary rule. SUMMARY: The Coast Guard is changing the operating regulations governing the Cortez bridge mile 87.4 and the Anna Maria bridge mile 89.2 across the Gulf Intracoastal Waterway to allow for the rehabilitation of the Anna Maria Bridge. This rule will allow each bridge to open on a twice an hour schedule, except that they will be closed to navigation in the evening; also each bridge will open once every hour during the 45 day vehicle closure period on the Anna Maria Bridge. This action is necessary for worker safety and will assist in expediting the rehabilitation of the Anna Maria Bridge. DATES: This temporary final rule is effective from 7 a.m. March 15, 2008 through 7 p.m. December 31, 2008. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0117 and are available online at *www.regulations.gov* . They are also available for inspection or copying at two locations: the 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, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays, and Commander (dpb), Seventh Coast Guard District, 909 SE. 1st Avenue, Room 432, Miami, Florida 33131-3028 between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call Mr. Michael Lieberum, Bridge Branch, Seventh Coast Guard District, at 305-415-6744. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The final pre-construction and construction schedule were not provided to the Coast Guard with sufficient time to publish an NPRM and receive public comment before work began. The mayors of the surrounding cities, in coordination with the bridge owner, the contractor and local marinas in the area provided the Coast Guard with a finalized work schedule and suggested change in the bridges operations that would best serve the concerns of the surrounding communities and the contractor. In addition, the communities in the vicinity of the Anna Maria and Cortez bridges were informed of the bridge rehabilitation and proposed restrictions through the use of the local media. Furthermore this regulation is necessary for workers safety and will assist in expediting the rehabilitation of the Anna Maria Bridge. Therefore publishing an NPRM and delaying the start date of the rehabilitation project is contrary to the public interest and unnecessary. Under 5 U.S.C. 553(d)(3), for the same reasons articulated in the preceding paragraph, the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the **Federal Register** . Background and Purpose Due to the planned extensive rehabilitation of the Anna Maria Bridge across the Gulf Intracoastal Waterway mile 89.2, Bradenton Beach, Florida, the contractor requested that the Coast Guard change the current operation of the Anna Maria Bridge and the Cortez Bridge. The contractor also advised that it was necessary to start preparatory work as soon as possible in order to complete some of the work prior to the scheduled 45 days closure period to vehicular traffic. The Anna Maria Bridge would be closed to vehicle traffic for 45 days starting on September 29, 2008 and all vehicle traffic would be detoured to the Cortez Bridge across the Gulf Intracoastal Waterway mile 87.4, Bradenton Beach, Florida. The mayors of the surrounding cities requested a meeting with all concerned to discuss alternative solutions to alleviate possible vehicle traffic problems that could disrupt the flow of vehicles transiting to and from Anna Maria Island. The meeting sponsored by the local mayors was and held on November 28, 2007, and allowed the Coast Guard to hear the concerns of the mayors and the School Board which assisted in drafting this temporary rule. The current operating regulation for the Cortez Bridge 33 CFR 117.287(d)(1) states: Cortez (SR 684) Bridge, mile 87.4. The draw shall open on signal, except that from 6 a.m. to 7 p.m., the draw need only open on the hour, 20 minutes after the hour and forty minutes after the hour. From January 15 to May 15, from 6 a.m. to 7 p.m., the draw need only open on the hour and half-hour. The current operating regulation for the Anna Maria Bridge 33 CFR 117.287(d)(2) states: Anna Maria (SR 64) (Manatee Avenue West) Bridge, mile 89.2. The draw shall open on signal, except that from 6 a.m. to 7 p.m., the draw need only open on the hour, 20 minutes after the hour and forty minutes after the hour. From January 15 to May 15, from 6 a.m. to 7 p.m., the draw need only open on the hour and half-hour. Based on the information received, the Coast Guard is changing the regulations for these bridges so that they will remain on a twice an hour schedule throughout the length of the rehabilitation, except they will be closed to navigation in the evening and will open once an hour during the day during the 45 day vehicle closure period. This action is necessary to assist the local communities' vehicle traffic flow and the contractor in completing the scheduled work in a timely manner. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. The major impact of this rulemaking will occur during the off season so as to have the least impact on the local communities. Additionally, there is an alternate route available for the majority of vessels to avoid the construction area. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This action will not have a significant economic impact on a substantial number of small entities as there is an alternate route available for the majority of vessels to avoid the construction area. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because 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. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2.1, paragraph (32)(e) of the Instruction, from further environmental documentation. Under figures 2-1, paragraph (32)(e), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. List of Subjects in 33 CFR Part 117 Bridges. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1. 2. From 7 a.m. on March 15, 2008, through 7 p.m. on December 31, 2008, § 117.287(d)(1) and § 117.287(d)(2) are temporarily suspended and temporary § 117.287(d)(5) and temporary § 117.287(d)(6) are added to read as follows: § 117.287 Gulf Intracoastal Waterway. (d)(5) Cortez (SR 684) Bridge, mile 87.4. The draw shall open on signal; except that from 6 a.m. to 7 p.m., the draw shall open on the hour and half-hour. From September 29, 2008 to November 13, 2008, the Cortez Bridge will remain closed to navigation from 5:35 a.m. to 9:25 a.m., 1:35 p.m. to 4:25 p.m. and 8 p.m. to 4:25 a.m. At all other times, this bridge will open once an hour on the bottom of the hour.
(6)The Anna Maria (SR 64) (Manatee Avenue West) Bridge, mile 89.2. The draw shall open a single-leaf on signal; except that from 6 a.m. to 7 p.m., the draw shall open on the hour and half-hour. A double-leaf opening will be available with a one-hour notice to the bridge tender. From September 29, 2008 to November 13, 2008, the Anna Maria Bridge will remain closed to navigation from 6 a.m. to 9 a.m., 2 p.m. to 5 p.m. and 8 p.m. to 5 a.m., at all other times, this bridge will open once an hour on the top of the hour. Dated: March 12, 2008. W.D. Lee, Captain, U.S. Coast Guard, Commander Seventh Coast Guard District, Acting. [FR Doc. E8-6483 Filed 3-28-08; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [USCG-2008-0184] RIN 1625-AA09 Drawbridge Operation Regulations; Intracoastal Waterway (ICW); Atlantic City, NJ, Air Show Event AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, Fifth Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the US40-322 (Albany Avenue) Bridge, at ICW mile 70.0, across Inside Thorofare at Atlantic City, NJ. This deviation is necessary to facilitate traffic control during the Atlantic City Air Show. This deviation will cause the bridge to be maintained in the closed-to-navigation position. DATES: This deviation is effective from 10 a.m. to 5 p.m. on August 20, 2008. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0184 and are available online at *http://www.regulations.gov* . They are also available for inspection or copying at two locations: the 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, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays, and the Fifth Coast Guard District, Federal Building, 1st Floor, 431 Crawford Street, Portsmouth, VA 23704-5004 between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Mrs. Sandra S. Elliott, Bridge Management Specialist, Fifth Coast Guard District, at
(757)398-6557. SUPPLEMENTARY INFORMATION: To facilitate traffic control for the Atlantic City Air Show, the US40-322 (Albany Avenue) Bridge will be maintained in the closed-to-navigation position from 10 a.m. to 5 p.m. on August 20, 2008. The Greater Atlantic City Chamber of Commerce on behalf of the bridge owner, the New Jersey Department of Transportation (NJDOT), has requested a temporary deviation for the current operating regulation set out in 33 CFR 117.733
(f)to close the US40-322 (Albany Avenue) Bridge to navigation for the sole purpose of traffic control before, during and after the Atlantic City Air Show display, scheduled for Wednesday, August 20, 2008, from 10 a.m. to 5 p.m. The US40-322 (Albany Avenue Bridge) at ICW mile 70.0, across Inside Thorofare at Atlantic City, NJ, a lift drawbridge, has a vertical clearance in the closed position to vessels of 10 feet, above mean high water. The current operating regulation set out in 33 CFR 117.733
(f)requires the draw shall open on signal except that: Year-round from 11 p.m. to 7 a.m. and from November 1 through March 31 from 3 p.m. to 11 p.m., the draw need only open if at least four hours notice is given; From June 1 through September 30: from 9 a.m. to 4 p.m. and from 6 p.m. to 9 p.m., the draw need only open on the hour and half hour; and from 4 p.m. to 6 p.m., the draw need not open. During the event, vessel operators with mast height lower than 10 feet will continue to be able to transit through the drawbridge. The Atlantic Ocean is an alternate route for vessels with a mast height greater than 10 feet. The Coast Guard reviewed the bridge logs provided by NJDOT for August 2007 which revealed that vessel traffic is primarily recreational and the number of bridge openings on weekdays averages about three openings per day. In addition, qualified personnel will be on-site to open the drawbridge for vessels in the event of an emergency. The Coast Guard will inform the users of the waterway via maritime advisories of the closure period for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation. In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35. Dated: March 19, 2008. Waverly W. Gregory, Jr., Chief, Bridge Administration Branch, Fifth Coast Guard District. . [FR Doc. E8-6475 Filed 3-28-08; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2008-0174] Drawbridge Operation Regulations; Sacramento River, Rio Vista, CA, Drawbridge Maintenance AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, Eleventh Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Rio Vista Drawbridge across the Sacramento River, mile 12.8, at Rio Vista, CA. The deviation is necessary to allow the bridge owner, the California Department of Transportation (Caltrans), to conduct required maintenance of the drawspan. This deviation allows for a 4-hour notice for openings during nighttime. DATES: This deviation is effective between 9 p.m. and 5 a.m., from March 24, 2008 through April 24, 2008. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0174 and are available online at *http://www.regulations.gov* . They are also available for inspection or copying two locations: The 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, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays, and Commander (dpw), Eleventh Coast Guard District, Building 50-2, Coast Guard Island, Alameda, CA 94501-5100, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: David H. Sulouff, Chief, Bridge Section, Eleventh Coast Guard District, telephone
(510)437-3516. SUPPLEMENTARY INFORMATION: Caltrans requested a temporary change to the operation of the Rio Vista Drawbridge, mile 12.8, Sacramento River, at Rio Vista, CA. The Rio Vista Drawbridge navigation span provides a vertical clearance of 17 feet above Mean High Water in the closed-to-navigation position. The draw opens on signal as required by 33 CFR 117.5. Navigation on the waterway consists of both commercial and recreational vessels. The 4-hour notice for openings during the maintenance period, between 9 p.m. and 5 a.m., from March 24, 2008 through April 24, 2008, will allow Caltrans to clear the drawspan of maintenance equipment so as not to delay approaching vessels. This temporary deviation has been coordinated with all affected waterway users. No objections to the proposed temporary deviation were raised. Vessels that can transit the bridge, while in the closed-to-navigation position, may continue to do so at any time. In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35. Dated: March 20, 2008. C.E. Bone, Rear Admiral, U.S. Coast Guard Commander, Eleventh Coast Guard District. [FR Doc. E8-6473 Filed 3-28-08; 8:45 am] BILLING CODE 4910-15-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 15 [ET Docket No. 03-201; FCC 07-56] Equipment Approval of Modular Transmitters AGENCY: Federal Communications Commission. ACTION: Final rule; announcement of effective date. SUMMARY: In this document the Commission announces that the Office of Management and Budget
(OMB)has approved, for a period of three years, the information collection requirements contained in the “Unlicensed Devices and Equipment Approval,” *Report and Order* . These new rules required modification of the Form 731 Application for Equipment Authorization, and contained information collection requirements subject to the Paperwork Reduction Act of 1995 that were not effective until after approval by the Office of Management and Budget (OMB). DATES: The effective date for the rule contained in § 15.212 published in the **Federal Register** on May 23, 2007 at 72 FR 28889 is April 15, 2008. FOR FURTHER INFORMATION CONTACT: Nancy Brooks, Office of Engineering and Technology,
(202)418-2454, e-mail: *eapninquiry@fcc.gov* . SUPPLEMENTARY INFORMATION: 1. In a *Report and Order* , released on April 23, 2007, FCC 07-56, published in the **Federal Register** on May 23, 2007, 72 FR 28889, the Federal Communications Commission adopted new rules that required modification of the Form 731 Application for Equipment Authorization, and contained information collection requirements subject to the Paperwork Reduction Act of 1995 that were not effective until after approval by the Office of Management and Budget (OMB). On March 10, 2008, OMB approved the new modified information collection requirements contained in 47 CFR 15.212. This information collection is assigned OMB Control Number 3060-0057. 2. The Report and Order amended parts 2 and 15 of the Commission's rules for unlicensed devices and equipment approval of both existing modular transmitter devices and emerging partitioned (or “split”) modular transmitter devices. In addition to obtaining approval from OMB as noted, these new rules required software development to modify the Form 731 Application for Equipment Authorization. Software development to implement the new requirements has been completed, and the revised electronic Form 731 approved by OMB can be accessed on the effective date of implementation at *https://fjallfoss.fcc.gov/oetcf/eas/index.cfm* (applications filed directly with the FCC) or at *https://fjallfoss.fcc.gov/tcb/index.html* (applications filed by a Telecommunications Certification Body acting on behalf of the FCC). The public may continue to access the FCC database of authorized equipment via the Internet using options presented in the Reports section at *https://fjallfoss.fcc.gov/oetcf/eas/index.cfm* . Users experiencing problems in accessing the database via the Internet may contact OET at *eashelp@fcc.gov* 3. This publication satisfies the statement that the Commission would publish a document announcing the effective date of the rule changes requiring OMB approval. Federal Communications Commission. William F. Caton, Deputy Secretary. [FR Doc. E8-6556 Filed 3-28-08; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 15, 27, 54, 73 and 76 [MB Docket No. 07-148; FCC 08-56] DTV Consumer Education Initiative AGENCY: Federal Communications Commission. ACTION: Final rule; announcement of effective date. SUMMARY: In this document, the Commission announces that the Office of Management and Budget
