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Code · REGISTER · 2008-04-01 · DEPARTMENT OF HEALTH AND HUMAN SERVICES · Notices

Notices. Notice of meetings

152,131 words·~692 min read·/register/2008/04/01/08-1087

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BILLING CODE 4160-01-S DEPARTMENT OF HEALTH AND HUMAN SERVICES Indian Health Service Tribal Management Grant Program *Announcement Type:* New and Competing Continuation Discretionary Funding Cycle for Fiscal Year 2009. *Funding Announcement Number:* HHS-2009-IHS-TMD-0001. *Catalog of Federal Domestic Assistance Numbers(s):* 93.228. *Key Dates:* Training: Application Requirements Session: April 30-May 1, May 14-15, and June 11-12, 2008. Grant Writing Session: June 23-27, 2008.
Application Deadline Date: August 1, 2008. Receipt Date for Final Tribal Resolution: October 3, 2008. Review Date: October 6-10, 2008. Application Notification Date: November 12, 2008. Earliest Anticipated Start Date: January 1, 2009. I. Funding Opportunity Description The Indian Health Service
(IHS)announces competitive grant applications for the Tribal Management Grant
(TMG)Program. This program is authorized under Section 103(b)(2) and Section 103(e) of the Indian Self-Determination and Education Assistance Act, Public Law 93-638, as amended. This program is described at 93.228 in the Catalog of Federal Domestic Assistance (CFDA). The TMG Program is a national competitive discretionary grant program pursuant to 45 CFR part 75 and 45 CFR part 92 established to assist Federally-recognized Tribes and Tribally- sanctioned Tribal organizations in assuming all or part of existing IHS programs, services, functions, and activities
(PSFA)through a Title I contract and to assist established Title I contractors and Title V compactors to further develop and improve their management capability. In addition, TMGs are available to Tribes/Tribal organizations under the authority of Public Law (Pub. L.) 93-638 section 103(e) for
(1)obtaining technical assistance from providers designated by the Tribe/Tribal organization (including Tribes/Tribal organizations that operate mature contracts) for the purposes of program planning and evaluation, including the development of any management systems necessary for contract management and the development of cost allocation plans for indirect cost rates; and
(2)planning, designing and evaluating Federal health programs serving the Tribe/Tribal organization, including Federal administrative functions. *Funding Priorities:* The IHS has established the following funding priorities for TMG awards. • *Priority I* —Any Indian Tribe that has received Federal recognition (restored, un-terminated, funded, or unfunded) within the past five years, specifically received during or after March 2003. • *Priority II* —All other eligible Federally-recognized Indian Tribes or Tribally sanctioned Tribal organizations submitting a competing continuation application or a new application for the sole purpose of addressing audit material weaknesses. The audit material weaknesses are identified in Attachment A (Summary of Findings and Recommendations) and other attachments, if any, of the transmittal letter received from the Office of the Inspector General (OIG), National External Audit Review Center (NEARC), Department of Health and Human Services (HHS). Please identify the weakness to be addressed by underlining the item on Attachment A. Please refer to Section 111.3, “Other Requirements,” for more information regarding Priority II participation. Federally-recognized Indian Tribes or Tribally-sanctioned Tribal organizations not subject to Single Audit Act requirements must provide a financial statement identifying the Federal dollars received in the footnotes. The financial statement must also identify specific weaknesses/recommendations that will be addressed in the TMG proposal and are related to 25 Code of Federal Regulations
(CFR)Part 900, “Indian Self-Determination and Education Assistance Act Amendments,” Subpart F—“Standards for Tribes and Tribal Organizations.” Priority II participation is only applicable to the Health Management Structure project type. For more information see Section H ELIGIBLE PROJECT TYPES, MAXIMUM FUNDING AND PROJECT PERIODS. • *Priority III* —All other eligible Federally-recognized Indian Tribes or Tribal organizations submitting a competing continuation application or a new application. The funding of approved Priority I applicants will occur before the funding of approved Priority II applicants. Priority H applicants will be funded before approved Priority if applicants. Funds will be distributed until depleted. II. Award Information *Type of Awards:* Grant. *Estimated Funds Available:* Subject to the availability of funds, the estimated amount available is $2,529,000 in fiscal year
(FY)2009. There will be only one funding cycle in FY 2009. Awards under this announcement are subject to the availability of funds. *Anticipated Number of Awards:* An estimated 20-25 awards will be made under the program. *Project Periods:* Varies from 12 months to 36 months. Please refer to “ELIGIBLE PROJECT TYPES, MAXIMUM FUNDING AND PROJECT PERIODS” under this section for more detailed information. *Estimated Award Amount:* $50,000/year-$100,000/year. Please refer to “ELIGIBLE PROJECT TYPES, MAXIMUM FUNDING AND PROJECT PERIODS” below for more detailed information. Eligible Project Types, Maximum Funding and Project Periods Applications may only be submitted for one project type. Applicants must state the project type selected. The TMG Program consists of four project types:
(1)Feasibility study;
(2)planning;
(3)evaluation study; and
(4)health management structure. Applications that address more than one project type will be considered ineligible and will be returned to the applicant. The maximum funding levels noted include both direct and indirect costs. Applicant budgets may not exceed the maximum funding level or project period identified for a project type. Applicants whose budget or project period exceed the maximum funding level or project period will be considered ineligible and will not be reviewed. Please refer to Section IV.6. “Funding Restrictions” for further information regarding ineligible activities. 1. *Feasibility Study (Maximum funding/project period:* $70,000/12 months) A study of a specific IHS program or segment of a program to determine if Tribal management of the program is possible. The study shall present the planned approach, training and resources required to assume Tribal management of the program. The study must include the following four components: • Health needs and health care services assessments that identify existing health care services and delivery system, program divisibility issues, health status indicators, unmet needs, volume projections and demand analysis. • Management analysis of existing management structures, proposed management structures, implementation plans and requirements, and personnel staffing requirements and recruitment barriers. • Financial analysis of historical trends data, financial projections and new resource requirements for program management costs and analysis of potential revenues from Federal/non-Federal sources. • Decision statement/report that incorporates findings, conclusions and recommendations; the presentation of the study and recommendations to the governing body for Tribal determination regarding whether Tribal assumption of program(s) is desirable or warranted. 2. *Planning (Maximum funding/project period:* $50,000/12 months) A collection of data to establish goals and performance measures for the operation of current health programs or anticipated PSFAs under a Title I contract. Planning will specify the design of health programs and the management systems (including appropriate policies and procedures) to accomplish the health priorities of the Tribe/Tribal organization. For example, planning could include the development of a Tribal Specific Health Plan or a Strategic Health Plan, etc. Please note: The Public Health Service urges applicants submitting strategic health plans to address specific objectives of Healthy People 2010. Interested applicants may purchase a copy of Healthy People 2010 (Summary Report in print; Stock No. 017-001-00547-9) or CD-ROM (Stock No. 107-001-00549-5) through the Superintendent of Documents, Government Printing Office, P.O. Box 371954, Pittsburgh, Pennsylvania, 15250-7945, or
(202)512-1800. This information is available in electronic form at the following Web site: * http:// www.health.gov/healthypeople/publications * . 3. *Evaluation Study (Maximum funding/project period:* $50,000/12 months) A systematic collection, analysis, and interpretation of data for the purpose of determining the value of a program. The extent of the evaluation study could relate to the goals and objectives, policies and procedures, or programs regarding targeted groups. The evaluation study could also be used to determine the effectiveness and efficiency of a Tribal program operation (i.e. direct services, financial management, personnel, data collection and analysis, third-party billing, etc.) as well as determine the appropriateness of new components to a Tribal program operation that will assist Tribal efforts to improve the health care delivery systems. 4. *Health Management Structure (Average funding/project period:* $100,000/12 months; maximum funding/project period: $300,000/36 months) The first year maximum is limited to $150,000 for multi-year projects. Health Management Structure allows for implementation of systems to manage or organize PSFAs. Management structures include health department organizations, health boards, and financial management systems including systems for accounting, personnel, third-party billing, medical records, management information systems, etc. This includes the design, improvements and correction of management systems that address weaknesses identified through quality control measures, internal control reviews and audit report findings under the Office of Management and Budget
(OMB)Circular No. A-133—Revised June 27, 2003, “Audits of States, Local Governments, and Non-Profit Organizations.” OMB Circular A-133, Audits of States, Local Governments and Non-Profit Organizations can be found at the following Web site: *http://www.whitehouse.gov/omb/circulars/a133/a133.htmlT* . The 25 Code of Federal Regulations
(CFR)Part 900, “Indian Self-Determination and Education Assistance Act Amendments,” Subpart F—“Standards for Tribal or Tribal Organization Management Systems” sections (900.35—900.60) is available at the following Web site locations: *http://www.access.gpo.gov/nara/cfr/waisidx_04/25cfr900_04.html, http://www.ihs.gov/NonMedicalPrograms/TMG/Forms.asp* . 4. Please see Section IV “Application and Submission Information” for directions about how to request a copy of the TMG application package. III. Eligibility Information 1. Indian Tribe or Tribal organization as defined by Public Law 93-638, Indian Self Determination and Education Assistance Act, as amended. Eligible applicants include Tribal organizations that operate mature contracts that are designated by a Tribe to provide technical assistance and/or training. Only one application per Tribe or Tribal organization is allowed. This paragraph should be cross-referenced with Section IV. (Application and Submission Information/Subsection 3. Content and Form of Narrative Submission). 2. Cost Sharing or Matching—The TMG Program does not require matching funds or cost sharing. However, in accordance with Public Law 93-638 section 103(c), the TMG funds may be used as matching shares for any other Federal grant programs that develop Tribal capabilities to contract for the administration and operation of health programs. 3. Other Requirements The following documentation is required: *A. Tribal Resolution* —A resolution of the Indian Tribe served by the project must accompany the application submission. The IHS will accept the following as proper documentation: • If an official signed (passed) Tribal resolution encompassing the scope of this grant application is not available for electronic submission with the application on Grants.gov by the deadline, a draft resolution must be submitted as a place holder and as evidence of the intent of the entity. However, the draft resolution must be followed up with the submission of a faxed, fedexed or e-mailed pdf version of the final official signed Tribal resolution. The final signed resolution must be received by the Division of Grants Operations
(DGO)by October 3, 2008. Otherwise, the application will be considered incomplete, ineligible for review, and returned to the applicant without consideration. It is recommended that applicants submitting the signed final resolution should ensure the information was received by the IHS by retaining documentation confirming delivery or receipt (i.e. fax transmittal receipt, FedEx tracking, postal return receipt, e-mail receipt, etc.). • An Indian Tribe that is proposing a project affecting another Indian Tribe must include resolutions from all affected Tribes to be served. • Applications by Tribal organizations will not require a specific Tribal resolution if the current Tribal resolution(s) under which they operate would encompass the proposed grant activities. A copy of that resolution must be provided for review. • Tribal organizations applying for technical assistance and/or training grants must submit documentation that the tribal organization is applying upon the request of the Indian Tribe/Tribes it intends to serve. *B. Documentation for Priority I Participation* —A copy of the **Federal Register** notice or letter from the Bureau of Indian Affairs
(BIA)verifying establishment of Federal Tribal status within the last five years. Date must reflect that Federal recognition was received during or after March 2003. *C. Documentation for Priority II Participation* —A copy of the transmittal letter and Attachment A from the Office of Inspector General, National External Audit Review Center (NEARC), HHS. See “FUNDING PRIORITIES” in Section I for more information. If an applicant is unable to locate a copy of their most recent transmittal letter or needs assistance with audit issues, information or technical assistance may be obtained by contacting the IHS Division of Audit Resolution
(DAR)at
(301)443-7301, or the NEARC help line at
(816)374-6714 ext. 108. The auditor may also have the information/documentation required. Federally-recognized Indian Tribes or Tribally-sanctioned Tribal organizations not subject to Single Audit Act requirements must provide a financial statement identifying the Federal dollars in the footnotes. The financial statement must also identify specific weaknesses/recommendations that will be addressed in the TMG proposal and are related to 25 CFR Part 900, “Indian Self-Determination and Education Assistance Act Amendments,” Subpart F—“Standards for Tribes and Tribal Organizations.” • Documentation of Consortium Participation—If an Indian Tribe submitting an application is a member of a consortium, the Tribe must: —Identify the consortium. —Indicate if the consortium intends to submit a TMG application. —Demonstrate that the Tribe's application does not duplicate or overlap any objectives of the consortium's application. • Identify all of the consortium member Tribes. • Identify if any of the member Tribes intend to submit a TMG application of their own. • Demonstrate that the consortium's application does not duplicate or overlap any objectives of the other consortium members who may be submitting their own TMG application. Please refer to Section IV. Application and Submission Information, particularly Item 6 “Funding Restrictions” and Section V. “Application Review Information” for more information regarding other application submission information and/or requirements. IV. Application and Submission Information 1. The Application package may be found in Grants.gov ( *www.grants.gov* ) or at: *http://www.ihs.gov/NonMedicalPrograms/gogp* . The entire grant application package is available at: *http://www.ihs.gov/NonMedicalPrograms/tmg* . Detailed application instructions for this announcement are downloadable on Grants.gov. 2. IHS Contacts: Programmatic Concerns: Ms. Patricia Spotted Horse, Program Analyst, Office of Tribal Programs, Indian Health Service, 801 Thompson Avenue, Suite 220, Rockville, Maryland 20852,
(301)443-1104 (Telephone),
(301)443-4666 (Fax). E-Mail Address: *Patricia.SpottedHorse@IHS.GOV.* Business Concerns: Mr. Pallop Chareonvootitam, Grants Management Specialist, Division of Grants Operations, Indian Health Service, 801 Thompson Avenue, TMP 360 Rockville, Maryland 20852,
(301)443-5204 (Telephone),
(301)443-9602 (Fax). E-Mail Address: *Pallop.Chareonvootitam@IHS.GOV.* *GRANTS.GOV Contact for HIS:* Information regarding the electronic grants.gov process, issues, and waivers waiving the electronic process may be obtained from the following person: Ms. Michelle G. Bulls, Chief Grants Management Officer, Director, Division of Grants Policy, Indian Health Service, 801 Thompson Avenue, TMP 625, Rockville, Maryland 20852,
(301)443-6528 (Telephone), E-Mail Address: *Michelle.Bulls@IHS.gov.* 3. Content and Form of Narrative Submission: • Abstract (one page) summarizing the project. • Introduction and Need for Assistance. • Project Objective(s), Approach and Results and Benefits. • Project Evaluation. • Organizational Capabilities and Qualifications. • Be typewritten and single spaced. • Use black type not smaller than 12 characters per one inch. • Margins must not be less than one inch. • Have consecutively numbered pages. • Contain a narrative that does not exceed 14 typed pages that includes the other submission requirements below. The 14-page narrative does not include the abstract, the work plan, standard forms, Tribal resolution(s), table of contents, budget, budget justifications, multi-year narratives, multi-year budget, multi-year budget justification, and/or other appendix items. *Public Policy Requirements:* All Federal-wide public policies apply to IHS grants with exception of Lobbying and Discrimination policy. 4. Submission Dates and Times: Applications must be submitted electronically through Grants.gov by 12 midnight Eastern Standard Time
(EST)on Friday, August 1, 2008. If technical challenges arise and the applicant is unable to successfully complete the electronic application process, the applicant must contact Michelle G. Bulls, Division of Grants Policy, fifteen days prior to the application deadline and advise of the difficulties that your organization is experiencing. The grantee must obtain prior approval, in writing (e-mails are acceptable) allowing the paper submission. If submission of a paper application is requested and approved, the manually signed original and two copies of the application must be sent to the appropriate grants contact that is listed in Section IV.2. above. Applications not submitted through Grants.gov, without an approved waiver, will be returned to the applicant without review or consideration. Late applications will not be accepted for processing, will be returned to the applicant, and will not be considered for funding. 5. Intergovernmental Review: Executive Order 12372 requiring intergovernmental review is not applicable to this program. 6. Funding Restrictions: • Pre-award costs are not allowable. • The available funds are inclusive of direct and indirect costs. • Only one grant will be awarded per applicant. • Ineligible Project Activities The TMG may not be used to support recurring operational programs or to replace existing public and private resources. **Note:** The inclusion of the following projects or activities in an application will render the application ineligible and the application will be returned to the applicant: —Planning and negotiating activities associated with the intent of a Tribe to enter the IHS Self-Governance Project. A separate grant program is administered by the IHS for this purpose. Prospective applicants interested in this program should contact Mr. Matt Johnson, Office of Tribal Self-Governance, Indian Health Service, Reyes Building, 801 Thompson Avenue, Suite 240, Rockville, Maryland 20852,
(301)443-7821, and request information concerning the “Tribal Self-Governance Program Planning Cooperative Agreement Announcement” or the “Negotiation Cooperative Agreement Announcement.” —Projects related to water, sanitation, and waste management. —Projects that include direct patient care and/or equipment to provide those medical services to be used to establish or augment or continue direct patient clinical care are not allowable. Medical equipment that is allowable under the Special Diabetes Grant Program is not allowable under the TMG Program. —Projects that include long-term care or provision of any direct services. —Projects that include tuition, fees, or stipends for certification or training of staff to provide direct services. —Projects that include pre-planning, design, and planning of construction for facilities, including activities relating to program justification documents. —Projects that propose more than one project type. Please see Section H, “Award Information,” specifically “ELIGIBLE PROJECT TYPES, MAXIMUM FUNDING AND PROJECT PERIODS” for more information. An example of a proposal with more than one project type that would be considered ineligible may include the creation of a strategic health plan (defined by TMG as a planning project type) and improving third-party billing structures (defined by TMG as a health management structure project type). • Other Limitations—A current TMG recipient cannot be awarded a new, renewal, or competing continuation grant for any of the following reasons: —A grantee may not administer two TMGs at the same time or have overlapping project/budget periods; —The current project is not progressing in a satisfactory manner; or —The current project is not in compliance with program and financial reporting requirements. —Delinquent Federal Debts: No award shall be made to an applicant who has an outstanding delinquent Federal debt until either: —The delinquent account is paid in full; or —A negotiated repayment schedule is established and at least one payment is received. 7. Other Submission Requirements *Electronic Submission* —The preferred method for receipt of applications is electronic submission through Grants.gov. However, should any technical challenges arise regarding the submission, please contact Grants.gov Customer Support at 1-800-518-4726 or *support@grants.gov* . The Contact Center hours of operation are Monday-Friday from 7 a.m. to 9 p.m. EST. If you require additional assistance, please call
(301)443-6290 and identify the need for assistance regarding your Grants.gov application. Your call will be transferred to the appropriate grants staff member. The applicant must seek assistance at least fifteen days prior to the application deadline. Applicants that do not adhere to the timelines for Central Contractor Registry
(CCR)and/or Grants.gov registration and/or requesting timely assistance with technical issues will not be candidates for paper applications. To submit an application electronically, please use the *www.Grants.gov* apply site. Download a copy of the application package, on the Grants.gov Web site, complete it offline and then upload and submit the application via the Grants.gov site. You may not e-mail an electronic copy of a grant application to IHS. Please be reminded of the following: • Under the new IHS application submission requirements, paper applications are not the preferred method. However, if you have technical problems submitting your application on-line, please contact directly Grants.gov Customer Support at: *http://www.Grants.gov/CustomerSupport* . • Upon contacting Grants.gov, obtain a tracking number as proof of contact. The tracking number is helpful if there are technical issues that cannot be resolved and a waiver request from Grants Policy must be obtained. • If it is determined that a formal waiver is necessary, the applicant must submit a request, in writing (e-mails are acceptable), to *Michelle.Bulls@ihs.gov* that includes a justification for the need to deviate from the standard electronic submission process. Upon receipt of approval, a hard-copy application package must be downloaded by the applicant from Grants.gov, and completed with appropriate manual signatures. An original and two copies of the application must be sent directly to the DGO, 801 Thompson Avenue, TMP 360, Rockville, MD 20852 by the due date, August 1, 2008. • Upon entering the Grants.gov site, there is information available outlining the requirements to the applicant regarding electronic submission of an application through Grants.gov, as well as the hours of operation. We strongly encourage all applicants not to wait until the deadline date to begin the application process through Grants.gov as the registration process for CCR and Grants.gov could take up to fifteen working days. • To use Grants.gov, you, as the applicant, must have a Data Universal Numbering System
(DUNS)Number and must register in the CCR. You should allow a minimum of ten working days to complete CCR registration. See below on how to apply. • You must submit all documents electronically, including all information typically included on the SF-424, Application for Federal Assistance, and all necessary assurances and certifications. • Please use the optional attachment feature in Grants.gov to attach additional documentation that may be requested by IHS. • Final signed Tribal resolutions are required no later than October 3, 2008, if a draft resolution was submitted with the initial electronic or paper application. • Your application cannot exceed the 14-page limitation requirements described in the program announcement. • After you electronically submit your application, you will receive an automatic acknowledgment from Grants.gov that contains a Grants.gov tracking number. The IHS DGO will retrieve your application from Grants.gov. DGO will not notify applicants that the application has been received. • You may access the electronic application for this program on www.Grants.gov. • You may search for the downloadable application package by either the CFDA number or the Funding Opportunity Number. Both numbers are identified in the heading of this announcement. • The applicant must provide the Funding Opportunity Number: HHS-2009-IHS-TMD-0001. E-mail applications will not be accepted under this announcement. DUNS Number Applicants are required to obtain a DUNS number from Dun and Bradstreet to apply for a grant or cooperative agreement from the Federal Government. The DUNS number is a nine-digit identification number, which uniquely identifies business entities. Obtaining a DUNS number is easy and there is no charge. To obtain a DUNS number, access *http://www.dunandbradstreet.com* or call 1-866-705-5711. Interested parties may wish to obtain their DUNS number by phone to expedite the process. Applications submitted electronically must also be registered with the CCR. A DUNS number is required before CCR registration can be completed. Many organizations may already have a DUNS number. Please use the number listed above to investigate whether or not your organization has a DUNS number. Registration with the CCR is free of charge. Applicants may register by calling 1-888-227-2423. Please review and complete the CCR Registration Worksheet located on *http://www.Grants.gov/CCRRegister* . More detailed information regarding these registration processes can be found *www.Grants.gov* . V. Application Review Information The instructions for preparing the application narrative also constitute the evaluation criteria for reviewing and scoring the application. Weights assigned to each section are noted in parentheses. The 14-page narrative should include only the first year of activities; information for multi-year projects should be included as an appendix. See “MULTI-YEAR PROJECT REQUIREMENTS” at the end of this section for more information. 1. Abstract—one page summary. A. Criteria Introduction and Need for Assistance (20 points)
(1)Describe the Tribe's/Tribal organization's current health operation. Include what programs and services are currently provided (i.e., Federally funded, State funded, etc.), information regarding technologies currently used (i.e., hardware, software, services, etc.), and identify the source(s) of technical support for those technologies (i.e., Tribal staff, Area Office, vendor, etc.). Include information regarding whether the Tribe/Tribal organization has a health department and/or health board and how long it has been operating.
(2)Describe the population to be served by the proposed project. Include a description of the number of IHS eligible beneficiaries who currently use services.
(3)Describe the geographic location of the proposed project including any geographic barriers to the health care users in the area to be served.
(4)Identify all TMGs received since FY 2003, dates of funding and summary of project accomplishments. State how previous TMG funds facilitated the progression of health development relative to the current proposed project. (Copies of reports will not be accepted.)
(5)Identify the eligible project type and priority group of the applicant.
(6)Explain the reason for your proposed project by identifying specific gaps or weaknesses in services or infrastructure that will be addressed by the proposed project. Explain how these gaps/weaknesses were discovered. If proposed project includes information technology (i.e., hardware, software, etc.), provide further information regarding measures taken or to be taken that ensure the proposed project will not create other gaps in services or infrastructure (i.e., IHS interface capability, Government Performance and Results Act reporting requirements, contract reporting requirements, Information Technology
(IT)compatibility, etc.).
(7)Describe the effect of the proposed project on current programs (i.e., Federally funded, State funded, etc.) and, if applicable, on current equipment (i.e., hardware, software, services, etc.). Include the effect of the proposed project on planned/anticipated programs and/or equipment.
(8)Address how the proposed project relates to the purpose of the TMG Program by addressing the appropriate description that follows: • Identify if the Tribe/Tribal organization is an IRS Title I contractor. Address if the self-determination contract is a master contract of several programs or if individual contracts are used for each program. Include information regarding whether or not the Tribe participates in a consortium contract (i.e., more than one Tribe participating in a contract). Address what programs are currently provided through those contracts and how the proposed project will enhance the organization's capacity to manage the contracts currently in place. • Identify if the Tribe/Tribal organization is an IHS Title V compactor. Address when the Tribe/Tribal organization entered into the compact and how the proposed project will further enhance the organization's management capabilities. • Identify if the Tribe/Tribal organization is not a Title I or Title V organization. Address how the proposed project will enhance the organization's management capabilities, what programs and services the organization is currently seeking to contract and an anticipated date for contract. Project Objective(S), Workplan and Consultants (40 points) A. Identify the proposed project objective(s) addressing the following: • Measurable and (if applicable) quantifiable. • Results oriented. • Time-limited. Example: By installing new software, the Tribe will increase the number of bills processed by 15 percent at the end of 12 months. B. Address how the proposed project will result in change or improvement in program operations or processes for each proposed project objective. Also address what tangible products are expected from the project (i.e. policies and procedures manual, health plan, etc.). C. Address the extent to which the proposed project will build the local capacity to provide, improve, or expand services that address the need(s) of the target population. D. Submit a workplan in the appendix which includes the following information: • Provide the action steps on a timeline for accomplishing the proposed project objective(s). • Identify who will perform the action steps. • Identify who will supervise the action steps taken. • Identify who will accept and/or approve work products at the end of the proposed project. • Include any training that will take place during the proposed project and who will be attending the training. • Include evaluation activities planned. E. If consultants or contractors will be used during the proposed project, please include the following information in their scope of work (or note if consultants/contractors will not be used): • Educational requirements. • Desired qualifications and work experience. • Expected work products to be delivered on a timeline. If a potential consultant/contractor has already been identified, please include a resume in the Appendix. F. Describe what updates (i.e., revision of policies/procedures, upgrades, technical support, etc.) will be required for the continued success of the proposed project. Include when these updates are anticipated and where funds will come from to conduct the update and/or maintenance. Project Evaluation (15 Points) Describe the proposed plan to evaluate both outcomes and process. Outcome evaluation relates to the results identified in the objectives, and process evaluation relates to the workplan and activities of the project. A. For outcome evaluation, describe: • What the criteria will be for determining success of each objective. • What data will be collected to determine whether the objective was met? • At what intervals will data be collected? • Who will collect the data and their qualifications? • How the data will be analyzed. • How the results will be used. B. For process evaluation, describe: • How the project will be monitored and assessed for potential problems and needed quality improvements. • Who will be responsible for monitoring and managing project improvements based on results of ongoing process improvements and their qualifications? • How ongoing monitoring will be used to improve the project. • Any products, such as manuals or policies, that might be developed and how they might lend themselves to replication by others. • How the project will document what is learned throughout the project period. C. Describe any evaluation efforts that are planned to occur after the grant period ends. D. Describe the ultimate benefit to the Tribe that is expected to result from this project. An example of this might be the ability of the Tribe to expand preventive health services because of increased billing and third party payments. Organizational Capabilities and Qualifications (15 Points) A. Describe the organizational structure of the Tribe/Tribal organization beyond health care activities. B. Provide information regarding plans to obtain management systems if the Tribe/Tribal organization does not have an established management system currently in place that complies with 25 CFR Part 900, Subpart F, and “Standards for Tribal Management Systems.” If management systems are already in place, simply state it. C. Describe the ability of the organization to manage the proposed project. Include information regarding similarly sized projects in scope and financial assistance as well as other grants and projects successfully completed. D. Describe what equipment (i.e., fax machine, phone, computer, etc.) and facility space (i.e., office space) will be available for use during the proposed project. Include information about any equipment not currently available that will be purchased through the grant. F. List key personnel who will work on the project. Include title used in the workplan. In the appendix, include position descriptions and resumes for all key personnel. Position descriptions should clearly describe each position and duties, indicating desired qualifications and experience requirements related to the proposed project. Resumes must indicate that the proposed staff member is qualified to carry out the proposed project activities. If a position is to be filled, indicate that information on the proposed position description. F. If the project requires additional personnel (i.e., IT support, etc.), address how the Tribe/Tribal organization will sustain the position(s) after the grant expires. (If there is no need for additional personnel, simply note it.) Categorical Budget and Budget Justification (10 points). A. Provide a categorical budget for each of the 12-month budget periods requested. B. If indirect costs are claimed, indicate and apply the current negotiated rate to the budget. Include a copy of the rate agreement in the appendix. C. Provide a narrative justification explaining why each line item is necessary/relevant to the proposed project. Include sufficient cost and other details to facilitate the determination of cost allowability (i.e., equipment specifications, etc.) Multi-Year Project Requirements Projects requiring a second and/or third year must include a narrative addressing the second and/or third year's project objectives, evaluation components, work plan, categorical budget and budget justification. The same weights and criteria as noted in Section V. Application Review Information that is used to evaluate a one-year project or the first year of a multi-year project will be applied when evaluating the second and third years of a multi-year application. A weak second and/or third year submission could negatively impact the overall score of an application. Appendix Items A. Work plan for proposed objectives. B. Position descriptions for key staff. C. Resumes of key staff that reflect current duties. D. Consultant proposed scope of work (if applicable). E. Indirect Cost Rate Agreement. F. Organizational chart (optional). G. Multi-Year Project Requirements (if applicable). 2. Review and Selection Process In addition to the above criteria/requirements, applications are considered according to the following: A. Application Submission (Application Deadline: August 1, 2008). Applications received in advance of or by the deadline and verified by the tracking number will undergo a preliminary review to determine that: • The applicant and proposed project type is eligible in accordance with this grant announcement; • The application is not a duplication of a previously funded project; and • The application narrative, forms, and materials submitted meet the requirements of the announcement allowing the review panel to undertake an in-depth evaluation; otherwise the application may be returned. B. Competitive Review of Eligible Applications (Objective Review: October 6-10, 2008). Applications meeting eligibility requirements that are complete, responsive and conform to this program announcement will be reviewed for merit by the Ad Hoc Objective Review Committee
(ORC)appointed by the IHS to review and make recommendations on these applications. The review will be conducted in accordance with the IHS Objective Review Guidelines. The technical review process ensures selection of quality projects in a national competition for limited funding. Applications will be evaluated and rated on the basis of the evaluation criteria listed in Section V.1. The criteria are used to evaluate the quality of a proposed project, determine the likelihood of success and to assign a numerical score to each application. The scoring of approved applications will assist the IHS in determining which proposals will be funded if the amount of TMG funding is not sufficient to support all approved applications. Applications recommended for approval, having a score of 60 or above by the ORC and scored high enough to be considered for funding will be reviewed by the DGO for cost analysis and further recommendation. The program official accepts the DGO recommendations for consideration when funding applications. The program official forwards the final approved list to the Director, Office of Tribal Programs (OTP), for final review and approval. Applications scoring below 60 points will be disapproved. Applications that are approved but not funded will not be carried over into the next cycle for funding consideration. 3. Anticipated Announcement and Award Dates. The IEIS anticipates the earliest award start date will be January 1, 2009. VI. Award Administration Information 1. Award Notices *ORC Results Notification:* November 12, 2008. The Director, OTP, or program official, will notify the contact person identified on each proposal of the results in writing via postal mail. Applicants whose applications are declared ineligible will receive written notification of the ineligibility determination and their grant application via postal mail. The ineligible notification will include information regarding the rationale for the ineligible decision citing specific information from the original grant application. Applicants who are approved but unfunded and disapproved will receive a copy of the Executive Summary which identifies the weaknesses and strengths of the application submitted. Applicants who are approved and funded will be notified through the official Notice of Award
(NoA)document. The NoA will be signed by the Grants Management Officer and is the authorizing document for notifying grant recipients of funding. The NoA serves as the official notification of a grant award and will state the amount of Federal funds awarded, the purpose of the grant, the terms and conditions of the grant award, the effective date of the award, the project period, and the budget period. Any other correspondence announcing to the Applicant's Project Director that an application was recommended for approval is not an authorization to begin performance. Pre-award costs are not allowable charges under this program grant. 2. Administrative Requirements Grants are administrated in accordance with the following documents: • This grant announcement. • Health and Human Services regulations governing Public Law 93-638 grants at 42 CFR 36.101 *et seq.* • 45 CFR part 92, “Department of Health and Human Services, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments Including Indian Tribes,” or 45 CFR part 74, “Administration of Grants to Non-Profit Recipients.” • Public Health Service Grants Policy Statement. • Appropriate Cost Principles: OMB Circular A-87, “State and Local Governments,” or OMB Circular A-122, “Non profit Organizations.” • OMB Circular A-133, “Audits of States, Local Governments and Non Profit Organizations.” • Other Applicable OMB Circulars. 3. Indirect Costs This section applies to all grant recipients that request indirect cost in their application. In accordance with HHS Grants Policy Statement, Part II-27, IHS requires applicants to have a current indirect cost rate agreement in place prior to award. The rate agreement must be prepared in accordance with the applicable cost principles and guidance as provided by the cognizant agency or office. A current rate means the rate covering the applicable activities and the award budget period. If the current rate is not on file with the awarding office, the award shall include funds for reimbursement of indirect costs. However, the indirect cost portion will remain restricted until the current rate is provided to the DGO. • Generally, indirect costs rates for IRS Tribal organization grantees are negotiated with the Division of Cost Allocation
(DCA)*http://rates.psc.gov/* and indirect cost rates that are for IHS funded Federally recognized Tribes are negotiated with the Department of the Interior. If your organization has questions regarding the indirect cost policy, please contact the DGO at 301-443-5204. Additional information may be obtained at the following Web site for the National Business Center [Department of the Interior]: National Business Center (NBC). *http://www.nbc/gov/acquisition/ics/icsprep.html. http://www.nbc.gov/searchdata1.cfm.* Preparing and Submitting Indirect Cost Proposals 4. Reporting A. Progress Report. Program progress reports are required either semi annually or annually. [Semi-annual] program progress reports must be submitted within 30 days at the end of the half year. These reports will include a brief comparison of actual accomplishments to the goals established for the period, reasons for slippage (if applicable), and other pertinent information as required. A final report must be submitted within 90 days of expiration of the budget/project period. B. Financial Status Reports. Financial status reports are required either semi annually or annually. [Semi-annual] financial status reports must be submitted within 30 days of the end of the half year. Final financial status reports are due within 90 days of expiration of the budget/project period. Standard Form 269 (long form) will be used for financial reporting. C. Reports. Grantees are responsible and accountable for accurate reporting of the Progress Reports and Financial Status Reports which are generally due semi-annually. Financial Status Reports (SF-269) are due 90 days after each budget period and the final SF-269 must be verified from the grantee records on how the value was derived. Grantees must submit reports in a reasonable period of time. Failure to submit required reports within the time allowed may result in suspension or termination of an active grant, withholding of additional awards for the project, or other enforcement actions such as withholding of payments or converting to the reimbursement method of payment. Continued failure to submit required reports may result in one or both of the following:
(1)The imposition of special award provisions; and
(2)the non-funding or non-award of other eligible projects or activities. This applies whether the delinquency is attributable to the failure of the grantee organization or the individual responsible for preparation of the reports. VII. Agency Contact(s) Interested parties may obtain TMG programmatic information from the TMG Program Coordinator listed under Section IV of this program announcement, Grant-related and business management information may be obtained from the Grants Management Specialist listed under Section IV of this program announcement. Grants.gov concerns submission, and waiver requests may be addressed by Ms. Michelle Bulls, Division of Grants Policy. Contact information is noted under Section IV of this program announcement. Please note that the telephone numbers provided are not toll-free. VIII. Other Information *Training:* The IHS will conduct three training sessions to assist applicants in preparing their FY 2009 TMG applications. There will be three 2-day training sessions. In addition, there will be one 5-day training session on Gamesmanship. The 5-day training session will provide participants with basic grant writing skills, information regarding where to search for funding opportunities, and the opportunity to begin writing a TMG grant proposal or to finalize a draft proposal. The 2-day training sessions will focus specifically on the TMG requirements providing participants with information contained in this announcement, clarifying any issues/questions applicants may have and critiquing project ideas. In an effort to make the training sessions productive, participants are expected to bring draft proposals to these sessions. Priority will be given to groups eligible to apply for the TMG Program. Participation is limited to two personnel from each Tribe or Tribal organization. All sessions are first come—first serve with the above limitations noted. All participants are responsible for making and paying for their own travel arrangements. Interested parties should register with the TMG staff prior to making travel arrangements to ensure space is available in selected sessions. There is no registration fee to attend the training session(s). The registration form may be obtained from the TMG Web site at: *http://www.ihs.gov/NonMedicalPrograms/tmg.* The registration form may be faxed to
(301)443-4666. **Note:** A minimum of 10 attendees is required for the IHS to conduct the training sessions. The anticipated training dates and locations are listed below in chronological order: • April 30-May 1, 2008—Minneapolis, Minnesota (Limit 25) (TMG Training). • May 14-15, 2008—Rapid City, South Dakota (Limit 25) (TMG Training). • June 11-12, 2008—Albuquerque, New Mexico (Limit 25) (TMG Training). • June 23-27, 2008—Albuquerque, New Mexico (Limit 25) (The Grantsmanship Center Institute Training). IHS Checklist The following IHS Checklist is included to assist applicants in proposal preparation and follow-up. Applicants are highly encouraged to employ this checklist for their benefit and to submit it as part of their proposal as an attachment in Grants.gov to allow for verification of receipt. This checklist will be utilized by the DGO during their initial screening for eligibility and will be utilized by the OTP during their programmatic review for content of the application to ensure required items requested are submitted and the application is eligible for further review via the ORC. This checklist is available on the TMG Web site at *http://www.ihs.gov/nonmedicalprograms/tmg.* EN01AP08.354 EN01AP08.355 [FR Doc. E8-6429 Filed 3-31-08; 8:45 am] BILLING CODE 4165-16-M DEPARTMENT OF HEALTH AND HUMAN SERVICES Substance Abuse and Mental Health Services Administration Agency Information Collection Activities: Submission for OMB Review; Comment Request Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a summary of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these documents, call the SAMHSA Reports Clearance Officer on
(240)276-1243. Project: National Evaluation of the Addiction Technology Transfer Centers (ATTC)—NEW In recognition that systematic evaluation of this and other government programs are part of good management and accountability and will inform program improvement efforts, the Substance Abuse and Mental Health Services Administration's Center for Substance Abuse Treatment
(CSAT)will conduct an independent evaluation of the ATTC Program. The purpose of the ATTC Program is to develop and strengthen the workforce that provides addictions treatment services to 23 million Americans age 12 and older who need treatment for alcohol or illicit drug problems. In partnership with Single State Authorities (SSAs), treatment provider associations, addictions counselors, multidisciplinary professionals, faith and recovery community leaders, addiction educators, and other stakeholders, the ATTCs assess the training and development needs of the substance use disorders workforce, and develop and conduct training and technology transfer activities to meet these needs. Particular emphasis is on raising awareness of and improving skills in using evidence-based and promising treatment/recovery practices in recovery-oriented systems of care. The goals of the evaluation are to:
(1)Identify the successes of technology transfer efforts and build upon them in the future;
(2)share lessons learned across ATTC regions for the enhancement of all regions' activities; and
(3)identify region-specific and cross-regional processes and outcomes. The evaluation will consist of three studies. The Planning and Partnering Study will collect data on the processes and procedures related to the planning, partnering, and provision of ATTC services/activities. The Customer Satisfaction and Benefit Study will collect data on the extent to which ATTC services/activities are satisfactory and to meet the needs of identified partners and other program stakeholders. The Change in Practice Study will collect data to determine the extent to which ATTCs have enhanced the competencies, including cultural competencies, of specialty addictions treatment practitioners, paraprofessionals, and multidisciplinary professionals to strengthen the workforce and whether the ATTCs have provided these individuals with new skills that have led to changes in treatment practice. This will be the first independent, national evaluation of the ATTC Program since the program was first funded by SAMHSA in 1993. The evaluation approach will be formative and participatory, and the national evaluation team will collaborate with the ATTCs, CSAT, and other program stakeholders to implement the planned data collection activities. Surveys, interviews, and focus groups will be conducted over a three-year period with eight
(8)main stakeholder groups who use or are among the target audiences for the ATTCs' services or are otherwise associated with the ATTC program (e.g., as ATTC partners): ATTC directors and staff; customers/recipients of ATTC services/activities; ATTC Advisory Board members; partners who collaborate with ATTCs in planning and delivering ATTC services/activities; directors of state substance abuse agencies; directors of treatment provider and recovery organizations and directors of provider associations; addiction educators; and cultural leaders involved in addictions treatment. The data collection instruments have been constructed to include information related to each stakeholder group, as identified above, and are expected to yield diverse perspectives related to the processes and outcomes of the ATTC Program. As a condition of their grant, each ATTC was required to budget .25 FTE to participate in data collection for the national evaluation. The evaluation will collect new data that is necessary for the evaluation and will also use data and information collected under existing program requirements. (Each ATTC is required to submit GPRA data at the end of each ATTC training and technical assistance event and meeting/conference and 30 days after each event; each ATTC will conduct a workforce survey; and each ATTC also submits an annual report. None of the new data collection activities will be redundant with these existing reporting requirements.) CSAT plans the following new data collection activities:
(1)Semi-structured interviews with ATTC directors and other ATTC staff (e.g., co-directors, ATTC technology transfer specialists, ATTC evaluator) that are conducted during site visits to each ATTC. The purpose of the interviews will be to collect information on: a. Goals and objectives of the ATTC. b. Regional priorities and needs for technology transfer services. c. Processes used to plan ATTC programs and services. d. Collaborative relationships with organizations within and outside the ATTC region. e. Organizational structure and staffing of the ATTC. f. ATTC funding and leveraging of resources. g. Efforts to coordinate services with other providers of training, technical assistance, or technology transfer services within the region. h. Technology transfer strategies and services implemented by the ATTC to promote adoption of culturally appropriate, evidence-based, and promising practices. i. Implementation and use of workforce surveys. j. Participation in cross-regional and network-wide activities. k. Background characteristics of the respondent.
(2)Focus groups with ATTC staff (including field staff who are assigned to work with specific states and may work in different locations throughout the ATTC region), to include information on: a. Regional priorities and needs for technology transfer services. b. Processes used to plan ATTC programs and services. c. Efforts to coordinate services with other providers of technology transfer services within the region. d. Technology transfer strategies and services implemented by the ATTC to promote adoption of culturally appropriate, evidence-based and promising practices. e. Background characteristics of focus group participants.
(3)Telephone interviews with a sample of stakeholders of the ATTC program, including state substance abuse directors (SSAs), ATTC Advisory Board members, addiction educators, directors of treatment provider associations, cultural leaders, and leaders of recovery associations. The purpose of the interviews will be to collect information on: a. Collaboration with ATTCs for program planning and service delivery. b. Awareness of ATTC activities and services. c. Utilization of ATTC services. d. Quality of ATTC services. e. Changes in awareness, skills, practices, or systems as a result of ATTC services. f. Gaps in ATTC service delivery. g. Background characteristics of the respondent.
(4)Survey of ATTC Regional Advisory Board members to include questions related to: a. Composition of the Advisory Board. b. Stakeholder representation and representation of the diversity within the region on the Advisory Board. c. Role of the ATTC Advisory Board. d. Frequency of meetings and other communications (e.g., conference calls). e. Characteristics of communications and interactions between the ATTC and Advisory Board members. f. Processes to assess regional needs and priorities. g. Consideration/utilization of Advisory Board recommendations by the ATTC. h. Satisfaction with ATTC planning and priority setting processes. i. Background characteristics of the respondent.
(5)Survey of ATTC customers (Customer Satisfaction and Benefit Survey) to include questions related to: a. Background characteristics of ATTC customers/respondents. b. Participation in different types of ATTC activities (e.g., training, technical assistance, meetings/conferences, product development, etc.). c. Participation in ATTC activities focusing on specific topics (e.g., evidence-based practices, clinical supervision, workforce development). d. Perceived objective of each ATTC activity (awareness raising, skill building, change in practice). e. Satisfaction with and knowledge gained from ATTC activities. f. Changes in awareness, skills, or practices as a result of participation in ATTC activities .
(6)Evidence-Based Practices Critical Action Surveys of a sample of individuals who participated in ATTC initiatives related to Clinical Supervision, Motivational Interviewing, and Treatment Planning MATRS. The web-based surveys will collect information on: a. Prior training related to the evidence-based practice. b. Prior experience using the evidence-based practice. c. Implementation experience/changes in practice. d. Level of proficiency related to the evidence-based practice. e. Factors impacting ability to change practice.
(7)Telephone interviews (Success Case Interviews) with participants in the Evidence-Based Critical Action Surveys who report the greatest and least amount of success in implementing the new evidence-based practice. The interviews will collect information on: a. Application of what was learned in clinical or organizational practice. b. Illustrative examples of what occurred as a result of changes in practice. c. Characteristics of the training that made it useful. d. Barriers to application of what was learned.
(8)A Clinician Self-Assessment of the extent to which the clinician has incorporated the skills associated with Motivational Interviewing into their clinical practice, to include information on: a. Motivational Interviewing style. b. Extent to which the clinician has implemented Motivational Interviewing skills. c. Background characteristics of the respondent.
(9)Survey of directors of addictions treatment provider organizations (Survey of Organizational Readiness) who participated in the Evidence-Based Critical Action Survey related to the Treatment Planning MATRS initiative, to collect information on: a. Characteristics of the treatment provider unit or organization. b. Issues for which the organization needs external technical assistance or guidance. c. Issues for which the staff needs external technical assistance or guidance. d. Source of current pressures for making organizational change. e. Background characteristics of the respondent. The burden estimate for conducting the data collection activities for the national evaluation of the ATTC Program is as follows: Name of instrument/respondent Number of respondents Responses per respondent Total responses Hours per response Total burden hours Site Visit Interview Protocol: ATTC Directors 15 1 15 2 30 ATTC Staff 38 1 38 1 38 Focus Group Protocol: ATTC Field Staff 35 1 35 2 70 Key Informant Interview Protocol: SSA Directors 55 1 55 1 55 ATTC Advisory Board Members 45 1 45 1 45 Provider Association Directors 43 1 43 1 43 Addiction Educators 70 1 70 1 70 Treatment Agency Directors 42 1 42 1 42 Other Key Advisors 42 1 42 1 42 Collaborative Functioning Survey: ATTC Advisory Board Members 450 2 900 0.5 450 Customer Satisfaction and Benefit Survey: SSA Directors 55 1 55 0.5 28 Provider Association Directors 43 1 43 0.5 22 Addiction Educators 158 1 158 0.5 79 Treatment Agency Directors 700 1 700 0.5 350 ATTC Activity Participants 3,000 1 3,000 0.5 1,500 Other Unique Regional Partners 168 1 168 0.5 84 Evidence-Based Critical Action Surveys: ATTC Clinical Supervision Training Participants 240 1 240 0.5 120 ATTC Motivational Interviewing Training Participants 360 1 360 0.5 180 ATTC Treatment Planning MATRS Treatment Participants (Treatment Agency Directors) 240 1 240 0.5 120 Success Case Interview Protocols: ATTC Clinical Supervision Training Participants 48 1 48 1 48 ATTC Motivational Interviewing Training Participants 72 1 72 1 72 ATTC Treatment Planning MATRS Training Participants (Treatment Directors) 48 1 48 1 48 Clinician Self-Assessment Form on Motivational Interviewing 72 12 864 0.5 432 Survey of Organizational Readiness: Treatment Agency Directors 240 1 240 0.5 120 Total 6,294 7,521 4,088 Written comments and recommendations concerning the proposed information collection should be sent by May 1, 2008 to: SAMHSA Desk Officer, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503; due to potential delays in OMB's receipt and processing of mail sent through the U.S. Postal Service, respondents are encouraged to submit comments by fax to: 202-395-6974. Dated: March 24, 2008. Elaine Parry, Acting Director, Office of Program Services. [FR Doc. E8-6581 Filed 3-31-08; 8:45 am] BILLING CODE 4162-20-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Substance Abuse and Mental Health Services Administration Agency Information Collection Activities: Submission for OMB Review; Comment Request Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a summary of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these documents, call the SAMHSA Reports Clearance Officer on
(240)276-1243. Project: The National Cross-Site Evaluation of Safe Schools/Healthy Students (SS/HS) Initiative Grants—In Use Without Approval The Safe Schools/Healthy Students (SS/HS) Initiative is a collaborative grant program supported by three Federal departments—the U.S. Departments of Health and Human Services, Education, and Justice. The program is authorized under the Elementary and Secondary Education Act of 1965, as amended, and the Higher Education Act of 1965, Title IV, Part A, Subpart 2 (National Programs), Section 4121 (Federal Activities), and 42 U.S.C., Section 290hh (Children and Violence). This initiative, instituted by Congress following the murderous assaults at Columbine High School in Colorado, is designed to provide Local Educational Agencies (LEAs), including school districts and multidistrict regional consortia, with funding to simultaneously improve school safety, improve student access to mental health services, reduce violence and substance use, and strengthen both school relationships with the larger community and early childhood preparation for learning. Collectively, Congress expects these changes to be reflected in improved school climate. Local Education Agencies
(LEAs)serve as the primary applicants for SS/HS grants, in partnership with the local mental health system, the local law enforcement agency, and the local juvenile justice agency. Other community partners often involved in these grants include public and private social services agencies, businesses, civic organizations, the faith community, and private citizens. As a result of these partnerships, comprehensive plans are developed, implemented, evaluated, and sustained with the goals of promoting the healthy development of children and youth, fostering their resilience in the face of adversity, and preventing violence. From FY-1999 through FY-2004, grants of $1 million to $3 million annually for 3 years were awarded to 190 LEAs, for a total of $916 million. In FY-2005, 40 new SS/HS grants were awarded; in FY-2006, an additional 19 grants were awarded; and in FY-2007, an additional 27 grants will be awarded. These grants are providing support for rural, tribal, suburban, and urban communities that include diverse racial and ethnic groups across the country. In compliance with the Government Performance and Results Act
(GPRA)of 1993, grantees are required to collect and report data that measure the results of the programs implemented with this grant. Specifically, grantees are required to collect and report information on the following GPRA indicators: 1. The percentage of SS/HS grant sites that experience a decrease in the number of violent incidents at schools. 2. The percentage of SS/HS grant sites that experience a decrease in substance use. 3. The percentage of SS/HS grant sites that improve school attendance. 4. The percentage of SS/HS grant sites that increase mental health services to students and families. As authorized by 42 U.S.C. 290hh, item (f), SAMHSA has begun a national evaluation of the Safe School/Healthy Students (SS/HS) projects. In addition to GPRA measures, a Federal Evaluation Work Group of the national evaluation, comprising Federal officials representing the U.S. Departments of Education, and Health and Human Services, has determined that information is also required to address four overarching questions: 1. Do conditions and resources in the pre-grant environment facilitate or impede the implementation of the SS/HS Initiative at both the local education agency
(LEA)and school levels? 2. Do SS/HS activities lead to the intended system changes (comprehensive policies, enhanced services, and improved coordination)? 3. Do system changes (near-term outcomes) associated with the SS/HS Initiative lead to improvements in long-term outcomes (reduction in substance use and violence, increased access to mental health services, and improvement in attendance and school climate)? 4. Overall, does the SS/HS Initiative meet the Federal Government's expectations of achieving improvements in long-term outcomes (reduction in substance use and violence, increased access to mental health services, and improvement in attendance and school climate)? The SS/HS National Evaluation Team
(NET)proposes seven
(7)data collection instruments for use with various audiences and at various times to provide systematic, rigorous answers to these questions. These instruments are listed below and discussed: 1. A Year 1 Site Visit protocol. 2. Project-Level Survey. 3. School-Level Survey. 4. Staff School Climate Survey. 5. Group Interview. 6. Project Director Interview. 7. Partnership Inventory. With the exception of the Staff School Climate Survey, these instruments are currently in use without approval. 1. *Year 1 Site Visit Protocol* . The NET will conduct a Year 1 site visit to all SS/HS grantees in their first year of funding. The Year 1 Site Visit is designed to clarify and expand upon information presented in the grant application. The Site Visit Guide includes a set of questions for each of five general topical areas: 1. Planning for the SS/HS project. 2. Current status of project implementation. 3. Enhancing interagency services. 4. Update on the SS/HS school-community partnership structure, composition, and functioning including the current status of required partners (i.e., education, mental health, law enforcement, and juvenile justice). 5. Local evaluation status. 2. *Project-Level Survey* is to be administered annually to collect project-level information provided by the local project director, in consultation with the local evaluator and other key staff. This Web-based instrument will
(1)collect data and project level assessments on technical assistance and near-term outcomes, and
(2)collect data and project-level assessments on the penetration of SS/HS-related activities among the targeted population(s) and on the sustainability of the activities beyond the grant period. The survey contains 114 multiple-choice questions covering seven topical areas: 1. The relationship between the local education agency
(LEA)and schools. 2. Technical assistance and training. 3. Comprehensive policies and interventions. 4. Evidence-based interventions. 5. Enhanced service integration. 6. Improved coordination. 7. Sustainability. This survey will generate standardized cross-site measures for the required data. 3. *School-Level Survey* , also administered annually, is a Web-based survey completed by the SS/HS coordinator at each school, identified by the local project director. Its main purpose is to collect information describing system changes at the level of the individual schools included in the grant (e.g., involvement of the grant partners in activities and adoption of comprehensive safety policies at the school level). This instrument contains 131 multiple-choice questions covering two main areas:
(1)Organizational structure, characteristics and activities; and
(2)the school's emphasis on and student participation in activities and programs. The School-Level Survey is designed specifically to provide an indicator as to whether and how project-level SS/HS-related policies are consistently diffused to the individual schools. Prior to fielding Project-Level and School-Level Surveys, an e-mail and/or letter will be sent to project directors and SS/HS school coordinators to explain the purpose of the survey and provide information on how to complete the surveys. The e-mail and/or letter will provide names, e-mail addresses, telephone numbers, and fax numbers for the NET contact(s) to ensure respondents have appropriate contact information if they have questions or need to clarify survey-related questions. The e-mail and/or letter will also explain the options available for completing and returning the survey (Web-based, paper, and electronic). Designated NET staff responsible for the two surveys will call or e-mail the respondents after distribution to ensure responses are received in a timely fashion. The NET also plans additional follow-up efforts to track any respondents who fail to submit their completed surveys after the initial follow-up. 4. *Staff School Climate Survey* is planned as an annual survey to be completed by all staff at each school participating in the SS/HS program. Administration and scoring will be conducted via an existing infrastructure that allows immediate access to the results at school, district, and aggregate levels for use by local and NET evaluators. The major purposes of this survey are: 1. Assess changes in school climate at the project level. 2. Identify the extent of variation in school climate among the target schools of each project. 3. Provide a basis for comparison of changes in the individual dimensions of school climate. 4. Provide added value to LEAs by helping them meet Federal legislative requirements for assessing staff perceptions of the incidence, prevalence, and attitudes related to substance use and violence in their schools. Although GPRA measures monitor changes in individual outcomes among students, GPRA measures have been found to provide an incomplete metric of performance in terms of observed changes in overall “school climate.” The SS/HS National Evaluation Team proposes to adopt the staff version of the California Healthy Kids Survey for this purpose. This instrument contains 43 multiple-choice questions that are used to obtain school staff perceptions of student behavior and attitudes, school programs and policies, and the overall school climate as they relate to student well-being and learning. The survey deals with such issues as truancy, safety, harassment, substance use, school connectedness, and learning supports. The instrument will track changes in school climate in schools targeted for program services under the SS/HS Initiative. In the absence of the Staff School Climate Survey, there would be no common, cross-site measure of performance across SS/HS initiative grantees. In practice, the Staff School Climate Survey will be administered electronically among approximately 106,000 local educational system employees. These employees will be encouraged to log onto a Web site during each year that their school benefits from the grant to answer questions concerning their perception of student behavior and safety at the school. 5. *Group Interview* will assess the status of the following: 1. Implementation of planned activities. 2. The status of the SS/HS school-community partnership. 3. Progress towards enhancing interagency services. 4. The status of the local evaluation. Information will be gathered from a larger group of key informants than during the Year 1 site visits. In addition to the project director, key informants will include the local evaluator, required partners from each site, and representatives from other local organizations (e.g., alcohol and drug prevention or treatment agencies, after-school programs, early childhood programs). The NET will consult with Federal Project Officers and the local project directors in deciding which partners/organizations will serve as key informants in the telephone interviews. The intent is to conduct these group interviews as a semistructured exchange among participants, guided by topics and issues raised by the NET moderator. 6. *Project Director Interview* of the local SS/HS site will follow the group interview. These structured interviews will be used primarily to assess each partner's contribution to the core elements of collaborative functioning. The project director interview will be conducted twice for each SS/HS grant, following the group telephone interviews of partnership members in the spring of Years 2 and 3 of the grant. The interviews will be structured around 11 topics, designed to gather information that will be used to: 1. Update program status. 2. Discuss strategies and activities the sites intend to implement. 3. Explore key partners' involvement in the project. 4. Investigate the role of the community partnership in the local project. 5. Secure information regarding the site's perspective on the impact of the SS/HS project on students, families, and the community. 6. Assess collaborative functioning. This information will be used to refine project classifications, examine changes in the number and types of evidence-based practices being implemented, and document the number and type of new service structures or systems sites plan to implement through the grant. A NET site liaison will conduct the Project Director interview by telephone. This interview contains a total of 31 questions, focusing on 10 core areas of collaborative functioning. Three subset questions focus on the contribution rating of the partnership, examples to support that rating, and the level of contribution of each required partner. A final question assesses the overall contribution of each of the partners to the SS/HS project. 7. *The Partnership Inventory* is a 32-item self-completion questionnaire e-mailed to designated representatives of local partnering organizations. Its purpose is to obtain a subjective assessment of perceptions of operating characteristics of the partnership process through Likert-type scaling. The first 16 items ask respondents to give their opinions about how the SS/HS partnership is functioning in their community. Items 17-26 focus on the contributions the respondent's organization has made to the collaborative functions related to SS/HS planning and implementation. The final six questions focus on interactions among the participating members of the collaboration, asking how often and how intensely the various organizations work together. The annualized burden estimates are below: Data collection instrument Number of respondents Responses per respondent Average hours per response Total annual burden (hours) Site Visit Protocol 425 1 3 1,275 Project-Level Survey 85 1 0.75 64 School-Level Survey 2,500 1 0.75 1,875 Staff School Climate Survey 106,250 1 0.117 12,431 Group Interview 425 1 1.5 638 Project Director Interview 85 1 0.75 64 Partnership Inventory 340 1 0.25 85 Total 106,675 16,431 Written comments and recommendations concerning the proposed information collection should be sent by May 1, 2008 to: SAMHSA Desk Officer, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503; due to potential delays in OMB's receipt and processing of mail sent through the U.S. Postal Service, respondents are encouraged to submit comments by fax to: 202-395-6974. Dated: March 24, 2008. Elaine Parry, Acting Director, Office of Program Services. [FR Doc. E8-6620 Filed 3-31-08; 8:45 am] BILLING CODE 4162-20-P DEPARTMENT OF HOMELAND SECURITY Coast Guard [Docket No. USCG 2008-0190] Chemical Transportation Advisory Committee AGENCY: Coast Guard, DHS. ACTION: Notice of meetings. SUMMARY: The Chemical Transportation Advisory Committee (CTAC); its Subcommittees on Outreach, National Fire Protection Association
(NFPA)472 Standard, Hazardous Cargo Transportation Security (HCTS), and International Maritime Solid Bulk Cargoes (IMSBC) Code; as well as its Working Group on Barge Emissions and Hazard Communication will meet in Washington, DC, to discuss various issues relating to the marine transportation of hazardous materials in bulk. These meetings will be open to the public. DATES: The Subcommittee on Outreach will meet on Tuesday, April 22, 2008, from 8 a.m. to 9:30 a.m. The Barge Emissions and Hazard Communication Working Group will meet Tuesday, April 22, 2008, from 9:30 a.m. to 10:30 a.m. The Subcommittee on NFPA 472 Standard will meet on Tuesday, April 22, 2008, from 1 p.m. to 2 p.m. The Subcommittee on HCTS will meet on Tuesday, April 22, 2008, from 2:15 p.m. to 4 p.m. The new Subcommittee on IMSBC Code will meet Wednesday, April 23, 2008, from 8 a.m. to 3 p.m. The coordinator for the U.S. Coast Guard's “Homeport” will conduct training on the application of the Web site for use by CTAC members on Wednesday, April 23, 2008, from 1 p.m. to 4 p.m. CTAC will meet on Thursday, April 24, 2008, from 9 a.m. to 3:30 p.m. These meetings may close early if all business is finished. Written material and requests to make oral presentations should reach the U.S. Coast Guard on or before April 18, 2008. Requests to have a copy of your material distributed to each member of the committee should reach the U.S. Coast Guard on or before April 18, 2008. ADDRESSES: CTAC and its Subcommittees and Working Group will be meeting at U.S. Coast Guard Headquarters, 2100 Second Street, SW., Washington, DC. Send written material and requests to make oral presentations to Commander Rick Raksnis, Commandant (CG-5223), U.S. Coast Guard Headquarters, 2100 Second Street, SW., Washington, DC 20593-0001. This notice and documents identified in the Supplementary Information section as being available in the docket may be viewed in our online docket, USCG-2008-0190, at *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: Commander Rick Raksnis, Designated Federal Officer
(DFO)of CTAC, or Sara Ju, Assistant to the DFO, telephone 202-372-1422, fax 202-372-1926. SUPPLEMENTARY INFORMATION: Notice of these meetings is given under the Federal Advisory Committee Act, 5 U.S.C. App. (Pub. L. 92-463). Agendas of Meetings *Chemical Transportation Advisory Committee (CTAC)* . The agenda includes the following:
(1)Progress report from the Outreach Subcommittee and its Barge Emissions and Hazard Communication Working Group.