(OMB)has approved, for a period of six months under its emergency processing rules (5 CFR 1320.13), the information collection(s) associated with the Commission's 2008 Report and Order concerning DTV Consumer Education Initiative. This notice is consistent with the Report and Order, which stated that the Commission would publish a document in the **Federal Register** announcing the effective date of the rules. DATES: Sections 15.124, 27.20, 73.674, 73.3526(e)(11)(iv) and 73.3527(e)(13), published at 73 FR 15431, March 24, 2008, are effective March 31, 2008; and Sections 54.418 and 76.1630, also published at 73 FR 15431, March 24, 2008, are effective April 30, 2008. FOR FURTHER INFORMATION CONTACT: Lyle Elder, *Lyle.Elder@fcc.gov* or 202-418-2120. SUPPLEMENTARY INFORMATION: This document announces that, on March 27, 2008, OMB approved, for a period of six months under its emergency processing rules (5 CFR 1320.13), the information collection requirements contained in the Commission's Report and Order concerning *DTV Consumer Education Initiative,* FCC 08-56, published at 73 FR 15431, March 24, 2008. The OMB Control Numbers that are assigned to these information collections are 3060-1115 and 3060-0214. The Commission publishes this notice as announcement of the effective date of the rules and announcement of OMB approval for information collections. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Cathy Williams, Federal Communications Commission, Room 1-C823, 445 12th Street, SW., Washington, DC 20554. Please include the OMB Control Numbers, 3060-1115 and 3060-0214, in your correspondence. The Commission will also accept your comments via the Internet if you send them to *PRA@fcc.gov.* Synopsis As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on March 27, 2008, for the information collection requirements contained in the Commission's rules at 47 CFR 15.124, 54.418, 27.20, 73.674, 73.3526(e)(11)(iv), 73.3527(e)(13) and 76.1630. The OMB Control Number assigned is 3060-1115 for all of the information collection requirements contained in 47 CFR 15.124, 54.418, 27.20, 73.674, and 76.1630. The OMB Control Number assigned is 3060-0214 for information collection requirements contained in 47 CFR 73.3526(e)(11)(iv) and 73.3527(e)(13). The total annual reporting burden for respondents for the collections contained in OMB Control Number 3060-1115 is estimated to be: 11,022 respondents; 70,026 responses; and a total annual burden hours of 156,069 hours; there is no annual cost associated with this information collection. The total annual recordkeeping burden for respondents for the collections contained in OMB Control Number 3060-0214 is estimated to be: 52,285 respondents; 52,285 responses; and a total annual burden hours of 1,831,706 hours; there is no cost associated with this information collection. Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a valid OMB Control Number. The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507. Federal Communications Commission. William F. Caton, Deputy Secretary. [FR Doc. E8-6683 Filed 3-28-08; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 212, 225, and 252 RIN 0750-AF25 Defense Federal Acquisition Regulation Supplement; Contractor Personnel Authorized To Accompany U.S. Armed Forces (DFARS Case 2005-D013) AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Final rule. SUMMARY: DoD has adopted as final, with changes, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement DoD policy regarding contractor personnel authorized to accompany U.S. Armed Forces deployed outside the United States. DATES: *Effective Date:* March 31, 2008. FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone 703-602-0328; facsimile 703-602-7887. Please cite DFARS Case 2005-D013. SUPPLEMENTARY INFORMATION: A. Background DoD published an interim rule at 71 FR 34826 on June 16, 2006, to implement policy found in DoD Instruction 3020.41, Contractor Personnel Authorized to Accompany the U.S. Armed Forces. In addition, changes to the Federal Acquisition Regulation
(FAR)were proposed at 71 FR 40681 on July 18, 2006, and finalized at 73 FR 10943 on February 28, 2008, to address the issues of contractor personnel that are providing support to the U.S. Government outside the United States but are not covered by the DFARS rule. Since the FAR and the DFARS rules are similar in many respects, the following discussion of comments received on the DFARS rule also includes relevant issues raised with regard to the FAR rule. 1. Right to Self-Defense (252.225-7040(b)(3)(i)) a. Distinction Between Self-Defense and Combat Operations *Comment:* One respondent stated that there is an inherently vague line between what constitutes “defense” and “attack,” which is plainly crossed when the terms are applied in asymmetric warfare; and that contractors employing “self-defense” measures would have to undertake a wide array of combat activities to ensure their safety. *DoD Response:* The DFARS rule recognizes that individuals have an inherent right to self-defense. It does not require self-defense, but authorizes it when necessary. In addition, the rule does not authorize preemptive measures. To the contrary, it recognizes that the actual conduct of an individual cannot be controlled, only governed, by contract terms and, therefore, emphasizes the consequences for the inappropriate use of force (252.225-7040(c)(3)(iii)). b. Whether the Right of Self-Defense Should be Modified to “Personal” Self-Defense *Comment:* One respondent recommended insertion of the word “personal” before “self-defense,” stating that this will clarify that civilians accompanying the force are authorized to use deadly force only in defense of themselves, rather than the broader concept of unit self-defense or preemptive self-defense. *DoD Response:* DoD does not concur with this recommendation. The meaning of the term “self-defense” may vary depending on a person's duties and the country or designated operational area in which the duties are being performed. c. Whether the Right of Self-Defense Should be Extended to Defense Against Common Criminals *Comment:* One respondent stated that, since the rule will apply in innumerable asymmetrical environments, the phrase “against enemy armed forces” should be deleted, asserting that the right of self-defense should extend beyond enemy armed forces, since such defensive actions may be needed as protection against common criminals. *DoD Response:* The final rule removes the phrase “against enemy armed forces” from paragraph (b)(3)(i) of the DFARS clause. DoD believes that it is more useful to the contractor to make an overall statement as to what is allowed with regard to use of deadly force in self-defense, than to focus on the law of war authorities with regard to enemy armed forces. There are legitimate situations that may also require a reasonable exercise of self-defense against other than enemy armed forces, e.g., defense against common criminals or terrorists. When facing an attacker, it will often not be possible for the contractor to ascertain whether the attacker is technically an “enemy armed force.” A cross-reference has been added in paragraph (b)(3)(iii) of the clause, with regard to the limitations on the use of force specified in paragraphs
(d)and (j)(3) of the clause. 2. Role of Private Security Contractors (252.225-7040(b)(3)(ii)) a. Whether a Separate Category for Private Security Contractors Is Necessary *Comment:* One respondent stated there is no need for private security contractors as a separate category if private security contractors (like other contractors) can only use deadly force in self-defense. *DoD Response:* While the right to self-defense applies to all contractors, the rule recognizes that private security contractors have been given a mission to protect other assets/persons. Therefore, it is important that the rule reflect the broader authority of private security contractors with regard to use of deadly force, consistent with the terms and conditions of the contract. b. Hiring Private Security Contractors as Mercenaries Violates the Constitution, Law, Regulations, Policy, and American Core Values *Comment:* Several respondents commented that, by allowing contractors to assume combat roles, the Government is allowing mercenaries in violation of the Constitution, the laws of the United States, and core American values. One law specifically identified was 5 U.S.C. 3108, Employment of detective agencies; restrictions (the “Anti-Pinkerton Act”). Also identified were the DoD Manpower Mix Criteria and the Federal Activities Inventory Reform
(FAIR)Act of 1998, which preclude contracting out core inherently governmental functions, especially combat functions. *DoD Response:* While not disputing the many prohibitions against the use of mercenaries, private security contractors are not mercenaries and they are not part of the armed forces. The Government is not contracting out combat functions. The Government has the authority to hire security guards worldwide. In accordance with OMB Circular A-76, protection of property and persons is not an inherently governmental function. Private security contractors may be persons accompanying the armed forces within the meaning of Article 4A(4) of the Geneva Convention III. In *Brian X. Scott,* Comp. Gen. Dec. B-298370 (Aug. 18, 2006), the Comptroller General of the United States concluded that solicitations for security services in and around Iraq violated neither the Anti-Pinkerton Act, nor DoD policies regarding contractor personnel, because the services required are not “quasi-military armed forces” activities. The Comptroller General also relied on the language of the interim DFARS rule, which prohibits contractor personnel from participating in direct combat activities, as well as the provisions of DoD Instruction 3020.41, which makes it the responsibility of the combatant commander to ensure that private security contract mission statements do not authorize the performance of any inherently governmental military functions. The Comptroller General concluded that “* * * the services sought under the solicitations appear to comport with the DoD policies and regulations which state that security contractors are not allowed to conduct direct combat activities or offensive operations.” c. Whether the Standard for Use of Deadly Force Should be Modified to One of “Reasonableness” *Comment:* Paragraph (b)(3)(ii) of the DFARS clause uses “only when necessary” as the standard for describing the use of deadly force by security contractors. DoD Directive 5210.56, Use of Deadly Force and the Carrying of Firearms by DoD Personnel Engaged in Law Enforcement and Security Duties (E2.1.2.3.1), uses the standard of “reasonably appears necessary.” The respondent stated that, while deadly force is to be avoided, the “only when necessary” standard in the interim rule fails to recognize the “reasonably appears necessary” standard that is critical to split-second decisions, particularly in a war zone. *DoD Response:* DoD agrees that the DFARS rule should be consistent with the cited DoD Directive and has incorporated the “reasonably appears necessary” standard into the final rule. d. Whether Protected Assets/Persons for Private Security Contractors Should be Limited to Non-Military Objectives *Comment:* One respondent stated the rule should be clarified to limit private security contractor personnel to protecting assets/persons that are non-military objectives. This omission from the interim rule seems to conflict with Army Field Manual No. 3-100.21, which prohibits the use of contractors in a force protection role. The respondent also expressed concern about how to craft statements of work for private security contractors that do not assign inherently governmental functions to contractors. *DoD Response:* It is not possible to know in advance of an actual conflict what may become a military objective. Almost anything worth protecting could become a military target in wartime. As stated in paragraph 2 above, the Government is not contracting out combat functions. The United States Government has the authority to hire security guards worldwide. According to OMB Circular A-76, Performance of Commercial Activities, protection of property and persons is not an inherently governmental function (see FAR 7.503(d)(19)). DoD Instruction 3020.41 provides limitations and safeguards for private security contracts, including legal review on a case-by-case basis. Paragraph 6.3.5 of that Instruction states that, “Whether a particular use of contract security personnel to protect military assets is permissible is dependent on the facts and requires legal analysis.” The DoD Instruction also states in paragraph 6.3.5.2, “Contracts shall be used cautiously in contingency operations where major combat operations are ongoing or imminent. In these situations, contract security services will not be authorized to guard U.S. or coalition military supply routes, military facilities, military personnel, or military property except as specifically authorized by the geographic Combatant Commander (non-delegable).” Since these requirements must be fulfilled before the private security contract is entered into, it is not necessary or appropriate to include these requirements in the DFARS rule. e. Use of the Term “Mission Statement” *Comments:* Paragraph (b)(3)(ii) of the DFARS clause authorizes private security contractor personnel to use deadly force only when “necessary to execute their security mission to protect assets/persons, consistent with the mission statement contained in their contract.” Several respondents stated that the use of the term “mission statement” in that sentence caused confusion and should be clarified. One respondent noted that not all contracts for security services will contain a “mission statement” as such. Statements of work may contain sections entitled “objectives,” “purpose,” or “scope of work,” which may or may not contain the equivalent of a mission statement. The respondent further noted that the need to deploy security personnel quickly could result in a mission statement (or its equivalent) that may not be as precise as desired and, therefore, ill-suited to serve as part of a standard for when deadly force is authorized. Other respondents requested clarification as to