(2)Status report on the HCTS Subcommittee.
(3)Status report on the NFPA 472 Subcommittee.
(4)Progress report on the IMSBC Code Subcommittee.
(5)Presentation on U.S. Coast Guard Web site “Homeport”.
(6)Presentation on Transportation Security Administration
(TSA)on surface transportation security within the railroad industry.
(7)Presentation on Hazardous Materials First Responder training offered by the International Association of Fire Fighters.
(8)Status report on the implementation of the Transportation Worker Identification Credential (TWIC).
(9)Presentation on the National Response Center (NRC). *The Outreach Subcommittee.* The Subcommittee will discuss the application of the U.S. Coast Guard's Web site “Homeport” to help advance its outreach activities. *The Barge Emissions and Hazard Communication Working Group.* The Working Group will discuss emergency response contact numbers on barges and various outreach efforts for first responders. *The NFPA 472 Standard Subcommittee.* The Subcommittee will review its task statement and identify any outstanding items. *The HCTS Subcommittee.* The Subcommittee will discuss the status of the Transportation Worker Identification Credential
(TWIC)and proposed changes to the Advanced Notice of Arrival
(ANOA)process. *The IMSBC Code Subcommittee.* The Subcommittee will discuss the following topics:
(1)Adoption of the IMSBC Code and the requirements contained in SOLAS Chapter VI for international shipments of solid bulk cargoes;
(2)Harmonization of U.S. regulations with the IMSBC Code and SOLAS Chapter VI; and
(3)Incorporation of requirements and best practices for the safe transport of solid bulk cargoes contained in Coast Guard policy, guidelines, and previously issued special permits. The Subcommittee will develop recommendations to Title 46 Code of Federal Regulations
(CFR)Part 148, taking into account the IMSBC Code, for CTAC to review and approve. This is the first in a series of meetings anticipated for this Subcommittee. Working groups and/or correspondence groups will be established to facilitate the work of this Subcommittee. Procedural These meetings are open to the public. At the Chairman's discretion, members of the public may make oral presentations during the meeting. If you would like to make an oral presentation, please notify the DFO no later than April 18, 2008. Written material for distribution at this meeting should reach the Executive Director no later than April 18, 2008. If you would like a copy of your material distributed to each committee member in advance of the meeting, please submit 25 copies to the Executive Director no later than April 18, 2008. Information on Services for Individuals With Disabilities For information on facilities or services for individuals with disabilities or to request special assistance at this meeting, contact the Executive Director as soon as possible. Dated: March 21, 2008. J. Lantz, Director of Commercial Regulations and Standards. [FR Doc. E8-6618 Filed 3-31-08; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard [Docket No. USCG-2008-0208] Commercial Fishing Industry Vessel Safety Advisory Committee; Meeting AGENCY: Coast Guard, DHS. ACTION: Notice of meeting. SUMMARY: The Commercial Fishing Industry Vessel Safety Advisory Committee (CFIVSAC) will meet in New Orleans, LA, to discuss various issues relating to commercial vessel safety in the fishing industry. This meeting will be open to the public. DATES: CFIVSAC will meet on May 28-30, 2008, from 8 a.m. to 5 p.m. This meeting may close early if all business is finished. Written material and requests to make oral presentations should reach the Coast Guard on or before May 14, 2008. Requests to have a copy of your material distributed to each member of the committee should reach the Coast Guard on or before May 14, 2008. ADDRESSES: CFIVSAC will meet at the Wyndham Riverfront Hotel: 701 Convention Center Boulevard, New Orleans, LA 70130. Send written material and requests to make oral presentations to Captain Michael Karr, Designated Federal Officer
(DFO)of CFIVSAC, United States Coast Guard Fishing Vessel Safety Division, 2100 2nd St., SW., Washington, DC 20593. This notice and documents identified in the Supplementary Information section as being available in the docket may be viewed in our online docket, USCG-2008-0208, at *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: Lieutenant Commander Kenneth Vazquez, Assistant to the Designated Federal Officer of CFIVSAC, by telephone at 202-372-1247, fax 202-372-1819, e-mail: *Kenneth.Vazquez@uscg.mil.* SUPPLEMENTARY INFORMATION: Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. (Pub. L. 92-463). Agenda of Meeting The agenda for the CFIVSAC meeting is as follows:
(1)Commercial Fishing Vessel Safety District Coordinators updates.
(2)Industry Update
(3)Status report on the Commercial Fishing Vessel Safety Rulemaking.
(4)Legislation update: The House and Senate fishing vessel safety related proposals discussed in their versions of the Coast Guard authorization bills; Pending final bills outcomes.
(5)Discussions and working group sessions by the Communications and Risk Management Subcommittees on current program strategies, future plans, and long range goals for CFIVSAC. Procedural This meeting is open to the public. Please note the meetings may close early if all business is finished. At the Chair's discretion, members of the public may make presentations during the meeting. If you would like to make an oral presentation at the meeting, please notify the Designated Federal Officer no later than May 14, 2008. Written material for distribution at a meeting should reach the Coast Guard no later than May 14, 2008. If you would like a copy of your material distributed to each member of the committee in advance of the meeting, please submit 25 copies to the Executive Director no later than May 14, 2008. Information on Services for Individuals With Disabilities For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact the Designated Federal Officer as soon as possible but no later than May 14, 2008. Dated: March 25, 2008. J.G. Lantz, Director of Commercial Vessel Regulations and Standards, Assistant Commandant for Marine Safety, Security, and Stewardship. [FR Doc. E8-6624 Filed 3-31-08; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT [Docket No. FR-5187-N-17] Congregate Housing Services Program AGENCY: Office of the Chief Information Officer, HUD. ACTION: Notice. SUMMARY: The proposed information collection requirement described below has been submitted to the Office of Management and Budget
(OMB)for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal. This collection is fundamental to the ongoing operations of the Congregate Housing Services Program (CHSP). The Department monitors the proper use of grant funds according to statutory, regulatory, and administrative requirements. The Grantees must meet annual requirements. DATES: *Comments Due Date: May 1, 2008* . ADDRESSES: Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2502-0485) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-6974. FOR FURTHER INFORMATION CONTACT: Lillian Deitzer, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail Lillian Deitzer at *Lillian_L_Deitzer@HUD.gov* or telephone
(202)402-8048. This is not a toll-free number. Copies of available documents submitted to OMB may be obtained from Ms. Deitzer. SUPPLEMENTARY INFORMATION: This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the Information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to:
(1)Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2)Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information;
(3)Enhance the quality, utility, and clarity of the information to be collected; and
(4)Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. *This notice also lists the following information:* *Title of Proposal:* Congregate Housing Services Program. *OMB Approval Number:* 2502-0485. *Form Numbers:* HUD-90006, HUD-90198, HUD-901180-A, SF-269, 91178-A. *Description of the Need for the Information and its Proposed Use:* This collection is fundamental to the ongoing operations of the Congregate Housing Services Program (CHSP). The Department monitors the proper use of grant funds according to statutory, regulatory, and administrative requirements. The Grantees must meet annual requirements. *Frequency of Submission:* Quarterly, Semi-annually, Annually. Number of respondents Annual responses X Hours per response = Burden hours Reporting Burden 63 8 2.187 1,102.5 *Total Estimated Burden Hours:* 1,102.5. *Status:* Reinstatement, without change of previously approved collection. Authority: Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended. Dated: March 27, 2008. Lillian L. Deitzer, Departmental Paperwork Reduction Act Officer, Office of the Chief Information Officer. [FR Doc. E8-6694 Filed 3-31-08; 8:45 am] BILLING CODE 4210-67-P DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT [Docket No. FR-5194-N-10] Notice of Proposed Information Collection: Extension of Comment Request; Management Review for Public Housing Projects AGENCY: Office of the Assistant Secretary for Public and Indian Housing, HUD. ACTION: Notice of proposed information collection, extension. SUMMARY: This notice was previously published on February 8, 2008 and is being republished to extend the comment period until June 30, 2008. The proposed information collection requirement described below will be submitted to the Office of Management and Budget
(OMB)for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal. DATES: *Comments Due Date:* June 30, 2008. ADDRESSES: Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name/or OMB Control number and should be sent to: Lillian L. Deitzer, Department Reports Management Officer, ODAM, Department of Housing and Urban Development, 451 7th Street, SW., Room 4116, Washington, DC 20410-5000; telephone: 202-708-2374, (this is not a toll-free number) or email Ms. Deitzer at *Lillian_I._Deitzer@HUD.gov* for a copy of the proposed form and other available information. FOR FURTHER INFORMATION CONTACT: Mary Schulhof, Office of Policy, Programs and Legislative Initiatives, PIH, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; telephone: 202-708-0713 (this is not a toll-free number). SUPPLEMENTARY INFORMATION: On February 8, 2008 (73 FR 7575), this notice informed the public that the U.S. Department of Housing and Urban Development
(HUD)would be soliciting comments from the public on the subject proposal. The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended). This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to:
(1)Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2)evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information;
(3)enhance the quality, utility, and clarity of the information to be collected; and
(4)minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. This Notice also lists the following information: *Title of Proposal:* Management Review of Public Housing Projects. *OMB Control Number:* 2577—Pending. *Description of the need for the information and proposed use:* On September 19, 2005 (70 FR 54983), HUD published a final rule amending the regulations of the Public Housing Operating Fund Program at 24 CFR part 990, which was developed through negotiated rulemaking. Part 990 provides a new formula for distributing operating subsidy to public housing agencies
(PHAs)and establishes requirements for PHAs to convert to asset management. Subpart H of the part 990 regulations (§§ 990.255 to 990.290) establishes the requirements regarding asset management. Under § 990.260(a), PHAs that own and operate 250 or more dwelling rental units must operate using an asset management model consistent with the subpart H regulations. However, for the current fiscal year, that regulation is superseded by Section 225 of Title II of Division K of the Consolidated Appropriations Act, 2008, Pub. L. 110-161 (approved December 26, 2007). Under that law, PHAs that own or operate 400 or fewer units may elect to transition to asset management, but they are not required to do so. To support the transition to asset management and align HUD oversight with asset management, a new management review format is required to review PHAs on a project level, rather than PHA-wide. The forms are modeled after the asset management model consistent with the management norms in the broader multifamily industry. *Agency form numbers:* Forms HUD-5834, HUD-5834-A, and HUD-5834-B. *Members of affected public:* Public housing agencies. *Estimation of the total number of hours needed to prepare the information collection including number of respondents:* For form HUD-5834, Management Review of Public Housing Projects, there are 3,282 respondents annually with one response per respondent. Average time per response is .95 hours and the total burden hours are 3,118 hours. For form HUD-5834-A, Tenant File Review, there are 821 respondents annually with one response per respondent. Average time per response is .50 hours and the total burden hours are 410.50 hours. For form HUD-5834-B, Upfront Income Verification Review, there are 821 respondents annually with one response per respondent. Average time per response is .50 hours and the total burden hours are 410.50 hours. *Status of the proposed information collection:* New collection. Authority: Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended. Dated: March 26, 2008. Merrie Nichols Dixon, Deputy Director for Office Policy, Program and Legislative Initiatives. [FR Doc. E8-6695 Filed 3-31-08; 8:45 am] BILLING CODE 4210-67-P DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT [Docket No. FR-5100-FA-22] Announcement of Funding Awards for the Indian Community Development Block Grant Program for Fiscal Year 2007 AGENCY: Office of Native American Programs, Office of Public and Indian Housing, HUD. ACTION: Announcement of funding awards. SUMMARY: In accordance with Section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989, this announcement notifies the public of funding decisions made by the Department in a competition for funding under the Fiscal Year 2007 (FY2007) Notice of Funding Availability
(NOFA)for the Indian Community Development Block Grant (ICDBG) Program. This announcement contains the consolidated names and addresses of this year's award recipients under the ICDBG. FOR FURTHER INFORMATION CONTACT: For questions concerning the ICDBG Program awards, contact the Area Office of Native American Programs
(ONAP)serving your area or Deborah M. Lalancette, Office of Native Programs, 1670 Broadway, 23rd Floor, Denver, CO 80202, telephone
(303)675-1600. Hearing or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Information Relay Service at
(800)877-8339. SUPPLEMENTARY INFORMATION: The ICDBG program provides grants to Indian tribes and Alaska Native Villages to develop viable Indian and Alaska Native communities, including the creation of decent housing, suitable living environments, and economic opportunities primarily for persons with low and moderate incomes as defined in 24 CFR 1003.4. The FY2007 awards announced in this Notice were selected for funding in a competition announced in a NOFA published in the **Federal Register** on March 13, 2007 (72 FR 11450). Applications were scored and selected for funding based on the selection criteria in that notice and Area ONAP geographic jurisdictional competitions. The amount appropriated in FY2007 to fund the ICDBG was $59,400,000. $3,960,000 of this amount was retained to fund imminent threat grants in FY2007. In addition, a total of $75,373 in carryover funds from prior years was also available. The allocations for the Area ONAP geographic jurisdictions, including carryover, are as follows: Area ONAP Amount Eastern/Woodlands $7,063,664 Southern Plains 9,793,712 Northern Plains 7,738,525 Southwest 20,525,637 Northwest 3,349,401 Alaska 7,044,434 Total 55,515,373 In accordance with Section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989 (103 Stat. 1987, 42 U.S.C. 3545), the Department is publishing the names, addresses, and amounts of the 74 awards made under the various regional competitions in Appendix A to this document. Dated: March 25, 2008. Paula O. Blunt, General Deputy Assistant Secretary for Public and Indian Housing. Appendix A [FY 2007 Indian Community Development Block Grant Awards] Name of applicant Amount funded Project description Arctic Village, Marjorie Gommill, PO Box 69, Arctic Village, AK 99722,
(907)587-5523 $392,495 New Construction. Asa'carsarmiut Tribal Council, James Landlord, PO Box 32249, Mountain Village, AK 99632,
(907)591-2814 528,835 Health Clinic. Bear River Band of Rohnerville Rancheria, Bruce Merson, 27 Bear River Drive, Loleta, CA 95551,
(520)568-1064 605,000 Homeownership Housing Units. Chickasaw Nation, Bill Anoatubby, PO Box 1548, Ada, OK 74821,
(508)436-7216 800,000 Search and Rescue Firehouse. Chignik Bay Tribal Council, Debbie Carlson, PO Box 50, Chignik Bay, AK 99564,
(907)749-2445 599,853 Health Clinic. Chilkoot Indian Association, Gregory Stuckey, PO Box 490, Haines, AK 99827,
(907)766-2365 600,000 Rental Housing Construction. Chippewa Cree Tribe, John Houle, PO Box 544, Box Elder, MT 59521,
(406)395-4478 900,000 Housing Rehabilitation. Choctaw Housing Authority, Janie Zah-White Deer, Highway 16, Choctaw, MS 39350,
(601)656-5251 600,000 Housing Rehabilitation. Choctaw Nation, Gregory E. Pyle, PO Drawer 1210, Durant, OK 74702,
(580)924-8280 800,000 Complex for Fire Truck/Ambulance. Citizen Potawatomi Nation, John A. Barrett, 1601 South Gordon Cooper Drive, Shawnee, OK 74801,
(405)275-3121 800,000 Microenterprise Development. Cocopah Indian Tribe, Michael Reed, Country 15, Avenue G, Somerton, AZ 85350,
(928)627-8863 605,000 Housing Rehabilitation. Coeur D'Alene Tribe, Chief Allan, 850 A Street, PO Box 408, Plummer, ID 83851,
(208)686-1800 500,000 Housing Rehabilitation. Confederated Salish & Kootenai Tribes, James Steele, Jr., PO Box 278, Pablo, MT 59855,
(406)675-2700 1,076,073 Housing Rehabilitation and Homebuyer Assistance. Confederated Tribes of the Chehalis Reservation, David Burnett, PO Box 536, Oakville, WA 98568,
(360)273-5911 349,401 Water Line Expansion. Cowlitz Indian Tribe, John Barnett, S1055 9th Ave. STE B, Longview, WA 98632,
(360)577-8140 500,000 Health Clinic. Crow Tribe of Indians, Carl Venne, PO Box 159, Crow Agency, MT 59022,
(406)638-3715 1,100,000 Wastewater Lagoon System. Curyung Tribal Council, Thomas Tilden, PO Box 216, Dillingham, AK 99576,
(907)842-4510 600,000 Hospital Boiler. Eastern Shawnee Tribe, Glenna Wallace, PO Box 350, Seneca, MO,
(918)666-2435 800,000 Roads/Access to Social Service Facility. Ely Shoshone Tribe, Michael Dalton, 16 Shoshone Circle, Ely, NV 89301,
(775)289-3013 529,931 Housing Rehabilitation. Fort Peck Assiniboine and Sioux Tribes, A.T. “Rusty” Stafne, PO Box 1027, Poplar, MT 59255,
(406)768-5155 662,452 Housing Rehabilitation. Grand Traverse Band of Ottawa and Chippewa Indians, Joseph Huhn, 2605 N West Bayshore Dr., Suttons Bay, MI 49682,
(231)271-3538 600,000 Infrastructure Improvement Project. Hannahville Indian Community, Jill Wetthuhn, N14911 Hannahville B1 Rd., Wilson, MI 49896,
(906)466-2959 600,000 Health Center Renovation. Havasupai Indian Tribe, Dan Watahomigie, Supai, AZ 96435,
(602)678-0533 605,000 Extension of Electric Services. Hopi Tribe, Nat Nutongla, PO Box 123, Kykotsmovi, AZ 86039,
(928)734-3717 2,199,999 Water Improvement System. Hualapai Indian Tribe, Salena Siyuja, PO Box 179, Peach Springs, AZ 86434,
(928)769-2216 825,000 Health Programs Building. Igiugig Village Council, Dallia Andrew, #1 Airport Way, Igiugig, AK 99613,
(907)533-3211 500,000 New Home Construction. Kasigluk Traditional Elders Council, Michael C. Martin, Sr., PO Box 19, Kasigluk, AK 99609,
(907)477-6405 484,981 Health Clinic. Keweenaw Bay Indian Community, Susan LaFernier, 107 Beartown Rd., Barraga, MI 49908,
(906)353-6623 600,000 Health & Education Facility. Kokhanok Village Council, John Nelson, Box 1007, Kokhanok, AK 99606,
(907)533-3211 500,000 New Home Construction. Lac Courte Oreilles Band of Lake Superior Chippewa, Lorene Wiglot, 13394 W. Trepania Rd., Hayward, WI 54843,
(715)634-8934 600,000 Housing Rehabilitation. Laguna Housing Development & Management Enterprise, Floyd Tortaita, PO Box 178, Laguna, MN 87026,
(505)552-6430 825,000 Housing Rehabilitation. Leech Lake Band of the Minnesota Chippewa Tribe, Lee Turney, Early Childhood Div., 115 6th St. NW., Ste E, Cass Lake, MN 56633,
(218)335-3793 600,000 Early Childhood Center. Little River Band of Ottawa Indians, Fred Brown, 375 River Street, Manistee, MI 49660,
(231)723-8288 599,955 Homeownership Assistance Program. Los Coyotes Band of Indians, Diane McHenry, PO. Box 189, Warner Springs, CA 92086,
(760)432-6667 605,000 New Home Construction. Lower Brule Sioux Tribe, Michael Jandreau, 187 Oyate Circle, Lower Brule, SD 57548,
(605)473-5561 900,000 Road Improvements. Muscogee Creek, A.D. Ellis, PO Box 580, Okmulgee, OK 74447,
(918)756-8700 800,000 Community Higher Education Facility. Native Village of Ekuk, Robert Heyano, PO Box 530, Dillingham, AK 99576,
(907)842-3843 600,000 Hospital Boiler. Native Village of Gakona, Charlene Nollner, 101 School Road, Gakona, AK 99586,
(907)822-5997 381,270 Road Project and Public Facility Building. Native Village of Kwinhagak, Wassillie Bavilla, PO Box 149, Quinhagak, AK 99655,
(907)556-8165 600,000 Housing Rehabilitation. Navajo Nation, Chavez John, PO Box 2365, Window Rock, AZ 86515,
(928)871-6539 5,500,000 Power and Water Line Extensions. Nooksack Indian Tribe, Narisco Cunanan, PO Box 157, Deming, WA 98244,
(360)592-5176 500,000 Infrastructure Improvements for Homes. North Fork Rancheria of Mono Indians, William Hussmann, PO Box 929, North Fork, CA 93643,
(559)877-7360 605,000 TANF Public Facility. Ohkay Owingeh Pueblo, Tribal Council, Tomasita Duran, PO Box 1099, Ohkay Owingeh, NM 87566,
(505)852-0189 605,000 Housing Rehabilitation. Ottawa Tribe of Oklahoma, Charles Todd, PO Box 110, Miami, OK 74363,
(948)540-1536 800,000 Community Center. Penobscot Tribe of ME, Craig Sanborn, 6 River Rd., Indian Island, ME 04468,
(207)827-7776 527,241 Water System Improvements. Pleasant Point Passamaquoddy Tribe, Rueben Cleaves, 9 Sakom Rd., Perry, ME 04667,
(207)853-6022 600,000 Housing Rehabilitation. Pinoleville Pomo Nation, David Ponton, 500B Pinoleville Drive, Ukiah, CA 95482,
(707)463-1454 597,305 Housing Infrastructure. Ponca Tribe, Dan Jones, 20 White Eagle Drive, Ponca City, OK,
(580)762-8104 742,171 Public Transit and Public Service Projects. Port Gamble S'Klallam Tribe, Ron Charles, 31912 Little Boston Road, NE., Kingston, WA 98346,
(360)297-2646 500,000 Youth Services Center. Pueblo of Jemez, Marvin Ginn, PO Box 100, Jemez Pueblo, NM 87024,
(505)834-0305 565,902 Housing Rehabilitation and Mortgage Principal Buydown. Pueblo of San Felipe, Isaac Perez, PO Box 4339, San Felipe Pueblo, NM 87001,
(505)771-9291 825,000 Housing Rehabilitation. Pueblo of Zuni, Andrew Othole, 1203 B State Hwy. 53, Zuni, NM 87327,
(505)782-3054 2,200,000 Housing Rehabilitation. Quapaw Tribe, John Berrey, Box 765, Quapaw, OK 74363,
(918)542-1853 798,846 Fire Station. Quartz Valley Indian Reservation, Darlene Kammeyer, 13601 Quartz Valley Rd., Fort Jones, CA 96032,
(707)568-3571 605,000 Fire Station. Reno Sparks Indian Colony, Elvin Willie, 98 Colony Road, Reno, NV 89502,
(775)785-1331 605,000 Transitional Living Center. Sac and Fox of Oklahoma, Elizabeth Rhoads, Route 2, Box 246, Stroud, OK 74079,
(918)968-3526 310,000 Waste Water Lagoon System. San Xavier District, Kelly Moyes, 2018 W. San Xavier Road, Tucson, AZ 85746,
(520)573-4005 187,500 Housing Rehabilitation. Sault Ste. Marie Tribe of Chippewa Indians of MI, Carolyn O'Neil, 523 Ashmun St., Sault Ste. Marie, MI 49783,
(906)495-1454 536,468 Housing Rehabilitation. Seneca-Cayuga Tribe, Paul Spicer, PO Box 1283, Miami, OK 74355,
(918)542-6609 797,577 Career Resource Center. Sisseton-Wahpeton Oyate of the Lake Traverse Reservation, Michael Selvage, 605 Lydia Goodsell Street, Sisseton, SD 57262,
(605)698-3901 1,100,000 Housing Rehabilitation. Skagway Traditional Council, Amber Matthews, PO Box 1157, Skagway, AK 99840,
(907)983-4068 237,000 Housing Rehabilitation. Sokaogon Chippewa Community, Steve Woods, 3051 Sand Lake Rd., Crandon, WI 54520,
(715)478-2001 600,000 Health Clinic. Spokane Tribe, Richard Sherwood, PO Box 100, Wellpinit, WA 99040,
(509)458-6500 500,000 Childhood Development Center. Standing Rock Sioux Tribe, Ron His Horse Is Thunder, PO Box D, Fort Yates, ND 58538,
(701)854-7201 1,100,000 Gymnasium and Wellness Center. Taos Pueblo Housing, Gary Lujan, PO Box 2570, Taos, NM 87571,
(505)737-9704 825,000 Housing Rehabilitation. Turtle Mountain Band of Chippewa, David Brien, PO Box 900, Belcourt, ND 58316,
(701)477-2600 900,000 Housing Rehabilitation. Twin Hills Village Council, John Sharp, PO Box TWA, Twin Hills, AK 99576,
(907)525-4821 600,000 Hospital Boiler. United Keetoowah Band of Cherokee Indians, George Wickliffe, PO Box 746, Tahlequah, OK 73005,
(918)546-5126 800,000 Multipurpose Cultural Center. Village of Venetie, Mary Rose Gamboa, PO Box 81119, Venetie, AK 99781,
(907)848-8212 420,000 New Home Construction. White Earth Band of the Minnesota Chippewa Tribe, Michael Triplett, PO Box 418, White Earth, MN 56591,
(218)935-2359 600,000 Water and Sewer Infrastructure. Wichita & Affiliated Tribes, Gary McAdams, PO Box 729, Anandarko, OK 73005,
(405)247-2425 794,598 Child Development Center. Wyandotte Nation, Leaford Bearskin, Chief, 64700E Highway 60, Wyandotte, OK 74370,
(918)678-2297 750,520 Water System Improvements. Yakama Nation, Lavina Washines, Tribal Chairperson, PO Box 151, Toppenish, WA 98948,
(509)865-5121 500,000 Repair/Upgrade of Water System. Yurok Tribe, Peggy O'Neill, PO Box 1027, Klamath, CA 95548,
(707)482-1350 605,000 Power and Phone Line Extensions. [FR Doc. E8-6719 Filed 3-31-08; 8:45 am] BILLING CODE 4210-67-P DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs Tribal Consultation for Facilities Management Activities AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice of meetings. SUMMARY: This notice announces that the Bureau of Indian Affairs
(BIA)and the Bureau of Indian Education
(BIE)will be conducting tribal consultation meetings to obtain oral and written comments on potential facility management commercial activities and to determine whether these facility management activities should be: provided by a private sector provider through a contract; by government personnel through a letter of obligation; or by a public reimbursable source through a fee-for-service agreement within Indian Country. The proposed topic is the Office of Management and Budget
(OMB)Circular A-76 standard study on the facilities management within BIA/BIE. The intended effect of the A-76 study is to review and select which facilities management functions will be considered for competition. The intended results are to improve performance, become more efficient through the A-76 process, and reduce overall program cost. The potential issues set forth will be described in a tribal consultation booklet issued prior to the meetings by BIA/BIE. DATES: The tribal consultation meeting dates are scheduled for: 1. April 14, 2008, 9 a.m. to 3 p.m., Window Rock, AZ. 2. April 17, 2008, 9 a.m. to 3 p.m., Rapid City, SD. 3. April 21, 2008, 9 a.m. to 3 p.m., Albuquerque, NM. Please submit written comments on April 28, 2008 before 5 p.m. (m.s.t.). ADDRESSES: The tribal consultation meeting locations are: 1. New Mexico—Navajo Education Center Building (Auditorium), off Morgan Boulevard, Window Rock, AZ, 86515. 2. Rapid City—Best Western Ramkota Hotel-conference room, 2111 N. La Crosse Street, Rapid City, SD, 57701. 3. New Mexico—Bureau of Indian Affairs, 1011 Indian School Road NW, second floor (check the marquee), Albuquerque, NM, 87104. You may submit written comments by any of the following methods: • *E-mail: dbrown@bia.edu* . • *Fax:*
(505)563-3019. • *Mail:* Bureau of Indian Affairs, Attn: David Brown, Supervisory Procurement Analyst, 1001 Indian School Road NW., Room 325, Albuquerque, NM 87104. FOR FURTHER INFORMATION CONTACT: David Brown,
(505)563-3011. SUPPLEMENTARY INFORMATION: As part of the study, BIA is encouraging a consultation process to discuss an A-76 study on facilities management activities and explore the most favorable option to improve program performance and reduce overall cost. The meetings will be held to inform, educate and seek opinions about the processes involved in OMB's Circular A-76. As required by 25 U.S.C. 2011(b), the purpose of the consultation is to provide Indian tribes, school boards, Indian organizations and other interested parties with an opportunity to comment on Circular A-76 and actions being considered by the BIA and BIE. A consultation booklet will be available to any Indian tribes, school boards, Indian organizations and other interested parties at the scheduled meetings or prior to these meetings (via postal mail only) by contacting David Brown at the number above. Public Comment Availability Comments, including names, street addresses, and other contact information of respondents, will be available for public review at the address listed under the ADDRESSES section during regular business hours (9 a.m. to 4:15 p.m. m.s.t.), Monday through Friday, except Federal holidays. Individual respondents may request confidentiality. If you wish us to withhold your name, street address, and other contact information (such as fax or phone number) from public review or from disclosure under the Freedom of Information Act (5 U.S.C. 552; 43 CFR Part 2, subparts A through E), you must state this prominently at the beginning of your comment. We will honor your request to the extent allowable by law. On May 7, 2008, any interested party can review all written comments and transcripts. Contact David Brown if you are interested in viewing these comments and transcripts. Dated: March 25, 2008. Carl J. Artman, Assistant Secretary—Indian Affairs. [FR Doc. E8-6644 Filed 3-31-08; 8:45 am] BILLING CODE 4310-02-P DEPARTMENT OF THE INTERIOR Bureau of Land Management [WO-320-08-1310-DT-OSHL] Notice of Reopening of the Public Comment Period for the Draft Oil Shale and Tar Sands Resource Management Plan Amendments To Address Land Use Allocations in Colorado, Utah, and Wyoming and Programmatic Environmental Impact Statement AGENCY: Bureau of Land Management, Interior. ACTION: Notice of reopening of public comment period. SUMMARY: The Bureau of Land Management
(BLM)announces the reopening of the public comment period for the, “Draft Oil Shale and Tar Sands Resource Management Plan Amendments to Address Land Use Allocations in Colorado, Utah, and Wyoming and Programmatic Environmental Impact Statement.” This draft national programmatic EIS addresses lands that may eventually be available for oil shale and tar sands leasing on public lands administered by BLM in Colorado, Utah and Wyoming. DATES: The original notice issued December 21, 2007, provided for a comment period to end on March 20, 2008. BLM is reopening the comment period until April 21, 2008. ADDRESSES: Written comments should be sent to: BLM Oil Shale and Tar Sands Resources Leasing Draft Programmatic EIS Comments, 9700 South Cass Avenue, Argonne, IL 60439. Comments may also be sent by e-mail to *http://osteis.anl.gov.* FOR FURTHER INFORMATION CONTACT: Sherri Thompson, Project Manager, Bureau of Land Management, at
(303)239-3758, ( *sherri_thompson@blm.gov* ), Bureau of Land Management, 2850 Youngfield Street, Lakewood, Colorado 80215, or Mitchell Leverette, BLM Division Chief, Solid Minerals, at
(202)452-0351, ( *mitchell_leverette@blm.gov* ), Bureau of Land Management, 1620 L Street, NW., Washington, DC 20036. SUPPLEMENTARY INFORMATION: The original Notice of Availability, issued on December 21, 2007, provided for comments on the Draft EIS to be received through March 20, 2008. Several individuals and groups requested an extension of the comment period. BLM has decided to reopen the comment period, therefore, comments on the Draft PEIS will now be accepted through April 21, 2008. Dated: March 25, 2008. Robert M. Anderson, Deputy Assistant Director, Minerals and Realty Management. [FR Doc. E8-6645 Filed 3-31-08; 8:45 am] BILLING CODE 4310-84-P DEPARTMENT OF THE INTERIOR Bureau of Land Management Privacy Act of 1974; Amendments to Existing Systems of Records AGENCY: Bureau of Land Management, Interior. ACTION: Proposed amendment of existing Privacy Act systems of records. SUMMARY: In accordance with the Privacy Act of 1974 (5 U.S.C. 552a), the Bureau of Land Management of the Department of the Interior is issuing public notice of its intent to amend 27 existing Privacy Act system of records notices to add a new routine use to authorize the disclosure of records to individuals involved in responding to a breach of Federal data. DATES: Comments must be received by May 12, 2008. ADDRESSES: Any persons interested in commenting on these proposed amendments may do so by submitting comments in writing to the Bureau of Land Management, Privacy Act Program Manager, Laura F. Bell, 1849 C Street, NW., 750 LS, WO 560, Washington, DC 20240, or e-mail: *lfbell@blm.gov.* FOR FURTHER INFORMATION CONTACT: Bureau of Land Management, Privacy Act Program Manager, Laura F. Bell, U.S. Department of the Interior, 1849 C Street, NW., 750 LS, WO 560, Washington, DC 20240, or e-mail: *lfbell@blm.gov.* SUPPLEMENTARY INFORMATION: On May 22, 2007, in a memorandum for the heads of Executive Departments and Agencies entitled “Safeguarding Against and Responding to the Breach of Personally Identifiable Information,” the Office of Management and Budget directed agencies to develop and publish a routine use for disclosure of information in connection with response and remedial efforts in the event of a data breach. This routine use will serve to protect the interests of the individual, whose information is at issue by allowing agencies to take appropriate steps to facilitate a timely and effective response to the breach, thereby improving its ability to prevent, minimize, or remedy any harm resulting from a compromise of data maintained in its systems of records. Accordingly, the Bureau of Land Management of the Department of the Interior is proposing to add a new routine use to authorize disclosure to appropriate agencies, entities, and persons, of information maintained in the following systems in the event of a data breach. These amendments will be effective as proposed at the end of the comment period unless comments are received which would require a contrary determination. The Department will publish a revised notice if changes are made based upon a review of comments received. Dated: March 3, 2008. Laura F. Bell, Bureau of Land Management Privacy Act Program Manager. SYSTEM NAMES: BLM—2 Range Management System—Interior—LLM—2 BLM—3 Mineral Lease Management System—Interior—LLM—3 BLM—4 Coal Lease Data System—Interior—LLM—4 BLM—6 Mineral Surveyor Appointment File—Interior—LLM—6 BLM—8 Aircraft Passenger Manifest Records—Fire Control—Interior LLM—8 BLM—9 Property and Supplies Accountability—Interior—LLM—9 BLM—10 Vehicle Use Authorizations—Interior—LLM—10 BLM—12 Manpower Management—Interior—LLM—12 BLM—13 Safety Management Information—Interior—LLM—13 BLM—14 Security Clearance Files—Interior—LLM—14 BLM—15 Correspondences—Interior—LLM—15 BLM—16 Mineral and Vegetable Material Sales—Interior—LLM-16 BLM—18 Criminal Case Investigations—Interior—LLM-18 BLM—19 Civil Trespass Case Investigation Files—Interior—LLM-19 BLM—20 Employee Conduct Investigations—Interior—LLM-20 BLM—21 Travel—Interior—LLM-21 BLM—22 Financial Management—Interior—LLM-22 BLM—23 Contract Files—Interior—LLM-23 BLM—24 Copy Fee Deposit—Interior LLM-24 BLM—26 Incentive and Honor Awards—Interior—LLM-26 BLM—27 Real Estate Appraisal Roster—Interior—LLM-27 BLM—28 Adopt a Wild Horse—Interior—LLM-28 BLM—30 Uniform Accountability System—Interior—LLM-30 BLM—31 Name File System—Interior—LLM-31 BLM—32 Lands & Minerals Authorization Tracking System—Interior—LLM-32 BLM—35 Collections and Billings System—Interior—LLM-35 BLM—37 Wild Horse And Burro Program System—Interior—LLM-37 NEW ROUTINE USE: Disclosures outside the Department of the Interior may be made: To appropriate agencies, entities, and persons when:
(a)It is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; and
(b)The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interest, identity theft, or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and
(c)The disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm. [FR Doc. E8-6648 Filed 3-31-08; 8:45 am] BILLING CODE 4310-84-P DEPARTMENT OF THE INTERIOR Bureau of Land Management [CO-922-08-1310-FI; COC62074] Notice of Proposed Reinstatement of Terminated Oil and Gas Lease AGENCY: Bureau of Land Management, Interior. ACTION: Notice of Proposed Reinstatement of Terminated Oil and Gas Lease. SUMMARY: Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b)(1), the Bureau of Land Management
(BLM)received a petition for reinstatement of oil and gas lease COC62074 from Red Willow Production, LLC for lands in Jackson County, Colorado. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law. FOR FURTHER INFORMATION CONTACT: Bureau of Land Management, Milada Krasilinec, Land Law Examiner, Branch of Fluid Minerals Adjudication, at 303.239.3767. SUPPLEMENTARY INFORMATION: The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10.00 per acre or fraction thereof, per year and 16 2/3 percent, respectively. The lessee has paid the required $500 administrative fee and $163 to reimburse the Department for the cost of this **Federal Register** notice. The lessee has met all the requirements for reinstatement of the lease as set out in Section 31(d) and
(e)of the Mineral Lands Leasing Act of 1920 (30 U.S.C. 188), and the Bureau of Land Management is proposing to reinstate lease COC62074 effective September 1, 2007, under the original terms and conditions of the lease and the increased rental and royalty rates cited above. Dated: March 26, 2008. Milada Krasilinec, Land Law Examiner. [FR Doc. E8-6621 Filed 3-31-08; 8:45 am] BILLING CODE 4310-JB-P DEPARTMENT OF THE INTERIOR Bureau of Land Management [CO-922-08-1310-FI; COC62079] Notice of Proposed Reinstatement of Terminated Oil and Gas Lease AGENCY: Bureau of Land Management, Interior. ACTION: Notice of Proposed Reinstatement of Terminated Oil and Gas Lease. SUMMARY: Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b)(1), the Bureau of Land Management
(BLM)received a petition for reinstatement of oil and gas lease COC62079 from Red Willow Production, LLC for lands in Jackson County, Colorado. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law. FOR FURTHER INFORMATION CONTACT: Bureau of Land Management, Milada Krasilinec, Land Law Examiner, Branch of Fluid Minerals Adjudication, at 303-239-3767. SUPPLEMENTARY INFORMATION: The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10.00 per acre or fraction thereof, per year and 16 2/3 percent, respectively. The lessee has paid the required $500 administrative fee and $163 to reimburse the Department for the cost of this **Federal Register** notice. The lessee has met all the requirements for reinstatement of the lease as set out in Section 31(d) and
(e)of the Mineral Lands Leasing Act of 1920 (30 U.S.C. 188), and the Bureau of Land Management is proposing to reinstate lease COC62079 effective September 1, 2007, under the original terms and conditions of the lease and the increased rental and royalty rates cited above. Dated: March 26, 2008. Milada Krasilinec, Land Law Examiner. [FR Doc. E8-6623 Filed 3-31-08; 8:45 am] BILLING CODE 4310-JB-P DEPARTMENT OF THE INTERIOR Bureau of Land Management [OR-027-1020-PI-020H; HAG-08-0065] Notice of Solicitation of Applications for the Steens Mountain Advisory Council AGENCY: Bureau of Land Management, Interior. ACTION: Notice: Solicitation of Applications. SUMMARY: The Bureau of Land Management
(BLM)is requesting public applications to fill four expired terms on the Steens Mountain Advisory Council (SMAC). Applications will be accepted for a person who is a local environmental representative, a person who is a grazing permittee in the Steens Mountain Cooperative Management and Protection Area (CMPA), a person with expertise and interest in wild horse management, and a person who is a member of the dispersed recreation community on the Steens Mountains. DATES: Send all applications to the address listed below no later than *May 1, 2008* . ADDRESSES: Applicants can obtain application forms from Kevin Thissell, Temporary SMAC Coordinator, Burns District Office, 28910 Highway 20 West, Hines, Oregon 97738,
(541)573-4541, or *Kevin_Thissell@or.blm.gov* . Send all application materials to this address prior to the closing date listed above. SUPPLEMENTARY INFORMATION: The SMAC advises the BLM on the management of the Steens Mountain CMPA as described in Public Law 106-399. Each member will be a person who, as a result of training and experience, has knowledge or special expertise that qualifies him or her to provide advice from the categories of interest identified above. These positions will be for the full term of three years, expiring in October of 2011. The SMAC members serve without monetary compensation, but are reimbursed for travel and per diem expenses at current rates for government employees. The SMAC meets only at the call of the Designated Federal Official, but not less than once per year. The following must accompany all nominations: A completed background information nomination form; letters of reference from the constituency to be represented; and any other information that details the nominee's qualifications. The letter of application should specify the category the applicant would like to represent. Application forms and letters of reference will be reviewed by the County Court of Harney County and the BLM. The BLM will then forward recommended nominations to the Secretary of the Interior, who has responsibility for making the appointments. Karla Bird, Andrews Resource Area Field Manager. [FR Doc. E8-6650 Filed 3-31-08; 8:45 am] BILLING CODE 4310-33-P DEPARTMENT OF THE INTERIOR Minerals Management Service Outer Continental Shelf Civil Penalties AGENCY: Minerals Management Service (MMS), Interior. ACTION: Notice summarizing Outer Continental Shelf Civil Penalties paid from January 1, 2007, through December 31, 2007. SUMMARY: This notice provides a listing of civil penalties paid from January 1, 2007, through December 31, 2007, for violations of the Outer Continental Shelf Lands Act. The goal of the MMS Outer Continental Shelf Civil Penalties Program is to assure safe and clean operations on the Outer Continental Shelf. Through the pursuit, assessment, and collection of civil penalties and referrals for the consideration of criminal penalties, the program is designed to encourage compliance with applicable statutes and regulations. The purpose of publishing the penalties summary is to provide information to the public on violations of special concern in Outer Continental Shelf operations and to provide an additional incentive for safe and environmentally sound operations. FOR FURTHER INFORMATION CONTACT: Joanne McCammon, Program Coordinator, at 703-787-1292. SUPPLEMENTARY INFORMATION: The Oil Pollution Act of 1990 (OPA 90) strengthened section 24 of the Outer Continental Shelf Lands Act (OCSLA) Amendments of 1978. Subtitle B of OPA 90, titled “Penalties,” increased the amount of the civil penalty from a maximum of $10,000 to a maximum of $20,000 per violation for each day of noncompliance. More importantly, in cases where a failure to comply with applicable regulations constitutes or constituted a threat of serious, irreparable, or immediate harm or damage to life (including fish and other aquatic life); property; any mineral deposit; or the marine, coastal, or human environment; OPA 90 provided the Secretary of the Interior (Secretary) with the authority to assess a civil penalty without regard to the requirement of expiration of a period of time allowed for corrective action. The provisions of OPA 90 also require the Secretary to adjust the maximum civil penalty to reflect any increases in the Consumer Price Index (CPI). Every 3 years, MMS analyzes the civil penalty maximum amount in conjunction with the CPI prepared by the U.S. Department of Labor. If an adjustment is necessary, MMS informs the public through the **Federal Register** of the new maximum amount. The MMS has published regulations adjusting the civil penalty assessment to $25,000 in August 8, 1997 (62 FR 42668), to $30,000 in November 28, 2003 (68 FR 61622), and to $35,000 in February 28, 2007 (72 FR 8897). Between August 18, 1990, and January 2008, MMS initiated 623 civil penalty reviews. Operators have paid 498 civil penalties for a total of $18,591,792 in fines. On September 1, 1997, the Associate Director of Offshore Minerals Management issued a notice informing lessees and operators of Federal oil, gas, and sulphur leases on the OCS that MMS will annually publish a summary of OCS civil penalties paid. The annual summary will highlight the identity of the party, the violation and date, the amount and date paid, and the regulation violated. The following table provides a listing of the 36 penalties paid between January 1, 2007, and December 31, 2007. The total amount collected is $3,106,000. The list is posted on the MMS's Web page at *http://www.mms.gov/civilpenalties/* . 2007 Civil/Criminal Penalties Summary—All Penalties Paid in Calendar Year 2007 [1/1/2007-12/31/2007] Operator name and case No. Violation and date(s) Penalty paid and date paid Regulation(s) violated (30 CFR) Petro Ventures, Inc., G-2002-042 The boat landing Emergency Shut-down
(ESD)station by-passed, and the ESD station at the top of the stairs leading to the boat landing was also by-passed—both by a manual isolation valve 03-JUL-2002—12-JUL-2002 03-JUL-2002—12-JUL-2002 $60,000, 3/14/2007 § 250.803(c), § 250.803(c). BP Exploration & Production Inc., (Diamond Offshore Drilling, Inc.), G-2004-003 Operator failed to verify employees were trained to competently perform the assigned well control duties. Additionally, they failed to have a remote-controlled station that could operate the valves in the flow and vent lines of the diverter. These violations contributed to a loss of well control event on November 14, 2002. There was no pollution or injuries 04-NOV-2002—14-NOV-2002 13-NOV-2002—13-NOV-2002 $41,000, 10/25/2007 § 250.1503(a), § 250.409(c). The Houston Exploration Company, G-2006-016 Two ESD stations at the boat landing were taken out-of-service and the two primary means of escape were unsafe 18-NOV-2005—18-JAN-2006 28-OCT-2005—18-JAN-2006 $317,500, 2/27/2007 § 250.803(b)(4), § 250.107. Maritech Resources Inc., G-2006-021 A major component of the approved dry chemical firefighting system was inoperable. Four 350-pound wheel unit fire extinguishers were not ready-for-use since the nitrogen cylinders were not connected 10-MAR-2005—10-MAR-2005 $30,000, 3/22/2007 § 250.803(b)(8). Maritech Resources Inc., G-2006-024 The platform was producing without operable ESD stations on the east & west boat landings, and once the ESD stations were repaired, the block valves were left in the closed position. Additionally, surface-controlled subsurface safety valves (SCSSV's) for Wells B-1, B-4, B-10, B-20, B-22, and B-24 were blocked out-of-service since the manual override valve was closed at the main panel 01-OCT-2005—14-NOV-2005 06-NOV-2005—15-NOV-2005 $162,500, 5/10/2007 § 250.803(c), § 250.803(c). Energy Partners, Ltd., G-2006-025 A rig floor hand was injured while using a spinner wrench 06-APR-2006—06-APR-2006 $30,000, 4/23/2007 § 250.107. Merit Energy Company (Island Operators Co., Inc.), G-2006-027 Pressure vessel had a hole where an inappropriate patch was used to repair it 19-DEC-2005-31—JAN-2006 $220,000, 4/25/2007 § 250.107. Mariner Energy, Inc., G-2006-028 Employee injured when he fell 11 feet while working on an electrical tray 11 feet above the deck 01-JUN-2006—01-JUN-2006 $30,000, 8/8/2007 § 250.107. Pogo Producing Company (Wood Group Production Services), G-2006-030 The isolation valve was closed on the fuel gas supply line for the sump pump, placing the sump pump in an out-of-service mode. The condition of the sump tank was not being monitored by platform personnel 01-APR-2006—03-APR-2006 $15,000, 2/14/2007 § 250.300(b)(4). Noble Energy, Inc., G-2006-031 The Level Safety High
(LSH)on the bulk oil separator MBD 1000 was found in the closed position rendering it inoperable (by-passed) Welding operations within 35 feet horizontally of equipment containing hydrocarbons from the point of impact of slag, sparks, or burning material at lower elevations and was not otherwise protected. 21-JUL-2005—21-JUL-2005 21-JUL-2005—21-JUL-2005 $35,000, 1/25/2007 § 250.803, § 205.113. Nexen Petroleum U.S.A. Inc., G-2006-033 An open hole was found on the plus 10′ deck leading to the boat landing and there was no barricade to prevent personnel from entering the unsafe area 03-MAY-2006—03-MAY-2006 $10,000, 4/26/2007 § 250.107(a). Merit Energy Company, G-2006-035 Repairs were conducted on the damaged crane boom not in accordance with API RP 2D, Section 4.3.3(e) and the crane was placed back in-service without conducting a load test 09-AUG-2006—09-AUG-2006 $10,000, 3/14/2007 § 250.108. Apache Corporation, G-2006-036 Records verified there was not a low or high pressure test conducted on the following Blow Out Preventor
(BOP)related equipment: HCR choke valve, manual choke valve, HCR kill valve, manual kill valve, kill line check valve, Inside BOP valve and choke manifold. These violations were for 2 BOP test periods, 7/19/2006 and 7/26/2006. A mud-pit-level indicator with both visual and audible warning devices had not been installed. There was not a BOP station installed in the work basket of the snubbing unit. The secondary power source (air supply) was isolated with a closed manual block valve located on the inlet piping to the accumulator 02-AUG-2006—02-AUG-2006 19-JUL-2006—02-AUG-2006 21-JUL-2006—02-AUG-2006 21-JUL-2006—02-AUG-2006 26-JUL-2006—02-AUG-2006 $446,000, 8/3/2007 § 250.615(c), § 250.616(a), § 250.614(c), § 250.615(c), § 250.616(a). NCX Company, L.L.C., G-2006-037 Records verify that the Flow Safety Valves
(FSV)for Wells B3 and B9 were not tested during the months of April, May, June, and July of 2006, and the FSV for Well B13 was not tested during the months of March and April of 2006. The Surface Safety Valves
(SSV)for Wells B3 and B9 were not tested during the months of April, May, June, and July of 2006, and the SSV for Well B13 was not tested during the months of March and April of 2006. The Pressure Safety High and Low
(PSHL)for Wells B3 and B9 were not tested during the months of May, June, and July of 2006. The LSH for the new sump pump (ABJ-B801) was not tested since the installation during the months of June and July of 2006 01-APR-2006—01-MAY-2006, 01-APR-2006—01-MAY-2006, 01-JUL-2006—01-AUG-2006, 01-JUL-2006—01-AUG-2006, 01-JUL-2006—01-AUG-2006, 01-JUN-2006—01-JUL-2006, 01-JUN-2006—01-JUL-2006, 01-JUN-2006—01-JUL-2006, 01-MAR-2006—01-APR-2006, 01-MAR-2006—01-APR-2006, 01-MAY-2006—01-JUN-2006, 01-MAY-2006—01-JUN-2006, 01-MAY-2006—01-JUN-2006 $170,000, 6/27/2007 § 250.804(a)(5), § 250.804(a)(6), § 250.804(a)(3), § 250.804(a)(5), § 250.804(a)(6), § 250.804(a)(3), § 250.804(a)(5), § 250.804(a)(6), § 250.804(a)(5), § 250.804(a)(6), § 250.804(a)(3), § 250.804(a)(5), § 250.804(a)(6). Forest Oil Corporation, G-2006-038 On WD 34 #3 caisson, an open hole was found on the plus 10′ deck leading to the boat landing with no barricade to prevent personnel from entering the unsafe area. On WD 34 #1 caisson, there were 2 open holes found: one open hole at the boat landing with no barricade and one opening in the deck on the top deck below the heliport, which was not covered, guarded, or otherwise made inaccessible 18-MAY-2006—18-MAY-2006 $30,000, 7/23/2007 § 250.107. SPN Resources, G-2006-040 Well A-16 Flowline PSHL were bypassed while not being flagged or monitored. Also, the isolation valve directly upstream of the PSV on the compressor first stage suction scrubber was closed thus rendering the PSV inoperable 14-MAY-2006—15-MAY-2006 $20,000, 6/15/2007 § 250.803(c). Chevron U.S.A. Inc., G-2006-041 The LSH on Run Tank, MAJ 1027, was bypassed while changing a leaking site glass. There was no way to monitor the level inside the vessel which was a contributing factor to the 2 bbl oil spill on August 1, 2006 01-AUG-2006—01-AUG-2006 $15,000, 4/10/2007 § 250.803(c). Freeport-McMoRan Energy LLC, G-2007-001 While changing the orifice plate on the test separator meter run, the lead operator was overcome by H2S gas. The bottom gate of the orifice fitting did not seal completely, allowing gas to leak into the atmosphere; and proper H2S safety measures had not been taken 22-SEP-2006—22-SEP-2006 22-SEP-2006—22-SEP-2006 $50,000, 9/10/2007 § 250.107, § 250.490(f)(1-13). Stone Energy Corporation, G-2007-002 The SCSSV for a well was found open and the manual block valve on the control line located at the well was closed rendering the SCSSV inoperable (by-passed), the valve would not close as designed with the loss of hydraulic pressure 19-AUG-2006—19-AUG-2006 $10,000, 4/26/2007 § 250.803. Remington Oil and Gas Corporation, G-2007-004 The mechanical ventilation safety system protecting the Mud Engineer's portable building was found manually by-passed 26-SEP-2006—26-SEP-2006 $17,500, 8/7/2007 § 250.459(d). TDC Energy LLC G-2007-005 A pollution event occurred with approximately 28 gallons spilled into Gulf waters; the skimmer tank skid, sump tank skid, and condensate pump containment skid were all full of oil; and the sump pump was inoperable 13-SEP-2006—14-SEP-2006 14-SEP-2006—14-SEP-2006 14-SEP-2006—14-SEP-2006 $72,000, 7/10/2007 § 250.300(a), § 250.300(b), § 250.300(b). Linder Oil Company, A Partnership, G-2007-006 Four violations in this case: Oil and Grease on Stairway (primary means of escape); Boat landing blocked off; Gas detection alarm system disabled; and access to two 350# wheeled fire extinguishers were blocked off 13-SEP-2006—13-SEP-2006 13-SEP-2006—13-SEP-2006 13-SEP-2006—13-SEP-2006 13-SEP-2006—13-SEP-2006 $65,000, 7/11/2007 § 250.107, § 250.107, § 250.107, § 250.803. Forest Oil Corporation, G-2007-007 During an inspection on May 18, 2006, the LSH on the vent scrubber was found by-passed, as well as the gas lift line to the sump pile was disconnected rendering the sump pile inoperable. During this initial inspection, there were 2 violations written-up for oil accumulations, one being in the compressor skid and the second around the deck of the crane. During a follow-up inspection on June 9, 2006, a closed block valve was found on the supply line to the gas lift for the sump pile rendering the sump pile inoperable. On a third follow-up inspection on June 13, 2006, the entire gas detector relay panel was found in by-pass, there were also 2 violations documented for oil accumulations, both in the same areas as documented on the May 18th inspection (compressor skid and deck area around the crane) 09-JUN-2006—09-JUN-2006 13-JUN-2006—13-JUN-2006 18-MAY-2006—18-MAY-2006 18-MAY-2006—18-MAY-2006 $80,000, 10/5/2007 § 250.300(b)(4), § 250.803(c)(1), § 250.803(c)(1), § 250.300(b)(4). Forest Oil Corporation, G-2007-008 The MMS inspector found an open hole around the BOP riser on the top deck, as well as an open hole around the BOP riser in the well bay area that was not properly barricaded to prevent a person's foot or body from inadvertently falling through the hole 14-NOV-2006—18-NOV-2006 $80,000, 6/26/2007 § 250.107. Pogo Producing Company, G-2007-010 The departing sales gas pipeline shut down valve spool connector between the ball valve and the mechanical robot device, used to open and close the valve, was cracked and allowing gas to escape into the atmosphere 08-JAN-2007—13-JAN-2007 $120,000, 6/7/2007 § 250.107. Nippon Oil Exploration U.S.A. Limited, G-2007-013 The upper and lower isolation valves on the LSH on the Vent Scrubber were found in the closed position, by-passed 26-FEB-2007—26-FEB-2007 $10,000, 10/23/2007 § 250.803(c). GOM Shelf LLC (Rowan Drilling), G-2007-014 Stairs and handrail on the cantilever pipe rack deck had been removed in order to install the diverter housing under the decking. With the stairs removed, there was no other access to the pipe rack deck. Instead of replacing the stairs, the employees were observed climbing over railing and stretching from the top of the shaker house to the pipe deck. They were not wearing fall protection (estimated fall of 25′ to the deck below). Additionally, the two areas where the handrail and stairs had been removed were not barricaded or properly guarded 11-JAN-2007—11-JAN-2007 $40,000, 8/3/2007 § 250.401(e). Energy Partners, Ltd, G-2007-015 The fuel gas scrubber PSV was found blocked off and not flagged or monitored by personnel 08-MAR-2007—15-MAR-2007 $80,000, 7/17/2007 § 250.803(c). Devon Energy Production Company, L.P., G-2007-017 An employee's unsafe and un-workmanlike action resulted in him falling 15′ to the deck below 16-MAR-2007—16-MAR-2007 $20,000, 12/11/2007 § 250.107. PetroQuest Energy LLC, G-2007-018 The SCSSV had been rendered inoperable since the isolation valve located at the wellhead was closed 15-MAR-2007—25-MAR-2007 $10,000, 9/5/2007 § 250.803(c). Apache Corporation, G-2007-019 There was a failure to maintain an operable drill floor Emergency Shut-Down station with simultaneous well production 16-APR-2007—16-APR-2007 $20,000, 9/26/2007 § 250.406. Petrobras America Inc., G-2007-020 During completion operations on the Transocean Offshore F100 drilling rig, two contract workers were seriously injured when a lifting sub that was being used to lift production tubing backed out of its connection and fell 65′ to the rig floor striking the 2 workers 19-FEB-2007—19-FEB-2007 $30,000, 11/6/2007 § 250.107(a). Dominion Exploration & Production, Inc., G-2007-024 After being denied a departure request to produce the H2 well with casing pressure, Dominion pulled the DX plug and produced the well for 279 days 15-JUN-2006—20-MAR-2007 $697,500, 12/13/2007 § 250.107(a). W&T Offshore, Inc., G-2007-026 The MMS Inspector found the starter gas for the fire water pump was blocked closed rendering the pump inoperable 13-MAY-2007—13-MAY-2007 $35,000, 12/19/2007 § 250.803(b)(8). Apache Corporation, G-2007-028 The MMS Inspector discovered that an additional section of metal plating had been removed from the ladder access opening for the mud pit tank. The removed section extended the opening beyond the three barricaded sides of the ladder access, creating a hazard for personnel 13-APR -2007 -13-APR-2007 $12,000, 11/15/2007 CFR 250.107. Devon Energy Production Co., L.P., G-2007-032 The LSH on the 1st stage suction scrubber; and the LSH on the 3rd stage suction scrubber were both found in by-pass 22-JUN-2007—22-JUN-2007 22-JUN-2007—22-JUN-2007 $15,000, 12/19/2007 § 250.803(c), § 250.803(c). Total Penalties Paid: 1/1/07-12/31/07 36 Cases: $3,106,000 The purpose of publishing the penalties summary is to provide information to the public on violations of special concern in OCS operations and to provide an additional incentive for safe and environmentally sound operations. Authority: 31 U.S.C. 9701, 43 U.S.C. 1334. Dated: February 26, 2008. Chris Oynes, Associate Director for Offshore Minerals Management. [FR Doc. E8-6687 Filed 3-31-08; 8:45 am] BILLING CODE 4310-MR-P OFFICE OF NATIONAL DRUG CONTROL POLICY Paperwork Reduction Act; 30-Day Notice AGENCY: Office of National Drug Control Policy. The Office of National Drug Control Policy (ONDCP) proposes the collection of information concerning student drug testing. There was one request for the survey instrument from the New York State Office of Alcoholism and Substance Abuse Services, Bureau of Grants Management and Federal Affairs. ONDCP invites interested persons to submit comments to the Office of Management and Budget