whether subcontractors would be considered private security contractors, or whether the term “private security contractor” was limited to contractors that have a contract directly with the Government. One respondent stated there is no guidance as to who would qualify as private security contractor personnel, creating uncertainty as to whether private security companies retained by a prime contractor would be covered if the prime contractor drafted a mission statement for its private security subcontractor. *DoD Response:* DoD agrees that the term “mission statement” could cause confusion and has replaced “mission statement” with “terms and conditions” in paragraph (b)(3)(ii) of the clause. DoD does not believe that any clarification with regard to subcontractors is necessary. When a clause flows down to subcontractors, the terms are changed appropriately to reflect the relationship of the parties. Nothing in the rule indicates that private security contractors cannot be subcontractors. f. Authority of Combatant Commander To “Create Missions” *Comment:* One respondent stated that the rule delegates extensive authority to combatant commanders to direct contractor actions under both support and security contracts. The respondent further stated that granting such nearly unlimited authority to combatant commanders to create missions is inconsistent with laws and regulations that convey such authority to contracting officers and serves to undermine their authority. *DoD Response:* The combatant commander is not authorized to create missions for private security contractors. A contractor must perform in accordance with the terms and conditions of the contract. The combatant commander is responsible for reviewing/approving any contractor request to carry weapons and evaluating whether the planned use of such weapons is appropriate. g. Approval of Private Security Contractors *Comment:* One respondent questioned whether there will be a vetting process and a list of approved Private Security Contractors from which DoD contractors or their subcontractors may acquire services. *DoD Response:* Contractors are responsible for providing their own security support and for the selection and performance of subcontractors. However, the Government may reserve the right to approve subcontracts. h. Definition of “Private Security Contractor” *Comment:* Several respondents requested a definition of “private security contractor.” One respondent noted that DoD Instruction 3020.41 uses the term “security services.” *DoD Response:* DoD considered defining “private security contractor” to mean “a contractor that has been hired to provide security, either by the Government or as a subcontractor.” However, in considering this definition, DoD realized that, in some circumstances, a contractor whose primary function is not security may directly hire a few personnel to provide security, rather than subcontracting to a private security contractor. The authority for use of deadly force ultimately rests with the individuals who are providing the security, whether as direct hires or as employees of a subcontractor. Therefore, the final rule amends paragraph (b)(3)(ii) of the contract clause to replace the term “private security contractor personnel” with “contractor personnel performing security functions.” In addition, since some contractor personnel performing security functions are employees, rather than hired by contract, paragraph (b)(3)(ii) of the clause has been further amended to address execution of the security mission by such personnel consistent with their job description and terms of employment. i. Coordination and Communication With Private Security Contractors *Comment:* One respondent stated that DoD is coordinating responsibilities and functions among the military and contractor security forces in Iraq and requested that the DFARS state that DoD will similarly coordinate security efforts in future theaters of operation. In addition, the respondent stated that the DFARS should name an organization to coordinate the overall activities of the private security contractors to meet U.S. tactical and strategic goals and that DoD should have a process by which it communicates and receives threat information to and from contractors operating in the field, as required by DoD Instruction 3020.41. Further, DoD Instruction 3020.41, paragraph 6.3.5.3.3, also requires a plan as to how appropriate assistance will be provided to contractor security personnel who become engaged in hostile situations. *DoD Response:* Such plans for coordination and communication are the responsibility of the combatant commander and are outside the scope of this DFARS rule. These issues must be addressed before the combatant commander approves the arming of contingency contractor personnel to provide security services. Once approved, the terms and conditions of the contract will reflect these requirements as appropriate. 3. Consequences of Inappropriate Use of Force (252.225-7040(b)(3)(iii)) a. Loss of “Law of War” Protection From Direct Attack *Comment:* The statement in paragraph (b)(3)(iii) of the contract clause, that civilians lose their law of war protection from direct attack if and for such time as they take a direct part in hostilities, raised numerous questions regarding its meaning. One respondent considered this to be a correct statement under the international law of war, but that it may call into question the foundation for the global war on terrorism and targeting “unlawful combatants” when they are not taking a direct part in hostilities. *DoD Response:* The statement in question has been excluded from the final rule. DoD considered the statement to be unnecessary and potentially confusing. Paragraph (b)(3)(i) of the clause establishes the right to self-defense. Paragraph (b)(3)(ii) sets forth a limited right for some contractor personnel to protect assets/persons. A new paragraph (b)(3)(iii) has been added to address the consequences of the inappropriate use of force. b. Consequences Other Than “Law of War” Consequences *Comment:* Several respondents stated that the notice to contractors relating to the personal and legal impact of directly participating in hostilities is incomplete. Without including the cautionary language of DoD Instruction 3020.41 relating to possible criminal and civil liability, civilians accompanying the armed forces might erroneously believe the only impact of their direct participation is that they would be lawful targets during such time that they are participating in hostilities. One respondent was also concerned that, by not mentioning potential immunity, it could be argued that the clause waives otherwise available immunities. The respondents suggested addition of language stating that, “Since civilians accompanying the force do not have combatant immunity, unless immune from host nation jurisdiction by virtue of an international agreement or international law, contingency contractor personnel are advised that inappropriate use of force could subject them to U.S. or host nation prosecution and civil liability.” *DoD Response:* The new paragraph (b)(3)(iii) in the contract clause incorporates the information found in DoD Instruction 3020.41 relating to possible immunity and possible criminal and civil liability for contractor personnel who inappropriately use force. 4. Contractors Are Not Active Duty (252.225-7040(b)(4)) *Comment:* One respondent was concerned about paragraph (b)(4) of the contract clause, which states, “Service performed by Contractor personnel subject to this clause is not active duty or service under 38 U.S.C. 106.” The respondent stated that the Note under 38 U.S.C. 106 explains that the Secretary of Defense is to determine what constitutes active duty or service under this statute for Women's Air Forces Service Pilots who were attached to the Army Air Corps during World War II and persons in similarly situated groups who rendered services in a capacity considered civilian employment or contractual service. The respondent stated that the determination can only be made retrospectively. *DoD Response:* Paragraph (b)(4) of the clause correctly states the terms of service for Defense and non-Defense contractors. Contractors should hold no expectations under this clause that their service will qualify as “active duty or service.” The Note under 38 U.S.C. 106 requires that determinations for any applicant group be based on
(1)regulations prescribed by the Secretary, and
(2)a full review of the historical records and any other evidence pertaining to the service of any such group. In promulgating the DFARS, DoD has issued a regulation prescribed by the Secretary. This DoD regulation establishes the historical record that shall be used in future review of the historical evidence surrounding a contractor's service under this clause. DoD policy is that contractors operating under this clause shall not be attached to the armed forces in a way similar to the Women's Air Forces Service Pilots of World War II. Contractors today are not being called upon to obligate themselves in the service of the country in the same way as the Women's Air Forces Service Pilots or any of the other groups listed in 38 U.S.C. 106. 5. Weapons (252.225-7040(j)) a. Nature of the Authorized Weapons *Comment:* One respondent stated there is no reasonable limitation on the nature of the weapons that a contractor is to handle, whether as a “self-defense” contractor or a private security contractor. This range could include anything from small arms to major weapons systems. *DoD Response:* The possible situations are too numerous to permit prescription of specific weapons for each situation. However, it is unlikely that a contractor would attempt to bring a major weapon system onto the battlefield, or that the combatant commander would authorize such weapons. b. Combatant Commander Rules on the Use of Force *Comment:* One respondent stated that there is no reasonable means by which a combatant commander can generate rules regarding the use of force by contractors. The respondent further stated that the rules must be related to doctrine, dogma, rules of engagement, etc., and these are formulated well above the level of the combatant commander. Since the rules may be different, contractor personnel would be subject to a range of serious risks and liabilities. *DoD Response:* It is the authority of the combatant commander to perform those functions of command over assigned forces involving organizing and employing commands and forces; assigning tasks; designating objectives; and giving authoritative direction over all aspects of military operations, joint training, and logistics necessary to accomplish the missions assigned. Operational control is inherent in combatant command (command authority) and, therefore, provides full authority to organize and employ commands and forces as the combatant commander considers necessary to accomplish assigned missions. The combatant commander also establishes rules of engagement in the designated operational area, and does take into consideration many influences such as doctrine. The combatant commander will seek advice from experts in areas such as law and security before making such decisions. Since the rules regarding contractor authorization to carry firearms will vary according to the phase of the conflict, the combatant commander is the most informed and able individual to determine whether a contractor should carry weapons. c. Law of Armed Conflict Issues *Comment:* One respondent stated that the notion that the Government assumes no responsibility whatsoever for the use of weapons on a battlefield by a contractor authorized and required to use such weapons, as the practical effect of the contract requirements, makes no sense and is certain to cause contractual law of armed conflict and other problems. *DoD Response:* There have been no issues on the law of armed conflict for contractors carrying weapons, because in the current conflicts there are no enemy armed forces that are lawful combatants and no enemy government to provide them prisoner of war status and protections if captured. DoD also notes that, at the beginning of the current conflict, contractors were not permitted to carry weapons at all. During the post-major operations phase, civilian contractors that have been brought in for a variety of security operations are authorized (and required) to provide their own weapons. The obvious safety/security issues connected with carrying a weapon far outweigh any theoretical issues. d. Liability for Use of Weapons *Comment:* Several respondents expressed concern that the Government authorizes and sometimes requires contractor personnel to carry weapons, but that it places sole liability for the use of weapons on contractors and contractor personnel, even if the contractor was acting in strict accordance with the contract statement of work or under specific instructions from the contracting officer or the combatant commander (252.225-7040(j)(4)). One respondent considered that statement to be inconsistent with prior regulatory history, citing the statement in the preamble to the final DFARS rule published on May 5, 2005 (70 FR 23792), that “risk associated with inherently Governmental functions will remain with the Government.” *DoD Response:* While a contractor may be authorized to carry and use weapons, the contractor remains responsible for the performance and conduct of its personnel. A contractor has discretion in seeking authority for any of its employees to carry and use a weapon. The contractor is responsible for ensuring that its personnel who are authorized to carry weapons are adequately trained to carry and use them safely, adhere to the rules on the use of force, comply with law and agreements, and are not barred from possession of a firearm. Inappropriate use of force could subject a contractor or its subcontractors or employees to prosecution or civil liability under the laws of the United States and the host nation. The Government cannot indemnify a contractor and its personnel against claims for damages or injury or grant immunity from prosecution associated with the use of weapons. With regard to the statement on inherently governmental functions, this rule does not authorize contractors to perform any inherently governmental functions. 