(OMB)regarding any aspect of this proposed effort. *Type of Collection:* Survey of State Educational Directors. *Title of Information Collection:* Federal Safe and Drug Free Schools State formula grant (Title IV) resources supporting Student Drug Testing Programs in the Nation's schools. *Frequency:* Annually by fiscal year. *Affected Public:* Instrumentalities of state, local, and tribal educational entities. *Estimated Burden:* Minimal since State Education Agencies have pre-established reporting relationships with Local Education Agencies (LEAs). LEAs receiving funds under Title IV must report on the services and activities supported by these funds. Send comments to John Kraemer, OMB Desk Officer for ONDCP, New Executive Office Building, Room 10235, Washington, DC 20503. Comments must be received within 30 days. Additional information may be requested by facsimile transmission to
(202)395-5276, attention: Meredith DeFraites or by e-mail to *Meredith_L._DeFraites@ondcp.eop.gov* . Signed in Washington, DC, on March 23, 2008. Daniel R. Petersen, Assistant General Counsel. [FR Doc. E8-6604 Filed 3-31-08; 8:45 am] BILLING CODE 3180-02-P NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES National Endowment for the Arts; Proposed Collection: Comment Request ACTION: Notice. SUMMARY: The National Endowment for the Arts, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(A)]. This program helps ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the National Endowment for the Arts, on behalf of the Federal Council on the Arts and the Humanities, is soliciting comments concerning the Application for Indemnification for Domestic Exhibitions. A copy of this collection request can be obtained by contacting the office listed below in the address section of this notice. DATES: Written comments must be submitted to the office listed in the address section below on or before June 3, 2008. The National Endowment for the Arts is particularly interested in comments which: —Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; —Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; —Enhance the quality, utility and clarity of the information to be collected; and —Minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting the electronic submissions of responses. ADDRESSES: Alice Whelihan, National Endowment for the Arts, 1100 Pennsylvania Avenue, NW., Room 726, Washington, DC 20506-0001, telephone (202)682-5574 (this is not a toll-free number), fax (202)682-5603. Kathleen Edwards, Director, Administrative Services. [FR Doc. E8-6615 Filed 3-31-08; 8:45 am] BILLING CODE 7536-01-P NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES Institute of Museum and Library Services; Sunshine Act Meeting of the National Museum and Library Services Board AGENCY: Institute of Museum and Library Services (IMLS), NFAH. ACTION: Notice of meeting. SUMMARY: This notice sets forth the agenda of the forthcoming meeting of the National Museum and Library Services Board. This notice also describes the function of the Board. Notice of the meeting is required under the Sunshine in Government Act. *Time and Date:* Tuesday, April 15, 2008 from 2 p.m. to 5 p.m. *Agenda:* Meeting of the Fourteenth National Museum and Library Service Board Meeting: 2 p.m.-3:30 p.m. Jury Meeting to consider the National Medals for Library Services (Closed to the Public). 3:45 p.m.-5:15 p.m. Jury Meeting to consider the National Medals for Museum Services (Closed to the Public). *Place:* The meetings will be held in the Board room at the Institute of Museum and Library Services, 1800 M Street, NW., 9th Floor, Washington, DC 20036. Telephone:
(202)653-4676. *Time and Date:* Wednesday, April 16, 2008 from 12:30 p.m. to 3:30 p.m. *Agenda:* Fourteenth National Museum and Library Services Board Meeting: 12:30 p.m.-3:30 p.m. Fourteenth National Museum and Library Services Board Meeting: I. Welcome. II. Approval of Minutes. III. Board Program. IV. Financial Update. V. Legislative Update. VI. Committee Discussion. VII. Board Update. VIII. Adjournment. (Open to the Public.) *Place:* The meeting will be held in the Federal City Room of the Phoenix Park Hotel, 520 North Capitol Street, NW., Washington, DC 20001. Telephone:
(202)638-4025. FOR FURTHER INFORMATION CONTACT: Elizabeth Lyons, Special Events and Board Liaison, Institute of Museum and Library Services, 1800 M Street, NW., 9th Floor, Washington, DC 20036. Telephone:
(202)653-4676. SUPPLEMENTARY INFORMATION: The National Museum and Library Services Board is established under the Museum and Library Services Act, 20 U.S.C. Section 9101 *et seq.* The Board advises the Director of the Institute on general policies with respect to the duties, powers, and authorities related to Museum and Library Services. The Jury Meetings to consider nominations for the National Medal for Museum and Library Services on Tuesday, April 15, 2008, will be closed pursuant to subsections (c)(4) and (c)(9) of section 552b of Title 5, United States Code because the Board will consider information that may disclose: Trade secrets and commercial or financial information obtained from a person and privileged or confidential; and information the premature disclosure of which would be likely to significantly frustrate implementation of a proposed agency action. The meeting from 12:30 p.m. until 3:30 p.m. on Wednesday, April 16, 2008 is open to the public. If you need special accommodations due to a disability, please contact: Institute of Museum and Library Services, 1800 M Street, NW., 9th Fl., Washington, DC 20036. Telephone:
(202)653-4676; TDD
(202)653-4614 at least seven
(7)days prior to the meeting date. Dated: March 24, 2008. Kate Fernstrom, Chief of Staff. [FR Doc. E8-6541 Filed 3-31-08; 8:45 am] BILLING CODE 7036-01-M NUCLEAR REGULATORY COMMISSION Agency Information Collection Activities: Proposed Collection; Comment Request AGENCY: U.S. Nuclear Regulatory Commission (NRC). ACTION: Notice of pending NRC action to submit an information collection request to the Office of Management and Budget
(OMB)and solicitation of public comment. SUMMARY: The NRC is preparing a submittal to OMB for review of continued approval of information collections under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). Information pertaining to the requirement to be submitted: 1. *The title of the information collection:* NRC Form 536, “Operator Licensing Examination Data.” 2. *Current OMB approval number:* 3150-0131. 3. *How often the collection is required:* Annually. 4. *Who is required or asked to report:* All holders of operator licenses or construction permits for nuclear power reactors. 5. *The number of annual respondents:* 80. 6. *The number of hours needed annually to complete the requirement or request:* 80. 7. *Abstract:* NRC is requesting renewal of its clearance to annually request all commercial power reactor licensees and applicants for an operating license to voluntarily send to the NRC:
(1)Their projected number of candidates for operator licensing initials examinations;
(2)the estimated dates of the examinations;
(3)if the examination will be facility developed or NRC developed, and
(4)the estimated number of individuals that will participate in the Generic Fundamentals Examination
(GFE)for that calendar year. Except for the GFE, this information is used to plan budgets and resources in regard to operator examination scheduling in order to meet the needs of the nuclear industry. Submit, by June 2, 2008, comments that address the following questions: 1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility? 2. Is the burden estimate accurate? 3. Is there a way to enhance the quality, utility, and clarity of the information to be collected? 4. How can the burden of the information collection be minimized, including the use of automated collection techniques or other forms of information technology? A copy of the draft supporting statement may be viewed free of charge at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, MD 20852. OMB clearance requests are available at the NRC worldwide Web site: *http://www.nrc.gov/public-involve/doc-comment/omb/index.html* . The document will be available on the NRC home page site for 60 days after the signature date of this notice. Comments and questions about the information collection requirements may be directed to the NRC Clearance Officer, Margaret A. Janney (T-5 F52), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, by telephone at 301-415-7245, or by e-mail to *INFOCOLLECTS@NRC.GOV.* Dated at Rockville, Maryland, this 26th day of March 2008. For the Nuclear Regulatory Commission. Gregory Trussell, Acting NRC Clearance Officer, Office of Information Services. [FR Doc. E8-6626 Filed 3-31-08; 8:45 am] BILLING CODE 7590-01-P NUCLEAR REGULATORY COMMISSION [Docket No. 50-368] Entergy Operations, Inc.; Arkansas Nuclear One, Unit 2; Exemption 1.0 Background Entergy Operations, Inc. (Entergy, licensee), is the holder of Facility Operating License No. NPF-6 which authorizes operation of the Arkansas Nuclear One, Unit 2 (ANO-2). The license provides, among other things, that the facility is subject to all rules, regulations, and orders of the Nuclear Regulatory Commission (NRC, the Commission) now or hereafter in effect. The facility consists of a pressurized-water reactor
(PWR)located in Pope County, Arkansas. 2.0 Request/Action Title 10 of the Code of Federal Regulations (10 CFR) § 50.46, “Acceptance criteria for emergency core cooling systems for light-water nuclear power reactors,” requires, among other items, that “[e]ach boiling or pressurized light-water nuclear power reactor fueled with uranium oxide pellets within cylindrical zircaloy or ZIRLO cladding must be provided with an emergency core cooling system
(ECCS)that must be designed so that its calculated cooling performance following postulated loss-of-coolant accidents [(LOCAs)] conforms to the criteria set forth in paragraph
(b)of this section.” Appendix K to 10 CFR part 50, “ECCS Evaluation Models,” requires, among other items, that the rate of energy release, hydrogen generation, and cladding oxidation from the metal/water reaction shall be calculated using the Baker-Just equation. The regulations of 10 CFR 50.46 and 10 CFR part 50, Appendix K, make no provision for use of fuel rods clad in a material other than zircaloy or ZIRLO. Since the chemical composition of the Optimized ZIRLO TM alloy differs from the specifications for zircaloy or ZIRLO, a plant-specific exemption is required to allow the use of the Optimized ZIRLO TM alloy as a cladding material at ANO-2. Therefore, by letter dated April 24, 2007, the licensee requested the use of the Optimized ZIRLO TM for fuel rod cladding at ANO-2. 3.0 Discussion Pursuant to 10 CFR 50.12, the Commission may, upon application by any interested person or upon its own initiative, grant exemptions from the requirements of 10 CFR part 50 when
(1)the exemptions are authorized by law, will not present an undue risk to public health or safety, and are consistent with the common defense and security; and
(2)when special circumstances are present. Authorized by Law This exemption results in changes to the operation of the plant by allowing the use of the Optimized ZIRLO TM as fuel rod cladding material in lieu of zircaloy or ZIRLO. As stated above, 10 CFR 50.12 allows the NRC to grant exemptions from the requirements of 10 CFR part 50. The NRC staff has determined that granting of the licensee's proposed exemption will not result in a violation of the Atomic Energy Act of 1954, as amended, or the Commission's regulations. Therefore, the exemption is authorized by law. No Undue Risk to Public Health and Safety By letter dated June 10, 2005, the NRC staff approved Westinghouse Topical Report WCAP-12610-P-A and CENPD-404-P-A, Addendum 1-A, “Optimized ZIRLO TM ” (Agencywide Documents Access and Management System (ADAMS) Accession No. ML051670408). The NRC staff approved the use of Optimized ZIRLO TM as a fuel cladding material based on:
(1)Similarities with standard ZIRLO TM ,
(2)demonstrated material performance, and
(3)a commitment to provide irradiated data and validate fuel performance models ahead of burnups achieved in batch application. The NRC staff's safety evaluation for Optimized ZIRLO TM includes 10 conditions and limitations for its use. In addition, the NRC's June 10, 2005, safety evaluation for Optimized ZIRLO TM recommends that the computer codes used to perform fuel design safety analyses incorporate the material properties of Optimized ZIRLO TM . The underlying purpose of 10 CFR 50.46 is to establish acceptance criteria for ECCS performance. The applicability of these ECCS acceptance criteria has been demonstrated by Westinghouse. Ring compression tests performed by Westinghouse on Optimized ZIRLO TM (documented in Appendix B of WCAP- 12610-P-A and CENPD-404-P-A, Addendum 1-A “Optimized ZIRLO TM ,” July 2006, ADAMS Accession No. ML062080576) demonstrate an acceptable retention of post-quench ductility up to 2200 degrees Fahrenheit [°F] and 17 percent equivalent clad reacted 10 CFR 50.46 limits. Furthermore, oxidation measurements provided by the licensee (by letter dated November 6, 2007, “SER [Safety Evaluation Report] Compliance with WCAP-12610-P-A & CENPD-404-P-A Addendum 1-A ‘Optimized ZIRLO TM ’,” LTR-NRC-07-58, ADAMS Accession No. ML073130562), illustrate that oxide thickness (and associated hydrogen pickup) for Optimized ZIRLO TM at any given burnup would be less than both Zircaloy-4 and ZIRLO TM . Hence, Optimized ZIRLO TM would be expected to maintain better post-quench ductility. This finding is based on an ongoing LOCA research program at Argonne National Laboratory which has identified a strong correlation between cladding hydrogen content (due to in-service corrosion) and post-quench ductility. Utilizing currently approved LOCA models and methods, Westinghouse performed a plant-specific evaluation and found that the Optimized ZIRLO TM fuel rods will satisfy the 10 CFR 50.46 acceptance criteria. Therefore, the exemption request continues to ensure that the underlying purpose of the rule is achieved. Paragraph I.A.5 of Appendix K to 10 CFR part 50 states that the rates of energy, hydrogen concentration, and cladding oxidation from the metal-water reaction shall be calculated using the Baker-Just equation. Since the Baker-Just equation presumes the use of zircaloy clad fuel, strict application of the rule would not permit use of the equation for Optimized ZIRLO TM cladding for determining acceptable fuel performance. Metal-water reaction tests performed by Westinghouse on Optimized ZIRLO TM (documented in Appendix B of WCAP-12610-P-A and CENPD-404-P-A, Addendum 1-A) demonstrate conservative reaction rates relative to the Baker-Just equation. Thus, a prohibition on the use of Optimized ZIRLO TM is not necessary for the licensee to achieve the underlying purpose of paragraph I.A.5 of Appendix K in these circumstances. Based on the above, no new accident precursors are created by using Optimized ZIRLO TM , thus, the probability of postulated accidents is not increased. Also, based on the above, the consequences of postulated accidents are not increased. In addition, the licensee will use NRC-approved methods for the reload design process for ANO-2 reloads with Optimized ZIRLO TM . Therefore, there is no undue risk to public health and safety due to using Optimized ZIRLO TM . Special Circumstances Special circumstances, in accordance with 10 CFR 50.12(a)(2)(ii), are present whenever application of the regulation in the particular circumstances would not serve the underlying purpose of the rule or is not necessary to achieve the underlying purpose of the rule. In this circumstance, neither 10 CFR 50.46 nor 10 CFR part 50, Appendix K, explicitly allows the use of Optimized ZIRLO TM as a fuel rod cladding material. The underlying purpose of 10 CFR 50.46 is to ensure that facilities have adequate acceptance criteria for the ECCS. Based upon results of metal-water reaction tests and ring-compression tests which ensure the applicability of ECCS models and acceptance criteria and the use of approved LOCA models to ensure compliance to 10 CFR 50.46 acceptance criteria, the staff finds it acceptable to grant an exemption from the 10 CFR 50.46 and Appendix K to 10 CFR part 50 to allow the use of Optimized ZIRLO TM in future reloads at ANO-2. On June 10, 2005, the NRC staff approved WCAP-12610-P-A and CENPD-404-P-A, Addendum 1-A, in which Westinghouse demonstrated that the effectiveness of the ECCS will not be affected by a change from zircaloy to Optimized ZIRLO TM . The analysis described in the WCAP-12610-P-A and CENPD-404-P-A also demonstrated that the ECCS acceptance criteria applied to reactors fueled with zircaloy fuel rod cladding are also applicable to reactors fueled with Optimized ZIRLO TM WCAP-12610-P-A and CENPD-404-P-A fuel rod cladding. The underlying purpose of 10 CFR part 50, Appendix K, paragraph I.A.5, is to ensure that cladding oxidation and hydrogen generation are appropriately limited during a LOCA and conservatively accounted for in the ECCS evaluation model. Appendix K to 10 CFR part 50 requires that the Baker-Just equation be used in the ECCS evaluation model to determine the rate of energy release, cladding oxidation, and hydrogen generation. In WCAP-12610-P-A and CENPD-404-P-A, Addendum 1-A , Westinghouse demonstrated that the Baker-Just model is conservative in all post-LOCA scenarios with respect to the use of the Optimized ZIRLO TM as a fuel rod cladding material, and that the amount of hydrogen generated in an Optimized ZIRLO TM core during a LOCA will remain within the ANO-2 design basis. Optimized ZIRLO TM is a niobium-tin-iron (Nb-Sn-Fe) zirconium
(Zr)based alloy with a microstructure comprised of a body-centered cubic ZrNb phase and a close-packed hexagonal ZrNbFe phase homogeneously distributed throughout the zirconium matrix. Optimized ZIRLO TM fuel cladding is different from standard ZIRLO TM in two respects:
(1)The Sn content is lower, and
(2)the microstructure is different. This difference in Sn content and microstructure can lead to differences in some material properties. Most of the material properties of standard ZIRLO TM and Optimized ZIRLO TM are the same within the uncertainty of the data and, therefore, use of standard ZIRLO TM properties for safety analyses is acceptable. The NRC staff has reviewed the licensee's request to use Optimized ZIRLO TM for PWR fuel mechanical designs as described in WCAP-12610-P-A and CENPD-404-P-A, Addendum 1-A. In the June 10, 2005, safety evaluation for WCAP-12610-P-A and CENPD-404-P-A, Addendum 1-A, the NRC staff concluded that, to the extent specified in the NRC staff's evaluation, the Optimized ZIRLO TM properties and mechanical design methodology are acceptable for referencing in fuel reload licensing applications. Therefore, since the underlying purposes of 10 CFR 50.46 and 10 CFR part 50, Appendix K, paragraph I.A.5 are achieved through the use of the Optimized ZIRLO TM as a fuel rod cladding material, the special circumstances required by 10 CFR 50.12(a)(2)(ii) for the granting of an exemption from 10 CFR 50.46 and Appendix K to 10 CFR part 50, exist. Summary The NRC staff has reviewed the licensee's request to use the Optimized ZIRLO TM for fuel rod cladding in lieu of zircaloy or ZIRLO. Based on the NRC staff's evaluation, as set forth above, the NRC staff concludes that the exemption is authorized by law, will not present an undue risk to public health and safety, and is consistent with the common defense and security. In addition, the NRC staff concludes that the underlying purposes of 10 CFR 50.46 and Appendix K to 10 CFR part 50, are achieved through the use of the Optimized ZIRLO TM alloy. Therefore, pursuant to 10 CFR 50.12(a), the NRC staff concludes that the use of the Optimized ZIRLO TM alloy for fuel rod cladding is acceptable and the exemption from 10 CFR 50.46 and Appendix K to 10 CFR part 50, is justified. Although the use of Optimized ZIRLO TM is allowed, the other requirements of 10 CFR 50.46 and Appendix K to 10 CFR part 50 apply to the use of Optimized ZIRLO TM . The conditions and limitations on the use of Optimized ZIRLO TM will be discussed in the staff's action on the license amendment request submitted by the applicant dated April 24, 2007. 4.0 Conclusion Accordingly, the Commission has determined that, pursuant to 10 CFR 50.12(a), the exemption is authorized by law, will not present an undue risk to the public health and safety, and is consistent with the common defense and security. Also, special circumstances are present. Therefore, the Commission hereby grants Entergy an exemption from the requirements of 10 CFR 50.46 and Appendix K to 10 CFR Part 50, for ANO-2. Pursuant to 10 CFR 51.32, the Commission has determined that the granting of this exemption will not have a significant impact on the quality of the human environment as published in the **Federal Register** on March 10, 2008 (73 FR 12779). This exemption is effective upon issuance. Dated at Rockville, Maryland, this 19 day of March 2008. For the Nuclear Regulatory Commission. Catherine Haney, Director, Division of Operating Reactor Licensing, Office of Nuclear Reactor Regulation. [FR Doc. E8-6630 Filed 3-31-08; 8:45 am] BILLING CODE 7590-01-P POSTAL REGULATORY COMMISSION [Docket No. ACR2007] Postal Service Oversight AGENCY: Postal Regulatory Commission. ACTION: Availability of report. FOR FURTHER INFORMATION CONTACT: Stephen L. Sharman, General Counsel, at 202-789-6820 or *stephen.sharfman@prc.gov.* SUPPLEMENTARY INFORMATION: The Postal Regulatory Commission (Commission) has issued its first Annual Compliance Determination addressing the United States Postal Service's recent financial and service performance. The Commission's determination, dated March 27, 2008, responds to a directive in the Postal Accountability and Enhancement Act
(PAEA)of 2006. See 39 U.S.C. 3653. It was prepared after review of the Postal Service's 2007 Annual Compliance Report and supplemental material, evaluation of public comments, and assessment of data and information provided in several technical conferences. The Commission's report can be accessed via *http://www.prc.gov.* Related documents can also be found on the Commission's Web site under the “Contents” tab, Docket No. ACR2007. Dated: March 27, 2008. Steven W. Williams, Secretary. [FR Doc. E8-6701 Filed 3-31-08; 8:45 am] BILLING CODE 7710-FW-P SECURITIES AND EXCHANGE COMMISSION Sunshine Act Meeting Federal Register Citation of Previous Announcement: [to be published]. Status: Closed Meeting. Place: 100 F Street, NE., Washington, DC. Date and Time of Previously Announced Meeting: March 31, 2008 at 10 a.m. Change in the Meetings: Date and Time Change. The Closed Meeting scheduled for Monday, March 31, 2008 at 10 a.m., has been changed to Wednesday, April 2, 2008 at 10 a.m. At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact: The Office of the Secretary at
(202)551-5400. Dated: March 27, 2008. Nancy M. Morris, Secretary. [FR Doc. E8-6718 Filed 3-31-08; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57557; File No. SR-ISE-2008-25] Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing of Proposed Rule Change, and Amendment No. 1 Thereto, Relating to the Rescission of the “No MPM” Order Type March 26, 2008. Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on March 5, 2008, the International Securities Exchange, LLC (“Exchange” or “ISE”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been substantially prepared by the Exchange. On March 17, 2008, the Exchange filed Amendment No. 1 to the proposed rule change. The Commission is publishing this notice to solicit comments on the proposed rule change, as amended, from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The ISE proposes to amend its rules to rescind the “No MPM” order type. The text of the proposed rule change is below. Proposed new language is *italicized;* proposed deletions are enclosed in brackets. Rule 2104. Types of Orders (a)-(g) No change. [(h) No MPM. Market or limit orders that should not be executed against orders residing in the Midpoint Match. (See Rule 2129)] [(i)]( *h* ) No further change. [(j)](i) No further change. [(k)]( *j* ) No further change. [(l)]( *k* ) No further change. [(m)]( *l* ) No further change. [(n)]( *m* ) No further change. [(o)]( *n* ) No further change. 2106. Opening Process
(a)No change.
(1)All order types other than Stop/Stop Limit, [No MPM,] Post Only, FOK and IOC may participate in the opening transaction. Reserve orders may participate to the full extent of their size. Discretionary orders may participate at their most aggressive prices. Pegged orders will have limit prices based upon the NBBO that is required for the opening transaction to occur. (2)-(3) No change. (b)-(f) No change. 2107. Priority and Execution of Orders
(a)No change.
(b)*Order Execution.* All orders are handled automatically by the ISE Stock Exchange. All orders are available for price improvement at the midpoint of the NBBO if contra-side interest exists in Midpoint Match[, unless marked “No MPM”]. Except as specified below in paragraph (c), orders will not be executed at prices that are inferior to Protected Quotations available at other Trading Centers. Rule 2129. MidPoint Match The MidPoint Match (“MPM”) is a process by which Members [can seek] *may receive* an execution price that is at the midpoint of the NBBO. (a)-(g) No change. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The best bids and offers on the ISE Stock Exchange are displayed to the marketplace on a continuous basis. Additionally, the ISE offers incoming orders an opportunity to receive price improvement at the midpoint of the National Best Bid or Offer (“NBBO”) through its MidPoint Match (“MPM”) process. Specifically, before executing incoming orders against the ISE's displayed bid or offer, the System checks MPM to see if there is contra-side interest that can provide price improvement. However, under ISE's current rules, Equity Electronic Access Members may specify on orders that they do not want the orders to execute against MPM interest, thereby denying such orders the opportunity for price improvement. The Exchange proposes to eliminate the “No MPM” order qualifier so that all inbound orders will be exposed to MPM interest and be afforded price improvement, when available, before executing against the ISE's displayed quotations. The Exchange believes that elimination of the “No MPM” order qualifier is appropriate to assure that customers are provided the opportunity to interact with this additional source of liquidity and to receive price improvement whenever possible. 2. Statutory Basis The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder. Specifically, the Exchange believes the proposed rule change is consistent with section 6(b)(5) 3 of the Act, requiring that the rules of an exchange be designed to promote just and equitable principles of trade, serve to remove impediments to and perfect the mechanism for a free and open market and a national market system, and, in general, to protect investors and the public interest. 3 15 U.S.C. 78(f)(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange believes that the proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the date of publication of this notice in the **Federal Register** or within such longer period
(i)as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or
(ii)as to which the self-regulatory organization consents, the Commission will: A. By order approve such proposed rule change, or B. institute proceedings to determine whether the proposed rule change should be disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml);* or • Send an e-mail to *rule-comments@sec.gov.* Please include File No. SR-ISE-2008-25 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-ISE-2008-25. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-ISE-2008-25 and should be submitted on or before April 22, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 4 4 17 CFR 200.30-3(a)(12). Florence E. Harmon, Deputy Secretary. [FR Doc. E8-6609 Filed 3-31-08; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57558; File No. SR-CBOE-2008-08] Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Order Approving a Proposed Rule Change Regarding CBOE Rules 6.45A and 6.45B March 26, 2008. On February 6, 2008, the Chicago Board Options Exchange, Incorporated (“CBOE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 a proposed rule change to amend CBOE Rules 6.45A and 6.45B regarding the application of participation entitlements to orders executed electronically on the CBOE Hybrid Trading System (“Hybrid system”). The proposed rule change was published for comment in the **Federal Register** on February 21, 2008. 3 The Commission received no comments on the proposal. This order approves the proposed rule change. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 *See* Securities Exchange Act Release No. 57332 (February 14, 2008), 73 FR 9610. CBOE Rules 6.45A and 6.45B govern priority and allocation of trades on the Hybrid system for equity options and index/ETF options, respectively. Paragraph
(a)of both rules set forth the manner in which incoming electronic orders are allocated (the rules are substantially the same). First, the appropriate Procedure Committee selects a base matching algorithm (price-time priority, pro-rata priority, or CBOE's Ultimate Matching Algorithm). If price-time or pro-rata priority matching algorithms are selected, additional optional priority overlays may be applied on a trade before the matching algorithm is used to allocate the order. These additional optional priority overlays are public customer priority, market-turner priority, and a Market-Maker participation entitlement. 4 4 The appropriate Procedure Committee determines, on a class-by-class basis, whether one or more such optional priority overlays may be applied and the sequence in which they are applied. Currently, participation entitlements may be established for Hybrid electronic executions pursuant to different Exchange rules. Specifically, CBOE Rule 8.13 allows for the establishment of a participation entitlement for a Preferred Market-Maker, if that Market-Maker is quoting at the Exchange's best bid/offer at the time the order is received. CBOE Rule 8.87 allows for a designated participation entitlement applicable to the DPM in the class (or the DPM and the e-DPMs combined, if there are e-DPMs in the class), if the DPM is quoting at the Exchange best bid/offer at the time the order is received. CBOE Rule 8.15B is virtually identical to Rule 8.87 except that it applies to LMMs. In each case, the Market-Maker must be quoting at the best bid/offer on the Exchange (the “Exchanges BBO”) in order to receive a participation entitlement. This proposed rule change will allow for more than one participation entitlement to be activated for an option class (for purposes of electronic trading on the Hybrid system under Rules 6.45A and 6.45B), including in different priority sequences, provided that no more than one entitlement could be applied on any given trade. Thus, the Exchange could set up an allocation structure for a given option class that contemplates using both the Preferred Market-Maker entitlement and the DPM or LMM entitlement (DPMs and LMMs cannot be assigned to the same class) with different priority positions. Since participation entitlements are only awarded when a Market-Maker is quoting at the Exchange's BBO, if the first designated Market-Maker is not quoting at the Exchange's BBO, the proposed rule change will allow for another designated Market-Maker later in the sequence to receive a participation entitlement as long as it is quoting at the Exchange's BBO. The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange. 5 In particular, the Commission finds that the proposal is consistent with Section 6(b)(5) of the Act, 6 which requires, among other things, that the rules of an exchange be designed to promote just and equitable principles of trade, remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, protect investors and the public interest. Although this change will allow for more than one participation entitlement to be activated for a class, it will not increase the participation entitlement percentage applicable to any individual transaction above the existing level, because only one entitlement will be applied on any given transaction. The Commission therefore believes that the proposal is consistent with the Act. 5 In approving this proposed rule change, the Commission notes that it has considered the proposed rule's impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). 6 15 U.S.C. 78f(b)(5). *It is therefore ordered,* pursuant to section 19(b)(2) of the Act, 7 that the proposed rule change (SR-CBOE-2008-08) is approved. 7 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 8 8 17 CFR 200.30-3(a)(12). Florence E. Harmon, Deputy Secretary. [FR Doc. E8-6610 Filed 3-31-08; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57555; File No. SR-NYSE-2008-18] Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Extend the Compliance Deadline for NYSE Members To Complete Required 2007 Continuing Education Modules Under NYSE Rule 103A March 26, 2008. Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on March 13, 2008, the New York Stock Exchange LLC (“NYSE” or the “Exchange”) filed with the Securities and Exchange Commission (“SEC” or “Commission”) the proposed rule change as described in Items I, II and III below, which Items have been prepared substantially by the Exchange. The Exchange has designated this proposal as constituting a stated policy, practice, or interpretation with respect to the meaning, administration, or enforcement of an existing rule of the self-regulatory organization pursuant to section 19(b)(3)(A)(i) of the Act 3 and Rule 19b-4(f)(1) thereunder, 4 which renders the proposal effective upon filing with the Commission. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 15 U.S.C. 78s(b)(3)(A)(i). 4 17 CFR 240.19b-4(f)(1). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to extend the compliance deadline for NYSE members to complete required 2007 continuing education modules pursuant to NYSE Rule 103A. There is no proposed rule text. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose NYSE Rule 103A requires that the Exchange provide continuing education programs for Floor members. All NYSE members who work on the Floor of the Exchange must complete the education programs; failure to do so within the prescribed time frame results in the member being barred from entering the Exchange Floor. Over the past year, NYSE Regulation, Inc., which supervises the creation and delivery of content for the Floor Member Continuing Education (“FMCE”) program, has been developing a Learning Management System (“LMS”) that automates the delivery of program content to members via a Web-based interactive program that participants can access from an Internet-capable computer. Because the new LMS changed certain details about how the program was delivered, the Exchange filed certain amendments to Rule 103A to update the Rule in light of the new system requirements. 5 The Exchange expects to launch the LMS during March 2008. In order to meet its requirements for 2007, NYSE Regulation delivered certain FMCE modules via in-person classes held in November and December 2007. Approximately 300 members failed to participate in each of the three modules. Under the previous version of Rule 103A, which applied to the 2007 FMCE program, a member had 120 days from original assignment date to make up missed classes. (The deadline for making up a missed element has since been shortened pursuant to amended NYSE Rule 103A.) Under the former version of the Rule, the deadline by which the first module must be completed via a make-up session is March 18, 2008; the latest will be April 18, 2008. 5 *See* Securities Exchange Act Release No. 56851 (November 28, 2007), 72 FR 68932 (December 6, 2007) (SR-NYSE-2007-106). NYSE Regulation intended to employ the LMS to allow members to make-up missed classes within the allotted 120 days. (All live sessions were videotaped and these archived sessions will be available through the LMS.) However, technical difficulties have delayed the LMS's launch. We now anticipate launching the LMS during the week of March 10, 2008. 6 Given the delays in rolling out the LMS, NYSE Regulation proposes to grant all members with open 2007 FMCE assignments an extension to their deadline under the Rule. The extension will be relatively short in time and will apply only to 2007 FMCE modules. At this time, we will be giving each member 30 days to complete a 2007 module from the time a make-up assignment is made available through the LMS. This filing seeks authorization from the Commission to grant the necessary extensions. 6 *See* NYSE Regulation, Inc. Information Memo 08-9 (March 14, 2008) (announcing implementation of the LMS). 2. Statutory Basis The Exchange believes the proposed rule change is consistent with and furthers the objectives of section 6(b)(5) of the Act, 7 in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to, and perfect the mechanism of, a free and open market and a national market system, and, in general, to protect investors and the public interest. 7 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others No written comments were solicited or received with respect to the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The proposed rule change has become effective pursuant to section 19(b)(3)(A)(i) of the Act 8 and Rule 19b-4(f)(1) thereunder, 9 in that the proposed rule change constitutes a stated policy, practice, or interpretation with respect to the meaning, administration, or enforcement of an existing rule of the self-regulatory organization. 8 15 U.S.C. 78s(b)(3)(A)(i). 9 17 CFR 240.19b-4(f)(1). At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov* . Please include File Number SR-NYSE-2008-18 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-NYSE-2008-18. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make publicly available. All submissions should refer to File Number SR-NYSE-2008-18 and should be submitted on or before April 22, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 10 Florence E. Harmon, Deputy Secretary. 10 17 CFR 200.30-3(a)(12). [FR Doc. E8-6608 Filed 3-31-08; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57561; File No. SR-NYSEArca-2008-29] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change and Amendment No. 1 Thereto To Amend the Eligibility Criteria for Components of an Index Underlying Investment Company Units March 26, 2008. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on March 13, 2008, NYSE Arca, Inc. (“NYSE Arca” or “Exchange”), through its wholly owned subsidiary, NYSE Arca Equities, Inc. (“NYSE Arca Equities”), filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been substantially prepared by the Exchange. On March 24, 2008, the Exchange filed Amendment No. 1 to the proposed rule change. The Commission is publishing this notice to solicit comments on the proposed rule change, as amended, from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend Commentary .01 to NYSE Arca Equities Rule 5.2(j)(3) to modify the eligibility criteria for components of an index underlying Investment Company Units (“Units”). 3 The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and *www.nyse.com* . 3 Units are securities that represent an interest in a registered investment company that could be organized as a unit investment trust, an open-end management investment company, or a similar entity, that holds securities comprising, or otherwise based on or representing an interest in, an index or portfolio of securities or securities in another registered investment company that holds securities. *See* NYSE Arca Equities 5.2(j)(3). II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose Commentary .01 to NYSE Arca Equities Rule 5.2(j)(3) provides that NYSE Arca Equities may approve a series of Units for listing and/or trading (including pursuant to unlisted trading privileges) pursuant to Rule 19b-4(e) under the Act, 4 if such series satisfies the criteria set forth in Commentary .01 to NYSE Arca Equities Rule 5.2(j)(3). The Exchange proposes to exclude Units and certain other securities defined in Section 2 of NYSE Arca Equities Rule 8 (collectively, “Derivative Securities Products”) 5 when applying the quantitative listing requirements of Commentary .01(a)(A) and
(B)of NYSE Arca Equities Rule 5.2(j)(3) relating to the listing of Units based on a U.S. index or portfolio or an international or global index or portfolio, respectively. 4 Rule 19b-4(e) under the Act provides that the listing and trading of a new derivative securities product by a self-regulatory organization (“SRO”) shall not be deemed a proposed rule change, pursuant to Rule 19b-4(c)(1) under the Act (17 CFR 240.19b-4(c)(1)), if the Commission has approved, pursuant to Section 19(b) of the Act, the SRO's trading rules, procedures, and listing standards for the product class that would include the new derivatives securities product, and the SRO has a surveillance program for the product class. *See* 17 CFR 240.19b-4(e). 5 The following securities are included in Section 2 of NYSE Arca Equities Rule 8: Portfolio Depositary Receipts (Rule 8.100); Trust Issued Receipts (Rule 8.200); Commodity-Based Trust Shares (Rule 8.201); Currency Trust Shares (Rule 8.202); Commodity Index Trust Shares (Rule 8.203); Partnership Units (Rule 8.300); and Paired Trust Shares (Rule 8.400). The Exchange has also proposed to adopt new NYSE Arca Equities Rule 8.600 (Managed Fund Shares). *See* Securities Exchange Act Release No. 57395 (February 28, 2008), 73 FR 11974 (March 5, 2008) (SR-NYSEArca-2008-25) (proposing, among other things, to adopt listing standards for Managed Fund Shares). With respect to Commentary .01(a)(A) to NYSE Arca Equities Rule 5.2(j)(3), the Exchange proposes to exclude Derivative Securities Products, as components, when applying the following existing component eligibility requirements:
(1)Component stocks that, in the aggregate, account for at least 90% of the weight of the index or portfolio each must have a minimum market value of at least $75 million (Commentary .01(a)(A)(1));
(2)component stocks that, in the aggregate, account for at least 90% of the weight of the index or portfolio each must have a minimum monthly trading volume during each of the last six months of at least 250,000 shares (Commentary .01(a)(A)(2)); and
(3)the most heavily weighted component stock must not exceed 30% of the weight of the index or portfolio, and the five most heavily weighted component stocks must not exceed 65% of the weight of the index or portfolio (Commentary .01(a)(A)(3)). Component stocks, in the aggregate, excluding Derivative Securities Products, would still be required to meet the criteria of these provisions. Thus, for example, when determining compliance with Commentaries .01(a)(A)(1) and
(2)to NYSE Arca Equities Rule 5.2(j)(3), component stocks that, in the aggregate, account for at least 90% of the remaining index weight, after excluding any Derivative Securities Products, would be required to have a minimum market value of at least $75 million and minimum monthly trading volume of 250,000 shares during each of the last six months, respectively. In addition, with respect to Commentary .01(a)(A)(3) to NYSE Arca Equities Rule 5.2(j)(3), when determining the component weight for the most heavily weighted stock and the five most heavily weighted component stocks for an underlying index that includes a Derivative Securities Product, the weight of such Derivative Securities Product included in the underlying index or portfolio would not be considered. In addition, the Exchange proposes to modify the requirement in Commentary .01(a)(A)(4) to NYSE Arca Equities Rule 5.2(j)(3), which requires that the underlying index or portfolio include a minimum of 13 component stocks. Specifically, the Exchange proposes that there shall be no minimum number of component stocks if:
(1)One or more series of Units or Portfolio Depositary Receipts (as defined in NYSE Arca Equities Rule 8.100) constitute, at least in part, components underlying a series of Units; or
(2)one or more series of Derivative Securities Products account for 100% of the weight of the index or portfolio. Thus, for example, if the index or portfolio underlying a series of Units includes one or more series of Units or Portfolio Depositary Receipts, or if it consists entirely of other Derivative Securities Products, then there would not be required to be any minimum number of component stocks ( *i.e.* , one or more components comprising the underlying index or portfolio would be acceptable). However, if the index or portfolio consists of Derivative Securities Products, other than Units or Portfolio Depositary Receipts, and other securities that are not Derivative Securities Products ( *e.g.* , common stocks), then there would have to be at least 13 components in the underlying index or portfolio. Consistent with current Commentary .01(a)(A)(5) to NYSE Arca Equities Rule 5.2(j)(3), all securities in the index or portfolio (including Derivative Securities Products) must nevertheless be U.S. Component Stocks that are listed on a national securities exchange and NMS Stocks, as defined in Rule 600 under the Act. 6 6 *See* 17 CFR 242.600(b)(47). With respect to Commentary .01(a)(B) to NYSE Arca Equities Rule 5.2(j)(3), the Exchange proposes to exclude Derivative Securities Products, as components, when applying the following existing component eligibility requirements:
(1)Component stocks that, in the aggregate, account for at least 90% of the weight of the index or portfolio each must have a minimum market value of at least $100 million (Commentary .01(a)(B)(1));
(2)component stocks that, in the aggregate, account for at least 90% of the weight of the index or portfolio each must have a minimum worldwide monthly trading volume during each of the last six months of at least 250,000 shares (Commentary .01(a)(B)(2)); and
(3)the most heavily weighted component stock must not exceed 25% of the weight of the index or portfolio, and the five most heavily weighted component stocks must not exceed 60% of the weight of the index or portfolio (Commentary .01(a)(B)(3)). Thus, for example, when determining compliance with Commentaries .01(a)(B)(1) and
(2)to NYSE Arca Equities Rule 5.2(j)(3), component stocks that, in the aggregate, account for at least 90% of the remaining index weight, after excluding any Derivative Securities Products, would be required to have a minimum market value of at least $100 million and minimum worldwide monthly trading volume of 250,000 shares during each of the last six months, respectively. In addition, with respect to Commentary .01(a)(B)(3) to NYSE Arca Equities Rule 5.2(j)(3), when determining the component weight for the most heavily weighted stock and the five most heavily weighted component stocks for an underlying index that includes a Derivative Securities Product, the weight of such Derivative Securities Product included in the underlying index or portfolio would not be considered. In addition, the Exchange proposes to modify the requirement in Commentary .01(a)(B)(4) to NYSE Arca Equities 5.2(j)(3), which requires that the underlying index or portfolio include a minimum of 20 component stocks. Specifically, the Exchange proposes that there shall be no minimum number of component stocks if:
(1)One or more series of Units or Portfolio Depositary Receipts (as defined in NYSE Arca Equities Rule 8.100) constitute, at least in part, components underlying a series of Units, or
(2)one or more series of Derivative Securities Products account for 100% of the weight of the index or portfolio. Thus, for example, if the index or portfolio underlying a series of Units includes one or more series of Units or Portfolio Depositary Receipts, or if it consists entirely of other Derivative Securities Products, then there would not be required to be any minimum number of component stocks ( *i.e.* , one or more components comprising the underlying index or portfolio would be acceptable). However, if the index or portfolio consists of Derivative Securities Products, other than Units or Portfolio Depositary Receipts, and other securities that are not Derivative Securities Products ( *e.g.* , common stocks), then there would have to be at least 20 components in the underlying index or portfolio. Consistent with current Commentary .01(a)(B)(5) to NYSE Arca Equities Rule 5.2(j)(3), each component that is a U.S. Component Stock (including Derivative Securities Products) would be required to be listed on a national securities exchange and be an NMS Stock, as defined in Rule 600 under the Act, and each component that is a Non-U.S. Component Stock (including Derivative Securities Products) would be required to be listed and traded on an exchange that has last-sale reporting. The Exchange believes it is appropriate to exclude Derivative Securities Products from certain index component eligibility criteria for Units in so far as such Derivative Securities Products are themselves subject to specific quantitative listing and continued listing requirements of a national securities exchange on which such Derivative Securities Products are listed. Derivative Securities Products that are components of an index or portfolio underlying a series of Units would have been listed and traded on a national securities exchange pursuant to a proposed rule change approved by the Commission pursuant to Section 19(b)(2) of the Act 7 or submitted by a national securities exchange pursuant to Section 19(b)(3)(A) of the Act, 8 or would have been listed by a national securities exchange pursuant to the requirements of Rule 19b-4(e) under the Act. 9 Finally, the Exchange notes that Derivative Securities Products are derivatively priced, and, therefore, the Exchange believes that it would not be necessary to apply the generic quantitative criteria ( *e.g.* , market capitalization, trading volume, index or portfolio component weighting) applicable to non-Derivative Securities Products ( *e.g.* , common stocks) to such products. 7 15 U.S.C. 78s(b)(2). 8 15 U.S.C. 78s(b)(3)(A). 9 *See supra* note 4. 2. Statutory Basis The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5) of the Act, 10 which states that an exchange have rules that are designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market, and, in general, to protect investors and the public interest. The Exchange believes that the proposed rule change will facilitate the listing and trading of additional types of exchange-traded products that will enhance competition among market participants, to the benefit of investors and the marketplace. In addition, the listing and trading criteria set forth in the proposal are intended to protect investors and the public interest. 10 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others The Exchange states that it has neither solicited nor received comments on the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the date of publication of this notice in the **Federal Register** or within such longer period
(i)as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or
(ii)as to which the Exchange consents, the Commission will: A. By order approve such proposed rule change, or B. Institute proceedings to determine whether the proposed rule change should be disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov* . Please include File Number SR-NYSEArca-2008-29 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-NYSEArca-2008-29. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NYSEArca-2008-29 and should be submitted on or before April 22, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 11 11 17 CFR 200.30-3(a)(12). Florence E. Harmon, Deputy Secretary. [FR Doc. E8-6657 Filed 3-31-08; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57559; File No. SR-NYSEArca-2008-34] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to the Implementation of Phase Two of the Options Penny Pilot March 26, 2008. Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”), 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on March 25, 2008, NYSE Arca, Inc. (“NYSE Arca” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been substantially prepared by the Exchange. NYSE Arca has designated this proposal as one constituting a stated policy, practice, or interpretation with respect to the meaning, administration, or enforcement of an existing rule under section 19(b)(3)(A)(i) of the Act 3 and Rule 19b-4(f)(1) thereunder, 4 which renders the proposal effective upon filing with the Commission. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 15 U.S.C. 78s(b)(3)(A)(i). 4 17 CFR 240.19b-4(f)(1). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change NYSE Arca is proposing to implement the next phase of the Penny Pilot in options classes (“Pilot Program”), by identifying the additional issues to be added to the Pilot Program. The text of the proposed rule change is available on the Exchange's Web site *(http://www.nysearca.com),* at NYSE Arca's principal office, and at the Commission's Public Reference Room. 5 5 Exhibit 3 to the filing contains a Regulatory Bulletin that constitutes the text of the proposed rule change. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, NYSE Arca included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose On September 27, 2007, the Commission approved the Exchange's proposal to
(i)extend the Pilot Program through March 27, 2009, and
(ii)expand the Pilot Program to include an additional twenty-eight underlying issues on March 28, 2008 (“Phase II”). 6 The Exchange hereby proposes to implement Phase II of the Pilot Program on March 28, 2008, by adding twenty-eight additional issues, bringing the total number of issues included in the Pilot Program to sixty-three. These twenty-eight new options classes are among the most actively traded, multiply-listed options classes. A Regulatory Bulletin, attached to the proposed rule change as Exhibit 3 and disseminated to NYSE Arca's members, identifies these additional twenty-eight underlying securities. Pursuant to NYSE Arca Rule 6.72, this Regulatory Bulletin will also be published by the Exchange on its Web site. The thirty-five classes currently in the Pilot Program will continue to be quoted as they are today. 6 *See* Securities Exchange Act Release No. 56568 (September 27, 2007), 72 FR 56422 (October 3, 2007) (SR-NYSEArca-2007-88). 2. Statutory Basis The Exchange believes the proposed rule change is consistent with and furthers the objectives of Section 6(b)(5) of the Act, 7 in that it is designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. 7 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were solicited or received with respect to the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The proposed rule change has become effective pursuant to section 19(b)(3)(A)(i) of the Act 8 and Rule 19b-4(f)(1) thereunder, 9 because it constitutes a stated policy, practice, or interpretation with respect to the meaning, administration, or enforcement of an existing rule of the Exchange. 8 15 U.S.C. 78s(b)(3)(A)(i). 9 17 CFR 240.19b-4(f)(1). At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. 10 10 *See* 15 U.S.C. 78s(b)(3)(C). IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml);* or • Send an e-mail to *rule-comments@sec.gov.* Please include File Number SR-NYSEArca-2008-34 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-NYSEArca-2008-34. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site *(http://www.sec.gov/rules/sro.shtml).* Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the NYSE Arca. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NYSEArca-2008-34 and should be submitted on or before April 22, 2008. 11 17 CFR 200.30-3(a)(12). For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 11 Florence E. Harmon, Deputy Secretary. [FR Doc. E8-6656 Filed 3-31-08; 8:45 am] BILLING CODE 8011-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-57564; File No. SR-NASDAQ-2008-022] Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Modify the Rules Governing the Operation of The NASDAQ Options Market March 26, 2008. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on March 19, 2008, The NASDAQ Stock Market LLC (“Nasdaq”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I and II below, which Items have been prepared substantially by Nasdaq. Nasdaq has filed this proposal pursuant to Section 19(b)(3)(A)(iii) of the Act 3 and Rule 19b-4(f)(6) thereunder, 4 which renders the proposal effective upon filing with the Commission. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 15 U.S.C. 78s(b)(3)(A)(iii). 4 17 CFR 240.19b-4(f)(6). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change Nasdaq proposes to make five modifications to the rules governing its recently-approved NASDAQ Options Market (“NOM”). 5 Specifically, Nasdaq proposes to:
(1)Revise Chapter VI, Section 1(a)(2) of the NOM Rules to clarify that all options trades will be reported to the Options Price Regulatory Authority (“OPRA”);
(2)modify Chapter VI, Section 8 of the NOM Rules to change the final tie-breakers for the Order Imbalance Indicator and the execution algorithm of the Opening and Closing Crosses;
(3)replace improper references to the Nasdaq Market Center with proper references to NOM;
(4)revise Chapter VII, Section 6(c)(ii)(2) of the NOM Rules to replace an inaccurate reference to a subsection of Rule 602 of Regulation NMS under the Act; 6 and
(5)revise Chapter VI, Sections 7 and 10 of the NOM Rules to eliminate erroneous references to Displayed Orders, which is not a defined term in the NOM Rules. 5 *See* Securities Exchange Act Release No. 57478 (March 12, 2008), 73 FR 14521 (March 18, 2008) (order approving File Nos. SR-NASDAQ-2007-004 and SR-NASDAQ-2007-080) (“NOM Approval Order”). 6 17 CFR 242.602. The text of the proposed rule change is available at Nasdaq, in the Commission's Public Reference Room, and at *http://www.nasdaq.com.* II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, Nasdaq included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose On March 12, 2008, the Commission approved the Nasdaq proposals establishing NOM. 7 Nasdaq has identified the following five minor modifications to the operation and rules governing NOM that Nasdaq believes will improve the fair and orderly operation of NOM. 7 *See* NOM Approval Order, *supra* note 5.
(1)Nasdaq proposes to modify Chapter VI, Section 1(a)(2) of the NOM Rules to clarify that all options trades will be reported to OPRA. In its initial filing, Nasdaq inadvertently implied that it has discretion to withhold transaction reports when, in fact, no such discretion exists. All transaction reports by NOM will be reported to OPRA.
(2)Nasdaq proposes to modify Chapter VI, Section 8 of the NOM Rules to change the final tie-breakers for the Order Imbalance Indicator and the execution algorithm of the Opening and Closing Crosses. With respect to the Closing Cross, Nasdaq proposes to clarify that the Closing Cross execution price will be the price that maximizes the number of paired contracts of available interest within NOM at the time of the Closing Cross. This formulation is the same as the formulation that Nasdaq uses in its Closing Cross for equities. With respect to the Opening Cross, Nasdaq proposes to use as the final tie-breaker for the Order Imbalance Indicator and for the Opening Cross execution algorithm the midpoint price of the available trading interest within NOM at 9:30 a.m., rather than the Nasdaq Official Closing price from the previous trading day. After further discussion with industry representatives, Nasdaq has determined that using the prior day's closing price would introduce unnecessary uncertainty due to price changes that can and often do occur overnight. Nasdaq believes that using the midpoint price of trading interest available within NOM at 9:30 a.m. will be beneficial because it is the same tiebreaker that Nasdaq applies for its equities Opening Cross. In addition, Nasdaq believes that this price is more likely to produce a relevant market price because trading interest within NOM is more likely to reflect current market conditions than is the prior day's closing price.
(3)Nasdaq proposes to replace improper references to the Nasdaq Market Center with proper references to NOM. Throughout Chapter VI, Sections 8 and 9 of the NOM Rules, Nasdaq improperly referred to the Nasdaq Market Center rather than to NOM. Nasdaq believes that this technical correction will reduce confusion about Nasdaq's options rules.
(4)Nasdaq proposes to modify Chapter VII, Section 6(c)(ii)(2) of the NOM Rules to add one reference and to replace an inaccurate reference to subsections of Rule 602 of Regulation NMS under the Act.
(5)Nasdaq proposes to modify Chapter VI, Sections 7 and 10 of the NOM Rules to eliminate erroneous references to Displayed Orders, which is not a defined term within the NOM Rules. The rules will refer instead to orders that are displayed within the System. 2. Statutory Basis Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act, 8 in general, and with Section 6(b)(5) of the Act, 9 in particular, in that it is designed to promote just and equitable principles of trade, to foster cooperation with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest; and are not designed to permit unfair discrimination between customers, issuers, brokers, or dealers, or to regulate by virtue of the authority conferred by this title matters not related to the purposes of this title or the administration of the exchange. 8 15 U.S.C. 78f. 9 15 U.S.C. 78f(b)(5). Nasdaq notes that, with the exception of the changes proposed for the Nasdaq Opening and Closing Crosses, none of the proposed changes will impact the manner in which executions occur on NOM. According to Nasdaq, the proposed changes to the Opening and Closing Crosses are designed to improve both the quality and the predictability of executions during these two critical periods of the day. In addition, Nasdaq states that the proposed changes will more closely conform Nasdaq's options and equities trading platform, thereby facilitating improved trading by Nasdaq members. B. Self-Regulatory Organization's Statement on Burden on Competition Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Nasdaq notes, to the contrary, that the proposed rules are designed to effectuate the orderly launch of NOM, the seventh U.S. options market, which, Nasdaq believes, will increase competition for the quotation and trading of standardized equity and index options. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others Written comments were neither solicited nor received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Nasdaq has designated the proposed rule change as one that:
(i)Does not significantly affect the protection of investors or the public interest;
(ii)does not impose any significant burden on competition; and
(iii)does not become operative for 30 days from the date of filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest. In addition, as required under Rule 19b-4(f)(6)(iii), 10 Nasdaq provided the Commission with written notice of its intention to file the proposed rule change, along with a brief description and the text of the proposed rule change, at least five business days prior to filing the proposal with the Commission. Therefore, the foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act 11 and Rule 19b-4(f)(6) thereunder. 12 10 17 CFR 240.19b-4(f)(6)(iii). 11 15 U.S.C. 78s(b)(3)(A). 12 17 CFR 240.19b-4(f)(6). Pursuant to Rule 19b-4(f)(6)(iii) under the Act, a proposal does not become operative for 30 days after the date of its filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest. Nasdaq has asked the Commission to waive the 30-day operative delay to allow the proposal to be operative on March 31, 2008, the day Nasdaq plans to launch NOM. Nasdaq states that it has carefully planned a detailed and thorough testing and roll-out schedule for the NOM market, and has coordinated this schedule with numerous industry participants. Nasdaq believes that disrupting this schedule for the proposed modifications would cause disproportionate inconvenience and delay the launch of a process that will benefit investors. The Commission notes that waiving the 30-day operative delay will allow Nasdaq to launch NOM pursuant to its planned schedule. Further, the proposal will clarify NOM's rules, correct technical errors, and provide greater consistency between NOM's opening and closing procedures and the opening and closing procedures Nasdaq uses in its equity market. For these reasons, the Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest and therefore designates that the proposal become operative immediately. At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. IV. Solicitation of Comments Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov.* Please include File Number SR-NASDAQ-2008-022 on the subject line. Paper Comments • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-1090. All submissions should refer to File No. SR-NASDAQ-2008-022. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room on official business days between the hours of 10 a.m. and 3 p.m. Copies of the filing also will be available for inspection and copying at the principal office of Nasdaq. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File No. SR-NASDAQ-2008-022 and should be submitted on or before April 22, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 13 13 17 CFR 200.30-3(a)(12). Florence E. Harmon, Deputy Secretary. [FR Doc. E8-6611 Filed 3-31-08; 8:45 am] BILLING CODE 8011-01-P DEPARTMENT OF STATE [Public Notice: 6163] 30-Day Notice of Proposed Information Collection: DS-3035, J-1 Visa Waiver Recommendation Application, OMB Control Number 1405-0135 ACTION: Notice of request for public comment and submission to OMB of proposed collection of information. SUMMARY: The Department of State has submitted the following information collection request to the Office of Management and Budget
(OMB)for approval in accordance with the Paperwork Reduction Act of 1995. • *Title of Information Collection:* J-1 Visa Waiver Recommendation Application. • *OMB Control Number:* 1405-0135. • *Type of Request:* Extension of a Currently Approved Collection. • *Originating Office:* Bureau Of Consular Affairs, Department of State (CA/VO). • *Form Number:* DS-3035. • *Respondents:* J-1 visa holders applying for a waiver of the two-year foreign residence requirement. • *Estimated Number of Respondents:* 10,000. • *Estimated Number of Responses:* 10,000. • *Average Hours Per Response:* 1 hour. • *Total Estimated Burden:* 10,000 hours. • *Frequency:* On occasion. • *Obligation to Respond:* Required to obtain or retain a benefit. DATE(S): Submit comments to the Office of Management and Budget
(OMB)for up to 30 days from April 1, 2008. ADDRESSES: Direct comments and questions to Katherine Astrich, the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB), who may be reached at 202-395-4718. You may submit comments by any of the following methods: • *E-mail: kastrich@omb.eop.gov* . You must include the DS form number, information collection title, and OMB control number in the subject line of your message. • *Mail (paper, disk, or CD-ROM submissions):* Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503. • *Fax:* 202-395-6974. FOR FURTHER INFORMATION CONTACT: You may obtain copies of the proposed information collection and supporting documents from Lauren Prosnik of the Office of Visa Services, U.S. Department of State, 2401 E Street, NW., L-603, Washington, DC 20520, who may be reached at
(202)663-2951. SUPPLEMENTARY INFORMATION: We are soliciting public comments to permit the Department to: • Evaluate whether the proposed information collection is necessary to properly perform our functions. • Evaluate the accuracy of our estimate of the burden of the proposed collection, including the validity of the methodology and assumptions used. • Enhance the quality, utility, and clarity of the information to be collected. • Minimize the reporting burden on those who are to respond, *Abstract of proposed collection:* Form DS-3035 is used to determine the eligibility of a J-1 visa holder for a waiver of the two-year foreign residence requirement. *Methodology:* Form DS-3035 will be mailed to the Waiver Review Division of the State Department. Dated: February 29, 2008. Stephen A. Edson, Deputy Assistant Secretary, Bureau of Consular Affairs, Department of State. [FR Doc. E8-6673 Filed 3-31-08; 8:45 am] BILLING CODE 4710-06-P DEPARTMENT OF STATE [Public Notice 6077] Bureau of Political-Military Affairs: Directorate of Defense Trade Controls: Renewal of Defense Trade Advisory Group Charter SUMMARY: Notice is hereby given that the Charter of the Defense Trade Advisory Group
(DTAG)has been renewed for a two-year period. The membership of this advisory committee consists of private sector defense trade specialists appointed by the Assistant Secretary of State for Political-Military Affairs. The DTAG advises the Department on policies, regulations, and technical issues affecting defense trade. FOR FURTHER INFORMATION CONTACT: Alexandra Frantz, PM/DDTC, SA-1, 12th Floor, Directorate of Defense Trade Controls, Bureau of Political-Military Affairs, U.S. Department of State, Washington, DC 20522-0112; telephone
(202)736-9220; FAX
(202)261-8199; or e-mail *Frantza@state.gov.* Dated: March 10, 2008. Robert S. Kovac, Executive Secretary, Defense Trade Advisory Group, Department of State. [FR Doc. E8-6676 Filed 3-31-08; 8:45 am] BILLING CODE 4710-25-P DEPARTMENT OF STATE [Public Notice 6164] Meeting of Advisory Committee on International Communications and Information Policy The Department of State's Advisory Committee on International Communications and Information Policy (ACICIP) will hold a public meeting on April 17, 2008, from 10 a.m. to 11:30 a.m., in the Loy Henderson Auditorium of the Harry S. Truman Building of the U.S. Department of State. The Truman Building is located at 2201 C Street, NW., Washington, DC 20520. The committee provides a formal channel for regular consultation and coordination on major economic, social and legal issues and problems in international communications and information policy, especially as these issues and problems involve users of information and communications services, providers of such services, technology research and development, foreign industrial and regulatory policy, the activities of international organizations with regard to communications and information, and developing country issues. The meeting will be led by ACICIP Chair Mr. Richard E. Wiley of Wiley Rein LLP and Ambassador David A. Gross, Deputy Assistant Secretary of State and U.S. Coordinator for International Communications and Information Policy. The meeting's agenda will include discussions pertaining to various upcoming international telecommunications meetings and conferences. In particular, there will be a report on preparations by the U.S. Delegation for the APEC Ministerial Meeting on Telecommunications and Information Industry to be held in Bangkok from April 23-25, 2008. Additionally, there will be reports and discussion concerning recent meetings between the U.S. and various government and industry during the recent GSMA Mobile World Congress in Barcelona as well as CTIA Wireless 2008 in Las Vegas. There will also be discussion about additional upcoming events, including the OECD Ministerial on the Future of the Internet Economy to be held in Seoul in June and the International Telecommunication Union's Telecom Africa 2008 to be held in Cairo in May. And there will also be discussion further to the last meeting of the ACICIP on a conference that will be led by the President's Digital Freedom Initiative (a public-private partnership) that is expected to be held in July 2008 and will focus on promoting broadband access in West Africa. Members of the public may submit suggestions and comments to the ACICIP. Submissions regarding an event, consultation, meeting, etc. listed in the agenda above should be received by the ACICIP Executive Secretary (contact information below) at least ten working days prior to the date of that listed event. All comments must be submitted in written form and should not exceed one page for each country (for comments on consultations) or for each subject area (for other comments). Resource limitations preclude acknowledging or replying to submissions. While the meeting is open to the public, admittance to the Department of State building is only by means of a pre-clearance. For placement on the pre-clearance list, please submit the following information no later than 5 p.m. on Monday, April 14, 2008 (Please note that this information is not retained by the ACICIP Executive Secretary and must therefore be re-submitted for each ACICIP meeting): I. State that you are requesting pre-clearance to a meeting. II. Provide the following information: 1. Name of meeting and its date and time. 2. Visitor's full name. 3. Company/Agency/Organization. 4. Title at Company/Agency/Organization. 5. Date of birth. 6. Citizenship. 7. Acceptable forms of identification for entry into the U.S. Department of State include: • U.S. driver's license with photo. • Passport. • U.S. government agency ID. 8. ID number on the ID visitor will show upon entry. Send the above information to Emily Yee by fax
(202)647-5957 or e-mail *YeeE@state.gov.* *Privacy Act Statement:* The above information is sought pursuant to 5 U.S.C. 301 and 22 U.S.C. 2651a, 4802(a). The principal purpose for collecting the information is to assure protection of U.S. Department of State facilities. The information provided also may be released to federal, state or local agencies for law enforcement, counter-terrorism or homeland security purposes, or to other federal agencies for certain personnel and records management matters. Providing this information is voluntary but failure to do so may result in denial of access to U.S. Department of State facilities. All visitors for this meeting must use the 23rd Street entrance. The valid ID bearing the number provided with your pre-clearance request will be required for admittance. Non-U.S. government attendees must be escorted by Department of State personnel at all times when in the building. For further information, please contact Emily Yee, Executive Secretary of the Committee, at
(202)647-5205 or *YeeE@state.gov.* General information about ACICIP and the mission of International Communications and Information Policy is available at: *http://www.state.gov/e/eeb/adcom/c667.htm.* Dated: March 18, 2008. Emily Yee, ACICIP Executive Secretary, Department of State. [FR Doc. E8-6677 Filed 3-31-08; 8:45 am] BILLING CODE 4710-07-P SUSQUEHANNA RIVER BASIN COMMISSION Notice of Public Comment and Public Hearing AGENCY: Susquehanna River Basin Commission. ACTION: Notice of public comment and public hearing. SUMMARY: The Susquehanna River Basin Commission
(SRBC)will hold a public hearing on April 23, 2008 in the Susquehanna Room, Pennsylvania Fish & Boat Commission, 1601 Elmerton Ave., Harrisburg, Pennsylvania 17110, beginning at 10 a.m. The purpose of the hearing is to receive comments on a proposed increase in the SRBC Consumptive Use Mitigation Fee and is being held in conjunction with a 60-day public comment period established for the proposal. Details concerning the subject matter of the public hearing are contained in the Supplementary Information section of this notice. DATES: April 23, 2008, beginning at 10 a.m. ADDRESSES: Pennsylvania Fish and Boat Commission, 1601 Elmerton Ave., Harrrisburg, Pennsylvania 17110. FOR FURTHER INFORMATION CONTACT: More information on the proposed increase can be obtained from SRBC's Web site at *http://www.srbc.net/programs/projreview.htm* or by calling
(717)238-0423. SUPPLEMENTARY INFORMATION: As noted in the summary, the purpose of the 60-day comment period and the hearing is to receive comments on a proposed increase in the SRBC Consumptive Use Mitigation Fee. The fee, which is paid by the sponsors of consumptive use projects as an optional method of compliance with the SRBC's consumptive use mitigation requirements, has not been adjusted since January 1, 1993. Under the proposal, the fee would increase from its current level of 14 cents per 1,000 gallons of water consumed to 28 cents per 1,000 gallons of water consumed, to take effect on January 1, 2009, with annual inflationary adjustments in subsequent years. Opportunity to Appear and Comment Interested parties may appear at the above hearing to offer written or oral comments to the Commission. The chair of the Commission reserves the right to limit oral statements in the interest of time and to otherwise control the course of the hearing and business meeting. Anyone planning to comment at the public hearing should contact Richard A. Cairo, General Counsel, SRBC, 1721 N. Front Street, Harrisburg, PA 17102-2391;
(717)238-0423. Ext. 306. Public comments will also be accepted during the 60-day comment period that begins April 1, 2008 and concludes May 31, 2008, and can be sent to Mr. Cairo by mail, by e-mail at *SRBCfeecomments@srbc.net,* and by fax at
(717)238-2436. Authority: P.L. 91-575, 84 Stat. 1509 et seq., 18 CFR Parts 806, 807, and 808. Dated: March 24, 2008. Thomas W. Beauduy, Deputy Director. [FR Doc. E8-6625 Filed 3-31-08; 8:45 am] BILLING CODE 7040-01-P DEPARTMENT OF TRANSPORTATION Office of the Secretary Notice of Order Soliciting Community Proposals AGENCY: Department of Transportation. ACTION: Notice of Order Soliciting Community Proposals (Order 2008-3-8) Docket DOT-OST-2008-0100. SUMMARY: The Department of Transportation is soliciting proposals from communities or consortia of communities interested in receiving a grant under the Small Community Air Service Development Program. The full text of the Department's order is attached to this document. There are two mandatory requirements for filing of applications, both of which must be completed for a community's application to be deemed timely and considered by the Department. The first requirement is the filing of an Application for Federal Domestic Assistance (SF424) through *http://www.grants.gov.* The second is the submission of the community's proposal as an attachment to its SF424. Applicants must complete a one-time registration process at *http://www.grants.gov* that can take up to 10 days to complete. For this reason, applicants should register as soon as possible to ensure they can meet the application deadline. DATES: Grant proposals and the SF424 should be submitted no later than June 6, 2008. ADDRESSES: Interested parties must submit applications electronically as an attachment to the SF424 through *http://www.grants.gov.* The application should bear the title, “Proposal under the Small Community Air Service Development Program, Docket DOT-OST-2008-0100,” as well as the name of the applicant community or consortium of communities, the legal sponsor, and the applicant's DUNS number. FOR FURTHER INFORMATION CONTACT: Aloha Ley, Office of Aviation Analysis, 8th Floor, Room W86-310, 1200 New Jersey Ave., SE., Washington, DC 20590,
(202)366-2347. Dated: March 25, 2008. Michael W. Reynolds, Acting Assistant Secretary for Aviation and International Affairs. [Docket DOT-OST-2008-0100] In the Matter of Grant Applications Small Community Air Service Development Program under 49 U.S.C. 41743 *et seq.* ; Order Soliciting Community Grant Proposals Issued by the Department of Transportation on the 25th day of March, 2008 Overview By this order, the Department invites proposals from communities and/or consortia of communities interested in obtaining a federal grant under the Small Community Air Service Development Program (Small Community Program) to address air service and airfare problems in their communities. Proposals should be submitted in the above-referenced docket no later than June 6, 2008. Applicants must submit an Application for Federal Domestic Assistance (SF424), a standard federal government grant application form, at *http://www.grants.gov* and include their proposals as an attachment to the SF424. An application will not be deemed complete until and unless all required materials are filed by the June 6 deadline. (See Appendix C for additional information on filing form SF424.) Communities are reminded to register with Grants.gov early in the application period since the registration process can take up to 10 days to complete. Funding Opportunity The Small Community Program was established under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21), Public Law 106-181, and reauthorized under the Vision 100-Century of Aviation Reauthorization Act, Public Law 108-176 (Vision 100). The program is designed to provide financial assistance to small communities to help them enhance their air service. The Department provides this assistance in the form of financial grants that are disbursed on a reimbursable basis. 1 Under the Consolidated Appropriation Act, 2008 (Pub. L. 110-161), the Department received $10 million to carry out the Small Community Program. 2 1 For detailed background on the Small Community Program, see our Web site at: *http://ostpxweb.dot.gov/aviation/X-50%20Role_files/smallcommunity.htm#Funds* . 2 Program funding for this year may be affected by a provision that provides the Secretary with authority to transfer funds from any program within or administered by the Office of the Secretary to the Essential Air Service program if that program does not have sufficient funds to meet its statutory obligations. In addition, a portion of the funds available for the Small Community Program may be used by the Department for grants-management purposes. The program is limited to a maximum of 40 grant awards, with a maximum of four grants per State, in each year the program is funded. There are no limits on the amounts of individual awards, and the amounts awarded will vary depending upon the features and merits of the proposals selected. Over the past six years, the Department's individual grants have ranged from $20,000 to nearly $1.6 million. Authorized grant projects may include activities that extend over a multi-year period under a single grant award; however, grant funds are to be used in a timely manner. Generally speaking, individual grant awards have not exceeded a three- to four-year period. Eligibility Information Who Is Eligible To Apply for a Grant? Basic criteria. Eligible applicants are those communities that
(1)are served by an airport that was not larger than a small hub airport for calendar year 1997 3 and
(2)have insufficient air service or unreasonably high airfares. Communities that do not currently have commercial air service are also eligible, but they must have met or be able to meet in a reasonable period all necessary requirements of the Federal Aviation Administration for the type of service involved in their grant proposals. Communities served by medium and large hubs are not eligible to apply. 3 The hub classifications are based on the Federal Aviation Administration's CY 1997 enplanement data. Essential Air Service communities may apply. Small communities that meet the basic criteria and currently receive subsidized air service under the Essential Air Service
(EAS)program are eligible to apply for funds under the Small Community Program. Indeed, a number of EAS-subsidized communities applied in past years and some have received grant awards. However, grant awards to EAS-subsidized communities are limited to marketing or promotion projects that support existing or newly subsidized air services. Grant funds will not be authorized for EAS-subsidized communities to support any new air service. Furthermore, no funds will be authorized to support additional flights by EAS carriers or changes to those carriers' existing schedules. These restrictions are necessary to avoid potentially adverse effects on EAS program subsidies and the operations of EAS carriers. Additional consideration for communities/members of consortia that have previously received a grant. Communities or members of a consortia that were awarded grants in previous years and want to apply for a grant this year should be aware that
(1)they are precluded from seeking new funds for projects for which they have already received an award under the Small Community Program and
(2)they cannot accept a new grant while they are a party to an existing grant under the program, either as an individual community or as a member of a consortium. *Grant must be for a new project* . No community may participate in the program in support of the same project more than once. 49 U.S.C. 41743(c)(4). In assessing whether a previous grantee's current proposal represents a new project, we would look particularly at the goals and objectives of the earlier grant, as well as the key components of the means by which those goals and objectives were to be achieved, in comparison to the current proposal. For example, if a community received an earlier grant to support a revenue guarantee for service to a particular destination or direction, a new application for another revenue guarantee for the same service would be disqualified under section 41743(c), even if the revenue guarantee were structured differently or the type of carrier were different. However, we do not read section 41743(c) to disqualify a new application for service to a new destination or direction using a revenue guarantee, or for general marketing of the airport and the various services it offers. Last year we interpreted this provision more narrowly than in previous years. We are revisiting the issue in light of concerns expressed that the interpretation is too restrictive; for example, that not all revenue guarantees or marketing agreements are of the same nature, and that if a subsequent proposal incorporates different goals or significantly different components, it may be sufficiently different to constitute a new project under section 41743(c). In its application, a community that is a previous grant recipient should compare and contrast its proposed project with its previously funded one(s) to demonstrate why its latest idea represents a new project. Communities should also note that in each of the prior six years of the program, interest in participation exceeded both the funds available and the number of communities that can take part in any one year. For this reason, the fact that a community has already received one or more grants will be a consideration when comparing its new proposal with those of other applicant communities. *No concurrent grants are permitted* . A community or member of a consortia may participate in the program a subsequent time only after its participation in a prior grant has terminated. 49 U.S.C. 41743(c)(4). Simply stated, a community can have only one Small Community Program grant at any time. If a grant applicant is applying for a subsequent grant and its current grant has not yet expired, it must notify the Department of its intent to terminate the current grant prior to entering into the new grant. In addition, for grant applicants that are members of a consortia grant, permission must be granted from both the grant sponsor and the Department to withdraw from the current grant prior to being eligible to receive a subsequent grant. *Subsidies for a carrier to compete against an incumbent raise concerns* . The Department is concerned generally about subsidizing one carrier but not others in a competitive market. For this reason, communities that propose to use the grant funds for service in a city-pair market that is already served by a carrier must explain in detail why the existing service is insufficient or unsatisfactory, or provide other compelling information to support such proposals. This information is necessary for the Department to consider the competitive implications of giving financial or other tangible incentives for one carrier that the other carrier is not receiving. Subsidy proposals should reflect market analysis and a complementary marketing commitment. A thorough understanding of the target market is essential for the ultimate success of new or expanded air service. Likewise, the chances that such a service will become self-sustaining are enhanced when its implementation is supported by a well-designed marketing campaign. For these reasons, communities requesting funds for a revenue guarantee/subsidy/ financial incentive are encouraged to include in their proposals an in-depth analysis evidencing close familiarity with their target markets. Such communities also are encouraged to designate in their proposals a portion of their requested funds for the development and implementation of a marketing plan in support of the service sought. A consortium is more than a collection of communities. The statute permits individual communities and consortia of communities to apply for grant awards under this program. In some instances in the past, several communities in a State have filed a single application as a “consortium” while in effect the application is a collection of individual community requests that involve different projects. We do not view this as a consortium. Rather, an application representing a consortium would be one that facilitates efforts of communities working together toward a joint grant project. For example, several communities surrounding an airport may apply together to improve air services at that airport, or surrounding airports may work together to provide regional air service. Multiple applications by a community will not be considered. The Department requests that communities file only one application for a grant. In the past, some communities have filed both individual applications and requests as part of a consortium. In many cases these applications have involved the same project at the same or different funding levels. We will not consider the stand-alone application if a community is also submitting a largely identical request as part of a consortium. To the extent that a community files separately and as part of a consortium for complementary projects—for example, one request for funding a revenue guarantee and one for marketing—we will consider such proposals. However, communities should be aware that they can receive only one grant, either the stand-alone grant or as a member of a consortium, because no community can have concurrent grants. Cost Sharing and Local Contributions Are Important Factors The statute does not require communities to contribute toward a grant project, but those communities that contribute from local sources other than airport revenues are accorded priority consideration. One core objective of the Small Community Program is to promote community involvement in addressing air service/air fare issues through public/private partnerships. As a financial stakeholder in the process, the community gains greater control over the type, quality, and success of the air service initiatives that will best meet its needs, and demonstrates a greater commitment towards achieving the stated goals. The Department has historically received many more applications than can be accommodated and nearly all of those applications have proposed a community financial contribution to the project. Thus, proposals that do not propose a community financial contribution will be at a competitive disadvantage. Types of contributions. Contributions should represent a new financial commitment or new financial resources devoted to attracting new or improved service, or addressing specific high-fare or other service issues, such as improving patronage of existing service at the airport. Contributions from already-existing programs or projects ( *e.g.* , designating a portion of an airport's existing annual marketing budget to the project) are considered less favorably than contributions for new and innovative programs or projects. For those communities that propose to contribute to the grant project, that contribution can be in the following forms: *Cash from non-airport revenues.* This cash contribution can include funds from the State, the County or the local government, and/or from local businesses, or other private organizations in the community. Contributions that are comprised of intangible non-cash items, such as the “value” of donated advertising, are considered “in-kind” contributions (see further discussion below). *Cash from airport revenues.* This includes contributions from funds generated by airport operations. Airport revenues may not be used for revenue guarantees to airlines. 4 Community proposals that include local contributions based on airport revenues do not receive priority consideration for selection. 4 49 U.S.C. 47107, 47133. *In-Kind Contributions from the airport.* This can include such items as waivers of landing fees, terminal rents, fuel fees, and/or vehicle parking fees. *In-Kind Contributions from the community.* This can include such items as donated advertising from media outlets, catering services for inaugural events, or in-kind trading, such as advertising in exchange for free air travel. Travel banks and travel commitments/pledges are considered to be in-kind contributions, 5 as are reduced fares offered by airlines. 5 A travel “bank” involves the actual deposit of funds from participating parties (e.g., businesses, individuals) into a designated bank account for the purpose of purchasing air travel on the selected airline, with defined procedures for the subsequent use or withdrawal of those funds under an agreement with the airline. Often, however, what communities refer to as a travel “bank” in reality involves travel “pledges” from businesses in the community without any collection of funds or formal procedures for use of the funds. The Department views travel banks and pledges included in grant proposals as an indicator of local community support. Cash vs. in-kind contributions. Only cash contributions will be eligible for reimbursement. “In-kind” or non-cash contributions, which encompass property or services contributed by non-Federal third parties without charge to the grantee, are not eligible. Because they are not reimbursable, in-kind contributions are not considered as part of the community's cash financial contribution to the project. Of course, communities should include any in-kind contributions in their proposals and are encouraged to offer in-kind inducements as an extra incentive to facilitate air service/fare improvements. While these contributions will not be considered as part of the community's cash contribution toward the project on which reimbursements are made, they will be considered as illustrative of the community's overall commitment to the proposed grant project. If there is any question about whether a proposed contribution would be considered as “in-kind” or cash, the applicant should contact the Department before submitting its proposal. Financial commitments must be fulfilled. Applicant communities should also note that, as part of the grant agreement between the Department and the community, the community has legally committed itself to fulfilling its proposed financial contribution to the project and that its failure to meet this commitment could lead the Department to terminate the grant. Community participation in all aspects of the proposal, including the financial aspects, is critical to the success of the authorized project initiative. As with the grant awards in past years, receipt of the full federal contribution awarded will thus be linked to the community's fulfillment of its financial contribution. Furthermore, communities cannot propose a certain level of cash contribution from non-airport sources, and subsequent to being awarded a grant, seek to substitute or replace that contribution with either “in-kind” contributions or contributions from airport revenues, or both. Given the statute's priority for contributions from non-airport sources and the competitive nature of the selection process, a community's grant award could be reduced or terminated altogether if it is unable to replace the committed funds from non-airport revenue sources. Application and Submission Information Filing Deadline and Procedures Grant applications are due by June 6, 2008. As part of the submission process, an applicant must register for and complete SF424, Application for Federal Domestic Assistance. An applicant must also include its grant proposal as an attachment to its SF424. In addition, the cover page of each application should contain the information specified under “Cover page contents,” below. Questions regarding the program should be directed to the Office of Aviation Analysis on
(202)366-2347 or *aloha.ley@dot.gov* . Communities are encouraged to register with Grants.gov early during the application period since the registration process can take up to 10 days to complete. Communities are also encouraged to contact the Grants.gov help desk for any technical assistance in filing their applications. SF424 required. To comply with the Grants.gov initiative, a mandate of the President's Management Agenda, all applicants must submit form SF424, Application for Federal Domestic Assistance, found on *http://www.grants.gov* . Further, grant proposals must be submitted as an attachment to the SF424. An application will not be deemed complete unless the SF424 and the attached proposal have been submitted through Grants.gov by the June 6 deadline. Applicants must complete a one-time registration process in order to submit the SF424 application. This registration process can take seven to ten days to complete. For this reason, communities intending to file applications should register as soon as possible to ensure they can meet the application deadline. Appendix C provides additional information with respect to the registration process in Grants.gov, along with instructions on submitting the SF424 once the registration process has been completed. Cover page contents. The cover page for all applications should bear the title “Proposal Under the Small Community Air Service Development Program,” and should include the docket number DOT-OST-2008-0100, the name of the community or consortium of communities applying, the legal sponsor, and the community's Dun and Bradstreet (D&B) Data Universal Numbering System
(DUNS)number. Confidential treatment of information. Applicants will be able to provide certain information relevant to their proposals on a confidential basis. Under the Department's regulations, such information is limited to commercial or financial information that, if disclosed, would either significantly harm the competitive position of a business or enterprise or make it more difficult for the Federal Government to obtain similar information in the future. Applicants seeking confidential treatment of a portion of their applications must segregate the confidential material in a sealed envelope marked “Confidential Submission of X (the applicant) in Docket DOT-OST-2008-0100,” and include with that material a request in the form of a motion seeking confidential treatment of the material under 14 CFR 302.12 (Rule 12) of the Department's regulations. The applicant should submit an original and two copies of its motion and an original and two copies of the confidential material in the sealed envelope. The confidential material should not be included with the original of the applicant's proposal that is submitted via *http://www.grants.gov* . The applicant's original submission, however, should indicate clearly where the confidential material would have been inserted. If an applicant invokes Rule 12, the confidential portion of its filing will be treated as confidential pending a final determination. All confidential material must be received by June 6, 2008, and delivered to the Office of Aviation Analysis, 8th Floor, Room W86-310, 1200 New Jersey Ave., SE., Washington, DC 20590. Types of Projects and Application Content The statute is very general about the types of projects that can be authorized so that communities are provided greater flexibility in addressing their particular air service and airfare issues. Because circumstances may differ among communities, applicants have some latitude in identifying their own objectives and developing strategies for accomplishing them. One objective of the Small Community Program is to help communities secure enhancements that will be responsive to their air transportation/air fare needs on a long-term basis after the financial support of the grant has ended. There are many ways that a community might enhance its current air service or attract new service, such as: • Promoting awareness among residents of locally available service; • Attracting a new carrier through revenue guarantees or operating cost offsets; • Attracting new forms of service, such as on-demand air taxi service; • Offering an incumbent carrier financial or other incentives to lower its fares, increase its frequencies, add new routes, or deploy more suitable aircraft, including upgrading its equipment from turboprops to regional jets; • Combining traffic support from surrounding communities with regionalized service through one airport; or • Providing local ground transportation service to improve access to air service to the community and the surrounding area. 6 6 These examples are illustrative only and are not meant as a list of projects favored by the Department. Interested communities can view actual proposals submitted in prior years. Go to *http://regulations/gov* and, under “Search,” enter one of the following depending on the desired filing year: DOT-OST-2002-11590, DOT-OST-2003-15065, DOT-OST-2004-17343, DOT-OST-2005-20127, DOT-OST-2006-23671, or DOT-2007-27370 for proposals filed in 2002, 2003, 2004, 2005, 2006 and 2007, respectively. Communities are encouraged to be innovative and to consider a wide range of initiatives and air transportation services in developing their proposals, such as intermodal or regional solutions. At the same time, proposals must not be general, vague, or unsupported. The more highly defined and focused the proposal, the more competitive it will be, particularly in light of the priority consideration afforded by the statute to those applicants that can use the funds in a timely manner. 49 U.S.C. 41743 (c)(5)(E). There is no set format that must be used in submitting grant proposals. At a minimum, however, a proposal must provide the following information: • *A description of the community's existing air service* , including the carrier(s) providing service, service frequency, direct and connecting destinations offered, available fares, and equipment types. • *A synopsis of the community's historical service* , including destinations, traffic levels, service providers, and any extenuating factors that might have affected traffic in the past or that can be expected to influence service needs in the near to intermediate term. • *A description of the community's air service development efforts over the past five years and the results of those efforts.* Many communities have been active on an on-going basis for many years in air service development efforts, while others are just beginning. To the extent that a community has previously engaged in other air service initiatives, including through public/private partnerships, it should describe those efforts and their results in its grant proposal. The description should include marketing and promotional efforts of airport services as well as efforts to recruit additional or improved air service and airfare initiatives. • *A description of the community's air service needs or deficiencies* , including any major origin/destination markets not now served or not served adequately. In addition, communities are free to submit any information about their fare levels that they deem relevant to consideration of their grant request, including market analyses or studies demonstrating an understanding of local air service needs. • *A strategic plan for meeting those needs under the Small Community Program* , including the community's specific project goal(s) and detailed plan for attaining that goal(s). Plans should: ✓ Clearly identify the target audience of each component of the proposed transportation initiative, including all advertising and promotional efforts. ✓ Set forth a realistic timetable for implementation of the grant project. In this regard, the statute includes timely use of the grant funds as a priority consideration. Consequently, communities must have a well-developed project plan and a detailed timetable for implementing that plan. In establishing the timetable, however, communities should be realistic about their ability to meet their project deadlines. 7 7 The projected timetable will be an integral part of the grant agreements between the selected communities and the Department. Therefore, there is no advantage to a community in proposing an aggressive timetable that cannot be met, and there may be disadvantages if the community finds that it cannot meet its timetable. Communities should carefully consider all factors affecting implementation of their projects and develop realistic timeframes for achieving those objectives, keeping in mind that authorized projects generally have averaged three to four years. ✓ For proposals involving new or improved service, explain how the service will become self-sufficient. Under the statute, a community cannot seek grant funding in subsequent years in support of the same project. Moreover, it is important that communities seriously consider the scale of their proposed projects in developing their proposals and the timetable for achieving them. To the extent that a proposed project is dependent upon or relevant to the completion of other federally funded capital improvement projects, the community should provide a description of, and the construction time-line for, those projects, keeping in mind the statutory requirement to use Small Community Program funding in a timely manner. ✓ Of particular importance, fully and clearly outline the goals and objectives sought to be achieved, *e.g.* , “to broaden the awareness by residents in the Tri-County area of the various services provided by passenger carriers at the Tri-County airport,” or “to obtain new and affordable service to a hub airport in a direction where there is no such service.” When an application is selected, these goals and objectives will be incorporated into the grant agreement and define its basic project scope. Once an agreement is signed, if circumstances change and an amendment is sought to allow for different activities or a different approach, the Department will look to whether the change being sought is consistent with those fundamental project goals and objectives. Proposed changes that would alter those fundamental goals and objectives cannot be authorized, because doing so would undermine the competitive nature of the selection process. Applicants are also encouraged to include in their proposals alternative or back-up strategies for achieving their desired goals and objectives. By incorporating such information into the grant agreement, desired changes may be more easily accommodated. ✓ If the applicant received a Small Community Program grant in the past, explain how its proposed project differs from its earlier one by comparing and contrasting project goals, objectives and methods of achieving them. • *A description of any public-private partnership that will participate in the project.* Full community involvement is a key aspect of the Small Community Program. The statute gives a priority to those communities that already have established, or will establish, a public-private partnership to facilitate air service to the public. The proposal should fully describe the public-private partnership that will participate in the community's proposal and how the partnership will actively participate in the implementation of the proposed project. In addition, applicants should identify each member of the partnership, the role that each will play, and the specific responsibilities of each member in project implementation. If the application does not include specific information on the partnership participation in the project, the Department cannot evaluate how well a community has met this consideration, and the applicant will not be deemed as having met this priority consideration in the Department's evaluation of the community's proposal. • A * detailed description of the funding necessary for implementation of the community's project, including the federal and non-federal contributions.* Proposals should clearly identify the level of federal funding sought. They should also clearly identify the other cash contributions toward the proposed project, “in-kind” contributions from the airport, and “in-kind” contributions from the community. Cash contributions from airport revenues should be identified separately from cash contributions from other community sources. Similarly, cash contributions from the State and/or local government should be separately identified and described. Applicant communities should be aware that, if awarded a grant, the Department will not reimburse the community for pre-award expenses such as the cost of preparing the grant application or for any expenses incurred prior to the community executing a grant agreement with the Department. In addition, 10 percent of the grant funds will be withheld until the Department receives the final report of the grant project. See “Award Administration Information,” below. • *An explanation of how the community will ensure that its own funding contribution is spent in the manner proposed.* • *Descriptions of how the community will monitor the progress of the grant project* and the identity of critical milestones to be met during the life of the grant, including the need to modify or discontinue funding if identified milestones cannot be achieved. This is an important component of the community's proposal and serves to demonstrate the thoroughness of the community's planning of the proposed grant project. • *A description of how the community plans to continue with the project if it is not self-sustaining after the grant award expires.* A particular goal of the Small Community Program is to provide long-term, self-sustaining improvements to air service at small communities. A community cannot seek further grant funding in support of the same project. 49 U.S.C. 41743(c)(4). It is possible that a new or improved service at a community will be well on its way to becoming self-sustaining, but will not have reached that goal before the grant expires. Similarly, it is possible that extensive marketing and promotional efforts may be in process, but have not been completed at the end of the grant period and will require continued support. Therefore, in developing its proposal, the community should carefully consider and describe in detail its plans for providing continued financial support for the project after the grant funding is no longer available. This aspect of the application reflects on the community's commitment to the grant project and is an important component to the Department's consideration of the community's proposal for selection for a grant award. • *Designation of a legal sponsor responsible for administering the program.* The legal sponsor of the grant project must be a government entity. If the applicant is a public-private partnership, a public government member of the organization must be identified as the community's sponsor to receive program reimbursements. In this regard, communities can designate only a single government entity as the legal sponsor, even if a consortium, for example, consists of two or more local government entities. Private organizations cannot be designated as the legal sponsor of a grant under the Small Community Program. 8 8 The community has the responsibility to ensure that the recipient of any funding has the legal authority under State and local laws to carry out all aspects of the grant. Air Service Development Zone Designation The statute authorizing the Small Community Program also provides that the Department will designate one of the grant recipients as an Air Service Development Zone. The purpose of the designation is to provide communities interested in attracting business to the area surrounding the airport or in developing land-use options for the area an opportunity to work with the Department on means to achieve those goals. The Department will assist the designated community in establishing contacts with and obtaining advice and assistance from appropriate government agencies, including the Department of Commerce as well as other offices within the Department of Transportation, and in identifying other pertinent resources that may aid the community in its efforts to attract businesses and to develop land-use options. However, the community receiving the designation will be responsible for developing, implementing, and managing activities related to the air service development zone initiative. Only communities that are interested in these objectives and have a plan to accomplish them should apply for the available designation. There are no additional funds associated with this designation, and applying for the designation will provide no special benefit or preference to a community in receiving a grant award under the Small Community Program. Grant applicants interested in selection for the Air Service Development Zone designation must include in their applications a separate section, titled, *Support for Air Service Development Zone Designation.* That section should include: ✓ Detailed information regarding the property and facilities available for development such as an existing airpark or land for such an airpark near or adjacent to the local airport; ✓ The other modes of transportation that would be available to support additional economic development, such as rail, road, and/or water access; ✓ Information concerning historic, existing, and any future business activity in the area that would support further development; ✓ Demographic information concerning the community and its environs relevant to the developmental efforts, including population, employment, and per capita income data; and ✓ Any other information that the community believes is relevant to its plans to enhance air service development. The community should provide as detailed a plan as possible, including the goals it expects to achieve from the air service development zone designation and the types of activities on which it would like to work with the Department in achieving those goals. The community should also indicate whether further local government approvals are required in order to implement the proposed activities. Application Review Information The Department will carefully review each proposal and the staff may contact applicants if clarification is needed. The grant awards will be made as quickly as possible so that communities awarded grants can complete the grant agreement process and proceed to implement their plans. Pending unforeseen circumstances, this process should be completed before October 2008. Given the competitive nature of the grant process, the Department will not meet with grant applicants with respect to their grant proposals. Our selection of communities for grant awards will be based on the communities' written submissions. Priority factors considered. The law directs the Department to give priority consideration to those communities or consortia where: 9 9 49 U.S.C. 41743(c)(5). • Air fares are higher than the national average air fares for all communities; • The community or consortium will provide a portion of the cost of the activity from local sources other than airport revenue sources; • The community or consortium has established or will establish a public-private partnership to facilitate air carrier service to the public; • The assistance will provide material benefits to a broad segment of the traveling public, including business, educational institutions, and other enterprises, whose access to the national air transportation system is limited; and • The assistance will be used in a timely manner. Additional factors considered. Applications will be evaluated against the priority considerations listed above. Our experience has been that more applications are received than can be funded under the Small Community Program. Consequently, consistent with the criteria stated above, the selection process will take into consideration such additional factors as: • The relative size of each applicant community; • The geographic location of each applicant, including the community's proximity to larger centers of air service and low-fare service alternatives; • The community's existing level of air service and whether that service has been increasing or decreasing; • Whether the community's proposal, if successfully implemented, could serve as a working model for other communities; • Current demographic indicators for the community, such as population, income and business activity; • The community's demonstrated commitment to and participation in the proposed grant project; • The grant amount requested compared with total funds available for all communities; • The proposed federal grant amount requested compared with the local share offered; • Whether the community has a realistic plan to use the funds in a timely manner; • The uniqueness of an applicant's claimed problems and whether the proposed project addresses those problems; • The extent to which the applicant's proposed solution(s) to solving the problem(s) is new or innovative; • Whether the community's proximity to an existing grant recipient could impact its proposal; and • Whether the applicant community has previously received a grant award under this program and, if so, whether its application includes an explanation of how the community's proposed project differs from its previously funded project. Full community participation is a key goal of this program as demonstrated by the statute's focus on local contributions and active participation in the project. Therefore, applications that demonstrate broad community support will be more attractive. For example, communities providing proportionately higher levels of cash contributions from other than airport revenues will have more attractive proposals. Communities that provide multiple levels of contributions—cash and in-kind contributions—also will have more attractive proposals. Similarly, communities that demonstrate participation in the development and execution of the proposed air service project will have the attractiveness of their proposals enhanced. In this regard, the Department welcomes letters of intent from airlines on behalf of community proposals that are specifically intended to enlist new or expanded air carrier presence. Such letters will be accorded greater credence when authorized by airline planning departments. Proposals that offer innovative solutions to the transportation issues facing the community will be more attractive. Small communities have faced many problems retaining and improving their air services and in coping with air fares that are higher than typical for larger communities. Therefore, proposals that offer new, creative approaches to addressing these problems, to the extent that they are reasonable, will have their attractiveness enhanced. Proposals that provide a well-defined plan, a reasonable timetable for use of the grant funds, and a plan for continuation and/or monitoring of the project after the grant expires also will have greater attractiveness. Award Administration Information The Department will announce its grant selections by Order, which will be served on each grant recipient, all other applicants, and all parties served with this order. The selection order will also be posted in the Docket at *http://www.regulations.gov* and on the Department's webpage. Grant agreement. Communities awarded grants are required to execute a grant agreement with the Department before they begin to spend funds under the grant award. Grant funds will be provided on a reimbursable basis only, with reimbursements made only for expenses incurred and billed during the period that the grant agreement is in effect. Applicants should not assume they have received a grant, nor should they obligate or spend local funds prior to receiving and fully executing a grant agreement with the Department. Expenditures made prior to the execution of a grant agreement, including costs associated with preparation of the grant application, will not be reimbursed. Moreover, there are numerous assurances that grant recipients must sign and honor when federal funds are awarded. All communities receiving a grant under the Small Community Program will be required to accept the responsibilities of these assurances and to execute the assurances when they execute their grant agreements. Copies of the applicable assurances are available for review on the Department's webpage at *http://ostpxweb.dot.gov/aviation/X-50%20Role_files/smallcommunity.htm#Funds* . Grantee reports. The grant agreement between the Department and each selected community will require the submission of quarterly reports on the progress the community has made during the previous quarter in implementing its grant project. In addition, the grant agreement will require the submission on a quarterly or other time-specific basis other materials relevant to the grant project, such as copies of advertising and promotional material and copies of contracts with consultants and service providers. In addition, each community will be required to submit a final report on its project to the Department, and 10 percent of the grant funds will not be reimbursed to the community until such final report is received. Cost reimbursement. Communities will be permitted to seek reimbursement of project implementation costs on a regular basis. The frequency of such requests will be established in the grant agreement, which will be tailored to the specific features of the community's grant project. In most cases, reimbursements will be made on a monthly basis. In this regard, the Department will provide the grant recipient communities with details and procedures for securing reimbursements electronically. Grant amendments. A grantee may wish to amend its agreement with the Department in the event of a material change in circumstances after the date the agreement is executed. Typically, amendments involve an extension to the time period for completing the grant or a change in the types of activities authorized for reimbursement under the goals and objectives (“project scope”) of the grant agreement. Grantees are cautioned, however, that the Department cannot authorize amendments that are incompatible with the scope of the agreement. For example, a grant awarded solely for the purpose of developing an airport marketing plan cannot be amended to permit subsidization of an air carrier's startup costs, since the latter was never contemplated by the original agreement. Grantees are also advised that the Department will not extend the expiration date of an agreement simply to allow more time for a community to solicit air carriers for new air service. Many grants have been awarded for the purpose of subsidizing new or additional air service for a small community, with the goal of that service becoming self-sustaining by the end of the subsidy period. In virtually all cases, the community seeking the grant funds has received expressions of interest from one or more air carriers. In some instances, these expressions of interest failed to pan out and the community was left without any immediate prospects, at which time it would ask for a grant extension to allow more time to pursue other carriers. Because we are charged by law to consider timely use of funds when selecting grant recipients, the Department will grant an extension only when the community can provide strong evidence of a firm commitment on the part of an air carrier to deliver the desired service. To avoid misunderstandings, grantees contemplating amendments to their agreements are urged to discuss their situations with the Small Community Program staff before requesting a formal amendment. This order is issued under authority delegated in 49 CFR 1.56a(f). Accordingly 1. Community proposals for funding under the Small Community Air Service Development Program should be submitted via *http://www.grants.gov* as an attachment to the SF424 no later than June 6, 2008; and 2. This order will be published in the **Federal Register** and also will be served on the Conference of Mayors, the National League of Cities, the National Governors Association, the National Association of State Aviation Officials (NASAO), the Association of County Executives, the American Association of Airport Executives (AAAE), and the Airports Council International—North America (ACI), and posted at *http://www.grants.gov.* Michael W. Reynolds, *Acting Assistant Secretary for Aviation and International Affairs.* An electronic version of this document is available on the World Wide Web at *http://www.regulations.gov.* Appendix A—Small Community Air Service Development Program United States Code Annotated Title 49. Transportation Subtitle VII. Aviation Programs Part A. Air Commerce and Safety Subpart II. Economic Regulation Chapter 417. Operations of Carriers *Subchapter II.* Small Community Air Service → § 41743. Airports not receiving sufficient service
(a)Small community air service development program.—The Secretary of Transportation shall establish a program that meets the requirements of this section for improving air carrier service to airports not receiving sufficient air carrier service.
(b)Application required.—In order to participate in the program established under subsection (a), a community or consortium of communities shall submit an application to the Secretary in such form, at such time, and containing such information as the Secretary may require, including—
(1)An assessment of the need of the community or consortium for access, or improved access, to the national air transportation system; and
(2)An analysis of the application of the criteria in subsection
(c)to that community or consortium.
(c)Criteria for participation.—In selecting communities, or consortia of communities, for participation in the program established under subsection (a), the Secretary shall apply the following criteria:
(1)Size.—For calendar year 1997, the airport serving the community or consortium was not larger than a small hub airport, and—
(A)Had insufficient air carrier service; or
(B)Had unreasonably high air fares.
(2)Characteristics.—The airport presents characteristics, such as geographic diversity or unique circumstances, that will demonstrate the need for, and feasibility of, the program established under subsection (a).
(3)State limit.—Not more than 4 communities or consortia of communities, or a combination thereof, from the same State may be selected to participate in the program in any fiscal year.