6. Risk/Liability to Third Parties/Indemnification (252.225-7040(b)(2)) *Comment:* Many respondents expressed concern that the DFARS rule shifts to contractors all risks associated with performing the contract, and may lead courts to deny contractors certain defenses in tort litigation. The respondents cited decisions by State and Federal courts arising out of injuries or deaths to third parties, including military members and civilians. Generally, the courts absolved contractors of liability to third parties where the Government carried ultimate responsibility for the operation. For example— ○ In *Smith* v. *Halliburton Co.,* No. H-06-0462, 2006 WL 1342823 (S.D. Tex. May 16, 2006) and *Whitaker* v. *Kellogg Brown & Root, Inc.,* No. 05-CV-78, 2006 WL 1876922 (M.D. Ga. July 6, 2006), the courts found there was no risk and no liability associated with contractor performance when active duty military members were injured in situations where the military (or the injured member himself) was responsible for force protection of military members. ○ In *Koohi* v. *United States,* 976 F.2d 1328 (9th Cir. 1992), the contractor bore no risk and no liability for military decisions aboard the U.S.S. Vincennes to shoot down an approaching aircraft during a time of war, and the contractor had no responsibility to design or manufacture the Aegis weapon system to prevent such use by military members. Some respondents expressed concern that the acceptance of risk may preclude grants of indemnification. One respondent stated that the rule could adversely affect indemnification that would otherwise be available. The clause at FAR 52.228-7, Insurance-Liability to Third Persons, provides limited indemnification, but provides that contractors shall not be reimbursed for liabilities for which the contractor is otherwise responsible under the express terms of any clause specified in the Schedule or elsewhere in the contract. The respondent also stated that the provisions requiring the contractor to accept certain risks and liabilities could also be the basis to deny pre- or post-award requests for indemnification under Public Law 85-804. Another respondent cited a decision by a DoD Contract Appeals Board in which the Board declined a contractor's request for indemnification under Public Law 85-804 because, according to the Board, contractors should not be able to deliberately enter into contractual arrangements with full knowledge that a risk is involved and yet propose unrealistically low prices on the hopes they may later gain indemnification. The respondents recommended that the United States either identify, quantify, and accept all the risk or insert language that would immunize contractors from tort liability. Specifically, several respondents recommended adding the statement, “Notwithstanding any other clause in this contract, nothing in this clause should be interpreted to affect any defense or immunity that may be available to the contractor in connection with third-party claims, or to enlarge or diminish any indemnification a contractor may have under this contract or as may be available under the law.” There was also concern that, by accepting all risks of performance, contractors would not be able to obtain workers compensation insurance or reimbursement under the Defense Base Act. One respondent recommended that the contractor's share of risk in the rule be revised as follows: “Except as otherwise provided in the contract, the Contractor accepts the risks associated with required contract performance in such operations.” *DoD Response:* DoD believes that the rule adequately allocates risks, allows for equitable adjustments, and permits contractors to defend against potential third-party claims. Contractors are in the best position to plan and perform their duties in ways that avoid injuring third parties. Contractors are equally or more responsible to research host nation laws and proposed operating environments and to negotiate and price the terms of each contract effectively. Accordingly, the clause retains the current rule of law, holding contractors accountable for the negligent or willful actions of their employees, officers, and subcontractors. This is consistent with existing laws and rules, including the clause at FAR 52.228-7, Insurance-Liability to Third Persons, and FAR Part 50, Extraordinary Contractual Actions, as well as the court and board decisions cited in the comments. The current law regarding the Government Contractor Defense (e.g., the line of cases following *Boyle* v. *United Technologies,* 487 U.S. 500, 108 S. Ct. 2510 (1988)) extends to manufacturers immunity when the Government prepares or approves relatively precise design or production specifications after making sovereign decisions balancing known risks against Government budgets and other factors in control of the Government. This rule covers service contracts, not manufacturing, and it makes no changes to existing rules regarding liability. The public policy rationale behind *Boyle* does not apply when a performance-based statement of work is used in a services contract, because the Government does not, in fact, exercise specific control over the actions and decisions of the contractor or its employees or subcontractors. Asking a contractor to ensure its employees comply with host nation law and other authorities does not amount to the precise control that would be requisite to shift away from a contractor's accountability for its own actions. Contractors will still be able to defend themselves when injuries to third parties are caused by the actions or decisions of the Government. However, to the extent that contractors are currently seeking to avoid accountability to third parties for their own actions by raising defenses based on the sovereignty of the United States, this rule should not send a signal that would invite courts to shift the risk of loss to innocent third parties. The language in the clause is intended to encourage contractors to properly assess the risks involved and take proper precautions. However, to preclude the misunderstanding that asking the contractor to “accept all risks” is an attempt to shift all risk of performance to the contractor without regard to specific provisions in the contract, the statement in the rule regarding risk has been amended to add the lead-in phrase, “Except as otherwise provided in the contract”. 7. Definition of Terms (252.225-7040(a)) a. Theater of Operations *Comment:* One respondent stated that the term “theater of operations” is unwarranted by any legitimate purposes suggested by the rule, and that this term, if defined at all, should rest in the hands of the President or the Secretary of Defense. *DoD Response:* The term was included in the interim rule because it defined the geographic area to which the clause was applicable. The combatant commander has the authority to define a “theater of operations” within the geographic area for which the combatant commander is responsible. However, consistent with DoD Joint Publication 3-0, Joint Operations, DoD has determined that the term “designated operational area” is more appropriate to describe the applicability of the rule, as this term includes the theater of operations as well as such descriptors as theater of war, joint operations area, amphibious objective area, joint special operations area, and area of operations. Therefore, the term “theater of operations” has been replaced with the term “designated operational area” throughout the rule. b. Other Military Operations *Comment:* Two respondents noted that the term “other military operations” is very broadly defined. One respondent stated that the term is either over-expansive, or unnecessary, because it is so inclusive as to suggest nearly any type of military engagement likely to be carried out in the first half of the current century. *DoD Response:* DoD agrees that the definition was very broad, because it was intended to cover every type of military operation. Since the final rule applies to “other military operations” only when designated by the combatant commander, definition of this term is no longer necessary and has been excluded from the final rule. 8. Terms Not Defined a. Enemy Armed Forces *Comment:* Two respondents objected to the use of the term “enemy armed forces” in the rule without definition. *DoD Response:* The term “enemy armed forces” has been excluded from the final rule. b. “Law of War,” “Law of War Protections,” and “Take Direct Part in Hostilities” *Comment:* One respondent stated that terms of art such as “law of war,” “law of war protections,” and “take direct part in hostilities” are not defined in the rule and likely cannot be defined satisfactorily in the DFARS. The respondent further stated that understanding the concepts underlying these terms is crucial to preparing statements of work for and administering contracts that will send contractor employees into hostile environments. Therefore, the respondent recommended that the DFARS text include some discussion of these terms and the need for contracting personnel to seek advice when dealing with these terms. *DoD Response:* DoD agrees that these terms cannot be defined satisfactorily in the DFARS and has removed the terms from the final DFARS rule. However, DoD is developing law of war training that will be available to contractor personnel. c. “Mission Essential,” “Essential Contractor Services,” “Security Support,” “Security Mission,” “Security Plan,” “Mandatory Evacuation,” and “Non-Mandatory Evacuation” *Comment:* Two respondents stated that the interim rule used these terms, which are not defined, and, except for “essential contractor services” and “security plan,” are not used in DoD Instruction 3020.41. The respondents considered these terms critical to the contractor in determining and pricing its obligations under a solicitation and resulting contract. *DoD Response:* “Mission essential” is the term used in DoD Instruction 3020.37, Continuation of Essential DoD Contractor Services During Crises. “Essential contractor services” is defined in DoD Instruction 3020.41. The Government identifies the mission essential personnel and essential contractor services to the contractor, so it is unnecessary to define these terms in the DFARS. “Security support” and “security mission” are used with their common dictionary meaning; however, the terms and conditions of the contract will define the mission and will also specify if security support will be provided. DoD Instruction 3020.41, paragraph 6.3.4, addresses the requirements for a security plan. Since the combatant commander prepares the security plan, these requirements do not need to be repeated in the DFARS. It is also unnecessary to define “mandatory evacuation” and “non-mandatory evacuation” in the DFARS, as these terms are used with their common dictionary meaning, and the Government will identify any evacuation order as mandatory or non-mandatory. The contractor will be given appropriate instructions in the event an evacuation order is issued. 9. Scope of Application a. Commercial Items *Comment:* One respondent expressed concern that DFARS 212.301(f) requires application of the contract clause across-the-board to commercial items. The respondent recommended that the clause apply only if the acquisition of commercial items is for performance of contractor personnel outside the United States in a covered theater of operations. *DoD Response:* DoD agrees that the clause should apply only if the acquisition of commercial items is for performance of contractor personnel outside the United States in a designated operational area. However, the respondent has misinterpreted the requirement at DFARS 212.301(f)(vii). This paragraph states that the clause at DFARS 252.225-7040 is to be used in accordance with the prescription at DFARS 225.7402-4, which specifies the criteria for use of the clause. b. Military Operations and exercises *Comment:* One respondent expressed concern regarding application of the rule to a wide range of military operations and exercises that do not require special treatment. The rule prescribes use of the clause when contractor personnel will be required to perform outside the United States in a theater of operations during “other military operations” or “military exercises designated by the combatant commander.” The respondent recommended that the final rule include criteria for when the combatant commander should invoke the authority to require use of the clause. *DoD Response:* DoD has amended the rule to clarify that “designated by the combatant commander” applies to military operations as well as military exercises. However, DoD does not consider it appropriate for the DFARS to prescribe criteria to the combatant commander for use of the clause. The combatant commander is in the best position to determine whether the circumstances in a designated operational area warrant use of the clause. In addition, the final rule clarifies that any of the types of military operations covered by the scope of the rule may include stability operations. c. Designation of Specific Geographic Area *Comment:* One respondent questioned whether the combatant commander should designate a specific geographic area for applicability of the clause. *DoD Response:* DoD believes that the scope of the DFARS clause sufficiently defines the area of applicability. The designated operational area is a specific geographic area, defined by the combatant commander or the subordinate joint force commander for the conduct or support of specified military operations. 10. Logistical and Security Support (225.7402-3 and 252.225-7040(C)) a. Lack of Force Protection Represents a Change in Policy *Comment:* Two respondents stated that the lack of committed force protection represents a drastic change in policy for contractors accompanying U.S. Armed Forces. Another respondent considered that this is the penultimate paragraph in the transfer of responsibility for force protection from the military to contractors, and that it is ill-considered. One of the respondents noted that, prior to the interim rule, the DFARS required the combatant commander to develop a security plan for protection of contractor personnel through military means unless the terms of the contract placed the responsibility with another party. That respondent strongly opposed the changes made by the interim rule, which limit the requirement for the combatant commander to develop a security plan to those locations where there is not sufficient or legitimate civil authority and where the commander decides the provision of security is in the interests of the Government. The respondent stated that this reversal of policy will—
(1)Have a significant impact on the ability of contractors to provide future support to DoD (bid/proposal costs will reflect higher costs related to the contractor's assumption of security costs);
(2)Have a direct effect on systems contractors supporting major weapons systems; and