(4)Overall limit.—No more than 40 communities or consortia of communities, or a combination thereof, may be selected to participate in the program in each year for which funds are appropriated for the program. No community, consortia of communities, nor combination thereof may participate in the program in support of the same project more than once, but any community, consortia of communities, or combination thereof may apply, subsequent to such participation, to participate in the program in support of a different project.
(5)Priorities.—The Secretary shall give priority to communities or consortia of communities where—
(A)Air fares are higher than the average air fares for all communities;
(B)The community or consortium will provide a portion of the cost of the activity to be assisted under the program from local sources other than airport revenues;
(C)The community or consortium has established, or will establish, a public-private partnership to facilitate air carrier service to the public;
(D)The assistance will provide material benefits to a broad segment of the traveling public, including business, educational institutions, and other enterprises, whose access to the national air transportation system is limited; and
(E)The assistance will be used in a timely fashion.
(d)Types of assistance.—The Secretary may use amounts made available under this section—
(1)To provide assistance to an air carrier to subsidize service to and from an underserved airport for a period not to exceed 3 years;
(2)To provide assistance to an underserved airport to obtain service to and from the underserved airport; and
(3)To provide assistance to an underserved airport to implement such other measures as the Secretary, in consultation with such airport, considers appropriate to improve air service both in terms of the cost of such service to consumers and the availability of such service, including improving air service through marketing and promotion of air service and enhanced utilization of airport facilities.
(e)Authority to make agreements.—
(1)In general.—The Secretary may make agreements to provide assistance under this section.
(2)Authorization of appropriations.—There is authorized to be appropriated to the Secretary $20,000,000 for fiscal year 2001, $27,500,000 for each of fiscal years 2002 and 2003, and $35,000,000 for each of fiscal years 2004 through 2008 to carry out this section. Such sums shall remain available until expended.
(f)Additional action.—Under the program established under subsection (a), the Secretary shall work with air carriers providing service to participating communities and major air carriers (as defined in section 41716(a)(2)) serving large hub airports to facilitate joint-fare arrangements consistent with normal industry practice.
(g)Designation of responsible official.—The Secretary shall designate an employee of the Department of Transportation—
(1)To function as a facilitator between small communities and air carriers;
(2)To carry out this section;
(3)To ensure that the Bureau of Transportation Statistics collects data on passenger information to assess the service needs of small communities;
(4)To work with and coordinate efforts with other Federal, State, and local agencies to increase the viability of service to small communities and the creation of aviation development zones; and
(5)To provide policy recommendations to the Secretary and Congress that will ensure that small communities have access to quality, affordable air transportation services.
(h)Air Service Development Zone.—The Secretary shall designate an airport in the program as an Air Service Development Zone and work with the community or consortium on means to attract business to the area surrounding the airport, to develop land use options for the area, and provide data, working with the Department of Commerce and other agencies. BILLING CODE 4910-9X-P EN01AP08.348 EN01AP08.349 EN01AP08.350 Appendix C—Filing Form SF424: Application for Federal Domestic Assistance Grants.gov, originally called the E-Grants Initiative, a mandate of the President's Management Agenda, states: “Agencies will allow applicants for Federal Grants to apply for and ultimately manage grant funds online through a common Web site, simplifying grants management and eliminating redundancies.” Public Law 106-107, the legislation that mandates streamlining and improved accountability for Federal grants, and related references in the President's Management Agenda, requires that Federal grant management activities be standardized. As a result, the Office of Management and Budget recently issued a policy directive requiring that all Federal agencies post grant opportunities online as of November 7, 2006. Therefore, the Department requires applications to be submitted via *http://www.grants.gov.* In order for an application to be considered in the Small Community Air Service Development Program, the community must submit its application on form SF424—Application for Federal Domestic Assistance—via *http://www.grants.gov.* Below are instructions on: • How to FIND the SCASDP application online at *http://www.grants.gov;* • How to GET REGISTERED to submit applications; and • How to APPLY or complete and submit the application form SF424. Finding the SCASDP Grant Opportunity on Grants.Gov Start your search for the Small Community Air Service Development Program grant opportunity by entering *http://www.grants.gov* and clicking the *Find Grant Opportunities* tab at the top of the page. Next, select “Basic Search” from the search choices. In the search box titled “Search for Catalog of Federal Domestic Assistance
(CFDA)number” enter 20.930. You will see a summary of the SCASDP requirements. Register to Submit Applications Prior to applying, you must register to create a Grants.gov account and receive approval from your organization to submit applications. Registration can take seven to ten days to complete, so it is best to begin the process as soon as possible. Detailed instructions on how to complete the registration are available on *http://www.grants.gov.* For your reference, the Grants.gov “Organization Registration Checklist” is reproduced on the final three pages of this Appendix. You can also access the Checklist at: *http://grants.gov/assets/Organization_Steps_Complete_Registration.pdf* . Applying for the Grant Once you have located the Small Community Air Service Development Program grant opportunity, you will need to enter the Funding Opportunity and/or the Catalog of Federal Domestic Application
(CFDA)number 20.930 to access the application package and instructions online. However, you must complete the registration process before applying. In order to view the application package and instructions, you will also need to download and install Adobe Reader 8.1.2. This version is available to download for free on the Grants.gov Web site. 1. Download Adobe Reader 8.1.2 [Required]. 2. Download an Application Package. 3. Complete an Application Package. 4. Submit an Application Package. Enter the SCASDP CFDA number (20.930) to download the application form SF424 and begin the process to apply for the grant through *http://www.grants.gov.* It is a 4-step process: Apply Step 1: Download the Grant Application Form SF424 and Application Instructions You will need to enter the Funding Opportunity and/or CFDA number to access the application package and instructions. Download and install the Adobe Reader 8.1.2 (available on *http://grants.gov* ). This small, free program will allow you to access, complete, and submit applications electronically and securely. Apply Step 2: Complete the Selected Grant Application Package You can complete the application offline—giving you the flexibility to complete grant applications when and where you want. It also enables you to easily route it through your organization for review, or completion of various components, just like any other e-mail attachment. Apply Step 3: Submit a Completed Grant Application Package You will submit the application online. When you are ready to submit the completed application form SF424, you must have already completed the *Get Registered* steps. You will then need to log into *http://www.grants.gov* using the username and password you entered when you registered with a *Credential Provider* to submit the application. Note: To submit electronic grant applications, you must be fully authorized by your organization, i.e., been given status as an *Authorized Organization Representative (AOR).* You can easily check your status by logging into *http://www.grants.gov* by accessing the *Applicant* link at the top of the screen. If you have registered your user name and password with Grants.gov, you will be able to log in. After logging in, access the ‘Manage Profile’ link. Your status, located below your title, will state: “AOR—request sent” or “AOR—Approved.” If your status is ‘AOR—request sent’, you cannot yet submit grant applications. You may correct this by contacting your *E-Business Point of Contact (POC).* He or she will need to login by accessing the Ebiz link at the top of the screen. They will need your organization's DUNs number and MPIN, to approve you as an AOR. Apply Step 4: Track the Status of a Completed Grant Application Package Once you have submitted an application, you can check the status of your application submission. You can identify your application by CFDA Number (20.930), Funding Opportunity Number, Competition ID, and/or Grants.gov Tracking Number. BILLING CODE 4910-9X-P EN01AP08.351 EN01AP08.352 EN01AP08.353 [FR Doc. E8-6538 Filed 3-31-08; 8:45 am] BILLING CODE 4910-9X-C DEPARTMENT OF TRANSPORTATION Federal Aviation Administration Noise Exposure Map Notice; Santa Fe Municipal Airport; Santa Fe, NM AGENCY: Federal Aviation Administration, DOT. ACTION: Notice. SUMMARY: The Federal Aviation Administration
(FAA)announces its determination that the noise exposure maps submitted by the City of Santa Fe for Santa Fe Municipal Airport under the provisions of 49 U.S.C. 47501 *et seq.* (Aviation Safety and Noise Abatement Act) and 14 CFR part 150 are in compliance with applicable requirements. DATES: *Effective Date:* The effective date of the FAA's determination on the noise exposure maps is March 20, 2008. FOR FURTHER INFORMATION CONTACT: Mr. Tim Tandy, Federal Aviation Administration, ASW-640, Fort Worth, TX 76193-0640 at
(817)222-5644. SUPPLEMENTARY INFORMATION: This notice announces that the FAA finds that the noise exposure maps submitted for Santa Fe Municipal Airport are in compliance with applicable requirements of Part 150, effective March 20, 2008. Under 49 U.S.C. 47503 of the Aviation Safety and Noise Abatement Act (hereinafter referred to as “the Act”), an airport operator may submit to the FAA noise exposure maps which meet applicable regulations and which depict non-compatible land uses as of the date of submission of such maps, a description of projected aircraft operations, and the ways in which such operations will affect such maps. The Act requires such maps to be developed in consultation with interested and affected parties in the local community, government agencies, and persons using the airport. An airport operator who has submitted noise exposure maps that are found by FAA to be in compliance with the requirements of Federal Aviation Regulations
(FAR)Part 150, promulgated pursuant to the Act, may submit a noise compatibility program for FAA approval which sets forth the measures the operator has taken or proposes to take to reduce existing non-compatible uses and prevent the introduction of additional non-compatible uses. The FAA has completed its review of the noise exposure maps and accompanying documentation submitted by the City of Santa Fe. The documentation that constitutes the “noise exposure maps” as defined in section 150.7 of Part 150 includes: Exhibit 1, 2006 Noise Exposure Map; Exhibit 2, 2011 Noise Exposure Map; Exhibit lA, Airside Facilities; Table 2A, Operations Summary; Table 2B, Operational Fleet Mix; Table 2C, Runway Use Percentages by Aircraft Type; Exhibit 2D, Existing and Future Consolidated Departure Flight Tracks; Exhibit 2E, Existing and Future Consolidated Arrival Flight Tracks; Exhibit 2F, Existing and Future Consolidated Touch-and-Go Flight Tracks; Table 2D, Comparative Areas of Noise Exposure; Exhibit 2G, 2006 Noise Exposure Contours; Exhibit 2H, 2011 Noise Exposure Contours; Exhibit 2J, Long Range Noise Exposure Contours; Exhibit 2K, Measured and Modeled Noise; Table 2E, Measurement Results Summary; Table 2F, Noise Measurement vs. Predicted DNL Values; Table 3A, Land Uses Exposed to 2006 Aircraft Noise; Table 3B, Population Exposed to 2006 Aircraft Noise; Exhibit 3C, 2006 Noise Exposure Contours with Land Use; Table 3C, Noise-Sensitive Land Uses Exposed to 2011 Aircraft Noise; Exhibit 3D, 2011 Noise Exposure Contours with Land Use; Table 3D, Population Exposed to 2011 Aircraft Noise; Table 3E, Noise-Sensitive Land Uses Exposed to Long Range Aircraft Noise; Exhibit 3E, Long Range Noise Exposure Contours with Land Use; Table 3F, Population Exposed to Long Range Aircraft Noise; and Table 3G, Summary of Significant Noise Impacts. The FAA has determined that these noise exposure maps and accompanying documentation are in compliance with applicable requirements. This determination is effective on March 20, 2008. FAA's determination on an airport operator's noise exposure maps is limited to a finding that the maps were developed in accordance with the procedures contained in appendix A of FAR Part 150. Such determination does not constitute approval of the applicant's data, information or plans, or a commitment to approve a noise compatibility program or to fund the implementation of that program. If questions arise concerning the precise relationship of specific properties to noise exposure contours depicted on a noise exposure map submitted under section 47503 of the Act, it should be noted that the FAA is not involved in any way in determining the relative locations of specific properties with regard to the depicted noise contours, or in interpreting the noise exposure maps to resolve questions concerning, for example, which properties should be covered by the provisions of section 47506 of the Act. These functions are inseparable from the ultimate land use control and planning responsibilities of local government. These local responsibilities are not changed in any way under Part 150 or through FAA's review of noise exposure maps. Therefore, the responsibility for the detailed overlaying of noise exposure contours onto the map depicting properties on the surface rests exclusively with the airport operator that submitted those maps, or with those public agencies and planning agencies with which consultation is required under section 47503 of the Act. The FAA has relied on the certification by the airport operator, under section 150.21 of FAR Part 150, that the statutorily required consultation has been accomplished. Copies of the full noise exposure map documentation and of the FAA's evaluation of the maps are available for examination at the following locations: Federal Aviation Administration, 2601 Meacham Boulevard, Fort Worth, TX; Mr. James H. Montman, Airport Manager, Santa Fe Municipal Airport, 200 Lincoln Avenue, P.O. Box 909, Santa Fe, NM 87504-0909. Questions may be directed to the individual named above under the heading FOR FURTHER INFORMATION CONTACT . Issued in Fort Worth, Texas, March 20, 2008. Joseph G. Washington, Acting Manager, Airports Division. [FR Doc. E8-6336 Filed 3-31-08; 8:45 am] BILLING CODE 4910-13-M DEPARTMENT OF TRANSPORTATION Federal Highway Administration Environmental Impact Statement: San Benito County and Santa Clara County, California AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Notice of Intent. SUMMARY: The FHWA, on behalf of the California Department of Transportation (Caltrans), is issuing this notice to advise the public that a TIER I Environmental Impact Statement
(EIS)will be prepared for a proposed highway project and route adoption study in San Benito and Santa Clara Counties, California. FOR FURTHER INFORMATION CONTACT: Bobi Lyon-Ritter, Senior Environmental Planner, Sierra Pacific Environmental Analysis Branch, Caltrans, 2015 E. Shields Avenue, Suite 100, Fresno, California 93726 or call
(559)243-8178. SUPPLEMENTARY INFORMATION: Effective July 1, 2007, the Federal Highway Administration
(FHWA)assigned, and the Caltrans assumed, environmental responsibilities for this project pursuant to 23 U.S.C. 327. Caltrans will prepare a Tier I EIS on a proposal for the eventual conversion of approximately 11 miles of the existing State Route 25 from two-lane conventional highway to a four-lane expressway in San Benito and Santa Clara counties in California. This TIER I EIS includes both a route adoption, which is a locational decision for future highways, and a proposed construction project within a portion of the proposed route adoption. The route adoption extends from San Felipe Road within the City of Hollister (post mile 51.5) to the San Benito/Santa Clara County line (post mile 60.1) and on to the end of State Route 25 at U.S. 101 south of the City of Gilroy (post miles 0.0/2.56 in Santa Clara County). Five alternatives are under consideration: Alternative 1 and Alternative 2 are route adoption alignments, and Alternative A and Alternative B are proposed build alternatives. The No Action alternative will also be considered. Alternative 1 and Alternative 2, the route adoption alternatives, are approximately 11 miles long, and share the same alignment from the bend in Route 25 approximately 1.7 miles south of Shore Road (post mile 56.1) in San Benito County to U.S. 101 in Santa Clara County. Between the east end of the proposed project at San Felipe Road and post mile 56.1 in San Benito County the two alignment alternatives separate. Alternative 1 proposes to align the future four-lane expressway to the east (or north) of the existing two-lane north/south highway. Alternative 2 would be aligned to the west (or south) of the existing two-lane highway. Both route adoption alternatives would accommodate a future: • 342 foot wide four-lane expressway with a 62 foot median and frontage roads on either one or both sides. • Interchange to replace the Route 25/Route 156 at-grade intersection. • Route 25/Route 101 interchange to replace and be located north of the existing interchange. As well as: • New bridges over Carnadero Creek and the Pajaro River. • New overheads to cross over the Union Pacific Railroad Hollister branch line and the Union Pacific main line just east of US101. Alternative A and Alternative B, the build alternatives, would extend 3.8 miles in San Benito County, from San Felipe Road (post mile 51.5) to just west of Hudner Lane (post mile 55.3). Unlike the route adoption alternatives, the build alternatives propose a realigned and widened at-grade intersection at Route 25 and Route 156 instead of an interchange. Both construction alternatives would transition back to the existing two-lane highway near Hudner Lane. Alternative A would be constructed at the southeastern end of the Alternative 1 route adoption alignment. Direct access to the expressway would be available from San Felipe Road, Wright Road, Flynn Road, two new west-side frontage roads, SR 156, and one new east-side frontage road. An undercrossing at the Don Chapin gravel operation driveway would provide access to this otherwise landlocked parcel. Alternative B would be constructed at the southeastern end of the Alternative 2 route adoption alignment. Direct access to the expressway would be available from San Felipe Road, Wright Road, Briggs Road, two new west-side frontage roads, SR 156, and one new east-side frontage road. The No Action Alternative would result in no action being taken and no further improvements would be made to State Route 25 within the Route Adoption limits other than those already programmed/funded or under construction. Improvements at the San Felipe Road/State Route 25 intersection are currently under construction in 2008 as part of the Route 25 Hollister Bypass Project. It is anticipated that work will begin early in 2009 on the Route 25 Safety and Operations Enhancement Project and will be completed by early 2010. Work will begin just south of Hudner Lane (post mile 55.1) and end just south of the Union Pacific Railroad Crossing (post mile 60.0) in San Benito County. Roadway widening will consist of two-10′ outside shoulders, two-12′ traveled lanes, two-5′ inside shoulders and placement of a temporary concrete median barrier. Rumble strips will be installed on all inside and outside shoulders. Hudner Lane and Shore Road intersections will be improved. No Federal permits or approvals would be needed for either of the two route adoption alternatives or the two build alternatives. Future TIER II environmental documents for build projects proposed within the remaining segment of the route adoption alignment may require a section 404 permit from the U.S. Army Corps of Engineers; a section 7 Biological Opinion from the U.S. Fish and Wildlife Service; and a section 401 Permit from the Regional Water Quality Control Board. Letters describing the proposed action and soliciting comments will be sent to appropriate Federal, State, and local agencies, and to private organizations and citizens who have previously expressed or are known to have interest in this proposal. In addition, a newsletter will be mailed separately, and updated information will be available on the project Web site *http://www.dot.ca.gov/dist05/paffairs/hwy25widening/index.htm.* A public scoping meeting will be held on April 3, 2008 from 4:30 to 6:30 p.m. at R. O. Hardin Elementary School in Hollister, California to provide additional opportunities for public input on the proposed project. Public outreach for the proposed project and preparation of an Environmental Assessment
(EA)was initiated in 2001. A Public Information Meeting was held in December 2003. In December 2007 Caltrans decided to prepare a Tier I EIS instead of an EA. This document type gives Caltrans the ability to both secure an adopted route (locational decision for planning purposes) and to propose a stand-alone construction project for a segment of the adopted route. Significant impacts to farmland are anticipated. The public hearing will be held during circulation of the environmental document, which is expected to occur in Fall 2008. A Public Notice will be issued to announce the time and place of the hearing. The TIER I draft EIS will be available for public and agency review and comment prior to the public hearing. To ensure that the full range of issues related to this proposed action are addressed and all significant issues identified, comments, and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the EIS should be directed to Caltrans at the address provided above. (Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.) Issued on: March 25, 2008. Nancy Bobb, Director, State Programs, Federal Highway Administration, Sacramento, California. [FR Doc. E8-6607 Filed 3-31-08; 8:45 am] BILLING CODE 4910-22-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration Reports, Forms, and Record Keeping Requirements AGENCY: National Highway Traffic Safety Administration, DOT. ACTION: Notice. SUMMARY: In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), this notice announces that the Information Collection Request
(ICR)abstracted below has been forwarded to the Office of Management and Budget
(OMB)for review and comment. The ICR describes the nature of the information collections and their expected burden. The **Federal Register** Notice with a 60-day comment period was published on October 2, 2007 (72 FR 56027). The agency received no comments. DATES: Comments must be submitted on or before May 1, 2008. ADDRESSES: Send comments, within 30 days, to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725-17th Street, NW., Washington, DC 20503, Attention NHTSA Desk Officer. *Comments are invited on:* Whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; the accuracy of the Department's estimate of the burden of the proposed information collection; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology. A comment to OMB is most effective if OMB receives it within 30 days of publication. FOR FURTHER INFORMATION CONTACT: Ms. Deborah Mazyck at the National Highway Traffic Safety Administration, Office of International Policy, Fuel Economy and Consumer Programs, 1200 New Jersey Avenue, SE., West Building, Room W43-443, NVS 131, Washington, DC 20590. Ms. Mazyck's telephone number is (202)-366-4139. SUPPLEMENTARY INFORMATION: National Highway Traffic Safety Administration *Title:* Consolidated Labeling Requirements for 49 CFR Parts 565, 541, and 567. *OMB Number:* 2127-0510. *Type of Request:* Request for public comment on a previously approved collection of information. *Abstract:* Parts 565 and 567 NHTSA's statute at 15 U.S.C. 1392, 1397, 1401, 1407, and 1412 of the National Traffic and Motor Vehicle Safety Act of 1966 authorizes the issuance of Federal Motor Vehicle Safety Standard (FMVSS) and the collection of data which support their implementation. The agency, in prescribing an FMVSS, is to consider available relevant motor vehicle safety data and to consult with other agencies as it deems appropriate. Further, the Act mandates, that in issuing any FMVSS, the agency should consider whether the standard is reasonable, practicable and appropriate for the particular type of motor vehicle or item of motor vehicle equipment for which it is prescribed, and whether such standards will contribute to carrying out the purpose of the Act. The Secretary is authorized to revoke such rules and regulations as deemed necessary to carry out this subchapter. Using this authority, the agency issued the initial FMVSS No. 115, Vehicle Identification Number, specifying requirements for vehicle identification numbers to aid the agency in achieving many of its safety goals. The standard was amended in August 1978 by extending its applicability to additional classes of motor vehicles and by specifying the use of a 30-year, 17-character Vehicle Identification Number
(VIN)for worldwide use. The standard was amended in May 1983 by deleting portions of FMVSS No. 115 and reissuing those portions as a general agency regulation, Part 565. Subsequently, the standard was amended again in June 1996 transferring the text of the FMVSS No. 115 to Part 565, without making any substantive changes to the VIN requirements as a result of the proposed consolidation. The provision of the Part 565 (amended) regulation requires vehicle manufacturers to assign a unique VIN to each new vehicle and to inform NHTSA of the code used in forming the VIN. These regulations apply to all vehicles: passenger cars, multipurpose passenger vehicles, trucks, buses, trailers, incomplete vehicles, and motorcycles. NHTSA has proposed amendments to Part 565 to revise certain sections in order to extend the existing VIN system for another thirty years, and to ensure a sufficient supply of unique available VINs and manufacturer identifiers for that time period (72 FR 56027, October 2, 2007). The agency may require information to be provided in a slightly different way (e.g., vehicle make being transferred from the first to the second section of the VIN), the scope of the overall reporting requirement of Part 565 will not change. The agency does not anticipate an increase or decrease in the collection of information requirements if these proposals are adopted. Part 567 specifies the content and location of, and other requirements for, the certification label or tag to be affixed to motor vehicles and motor vehicle equipment. Specifically, the VIN is required to appear on the certification label. Additionally, this certificate will provide the consumer with information to assist him or her in determining which of the FMVSS are applicable to the vehicle or equipment, and its date of manufacture. NHTSA estimates the vehicle manufacturers will incur a decrease in total annual hour burden of 423,333. The recordkeeping hour burden for Part 565 and 567 represents a decrease in hour burden because of a decrease in the number of respondents. NHTSA estimates an increase in cost burden of $3,400.00. Due to the fluctuation of the U.S. economy, there was an increase in cost to comply with the reporting requirements. The change in cost burden reflects the 2007 Consumer Price Index as compared to that of 1987. Part 541 The Motor Vehicle Information and Cost Savings Act was amended by the Anti-Car Theft Act of 1992 (Pub. L. 102-519). The enacted Theft Act requires specified parts of high-theft vehicles to be marked with vehicle identification numbers. In a final rule published on April 6, 2004, the Federal Motor Vehicle Theft Prevention Standard was extended to include all passenger cars and multipurpose passenger vehicles with a gross vehicle weight rating of 6,000 pounds or less, and to light duty trucks with major parts that are interchangeable with a majority of the covered major parts of multipurpose passenger vehicles. Each major component part must be either labeled or affixed with the VIN and its replacement component part must be marked with the DOT symbol, the letter
(R)and the manufacturers' logo. On May 19, 2005, in response to petitions for reconsideration, NHTSA amended the final rule. The final rule became effective September 1, 2006. Due to expansion of the Theft Prevention Standard (Part 541), all passenger cars, and multipurpose passenger vehicles with a gross vehicle weight rating of 6,000 pounds or less, and to light duty trucks with major parts that are interchangeable with a majority of the covered major parts of multipurpose passenger vehicles, are required them to be parts marked. This creates a program change for this collection. Part 541 shows an increase in recordkeeping costs because there will be a greater number of vehicles required to be parts marked resulting in an additional cost of affixing labels or stamping the VIN on motor vehicles and startup costs for the manufacturers. NHTSA estimates the vehicle manufacturers will incur a total cost burden of $87,550,100 million. NHTSA estimates a decrease in reporting and recordkeeping hours because current estimates are based on fewer vehicles complying with the Theft Prevention Standard. However, there is an increase in the number of target area submissions per vehicle required by vehicle manufacturers. NHTSA estimates the vehicle manufacturers will incur a net decrease for a total annual hour burden of 502,519. *Affected Public:* Motor vehicle manufacturers. *Estimated Total Annual Burden:* NHTSA estimates that the overall total estimated annual hour burden for this collection is 925,852. The overall total estimated cost burden for this collection is $87,553,500 million. Issued on: March 26, 2008. Stephen R. Kratzke, Associate Administrator for Rulemaking. [FR Doc. E8-6622 Filed 3-31-08; 8:45 am] BILLING CODE 4910-59-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration Reports, Forms and Record Keeping Requirements; Agency Information Collection Activity Under OMB Review AGENCY: National Highway Traffic Safety Administration, DOT. ACTION: Notice. SUMMARY: In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), this notice announces that the Information Collection Request
(ICR)abstracted below has been forwarded to the Office of Management and Budget
(OMB)for review and comment. The ICR describes the nature of the information collections and their expected burden. The **Federal Register** Notice with a 60-day comment period was published on February 13, 2008 [73 FR 8399]. DATES: Comments must be submitted on or before May 1, 2008. FOR FURTHER INFORMATION CONTACT: Markus Price at the National Highway Traffic Safety Administration, Office of Rulemaking (NVS-121), 202-366-0098. 1200 New Jersey Avenue, SE., Room W43-472, Washington, DC 20590. SUPPLEMENTARY INFORMATION: National Highway Traffic Safety Administration *Title:* Compliance Labeling of Retroreflective Materials Heavy Trailer Conspicuity. *OMB Number:* 2127-0569. *Type of Request:* Extension of a currently approved collection. *Abstract:* Federal Motor Vehicle Safety Standard No. 108, “Lamps Reflective Devices, and Associated Equipment,” specifies requirements for vehicle lighting for the purposes of reducing traffic accidents and their tragic results by providing adequate roadway illumination, improved vehicle conspicuity, appropriate information transmission through signal lamps, in both day, night, and other conditions of reduced visibility. For certifications and identification purposes, the Standard requires the permanent marking of the letters DOT-C2, DOT-C3, or DOT-C4 at least 3mm high at regular intervals on retroreflective sheeting material having adequate performance to provide effective trailer conspicuity. The manufacturers of new tractors and trailers are required to certify that their products are equipped with retroreflective material complying with the requirements of the standard. The Federal Motor Carrier Safety Administration (FMCSA) enforces this and other standards through roadside inspections of trucks. There is no practical field test for the performance requirements, and labeling is the only objectives way of distinguishing trailer conspicuity grade material from lower performance material. Without labeling, FMCSA will not be able to enforce the performance requirements of the standard and the compliance testing of new tractors and trailers will be complicated. Labeling is also important to small trailer manufactures because it may help them to certify compliance. Because wider stripes or material of lower brightness also can provide the minimum safety performance, the marking system serves the additional role of identifying the minimum stripe width required for retroreflective brightness of the particular material. Since the differences between the brightness grades of suitable retroreflective conspicuity material is not obvious from inspection, the marking system is necessary for tractor and trailer manufacturers and repair shops to assure compliance and for FMCSA to inspect tractors and trailers in use. Permanent labeling is used to identify retroreflective material having the minimum properties required for effective conspicuity of trailers at night. The information enables the FMCSA to make compliance inspections, and it aids tractor and trailer owners and repairs shops in choosing the correct repair materials for damaged tractors and trailers. It also aids smaller trailer manufacturers in certifying compliance of their products. The FMCSA will not be able to determine whether trailers are properly equipped during roadside inspections without labeling. The use of cheaper and more common reflective materials, which are ineffective for the application, would be expected in repairs without the labeling requirement. *Affected Public:* Business or other-for-profit organizations. *Estimated Total Annual Burden:* 1. ADDRESSES: Send comments, within 30 days, to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725-17th Street, NW., Washington, DC 20503, Attention NHTSA Desk Officer. Comments are invited on: Whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; the accuracy of the Department's estimate of the burden of the proposed information collection; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology. A comment to OMB is most effective if OMB receives it within 30 days of publication. Issued: March 26, 2008. Stephen R. Kratzke, Associate Administrator for Rulemaking. [FR Doc. E8-6627 Filed 3-31-08; 8:45 am] BILLING CODE 4910-59-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration Reports, Forms and Record Keeping Requirements; Agency Information Collection Activity Under OMB Review AGENCY: National Highway Traffic Safety Administration, DOT. ACTION: Notice. SUMMARY: In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), this notice announces that the Information Collection Request
(ICR)abstracted below has been forwarded to the Office of Management and Budget
(OMB)for review and comment. The ICR describes the nature of the information collections and their expected burden. The **Federal Register** Notice with a 60-day comment period was published on February 12, 2008 [73 FR 8103]. DATES: Comments must be submitted on or before May 1, 2008. FOR FURTHER INFORMATION CONTACT: Kenneth Hardie at the National Highway Traffic Safety Administration, Office of Rulemaking (NVS-121), 202-366-6987, 1200 New Jersey Avenue, SE., Room W43-458, Washington, DC 20590. SUPPLEMENTARY INFORMATION: National Highway Traffic Safety Administration *Title:* Replaceable Light Source Information Collection, 49 CFR Part 564. *OMB Number:* 2127-0563. *Type of Request:* Extension of a currently approved collection. *Affected Public:* Business or other-for-profit organizations *Abstract:* The information to be collected is in response to 49 CFR Part 564, “Replaceable Light Source Information.” Manufacturers of modified or original equipment light sources desiring to use newly designed replaceable light sources in headlamps are required to submit manufacturing specifications (dimensional, electrical specification, and marking/designation information) to the agency. After a short agency review to assure completeness, the information is placed in the Part 564—Replacable Light Source Information Docket. The Part 564 Docket is a public docket available for use by any manufacturer who desires to manufacture headlamp light sources for highway motor vehicles. In Federal Motor Vehicle Safety Standard (FMVSS) No. 108; Lamps, reflective devices and associated equipment, Part 564 submissions are referenced as being the source of information regarding the performance and interchangeability information for legal headlamp light sources, whether original equipment or replacement equipment. Thus, the submitted information about headlamp light sources becomes the basis for certification of compliance with FMVSS No. 108. *Estimated Total Annual Burden:* 28. ADDRESSES: Send comments, within 30 days, to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725-17th Street, NW., Washington, DC 20503, Attention NHTSA Desk Officer. Comments are invited on: Whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; the accuracy of the Department's estimate of the burden of the proposed information collected; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology. A comment to OMB is most effective if OMB receives it within 30 days of publication. Issued: March 26, 2008. Stephen R. Kratzke, Associate Administrator for Rulemaking. [FR Doc. E8-6629 Filed 3-31-08; 8:45 am] BILLING CODE 4910-59-P DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-325 (Sub-No. 4X)] Florida Midland Railroad Company, Inc.—Abandonment Exemption—in Sumter County, FL Florida Midland Railroad Company, Inc. (FMID), 1 has filed a verified notice of exemption under 49 CFR part 1152 subpart F— *Exempt Abandonments* to abandon a 4.0-mile line of railroad between milepost ST-762.10 in Wildwood and milepost ST-766.10 (the end of the track) near Orange Home, known as the Wildwood Branch, in Sumter County, FL. 2 The line traverses United States Postal Service Zip Code 34785. 1 FMID is a wholly owned subsidiary of Pinsly Railroad Company, a noncarrier holding company. 2 In STB Docket No. AB-325 (Sub-No. 2X), *Florida Midland Railroad Company—Abandonment Exemption—in Sumter and Lake Counties, FL* , FMID had filed a petition for exemption for abandonment of a line of railroad that included the Wildwood Branch. In a decision served on February 23, 2001, the Board granted the exemption, but FMID chose not to consummate the abandonment, and the authorization expired. FMID has certified that:
(1)No local traffic has moved over the line for at least 2 years;
(2)there is no overhead traffic on the line to be rerouted;
(3)no formal complaint filed by a user of rail service on the line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and
(4)the requirements at 49 CFR 1105.7 (environmental report), 49 CFR 1105.8 (historic report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met. As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under *Oregon Short Line R. Co.—Abandonment—Goshen* , 360 I.C.C. 91 (1979). To address whether this condition adequately protects affected employees, a petition for partial revocation under 49 U.S.C. 10502(d) must be filed. Provided no formal expression of intent to file an offer of financial assistance
(OFA)has been received, this exemption will be effective on May 1, 2008, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues, 3 formal expressions of intent to file an OFA under 49 CFR 1152.27(c)(2), 4 and trail use/rail banking requests under 49 CFR 1152.29 must be filed by April 11, 2008. 5 Petitions to reopen or requests for public use conditions under 49 CFR 1152.28 must be filed by April 21, 2008, 6 with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. 3 The Board will grant a stay if an informed decision on environmental issues (whether raised by a party or by the Board's Section of Environmental Analysis
(SEA)in its independent investigation) cannot be made before the exemption's effective date. *See Exemption of Out-of-Service Rail Lines* , 5 I.C.C.2d 377 (1989). Any request for a stay should be filed as soon as possible so that the Board may take appropriate action before the exemption's effective date. 4 Each OFA must be accompanied by the filing fee, which currently is set at $1,300. *See* 49 CFR 1002.2(f)(25). 5 FMID notes in its verified notice of exemption that it is committed to consummating the abandonment as part of a settlement agreement with adjoining land owners. 6 FMID states that it does not own the realty underlying the Wildwood Branch and that it believes that the public use condition would be unavailable based on Board precedent, citing *Florida Central Railroad Company, Inc.—Abandonment Exemption—in Seminole County, FL* , Docket No. AB-319X (ICC served Dec. 20, 1989). A copy of any petition filed with the Board should be sent to FMID's representative: Michael J. Barron, Jr., Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 920, Chicago, IL 60606-2832. If the verified notice contains false or misleading information, the exemption is void *ab initio* . FMID has filed a combined environmental and historic report addressing the effects, if any, of the abandonment on the environment and historic resources. SEA will issue an environmental assessment
(EA)by April 4, 2008. Interested persons may obtain a copy of the EA by writing to SEA (Room 1100, Surface Transportation Board, Washington, DC 20423-0001) or by calling SEA, at
(202)245-0305. [Assistance for the hearing impaired is available through the Federal Information Relay Service
(FIRS)at 1-800-877-8339.] Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public. Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision. Pursuant to the provisions of 49 CFR 1152.29(e)(2), FMID shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by FMID's filing of a notice of consummation by April 1, 2009, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Board decisions and notices are available on our Web site at “ *http://www.stb.dot.gov.”* Decided: March 24, 2008. By the Board, David M. Konschnik, Director, Office of Proceedings. Anne K. Quinlan, Acting Secretary. [FR Doc. E8-6445 Filed 3-31-08; 8:45 am] BILLING CODE 4915-01-P DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 34992] Itasca County Regional Rail Authority—Petition for Exemption—Construction of a Line of Railroad in Itasca County, MN *Lead Agency:* Surface Transportation Board. *Cooperating Agency:* U.S. Army Corps of Engineers, St. Paul District. ACTION: Notice of Availability of Environmental Assessment and Request for Public Review and Comment. SUMMARY: On March 9, 2007, the Itasca County Regional Rail Authority (ICRRA) filed a petition with the Surface Transportation Board (Board) seeking authority to construct and operate a new rail line in Itasca County, Minnesota. The Board, through its Section of Environmental Analysis
(SEA)and in cooperation with the U.S. Army Corps of Engineers (USACE), is the lead agency responsible for the preparation of the Environmental Assessment (EA). The proposed line would extend approximately nine miles, starting at the connection with an existing rail line at Taconite and continuing to the site of a new steel mill to be built by Minnesota Steel Industries, LLC (Minnesota Steel) at the end of the line at Nashwauk, Minnesota. Principal commodities to be handled include miscellaneous chemicals, outbound steel slabs, and taconite pellets. The proposed rail line would initially serve the Minnesota Steel facility, but would also handle any additional traffic that future customers that may locate along the right-of-way generate. The proposed rail line would accommodate one round trip per day, seven days per week. Based on the information provided from all sources to date and its independent analysis, SEA preliminarily concludes that construction and operation of the proposed rail line would not have significant environmental impacts if the Board imposes and ICRRA implements the recommended mitigation measures set forth in the EA. Copies of the EA have been served on all interested parties and will be made available to additional parties upon request. The entire EA is also available for review on the Board's Web site ( *http://www.stb.dot.gov* ) by clicking on the “Decisions and Notices” link, then “E-LIBRARY” and searching by the Service Date (March 28, 2008) or Docket Number (FD 34992). SEA, working with USACE, will consider all comments received in making its final recommendations to the Board. The Board will then consider SEA's final recommendations and the complete environmental record in making its final decision in this proceeding. FOR FURTHER INFORMATION CONTACT: Kenneth Blodgett, SEA Project Manager, at
(202)245-0305; e-mail: *blodgettk@stb.dot.gov.* Federal Information Relay Service for the hearing impaired: 1-800-877-8339. DATES: The EA is available for public review and comment. All faxed and electronic comments must be submitted by May 2, 2008; comments sent by mail must be post-marked by May 2, 2008. ADDRESSES: Send written comments to: Kenneth Blodgett, Surface Transportation Board, 395 E Street, SW., Washington, DC 20423, Attn: Docket No. FD 34992. Please reference STB Docket No. 34992 in all correspondence. Comments on the EA may also be filed electronically on the Board's Web site, *http://www.stb.dot.gov,* by clicking on the “E-FILING” link. By the Board, Victoria Rutson, Chief, Section of Environmental Analysis. Anne K. Quinlan, Acting Secretary. [FR Doc. E8-6542 Filed 3-31-08; 8:45 am] BILLING CODE 4915-00-P DEPARTMENT OF THE TREASURY Internal Revenue Service Information Reporting Program Advisory Committee (IRPAC); Nominations AGENCY: Internal Revenue Service, Department of The Treasury. ACTION: Request for Nominations. SUMMARY: The Internal Revenue Service
(IRS)requests nominations of individuals to be considered for selection as Information Reporting Program Advisory Committee (IRPAC) members. Individuals may nominate themselves or be nominated by interested organizations. Nominations will be accepted for current vacancies and should describe and document the applicants' qualifications for membership. IRPAC can be comprised of no more than thirty-five
(35)members. There are six
(6)positions open for calendar year 2009. It is important that IRPAC continue to represent a diverse taxpayer and stakeholder base. Accordingly, to maintain membership diversity, selection is based on applicant's qualifications in addition to consideration of the segment or group he/she represents. The IRPAC advises the IRS on information reporting issues of mutual concern to the private sector and the federal government. The committee works with the Commissioner and other IRS leadership to provide recommendations on a wide range of information reporting administration issues. Membership is balanced to include representation from the tax professional community, businesses, banking, insurance, state tax administration, colleges and universities, securities, payroll, foreign financial institutions and other industries. DATES: Written nominations must be received on or before May 30, 2008. ADDRESSES: Nominations should be sent to Ms. Caryl Grant, National Public Liaison, CL:NPL:SRM, Room 7559 IR, 1111 Constitution Avenue, NW., Washington, DC 20224, Attn: IRPAC Nominations. Applications may be submitted by mail to the address above or faxed to 202-622-8345. Application packages are available on the Tax Professional's Page, which is located on the IRS Internet Web site at *http://www.irs.gov/taxpros/index.html.* Application packages may also be requested by telephone from National Public Liaison, 202-927-3641 (not a toll-free number). FOR FURTHER INFORMATION CONTACT: Ms. Caryl Grant, at 202-927-3641 (not a toll-free number) or **Public_Liaison@irs.gov* . SUPPLEMENTARY INFORMATION: IRPAC was established in 1991 in response to an administrative recommendation in the final Conference Report of the Omnibus Budget Reconciliation Act of 1989. Since its inception, IRPAC has worked closely with the IRS to provide recommendations on a wide range of issues intended to improve the information reporting program and achieve fairness to taxpayers. Conveying the public's perception of IRS activities to the Commissioner, the IRPAC is comprised of individuals who bring substantial, disparate experience and diverse backgrounds to the Committee's activities. IRPAC members are appointed by the Commissioner and serve a term of three years with approximately one third of the member's terms expiring each year. Working groups address policies and administration issues specific to information reporting. Members are not paid for their services. However, travel expenses for working sessions, public meetings and orientation sessions, such as airfare, per diem, and transportation to and from airports, train stations, etc., are reimbursed within prescribed federal travel limitations. Receipt of applications will be acknowledged, and all individuals will be notified when selections have been made. In accordance with Department of Treasury Directive 21-03, a clearance process including, fingerprints, annual tax checks, a Federal Bureau of Investigation criminal and subversive name check, and a practitioner check with the Office of Professional Responsibility will be conducted. Equal opportunity practices will be followed for all appointments to the IRPAC in accordance with the Department of Treasury and IRS policies. To ensure that the recommendations of the IRPAC have taken into account the needs of the diverse groups served by the IRS, membership shall include, to the extent practicable, individuals who demonstrate the ability to represent minorities, women, and persons with disabilities. The Secretary of Treasury will review the recommended candidates and approve final selections. Dated: March 25, 2008. Cynthia Vanderpool, Designated Federal Official, National Public Liaison. [FR Doc. E8-6501 Filed 3-31-08; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF VETERANS AFFAIRS [OMB Control No. 2900-0115] Agency Information Collection (Supporting Statement Regarding Marriage) Activities Under OMB Review AGENCY: Veterans Benefits Administration, Department of Veterans Affairs. ACTION: Notice. SUMMARY: In compliance with the Paperwork Reduction Act
(PRA)of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget
(OMB)for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument. DATES: Comments must be submitted on or before May 1, 2008. ADDRESSES: Submit written comments on the collection of information through *http://www.Regulations.gov* or to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503
(202)395-7316. Please refer to “OMB Control No. 2900-0115” in any correspondence. FOR FURTHER INFORMATION CONTACT: Denise McLamb, Records Management Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420,
(202)461-7485, FAX
(202)273-0443 or e-mail *denise.mclamb@mail.va.gov* . Please refer to “OMB Control No. 2900-0115.” SUPPLEMENTARY INFORMATION: *Title:* Supporting Statement Regarding Marriage, VA Form 21-4171. *OMB Control Number:* 2900-0115. *Type of Review:* Extension of a currently approved collection. *Abstract:* The data collected on VA Form 21-4171 is used to determine a claimant's eligibility for benefits based on a common law marital relationship. Benefits cannot be paid unless the marital relationship between the claimant and the veteran is established. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The **Federal Register** Notice with a 60-day comment period soliciting comments on this collection of information was published on January 22, 2008, at pages 3808-3809. *Affected Public:* Individuals or households. *Estimated Annual Burden:* 800 hours. *Estimated Average Burden per Respondent:* 20 minutes. *Frequency of Response:* One-time. *Estimated Number of Respondents:* 2,400. Dated: March 25, 2008. By direction of the Secretary. Denise McLamb, Program Analyst, Records Management Service. [FR Doc. E8-6590 Filed 3-31-08; 8:45 am] BILLING CODE 8320-01-P DEPARTMENT OF VETERANS AFFAIRS [OMB Control No. 2900-0606] Agency Information Collection (Regulation for Submission of Evidence) Activities Under OMB Review AGENCY: Veterans Health Administration, Department of Veterans Affairs. ACTION: Notice. SUMMARY: In compliance with the Paperwork Reduction Act
(PRA)of 1995 (44 U.S.C. 3501-21), this notice announces that the Veterans Health Administration (VHA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget
(OMB)for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and includes the actual data collection instrument. DATES: Comments must be submitted on or before May 1, 2008. ADDRESSES: Submit written comments on the collection of information through *http://www.Regulations.gov;* or to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503
(202)395-7316. Please refer to “OMB Control No. 2900-0606” in any correspondence. FOR FURTHER INFORMATION CONTACT: Denise McLamb, Records Management Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420,
(202)461-7485, fax
(202)273-0443 or e-mail *denise.mclamb@mail.va.gov.* Please refer to “OMB Control No. 2900-0606.” SUPPLEMENTARY INFORMATION: *Title:* Regulation for Submission of Evidence—Title 38 CFR 17.101(a)(4). *OMB Control Number:* 2900-0606. *Type of Review:* Extension of a currently approved collection. *Abstract:* Under the provisions of 38 CFR 17.101(a)(4), a third-party payer that is liable for reimbursing VA for care and services VA provided to veterans with non-service-connected conditions continues to have the option of paying either the billed charges or the amount the health plan demonstrates it would pay to providers other than entities of the United States for the same care or services in the same geographic area. If the amount submitted by the health plan is less than the amount billed, VA will accept the submission as payment, subject to verification at VA's discretion. VA uses the information to determine whether the third-party payer has met the test of properly demonstrating its equivalent private sector provider payment amount for the same care or services VA provided. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The **Federal Register** Notice with a 60-day comment period soliciting comments on this collection of information was published on January 22, 2008, at pages 3805-3806. *Affected Public:* Business or other for-profit. *Estimated Total Annual Burden:* 800 hours. *Estimated Average Burden per Respondent:* 2 hours. *Frequency of Response:* On occasion. *Estimated Number of Respondents:* 400. Dated: March 25, 2008. By direction of the Secretary. Denise McLamb, Program Analyst, Records Management Service. [FR Doc. E8-6592 Filed 3-31-08; 8:45 am] BILLING CODE 8320-01-P DEPARTMENT OF VETERANS AFFAIRS [OMB Control No. 2900-0362] Agency Information Collection (Claim Under Loan Guaranty/Claim Form—Adjustable Rate Mortgages) Activities Under OMB Review AGENCY: Veterans Benefits Administration, Department of Veterans Affairs. ACTION: Notice. SUMMARY: In compliance with the Paperwork Reduction Act
(PRA)of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget
(OMB)for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument. DATES: Comments must be submitted on or before May 1, 2008. ADDRESSES: Submit written comments on the collection of information through *http://www.Regulations.gov* or to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503
(202)395-7316. Please refer to “OMB Control No. 2900-0362” in any correspondence. FOR FURTHER INFORMATION CONTACT: Denise McLamb, Records Management Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420,
(202)461-7485, FAX
(202)273-0443 or e-mail *denise.mclamb@mail.va.gov.* Please refer to “OMB Control No. 2900-0362.” SUPPLEMENTARY INFORMATION: *Titles:* a. Claim Under Loan Guaranty, VA Form 26-1874. b. Claim Form—Adjustable Rate Mortgages, VA Form 26-1874a. *OMB Control Number:* 2900-0362. *Type of Review:* Extension of a currently approved collection. *Abstract:* a. Lenders and holders of VA guaranteed home loans use VA Form 26-1874 as notification to VA of default of such loans. b. Lenders and holders of VA loans submit VA Form 26-1874a as an attachment to VA Form 26-1874 when filing a claim under the loan guaranty resulting from the termination of an Adjustable Rate Mortgage Loan. The information obtained on both forms is use to determine the amount owed to the holder under the guaranty home loan. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The **Federal Register** Notice with a 60-day comment period soliciting comments on this collection of information was published on January 23, 2008, at pages 4046-4047. *Affected Public:* Business or other for profit. *Estimated Annual Burden:* a. VA Form 26-1874—25,806 hours. b. VA Form 26-1874a-333 hours. *Estimated Average Burden Per Respondent:* a. VA Form 26-1874—60 minutes. b. VA Form 26-1874a—20 minutes. *Frequency of Response:* On occasion. *Estimated Number of Total Respondents:* a. VA Form 26-1874—25,806. b. VA Form 26-1874a—1,000. Dated: March 25, 2008. By direction of the Secretary. Denise McLamb, Program Analyst, Records Management Service. [FR Doc. E8-6593 Filed 3-31-08; 8:45 am] BILLING CODE 8320-01-P DEPARTMENT OF VETERANS AFFAIRS [OMB Control No. 2900-0390] Agency Information Collection (Restored Entitlement Program for Survivors) Activities Under OMB Review AGENCY: Veterans Benefits Administration, Department of Veterans Affairs. ACTION: Notice. SUMMARY: In compliance with the Paperwork Reduction Act
(PRA)of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget
(OMB)for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument. DATES: Comments must be submitted on or before May 1, 2008. ADDRESSES: Submit written comments on the collection of information through *http://www.Regulations.gov* or to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503
(202)395-7316. Please refer to “OMB Control No. 2900-0390” in any correspondence. FOR FURTHER INFORMATION CONTACT: Denise McLamb, Records Management Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420,
(202)461-7485, FAX
(202)273-0443 or e-mail *denise.mclamb@mail.va.gov.* Please refer to “OMB Control No. 2900-0390.” SUPPLEMENTARY INFORMATION: *Title:* Application of Surviving Spouse or Child for REPS Benefits (Restored Entitlement Program for Survivors), VA Form 21-8924. *OMB Control Number:* 2900-0390. *Type of Review:* Extension of a currently approved collection. *Abstract:* Survivors of deceased veteran's complete VA Form 21-8924 to apply for Restored Entitlement Program for Survivors
(REPS)benefits. REPS benefits is payable to certain surviving spouses and children of veterans who died in service prior to August 13, 1981 or who died as of a result of a service-connected disability incurred or aggravated prior to August 13, 1981. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The **Federal Register** Notice with a 60-day comment period soliciting comments on this collection of information was published on January 17, 2008, at pages 3321-3322. *Affected Public:* Individuals or households. *Estimated Annual Burden:* 600 hours. *Estimated Average Burden per Respondent:* 20 minutes. *Frequency of Response:* One time. *Estimated Number of Respondents:* 1,800. Dated: March 25, 2008. By direction of the Secretary. Denise McLamb, Program Analyst, Records Management Service. [FR Doc. E8-6595 Filed 3-31-08; 8:45 am] BILLING CODE 8320-01-P 73 63 Tuesday, April 1, 2008 Presidential Documents Title 3— The President Presidential Determination No. 2008-15 of March 19, 2008 Eligibility of Kosovo to Receive Defense Articles and Defense Services Under the Foreign Assistance Act of 1961, as Amended, and the Arms Export Control Act, as Amended Memorandum for the Secretary of State Pursuant to the authority vested in me by the Constitution and the laws of the United States, including section 503(a) of the Foreign Assistance Act of 1961, as amended, and section 3(a)(1) of the Arms Export Control Act, as amended, I hereby find that the furnishing of defense articles and defense services to Kosovo will strengthen the security of the United States and promote world peace. You are authorized and directed to transmit this determination to the Congress and to arrange for the publication of this determination in the **Federal Register** . GWBOLD.EPS THE WHITE HOUSE, WASHINGTON, March 19, 2008. [FR Doc. E8-6836 Filed 3-31-08; 8:45 am] Billing code 4710-10-P 73 63 Tuesday, April 1, 2008 Notices Part II Department of Health and Human Services Centers for Medicare & Medicaid Services Medicare and Medicaid Programs; Quarterly Listing of Program Issuances; October Through December 2007; Notice DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services [CMS-9043-N] Medicare and Medicaid Programs; Quarterly Listing of Program Issuances—October Through December 2007 AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS. ACTION: Notice. SUMMARY: This notice lists CMS manual instructions, substantive and interpretive regulations, and other **Federal Register** notices that were published from October 2007 through December 2007, relating to the Medicare and Medicaid programs. This notice provides information on national coverage determinations
(NCDs)affecting specific medical and health care services under Medicare. Additionally, this notice identifies certain devices with investigational device exemption
(IDE)numbers approved by the Food and Drug Administration
(FDA)that potentially may be covered under Medicare. This notice also includes listings of all approval numbers from the Office of Management and Budget for collections of information in CMS regulations and a list of Medicare-approved carotid stent facilities. Included in this notice is a list of the American College of Cardiology's National Cardiovascular Data registry sites, active CMS coverage-related guidance documents, and special one-time notices regarding national coverage provisions. Also included in this notice is a list of National Oncologic Positron Emissions Tomography Registry sites, a list of Medicare-approved ventricular assist device (destination therapy) facilities, a list of Medicare-approved lung volume reduction surgery facilities, a list of Medicare-approved clinical trials for fluorodeoxyglucose positron emissions tomogrogphy for dementia, and a list of Medicare-approved bariatric surgery facilities. Section 1871(c) of the Social Security Act requires that we publish a list of Medicare issuances in the **Federal Register** at least every 3 months. Although we are not mandated to do so by statute, for the sake of completeness of the listing, and to foster more open and transparent collaboration efforts, we are also including all Medicaid issuances and Medicare and Medicaid substantive and interpretive regulations (proposed and final) published during this 3-month time frame. FOR FURTHER INFORMATION CONTACT: It is possible that an interested party may need specific information and not be able to determine from the listed information whether the issuance or regulation would fulfill that need. Consequently, we are providing contact persons to answer general questions concerning these items. Copies are not available through the contact persons. (See Section III of this notice for how to obtain listed material.) Questions concerning CMS manual instructions in Addendum III may be addressed to Timothy Jennings, Office of Strategic Operations and Regulatory Affairs, Centers for Medicare & Medicaid Services, C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850, or you can call
(410)786-2134. Questions concerning regulation documents published in the **Federal Register** in Addendum IV may be addressed to Gwendolyn Johnson, Office of Strategic Operations and Regulatory Affairs, Centers for Medicare & Medicaid Services, C4-14-03, 7500 Security Boulevard, Baltimore, MD 21244-1850, or you can call
(410)786-6954. Questions concerning Medicare NCDs in Addendum V may be addressed to Patricia Brocato-Simons, Office of Clinical Standards and Quality, Centers for Medicare & Medicaid Services, C1-09-06, 7500 Security Boulevard, Baltimore, MD 21244-1850, or you can call
(410)786-0261. Questions concerning FDA-approved Category B IDE numbers listed in Addendum VI may be addressed to John Manlove, Office of Clinical Standards and Quality, Centers for Medicare & Medicaid Services, C1-13-04, 7500 Security Boulevard, Baltimore, MD 21244-1850, or you can call
(410)786-6877. Questions concerning approval numbers for collections of information in Addendum VII may be addressed to Melissa Musotto, Office of Strategic Operations and Regulatory Affairs, Regulations Development and Issuances Group, Centers for Medicare & Medicaid Services, C5-14-03, 7500 Security Boulevard, Baltimore, MD 21244-1850, or you can call
(410)786-6962. Questions concerning Medicare-approved carotid stent facilities in Addendum VIII may be addressed to Sarah J. McClain, Office of Clinical Standards and Quality, Centers for Medicare & Medicaid Services, C1-09-06, 7500 Security Boulevard, Baltimore, MD 21244-1850, or you can call
(410)786-2994. Questions concerning Medicare's recognition of the American College of Cardiology-National Cardiovascular Data Registry sites in Addendum IX may be addressed to JoAnna Baldwin, MS, Office of Clinical Standards and Quality, Centers for Medicare & Medicaid Services, C1-09-06, 7500 Security Boulevard, Baltimore, MD 21244-1850, or you can call
(410)786-7205. Questions concerning Medicare's active coverage-related guidance documents in Addendum X may be addressed to Janet Brock, Office of Clinical Standards and Quality, Centers for Medicare & Medicaid Services, C1-09-06, 7500 Security Boulevard, Baltimore, MD 21244-1850, or you can call
(410)786-2700. Questions concerning one-time notices regarding national coverage provisions in Addendum XI may be addressed to Ellie Lund, Office of Clinical Standards and Quality, Centers for Medicare & Medicaid Services, C1-09-06, 7500 Security Boulevard, Baltimore, MD 21244-1850, or you can call
(410)786-2281. Questions concerning National Oncologic Positron Emission Tomography Registry sites in Addendum XII may be addressed to Stuart Caplan, RN, MAS, Office of Clinical Standards and Quality, Centers for Medicare & Medicaid Services, C1-09-06, 7500 Security Boulevard, Baltimore, MD 21244-1850, or you can call
(410)786-8564. Questions concerning Medicare-approved ventricular assist device (destination therapy) facilities in Addendum XIII may be addressed to JoAnna Baldwin, MS, Office of Clinical Standards and Quality, Centers for Medicare & Medicaid Services, C1-09-06, 7500 Security Boulevard, Baltimore, MD 21244-1850, or you can call
(410)786-7205. Questions concerning Medicare-approved lung volume reduction surgery facilities listed in Addendum XIV may be addressed to JoAnna Baldwin, MS, Office of Clinical Standards and Quality, Centers for Medicare & Medicaid Services, C1-09-06, 7500 Security Boulevard, Baltimore, MD 21244-1850, or you can call
(410)786-7205. Questions concerning Medicare-approved bariatric surgery facilities listed in Addendum XV may be addressed to Kate Tillman, RN, MA, Office of Clinical Standards and Quality, Centers for Medicare & Medicaid Services, C1-09-06, 7500 Security Boulevard, Baltimore, MD 21244-1850, or you can call
(410)786-9252. Questions concerning fluorodeoxyglucose positron emission tomography for dementia trials listed in Addendum XVI may be addressed to Stuart Caplan, RN, MAS, Office of Clinical Standards and Quality, Centers for Medicare & Medicaid Services, C1-09-06, 7500 Security Boulevard, Baltimore, MD 21244-1850, or you can call
(410)786-8564. Questions concerning all other information may be addressed to Gwendolyn Johnson, Office of Strategic Operations and Regulatory Affairs, Regulations Development Group, Centers for Medicare & Medicaid Services, C5-14-03, 7500 Security Boulevard, Baltimore, MD 21244-1850, or you can call
(410)786-6954. SUPPLEMENTARY INFORMATION: I. Program Issuances The Centers for Medicare & Medicaid Services
(CMS)is responsible for administering the Medicare and Medicaid programs. These programs pay for health care and related services for 39 million Medicare beneficiaries and 35 million Medicaid recipients. Administration of the two programs involves
(1)furnishing information to Medicare beneficiaries and Medicaid recipients, health care providers, and the public and
(2)maintaining effective communications with regional offices, State governments, State Medicaid agencies, State survey agencies, various providers of health care, all Medicare contractors that process claims and pay bills, and others. To implement the various statutes on which the programs are based, we issue regulations under the authority granted to the Secretary of the Department of Health and Human Services under sections 1102, 1871, 1902, and related provisions of the Social Security Act (the Act). We also issue various manuals, memoranda, and statements necessary to administer the programs efficiently. Section 1871(c)(1) of the Act requires that we publish a list of all Medicare manual instructions, interpretive rules, statements of policy, and guidelines of general applicability not issued as regulations at least every 3 months in the **Federal Register** . We published our first notice June 9, 1988 (53 FR 21730). Although we are not mandated to do so by statute, for the sake of completeness of the listing of operational and policy statements, and to foster more open and transparent collaboration, we are continuing our practice of including Medicare substantive and interpretive regulations (proposed and final) published during the respective 3-month time frame. II. How to Use the Addenda This notice is organized so that a reader may review the subjects of manual issuances, memoranda, substantive and interpretive regulations, NCDs, and FDA-approved IDEs published during the subject quarter to determine whether any are of particular interest. We expect this notice to be used in concert with previously published notices. Those unfamiliar with a description of our Medicare manuals may wish to review Table I of our first three notices (53 FR 21730, 53 FR 36891, and 53 FR 50577) published in 1988, and the notice published March 31, 1993 (58 FR 16837). Those desiring information on the Medicare NCD Manual (NCDM, formerly the Medicare Coverage Issues Manual (CIM)) may wish to review the August 21, 1989, publication (54 FR 34555). Those interested in the revised process used in making NCDs under the Medicare program may review the September 26, 2003, publication (68 FR 55634). To aid the reader, we have organized and divided this current listing into 11 addenda: • Addendum I lists the publication dates of the most recent quarterly listings of program issuances. • Addendum II identifies previous **Federal Register** documents that contain a description of all previously published CMS Medicare and Medicaid manuals and memoranda. • Addendum III lists a unique CMS transmittal number for each instruction in our manuals or Program Memoranda and its subject matter. A transmittal may consist of a single or multiple instruction(s). Often, it is necessary to use information in a transmittal in conjunction with information currently in the manuals. • Addendum IV lists all substantive and interpretive Medicare and Medicaid regulations and general notices published in the **Federal Register** during the quarter covered by this notice. For each item, we list the— ○ Date published; ○ **Federal Register** citation; ○ Parts of the Code of Federal Regulations
(CFR)that have changed (if applicable); ○ Agency file code number; and ○ Title of the regulation. • Addendum V includes completed NCDs, or reconsiderations of completed NCDs, from the quarter covered by this notice. Completed decisions are identified by the section of the NCDM in which the decision appears, the title, the date the publication was issued, and the effective date of the decision. • Addendum VI includes listings of the FDA-approved IDE categorizations, using the IDE numbers the FDA assigns. The listings are organized according to the categories to which the device numbers are assigned (that is, Category A or Category B), and identified by the IDE number. • Addendum VII includes listings of all approval numbers from the Office of Management and Budget
(OMB)for collections of information in CMS regulations in title 42; title 45, subchapter C; and title 20 of the CFR. • Addendum VIII includes listings of Medicare-approved carotid stent facilities. All facilities listed meet CMS standards for performing carotid artery stenting for high risk patients. • Addendum IX includes a list of the American College of Cardiology's National Cardiovascular Data registry sites. We cover implantable cardioverter defibrillators
(ICDs)for certain indications, as long as information about the procedures is reported to a central registry. • Addendum X includes a list of active CMS guidance documents. As required by section 731 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003
(MMA)(Pub. L. 108-173, enacted on December 8, 2003), we will begin listing the current versions of our guidance documents in each quarterly listings notice. • Addendum XI includes a list of special one-time notices regarding national coverage provisions. We are publishing a list of issues that require public notification, such as a particular clinical trial or research study that qualifies for Medicare coverage. • Addendum XII includes a listing of National Oncologic Positron Emission Tomography Registry
(NOPR)sites. We cover positron emission tomography
(PET)scans for particular oncologic indications when they are performed in a facility that participates in the NOPR. • Addendum XIII includes a listing of Medicare-approved facilities that receive coverage for ventricular assist devices used as destination therapy. All facilities were required to meet our standards in order to receive coverage for ventricular assist devices implanted as destination therapy. • Addendum XIV includes a listing of Medicare-approved facilities that are eligible to receive coverage for lung volume reduction surgery. Until May 17, 2007, facilities that participated in the National Emphysema Treatment Trial are also eligible to receive coverage. • Addendum XV includes a listing of Medicare-approved facilities that meet minimum standards for facilities modeled in part on professional society statements on competency. All facilities must meet our standards in order to receive coverage for bariatric surgery procedures. • Addendum XVI includes a listing of Medicare-approved clinical trials for fluorodeoxyglucose positron emission tomography (FDG-PET) for dementia and neurodegenerative diseases. III. How To Obtain Listed Material A. Manuals Those wishing to subscribe to program manuals should contact either the Government Printing Office
(GPO)or the National Technical Information Service
(NTIS)at the following addresses: Superintendent of Documents, Government Printing Office, ATTN: New Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954, Telephone
(202)512-1800, Fax number
(202)512-2250 (for credit card orders); or National Technical Information Service, Department of Commerce, 5825 Port Royal Road, Springfield, VA 22161, Telephone
(703)487-4630. In addition, individual manual transmittals and Program Memoranda listed in this notice can be purchased from NTIS. Interested parties should identify the transmittal(s) they want. GPO or NTIS can give complete details on how to obtain the publications they sell. Additionally, most manuals are available at the following Internet address: *http://cms.hhs.gov/manuals/default.asp.* B. Regulations and Notices Regulations and notices are published in the daily **Federal Register** . Interested individuals may purchase individual copies or subscribe to the **Federal Register** by contacting the GPO at the address given above. When ordering individual copies, it is necessary to cite either the date of publication or the volume number and page number. The **Federal Register** is also available on 24x microfiche and as an online database through *GPO Access.* The online database is updated by 6 a.m. each day the **Federal Register** is published. The database includes both text and graphics from Volume 59, Number 1 (January 2, 1994) forward. Free public access is available on a Wide Area Information Server
(WAIS)through the Internet and via asynchronous dial-in. Internet users can access the database by using the World Wide Web; the Superintendent of Documents home page address is *http://www.gpoaccess.gov/fr/index.html,* by using local WAIS client software, or by telnet to: *swais.gpoaccess.gov,* then log in as guest (no password required). Dial-in users should use communications software and modem to call
(202)512-1661; type swais, then log in as guest (no password required). C. Rulings We publish rulings on an infrequent basis. CMS Rulings are decisions of the Administrator that serve as precedent final opinions and orders and statements of policy and interpretation. They provide clarification and interpretation of complex or ambiguous provisions of the law or regulations relating to Medicare, Medicaid, Utilization and Quality Control Peer Review, private health insurance, and related matters. Interested individuals can obtain copies from the nearest CMS Regional Office or review them at the nearest regional depository library. We have, on occasion, published rulings in the **Federal Register** . Rulings, beginning with those released in 1995, are available online, through the CMS Home Page. The Internet address is: *http://cms.hhs.gov/rulings.* D. CMS' Compact Disk-Read Only Memory (CD-ROM) Our laws, regulations, and manuals are also available on CD-ROM and may be purchased from GPO or NTIS on a subscription or single copy basis. The Superintendent of Documents list ID is HCLRM, and the stock number is 717-139-00000-3. The following material is on the CD-ROM disk: • Titles XI, XVIII, and XIX of the Act. • CMS-related regulations. • CMS manuals and monthly revisions. • CMS program memoranda. The titles of the Compilation of the Social Security Laws are current as of January 1, 2005. (Updated titles of the Social Security Laws are available on the Internet at *http://www.ssa.gov/OP_Home/ssact/comp-toc.htm* .) The remaining portions of CD-ROM are updated on a monthly basis. Because of complaints about the unreadability of the Appendices (Interpretive Guidelines) in the State Operations Manual (SOM), as of March 1995, we deleted these appendices from CD-ROM. We intend to re-visit this issue in the near future and, with the aid of newer technology, we may again be able to include the appendices on CD-ROM. Any cost report forms incorporated in the manuals are included on the CD-ROM disk as LOTUS files. LOTUS software is needed to view the reports once the files have been copied to a personal computer disk. IV. How To Review Listed Material Transmittals or Program Memoranda can be reviewed at a local Federal Depository Library (FDL). Under the FDL program, government publications are sent to approximately 1,400 designated libraries throughout the United States. Some FDLs may have arrangements to transfer material to a local library not designated as an FDL. Contact any library to locate the nearest FDL. In addition, individuals may contact regional depository libraries that receive and retain at least one copy of most Federal Government publications, either in printed or microfilm form, for use by the general public. These libraries provide reference services and interlibrary loans; however, they are not sales outlets. Individuals may obtain information about the location of the nearest regional depository library from any library. For each CMS publication listed in Addendum III, CMS publication and transmittal numbers are shown. To help FDLs locate the materials, use the CMS publication and transmittal numbers. For example, to find the Medicare Benefit Policy publication titled “Pulmonary Rehabilitation Services,” use CMS-Pub. 100-03, Transmittal No. 78. (Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital Insurance, Program No. 93.774, Medicare—Supplementary Medical Insurance Program, and Program No. 93.714, Medical Assistance Program) Dated: March 11, 2008. Jacquelyn Y. White, Director, Office of Strategic Operations and Regulatory Affairs. 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E8-5745 Filed 3-31-08; 8:45 am] BILLING CODE 4120-01-C 73 63 Tuesday, April 1, 2008 Rules and Regulations Part III Department of the Interior Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Helianthus Paradoxus (Pecos Sunflower); Final Rule DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [FWS-R2-ES-2008-0002; 92210-1117-0000-B4] RIN 1018-AV02 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Helianthus Paradoxus (Pecos Sunflower) AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for *Helianthus paradoxus* (Pecos Sunflower) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 1,305 acres
(528)hectares (ha)) in Chaves, Cibola, and Guadalupe counties, New Mexico, and in Pecos County, Texas, fall within the boundaries of the final critical habitat designation. DATES: This final rule becomes effective on May 1, 2008. ADDRESSES: This final rule and final economic analysis is available on the Internet at *http://www.regulations.gov* and *http://www.fws.gov/southwest/es/newmexico/.* Supporting documentation we used in preparing this final rule will be available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna Road, NE., Albuquerque, New Mexico 87113; telephone 505-346-2525; facsimile 505-346-2542. FOR FURTHER INFORMATION CONTACT: Wally “J” Murphy, Field Supervisor, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office (see ADDRESSES section). If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service
(FIRS)at 800-877-8339. SUPPLEMENTARY INFORMATION: Background It is our intent to discuss only those topics directly relevant to the development and designation of critical habitat in this final rule. For additional information on *Helianthus paradoxus,* refer to the proposed critical habitat rule published in the **Federal Register** on March 27, 2007 (72 FR 14328), the final listing rule published in the **Federal Register** on October 20, 1999 (64 FR 56582), or the Pecos Sunflower Recovery Plan available on the Internet at *http://www.regulations.gov* and *http://www.ecos.fws.gov/docs/recovery_plans/2005/050915.pdf.* Previous Federal Actions On March 27, 2007, we published a proposed rule to designate critical habitat for *Helianthus paradoxus* (72 FR 14328). We solicited data and comments from the public on the proposed rule. The comment period opened on March 27, 2007, and closed on May 29, 2007. On December 11, 2007, we published a notice announcing the availability of the draft economic analysis, draft environmental assessment, and the reopening of the public comment period (72 FR 70269). We also announced a revision to proposed critical habitat Unit 4 and a clarification of Unit 5. Section 4(b)(2) of the Act requires that we consider economic impacts, impacts to national security, and other relevant impacts prior to making a final decision on what areas to designate as critical habitat. We solicited data and comments from the public on these draft documents, as well as on all aspects of our proposal, so that we could consider these in this final determination. This comment period closed on January 10, 2008. For more information on previous Federal actions concerning *Helianthus paradoxus,* please refer to the proposed critical habitat rule published in the **Federal Register** on March 27, 2007 (72 FR 14328), and the final listing rule published in the **Federal Register** on October 20, 1999 (64 FR 56582). Summary of Comments and Recommendations We requested comments from the public on the proposed designation of critical habitat for *Helianthus paradoxus* during two comment periods. The first comment period associated with the publication of the proposed rule (72 FR 14328) opened on March 17, 2007, and closed on May 29, 2007. We did not receive any requests for a public hearing during this comment period. We also requested comments on the proposed critical habitat designation, associated draft economic analysis, and draft environmental assessment during a comment period that opened December 11, 2007, and closed on January 10, 2008 (72 FR 70269). We contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and/or draft economic analysis and draft environmental assessment during these two comment periods. During the first comment period, we received seven comments directly addressing the proposed critical habitat designation: one from a State agency, one from a Federal agency, and five from organizations or individuals. During the second comment period, we received seven comments addressing the proposed critical habitat designation, the draft economic analysis, or the draft environmental assessment. All substantive information provided during both public comment periods has been either incorporated directly into this final determination or addressed below. Peer Review In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from three knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received a response from one of the three peer reviewers from which we requested comments. The peer reviewer generally agreed that the physical and biological features identified in the proposed designation for *Helianthus paradoxus* were accurate. However, the peer reviewer suggested that the designation should be expanded to include additional areas and increase the size of existing units. We reviewed all comments received from the public and the peer reviewer for substantive issues and new information regarding the designation of critical habitat for *Helianthus paradoxus,* and address them in the following summary. Peer Reviewer Comments 1. *Comment:* The peer reviewer questioned why the proposed critical habitat designation did not include additional sites that were occupied by *Helianthus paradoxus* at the time of listing. *Our Response:* In the notice of availability published on December 11, 2007 (72 FR 70269), we proposed to include two additional sites (Subunits 4a and 4b) within the designation. Nevertheless, we recognize that this critical habitat designation does not include all of the areas that are occupied by *H. paradoxus* throughout the species' range. Additional sites were not proposed as critical habitat because it is unclear whether they are stable or support sufficient numbers of plants to be considered stable and therefore do not meet our criteria for designation as critical habitat for *H. paradoxus* (Blue Earth Ecological Consultants, Inc. 2007b, p. 3; Poole 1992, p. 27; 2006, p. 3). These additional areas that were not proposed as critical habitat will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available information at the time of the action. Please see the “Criteria Used to Identify Critical Habitat” section below for more discussion of stable populations. 2. *Comment:* The peer reviewer stated that the map of Unit 5 at Diamond Y Spring Preserve in West Texas does not depict proposed critical habitat on the north side of Leon Creek, even though the area is occupied by *Helianthus paradoxus.* *Our Response:* We reviewed the map and description of the boundaries for Unit 5 and found that the map in the proposed rule incorrectly displayed Unit 5. However, the textual description of the boundaries is accurate. We have corrected the map in this final rule. The maps published in the **Federal Register** are for illustration purposes and the amount of detail that can be published is limited. If additional clarification is necessary, contact the New Mexico Ecological Services Field Office (see ADDRESSES section). 3. *Comment:* The peer reviewer questioned whether Unit 5 contained a small group of plants downstream of The Nature Conservancy's Diamond Y Spring Preserve at a nearby highway right-of-way. *Our Response:* In our notice of availability published on December, 11, 2007 (72 FR 70269), we clarified that the right-of-way site should not have been included in the unit description. Our notice revised proposed Unit 5 and did not include the right-of-way as critical habitat because this small area is not known to be able to support sufficient numbers of plants to be considered stable (Blue Earth Ecological Consultants, Inc. 2007b, p 3; Poole 2006, p. 3). Please see the “Criteria Used to Identify Critical Habitat” section below for more discussion of stable populations. 4. *Comment:* The peer reviewer questioned whether wetland filling and development has been documented as a threat within Unit 5. *Our Response:* Our final economic analysis found that the land area at Diamond Y Spring Preserve proposed as critical habitat in Unit 5 does not face residential development pressure. However, the subsurface mineral rights are not owned by the landowners. Therefore, a future potential threat of wetland filling and development for drilling pads and access roads for oil and gas exists (see pages 3-10 of the final economic analysis). The information in the “Final Critical Habitat Designation” section below has been updated to reflect this information. 5. *Comment:* The peer reviewer questioned whether landowners were contacted prior to critical habitat being proposed for designation. *Our Response:* We attempted to contact all of the private landowners on February 28, 2007, prior to the publication of the proposed rule. Furthermore, we sent the proposed rule and December 11, 2007, notice of availability to all interested parties, including landowners. Additionally, contractors contacted affected private parties during the development of the draft and final economic analyses. Comments From the Public 6. *Comment:* The Service should exclude the La Joya Wildlife Management Area (Unit 2) from the final designation. *Our Response:* We agree. After conducting an analysis under section 4(b)(2) of the Act, we concluded that the benefits of excluding Unit 2 from the final designation outweigh the benefits of inclusion (see “Exclusions under Section 4(b)(2)” section). 7. *Comment:* A management plan has been developed for Unit 2. This plan provides considerably more conservation for the species than the designation of critical habitat. *Our Response:* We agree. Please see our response to Comment 6. 8. *Comment:* La Joya Wildlife Management Area lies in the path of the Westwide Energy Corridor, a proposal that would focus energy infrastructure such as pipelines, within a predefined corridor. Critical habitat would help prevent this proposed project from adversely impacting *Helianthus paradoxus.* *Our Response:* Projects associated with the Westwide Energy Corridor proposal that are funded, permitted, or carried out by a Federal agency (i.e., projects with a Federal nexus) would require section 7 consultation under the adverse modification standard if they affected designated critical habitat (see “Section 7 Consultation” section for more discussion of this process). However, because this area is also occupied by *Helianthus paradoxus,* consultation would be required under section 7 of the Act under the jeopardy standard whether the area is designated as critical habitat or not. As discussed in our environmental assessment and in the “Application of the Adverse Modification Standard” section, the outcome of such consultations under the jeopardy and adverse modification standards are not likely to differ materially (Service 2008, p. 23, 24). Further, as discussed under our response to comment 6 above, we have excluded the La Joya Wildlife Management Area from this final designation. 9. *Comment:* One commenter expressed concern that there are areas containing *Helianthus paradoxus* that were not proposed as critical habitat. The Service should designate additional occupied sites that were not identified in the proposed rule. *Our Response:* See response to Comment 1. 10. *Comment:* The Service must include suitable unoccupied habitat within the final designation to conserve *Helianthus paradoxus.* *Our Response:* We disagree. We are not able to designate unoccupied areas as critical habitat for a species unless we make a determination that those areas are essential to the conservation of the species. We used a specific set of criteria, consistent with the biology of this species, to determine habitat essential for the conservation of *Helianthus paradoxus.* Please see the “Criteria Used to Identify Critical Habitat” section below for additional discussion of these criteria. Based on the areas that were identified using these criteria, we determined that additional, unoccupied areas were not essential for the conservation of the species. 11. *Comment:* If the Service excludes an area because of a management plan, the plan must fulfill the listing criteria of the Act. It cannot be voluntary, unenforceable, speculative, nor have funding uncertainties. *Our Response:* Pursuant to section 4(b)(2) of the Act, we are required to take into consideration the economic, national security, and any other relevant impact of specifying any particular area as critical habitat. We may exclude any area from the critical habitat designation if we determine that the benefits of such exclusion outweigh the benefits (i.e., biological or conservation benefits) of including such area within critical habitat, providing that the failure to designate such area will not result in the extinction of the species. This analysis includes consideration of the impacts of the designation, the benefits to the species, as well as policy considerations such as national security, Tribal relationships, and impacts on conservation partnerships. We have utilized management plans in this rule as a part of this balancing analysis under section 4(b)(2) of the Act. Critical habitat does not require proactive management, only that Federal actions do not adversely modify the habitat. In many cases, management plans provide for proactive management and conservation of listed species, thereby improving the habitat quality rather than just maintaining the status quo. This proactive management may be more beneficial to the conservation of the species than the critical habitat prohibitions would be. Although these plans may not always be fully certain of implementation and funding, taken in concert with the other impacts analyzed under section 4(b)(2), the benefits of exclusion may still outweigh the benefits of inclusion. Please see the “Exclusions Under Section 4(b)(2)” section for further discussion of management plans in 4(b)(2) analyses. 12. *Comment:* The Service should not exclude Bitter Lake National Wildlife Refuge from the designation. *Our Response:* We agree. We have determined that certain areas managed by Bitter Lake National Wildlife Refuge (Refuge) meet the definition of occupied critical habitat for *Helianthus paradoxus* . The Refuge has developed and completed a Comprehensive Conservation Plan
(CCP)that provides the framework for protection and management of all trust resources, including federally listed species and sensitive natural habitats. In our December 11, 2007, notice of availability (72 FR 70269), we stated our belief that the Refuge lands are being adequately protected and managed for the conservation of *H. paradoxus* . Nevertheless, we believe it is appropriate to designate lands within the Bitter Lake National Wildlife Refuge and the associated Refuge Farm as critical habitat in this final rule. 13. *Comment:* The maps for Bitter Lake National Wildlife Refuge and the Refuge Farm include areas that are not occupied by the species and are not suitable habitat. *Our Response:* Upon further review of records from Bitter Lake National Wildlife Refuge, we have determined that the proposal included lands that are not occupied by the species, do not contain physical and biological features essential to the conservation of the species, and do not themselves meet the definition of critical habitat (Service 2008, p. 1). For example, the proposed maps included open water areas, dry native grassland, cultivated fields, and other non-essential features and habitat (Service 2008, p. 1). As such, we corrected the maps for Subunits 4a and 4b to include only those areas that contain suitable *Helianthus paradoxus* habitat and possess all of the primary constituent elements (PCEs). As explained in response to Comment 1, we subsequently removed an approximately 3,586 ac (1,451 ha) area of Federal land that was proposed as critical habitat in Subunit 4a and 4b from this final designation because these areas do not meet our criteria for designation of critical habitat for *H. paradoxus* . 14. *Comment:* The Service should include Bureau of Land Management
(BLM)lands adjacent to Bitter Lake National Wildlife Refuge in the critical habitat designation for *Helianthus paradoxus* . *Our Response:* We have determined that BLM lands adjacent to the Refuge do not contain the physical and biological features essential to the conservation of *Helianthus paradoxus* nor do they meet our criteria for designation as critical habitat for this species (see responses to comments 9 and “Criteria Used to Identify Critical Habitat” section below). 15. *Comment:* The Service should recognize that the designation of critical habitat for *Helianthus paradoxus* on Bitter Lake National Wildlife Refuge would provide benefits to the Roswell springsnail ( *Pyrgulopsis roswellensis* ), Koster's springsnail ( *Juturnia kosteri* ), Noel's amphipod ( *Gammarus desperatus* ), and the Pecos assiminea ( *Assiminea pecos* ). *Our Response:* This discussion is provided in our environmental assessment (Service 2008), which included an analysis of the general benefits of an overlap with other listed species. 16. *Comment:* The Service continues to understate the impact of livestock grazing on *Helianthus paradoxus* . If private lands are designated as critical habitat, *H. paradoxus* would benefit from the higher protections provided under the adverse modification standard than the jeopardy standard. *Our Response:* We disagree. The proposed rule states that one of the threats to *Helianthus paradoxus* is overgrazing by livestock during the species' flowering season (72 FR 14328). The proposed rule notes that livestock will eat *H. paradoxus* when other green forage is scarce, and when the buds are developing and abundant (Service 1999, p. 56587). Cattle and horses tend to pull off the flower heads, which can reduce seed production (Bush and Van Auken 1997, p. 416). Nevertheless, we also note that properly managed livestock grazing can be compatible with *H. paradoxus* conservation. Federal agencies already consult with us on activities in areas occupied by the species. Action on private lands that are not federally funded, authorized, or permitted, do not require section 7 consultations. Our environmental assessment found that a designation of critical habitat would have no effect on livestock grazing because there is no Federal nexus associated with any of the ongoing livestock grazing within any of the critical habitat units. 17. *Comment:* The designation should be larger to buffer the species from extended droughts caused by climate change. Critical habitat would provide an increased ability to the Service to respond to anthropogenic threats to maximize the species' chances of surviving climate change. *Our Response:* The commenter did not cite any specific information that we could review on the vulnerability of *Helianthus paradoxus* to broad-scale environmental changes, such as climate change. One of our criteria for selecting areas to include in critical habitat was the size and stability of populations. We focused on large, stable occurrences because they are more likely to support intact ecosystem processes and native species. Therefore, we believe these areas have the highest likelihood of persisting through the environmental extremes and to withstand future introduced stressors such as climate change. We are not aware of any reliable information that is currently available to us that was not considered in this designation process. This final determination constitutes our best assessment of areas needed for the conservation of the species. Much remains to be learned about this species; should credible, new information become available which contradicts this designation, we will reevaluate our analysis and, if appropriate, propose to modify this critical habitat designation, depending on available funding and staffing. We must make this designation on the basis of the information available at this time, and we may not delay our decision until more information about the species and its habitat are available ( *Southwest Center for Biological Diversity* v. *Babbitt* , 215 F.3d 58 D.C. Cir. 2000). 18. *Comment:* A more expansive critical habitat designation would address the threat of hybridization with common sunflower ( *Helianthus annuus* ). *Our Response:* Pecos sunflower will naturally hybridize with common sunflower ( *Helianthus annuus* ). As noted in the recovery plan, there is concern about the extent to which backcrosses from common sunflower could affect the genetic integrity of small Pecos sunflower populations. Obvious hybrid plants have been found on the drier peripheries of the Pecos sunflower populations at Santa Rosa and La Joya, New Mexico. However, the dense stands of Pecos sunflower on wetter habitats appear to remain genetically pure based upon their appearance (Sivinski, personal observations, 1994-2004, cited in Service 2005, p. 10). We conclude that a more expansive designation would do nothing to alleviate the threat of hybridization. 19. *Comment:* The Service did not consider the threat of air pollution on *Helianthus paradoxus* . The National Park Service has described this threat for another, recently delisted sunflower, *Helianthus eggertii* (Olson undated). *Our Response:* We appreciate the additional information; however, we believe we do not have specific and credible information to consider air pollution as a threat to *Helianthus paradoxus* . The National Park Service information concerns an area where acid deposition from air pollution is much more prevalent than it is in the range of *H. paradoxus* . 20. *Comment:* The designation of Unit 2 would result in unresolvable conflicts between the Rio Grande silvery minnow ( *Hybognathus amarus* ) and southwestern willow flycatcher ( *Empidonax traillii extimus* ) because these species are also dependent on the same limited supply of water as *Helianthus paradoxus* . *Our Response:* The commenter did not provide any indication of the types of conflicts that might occur. The final economic analysis does point to one recorded instance where delivery of water to La Joya's holding ponds was postponed so that water would be available for the Rio Grande silvery minnow downstream. However, no adverse impacts to *Helianthus paradoxus* were recorded as a result of that event. It is therefore unclear whether any potential changes to water management would be needed to protect the plant. The economic analysis therefore does not quantify future impacts on water withdrawals in this unit. We are required to designate critical habitat to the maximum extent prudent and determinable for each species that is listed as threatened or endangered within the United States. As part of this process, within the specific areas occupied by the species, we are to determine those physical and biological features essential to the conservation of the species and define critical habitat based on those features. We recognize that, in some cases, critical habitat for one species may overlap with critical habitat for another species which could result in conflicts in management or conservation actions. These conflicts would need to be addressed on a case-by-case basis with the Federal action agencies involved in any given consultation under section 7 of the Act to ensure that the actions would not result in the adverse modification of critical habitat for each species concerned. 21. *Comment:* The jeopardy standard does not protect habitat that is not occupied by *Helianthus paradoxus* . *Our Response:* We have determined that unoccupied areas are not essential to the conservation of this species; therefore, we are precluded from designating such areas as critical habitat. When Federal actions do not directly or indirectly affect *Helianthus paradoxus* , the actions do not require section 7(a)(2) consultation and thus, are not protected by the jeopardy standard. However, when a Federal agency funds, authorizes, or carries out an action that may affect *H. paradoxus* , the Act requires that the agency consult with us under section 7 of the Act. Our view is that any Federal action that affects *H. paradoxus* should be considered a situation that “may affect” the species and should undergo section 7 consultation under the jeopardy standard. As in the past, the Federal action agency will continue to make the determination as to whether their project “may affect” the species or designated critical habitat. 22. *Comment:* The destruction of a single population of *Helianthus paradoxus* would violate the Act's prohibition on adverse modification. *Our Response:* Activities that may result in the destruction or adverse modification of critical habitat include those that alter the physical and biological features to an extent that the value of critical habitat for the conservation of *Helianthus paradoxus* is appreciably reduced (i.e., with the implementation of the proposed project, will the critical habitat remain functional). We note that such activities may also jeopardize the continued existence of the species. Actions that would be expected to both jeopardize the continued existence of *H. paradoxus* and destroy or adversely modify its critical habitat would include those that significantly and detrimentally alter the species' habitat over an area large enough that the likelihood of *H. paradoxus'* persistence and recovery range-wide is significantly reduced. Thus, the likelihood of an adverse modification or jeopardy determination would depend on the baseline condition of the species as a whole. Comments Related to the Draft Economic Analysis 23. *Comment:* According to the draft economic analysis, most of the projected costs associated with critical habitat for *Helianthus paradoxus* are from non-native species control. Non-native species control is voluntary on state and private lands and has been ongoing on the Refuge. Therefore, critical habitat designation does not cause these funds to be expended and should not be a basis for excluding areas from the final designation. *Our Response:* The final economic analysis has been updated to include an assessment of incremental costs (i.e., those costs directly associated with the designation of critical habitat). While the costs of non-native species management are presented as part of the coextensive economic impacts associated with the conservation of *Helianthus paradoxus* , they are considered to be baseline impacts (i.e., not directly associated with this rulemaking) in the final economic analysis (Appendix B). As such they are not considered to be costs of including those areas as critical habitat. 24. *Comment:* Benefits that should have been considered in the economic analysis include the benefit of National Wildlife Refuges to neighboring communities, the economic benefits to The Nature Conservancy, and the value of ecosystem services. Specifically, the Service should consider economic benefits such as additional protection of National Wildlife Refuge lands that currently attract visitors and provide benefits to local communities. *Our Response:* Where data are available, the final economic analysis attempts to recognize and measure the net economic impact of the proposed designation. However, monetization of this category of benefits would require detailed information that quantifies, for example, the recreational value added by critical habitat designation and its impact on visitation to the National Wildlife Refuge. This information is currently not available and thus is not included in the economic analysis. Such “baseline” benefits occur regardless of the designation of critical habitat and would not be considered in the evaluation under section 4(b)(2) of the Act. 25. *Comment:* In the economic analysis for the four invertebrates found at Bitter Lake National Wildlife Refuge, New Mexico, and on Diamond Y Spring Preserve in West Texas, it was noted that the designation of critical habitat might increase recognition and potential funding for restoration or conservation projects. This economic benefit should be integrated into the final economic analysis for *Helianthus paradoxus* . *Our Response:* We acknowledge that the general statement appeared in our economic analysis for the four invertebrates on the Refuge. However, we did not have any specific information at that time, nor are we aware of any information that is currently available to us that would permit us to quantify this assumed benefit. Please see our response to comment 23 for additional information regarding treatment of benefits in the final economic analysis. 26. *Comment:* It is unacceptable to place dollar values on Pueblo of Acoma lands in the economic analysis, as those lands will not be sold. *Our Response:* The final economic analysis states that the Pueblo of Acoma lands in Unit 1a have recently been acquired by the Pueblo, and that it may wish to develop the land at some point, though no definitive plans were provided. The final economic analysis quantifies potential impacts to the Pueblo of Acoma related to the development of a management plan, monitoring costs, and management of livestock to avoid impacts to *Helianthus paradoxus* . The analysis does not quantify potential impacts on property value for Pueblo lands nor is it meant to quantify the actual property value of the area. Comments From the State 27. *Comment:* The water source for Unit 2 is currently used by the New Mexico Department of Game and Fish (NMDGF) to inundate portions of the La Joya Wildlife Management Area. However, the water source is not secure (i.e., protected by a water right) and is subject to changing water management practices of the Middle Rio Grande Conservancy District (MRGCD). *Our Response:* The designation of critical habitat would also not secure the water source. Critical habitat does not establish a preserve or provide water rights to designated areas. Designation of critical habitat requires that Federal agencies consult on actions they fund, authorize, permit, or carry out in order to ensure that the actions do not adversely modify the critical habitat. These consultations may limit the effects of changing water management, but are not guaranteed to preserve water in the area. In addition, unless there is a Federal nexus, any activities related to water management operations would not result in a consultation with us. The water right at La Joya Wildlife Management Area is owned by MRGCD; however, NMDGF (i.e., the State of New Mexico) has a written agreement from 1960 with the MRGCD that allows them to replenish the water in six ponds from the return flow during the non-irrigation season (approximately October to February) to provide resting places for migratory waterfowl (NMDGF 2007). During this period, the MRGCD will allow the diversion of water from the return flow to an extent that such water is available (NMDGF 2007). This water is used to inundate wetland areas within La Joya Wildlife Management Area at a time of the year when other water demands are at their lowest. To date, there have been no conflicts associated with competing demands for this water. There are no known projects anticipated to impact water withdrawals in the future (Service 2008). Therefore, we find no reason that this relationship would not continue into the future. Summary of Changes From the Proposed Rule In preparing the final critical habitat designation for *Helianthus paradoxus* , we reviewed and considered comments from the public and peer reviewers on the March 27, 2007, proposed designation of critical habitat (72 FR 14328) and the December 11, 2007, notice announcing the availability of the draft economic analysis and draft environmental assessment, as well as the proposal of two additional subunits and the clarification of one unit as critical habitat (72 FR 70269). As a result of comments received, we made the following changes to our proposed designation:
(1)The final designation includes a correction to Subunits 4a and 4b and a clarification with respect to Unit 5. These three areas:
(a)Are within the historical range of the species and were occupied at the time of listing;
(b)provide the physical and biological features essential for the long-term persistence of *Helianthus paradoxus* populations; and
(c)are currently occupied.
(2)We have excluded 854 ac (346 ha) of lands within the La Joya Wildlife Management Area (Unit 2) proposed as critical habitat for *Helianthus paradoxus* from the final designation (see the “Exclusions under Section 4(b)(2) of the Act” section of this final rule for further details).
(3)We have excluded land on the Pueblo of Laguna (Subunit 1c) proposed as critical habitat for *Helianthus paradoxus* from the final designation (see the “Exclusions under Section 4(b)(2) of the Act” section of this final rule for further details). Critical Habitat Critical habitat is defined in section 3 of the Act as:
(i)The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a)Essential to the conservation of the species and
(b)Which may require special management consideration or protections; and
(ii)Specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act, means the use of all methods and procedures that are necessary to bring any endangered or threatened species to the point at which the measures provided under the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Critical habitat receives protection under section 7 of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing the destruction or adverse modification of critical habitat. Section 7(a)(2) of the Act requires consultation on Federal actions that may affect critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by private landowners. Where a landowner requests federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply, but even in the event of a destruction or adverse modification finding, the landowner's obligation is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. For inclusion in a critical habitat designation, the habitat within the geographical area occupied by the species at the time of listing must contain the physical and biological features essential to the conservation of the species, and be included only if those features may require special management considerations or protection. Critical habitat designations identify, to the extent known using the best scientific data available, habitat areas that provide essential life cycle needs of the species (i.e., areas on which are found the PCEs laid out in the appropriate quantity and spatial arrangement for the conservation of the species). Under the Act, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed only when we determine that those areas are essential for the conservation of the species. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the **Federal Register** on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines issued by the Service, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require Service biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge. Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that we may eventually determine to be necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not promote the recovery of the species. Areas that support populations, but are outside the critical habitat designation, will continue to be subject to conservation actions. They are also subject to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available information at the time of the action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may require consultation under section 7 of the Act and may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if information available at the time of these planning efforts calls for a different outcome. Primary Constituent Elements In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas occupied by the species at the time of listing to designate as critical habitat, we consider those physical and biological features essential to the conservation of the species that may require special management considerations or protection. We consider the physical or biological features to be the PCEs laid out in the appropriate quantity and spatial arrangement for the conservation of the species. The PCEs include, but are not limited to:
(1)Space for individual and population growth and for normal behavior;
(2)Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3)Cover or shelter;
(4)Sites for breeding, reproduction, and rearing (or development) of offspring; and
(5)Habitats that are protected from disturbance or are representative of the historic, geographical, and ecological distributions of a species. We derived the specific PCEs required for *Helianthus paradoxus* from the biological needs of the species as described below. Additional information can also be found in the final listing rule published in the **Federal Register** on October 20, 1999 (64 FR 56582). Space for Individual and Population Growth, Including Sites for Germination, Pollination, Reproduction, and Seed Bank *Helianthus paradoxus* is an annual species that must re-establish populations of adult plants each year from seed produced during previous years' reproductive efforts. Habitats with suitable alkaline soils and perennially wet hydrologic conditions for all of the life functions of *H. paradoxus* are typically small areas around springs and ponds. Therefore, populations tend to grow in crowded patches of dozens or even thousands of individuals. Solitary individuals may be found around the periphery of the wetland, but dense, well-defined stands within suitable habitats are more typical. Aggregations of individuals may occur in different adjacent areas than the patches of dead stalks from the population of the previous year (Sivinski 1992, p. 125). This suggests seed dispersal or the presence of a persistent soil seed bank (Van Auken 2001). Patch densities and locations are determined by a combination of factors, including variations in seasonal soil moisture, salinity, oxygen, disturbance, and competing vegetation (Bush 2002, pp. 1-2; Van Auken and Bush 1995, p. 15; Bush and Van Auken 1997, p. 417). Dense stands of *Helianthus paradoxus* produce smaller, spindly plants, while more open stands have larger plants (Service 2005, p. 6). Likewise, experiments to remove competing vegetation, such as alkali sacaton ( *Sporobolus airoides* ) and saltgrass ( *Distichlis spicata* ), also produced larger *H. paradoxus* plants with more flowers per plant (Bush and Van Auken 1997, p. 417). Pollination vectors for *Helianthus paradoxus* have not been studied. However, most plants in the aster family with ray-like flowers, such as *H. paradoxus* , attract a variety of insect pollinators (Service 2005, p. 7). Seed production is greatly enhanced in *H. paradoxus* by cross-pollination between individual plants. An experiment that excluded pollinators from flower heads produced only 5 percent viable seed compared to 84 percent viable seed produced by flower heads that were open to insect pollination (Van Auken and Bush 1997, p. 44). *Helianthus paradoxus* blooms in the months of September and October. Flowering peaks the second week of September in the northern-most New Mexico populations. The peak flowering time for the southern-most population in West Texas is later in October. Seeds fill and mature during October and November and then require a 2- to 3-month after-ripening period before germination (Van Auken 2001, p. 157). A few seeds remain dormant for longer periods and appear to be insurance for species survival by remaining viable in the soil seed bank (Van Auken 2001). The duration of seed viability has not yet been studied. Areas That Provide the Basic Requirements for Growth (Such as Water, Light, and Minerals) *Helianthus paradoxus* habitat attributes usually are present in desert wetland areas that contain permanently saturated soils in the root zone (Service 2005, p. 6). These are most commonly desert springs and seeps that form wet meadows called “cienegas.” Nevertheless, *H. paradoxus* also can occur around the margins of lakes and creeks (Service 2005, p. 6). When *H. paradoxus* grows around lakes or ponds, these areas are usually associated with natural cienega habitats. The soils of these desert wetlands and riparian areas are typically saline or alkaline because the waters are high in dissolved solids and elevated evaporation rates leave deposits of salts, including carbonates, at the soil's surface. Studies by Van Auken and Bush (1995, p. 14) showed that *H. paradoxus* grows in saline soils, but seeds germinate and establish best when precipitation and high water tables reduce salinity near the soil surface. Based on greenhouse and limited field studies, *H. paradoxus* requires salinity levels ranging from 10 to 40 parts per thousand for optimal growth in competition with other salt marsh plant species (Van Auken and Bush 2006, p. 29). *Helianthus paradoxus* can occur on cienegas that contain alkaline, fine sand soils that may be dry at the surface during summer months, but are sub-irrigated in the root zone. Where saturated soils are shaded by taller vegetation, *H. paradoxus* may also not be present every year or in numbers greater than a few hundred plants. Like all sunflowers, this species requires open areas that are not shaded by taller vegetation for optimal growth. Solitary trees or shrubs are sometimes located within stands of *H. paradoxus* . Clusters of tall trees and shrubs will inhibit *H. paradoxus'* growth by shading germinating seeds and seedlings (Service 2005, p. 6). Primary Constituent Elements for *Helianthus paradoxus* Pursuant to the Act and its implementing regulations, we are required to identify the physical and biological features within the geographical area occupied by *Helianthus paradoxus* at the time of listing that are essential to the conservation of the species and which may require special management considerations or protections. The physical and biological features are those primary constituent elements
(PCEs)laid out in a specific spatial arrangement and quantity to be essential to the conservation of the species. All areas designated as critical habitat for *H. paradoxus* are currently occupied, within the species' historical geographic range, and contain sufficient PCEs to support at least one life history function. Based on our current knowledge of the life history, biology, and ecology of the species and the habitat requirements for sustaining the essential life history functions of the species, we have determined that *Helianthus paradoxus'* PCEs are the desert wetland or riparian habitat components that provide:
(1)Silty clay or fine sand soils that contain high organic content, are saline or alkaline, are permanently saturated within the root zone (top 50 cm of the soil profile), and have salinity levels ranging from 10 to 40 parts per thousand; and
(2)Low proportion (less than 10 percent) of woody shrub or canopy cover directly around the plant. This final designation is designed for the conservation of the PCEs necessary to support the life history functions of the species and the areas containing those PCEs in the appropriate quantity and spatial arrangement essential for the conservation of the species. Because all of the species' life history functions require all of the PCEs, all critical habitat units contain all of the PCEs. Special Management Considerations or Protections When designating critical habitat, we assess whether the areas occupied by the species at the time of listing contain the physical and biological features essential to the conservation of the species, and whether these features may require special management consideration or protections. As stated in the final listing rule (64 FR 56582), threats to *Helianthus paradoxus* and its physical and biological features include drying of wetlands from groundwater depletion, alteration of wetlands (e.g., wetland fills, draining, impoundment, and development), competition from nonnative plant species, overgrazing by livestock during *H. paradoxus* ' flowering season, impacts from recreational activities, mowing, and highway maintenance. The loss or alteration of wetland habitat continues to be the main threat to *Helianthus paradoxus* . The scattered distribution of cienegas makes them aquatic islands of unique habitat in an arid-land matrix (Hendrickson and Minckley 1984, p. 169). There is evidence these habitats have been historically, and are presently being, reduced or eliminated by aquifer depletion, and severely impacted by agricultural activities and encroachment by exotic plants (Poole 1992, pp. 1-2; Sivinski 1995, p. 11). The lowering of water tables through aquifer withdrawals for irrigation and municipal use, diversion of water from wetlands for agriculture and recreational uses, and wetland filling for conversion to dry land uses destroy or degrade desert wetlands. In Grants, New Mexico, *Helianthus paradoxus* has been observed in close proximity to building sites that may have contained suitable wetland habitat prior to filling (Service 2005, p. 8). A cienega containing *H. paradoxus* near Dexter, New Mexico, was dried when a wellhead was placed on the spring and the water diverted for other uses (Service 2005, p. 8). Springs that have fed *H. paradoxus* habitats have been converted to swimming pools and fishing ponds in the towns of Roswell and Santa Rosa, New Mexico (Service 2005, p. 8). Groundwater withdrawals for agriculture in Pecos and Reeves counties in Texas have had an especially severe impact on desert springs (Service 2005, p. 8). Of the 61 historical desert springs in these two counties, only 13 were still flowing in 1980 (Brune 1981 *in* Poole 1992, p. 5). Beginning around 1946, groundwater levels fell as much as 400 feet
(ft)(120 meters (m)) in Pecos County and 500 ft (150 m) in Reeves County. Groundwater pumping has lessened in more recent years due to the higher cost of removing water from deeper aquifers, but rising water tables and resumption of spring flows are not expected (Poole 1992, p. 5). We are not aware of any protections afforded by Texas water law for the remaining springs that support *H. paradoxus* populations on The Nature Conservancy properties, which limits options for addressing this threat. Livestock will eat *Helianthus paradoxus* when other green forage is scarce, and when the buds are developing and abundant (Service 1999, p. 56587). Cattle and horses tend to pull off the flower heads, which can reduce seed production (Bush and Van Auken 1997, p. 416). However, well-managed grazing during non-flowering months may have a beneficial effect on *H. paradoxus* populations by decreasing the density and biomass of potentially competing plant species in these habitats. This sunflower germinates earlier than most associated plants and grows vigorously on wet, bare, highly insolated soils (Service 2005, p. 9). Actions that remove shading grass cover, such as grazing, appear to enhance growth and reproduction of sunflower plants that are later protected from grazing while they are reproductively maturing. Therefore, properly managed livestock grazing can be compatible with *H. paradoxus* conservation. Livestock grazing operations that are not managed to protect *H. paradoxus* occur in populations in the Grants and Roswell areas of New Mexico (Service 2005, p. 9). Although water contamination is a significant threat for the Roswell springsnail, Koster's springsnail, Noel's amphipod, and the Pecos assiminea found on Bitter Lake National Wildlife Refuge (70 FR 46304), we have no information on whether contamination of water would affect *Helianthus paradoxus* . We did not find that reduced water quality was a threat to the species when it was listed in 1999 (64 FR 56582). Moreover, we are not aware of any research or information that documents the species' response to elevated nutrients or contaminants. For these reasons, we do not believe that water contamination is a significant threat to *H. paradoxus* at this time. We have determined that each area included in this designation meets the definition of critical habitat for the reasons described in our unit descriptions below. Criteria Used To Identify Critical Habitat We are designating critical habitat in areas that were occupied by the species at the time of listing and contain PCEs in the quantity and spatial arrangement to support life history functions essential for the conservation of the species. Each such area contains all PCEs and support multiple life processes. We are also designating critical habitat in two areas that were not occupied by the species at the time of listing. We have determined that these areas, which are currently occupied, are essential to the conservation of the species. For many species that are listed under the Act, habitat loss is a primary factor in their decline. For these species it is very important to conserve every piece of available habitat, and, in some cases, it is essential to conserve areas that may become suitable habitat in the future. This is not the case for *Helianthus paradoxus* , because this species currently exists throughout its range in a spatial arrangement that would provide for its long-term conservation, if the populations were secure from threats. For this reason, not all areas which are known to be occupied by *H. paradoxus* are required in order to conserve the species. To include all areas that are occupied by the Pecos sunflower, and unoccupied areas that could be occupied by the species, would encompass more areas than are reasonably needed to conserve the species. Thus, we developed a set of restrictive criteria to focus on those areas most likely to contribute to the long-term conservation of the species. We have chosen to focus on larger populations supported by water sources that are thought to be relatively stable. By focusing on size and stability, we believe we have chosen the populations that are most likely to become secure from threats in the long term and provide for the long-term conservation of this species. Occupancy We consider an area to be currently occupied if *Helianthus paradoxus* was found to be present by species experts within the last two years (Hirsch 2006, p. 1; Poole 2006, p. 1; Ulibarri 2006, p. 1; Sivinski 2007, p. 1). Two years is an appropriate time period because surveys may not occur in all areas in all years, and because plants reestablish in an area from seeds left in the ground from the previous year's production. The sunflower would be likely to persist in an area over multiple years unless major habitat modification occurred resulting in destruction of the seed bank. Stability In designating critical habitat, we considered the stability of the known populations, including size and status over time. According to population-level analysis conducted for *Helianthus paradoxus* , approximately 1,600 or more individuals is a population target that gives a high probability of having a stable population over time (Poole 2004; Sanderson 2006, p. 918). We consider the status of a population to be stable when it appears that
(1)the number of new individuals in a population is equal to or greater than the number of individuals dying, and
(2)the population occupies a similar or larger area over multiple survey periods. The survey and field data on which this designation is based are from consistently observed populations during the last several years. Most of the sites included in this designation were visited by species experts four or more times between 1992 and 2007; however, at a minimum each site was visited twice. By including stable populations, we are designating currently occupied habitat that provides for important life-history functions, such as seed dispersal and genetic exchange, which will contribute to the long-term conservation of the species. Locations that have populations that do not support at least 1,600 individuals are usually either dependent on an inconsistent water supply or rely on small, restricted, or modified habitats. We believe that, by designating large populations, the species will persist, the potential for successful pollination is high, and genetic exchange is facilitated. Using this criteria results in some occupied areas not being included; however, we believe we have included the most important areas and in a spatial arrangement and quantity that allows for long-term conservation of the species. Essential Areas For areas not occupied by the species at the time of listing, the Service must demonstrate that these areas are essential to the conservation of the species in order to include them in a critical habitat designation. *Helianthus paradoxus* critical habitat units in New Mexico and west Texas (shown in Table 1) are sufficiently distant (40 to 100 miles
(mi)(64 to 161 kilometers (km)) from one another to rule out frequent gene exchange by pollen vectors or seed dispersal. Therefore, *due to the spatial distance between them* , we have determined that each of these populations, including two not occupied by the species at the time of listing (Unit 2 and Subunit 3b), are essential to the conservation of the species because they provide for the maintenance of the genetic diversity of *H. paradoxus* . The areas we have determined meet the definition of critical habitat for this species include populations containing all of the known remaining genetic diversity within the species. These areas include representation of each major subbasin in the known historical range of the species (Service 2005, p. 4). In summary, this critical habitat designation includes populations of *Helianthus paradoxus* and habitats that possess the physical and biological features essential to the conservation of the species. We believe the populations included in this designation, if secured, would provide for the conservation of *H. paradoxus* by:
(1)Maintaining the physical and biological features essential to the conservation of the species in areas where large populations of *H. paradoxus* are known to occur;
(2)maintaining the current distribution, thus preserving genetic variation throughout the range of *H. paradoxus* and minimizing the potential effects of local extinction;
(3)minimizing fragmentation within populations by establishing contiguous occurrences and maintaining existing connectivity;
(4)including sufficient pollinators; and
(5)protecting the seed bank to ensure long-term persistence of the species. Mapping The designated *Helianthus paradoxus* critical habitat areas are grouped both spatially and by watershed into four larger units: West-Central New Mexico, Santa Rosa, Roswell/Dexter, and West Texas. The boundaries of the critical habitat designation for each subunit were mapped using a global positioning system
(GPS)along the outside boundary of the area of occupied habitat (Pittenger 2007). We attempted to encompass only areas that contain all of the PCEs in a year of average rainfall. The elevated water table that provides conditions favorable to *H. paradoxus* growth is influenced by both past and current precipitation. Groundwater level is often affected by precipitation in the entire watershed from many prior years as water slowly moves through the soil and geologic features into springs and wetlands. The groundwater provides a relatively reliable, stable water source permanently saturating soils adjacent to springs and wetlands. Winter storms and monsoons provide a more dynamic source of precipitation to *H. paradoxus* habitat. The suitable habitat expands and contracts horizontally and laterally from the groundwater-influenced areas depending on the amount of annual precipitation (Sivinski 1992, p. 125). Therefore, in very wet years, suitable *H. paradoxus* habitat may extend beyond the mapped boundaries for critical habitat and in very dry years may shrink to a smaller area than delineated. In a few of the subunits we include narrow dirt roads within the mapped boundaries when these roads were present within the occupied habitat. Due to soil compaction from vehicle tracks, these roads do not provide the PCEs for *Helianthus paradoxus* . They do, however, represent a small area (6 ft (2 m) wide), and they are directly adjacent to occupied habitat, so we found it too difficult, due to mapping constraints, to exclude them from the maps of critical habitat. To the best of our knowledge, no other areas were included within the mapped boundaries of subunits that do not possess all of the PCEs. We were not able to obtain physical access to some private lands in order to map the boundaries of *Helianthus paradoxus* habitat. We utilized U.S. Geological Survey 7.5 minute quadrangle maps to create maps that depict the habitat containing the physical and biological features essential to the conservation of the species. One of the features of 7.5 minute quadrangle maps is their accurate depiction of permanent water sources (e.g., springs and wetlands) associated with these populations. The depiction of the subunits is based on:
(1)Map features,
(2)limited visual observations, and
(3)a knowledge of how spring/wetland habitats influence similar *H. paradoxus* populations in other geographic areas within the species' range. With the exception of the narrow dirt roads discussed above, when determining critical habitat boundaries, we made every effort to avoid including (within the boundaries of the map contained within this final rule) developed areas such as buildings, paved areas, and other structures that lack PCEs for *Helianthus paradoxus* . The scale of the maps prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed areas. We are designating critical habitat in areas that we have determined were occupied at the time of listing, and that contain the PCEs laid out in the appropriate quantity and spatial arrangement to support life history functions essential for the conservation of the species. We are also designating critical habitat in areas that were not occupied at the time of listing, but are now occupied. We have determined that these areas are essential to the conservation of the species. Final Critical Habitat Designation The critical habitat areas described below constitute our current best assessment of areas determined to meet the definition of critical habitat for *H. paradoxus* . Table 1 outlines these areas and the threats requiring special management. Table 1.—Threats and Occupancy in Areas Containing Physical and Biological Features Essential to the Conservation of Helianthus paradoxus Geographic area/unit Threats requiring special management or protections Occupied at the time of listing Currently occupied Unit 1. West—Central New Mexico Subunit 1a. Rancho del Padre Spring Cienega Water withdrawal, wetland filling and development, incompatible livestock management Yes Yes. Subunit 1b. Grants Salt Flat Wetland Wetland filling and development, encroachment by nonnative vegetation, incompatible livestock management Yes Yes. Subunit 1c. Pueblo of Laguna Water withdrawal, incompatible livestock management, encroachment by nonnative vegetation Yes Yes. Unit 2. La Joya—La Joya State Wildlife Management Area Encroachment by nonnative vegetation No Yes. Unit 3. Santa Rosa Subunit 3a. Blue Hole Cienega/Blue Hole Fish Hatchery Ponds Encroachment by nonnative vegetation; on City land, wetland filling and recreation use, mowing to edges of ponds, dredging ponds and filling of wetlands Yes Yes. Subunit 3b. Westside Spring Water withdrawal, wetland filling and development, encroachment by nonnative vegetation No Yes. Unit 4. Roswell/Dexter Subunit 4a. Bitter Lake National Wildlife Refuge/ City of Roswell Land Water withdrawal, encroachment by nonnative vegetation; on City land, wetland filling and development, incompatible livestock management Yes Yes. Subunit 4b. Bitter Lake National Wildlife Refuge Farm Water withdrawal and encroachment by nonnative vegetation Yes Yes. Subunit 4c. Oasis Dairy Water withdrawal, wetland filling and development, incompatible livestock management Yes Yes. Subunit 4d. Lea Lake at Bottomless Lakes State Park Campgrounds and human trampling, encroachment by nonnative vegetation Yes Yes. Subunit 4e. Dexter Cienega Water withdrawal, wetland filling and development, incompatible livestock management Yes Yes. Unit 5. West Texas—Diamond Y Spring Water withdrawal, wetland filling and development, incompatible livestock management Yes Yes. The approximate area encompassed within each critical habitat unit is shown in Table 2. Table 2.—Lands Designated as Critical Habitat for Helianthus paradoxus and Land Ownership [Area is displayed in acres (hectares)] Geographic area/unit Land ownership Lands meeting the definition of critical habitat Lands excluded from critical habitat Critical habitat Subunit 1a. Rancho del Padre Spring Cienega Private and Tribal 26
(10)0
(0)26
(10)Subunit 1b. Grants Salt Flat Wetland Private 63
(25)0
(0)63
(25)Subunit 1c. Pueblo of Laguna Tribal ( 1 ) ( 1 ) 0
(0)Unit 2. La Joya—La Joya State Wildlife Management Area State of New Mexico 854
(346)854
(346)0
(0)Subunit 3a. Blue Hole Cienega/Blue Hole Fish Hatchery Ponds State of New Mexico and City of Roswell 134
(54)0
(0)134
(54)Subunit 3b. Westside Spring Private 6
(3)0
(0)6
(3)Subunit 4a. Bitter Lake National Wildlife Refuge/City of Roswell Land U.S. Fish and Wildlife Service and City of Roswell 576
(233)0
(0)576
(233)Subunit 4b. Bitter Lake National Wildlife Refuge Farm U.S. Fish and Wildlife Service 96
(39)0
(0)96
(39)Subunit 4c. Oasis Dairy Private 104
(42)0
(0)104
(42)Subunit 4d. Lea Lake at Bottomless Lakes State Park State of New Mexico 20
(8)0
(0)20
(8)Subunit 4e. Dexter Cienega Private 41
(17)0
(0)41
(17)Unit 5. West Texas—Diamond Y Spring Private 240
(97)0
(0)240
(97)Total Acres (Hectares) 1,305