(3)Substantially increase contract prices. The respondent also cited DoD Joint Publication 4-0, Chapter V, and Enclosure 2 to DoD Instruction 3020.41 as support for the statements that DoD affirmatively had the obligation to provide force protection for contractors providing direct support to the military. Another of the respondents questioned how the decision that DoD presumably will not provide a security plan is consistent with protecting contractor resources vital to accomplishing the U.S. mission. *DoD Response:* In most areas of the world, it is the responsibility of the host nation to provide protection for civilians working in their country. It is clearly unnecessary for the combatant commander to prepare a security plan in locations where there is sufficient legitimate civil authority. The added provisions are from DoD Instruction 3020.41, which provides that the combatant commander must decide that to provide security is in the interests of the Government. The combatant commander is in the best position to judge the circumstances in the designated operational area and what resources are available to him and to the contractors. The writers of the regulations cannot commit the U.S. Armed Forces to provide protection to contractor personnel performing in areas of conflict, beyond what is provided for in DoD Instruction 3020.41. With regard to the reference to DoD Joint Publication 4-0, Chapter V, this chapter (paragraph 13a.) specifically states that force protection responsibility for DoD contractor employees is a contractor responsibility, unless valid contract terms place that responsibility with another party. With regard to the reference to Enclosure 2 to DoD Instruction 3020.41, the definition of “Contractors Deploying with the Force” in Enclosure 2 states that contractors deploying with the force usually receive Government-furnished support similar to DoD civilians. This statement addresses logistics support, not force protection. The rule does not state that the combatant commander will not provide a security plan. The rule specifically states that the combatant commander will provide a security plan for protection of contractor personnel in locations where there is not sufficient legitimate civil authority and the combatant commander decides it is in the interests of the Government to provide security, especially if threat conditions necessitate security through military means. The rule focuses the application of limited resources in those situations where most needed. b. Timing of Disclosure *Comment:* One respondent stated that timing of the disclosure of agency support could impact an offeror's proposal costs and recommended that, at a minimum, agencies be required to include support information, not just in the contract, but also in the solicitation. Another respondent stated that the solicitation should specify whether DoD will provide a security plan. Contractors need sufficient time to decide whether they want to bear the additional risk of performance or make suitable arrangements with a private security firm or its own personnel. A third respondent requested that the final rule clarify whether a security plan, if any, will be developed prior to the release of the solicitation. *DoD Response:* DoD agrees that the timing of the disclosure of the agency's decision to provide or not provide support could have an impact on proposal costs. Therefore, DFARS 225.7402-3(c) has been amended to add a requirement for identification of this information in the solicitation. c. Changes in Government-Provided Support *Comment:* One respondent recommended that any changes to Government-provided security support should expressly require an equitable adjustment to the contract. *DoD Response:* DoD does not believe it is necessary to expressly address this issue in the DFARS rule. Any need for equitable adjustment will be evaluated in accordance with the Changes clause included in the contract. d. Agency/Combatant Commander Cannot Know if Adequate Support is Available *Comment:* One respondent commented that one of the conditions precedent to Government support is a determination by the Government that adequate support cannot be obtained by the contractor from other sources. The respondent stated that, whether or not competitors can obtain adequate support from other sources is outside of an agency's knowledge and that this kind of knowledge involved marketplace issues that vary significantly by the size and experience of the contractor. The respondent also stated that two of the three key elements of the combatant commander's decision required by the DFARS rule are outside of his expertise and scope of knowledge—namely whether the specific contractor can obtain effective security services and whether effective security services are available at a reasonable price. *DoD Response:* DoD does not agree that the Government would not be able to determine whether the contractor was able to obtain adequate support from other sources. The Government official/combatant commander would not be making a decision in a vacuum, but would have staff to perform necessary market research and consult with the contractor as necessary. The final rule contains an amendment at 225.7402-3(b)(2) to include “reasonable cost” as a criterion for contractor-obtained support, consistent with the language at 252.225-7040(c)(1)(i)(B). e. Security Costs Should Be a Cost-Reimbursement Line Item *Comment:* One respondent stated that security costs should be a cost-reimbursement line item, even in a fixed-price contract, or should provide for equitable adjustment to reflect material changes in the threat environment. *DoD Response:* In accordance with FAR 16.103, selecting the appropriate contract type is generally a matter of negotiation and requires the exercise of sound judgment. The contractor's responsibility for the performance costs and the profit/fee incentives offered are tailored to the uncertainties involved in contract performance. While DoD acknowledges that there may be a high degree of uncertainty in the costs for security, the determination of how to handle that uncertainty is a matter of negotiation rather than regulation. f. Shift Mid-Stream *Comment:* One respondent stated that existing contracts with military force protection could be impacted midstream by the DFARS rule and that contractors will be required to either shift their work plan and price such changes accordingly or decline the work. *DoD Response:* This rule does not impact existing contracts. DoD does not plan to retroactively modify contracts. If the combatant commander has established a security plan and is currently providing force protection, there is no reason to believe that this rule would result in a change to the existing arrangements. g. Firms Unwilling To Bid *Comment:* One respondent stated that many firms, aware that they might no longer be provided military force protection, might decline new overseas DoD work due to the often dangerous or austere conditions. *DoD Response:* The conditions are often dangerous or austere, and military protection may not be available. If firms are unwilling to cope with such conditions, they should not bid. h. Insufficient Infrastructure *Comment:* Regarding non-security support, one respondent noted that paragraph (c)(3) of the DFARS clause states that, unless specified elsewhere in the contract, the contractor is responsible for all other support required for its personnel engaged in a theater of operations. The respondent further noted that, in some theaters of operations, the local infrastructure might be insufficient or the military situation may limit or restrict the contractor's ability to provide such support. *DoD Response:* Because of such difficulties, the DFARS clause provides for logistical support when such support is needed to ensure continuation of essential contractor services and the contractor cannot obtain adequate services. However, the contractor cannot assume that such services will be provided unless it has been arranged and is specified in the contract. i. Provision of Care *Comment:* One respondent noted that paragraph (c)(2)(i) of the DFARS clause states that all contractor personnel “may be provided” certain types of care. The respondent expressed concern that this paragraph implies there is discretion not to provide such care, but with no guidance as to how this discretion is to be exercised. The respondent recommended revision of the phrase “may be provided” to “are authorized to receive.” *DoD Response:* There was no intent to imply that access to such care would be denied, but rather that DoD could not commit to providing it in all circumstances. The phrase has been revised as recommended by the respondent. 11. Compliance With Laws, Regulations, Directives (252.225-7040(d)) a. Lack of Access to Necessary Information on Laws, Regulations, and Directives Paragraph
(d)of the DFARS clause requires the contractor to comply with, and ensure that its deployed personnel are familiar with and comply with, all applicable laws, rules, and regulations, including those of the host country, all treaties and international agreements, all U.S. regulations, and all orders, directives, and instructions issued by the combatant commander. *Comment:* One respondent stated that rarely will contractors, let alone offerors, have access to any (and certainly not all) relevant orders, directives, instructions, policies, and procedures of the combatant commander, even in those narrow functional areas specified in the clause. The respondent also states that frequently a contractor is asked to deploy to countries or areas of the world on short notice without extended advance notice and without meaningful access to information on relevant foreign and local laws. *DoD Response:* Paragraph
(d)of the DFARS clause reinforces the existing obligation for contractor personnel to comply with the laws and regulations applicable to the contract. Contractors have access to all of these laws and regulations, and country studies are available online at *http://www.state.gov.* Therefore, a contractor may ascertain on its own the laws and regulations necessary to comply with paragraph
(d)of the clause. In addition, a contractor supporting contingency operations should have access to any orders, directive, instructions, policies, and procedures of the combatant commander that affect contract performance in the designated operational area. The Web site at *http://www.acq.osd.mil/dpap/pacc/cc/areas_of_responsibility.html* links directly to individual combatant commands and countries to provide the information necessary for operating in that area. b. Varying Need for Extensive Information *Comment:* One respondent stated that deployed employees may have no need for certain types of information that are unrelated to their specific work assignments. *DoD Response:* The DFARS clause only requires knowledge of applicable laws and regulations. If certain laws or regulations are not applicable to particular employees, the information provided to those employees should be tailored as appropriate. c. Inconsistency Between U.S. Laws and Host or Third Country National Laws *Comment:* One respondent recommended that the DFARS clause address how U.S. contractors are to resolve conflicts between compliance with U.S. law and any inconsistent host or third country national laws. Another respondent recommended establishment of an order of precedence among the contract, statement of work, DFARS clauses, DoD instructions and directives, and combatant commander orders (written or oral). *DoD Response:* DoD does not agree with the recommended changes. The resolution of conflicts between U.S. and host or third country national laws must be analyzed on a case-by-case basis and, therefore, is beyond the scope and intent of the regulations. Also, paragraph
(d)of the DFARS clause is a reminder of the existing obligation to comply with the applicable laws, regulations, and international agreements specified therein. It is the contractor's responsibility to make the best possible interpretations and determinations when deciding which law or regulation takes precedence in the event of a conflict. With regard to the orders of the combatant commander, see the following paragraph. *d. Authority of the Combatant Commander* *Comment:* One respondent expressed concern that the broad authority in paragraph (d)(4) of the DFARS clause would allow the combatant commander to become unduly involved in the contracting process. In addition, this paragraph could be interpreted as empowering combatant commanders to issue instructions for individual contracts on a wide spectrum of matters. *DoD Response:* Paragraph (d)(4) of the clause is a reminder of the existing obligation for contractor personnel to comply with laws and regulations applicable to the contract. It does not provide new authority for combatant commanders to direct the contracting activities of other Government agencies. However, paragraph (d)(4) has been amended to clarify that only the contracting officer is authorized to modify the terms and conditions of the contract. e. Ensure That the Statement of Work Does Not Violate Host Nation or International Law *Comment:* One respondent stated that the rule should direct the contracting officer to ensure that the statement of work does not require the contractor to violate host nation or international law. This would be consistent with many provisions in DoD Instruction 3020.41 that the DFARS rule omits. *DoD Response:* The requiring activity and the combatant commander have primary responsibility for the statement of work, and they must follow the requirements of DoD Instruction 3020.41. Therefore, it is unnecessary to repeat this requirement in the DFARS. 12. Preliminary Personnel Requirements (252.225-7040(e)) a. Immunizations *Comment:* One respondent recommended that contractors be required to comply with immunization requirements to the “best of their knowledge” rather than requiring that they be aware of all such requirements, since they may not have ready access to all of the vaccines, documents, and medical and physical requirements that may be applicable to a specific deployment. *DoD Response:* Contractors should be aware of all immunization requirements, since the Government is required to provide specific information in the contract regarding those requirements. b. Foreign Visas *Comment:* One respondent stated that contractors should not have to obtain foreign government approval through entrance or exit visas before implementing a contract. *DoD Response:* DoD does not have the authority to waive the visa requirements of foreign governments. If a contractor is experiencing problems obtaining any necessary visas, it should advise the contracting officer so that the U.S. Government can assist if possible. c. Isolated Personnel Training *Comment:* One respondent requested explanation of the phrase “isolated personnel training.” *DoD Response:* “Isolated personnel training” refers to training for military or civilian personnel who may be separated from their unit or organization in an environment requiring them to survive, evade, or escape while awaiting rescue or recovery. For additional clarity, paragraph (e)(1)(vi) of the DFARS clause has been amended to add a reference to DoD Instruction 1300.23, Isolated Personnel Training for DoD Civilian and Contractors. 13. Personnel Data List (252.225-7040(g)) *Comment:* One respondent questioned whether the Privacy Act will apply to the implementation of a personnel database. *DoD Response:* The Privacy Act (5 U.S.C. 552a) applies to any system of records established by the Government. The final rule designates the Synchronized Predeployment and Operational Tracker
(SPOT)as the applicable system for maintaining data on deployed personnel. The **Federal Register** notice for the SPOT system, as required by the Privacy Act, was published at 70 FR 56646 on September 28, 2005. 14. Changes (252.225-7040(p)) a. Expansion of Changes Clause *Comment:* One respondent stated that paragraph
(p)of the DFARS clause represented an unnecessary sweeping expansion of the standard FAR “Changes” clause; and that the standard clause is limited for important reasons, one of which is to ensure that Government contracts remain within clearly defined scopes. Another respondent stated that inclusion of change in place of performance in paragraph
(p)could be interpreted to require a contractor to move from Iraq to Kuwait or from East Timor to Lebanon. Although the respondent strongly supported the premise that changes are subject to the Changes clause and, therefore, subject to equitable adjustment when appropriate, the respondent also recommended that an equitable adjustment be explicitly required. *DoD Response:* DoD does not consider paragraph