(528)1 Undefined. Below, we present a brief description of all subunits that meet the definition of critical habitat for *Helianthus paradoxus* (see Criteria Used To Identify Critical Habitat section above). Unit 1: West-Central New Mexico Subunit 1a is located at Rancho del Padre Spring Cienega. This subunit is 26 ac (10 ha) in Cibola County, New Mexico. The subunit consists of an area of Rancho del Padre Spring Cienega from the spring on the south side of I-40 then northeast approximately 0.5 mi (0.8 km) to the Rio San Jose. This population consists of large patches of several thousand plants on areas owned by two private landowners (23 ac (9 ha)) and the Pueblo of Acoma (3 ac (1 ha)). This site was known to be occupied at the time of listing and has been visited or observed from a public right-of-way by species experts during four or more seasons. These experts have found the site occupied by *H. paradoxus* on every visit (Sivinski 2007a, p. 3). This unit is currently occupied, contains all of the PCEs in the appropriate spatial arrangement and quantity, and is threatened by water withdrawal, wetland filling and development, and livestock grazing during *H. paradoxus* 's growing and flowering season. Therefore, special management or protections may be required to minimize these threats. At this time, we are not aware of any management plans that address *H. paradoxus* in this area. Subunit 1b is located at Grants Salt Flat Wetland. This subunit is 63 ac (25 ha) of private land in Cibola County, New Mexico. The subunit consists of an area of wet alkaline playa (i.e., a seasonal, shallow desert lake) between railroad tracks and I-40 and west of Hwy 122 (Road from Interstate to downtown Grants). Playas are nearly level areas at the bottom of undrained desert basins that are sometimes covered in water. This population consists of large patches of several thousand plants mostly on private property. This site was occupied at the time of listing and has been visited or observed from a public right-of-way by species experts during four or more seasons. These experts have found the site occupied by *Helianthus paradoxus* on every visit (Sivinski 2007). This unit is currently occupied, contains all of the PCEs in the appropriate spatial arrangement and quantity, and is threatened by wetland filling and development, encroachment by nonnative vegetation, and livestock management not compatible with *H. paradoxus* physiology. Therefore, special management or protections may be required to minimize these threats. At this time, we are not aware of any management plans that address *H. paradoxus* in this area. Subunit 1c is located at the Pueblo of Laguna. This subunit's acreage is undefined in Valencia County, New Mexico. The subunit consists of an area along the Rio San Jose, South Garcia, New Mexico. At this site, *Helianthus paradoxus* plants are located in patches at springs along the Rio San Jose. Each patch consists of several hundred to several thousand plants, and a few scattered plants grow along the river (Sivinski 1995, p. 4). The entire site belongs to the Pueblo of Laguna. This site was occupied at the time of listing, is currently occupied, contains all of the PCEs in the appropriate spatial arrangement and quantity, and is threatened by water withdrawal, encroachment by nonnative vegetation, and livestock grazing during *H. paradoxus* ' growing and flowering season. The Pueblo has developed a management plan for *H. paradoxus* . On the basis of this plan and our partnership with the Pueblo of Laguna, we are excluding this area from the final critical habitat designation pursuant to section 4(b)(2) of the Act (see “Application of Section 4(b)(2) of the Act” section below for additional information). Unit 2: La Joya Wildlife Management Area Unit 2 is located in the La Joya Wildlife Management Area. This unit is 854 ac (346 ha) in Socorro County, New Mexico. This population is located about 7 mi (11 km) south of Bernardo within Socorro County near the confluence of the Rio Grande and the Rio Puerco. The La Joya population is bounded to the west by I-25 and to the east by the Unit 7 Drain. The north boundary is adjacent to River Mile 126 of the Rio Grande and the south boundary is adjacent to River Mile 123. One of the largest populations of *Helianthus paradoxus* occurs adjacent to the Rio Grande at La Joya. This Rio Grande population consists of 100,000 to 1,000,000 plants and occurs on the La Joya Wildlife Management Area (Service 2005, p. 4). It is within the La Joya Unit of the Ladd S. Gordon Waterfowl Complex. This property is owned by the New Mexico State Game Commission. It is managed by the NMDGF for migratory waterfowl habitat, which is compatible with preservation of wetlands for *H. paradoxus.* We believe this area was not occupied at the time of listing. It was discovered in 2004. This site has been found to be occupied every year since then and represents one of the largest populations of *Helianthus paradoxus* in the range of the species (Hirsch 2006, p. 1). This unit is currently occupied by a stable population (Blue Earth Ecological Consultants, Inc. 2007c, p. 3), contains all of the PCEs in the appropriate spatial arrangement and quantity, and is threatened by encroachment of nonnative vegetation. We have determined this site to be essential to the conservation of the species because it is currently occupied by a stable, very large population of *Helianthus paradoxus* , and is sufficiently distant (over 40 mi (64 km)) from other populations to serve as an additional locality that contributes to the conservation of genetic variation. This population may prevent extirpation of the species resulting from encroachment of nonnative species, degradation of habitat, or a catastrophic event because it is the sole representative located in an area distinct from any other population in the range of the species. As such, it may contain genetic variation not found anywhere else in the range of the species. Because the water source for this population is stable, this population can be expected to persist in very large numbers every year. As described below, we are excluding Unit 2, the La Joya Wildlife Management Area, from the critical habitat designation for *Helianthus paradoxus* (see “Exclusions Under Section 4(b)(2)” section). Unit 3: Santa Rosa Subunit 3a is located at Blue Hole Cienega/Blue Hole Fish Hatchery Ponds. This subunit is 134 ac (54 ha) in Guadalupe County, New Mexico. The Blue Hole Fish Hatchery Ponds population of *Helianthus paradoxus* is part of the same population as and nearly contiguous with the Blue Hole Cienega in Santa Rosa, New Mexico. The Blue Hole Fish Hatchery Ponds population is immediately north of Blue Hole Road and the Blue Hole Cienega is immediately south. This subunit was occupied at the time of listing and has been visited by species experts during four or more seasons. These experts found the subunit to be occupied by *Helianthus paradoxus* on every visit (Sivinski 2007a, p. 2). This subunit is currently occupied (Blue Earth Ecological Consultants, Inc. 2006, p.1), contains all of the PCEs in the appropriate spatial arrangement and quantity, and is threatened by encroachment of nonnative vegetation, wetland filling, and park maintenance activities. Therefore, special management or protections may be required to minimize these threats. At this time, we are not aware of any management plans that address *H. paradoxus* in this area. The part of this population at Blue Hole Cienega consists of 100,000 to 1,000,000 plants and is the largest population of *Helianthus paradoxus* in the upper Pecos River basin. A non-traditional section 6 grant was awarded to the State of New Mexico in 2004 for acquisition of the Blue Hole Cienega, which was finalized in July 2005. At this site, shallow ground water seeps to the surface to create cienega communities. This subunit is currently occupied, contains all of the PCEs in the appropriate spatial arrangement and quantity, and is threatened by encroachment by nonnative vegetation. Therefore, special management or protections may be required to minimize these threats. At this time, we are not aware of any management plans that address *H. paradoxus* in this area. The part of this population at the Blue Hole Fish Hatchery Ponds is owned and administered by the City of Santa Rosa and consists of approximately 1,000 plants. This site is maintained as a recreational area. City of Santa Rosa park maintenance staff have voluntarily stopped mowing and cutting *Helianthus paradoxus* during the months of August and September. An information kiosk on endangered wetland plants is being planned for the bike/foot path along the creek at Blue Hole Park. This subunit was confirmed to be occupied in 2006 (Blue Earth Ecological Consultants, Inc. 2006, p. 4), contains all of the PCEs, and is threatened by encroachment from nonnative vegetation, wetland filling, and park maintenance activities. Therefore, special management or protections may be required to minimize these threats. At this time, we are not aware of any management plans that address *Helianthus paradoxus* in this area. Subunit 3b is located at Westside Spring. This subunit is 6 ac (3 ha) of private land in Santa Rosa, Guadalupe County, New Mexico. The subunit consists of an area along an unnamed spring on the west side of the Pecos River, located to the west of River Road and 1 mi (1.6 km) east of Highway 54. We believe this area was not occupied at the time of listing. It was discovered in 2005, and contained thousands of plants. This site was found to be occupied again in 2006 by a species expert observing from a public right-of-way (Sivinski 2007). This subunit is currently occupied by a stable population, contains all of the PCEs in the appropriate spatial arrangement and quantity, and is threatened by water withdrawal, wetland filling and development, and encroachment of nonnative vegetation. Therefore, special management or protections may be required to minimize these threats. At this time, we are not aware of any management plans that address *Helianthus paradoxus* in this area. We have determined this site to be essential to the conservation of the species because it is currently occupied by a stable, large population of *Helianthus paradoxus* , and is one of only two stable, large populations in Unit 3. This subunit is sufficiently distant (over 40 mi (64 km)) from other populations to serve as an additional locality that contributes to the conservation of genetic variation. This population may prevent extirpation of the species resulting from encroachment of nonnative species, degradation of habitat, or a catastrophic event that could occur to the other subunit in Unit 3. It may also contain genetic variation specific to this Unit. Because the water source for this population is stable and not anticipated to be subject to any known future water withdrawals, this population can be expected to persist in large numbers every year. Unit 4: Roswell/Dexter Subunit 4a includes 576 ac (233 ha) of Bitter Lake National Wildlife Refuge and City of Roswell land located in Chaves County, New Mexico. This subunit is located approximately 5 mi (8 km) northeast of the city of Roswell. One of the largest *Helianthus paradoxus* populations occurs on the Bitter Lake National Wildlife Refuge in New Mexico on Federal lands managed by the Service. Several hundred thousand to a few million plants occur nearly continuously along the shores and small islands of all the artificial lakes in the southern unit of the refuge. Also, a few small patches of plants occur on the west side of Bitter Lake Playa and adjacent springs on the Lost River. This area was occupied at the time of listing and has been visited by species experts during four or more seasons. These experts found the site occupied by *Helianthus paradoxus* on every visit (Ulibarri 2006a, p. 1; Sivinski 2007a, p. 2; Blue Earth Ecological Consultants, Inc. 2007a, p. 3). This area is currently occupied, contains all of the PCEs essential to the conservation of the species, and is threatened by water withdrawal and encroachment of nonnative vegetation. Additional threats occurring on the City of Roswell lands include wetland filling and development, and incompatible livestock management. Therefore, special management or protections may be required to minimize these threats. Subunit 4b includes 96 ac (39 ha) of land within the Bitter Lake National Wildlife Refuge Farm (Refuge Farm). This subunit is located in Chaves County, New Mexico, approximately 5 mi (8 km) east of Roswell on the west side of the Pecos River. Subunit 4b consists of a few large patches with several thousand plants on alkaline seeps behind the dikes on the western edge of the Refuge Farm south of Highway 380. This land is owned and managed by the Service as a grain farm and feeding area for migratory birds. The eastern portion of the Refuge Farm is a marshy spring-seep area that contains a large population of *Helianthus paradoxus* . The wet soils in this population are not cultivated. This area was known to be occupied at the time of listing and has been visited by species experts during four or more seasons. The experts found the site occupied by *Helianthus paradoxus* on every visit (Ulibarri 2006b, p. 1; Sivinski 2007a, p. 2; Blue Earth Ecological Consultants, Inc. 2007a, p. 3). This subunit is currently occupied and contains all of the PCEs in the appropriate spatial arrangement and quantity essential to the conservation of the species. Subunit 4c is located at the Oasis Dairy. This subunit is 104 ac (42 ha) of private land in Chaves County, New Mexico. The subunit is located on the east side of Roswell, west side of Pecos River Valley, approximately 4 mi (7 km) southeast of the Hwy 380 bridge, and beside an unnamed spring approximately 0.6 mi (1 km) west of the Pecos River and 6 mi (9 km) south of Highway 380. This site contains a very large, dense patch of several thousand *Helianthus paradoxus* in a low alkaline sink area approximately 0.5 mi (0.8 km) west of the Pecos River on private land. It also contains a large patch with many thousands of *H. paradoxus* in a low area below a spring, also on private land. This site was occupied at the time of listing and has been visited by species experts during at least three seasons. These experts found the site occupied by *H. paradoxus* on every visit (Sivinski 2007a, p. 3). This subunit is currently occupied, contains all of the PCEs in the appropriate spatial arrangement and quantity, and is threatened by livestock grazing during *H. paradoxus* ' growing and flowering season, water withdrawal, and wetland filling and development. Therefore, special management or protections may be required to minimize these threats. At this time, we are not aware of any management plans that address *H. paradoxus* in this area. Subunit 4d is located at Lea Lake at Bottomless Lakes State Park. This subunit is 20 ac (8 ha) in Chaves County, New Mexico. It includes the wet margins of Lea Lake. This site contains a few thousand plants on the riparian margins of Lea Lake. This land belongs to the State of New Mexico and is managed by the New Mexico Parks and Recreation Division. The lands adjacent to Lea Lake are used as a picnic area and campground for the State Park. This site was occupied at the time of listing and has been visited by species experts during four or more seasons. These experts found the site occupied by *Helianthus paradoxus* on every visit (Sivinski 2007a, p. 3). This subunit is currently occupied (Sivinski 2007a, p. 3; Blue Earth Ecological Consultants, Inc. 2007a, p. 3), contains all of the PCEs in the appropriate spatial arrangement and quantity, and is threatened by encroachment of nonnative vegetation, and recreational and park maintenance activities. Therefore, special management or protections may be required to minimize these threats. At this time, we are not aware of any management plans that address *H. paradoxus* in this area. Subunit 4e is located at Dexter Cienega. This subunit is 41 ac (17 ha) of private land in Chaves County, New Mexico. The subunit is located in a small valley west of the Pecos River, east of the Hagerman Irrigation Canal, and 3 mi (5 km) north of Dexter. This site consists of several thousand plants on private land along a wide, boggy drainage bottom. This site was known to be occupied at the time of listing based upon observations from a public right-of-way by species experts during at least three seasons (Sivinski 2007a, p. 2). This subunit is currently occupied, contains all of the PCEs in the appropriate spatial arrangement and quantity, and is threatened by water withdrawal, wetland filling and development, and livestock grazing during *Helianthus paradoxus* ' growing and flowering season. Therefore, special management or protections may be required to minimize these threats. At this time, we are not aware of any management plans that address *H. paradoxus* in this area. Unit 5: West Texas Unit 5 includes 240 ac (97 ha) of private land located on Diamond Y Spring in Pecos County, Texas. The unit is located approximately 12 mi (20 km) north-northwest of Fort Stockton, Texas. Unit 5 consists of several hundred thousand to one million plants found on The Nature Conservancy's Diamond Y Spring Preserve and a contiguous parcel of private land. This site was occupied at the time of listing and has been visited by species experts during four or more seasons. These experts found the site occupied by *Helianthus paradoxus* on every visit (Poole 2006, p. 2). This unit is currently occupied (Blue Earth Ecological Consultants, Inc. 2007b, p. 3) and contains all of the PCEs essential to the conservation of the species. The land within The Nature Conservancy's Diamond Y Spring Preserve was purchased to protect Diamond Y Spring Preserve and other rare or endangered aquatic species in the Diamond Y Spring system. This habitat is managed for the conservation of such species (Service 2005, p. 12). Diamond Y Spring Preserve has recently expanded from 1,500 ac (607 ha) to 4,000 ac (1,618 ha). However, *Helianthus paradoxus* on the Preserve is threatened by water withdrawal occurring outside the Preserve. On the adjacent private land, *H. paradoxus* is also threatened by water withdrawal, wetland filling and development, and livestock grazing during the growing and flowering season. As a result, special management or protections may be required to minimize these threats. At this time, we are not aware of any completed management plans that address *H. paradoxus* in this area. Effects of Critical Habitat Designation Section 7 Consultation Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to jeopardize the continued existence of a listed species or destroy or adversely modify designated critical habitat. Decisions by the Fifth and Ninth Circuit Court of Appeals have invalidated our definition of “destruction or adverse modification” (50 CFR 402.02) (see *Gifford Pinchot Task Force* v. *U.S. Fish and Wildlife Service* , 378 F.3d 1059 (9th Cir 2004) and *Sierra Club* v. *U.S. Fish and Wildlife Service et al.* , 245 F.3d 434, 442F (5th Cir 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, destruction or adverse modification is determined on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the PCEs to be functionally established) to serve its intended conservation role for the species. Under section 7(a)(2) of the Act, if a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. As a result of this consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:
(1)A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2)A biological opinion for Federal actions that are likely to adversely affect listed species or critical habitat. When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species or destroy or adversely modify critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. We define “Reasonable and prudent alternatives” at 50 CFR 402.02 as alternative actions identified during consultation that: • Can be implemented in a manner consistent with the intended purpose of the action, • Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction, • Are economically and technologically feasible, and • Would, in the Director's opinion, avoid jeopardizing the continued existence of the listed species or destroying or adversely modifying critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable. Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where a new species is listed or critical habitat is subsequently designated that may be affected and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions may affect subsequently listed species or designated critical habitat. Federal activities that may affect *Helianthus paradoxus* or its designated critical habitat will require consultation under section 7(a)(2) of the Act. Activities on State, Tribal, local, or private lands requiring a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 *et seq.* ) or a permit from the Service under section 10(a)(1)(B) of the Act) or involving some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency) are examples of agency actions that may be subject to the section 7 consultation process. Federal actions not affecting listed species or critical habitat, and actions on State, Tribal, local, or private lands that are not federally funded, authorized, or permitted, do not require section 7(a)(2) consultations. Application of the Adverse Modification Standard The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the PCEs to be functionally established) to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical and biological features to an extent that appreciably reduces the conservation value of critical habitat for *Helianthus paradoxus* . Generally, the conservation role of *H. paradoxus* critical habitat units is to support viable core area populations. Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, those activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that, when carried out, funded, or authorized by a Federal agency, may affect critical habitat and, therefore, should result in consultation for *Helianthus paradoxus* include, but are not limited to:
(1)Projects that physically alter permanently saturated saline or alkaline soils (e.g., salt deposits or crusts present) or result in the loss and degradation of *Helianthus paradoxus* habitat. Such activities could include, but are not limited to, drying of wetlands from groundwater depletion, alteration of wetlands (e.g., wetland fills, draining, construction of water impoundments), livestock management not compatible with *H. paradoxus* physiology, clearing, introducing or encouraging the spread of nonnative plants, and recreational use (such as the use of off-road vehicles);
(2)Removing, thinning, or destroying *Helianthus paradoxus* plants. This may occur through plowing, grading, wetland filling and development, road building, burning, mechanical weed control, herbicide application, recreational use, and activities associated with firefighting (e.g., staging areas, surface disturbance); and
(3)Activities that appreciably diminish habitat value or quality through indirect effects (e.g., encroachment of nonnative plants or animals, or fragmentation). All of the units designated as critical habitat, as well as Subunit 1c and Unit 2 that have been excluded under section 4(b)(2) of the Act, contain the physical and biological features essential to the conservation of *Helianthus paradoxus* . The five units are within the geographic range of the species, all except two were known to be occupied by the species at the time of listing (based on observations made within the last 14 seasons (Ulibarri 2006; Kargas 2007; Sivinski 2007)), and all units are currently occupied. Federal agencies already consult with us on activities in areas occupied by the species, and if the species may be affected by the proposed action, the consultation is to ensure that their actions do not jeopardize the continued existence of *H. paradoxus* . We recognize that jeopardy and adverse modification are not equivalent standards. However, for *Helianthus paradoxus* , there is not likely to be any difference in project modifications made under the jeopardy standard and the adverse modification standard. In other words, the material outcomes of consultations completed under the two standards are not likely to differ. Whether consulting under either standard, in order to reach a conclusion of jeopardy or adverse modification, the proposed action would have to make the habitat unsuitable to support plants. *Helianthus paradoxus* is an annual species that re-establishes populations of adult plants each year from seed produced during the previous year or years' reproductive efforts. Roots and seeds are present in the soil year round, even when the plants are not flowering. Because the plant grows in patches and sprouts from seeds left in the ground the year before, harming or killing existing plants would not likely result in jeopardy to the species. The outcome of formal consultation that does not determine jeopardy or adverse modification results in only discretionary conservation recommendations. Critical habitat designation may interject additional considerations for protection of habitat function, suitability, or capability over the long term into section 7 consultations. This could result in additional discretionary conservation recommendations. Alternatively, in order to conclude that a proposed action jeopardizes the continued existence of *Helianthus paradoxus* , an action would have to make the habitat unsuitable within critical habitat units or core areas. Temporary effects to this fairly hardy plant would not have lasting effects at the population level, and likely would not jeopardize the continued existence of the species, as long as the habitat remained suitable. For example, an area that is completely mowed would result in adverse effects to the *H. paradoxus* , but likely would not jeopardize the species because the plant should re-establish from seeds in the soil. If a consultation were to reach the conclusion that the action jeopardized the continued existence of *Helianthus paradoxus* , the reasonable and prudent alternative, which would be required if the project was to proceed, would have to reduce impacts to plants and the biological and physical features of habitat. The reasonable and prudent alternative under a conclusion that the action would result in adverse modification of critical habitat would not likely add any additional requirements because the alternative for jeopardy already considers effects to the biological and physical features of habitat. Consequently, the outcome of section 7 consultations in such cases may not be substantially different with designation of critical habitat compared to existing consultation conducted under the jeopardy standard. Exclusions Application of Section 4(b)(2) of the Act Section 4(b)(2) of the Act states that the Secretary must designate and revise critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give any factor. In the following sections, we address a number of general issues that are relevant to the exclusions we considered. Benefits of Designating Critical Habitat The process of designating critical habitat as described in the Act requires that the Service identify those lands on which are found the physical or biological features essential to the conservation of the species that may require special management considerations or protection, and those areas outside the geographical area occupied by the species at the time of listing that are essential to the conservation of the species. In identifying those lands, the Service must consider the recovery needs of the species, such that, on the basis of the best scientific and commercial data available at the time of designation, the habitat that is identified, if managed, could provide for the survival and recovery of the species. The identification of those areas that are essential for the conservation of the species and can, if managed, provide for the recovery of a species is beneficial. The process of proposing and finalizing a critical habitat rule provides the Service with the opportunity to determine the physical and biological features essential for conservation of the species within the geographical area occupied by the species at the time of listing, as well as to determine other areas essential to the conservation of the species. The designation process includes peer review and public comment on the identified physical and biological features and areas. This process is valuable to land owners and managers in developing conservation management plans for identified areas, as well as any other occupied habitat or suitable habitat that may not have been included in the Service's determination of essential habitat. The consultation provisions under section 7(a)(2) of the Act constitute the regulatory benefits of critical habitat. As discussed above, Federal agencies must consult with the Service on actions that may affect critical habitat and must avoid destroying or adversely modifying critical habitat. Federal agencies must also consult with us on actions that may affect a listed species and refrain from undertaking actions that are likely to jeopardize the continued existence of such species. The analysis of effects to critical habitat is a separate and different analysis from that of the effects to the species. Therefore, the difference in outcomes of these two analyses represents the regulatory benefit of critical habitat. For some species, and in some locations, the outcome of these analyses will be similar, because effects to habitat will often also result in effects to the species. However, the regulatory standard is different, as the jeopardy analysis looks on the action's impact to survival and recovery of the species and the adverse modification analysis looks at the effects to the designated habitat's contribution to conservation of the species. This will, in many instances, lead to different results, and different regulatory requirements. Thus, critical habitat designations may provide greater regulatory benefits to the recovery of a species than would listing alone. There are two limitations to the regulatory effect of critical habitat. First, a section 7(a)(2) consultation is only required where there is a Federal nexus (an action authorized, funded, or carried out by any Federal agency)—if there is no Federal nexus, the critical habitat designation of private lands itself does not restrict any actions that destroy or adversely modify critical habitat. Second, the designation only limits destruction or adverse modification. By its nature, the prohibition on adverse modification is designed to ensure that the conservation role and function of those areas that contain the physical and biological features essential to the conservation of the species or of unoccupied areas that are essential for the conservation of the species are not appreciably reduced. Critical habitat designation alone, however, does not require private property owners to undertake specific steps toward recovery of the species. Once an agency determines that consultation under section 7(a)(2) of the Act is necessary, the process may conclude informally when the Service concurs in writing that the proposed Federal action is not likely to adversely affect critical habitat. However, if the Service determines through informal consultation that adverse impacts are likely to occur, then formal consultation is initiated. Formal consultation concludes with a biological opinion issued by the Service on whether the proposed Federal action is likely to result in destruction or adverse modification of critical habitat. For critical habitat, a biological opinion that concludes in a determination of no destruction or adverse modification may contain discretionary conservation recommendations to minimize adverse effects to the physical and biological features essential to the conservation of the species, but it would not suggest the implementation of any reasonable and prudent alternative. We suggest reasonable and prudent alternatives to the proposed Federal action only when our biological opinion results in an adverse modification conclusion. As stated above, the designation of critical habitat does not require that any management or recovery actions take place on the lands included in the designation. Even in cases where consultation has been initiated under section 7(a)(2) of the Act, the end result of consultation is to avoid jeopardy to the species and/or adverse modification of its critical habitat, but not necessarily to manage critical habitat or institute recovery actions on critical habitat. Conversely, voluntary conservation efforts implemented through management plans institute proactive actions over the lands they encompass and are put in place to remove or reduce known threats to a species or its habitat; therefore, implementing recovery actions. We believe that in many instances the regulatory benefit of critical habitat is low when compared to the conservation benefit that can be achieved through conservation efforts or management plans. The conservation achieved through implementing Habitat Conservation Plans
(HCPs)under section 10 of the Act or other habitat management plans is typically greater than would be achieved through multiple site-by-site, project-by-project, section 7 consultations involving consideration of critical habitat. Management plans commit resources to implement long-term management and protection to particular habitat for at least one and possibly other listed or sensitive species. Section 7 consultations only commit Federal agencies to prevent adverse modification to critical habitat caused by the particular project, and they are not committed to provide conservation or long-term benefits to areas not affected by the proposed project. Thus, implementation of any HCP or management plan that incorporates enhancement or recovery as the management standard may often provide as much or more benefit than a consultation for critical habitat designation. Another benefit of including lands in critical habitat is that designation of critical habitat serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by clearly delineating areas of high conservation value for *Helianthus paradoxus* . In general, critical habitat designation always has educational benefits; however, in some cases, they may be redundant with other educational effects. For example, HCPs have significant public input and may largely duplicate the educational benefits of a critical habitat designation. Including lands in critical habitat also would inform State agencies and local governments about areas that could be conserved under State laws or local ordinances. Recovery Benefits The process of designating critical habitat as described in the Act requires that the Service identify those lands on which are found the physical or biological features essential to the conservation of the species which may require special management consideration or protections. In identifying those lands, the Service must consider the recovery needs of the species, such that the habitat that is identified, if managed, could provide for the survival and recovery of the species. Furthermore, once critical habitat has been designated, Federal agencies must consult with the Service under section 7(a)(2) of the Act to ensure that their actions will not adversely modify designated critical habitat or jeopardize the continued existence of the species. As noted in the Ninth Circuit's * Gifford Pinchot * decision, the Court ruled that the jeopardy and adverse modification standards are distinct, and that adverse modification evaluations require consideration of impacts to the recovery of species. Thus, through the section 7(a)(2) consultation process, critical habitat designations provide recovery benefits to species by ensuring that Federal actions will not destroy or adversely modify designated critical habitat. It is beneficial to identify those lands that are necessary for the conservation of the species and that, if managed appropriately, would further recovery measures for the species. The process of proposing and finalizing a critical habitat rule provides the Service with the opportunity to determine lands essential for conservation as well as identify the physical and biological features essential for conservation on those lands. The designation process includes peer review and public comment on the identified features and lands. This process is valuable to landowners and managers in developing habitat management plans for identified lands, as well as any other occupied habitat or suitable habitat that may not have been included in the Service's determination of essential habitat. However, the designation of critical habitat does not require that any management or recovery actions take place on the lands included in the designation. Even in cases where consultation has been initiated under section 7(a)(2) of the Act, the end result of consultation is to avoid jeopardy to the species and adverse modification of its critical habitat, but not specifically to manage remaining lands or institute recovery actions on remaining lands. Conversely, management plans institute proactive actions over the lands they encompass intentionally to remove or reduce known threats to a species or its habitat and, therefore, implement recovery actions. We believe that the conservation of a species and its habitat that could be achieved through the designation of critical habitat, in some cases, is less than the conservation that could be achieved through the implementation of a management plan that includes species-specific provisions and considers enhancement or recovery of listed species as the management standard over the same lands. Consequently, implementation of an HCP or management plan that considers enhancement or recovery as the management standard will often provide as much or more benefit than a consultation for critical habitat designation conducted under the standards required by the Ninth Circuit in the *Gifford Pinchot* decision. Conservation Partnerships on Non-Federal Lands Most federally listed species in the United States will not recover without the cooperation of non-Federal landowners. More than 60 percent of the United States is privately owned (National Wilderness Institute 1995, p. 2), and at least 80 percent of endangered or threatened species occur either partially or solely on private lands (Crouse et al. 2002, p. 720). Stein et al. (1995, p. 400) found that only about 12 percent of listed species were found almost exclusively on Federal lands (90 to 100 percent of their known occurrences restricted to Federal lands) and that 50 percent of federally listed species are not known to occur on Federal lands at all. Given the distribution of listed species with respect to land ownership, conservation of listed species in many parts of the United States is dependent upon working partnerships with a wide variety of entities and the voluntary cooperation of many non-Federal landowners (Wilcove and Chen 1998, p. 1407; Crouse et al. 2002, p. 720; James 2002, p. 271). Building partnerships and promoting voluntary cooperation of landowners is essential to understanding the status of species on non-Federal lands and is necessary to implement recovery actions such as reintroducing listed species, habitat restoration, and habitat protection. Many non-Federal landowners derive satisfaction in contributing to endangered species recovery. The Service promotes these private-sector efforts through the Department of the Interior's Cooperative Conservation philosophy. Conservation agreements with non-Federal landowners (HCPs, safe harbor agreements, other conservation agreements, easements, and State and local regulations) enhance species conservation by extending species protections beyond those available through section 7 consultations. In the past decade, we have encouraged non-Federal landowners to enter into conservation agreements, based on a view that we can achieve greater species conservation on non-Federal land through such partnerships than we can through regulatory methods (61 FR 63854; December 2, 1996). Many private landowners, however, are wary of the possible consequences of encouraging endangered species to their property, and there is mounting evidence that some regulatory actions by the Federal Government, while well-intentioned and required by law, can (under certain circumstances) have unintended negative consequences for the conservation of species on private lands (Wilcove et al. 1996, pp. 5-6; Bean 2002, pp. 2-3; Conner and Mathews 2002, pp. 1-2; James 2002, pp. 270-271; Koch 2002, pp. 2-3; Brook et al. 2003, pp. 1639-1643). Many landowners fear a decline in their property value due to real or perceived restrictions on land-use options where threatened or endangered species are found. Consequently, harboring endangered species is viewed by many landowners as a liability. This perception results in anti-conservation incentives because maintaining habitats that harbor endangered species represents a risk to future economic opportunities (Main et al. 1999, pp. 1264-1265; Brook et al. 2003, pp. 1644-1648). According to some researchers, the designation of critical habitat on private lands significantly reduces the likelihood that landowners will support and carry out conservation actions (Main et al. 1999, p. 1263; Bean 2002, p. 2; Brook et al. 2003, pp. 1644-1648). The magnitude of this negative outcome is greatly amplified in situations where active management measures (such as reintroduction, fire management, and control of invasive species) are necessary for species conservation (Bean 2002, pp. 3-4). The Service believes that the judicious exclusion of specific areas of non-federally owned lands from critical habitat designations can contribute to species recovery and provide a superior level of conservation than critical habitat alone. The purpose of designating critical habitat is to contribute to the conservation of threatened and endangered species and the ecosystems upon which they depend. The outcome of the designation, triggering regulatory requirements for actions funded, authorized, or carried out by Federal agencies under section 7(a)(2) of the Act, can sometimes be counterproductive to its intended purpose on non-Federal lands. Thus, the benefits of excluding areas that are covered by partnerships or voluntary conservation efforts can often be high. Benefits of Excluding Lands With HCPs or Other Management Plans From Critical Habitat The benefits of excluding lands with HCPs or other management plans from critical habitat designation include relieving landowners, communities, and counties of any additional regulatory burden that might be imposed by a critical habitat designation. Most HCPs and other conservation plans take many years to develop and, upon completion, are consistent with the recovery objectives for listed species that are covered within the plan area. Many conservation plans also provide conservation benefits to unlisted sensitive species. Imposing an additional regulatory review as a result of the designation of critical habitat may undermine these conservation efforts and partnerships designed to proactively protect species to ensure that listing under the Act will not be necessary. Our experience in implementing the Act has found that designation of critical habitat within the boundaries of management plans that provide conservation measures for a species is a disincentive to those entities currently developing these plans or contemplating them in the future, because one of the incentives for undertaking conservation is greater ease of permitting where listed species are affected. Addition of a new regulatory requirement would remove a significant incentive for undertaking the time and expense of management planning. In fact, designating critical habitat in areas covered by a pending HCP or conservation plan could result in the loss of some species' benefits if participants abandon the planning process, in part because of the strength of the perceived additional regulatory compliance that such designation would entail. The time and cost of regulatory compliance for a critical habitat designation do not have to be quantified for them to be perceived as additional Federal regulatory burden sufficient to discourage continued participation in plans targeting listed species' conservation. A related benefit of excluding lands covered by approved HCPs or other management plans from critical habitat designation is the unhindered, continued ability it gives us to seek new partnerships with future plan participants, including States, Counties, local jurisdictions, conservation organizations, and private landowners, which together can implement conservation actions that we would be unable to accomplish otherwise. If lands within approved management plan areas are designated as critical habitat, it would likely have a negative effect on our ability to establish new partnerships to develop these plans, particularly plans that address landscape-level conservation of species and habitats. By preemptively excluding these lands, we preserve our current partnerships and encourage additional conservation actions in the future. Furthermore, HCP applications require consultation, which would review the effects of all HCP-covered activities that might adversely impact the species under a jeopardy standard, including possibly significant habitat modification (see definition of “harm” at 50 CFR 17.3), even without the critical habitat designation. In addition, all other Federal actions that may affect the listed species would still require consultation under section 7(a)(2) of the Act, and we would review these actions for possibly significant habitat modification in accordance with the definition of harm referenced above. The information provided in the previous section applies to all the following discussions of benefits of inclusion or exclusion of critical habitat. Exclusions Under Section 4(b)(2) of the Act When performing the required analysis under section 4(b)(2) of the Act, the existence of a management plan (HCPs as well as other types) that considers enhancement or recovery of listed species as its management standard is relevant to our weighing of the benefits of inclusion of a particular area in the critical habitat designation. We considered the following criteria in evaluating the management and protection provided by such plans:
(1)The plan is complete and provides for the conservation and protection of the physical and biological features essential to the conservation of the species;
(2)There is a reasonable expectation that the conservation management strategies and actions will be implemented for the foreseeable future, based on past practices, written guidance, or regulations; and
(3)The plan provides conservation strategies and measures consistent with currently accepted principles of conservation biology. Discussions of Subunit 1c, the Pueblo of Laguna, and Unit 2, the La Joya Wildlife Management Area, under the provisions in section 4(b)(2) of the Act are provided below. La Joya Wildlife Management Area During the first comment period, which closed on May 29, 2007 (72 FR 14328), the NMDGF requested technical assistance on the development of a habitat management plan for *Helianthus paradoxus* . During the second comment period, which closed on January 10, 2008, we received the final Pecos sunflower ( *Helianthus paradoxus* ) Habitat Management Plan on the La Joya Wildlife Management Area from the NMDGF. The NMDGF finalized the habitat management plan in order to preclude the designation of critical habitat on their lands (NMDGF 2008, p. 1). The purpose of the management plan is to support conservation of the species on the La Joya Wildlife Management Area by:
(1)Annually controlling invasive species;
(2)protecting the natural spring in Unit 5 from motorized vehicles and heavy equipment;
(3)monitoring core populations by digitizing these areas annually;
(4)conserving *H. paradoxus* by adjusting invasive species treatment area boundaries; and
(5)restoring native habitat through revegetation. The habitat management plan was developed in accordance with the recovery plan for *Helianthus paradoxus* (NMDGF 2008, p. 1). The recovery plan identifies that the recovery objective for *H. paradoxus* is to protect and manage significant populations. The recovery plan identified the La Joya population as a core conservation area that would ensure the survival of the species (Service 2006, p. 17). Long-term protection can be provided by purchasing populations and implementing appropriate management plans for *H. paradoxus* (Service 2006, p. 15-16). The recovery plan outlines that these management plans should reduce the identified threats to *H. paradoxus* (e.g., controlling invasive plants, identifying and restricting incompatible land uses, and ensuring spring flows). We find that the management plan developed by NMDGF is consistent with the tenets identified in the recovery plan for *H. paradoxus* . Therefore, we conclude that the plan is complete and provides for the conservation and protection of the physical and biological features essential to the conservation of the species. Benefits of Inclusion The benefits of including lands in critical habitat can be regulatory, educational, or to aid in recovery of species as generally discussed in the “Benefits of Designating Critical Habitat” section. Few additional benefits would be derived from including the La Joya Wildlife Management Area in a critical habitat designation for *Helianthus paradoxus* beyond what will be achieved through the implementation of NMDGF's management plan. The principal benefit of designating critical habitat in that area would be that activities that affect *H. paradoxus* would require consultation under section 7 of the Act. Consultation would ensure that a proposed action does not result in the destruction or adverse modification of critical habitat. Based upon our analysis conducted within the environmental assessment and discussion in the “Application of the Adverse Modification Standard” section, we conclude that few regulatory benefits to *Helianthus paradoxus* would be gained from a designation of critical habitat on these lands because the outcomes of consultations conducted under the jeopardy and adverse modification standards for this species would not be materially different (Service 2008, pp. 23, 34). The most likely Federal nexus would occur due to invasive species removal associated with management activities, funded in part, through the Service's Federal Assistance Division. A consultation related to invasive species removal would likely result in a conservation recommendation to avoid core stands of *H. paradoxus* when applying herbicides or that backpack sprayers be utilized to target herbicide application. However, these conservation recommendations are already being implemented by NMDGF during invasive species removal. Therefore, designation of critical habitat would provide little conservation benefit as it related to the control of invasive species and the management of *H. paradoxus* . To date, there have been no consultations that addressed *Helianthus paradoxus* or its habitat along the Rio Grande. Nevertheless, the economic analysis found that, over the next 20 years, there may be two future intra-Service formal consultations associated with projects to remove non-native species, but that no informal consultations were likely. These consultations would occur regardless of whether critical habitat is designated, because the species occupies the area. Section 7 consultation under the jeopardy standards will still be required for activities affecting *H. paradoxus* . Beyond these, we do not expect any additional consultations. For these reasons, we find the consultation process for critical habitat is unlikely to result in additional protections for the species. Consequently, there is little regulatory benefit of a critical habitat designation in this area. The educational benefits of critical habitat in this case are relatively low for the La Joya Wildlife Management Area, because the recovery plan has already identified and discussed its importance to the conservation of *Helianthus paradoxus* (Service 2005). The NMDGF is well aware of where *H. paradoxus* occurs, due to the recovery plan (Service 2005) and their recent efforts to implement conservation actions for the species (NMDGF 2008, p. 5). Therefore, we believe that the educational benefits that inclusion of these lands would provide for *H. paradoxus* are relatively low. Further, the educational benefits of critical habitat designation have already been achieved through the overall designation process and the notice and public comment period, and will occur whether or not this unit is designated. Under the *Gifford Pinchot* decision, critical habitat designations may provide greater benefits to the recovery of a species than was previously believed. However, the protection provided is still a limitation on the adverse effects that may occur to designated critical habitat, as opposed to a requirement to affirmatively provide a conservation benefit on those lands. As outlined above and in the environmental assessment, we have had no consultations for actions that may affect *Helianthus paradoxus* on this land or other areas along the Rio Grande. However, the NMDGF has committed to definite conservation actions on lands covered under the management plan. Therefore, we believe the benefits to the recovery of *H. paradoxus* , based on inclusion of these lands in critical habitat, are low. For these reasons, we find that because of the management plan with the NMDGF, the benefits of including the La Joya Wildlife Management Area as critical habitat are low. Since the Act's protection of plants on private lands is minimal, the Service believes that it will achieve more conservation from this management plan than it would from a critical habitat designation. Benefits of Exclusion Implementation of the management plan will provide benefits to *Helianthus paradoxus* as discussed earlier. The NMDGF has committed to, and has already begun to, manage *H. paradoxus* and its habitat through controlling invasive species, protection of natural springs habitat, monitoring *H. paradoxus* , and native species restoration activities. We expect the management plan will provide a significant conservation benefit to *H. paradoxus* populations. The development of a voluntary management plan for the lands within Unit 2 was a collaborative effort between the Service and the NMDGF that promoted a positive relationship that continues today. The Service believes that exclusion of Unit 2 will allow us to continue working with NMDGF in a spirit of cooperation and partnership. The management plan identifies that the NMDGF has a common interest in promoting healthy ecosystems and in protecting populations and habitat of *Helianthus paradoxus* . While the area is managed by the State of New Mexico, it was purchased using Federal funds. In the final economic analysis we found that approximately 75 percent of the annual budget for the area is reimbursed to the State through Federal Pittman-Roberts funds (Service 2008, p. 3-12). Thus, there is a reasonable expectation that the conservation management strategies and actions will continue to be implemented for *H. paradoxus* in the foreseeable future. In our final economic analysis, we found that, while many of the ongoing activities at La Joya benefit *Helianthus paradoxus* , including non-native species removal activities, management of the area for *H. paradoxus* will increase the cost of nonnative species removal from approximately $200 per acre for aerial spraying to $1,000 to $1,500 for manual/mechanical “chop and pull” treatments (Service 2008, p. 3-13). The NMDGF plans on treating approximately 1,500 acres for non-natives in the next few years at La Joya. As a result, an increased cost of $800 to $1,200 per acre, or $0.6 million to $1.1 million across the area for non-native species removal efforts are expected over the next 20 years (undiscounted), or $0.6 to $0.9 million, discounted at seven percent. Because La Joya will implement non-native species removal in this way whether they are designated as critical habitat or not, these impacts are considered baseline costs. Thus, exclusion of these lands from critical habitat would not relieve the NMDGF of the higher cost of managing non-native species in a way that limits impacts to *H. paradoxus* . Nevertheless, because we have already come to agreement about how to manage *H. paradoxus* , the additional effort involved in consultations or other regulatory actions with respect to this site would be unnecessary. As discussed in the “Benefits of Excluding Lands With HCPs or Other Management Plans From Critical Habitat” section, imposing an additional regulatory review as a result of the designation of critical habitat may undermine conservation efforts and partnerships. Addition of such a regulatory requirement would remove a significant incentive for undertaking the time and expense of management planning. Thus, the designation of critical habitat may be counterproductive because it will strain the working relationship we share with NMDGF and may hinder future cooperative conservation projects. Benefits of Exclusion Outweigh the Benefits of Inclusion The NMDGF committed to the management plan in recognition that the plan may be used to exclude La Joya Wildlife Management Area. We believe the proactive management of *Helianthus paradoxus* provided under the plan provides significant benefits to this species. In contrast, the benefits of inclusion are, as noted above, likely to be minor because of the lack of any consultations in the Rio Grande since the listing of the species. Still, even in situations where consultation might occur, it would be unlikely to result in proactive management of the species and its habitat. As detailed above, even if the La Joya Wildlife Management Area is excluded from the designation, this area will provide a conservation benefit to *Helianthus paradoxus* by following the tenets of developing and implementing management plans, as described in the Recovery Plan (Service 2005, p. 20). As such, we find that the management plan provides conservation strategies and measures consistent with currently accepted principles of conservation biology. In conclusion, we have evaluated the potential regulatory, educational, and recovery benefits that would result from the inclusion of Unit 2. In receiving the final *Helianthus paradoxus* Habitat Management Plan from NMDGF during the second comment period, we have weighed these benefits of including Unit 2 in the critical habitat designation against the more tangible conservation benefits provided by the management plan, which would occur from excluding Unit 2 from the designation. Based on *the above analysis,* in the development of our final determination of critical habitat for *H. paradoxus* , we are excluding Unit 2 under section 4(b)(2) of the Act. Further, we believe that this exclusion is a logical outgrowth from the proposed designation due to public comments and information received on that proposal. Exclusion Will Not Result in Extinction of the Species We have determined that the exclusion of Unit 2 that totals 854 ac (346 ha) from the final designation of critical habitat will not result in the extinction of *Helianthus paradoxus* . Overall, this area represents less than 15 percent of the proposed designation. In addition, because the 854 ac (346 ha) we are excluding from critical habitat are occupied by *H. paradoxus* , consultations under section 7 of the Act that involve these lands will occur even in the absence of their designation as critical habitat. Application of the jeopardy standard of section 7 of the Act also provides assurances that the species will not go extinct in the absence of this designation. In summary, the benefits of including the La Joya Wildlife Management Area in the critical habitat designation are few. The benefits of excluding this area from being designated as critical habitat for *Helianthus paradoxus* are greater, and include affirmative actions for controlling invasive species, protection of natural springs habitat, monitoring *H. paradoxus* , and restoration activities. We find that the benefits of excluding this area from critical habitat designation outweigh the benefits of including this area. Relationship of Critical Habitat to Tribal Lands In accordance with the Secretarial Order 3206, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” (June 5, 1997); the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951); Executive Order 13175; and the relevant provision of the Departmental Manual of the Department of the Interior (512 DM 2), we believe that fish, wildlife, and other natural resources on tribal lands are better managed under tribal authorities, policies, and programs than through Federal regulation wherever possible and practicable. Based on this philosophy, we believe that, in many cases, designation of tribal lands as critical habitat provides very little additional benefit to threatened and endangered species. Conversely, such designation is often viewed by tribes as an unwanted intrusion into tribal self governance, thus compromising the government-to-government relationship essential to achieving our mutual goals of managing for healthy ecosystems upon which the viability of threatened and endangered species populations depend. In our critical habitat designations, we use the provision outlined in section 4(b)(2) of the Act to evaluate those specific areas that contain the physical and biological features essential to the conservation of the species to determine which areas to propose and subsequently finalize (i.e., designate) as critical habitat. Pueblo of Laguna The Pueblo of Laguna has lands containing physical and biological features essential to the conservation of *Helianthus paradoxus* . In making our final decision with regard to Pueblo lands, we considered several factors, including our relationship with the Pueblo and the management plan that was developed for the conservation of *H. paradoxus* on their lands. On August 2, 2004, in a letter to the New Mexico Ecological Services Field Office from Pueblo of Laguna Governor Johnson, we learned that the Pueblo was developing a management plan for *H. paradoxus* and has been managing Pueblo land consistent with the protection and recovery of the sunflower. We received a draft management plan from the Pueblo in February 2007. The draft management plan was the basis for continued discussions with the Pueblo. Subsequently, we received the Pecos Sunflower ( *Helianthus paradoxus* ) Management Plan (Resolution # 01-08), Pueblo of Laguna, 2008, during the public comment period on the proposed critical habitat for *H. paradoxus* , which closed on January 10, 2008. The Management Plan and corresponding Resolution (No. 01-08) was adopted and approved by the Pueblo of Laguna Staff Officers in January 2008 (Laguna 2008). The resolution that was passed for the management plan demonstrates the Pueblo's sovereign status while providing for special management protections and conservation of *H. paradoxus* . The Pueblo's management plan includes the following tasks and protective measures:
(1)Surveys and monitoring of *H. paradoxus* ;
(2)riparian restoration;
(3)controlling competition of non-native species;
(4)limiting access into stands of *H. paradoxus* through a recently adopted trespass ordinance; and
(5)appropriate management of livestock. We find that the Pueblo of Laguna management plan provides significant conservation benefit to *H. paradoxus* . Therefore, we find that the plan is complete, provides for the conservation and protection of the physical and biological features essential to the conservation of the species, and is consistent with currently accepted tenets of conservation biology. The Pueblo of Laguna intends to share monitoring and survey information with us (Laguna 2008, p. 10). The Pueblo of Laguna has also acquired funding from a grant through the New Mexico Environment Department to proactively manage areas that currently contain *Helianthus paradoxus* . Moreover, in 2006, we funded a Tribal Wildlife Grant for the Pueblo of Laguna (2006, p. 42). This grant provided funding to improve aquatic habitat on their lands by protecting, conserving, and improving valuable riparian systems and natural spring sources on the Pueblo. The Pueblo of Laguna identified that they will continue to seek additional funds through the Service's Partners for Fish and Wildlife Program, Tribal Wildlife Grants, and Tribal Landowner Incentive Programs (Laguna 2008, p. 12). We believe that the resolution passed by the Pueblo of Laguna and the development of the Pueblo of Laguna management plan demonstrate that the management plan will be implemented. For these reasons, there is a reasonable expectation that the conservation management strategies and actions will be implemented for *H. paradoxus* for the foreseeable future. The management plan for *Helianthus paradoxus* also demonstrates the voluntary cooperative working relationship we share. This relationship will continue to enable us to implement a natural resource program of mutual interest for the benefit of *H. paradoxus* . Under this management plan, *H. paradoxus* will benefit from monitoring, restoration, enhancement, and survey efforts. The Service has also determined that exclusion would not result in the extinction of the species. As discussed below, we have considered the benefits to *H. paradoxus* from this management plan. We have also taken into account the potential adverse impact to this species from designation of critical habitat on their lands. Benefits of Inclusion Few additional benefits would be derived from including the Pueblo of Laguna in a critical habitat designation for *Helianthus paradoxus* beyond what will be achieved through the implementation of their management plan. The principal benefit of any designated critical habitat is that activities in and affecting such habitat require consultation under section 7 of the Act. Such consultation would ensure that adequate protection is provided to avoid destruction or adverse modification of critical habitat. Based upon our analysis conducted within the environmental assessment and discussed in the “Application of the Adverse Modification Standard” section, we conclude that few regulatory benefits to *H. paradoxus* would be gained from a designation of critical habitat on the Pueblo's lands because the outcomes of consultations conducted under the jeopardy and adverse modification standards for this species would not be materially different (Service 2008, pp. 23, 34). The economic analysis estimated that, over the next 20 years, one formal consultation associated with livestock grazing activities may occur, but that no informal consultations were likely. This consultation would occur regardless of whether critical habitat is designated, because the species occupies the area. Section 7 consultations under the jeopardy standard will still be required for activities affecting *H. paradoxus* . Beyond this formal consultation, we do not expect any additional consultations. For these reasons, we find the consultation process for critical habitat is unlikely to result in additional protections for the species. Although we believe the likelihood of additional consultations is small, consultation requirements under section 7 of the Act would be triggered as a result of the funding or permitting processes administered by the Federal agency involved. The benefit of critical habitat designation would ensure that any actions funded or permitted by a Federal agency would not likely destroy or adversely modify any critical habitat. Without critical habitat, projects would still trigger consultation requirements under the Act because *Helianthus paradoxus* is currently present on the Pueblo. Given that no consultations have occurred with the Bureau of Indian Affairs
(BIA)or the Pueblo since *H. paradoxus* was listed as endangered in 1999 and the overall low likelihood of Federal projects being proposed in this area, the Service believes there is almost no regulatory benefit of a critical habitat designation in this area. Consequently, the designation of critical habitat in these areas would provide minimal, if any, regulatory benefit to the species. Another possible benefit is that the designation of critical habitat can help to educate the public regarding potential conservation value of an area, and may focus efforts by clearly delineating areas of high conservation value for the species. Any information about *Helianthus paradoxus* and its habitat that reaches a wide audience, including other parties engaged in conservation activities, would be considered valuable. As noted, we recently funded the Pueblo of Laguna to work with the Service to address riparian systems and natural spring sources, which would benefit *H. paradoxus* . The Tribal Wildlife Grant also included an objective to promote environmental education and public awareness by creating a quarterly newsletter and coordinating educational programs at schools, villages, and events (Service 2006, p. 41). Additionally, we anticipate that the Tribal Wildlife Grant and the management plan for *H. paradoxus* will provide for the timely exchange of management and monitoring information. The Pueblo is already working with the Service to address the habitat needs of the species. Further, this area was included in the proposed designation, which itself has reached a wide audience, and has thus provided information to the broader public about the conservation value of this area. Thus, the educational benefits that might follow critical habitat designation, such as providing information to the BIA, U.S. Army Corps of Engineers, or the Pueblo on the area that is important for the long-term survival and conservation of the species, have already been provided by proposing this area as critical habitat. Therefore, the educational benefits important for the long-term survival and conservation of *H. paradoxus* are being realized. Educational benefits will continue on these lands if they are excluded from the designation, because the Tribal Wildlife Grant and the management plan already recognize the importance of this area to riparian systems and natural spring sources and *H. paradoxus* . For these reasons, we believe that designation of critical habitat would have few additional benefits beyond those that will result from continued consultation under the jeopardy standard. Benefits of Exclusion The benefits of excluding the Pueblo of Laguna from designated critical habitat are more significant. We conclude that not designating critical habitat on the Pueblo would have substantial benefits including:
(1)The advancement of our Federal Trust obligations and our deference to the Pueblo to develop and implement tribal conservation and natural resource management plans for their lands and resources, which includes *Helianthus paradoxus;*
(2)the maintenance of effective working relationships to promote the conservation of *H. paradoxus* and its habitat;
(3)the allowance for timely exchange of management and monitoring information;
(4)the continued provision of conservation benefits to riparian systems and natural spring sources and *H. paradoxus* and its habitat that might not otherwise occur; and
(5)the reduction or elimination of administrative and/or project modification costs as analyzed in the economic analysis. As noted above, we worked with the Pueblo of Laguna to provide technical assistance on the conservation or management of the species on their lands. We have also provided funding through our Tribal Wildlife Grant program for them to manage their natural resources. As such, we established an effective working relationship with the Pueblo of Laguna. As part of our relationship, we provided technical assistance to the Pueblo to develop voluntary measures to conserve *Helianthus paradoxus* and its habitat on their lands. These voluntary measures are contained within the management plan that we have in our administrative record for this decision (see discussion above). These proactive actions were conducted in accordance with Secretarial Order 3206, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” (June 5, 1997); the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951); Executive Order 13175; and the relevant provision of the Departmental Manual of the Department of the Interior (512 DM 2). We believe that the Pueblo of Laguna should be the governmental entity to manage and promote the conservation of *H. paradoxus* on their lands. We recognize and endorse their fundamental right to provide for tribal resource management activities, including those relating to riparian systems and natural spring sources and *H. paradoxus.* Much of our discussions centered on providing technical assistance to the Pueblo to develop, continue, or expand natural resource programs such that the designation of critical habitat for *H. paradoxus* would likely be unnecessary on Pueblo lands. The designation of critical habitat would be expected to adversely impact our working relationship with the Pueblo of Laguna. Critical habitat would be viewed as an intrusion on their sovereign abilities to manage natural resources in accordance with their own policies, customs, and laws. To this end, we found that the Pueblo would prefer to work with us on a Government-to-Government basis. For these reasons, we believe that our working relationship with the Pueblo of Laguna would be better maintained if the Pueblo of Laguna lands are excluded from the designation of critical for *H. paradoxus.* We view this as a substantial benefit. Benefits of Exclusion Outweigh the Benefits of Inclusion In summary, the benefits of including the Pueblo of Laguna in the critical habitat designation are few. The benefits of excluding this area from being designated as critical habitat for *Helianthus paradoxus* are more significant, and include encouraging the continued development and implementation of management measures such as monitoring, riparian restoration, controlling competition of non-native species, limiting access into stands of *H. paradoxus,* and appropriate management of livestock. The exclusion of this area from the designation will allow the Pueblo to manage its natural resources to benefit *H. paradoxus,* without the perception of Federal Government intrusion. This philosophy is also consistent with our published policies on Native American natural resource management. We find that the benefits of excluding this area from critical habitat designation outweigh the benefits of including this area. Exclusion Will Not Result in Extinction of the Species As noted above, the Service may exclude areas from the critical habitat designation only if it is determined, “based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will not result in the extinction of the species concerned.” Here, we have determined that exclusion of the Pueblo of Laguna from the critical habitat designation will not result in the extinction of *Helianthus paradoxus.* First, activities on the Pueblo that may affect *H. paradoxus* will still require consultation under section 7 of the Act. Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species. Therefore, even without critical habitat designation on these lands, activities that occur on these lands cannot jeopardize the continued existence of *H. paradoxus.* Second, the Pueblo has committed to protecting and managing according to their management plan and natural resource management objectives. In short, the Pueblo of Laguna has committed to greater conservation measures on this area than would result from the designation of critical habitat. With these measures, we have concluded that this exclusion from critical habitat will not result in the extinction of *H. paradoxus,* because the management plan generally follows the tenets of developing and implementing similar plans, as identified in the Recovery Plan. Accordingly, we have determined that the Pueblo of Laguna should be excluded under subsection 4(b)(2) of the Act because the benefits of exclusion outweigh the benefits of inclusion and will not cause the extinction of the species. The Service believes that by not designating critical habitat on the Pueblo of Laguna where the management plan and other conservation activities will be implemented, we fulfill the Service's responsibilities to the Tribes (e.g., Secretarial Order 3206, the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments”, Executive Order 13175, and the relevant provision of the 512 DM 2), we properly honor Tribal sovereignty, and we ultimately provide conservation benefits to *Helianthus paradoxus.* For all of these reasons, we are excluding from this critical habitat designation the Pueblo of Laguna. Pueblo of Acoma The Pueblo of Acoma has lands containing physical and biological features essential to the conservation of *Helianthus paradoxus.* In making our decision on the final critical habitat designation with regard to these lands, we considered several factors, including our relationship with the Pueblo and whether a management plan has been developed for the conservation of *H. paradoxus* on their lands. Currently, we are not aware of a management plan for *H. paradoxus* for this area. We met with the Pueblo of Acoma on July 2, 2007, and offered technical assistance if they chose to develop a management plan for the species. We repeatedly contacted the Pueblo during summer and fall 2007, but they did not express interest in developing a management plan. The Pueblo of Acoma submitted a letter on January 9, 2008, during the comment period, indicating that they opposed the designation of critical habitat on their lands. However, the Pueblo of Acoma did not pursue the development of a management plan that addresses *Helianthus paradoxus* in this area. Still, they indicated that they may request technical assistance on the development of a Tribal Management Plan at some point in the future. Although we have funded big game management activities in the past on the Pueblo of Acoma (Service 2006, p. 41), we have nothing in our administrative record that demonstrates a cooperative working relationship for *H. paradoxus* on their lands. As a result, Pueblo of Acoma lands have not been excluded from the final designation and are designated as critical habitat. Economic Analysis Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific information available and to consider the economic and other relevant impacts of designating a particular area as critical habitat. Section 4(b)(2) of the Act allows the Secretary to exclude areas from critical habitat for economic reasons if the Secretary determines that the benefits of such exclusion exceed the benefits of designating the area as critical habitat. However, this exclusion cannot occur if it will result in the extinction of the species concerned. Following the publication of the proposed critical habitat designation, we conducted an economic analysis to estimate the potential economic effects of the designation. The draft analysis (dated October 29, 2007) was made available for public review on December 11, 2007 (72 FR 70269). We accepted comments on the draft analysis until January 10, 2008. Following the close of the comment period, a final analysis of the potential economic effects of the designation was developed taking into consideration the public comments and any new information. The economic analysis considers the potential economic effects of all actions relating to the conservation of *Helianthus paradoxus,* including costs associated with sections 4, 7, and 10 of the Act, as well as those attributable to designating critical habitat. It further considers the economic effects of protective measures taken as a result of other Federal, State, and local laws that aid habitat conservation for *H. paradoxus* in areas containing the features essential to the conservation of the species. The analysis considers both economic efficiency and distributional effects. In the case of habitat conservation, efficiency effects generally reflect the “opportunity costs” associated with the commitment of resources to comply with habitat protection measures (such as lost economic opportunities associated with restrictions on land use). The economic analysis also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on small entities and the energy industry. This information can be used by the decision-makers to assess whether the effects of the designation might unduly burden a particular group or economic sector (see “Required Determinations” section below). Finally, the economic analysis looks retrospectively at costs that have been incurred since the date this species was listed as threatened (October 20, 1999; 64 FR 56582), and considers those costs that may occur in the 20 years following designation of critical habitat (i.e., coextensive costs, 2007-2026). The economic analysis focuses on the direct and indirect costs of the rule. However, economic impacts to land use activities can exist in the absence of critical habitat. These impacts may result from, for example, section 7 consultations under the jeopardy standard, local zoning laws, State and natural resource laws, and enforceable management plans and best management practices applied by other State and Federal agencies. Economic impacts that result from these types of protections are not included in the analysis as they are considered to be part of the regulatory and policy baseline. The economic analysis estimates potential economic impacts resulting from the implementation of *Helianthus paradoxus* conservation efforts in four categories:
(a)Treatment of non-native species;
(b)wetland filling and development;
(c)livestock management; and
(d)road maintenance. The final economic analysis of the proposed designation updates the draft economic analysis by removing impacts that were not considered probable or likely to occur and by adding an estimate of the costs associated solely with the designation of critical habitat for *H. paradoxus* (i.e., incremental costs). The final economic analysis estimates that the potential economic effects of actions relating to the conservation of *H. paradoxus* , including costs associated with sections 4, 7, and 10 of the Act, and including those attributable to the designation of critical habitat (i.e., coextensive costs) will be $3.9 to $4.4 million in undiscounted dollars ($193,000 to $221,000 annualized) over the next 20 years. The present value of these impacts, applying a 3 percent discount rate, is $3.3 million to $3.6 million ($219,000 to $245,000 annualized); or $2.5 million to $2.9 million ($238,000 to $271,000 annualized), using a discount rate of 7 percent. These cost estimates are the same as those estimated in the draft economic analysis. The final economic analysis also estimates costs attributable solely to the designation of critical habitat for *H. paradoxus* (incremental costs) to be $709,000 in undiscounted dollars over the next 20 years. The present value of these impacts, applying a 3 percent discount rate, is $605,000; or $517,000, using a discount rate of 7 percent. We evaluated the potential economic impact of this designation as identified in the economic analysis. Based on this evaluation, we believe that there are no disproportionate economic impacts that warrant exclusion under section 4(b)(2) of the Act at this time. The final economic analysis is available on the Internet at *http://www.regulations.gov* and *http://www.fws.gov/southwest/es/newmexico/* or upon request from the New Mexico Ecological Services Field Office (see ADDRESSES section). Required Determinations In our March 27, 2007, proposed rule (72 FR 14328), we indicated that we would defer our determination of compliance with several statutes and Executive Orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders was available in the draft economic analysis. In this final rule, we affirm the information contained in the proposed rule concerning Executive Order (E.O.) 13132, E.O. 12988, the Paperwork Reduction Act, and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). Regulatory Planning and Review The Office of Management and Budget
(OMB)has determined that this rule is not significant and has not reviewed this rule under Executive Order 12866 (E.O. 12866). OMB bases its determination upon the following four criteria:
(a)Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
(b)Whether the rule will create inconsistencies with other Federal agencies' actions.