(p)of the DFARS clause to be a sweeping change, since it is patterned after the standard Changes clause for construction contracts, which includes changes in site performance. Because this DFARS clause is not limited to construction contracts, the more generic term “place of performance” was substituted for “site.” The Changes clause requires that changes be within the scope of the contract and that equitable adjustment be provided when appropriate. Since paragraph
(p)of the DFARS clause states that any change order will be subject to the Changes clause, it is not necessary to repeat the principles of the Changes clause in the DFARS clause. b. Interim Rule Preamble *Comment:* One respondent stated that the description of the changes to paragraph
(p)of the DFARS clause, in the preamble to the interim rule published at 71 FR 34826 on June 16, 2006, was not accurate, because it only addressed place of performance, when the changes also included Government-furnished facilities, equipment, material, and services. *DoD Response:* The preamble accurately described the changes made by the interim rule published on June 16, 2006. The references to Government-furnished facilities, equipment, material, and services were already in the clause prior to the interim rule. 15. Subcontract Flowdown (252.225-7040(q)) a. Obligation and Role of the Parties *Comment:* Two respondents recommended that the Government more clearly state what parts of the clause are to flowed down and whether, for each provision, the contractor is to act in the Government's stead. *DoD Response:* The language in paragraph
(q)of the DFARS clause is consistent with the language normally included in FAR/DFARS clauses requiring flowdown of requirements to subcontractors. The specific language “shall incorporate the substance of this clause” is intended to allow latitude in correctly stating the relationship of the parties. The Government does not have privity of contract with subcontractors. b. Flowdown of Support *Comment:* One respondent, while not objecting to the policy for subcontract flowdown, questions the ability of the prime contractor to flow down provisions to subcontractors that have the effect of committing the Government to undertake affirmative support of each subcontractor (including third country national firms) retained to provide support. *DoD Response:* The provision for flowdown of the clause to all subcontracts where subcontractor personnel are authorized to accompany U.S. Armed Forces outside the United States reflects the intent that resuscitative care, stabilization, hospitalization at level III military treatment facilities, and assistance with patient movement in certain emergencies is authorized for such subcontractor personnel. The Government has no privity of contract with subcontractors. Therefore, all parts of the clause should be flowed down to subcontractors to ensure that subcontractors supporting deployed forces receive appropriate coverage. With regard to other types of support, the contract will specify what support will be provided and to whom. c. Flowdown to Private Security Contractors *Comment:* One respondent expressed concern that flowing down the clause to private security contractors means that a prime contractor can authorize a subcontractor to use deadly force. *DoD Response:* Although the prime contractor flows down clause requirements, use of deadly force is always subject to the authority of the combatant commander, who authorizes the possession of weapons and the rules for their use. 16. Defense Base Act *Comment:* One respondent stated that “self-defense contracts” and private security contracts continue, as a matter of law, to include compliance with the Defense Base Act; and that, with the interim rule's expansion of the functions to be performed by contractor personnel, it becomes unclear that coverage under the Defense Base Act will be available to contractors. *DoD Response:* The DFARS rule does not expand functions to be performed by contractor personnel. In addition, the courts have determined that the Defense Base Act applies to any overseas contract that has a nexus to either a national defense activity or a facility construction or improvement project. DoD's private security contracts fall within Defense Base Act coverage, as they are services to be performed outside the United States and relate to national defense activities. DoD includes the clause at FAR 52.228-3, Workers' Compensation Insurance (Defense Base Act), in all service contracts to be performed entirely or in part outside the United States and in supply contracts that require the performance of employee services overseas. Defense Base Act coverage exists as long as contract performance falls within the scope of the statutory requirements. This DFARS rule does not change or preclude Defense Base Act coverage. If there is concern about the unavailability of Defense Base Act coverage because of the high cost of insurance or unwillingness of insurance providers when high risk is involved, activities such as the Army Corps of Engineers have negotiated arrangements with insurance companies to make insurance available to contractors. Also, the Government will reimburse insurance companies for expenses incurred relating to war hazards, the biggest risk. *Comment:* One respondent expressed concern that, by accepting all risks of performance, contractors would not be able to obtain workers compensation insurance or reimbursement under the Defense Base Act. *DoD Response:* The statement regarding risk at 252.225-7040(b)(2) was intended to reinforce the general rule that the contractor is responsible for fulfilling its contractual obligations, even in dangerous and austere conditions. It was not intended to conflict with any other provisions of the contract. For clarity, the introductory phrase, “Except as provided elsewhere in the contract,” has been added to the statement as requested by the respondent. 17. Basis and Need for DFARS Rule a. DoD Instruction 3020.41, Contractor Personnel Authorized To Accompany the U.S. Armed Forces *Comment:* One respondent considered that the interim DFARS rule was written in response to DoD Instruction 3020.41, but that the legal and policy predicate of the instruction is unclear. The instruction follows by only 5 months the predecessor DFARS rule. In turn, the earlier changes had themselves been predicated on DoD Instruction 3020.37, Continuation of Essential DoD Contractor Services During Crises. *DoD Response:* The predecessor DFARS rule was published at 70 FR 23790 on May 5, 2005, and was not predicated on DoD Instruction 3020.37. That rule was developed by DoD specialists familiar with the problems occurring with contracts requiring contractor personnel to accompany U.S. Armed Forces deployed overseas. When the DFARS rule was published on May 5, 2005, DoD Instruction 3020.41 was still in draft form. The drafters of the DFARS rule worked closely with the drafters of DoD Instruction 3020.41 to achieve maximum consistency. When DoD Instruction 3020.41 was published on October 3, 2005, it contained changes that had not been anticipated when the DFARS rule was published. Therefore, DoD issued an interim DFARS rule on June 16, 2006, to incorporate the additional changes included in DoD Instruction 3020.41. b. DoD Directive 2311.01E, DoD Law of War Program *Comment:* One respondent stated that the DFARS rule is not consistent with DoD Directive 2311.01E, particularly sections 5.7.2 and 5.7.4. *DoD Response:* DoD has reviewed these sections of the DoD Instruction and has found no inconsistencies. Section 5.7.2 requires heads of DoD components to institute and implement effective programs to prevent violations of the law of war. Section 5.7.4 requires that contract work statements for contractors comply with DoD Directive 2311.01E and DoD Instruction 3020.41 and require contractors to institute and implement effective programs to prevent violations of the law of war by their employees and subcontractors, including law of war training. DoD is presently preparing training for contractors law of war and is drafting DFARS changes to incorporate contractor training requirements (73 FR 1853, January 10, 2008). c. Need for Separate DFARS Rule With Unique Requirements *Comment:* One respondent stated that there should be a single coherent regulation generated that does not devolve combat activities on civilian contractors. In addition, the respondent stated that the fact that the DFARS changes have been made effective in advance of the proposed FAR changes suggest that the deviation requirements of FAR Subpart 1.4 may have been violated. Another respondent stated that there are inconsistencies between the requirement applicable to contractors accompanying the U.S. Armed Forces and those for all other contractors. *DoD Response:* Neither the FAR nor the DFARS rule devolves combat activities on civilian contractors. Both rules are needed because of essential differences between contractors that are authorized to accompany the U.S. Armed Forces deployed outside the United States and all other contractors that are performing in a designated operational area or supporting a diplomatic or consular mission, whether under contract with DoD or a civilian agency. In addition, the requirements of FAR Subpart 1.4 have not been violated. In accordance with FAR 1.401(f), deviation requirements do not apply to policies or procedures that have been incorporated into agency acquisition regulations in accordance with 1.301(a). d. Need for Interim DFARS Rule *Comment:* Several respondents questioned the need for an interim rule, providing no opportunity for public comment prior to putting these changes into effect. One respondent added that, to the extent that any of the protocols specified in the interim rule have become essential, there is considerable evidence that those protocols have been in use for two or more years. *DoD Response:* DoD considered it imperative to amend the DFARS rule to correct the inconsistencies with DoD Instruction 3020.41. Also, the fact that personnel are finding it necessary to take action without regulatory coverage provides more, not less, reason to issue the regulations necessary to provide structure and boundaries for such activities. 18. Information Collection Requirements *Comment:* One respondent stated that the rule would impose substantial information collection requirements on the contracting communities, suggesting that transmogrification of battlefield contractors into combatants portends huge increases in their information collection and management responsibilities that are anything but usual and customary and are well outside the normal course of business. *DoD Response:* DoD does not agree that the rule provides for transmogrification of battlefield contractors into combatants or requires huge increases in their information collection and management responsibilities. Although the rule requires contractors to establish and maintain a current list of contractor personnel in the area of performance with a designated Government official, such information should be routinely maintained by the contractor as part of the contractor's personnel data base. 19. Additional Changes The final rule also includes the following changes: ○ Addition of Subpart 225.3 to supplement the final FAR rule published at 73 FR 10943 on February 28, 2008. The DFARS subpart:
(1)Clarifies the meaning of the term “performance in a designated operational area”;
(2)specifies that, for DoD, FAR 25.301 also applies to personal services contracts, since DoD does not have the same authorities as the civilian agencies with regard to personal services contractors;
(3)provides that the clause at FAR 52.225-19 will not be used in solicitations and contracts when all contractor personnel performing outside the United States will be covered by the clause at 252.225-7040; and
(4)specifies the automated system for use in maintaining DoD contractor personnel data under the clause at FAR 52.225-19. ○ At 225.7402-4(a), clarification that the contract clause applies to solicitations and contracts that “authorize” contractor personnel to accompany U.S. Armed Forces deployed outside the United States. This is consistent with the terminology used in 225.7402-1, Scope. ○ Revision of 252.225-7040(e)(2)(iv) to reflect the provisions of Section 552 of the National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364), which amended 10 U.S.C. 802(a)(10) to make the Uniform Code of Military Justice applicable to persons accompanying the U.S. Armed Forces in a contingency operation. ○ Amendment of 252.225-7040(h)(1) to clarify that the contracting officer may direct the contractor to remove and replace contractor personnel who fail to comply with or violate applicable contract requirements. This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993. B. Regulatory Flexibility Act DoD has prepared a final regulatory flexibility analysis consistent with 5 U.S.C. 604. A copy of the analysis may be obtained from the point of contact specified herein. The analysis is summarized as follows: This rule amends the DFARS to implement DoD Instruction 3020.41, Contractor Personnel Authorized to Accompany the U.S. Armed Forces. The objective is to provide consistent policy and a standard clause applicable to DoD contracts that authorize contractor personnel to accompany U.S. Armed Forced deployed outside the United States. Application of the rule is limited to entities with DoD contracts that authorize contractor personnel to accompany U.S. Armed forces deployed outside the United States in contingency operations, humanitarian or peacekeeping operations, or other military operations or military exercises when designated by the combatant commander. The rule requires contractors to maintain data on its personnel that are authorized to accompany U.S. Armed Forces deployed outside the United States, and designates the Synchronized Predeployment and Operational Tracker
(SPOT)web-based system for entering of the data. No special skills are required for use of the SPOT system, and the information that must be entered into the system is of the type that a contractor would normally maintain with regard to its personnel. C. Paperwork Reduction Act The Paperwork Reduction Act does not apply, because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, *et seq.* List of Subjects in 48 CFR Parts 212, 225, and 252 Government procurement. Michele P. Peterson, Editor, Defense Acquisition Regulations System. Accordingly, the interim rule amending 48 CFR parts 212, 225, and 252, which was published at 71 FR 34826 on June 16, 2006, is adopted as a final rule with the following changes: 1. The authority citation for 48 CFR parts 212, 225, and 252 continues to read as follows: Authority: 41 U.S.C. 421 and 48 CFR Chapter 1. PART 225—FOREIGN ACQUISITION 2. Subpart 225.3 is added to read as follows: Subpart 225.3—Contracts Performed Outside the United States Sec. 225.301 Contractor personnel in a designated operational area or supporting a diplomatic or consular mission outside the United States. 225.301-1 Scope. 225.301-4 Contract clause. Subpart 225.3—Contracts Performed Outside the United States 225.301 Contractor personnel in a designated operational area or supporting a diplomatic or consular mission outside the United States. 225.301-1 Scope.
(a)*Performance in a designated operational area* , as used in this section, means performance of a service or construction, as required by the contract. For supply contracts, the term includes services associated with the acquisition of supplies (e.g., installation or maintenance), but does not include production of the supplies or associated overhead functions.
(c)For DoD, this section also applies to all personal services contracts. 225.301-4 Contract clause.
(1)Use the clause at FAR 52.225-19, Contractor Personnel in a Designated Operational Area or Supporting a Diplomatic or Consular Mission Outside the United States, in accordance with the prescription at FAR 25.301-4, except that—
(i)The clause shall also be used in personal services contracts with individuals; and
(ii)The clause shall not be used when all contractor personnel performing outside the United States will be covered by the clause at 252.225-7040.
(2)When using the clause at FAR 52.225-19, the contracting officer shall inform the contractor that the Synchronized Predeployment and Operational Tracker
(SPOT)is the appropriate automated system to use for the list of contractor personnel required by paragraph
(g)of the clause. Information on the SPOT system is available at *http://www.dod.mil/bta/products/spot.html* . 3. Sections 225.7402 through 225.7402-4 are revised to read as follows: 225.7402 Contractor personnel authorized to accompany U.S. Armed Forces deployed outside the United States. For additional information on contractor personnel authorized to accompany the U.S. Armed Forces, see PGI 225.7402. 225.7402-1 Scope.
(a)This section applies to contracts that involve contractor personnel authorized to accompany U.S. Armed Forces deployed outside the United States in—
(1)Contingency operations;
(2)Humanitarian or peacekeeping operations; or
(3)Other military operations or military exercises, when designated by the combatant commander.
(b)Any of the types of operations listed in paragraph
(a)of this subsection may include stability operations such as—
(1)Establishment or maintenance of a safe and secure environment; or
(2)Provision of emergency infrastructure reconstruction, humanitarian relief, or essential governmental services (until feasible to transition to local government). 225.7402-2 Definition. See PGI 225.7402-2 for additional information on designated operational areas. 225.7402-3 Government support.
(a)Government support that may be authorized or required for contractor personnel performing in a designated operational area may include, but is not limited to, the types of support listed in PGI 225.7402-3(a).
(b)The agency shall provide logistical or security support only when the appropriate agency official, in accordance with agency guidance, determines in coordination with the combatant commander that—
(1)Such Government support is available and is needed to ensure continuation of essential contractor services; and
(2)The contractor cannot obtain adequate support from other sources at a reasonable cost.
(c)The contracting officer shall specify in the solicitation and contract—
(1)Valid terms, approved by the combatant commander, that specify the responsible party, if a party other than the combatant commander is responsible for providing protection to the contractor personnel performing in the designated operational area as specified in 225.7402-1;
(2)If medical or dental care is authorized beyond the standard specified in paragraph (c)(2)(i) of the clause at 252.225-7040, Contractor Personnel Authorized to Accompany U.S. Armed Forces Deployed Outside the United States; and
(3)Any other Government support to be provided, and whether this support will be provided on a reimbursable basis, citing the authority for the reimbursement.
(d)The contracting officer shall provide direction to the contractor, if the contractor is required to reimburse the Government for medical treatment or transportation of contractor personnel to a selected civilian facility in accordance with paragraph (c)(2)(ii) of the clause at 252.225-7040.
(e)Contractor personnel must have a letter of authorization
(LOA)issued by a contracting officer in order to process through a deployment center or to travel to, from, or within the designated operational area. The LOA also will identify any additional authorizations, privileges, or Government support that the contractor personnel are entitled to under the contract. For a sample LOA, see PGI 225.7402-3(e). 225.7402-4 Contract clauses.
(a)Use the clause at 252.225-7040, Contractor Personnel Authorized to Accompany U.S. Armed Forces Deployed Outside the United States, instead of the clause at FAR 52.225-19, Contractor Personnel in a Designated Operational Area or Supporting a Diplomatic or Consular Mission Outside the United States, in solicitations and contracts that authorize contractor personnel to accompany U.S. Armed Forces deployed outside the United States in—
(1)Contingency operations;
(2)Humanitarian or peacekeeping operations; or
(3)Other military operations or military exercises, when designated by the combatant commander.
(b)For additional guidance on clauses to consider when using the clause at 252.225-7040, see PGI 225.7402-4(b). PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 4. Section 252.225-7040 is revised to read as follows: 252.225-7040 Contractor Personnel Authorized to Accompany U.S. Armed Forces Deployed Outside the United States. As prescribed in 225.7402-4(a), use the following clause: CONTRACTOR PERSONNEL AUTHORIZED TO ACCOMPANY U.S. ARMED FORCES DEPLOYED OUTSIDE THE UNITED STATES (MAR 2008)
(a)*Definitions.* As used in this clause— *Combatant Commander* means the commander of a unified or specified combatant command established in accordance with 10 U.S.C. 161. *Designated operational area* means a geographic area designated by the combatant commander or subordinate joint force commander for the conduct or support of specified military operations. *Subordinate joint force commander* means a sub-unified commander or joint task force commander.
(b)*General* .
(1)This clause applies when Contractor personnel are authorized to accompany U.S. Armed Forces deployed outside the United States in—
(i)Contingency operations;
(ii)Humanitarian or peacekeeping operations; or
(iii)Other military operations or military exercises, when designated by the Combatant Commander.
(2)Contract performance in support of U.S. Armed Forces deployed outside the United States may require work in dangerous or austere conditions. Except as otherwise provided in the contract, the Contractor accepts the risks associated with required contract performance in such operations.
(3)Contractor personnel are civilians accompanying the U.S. Armed Forces.
(i)Except as provided in paragraph (b)(3)(ii) of this clause, Contractor personnel are only authorized to use deadly force in self-defense.
(ii)Contractor personnel performing security functions are also authorized to use deadly force when such force reasonably appears necessary to execute their security mission to protect assets/persons, consistent with the terms and conditions contained in their contract or with their job description and terms of employment.
(iii)Unless immune from host nation jurisdiction by virtue of an international agreement or international law, inappropriate use of force by contractor personnel authorized to accompany the U.S. Armed Forces can subject such personnel to United States or host nation prosecution and civil liability (see paragraphs
(d)and (j)(3) of this clause).
(4)Service performed by Contractor personnel subject to this clause is not active duty or service under 38 U.S.C. 106 note.
(c)*Support.* (1)(i) The Combatant Commander will develop a security plan for protection of Contractor personnel in locations where there is not sufficient or legitimate civil authority, when the Combatant Commander decides it is in the interests of the Government to provide security because—
(A)The Contractor cannot obtain effective security services;
(B)Effective security services are unavailable at a reasonable cost; or
(C)Threat conditions necessitate security through military means.
(ii)The Contracting Officer shall include in the contract the level of protection to be provided to Contractor personnel.
(iii)In appropriate cases, the Combatant Commander may provide security through military means, commensurate with the level of security provided DoD civilians. (2)(i) Generally, all Contractor personnel authorized to accompany the U.S. Armed Forces in the designated operational area are authorized to receive resuscitative care, stabilization, hospitalization at level III military treatment facilities, and assistance with patient movement in emergencies where loss of life, limb, or eyesight could occur. Hospitalization will be limited to stabilization and short-term medical treatment with an emphasis on return to duty or placement in the patient movement system.
(ii)When the Government provides medical treatment or transportation of Contractor personnel to a selected civilian facility, the Contractor shall ensure that the Government is reimbursed for any costs associated with such treatment or transportation.
(iii)Medical or dental care beyond this standard is not authorized unless specified elsewhere in this contract.
(3)Unless specified elsewhere in this contract, the Contractor is responsible for all other support required for its personnel engaged in the designated operational area under this contract.
(4)Contractor personnel must have a letter of authorization issued by the Contracting Officer in order to process through a deployment center or to travel to, from, or within the designated operational area. The letter of authorization also will identify any additional authorizations, privileges, or Government support that Contractor personnel are entitled to under this contract.
(d)*Compliance with laws and regulations.* The Contractor shall comply with, and shall ensure that its personnel authorized to accompany U.S. Armed Forces deployed outside the United States as specified in paragraph (b)(1) of this clause are familiar with and comply with, all applicable—
(1)United States, host country, and third country national laws;
(2)Treaties and international agreements;
(3)United States regulations, directives, instructions, policies, and procedures; and
(4)Orders, directives, and instructions issued by the Combatant Commander, including those relating to force protection, security, health, safety, or relations and interaction with local nationals. However, only the Contracting Officer is authorized to modify the terms and conditions of the contract.
(e)*Pre-deployment requirements.*
(1)The Contractor shall ensure that the following requirements are met prior to deploying personnel in support of U.S. Armed Forces. Specific requirements for each category may be specified in the statement of work or elsewhere in the contract.
(i)All required security and background checks are complete and acceptable.
(ii)All deploying personnel meet the minimum medical screening requirements and have received all required immunizations as specified in the contract. The Government will provide, at no cost to the Contractor, any theater-specific immunizations and/or medications not available to the general public.
(iii)Deploying personnel have all necessary passports, visas, and other documents required to enter and exit a designated operational area and have a Geneva Conventions identification card, or other appropriate DoD identity credential, from the deployment center. Any Common Access Card issued to deploying personnel shall contain the access permissions allowed by the letter of authorization issued in accordance with paragraph (c)(4) of this clause.
(iv)Special area, country, and theater clearance is obtained for personnel. Clearance requirements are in DoD Directive 4500.54, Official Temporary Duty Abroad, and DoD 4500.54-G, DoD Foreign Clearance Guide. Contractor personnel are considered non-DoD personnel traveling under DoD sponsorship.
(v)All personnel have received personal security training. At a minimum, the training shall—
(A)Cover safety and security issues facing employees overseas;
(B)Identify safety and security contingency planning activities; and
(C)Identify ways to utilize safety and security personnel and other resources appropriately.
(vi)All personnel have received isolated personnel training, if specified in the contract, in accordance with DoD Instruction 1300.23, Isolated Personnel Training for DoD Civilian and Contractors.
(2)The Contractor shall notify all personnel who are not a host country national, or who are not ordinarily resident in the host country, that—
(i)Such employees, and dependents residing with such employees, who engage in conduct outside the United States that would constitute an offense punishable by imprisonment for more than one year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States, may potentially be subject to the criminal jurisdiction of the United States in accordance with the Military Extraterritorial Jurisdiction Act of 2000 (18 U.S.C. 3621, *et seq.* );
(ii)Pursuant to the War Crimes Act (18 U.S.C. 2441), Federal criminal jurisdiction also extends to conduct that is determined to constitute a war crime when committed by a civilian national of the United States;
(iii)Other laws may provide for prosecution of U.S. nationals who commit offenses on the premises of U.S. diplomatic, consular, military or other U.S. Government missions outside the United States (18 U.S.C. 7(9)); and
(iv)In time of declared war or a contingency operation, Contractor personnel authorized to accompany U.S. Armed Forces in the field are subject to the jurisdiction of the Uniform Code of Military Justice under 10 U.S.C. 802(a)(10).
(f)*Processing and departure points.* Deployed Contractor personnel shall—
(1)Process through the deployment center designated in the contract, or as otherwise directed by the Contracting Officer, prior to deploying. The deployment center will conduct deployment processing to ensure visibility and accountability of Contractor personnel and to ensure that all deployment requirements are met, including the requirements specified in paragraph (e)(1) of this clause;
(2)Use the point of departure and transportation mode directed by the Contracting Officer; and
(3)Process through a Joint Reception Center
(JRC)upon arrival at the deployed location. The JRC will validate personnel accountability, ensure that specific designated operational area entrance requirements are met, and brief Contractor personnel on theater-specific policies and procedures.
(g)*Personnel data.*
(1)The Contractor shall enter before deployment and maintain data for all Contractor personnel that are authorized to accompany U.S. Armed Forces deployed outside the United States as specified in paragraph (b)(1) of this clause. The Contractor shall use the Synchronized Predeployment and Operational Tracker
(SPOT)web-based system, at *http://www.dod.mil/bta/products/spot.html* , to enter and maintain the data.
(2)The Contractor shall ensure that all employees in the database have a current DD Form 93, Record of Emergency Data Card, on file with both the Contractor and the designated Government official. The Contracting Officer will inform the Contractor of the Government official designated to receive this data card.
(h)*Contractor personnel.*
(1)The Contracting Officer may direct the Contractor, at its own expense, to remove and replace any Contractor personnel who jeopardize or interfere with mission accomplishment or who fail to comply with or violate applicable requirements of this contract. Such action may be taken at the Government's discretion without prejudice to its rights under any other provision of this contract, including the Termination for Default clause.
(2)The Contractor shall have a plan on file showing how the Contractor would replace employees who are unavailable for deployment or who need to be replaced during deployment. The Contractor shall keep this plan current and shall provide a copy to the Contracting Officer upon request. The plan shall—
(i)Identify all personnel who are subject to military mobilization;
(ii)Detail how the position would be filled if the individual were mobilized; and
(iii)Identify all personnel who occupy a position that the Contracting Officer has designated as mission essential.
(i)*Military clothing and protective equipment.*
(1)Contractor personnel are prohibited from wearing military clothing unless specifically authorized in writing by the Combatant Commander. If authorized to wear military clothing, Contractor personnel must—
(i)Wear distinctive patches, arm bands, nametags, or headgear, in order to be distinguishable from military personnel, consistent with force protection measures; and
(ii)Carry the written authorization with them at all times.
(2)Contractor personnel may wear military-unique organizational clothing and individual equipment
(OCIE)required for safety and security, such as ballistic, nuclear, biological, or chemical protective equipment.
(3)The deployment center, or the Combatant Commander, shall issue OCIE and shall provide training, if necessary, to ensure the safety and security of Contractor personnel.
(4)The Contractor shall ensure that all issued OCIE is returned to the point of issue, unless otherwise directed by the Contracting Officer.
(j)*Weapons.*
(1)If the Contractor requests that its personnel performing in the designated operational area be authorized to carry weapons, the request shall be made through the Contracting Officer to the Combatant Commander, in accordance with DoD Instruction 3020.41, paragraph 6.3.4.1 or, if the contract is for security services, paragraph 6.3.5.3. The Combatant Commander will determine whether to authorize in-theater Contractor personnel to carry weapons and what weapons and ammunition will be allowed.
(2)If the Contracting Officer, subject to the approval of the Combatant Commander, authorizes the carrying of weapons—
(i)The Contracting Officer may authorize the Contractor to issue Contractor-owned weapons and ammunition to specified employees; or
(ii)The * [Contracting Officer to specify the appropriate individual, e.g., Contracting Officer's Representative, Regional Security Officer] * may issue Government-furnished weapons and ammunition to the Contractor for issuance to specified Contractor employees.
(3)The Contractor shall ensure that its personnel who are authorized to carry weapons—
(i)Are adequately trained to carry and use them—
(A)Safely;
(B)With full understanding of, and adherence to, the rules of the use of force issued by the Combatant Commander; and
(C)In compliance with applicable agency policies, agreements, rules, regulations, and other applicable law;
(ii)Are not barred from possession of a firearm by 18 U.S.C. 922; and
(iii)Adhere to all guidance and orders issued by the Combatant Commander regarding possession, use, safety, and accountability of weapons and ammunition.
(4)Whether or not weapons are Government-furnished, all liability for the use of any weapon by Contractor personnel rests solely with the Contractor and the Contractor employee using such weapon.
(5)Upon redeployment or revocation by the Combatant Commander of the Contractor's authorization to issue firearms, the Contractor shall ensure that all Government-issued weapons and unexpended ammunition are returned as directed by the Contracting Officer.
(k)*Vehicle or equipment licenses.* Contractor personnel shall possess the required licenses to operate all vehicles or equipment necessary to perform the contract in the designated operational area.
(l)*Purchase of scarce goods and services.* If the Combatant Commander has established an organization for the designated operational area whose function is to determine that certain items are scarce goods or services, the Contractor shall coordinate with that organization local purchases of goods and services designated as scarce, in accordance with instructions provided by the Contracting Officer.
(m)*Evacuation.*
(1)If the Combatant Commander orders a mandatory evacuation of some or all personnel, the Government will provide assistance, to the extent available, to United States and third country national Contractor personnel.
(2)In the event of a non-mandatory evacuation order, unless authorized in writing by the Contracting Officer, the Contractor shall maintain personnel on location sufficient to meet obligations under this contract.
(n)*Next of kin notification and personnel recovery.*
(1)The Contractor shall be responsible for notification of the employee-designated next of kin in the event an employee dies, requires evacuation due to an injury, or is isolated, missing, detained, captured, or abducted.
(2)In the case of isolated, missing, detained, captured, or abducted Contractor personnel, the Government will assist in personnel recovery actions in accordance with DoD Directive 2310.2, Personnel Recovery.
(o)*Mortuary affairs.* Mortuary affairs for Contractor personnel who die while accompanying the U.S. Armed Forces will be handled in accordance with DoD Directive 1300.22, Mortuary Affairs Policy.
(p)*Changes.* In addition to the changes otherwise authorized by the Changes clause of this contract, the Contracting Officer may, at any time, by written order identified as a change order, make changes in the place of performance or Government-furnished facilities, equipment, material, services, or site. Any change order issued in accordance with this paragraph
(p)shall be subject to the provisions of the Changes clause of this contract.
(q)*Subcontracts.* The Contractor shall incorporate the substance of this clause, including this paragraph (q), in all subcontracts when subcontractor personnel are authorized to accompany U.S. Armed Forces deployed outside the United States in—
(1)Contingency operations;
(2)Humanitarian or peacekeeping operations; or
(3)Other military operations or military exercises, when designated by the Combatant Commander. (End of clause). [FR Doc. E8-6582 Filed 3-28-08; 8:45 am] BILLING CODE 5001-08-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 071106671-8010-02] RIN 0648-XG73 Fisheries of the Exclusive Economic Zone Off Alaska; Pollock in Statistical Area 620 in the Gulf of Alaska AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; closure. SUMMARY: NMFS is prohibiting directed fishing for pollock in Statistical Area 620 in the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the B season allowance of the 2008 total allowable catch
(TAC)of pollock for Statistical Area 620 in the GOA. DATES: Effective 1200 hrs, Alaska local time (A.l.t.), March 26, 2008, through 1200 hrs, A.l.t., August 25, 2008. FOR FURTHER INFORMATION CONTACT: Jennifer Hogan, 907-586-7228. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska
(FMP)prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. The B season allowance of the 2008 TAC of pollock in Statistical Area 620 of the GOA is 7,576 metric tons
(mt)as established by the 2008 and 2009 harvest specifications for groundfish of the GOA (73 FR 10562, February 27, 2008). In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the A season allowance of the 2008 TAC of pollock in Statistical Area 620 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 7,566 mt, and is setting aside the remaining 10 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 620 of the GOA. After the effective date of this closure the maximum retainable amounts at § 679.20(e) and
(f)apply at any time during a trip. Classification This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of pollock in Statistical Area 620 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 25, 2008. The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment. This action is required by § 679.20 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: March 25, 2008. Alan D. Risenhoover Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 08-1082 Filed 3-26-08; 11:15 am]
Connectionstraces to 45
Traces to 45 documents
CFR
- Applicability.§ 71.1
- Customs revenue function regulations issued under the authority of the Departments of the Treasury and Homeland Security.§ 0.1
- Animal drugs.§ 25.33
- Zilpaterol.§ 558.665
- Confidentiality of data and information in a new animal drug application file.§ 514.11
- Delegation of rulemaking authority.§ 1.05-1
- Gulf Intracoastal Waterway.§ 117.287
- New Jersey Intracoastal Waterway.§ 117.733
- Temporary change to a drawbridge operating schedule.§ 117.35
- When the drawbridge must open.§ 117.5
register
U.S. Code
- Federal Aviation Administration§ 106
- Barriers to and other distortions of trade§ 2112
- Marking of imported articles and containers§ 1304
- Definitions§ 601
- Initial regulatory flexibility analysis§ 603
- Public information collection activities; submission to Director; approval and delegation§ 3507
- EXPEDITED PROCESSING OF REQUESTS FOR JAPANESE IMPERIAL GOVERNMENT RECORDS.§ 804
- New animal drugs§ 360b
- Rate of tax§ 5701
- Shipments to the United States§ 7652
- Rule making§ 553
- Rules and regulations§ 7805
- Authority and functions of Director§ 3504
- Unlawful acts§ 2342
- Definitions§ 9301
- Avoidance of duplicative or unnecessary analyses§ 605
- Establishment, functions, and activities§ 272
- Regulations for drawbridges§ 499
- Employment of detective agencies; restrictions§ 3108
- Certain service deemed to be active service§ 106
- Records maintained on individuals§ 552a
- Art. 2. Persons subject to this chapter§ 802
- Final regulatory flexibility analysis§ 604
- Purposes§ 3501
- Combatant commands: establishment§ 161
- Imprisonment of a convicted person§ 3621
- War crimes§ 2441
- Special maritime and territorial jurisdiction of the United States defined§ 7
- Unlawful acts§ 922
- Findings, purposes and policy§ 1801
33 references not yet in our index
- 14 CFR 71
- Pub. L. 107-43
- 115 Stat. 243
- 19 CFR 10
- 19 CFR 163
- 19 CFR 178
- 21 CFR 522
- 21 CFR 522.1696
- 5 USC 801-808
- 21 CFR 558
- 21 CFR 20
- 27 CFR 41
- 27 CFR 275
- 33 CFR 117
- 5 USC 601-612
- Pub. L. 104-121
- 44 USC 3501-3520
- 2 USC 1531-1538
- 42 USC 4321-4370f
- 47 CFR 15
- 47 CFR 15.212
- 5 CFR 1320.13
- 47 CFR 15.124
- 47 CFR 73.3526(e)(11)(iv)
- 5 CFR 1320
- Pub. L. 104-13
- 976 F.2d 1328
- Pub. L. 85-804
- 487 U.S. 500
- Pub. L. 109-364
- 41 USC 421
- 50 CFR 679
- 50 CFR 600
Citation graph
cites case law
Unknown
Direct final rule, request for comments
F. App'x976 F.2d 1328
SCOTUS487 U.S. 500
Cite14 CFR 71
Cites 78 · showing 12Cited by 0 across 0 sources