(c)Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
(d)Whether the rule raises novel legal or policy issues. Regulatory Flexibility Act (5 U.S.C. 601 et seq.) Under the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) (5 U.S.C. 802(2)), whenever an agency must publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. In this final rule, we are certifying that the critical habitat designation for *Helianthus paradoxus* will not have a significant economic impact on a substantial number of small entities. The following discussion explains our rationale. According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations, and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations. To determine if the rule could significantly affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities (e.g., residential and commercial development and agriculture). We apply the “substantial number” test individually to each industry to determine if certification is appropriate. However, the SBREFA does not explicitly define “substantial number” or “significant economic impact.” Consequently, to assess whether a “substantial number” of small entities is affected by this designation, this analysis considers the relative number of small entities likely to be impacted in an area. In some circumstances, especially with critical habitat designations of limited extent, we may aggregate across all industries and consider whether the total number of small entities affected is substantial. In estimating the number of small entities potentially affected, we also consider whether their activities have any Federal involvement. Designation of critical habitat only affects activities conducted, funded, or permitted by Federal agencies. Some kinds of activities are unlikely to have any Federal involvement and so will not be affected by critical habitat designation. In areas where the species is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect *Helianthus paradoxus* (see Section 7 Consultation section). Federal agencies also must consult with us if their activities may affect critical habitat. Designation of critical habitat, therefore, could result in an additional economic impact on small entities due to the requirement to reinitiate consultation for ongoing Federal activities (see Application of the “Adverse Modification” Standard section). In the final economic analysis of the proposed critical habitat designation, we evaluated the potential economic effects on small business entities resulting from conservation actions related to the listing of *Helianthus paradoxus* and proposed designation of its critical habitat. This analysis estimated prospective economic impacts due to the implementation of *H. paradoxus* conservation efforts in four categories:
(a)Treatment of non-native species;
(b)wetland filling and development;
(c)livestock management; and
(d)road maintenance. We determined from our analysis that the economic impacts of the designation on small entities are expected to be borne primarily by modifications to wetland filling and development activities. We assumed that if owners of parcels containing designated critical habitat face land-use restrictions that preclude development on some or all of the parcel, the value of the properties will be reduced, essentially eliminating the option that those areas be developed. The economic analysis assumes that, in a high-end scenario, the entirety of forecast impacts would be borne by one small developer. The one small developer estimated to be affected represents approximately 20 percent of total small developers in the region. The total potential impact resulting from land-use restrictions on development activities is forecast to be, at most, $290,000, or approximately $20,000 annually. Assuming the annual revenues of an average small developer in Cibola County are $400,000, the total potential impact resulting from the proposed designation would amount to approximately 5.0 percent of typical annual sales of one entity. Therefore, based on the above reasoning and currently available information, we certify that this rule will not have a significant economic impact on a substantial number of small entities. A regulatory flexibility analysis is not required. Small Business Regulatory Enforcement Fairness Act (5 U.S.C 801 et seq.) Under SBREFA, this rule is not a major rule. Our detailed assessment of the economic effects of this designation is described in the economic analysis. Based on the effects identified in the economic analysis, we believe that this rule will not have an annual effect on the economy of $100 million or more, will not cause a major increase in costs or prices for consumers, and will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Refer to the final economic analysis for a discussion of the effects of this determination (see ADDRESSES for information on obtaining a copy of the final economic analysis). Executive Order 13211—Energy Supply, Distribution, or Use On May 18, 2001, the President issued E.O. 13211 on regulations that significantly affect energy supply, distribution, or use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. OMB has provided guidance for implementing this E.O. that outlines nine outcomes that may constitute “a significant adverse effect” when compared without the regulatory action under consideration. The economic analysis finds that none of these criteria are relevant to this analysis. Thus, based on information in the economic analysis, energy-related impacts associated with *H. paradoxus* conservation activities within critical habitat are not expected. As such, the designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. Unfunded Mandates Reform Act (2 U.S.C. 1501 *et seq.* ) In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:
(a)This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments,” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except
(i)a condition of Federal assistance; or
(ii)a duty arising from participation in a voluntary Federal program.” The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Non-Federal entities that receive Federal funding, assistance, permits, or otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(b)We do not believe that this rule will significantly or uniquely affect small governments because it will not produce a Federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments. By definition, Federal agencies are not considered small entities, although the activities they fund or permit may be proposed or carried out by small entities. As such, a Small Government Agency Plan is not required. Executive Order 12630—Takings In accordance with E.O. 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of critical habitat for *Helianthus paradoxus.* Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. The takings implications assessment concludes that this final designation of critical habitat for *H. paradoxus* does not pose significant takings implications for lands within or affected by the designation. Federalism In accordance with E.O. 13132 (Federalism), this final rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this final critical habitat designation with appropriate State resource agencies in New Mexico. The designation of critical habitat in areas currently occupied by *Helianthus paradoxus* is not likely to impose any additional restrictions to those currently in place and, therefore, has little incremental impact on State and local governments and their activities. The designation may have some benefit to these governments because the areas that contain the physical and biological features essential to the conservation of the species are more clearly defined, and the PCEs of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist local governments in long-range planning (rather than having them wait for case-by-case section 7 consultations to occur). Civil Justice Reform In accordance with E.O. 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We are designating critical habitat in accordance with the provisions of the Act. This final rule uses standard property descriptions and identifies the physical and biological features essential to the conservation of the species within the designated areas to assist the public in understanding the habitat needs of *Helianthus paradoxus.* Paperwork Reduction Act of 1995 This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act
(NEPA)(42 U.S.C. 4321 et seq.) It is our position that, outside the Jurisdiction of the Tenth Federal Circuit, we do not need to prepare environmental analyses as defined by NEPA in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the **Federal Register** on October 25, 1983 (48 FR 49244). This assertion was upheld by the Ninth Circuit ( *Douglas County* v. *Babbitt,* 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 516 U.S. 1042 (1996)). However, when the range of the species includes States within the Tenth Circuit, such as that of *Helianthus paradoxus,* under the Tenth Circuit ruling in *Catron County Board of Commissioners* v. *U.S. Fish and Wildlife Service,* 75 F.3d 1429 (10th Cir. 1996), we conduct an environmental assessment under NEPA for the proposed critical habitat designation. We completed an environmental assessment and finding of no significant impact on the designation of critical habitat for *H. paradoxus.* Government-to-Government Relationship with Tribes In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act,” we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. Therefore, we solicited information from the Pueblo of Acoma and Pueblo of Laguna. As noted above, we contacted the Pueblo of Acoma and Pueblo of Laguna and offered to provide technical assistance on management of the species and the development of management plans. On July 2, 2007, we met with the Pueblo of Acoma to discuss potential effects to them or their resources that may result from critical habitat designation. They did not pursue the development of a management plan. As a result, Pueblo of Acoma lands have not been excluded from the final designation and are designated as critical habitat. As detailed above, we provided technical assistance to the Pueblo to develop a management plan for *Helianthus paradoxus.* We received the Pecos Sunflower ( *Helianthus paradoxus* ) Management Plan (Resolution # 01-08), Pueblo of Laguna, 2008, during the open comment period, which closed on January 10, 2008. The Management Plan and corresponding Resolution (No. 01-08) was adopted and approved by the Pueblo of Laguna Staff Officers in January 2008 (Laguna 2008). The resolution that was passed by the Pueblo concerning its management plan exercises the sovereign status of the Pueblo and provides for special management protections and conservation of *H. paradoxus.* We find that the Pueblo of Laguna management plan provides significant conservation benefit to *H. paradoxus* and have excluded this area from the final designation of critical habitat. References Cited A complete list of all references cited in this rulemaking is available on the Internet at *http://www.regulations.gov* and *http://www.fws.gov/southwest/es/newmexico/.* Author(s) The primary authors of this rulemaking are staff of the New Mexico Ecological Services Field Office. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Regulation Promulgation Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted. 2. In § 17.12(h), revise the entry for *“Helianthus paradoxus”* under “FLOWERING PLANTS” in the List of Endangered and Threatened Plants to read as follows: § 17.12 Endangered and threatened plants.
(h)* * * Species Scientific name Common name Historic range Family Status When listed Critical habitat Special rules **Flowering Plants** * * * * * * * Helianthus paradoxus Pecos (=puzzle, =paradox) sunflower U.S.A. (NM, TX) Asteraceae T 667 17.96(a) NA * * * * * * * 3. In § 17.96(a), add an entry for “ *Helianthus paradoxus* (Pecos sunflower)” in alphabetical order under Family Asteraceae to read as follows: § 17.96 Critical habitat—plants.
(a)*Flowering plants* . Family Asteraceae: *Helianthus paradoxus* (Pecos sunflower)
(1)Critical habitat units are depicted for Chaves, Cibola, and Guadalupe Counties, New Mexico, and for Pecos County, Texas, on the maps below.
(2)Within critical habitat units, the primary constituent elements of critical habitat for *Helianthus paradoxus* are the desert wetland or riparian habitat components that provide:
(i)Silty clay or fine sand soils that contain high organic content, are saline or alkaline, are permanently saturated within the root zone (top 50 cm (19.7 in) of the soil profile), and have salinity levels ranging from 10 to 40 parts per thousand; and
(ii)A low proportion (less than 10 percent) of woody shrub or canopy cover directly around the plant.
(3)Critical habitat does not include manmade structures, such as buildings, aqueducts, airports, and roads, and the land on which such structures are located, existing on the effective date of this rule and not containing one or more of the primary constituent elements.
(4)*Critical habitat map units* . Data layers defining map units were created on a base of USGS 1:24,0000 maps, and critical habitat units were then mapped using Universal Transverse Mercator
(UTM)coordinates.
(5)Note: Index map for *Helianthus paradoxus* (Pecos sunflower) critical habitat units follows: BILLING CODE 4310-55-P ER01AP08.338 BILLING CODE 4310-55-C
(6)Unit 1: West-Central New Mexico, Cibola County, New Mexico.
(i)Subunit 1a for *Helianthus paradoxus* , Rancho del Padre Spring Cienega, Cibola County, New Mexico. From USGS 1:24,000 quadrangle Grants SE, lands bounded by the following UTM NAD83 coordinates (meters E, meters N): 243145, 3889604; 243025, 3889705; 243053, 3889708; 243097, 3889700; 243141, 3889702; 243201, 3889703; 243246, 3889703; 243286, 3889703; 243342, 3889708; 243377, 3889712; 243402, 3889704; 243441, 3889707; 243441, 3889707; 243472, 3889710; 243490, 3889709; 243518, 3889707; 243577, 3889698; 243626, 3889686; 243657, 3889669; 243683, 3889642; 243706, 3889616; 243729, 3889590; 243765, 3889564; 243794, 3889545; 243826, 3889535; 243863, 3889518; 243888, 3889519; 243932, 3889513; 243966, 3889506; 243991, 3889508; 244056, 3889504; 244120, 3889510; 244157, 3889513; 244196, 3889517; 244242, 3889530; 244282, 3889546; 244325, 3889560; 244359, 3889575; 244388, 3889592; 244423, 3889592; 244410, 3889576; 244393, 3889566; 244362, 3889539; 244322, 3889506; 244278, 3889486; 244244, 3889470; 244209, 3889467; 244155, 3889466; 244126, 3889461; 244088, 3889450; 244057, 3889453; 244019, 3889457; 243982, 3889456; 243923, 3889459; 243879, 3889459; 243824, 3889470; 243779, 3889490; 243752, 3889510; 243726, 3889522; 243689, 3889537; 243653, 3889566; 243604, 3889594; 243573, 3889612; 243515, 3889637; 243471, 3889643; 243427, 3889641; 243376, 3889630; 243325, 3889625; 243265, 3889619; 243224, 3889611; 243169, 3889606; thence returning to 243145, 3889604.
(ii)Subunit 1b for *Helianthus paradoxus* , Grants Salt Flat Wetlands, Cibola County, New Mexico. From USGS 1:24,000 quadrangle Grants, lands bounded by the following UTM NAD83 coordinates (meters E, meters N): 241567, 3891788; 241548, 3891788; 241521, 3891788; 241509, 3891801; 241493, 3891806; 241482, 3891812; 241460, 3891822; 241448, 3891840; 241440, 3891865; 241445, 3891886; 241449, 3891910; 241445, 3891930; 241456, 3891947; 241463, 3891957; 241484, 3891960; 241499, 3891965; 241517, 3891962; 241531, 3891941; 241534, 3891918; 241543, 3891893; 241551, 3891866; 241560, 3891846; 241568, 3891825; 241582, 3891801; 241602, 3891789; 241636, 3891777; 241670, 3891770; 241691, 3891774; 241714, 3891774; 241733, 3891785; 241751, 3891795; 241751, 3891785; 241762, 3891765; 241775, 3891750; 241798, 3891741; 241812, 3891747; 241825, 3891755; 241850, 3891755; 241876, 3891751; 241901, 3891738; 241917, 3891731; 241934, 3891717; 241942, 3891694; 241952, 3891679; 241959, 3891662; 241979, 3891648; 242003, 3891648; 242025, 3891648; 242045, 3891648; 242071, 3891659; 242100, 3891656; 242122, 3891641; 242135, 3891629; 242168, 3891604; 242175, 3891585; 242186, 3891578; 242196, 3891570; 242215, 3891570; 242234, 3891570; 242252, 3891554; 242288, 3891527; 242295, 3891507; 242295, 3891482; 242288, 3891465; 242283, 3891452; 242239, 3891452; 242191, 3891452; 242178, 3891441; 242171, 3891432; 242169, 3891409; 242172, 3891391; 242172, 3891378; 242171, 3891358; 242169, 3891344; 242165, 3891323; 242155, 3891303; 242154, 3891285; 242142, 3891252; 242141, 3891232; 242128, 3891205; 242114, 3891194; 242097, 3891188; 242080, 3891180; 242062, 3891179; 242052, 3891190; 242040, 3891204; 242023, 3891225; 241999, 3891240; 241984, 3891255; 241975, 3891262; 241971, 3891278; 241972, 3891293; 241964, 3891308; 241944, 3891322; 241911, 3891325; 241879, 3891325; 241836, 3891326; 241811, 3891335; 241785, 3891350; 241768, 3891359; 241755, 3891360; 241728, 3891356; 241706, 3891357; 241680, 3891357; 241666, 3891373; 241662, 3891403; 241664, 3891455; 241666, 3891502; 241666, 3891544; 241657, 3891574; 241650, 3891611; 241612, 3891644; 241567, 3891688; thence returning to 241567, 3891788.
(iii)Note: Map of subunits 1a and 1b for *Helianthus paradoxus* (Pecos sunflower) critical habitat follows: BILLING CODE 4310-55-P ER01AP08.339
(7)Unit 3: Santa Rosa, Guadalupe County, New Mexico.
(i)Subunit 3a for *Helianthus paradoxus* , Blue Hole Cienega/Blue Hole Fish Hatchery Ponds, Guadalupe County, New Mexico. From USGS 1:24,000 quadrangle Santa Rosa, lands bounded by the following UTM NAD83 coordinates (meters E, meters N): 529408, 3865628; 529431, 3865639; 529449, 3865654; 529468, 3865681; 529481, 3865715; 529491, 3865773; 529491, 3865792; 529478, 3865810; 529467, 3865832; 529465, 3865863; 529472, 3865903; 529484, 3865943; 529494, 3866006; 529507, 3866073; 529505, 3866104; 529497, 3866123; 529484, 3866171; 529479, 3866207; 529483, 3866245; 529489, 3866310; 529489, 3866366; 529640, 3866364; 529771, 3866366; 529910, 3866363; 529980, 3866361; 529991, 3866355; 529996, 3866347; 529991, 3866329; 529988, 3866289; 529980, 3866217; 529967, 3866125; 529959, 3866012; 529957, 3865985; 529887, 3865918; 529859, 3865879; 529876, 3865756; 529962, 3865656; 530041, 3865519; 530099, 3865390; 530105, 3865209; 530091, 3865144; 529784, 3865313; 529705, 3865355; 529593, 3865417; 529522, 3865456; 529550, 3865504; 529505, 3865533; 529524, 3865564; thence returning to 529408, 3865628. 529555, 3866753; 529618, 3866754; 529654, 3866751; 529702, 3866748; 529706, 3866687; 529712, 3866651; 529713, 3866618; 529717, 3866581; 529717, 3866559; 529652, 3866555; 529640, 3866558; 529638, 3866609; 529634, 3866613; 529590, 3866609; 529556, 3866611; 529556, 3866639; 529555, 3866683; thence returning to 529555, 3866753.
(ii)Note: Map of Subunit 3a for *Helianthus paradoxus* (Pecos sunflower) critical habitat follows: ER01AP08.340
(iii)Subunit 3b for *Helianthus paradoxus* , Westside Spring, Guadalupe County, New Mexico. From USGS 1:24,000 quadrangle Santa Rosa, lands bounded by the following UTM NAD83 coordinates (meters E, meters N): 527977, 3864746; 527990, 3864762; 527999, 3864783; 528009, 3864801; 528033, 3864823; 528054, 3864837; 528079, 3864848; 528103, 3864852; 528121, 3864843; 528125, 3864832; 528125, 3864813; 528123, 3864796; 528118, 3864780; 528108, 3864756; 528095, 3864734; 528072, 3864717; 528047, 3864697; 528018, 3864676; 527987, 3864654; 527961, 3864633; 527932, 3864613; 527906, 3864594; 527886, 3864575; 527866, 3864561; 527850, 3864551; 527836, 3864552; 527838, 3864566; 527852, 3864585; 527869, 3864606; 527886, 3864626; 527903, 3864648; 527921, 3864672; 527938, 3864694; 527957, 3864716; 527961, 3864722; 527975, 3864743; thence returning to 527977, 3864746.
(iv)Note: Map of Subunit 3b for *Helianthus paradoxus* (Pecos sunflower) critical habitat follows: ER01AP08.341 BILLING CODE 4310-55-C
(8)Unit 4: Roswell/Dexter, Chaves County, New Mexico.
(i)Subunit 4a for *Helianthus paradoxus* , Bitter Lake National Wildlife Refuge/City of Roswell Land, Chaves County, New Mexico. From USGS 1:24,000 quadrangle Bitter Lake, lands bounded by the following UTM NAD83 coordinates (meters E, meters N): 553433, 3705266; 553438, 3705244; 553427, 3705221; 553405, 3705160; 553392, 3705130; 553391, 3705126; 553381, 3705133; 553368, 3705185; 553355, 3705203; 553368, 3705223; 553376, 3705270; 553375, 3705274; 553381, 3705283; 553418, 3705283; thence returning to 553433, 3705266 553416, 3704901; 553407, 3704896; 553357, 3704881; 553349, 3704867; 553330, 3704867; 553303, 3704849; 553295, 3704769; 553285, 3704696; 553304, 3704631; 553315, 3704558; 553332, 3704453; 553335, 3704381; 553337, 3704374; 553334, 3704362; 553342, 3704308; 553370, 3704265; 553400, 3704250; 553417, 3704226; 553422, 3704196; 553395, 3704176; 553363, 3704198; 553314, 3704250; 553264, 3704275; 553234, 3704292; 553221, 3704360; 553221, 3704364; 553217, 3704432; 553207, 3704447; 553200, 3704508; 553191, 3704580; 553178, 3704613; 553167, 3704675; 553165, 3704683; 553165, 3704758; 553176, 3704802; 553177, 3704821; 553185, 3704828; 553206, 3704841; 553231, 3704889; 553258, 3704926; 553294, 3704942; 553310, 3704972; 553314, 3705012; 553350, 3705042; 553367, 3705040; 553384, 3705022; 553384, 3704997; 553424, 3705000; 553438, 3704985; 553443, 3704945; thence returning to 553416, 3704901 553595, 3704036; 553574, 3704029; 553551, 3704059; 553523, 3704061; 553500, 3704101; 553500, 3704104; 553496, 3704123; 553516, 3704176; 553544, 3704184; 553571, 3704161; 553592, 3704112; 553614, 3704059; thence returning to 553595, 3704036 553958, 3704101; 553958, 3704066; 553977, 3704066; 553992, 3704051; 553990, 3703994; 553984, 3703966; 553978, 3703928; 553967, 3703901; 553965, 3703876; 553984, 3703856; 553997, 3703818; 554016, 3703798; 554020, 3703781; 553997, 3703768; 553970, 3703778; 553959, 3703813; 553949, 3703830; 553930, 3703830; 553907, 3703828; 553884, 3703808; 553865, 3703775; 553842, 3703755; 553819, 3703745; 553792, 3703744; 553779, 3703754; 553779, 3703787; 553779, 3703812; 553787, 3703830; 553802, 3703837; 553797, 3703852; 553776, 3703860; 553757, 3703874; 553761, 3703935; 553767, 3703962; 553771, 3704005; 553822, 3704048; 553853, 3704075; 553895, 3704121; 553911, 3704143; 553945, 3704149; 553966, 3704146; thence returning to 553958, 3704101 554094, 3704475; 554107, 3704473; 554121, 3704488; 554151, 3704476; 554195, 3704456; 554210, 3704423; 554269, 3704424; 554338, 3704434; 554401, 3704449; 554479, 3704442; 554548, 3704423; 554592, 3704418; 554622, 3704405; 554640, 3704421; 554661, 3704426; 554678, 3704416; 554676, 3704391; 554725, 3704384; 554748, 3704369; 554760, 3704339; 554744, 3704333; 554712, 3704333; 554691, 3704323; 554670, 3704323; 554658, 3704290; 554639, 3704268; 554614, 3704270; 554607, 3704310; 554588, 3704348; 554569, 3704363; 554534, 3704375; 554487, 3704385; 554447, 3704389; 554418, 3704389; 554386, 3704389; 554351, 3704371; 554313, 3704356; 554263, 3704348; 554238, 3704353; 554208, 3704363; 554187, 3704385; 554164, 3704400; 554137, 3704400; 554118, 3704393; 554124, 3704340; 554118, 3704297; 554097, 3704277; 554066, 3704272; 554043, 3704284; 554043, 3704312; 554028, 3704344; 554004, 3704392; 553989, 3704434; 553989, 3704500; 553995, 3704555; 554012, 3704575; 554062, 3704555; 554094, 3704543; 554109, 3704503; thence returning to 554094, 3704475 555025, 3703999; 554991, 3703999; 554962, 3704029; 554951, 3704067; 554959, 3704122; 554982, 3704144; 554995, 3704139; 554980, 3704069; 555018, 3704024; thence returning to 555025, 3703999 554437, 3703590; 554460, 3703560; 554454, 3703550; 554433, 3703545; 554412, 3703540; 554404, 3703537; 554410, 3703517; 554421, 3703495; 554423, 3703460; 554421, 3703430; 554405, 3703430; 554373, 3703450; 554358, 3703492; 554339, 3703524; 554311, 3703547; 554284, 3703569; 554261, 3703567; 554234, 3703571; 554231, 3703592; 554235, 3703627; 554248, 3703662; 554256, 3703689; 554258, 3703732; 554266, 3703752; 554302, 3703762; 554325, 3703785; 554358, 3703823; 554379, 3703808; 554392, 3703785; 554394, 3703753; 554386, 3703733; 554390, 3703715; 554407, 3703670; 554416, 3703638; thence returning to 554437, 3703590 555874, 3704071; 555869, 3704052; 555873, 3703974; 555893, 3703927; 555899, 3703877; 555918, 3703859; 555923, 3703809; 555889, 3703794; 556064, 3702986; 556073, 3702873; 556031, 3702863; 555981, 3702792; 555927, 3702732; 555889, 3702692; 555870, 3702734; 555928, 3702797; 556003, 3702905; 556031, 3702923; 556028, 3702953; 555992, 3703018; 555969, 3703018; 555942, 3703060; 555920, 3703110; 555843, 3703105; 555839, 3703069; 555818, 3703039; 555817, 3702909; 555773, 3702746; 555742, 3702738; 555704, 3702776; 555718, 3702818; 555775, 3702891; 555768, 3702936; 555772, 3703079; 555767, 3703144; 555754, 3703169; 555746, 3703124; 555715, 3703114; 555685, 3703106; 555671, 3703079; 555671, 3703033; 555675, 3702996; 555659, 3702978; 555629, 3702956; 555596, 3702958; 555577, 3702975; 555543, 3702955; 555495, 3702975; 555476, 3702987; 555461, 3703025; 555450, 3703042; 555421, 3703045; 555408, 3703034; 555392, 3703027; 555443, 3702956; 555489, 3702941; 555502, 3702888; 555479, 3702865; 555500, 3702850; 555529, 3702820; 555534, 3702780; 555532, 3702699; 555507, 3702669; 555474, 3702666; 555452, 3702694; 555436, 3702692; 555419, 3702686; 555406, 3702691; 555397, 3702754; 555406, 3702781; 555412, 3702839; 555370, 3702869; 555333, 3702914; 555274, 3702966; 555216, 3702966; 555157, 3703003; 555100, 3703033; 555053, 3703057; 555015, 3703110; 554971, 3703180; 554958, 3703210; 554943, 3703230; 554916, 3703229; 554884, 3703245; 554867, 3703264; 554867, 3703302; 554861, 3703332; 554825, 3703357; 554787, 3703377; 554766, 3703416; 554745, 3703459; 554746, 3703494; 554772, 3703522; 554801, 3703507; 554805, 3703482; 554829, 3703445; 554867, 3703417; 554883, 3703395; 554913, 3703373; 554951, 3703383; 554968, 3703400; 555003, 3703425; 555024, 3703431; 555054, 3703391; 555072, 3703416; 555100, 3703429; 555125, 3703411; 555127, 3703381; 555127, 3703371; 555169, 3703356; 555215, 3703364; 555245, 3703344; 555266, 3703314; 555268, 3703282; 555254, 3703267; 555216, 3703266; 555178, 3703266; 555166, 3703256; 555149, 3703241; 555138, 3703228; 555178, 3703206; 555206, 3703191; 555225, 3703171; 555238, 3703139; 555254, 3703149; 555280, 3703147; 555295, 3703109; 555326, 3703099; 555328, 3703117; 555349, 3703137; 555374, 3703157; 555376, 3703192; 555397, 3703232; 555422, 3703235; 555435, 3703210; 555437, 3703170; 555416, 3703142; 555410, 3703125; 555427, 3703105; 555461, 3703095; 555467, 3703072; 555524, 3703073; 555557, 3703063; 555580, 3703078; 555610, 3703091; 555618, 3703138; 555630, 3703174; 555664, 3703191; 555668, 3703214; 555640, 3703234; 555628, 3703271; 555629, 3703311; 555663, 3703322; 555667, 3703357; 555688, 3703372; 555736, 3703387; 555788, 3703397; 555820, 3703400; 555839, 3703388; 555870, 3703400; 555879, 3703448; 555870, 3703520; 555848, 3703591; 555844, 3703628; 555844, 3703689; 555843, 3703739; 555837, 3703781; 555811, 3703853; 555805, 3703883; 555798, 3703931; 555781, 3703959; 555806, 3704001; 555806, 3704034; 555781, 3704042; 555774, 3704066; 555778, 3704079; 555819, 3704076; thence returning to 555874, 3704071 556313, 3701253; 556267, 3701245; 556183, 3701262; 556218, 3701446; 556444, 3701492; 556495, 3701492; 556501, 3701475; 556456, 3701332; 556401, 3701266; thence returning to 556313, 3701253 555609, 3701001; 555569, 3700991; 555565, 3701038; 555560, 3701104; 555564, 3701144; 555585, 3701186; 555593, 3701242; 555599, 3701312; 555578, 3701352; 555586, 3701422; 555600, 3701462; 555661, 3701485; 555720, 3701505; 555722, 3701463; 555701, 3701390; 555706, 3701337; 555744, 3701288; 555738, 3701255; 555702, 3701205; 555654, 3701154; 555619, 3701106; 555615, 3701061; 555628, 3701031; thence returning to 555609, 3701001 555918, 3700885; 555889, 3700880; 555901, 3700925; 555916, 3700978; 555959, 3701151; 555967, 3701214; 555988, 3701284; 555983, 3701329; 555998, 3701382; 555995, 3701432; 556010, 3701452; 556022, 3701452; 556033, 3701414; 556025, 3701367; 556006, 3701299; 555988, 3701214; 555990, 3701154; thence returning to 555918, 3700885 555523, 3701399; 555516, 3701460; 555499, 3701477; 555494, 3701490; 555529, 3701523; 555592, 3701574; 555605, 3701596; 555618, 3701644; 555623, 3701655; 555656, 3701703; 555657, 3701745; 555651, 3701788; 555632, 3701838; 555635, 3701906; 555652, 3701959; 555658, 3702024; 555674, 3702067; 555674, 3702111; 555682, 3702169; 555686, 3702234; 555658, 3702275; 555631, 3702339; 555635, 3702422; 555637, 3702460; 555580, 3702484; 555552, 3702484; 555498, 3702499; 555451, 3702531; 555417, 3702563; 555402, 3702621; 555430, 3702639; 555451, 3702581; 555489, 3702571; 555493, 3702529; 555512, 3702541; 555531, 3702559; 555583, 3702557; 555613, 3702582; 555648, 3702595; 555720, 3702583; 555785, 3702598; 555795, 3702626; 555816, 3702643; 555831, 3702614; 555848, 3702601; 555928, 3702617; 556024, 3702617; 556064, 3702605; 556083, 3702572; 556077, 3702525; 556100, 3702472; 556107, 3702442; 556099, 3702365; 556093, 3702269; 556096, 3702162; 556128, 3702064; 556116, 3702059; 556067, 3702089; 556058, 3702156; 556045, 3702241; 556020, 3702241; 555955, 3702261; 555917, 3702304; 555893, 3702323; 555895, 3702348; 555931, 3702334; 555969, 3702326; 555992, 3702381; 556013, 3702411; 556046, 3702429; 556071, 3702462; 556036, 3702506; 556016, 3702497; 555970, 3702481; 555918, 3702461; 555802, 3702456; 555748, 3702478; 555704, 3702452; 555689, 3702410; 555694, 3702352; 555713, 3702305; 555717, 3702260; 555743, 3702265; 555770, 3702298; 555818, 3702348; 555856, 3702340; 555866, 3702318; 555862, 3702278; 555818, 3702265; 555781, 3702212; 555754, 3702165; 555764, 3702137; 555798, 3702112; 555832, 3702052; 555811, 3702035; 555729, 3702029; 555725, 3701972; 555726, 3701926; 555747, 3701849; 555747, 3701806; 555760, 3701709; 556110, 3701600; 556143, 3701598; 556157, 3701731; 556110, 3701944; 556150, 3701961; 556208, 3701689; 556172, 3701536; 556103, 3701012; 556079, 3701014; 556062, 3701049; 556064, 3701102; 556089, 3701257; 556124, 3701392; 556144, 3701544; 555765, 3701651; 555767, 3701618; 555724, 3701555; 555658, 3701533; 555637, 3701573; 555614, 3701570; 555566, 3701535; 555541, 3701492; 555542, 3701422; thence returning to 555523, 3701399 555288, 3700536; 555303, 3700526; 555328, 3700548; 555353, 3700584; 555418, 3700647; 555458, 3700675; 555483, 3700650; 555452, 3700597; 555414, 3700567; 555385, 3700506; 555364, 3700474; 555367, 3700413; 555346, 3700373; 555310, 3700328; 555292, 3700330; 555256, 3700353; 555241, 3700410; 555240, 3700488; 555265, 3700578; 555287, 3700676; 555292, 3700709; 555310, 3700731; 555305, 3700859; 555333, 3700862; 555347, 3700892; 555351, 3700942; 555347, 3700990; 555384, 3701020; 555376, 3700957; 555360, 3700889; 555335, 3700779; 555315, 3700669; 555309, 3700598; thence returning to 555288, 3700536 555350, 3700060; 555304, 3700042; 555289, 3700077; 555289, 3700112; 555303, 3700140; 555303, 3700180; 555303, 3700238; 555317, 3700275; 555367, 3700283; 555401, 3700283; 555481, 3700266; 555571, 3700244; 555645, 3700242; 555668, 3700217; 555666, 3700175; 555629, 3700167; 555572, 3700144; 555503, 3700139; 555412, 3700121; 555373, 3700090; thence returning to 555350, 3700060 555001, 3699914; 555002, 3699921; 555022, 3699943; 555027, 3699947; 555034, 3699952; 555060, 3699982; 555061, 3699986; 555075, 3700001; 555102, 3700066; 555146, 3700086; 555111, 3700006; 555077, 3699946; 555057, 3699916; 555046, 3699875; 555055, 3699843; 555090, 3699881; 555149, 3699889; 555193, 3699874; 555215, 3699836; 555221, 3699779; 555194, 3699718; 555159, 3699683; 555096, 3699660; 555043, 3699657; 554970, 3699619; 554928, 3699597; 554901, 3699541; 554874, 3699506; 554836, 3699516; 554836, 3699554; 554854, 3699639; 554886, 3699684; 554917, 3699702; 554986, 3699735; 555030, 3699780; 555036, 3699823; 555019, 3699868; thence returning to 555001, 3699914 555370, 3699131; 555265, 3699038; 555219, 3699005; 555145, 3698991; 555135, 3698968; 555141, 3698887; 555147, 3698776; 555128, 3698655; 555115, 3698547; 555108, 3698488; 555140, 3698489; 555200, 3698486; 555326, 3698477; 555381, 3698445; 555431, 3698383; 555467, 3698285; 555489, 3698168; 555479, 3698109; 555441, 3698064; 555361, 3698056; 555252, 3698052; 555219, 3698029; 555181, 3698023; 555110, 3698036; 555105, 3697925; 555084, 3697833; 555002, 3697764; 554926, 3697724; 554898, 3697741; 554917, 3697774; 554958, 3697842; 555015, 3697895; 555031, 3697960; 555052, 3698084; 555073, 3698195; 555064, 3698375; 555059, 3698746; 555069, 3698952; 555104, 3699014; 555145, 3699050; 555077, 3699033; 555022, 3699020; 554935, 3698980; 554867, 3698941; 554799, 3698882; 554741, 3698917; 554686, 3698969; 554675, 3699021; 554628, 3699021; 554626, 3699057; 554675, 3699076; 554781, 3699107; 554926, 3699114; 555068, 3699121; 555197, 3699112; 555298, 3699129; 555372, 3699183; 555411, 3699219; 555464, 3699247; 555505, 3699299; 555536, 3699390; 555582, 3699520; 555602, 3699608; 555643, 3699774; 555662, 3699837; 555693, 3699932; 555718, 3699972; 555743, 3700068; 555793, 3700100; 555806, 3700088; 555751, 3700010; 555678, 3699734; 555605, 3699483; 555533, 3699282; 555477, 3699202; 555370, 3699131; 555194, 3698098; 555246, 3698098; 555293, 3698118; 555344, 3698131; 555372, 3698158; 555407, 3698223; 555407, 3698272; 555401, 3698337; 555360, 3698363; 555313, 3698415; 555217, 3698418; 555138, 3698437; 555102, 3698443; 555111, 3698352; 555112, 3698101; 555151, 3698097; thence returning to 555194, 3698098 554173, 3698864; 554194, 3698881; 554233, 3698942; 554256, 3698968; 554293, 3698994; 554371, 3699029; 554390, 3699052; 554398, 3699065; 554441, 3699113; 554443, 3699135; 554453, 3699147; 554505, 3699202; 554535, 3699258; 554580, 3699323; 554617, 3699364; 554678, 3699411; 554686, 3699422; 554706, 3699446; 554722, 3699481; 554742, 3699513; 554779, 3699548; 554807, 3699521; 554799, 3699483; 554788, 3699431; 554787, 3699378; 554787, 3699305; 554781, 3699248; 554773, 3699228; 554743, 3699235; 554741, 3699280; 554749, 3699323; 554716, 3699305; 554693, 3699305; 554655, 3699277; 554623, 3699247; 554586, 3699227; 554556, 3699206; 554532, 3699153; 554511, 3699118; 554488, 3699091; 554463, 3699061; 554404, 3698997; 554363, 3698958; 554328, 3698912; 554290, 3698875; 554244, 3698830; 554214, 3698820; 554184, 3698790; 554159, 3698758; 554113, 3698718; 554089, 3698718; 554094, 3698760; 554129, 3698800; 554170, 3698839; thence returning to 554173, 3698864 554637, 3698460; 554599, 3698456; 554568, 3698486; 554568, 3698561; 554581, 3698652; 554608, 3698675; 554649, 3698678; 554704, 3698646; 554721, 3698610; 554719, 3698539; 554661, 3698493; thence returning to 554637, 3698460 554661, 3698079; 554623, 3698078; 554584, 3698124; 554559, 3698153; 554565, 3698205; 554584, 3698244; 554622, 3698271; 554657, 3698261; 554679, 3698245; 554699, 3698209; 554707, 3698102; 554694, 3698095; thence returning to 554661, 3698079 553963, 3697638; 553988, 3697664; 554001, 3697681; 554018, 3697690; 554031, 3697706; 554053, 3697715; 554075, 3697746; 554071, 3697770; 554083, 3697824; 554088, 3697928; 554103, 3698069; 554141, 3698190; 554162, 3698275; 554154, 3698350; 554110, 3698411; 554096, 3698450; 554049, 3698483; 554040, 3698494; 554016, 3698568; 554016, 3698577; 554081, 3698561; 554136, 3698519; 554164, 3698496; 554169, 3698477; 554186, 3698454; 554202, 3698412; 554205, 3698383; 554225, 3698350; 554233, 3698314; 554433, 3698273; 554433, 3698247; 554258, 3698285; 554258, 3698223; 554242, 3698174; 554191, 3698105; 554185, 3698056; 554172, 3698001; 554153, 3697932; 554156, 3697903; 554186, 3697903; 554216, 3697900; 554227, 3697877; 554211, 3697867; 554164, 3697867; 554167, 3697838; 554129, 3697837; 554148, 3697795; 554149, 3697727; 554204, 3697714; 554207, 3697691; 554196, 3697649; 554245, 3697649; 554319, 3697649; 554426, 3697650; 554464, 3697634; 554511, 3697618; 554584, 3697622; 554604, 3697596; 554618, 3697537; 554602, 3697459; 554577, 3697397; 554509, 3697376; 554454, 3697422; 554399, 3697490; 554308, 3697574; 554270, 3697558; 554144, 3697538; 554054, 3697527; 553997, 3697579; thence returning to 553963, 3697638 554100, 3697209; 554053, 3697208; 553998, 3697292; 553962, 3697351; 553962, 3697429; 553967, 3697533; 554005, 3697507; 554038, 3697455; 554044, 3697413; 554047, 3697361; 554066, 3697335; 554105, 3697260; thence returning to 554100, 3697209 554694, 3697638; 554707, 3697616; 554746, 3697616; 554770, 3697636; 554819, 3697626; 554850, 3697594; 554899, 3697529; 554992, 3697177; 554959, 3697148; 554912, 3697164; 554813, 3697404; 554815, 3697483; 554787, 3697486; 554736, 3697489; 554705, 3697515; 554658, 3697583; 554663, 3697648; thence returning to 554694, 3697638 555818, 3696814; 555704, 3696812; 555673, 3696811; 555685, 3696845; 555721, 3696842; 555806, 3696836; thence returning to 555818, 3696814 554053, 3697208; 554100, 3697209; 554338, 3697211; 554336, 3696805; 554330, 3696733; 554330, 3696665; 554327, 3696605; 554268, 3696635; 554205, 3696666; 554127, 3696699; 554092, 3696768; 554089, 3696787; 554084, 3696811; 554048, 3696856; 554021, 3696861; 553990, 3696861; 553957, 3696849; 553925, 3696849; 553881, 3696851; 553847, 3696860; 553809, 3696885; 553793, 3696903; 553765, 3696930; 553751, 3696954; 553740, 3696972; 553738, 3696995; 553733, 3697019; 553718, 3697038; 553716, 3697053; 553710, 3697067; 553702, 3697088; 553691, 3697115; 553689, 3697128; 553684, 3697150; 553673, 3697170; 553652, 3697201; 553624, 3697231; 553617, 3697248; 553614, 3697266; 553601, 3697291; 553600, 3697304; 553580, 3697324; 553571, 3697335; 553567, 3697359; 553567, 3697381; 553569, 3697402; 553577, 3697416; 553587, 3697427; 553601, 3697453; 553627, 3697474; 553647, 3697485; 553663, 3697495; 553689, 3697518; 553709, 3697535; 553731, 3697546; 553765, 3697552; 553808, 3697556; 553866, 3697558; 553895, 3697563; 553916, 3697574; 553923, 3697590; 553930, 3697605; 553934, 3697207; thence returning to 554053, 3697208
(ii)Note: Map of Subunit 4a for *Helianthus paradoxus* (Pecos sunflower) critical habitat follows: BILLING CODE 4310-55-P ER01AP08.342
(iii)Subunit 4b for *Helianthus paradoxus,* Bitter Lake National Wildlife Refuge Farm, Chaves County, New Mexico. From USGS 1:24,000 quadrangles Bottomless Lakes and South Spring, lands bounded by the following UTM NAD83 coordinates (meters E, meters N): 554219, 3693892; 554261, 3693848; 554290, 3693737; 554276, 3693659; 554328, 3693532; 554323, 3693504; 554263, 3693526; 554239, 3693587; 554188, 3693676; 554137, 3693648; 554104, 3693647; 554076, 3693664; 554043, 3693675; 553974, 3693685; 553899, 3693735; 553894, 3693846; 553880, 3693868; 553819, 3693867; 553805, 3693906; 553795, 3694011; 553790, 3694128; 553813, 3694156; 553873, 3694161; 553929, 3694167; 553962, 3694129; 554013, 3694101; 554088, 3694085; 554134, 3694080; 554172, 3693991; 554172, 3693941; thence returning to 554219, 3693892 554157, 3694858; 554177, 3694762; 554220, 3694579; 554243, 3694507; 554244, 3694402; 554268, 3694280; 554333, 3694198; 554423, 3694059; 554517, 3693894; 554521, 3693849; 554520, 3693841; 554523, 3693831; 554526, 3693799; 554536, 3693678; 554593, 3693578; 554612, 3693512; 554598, 3693423; 554599, 3693312; 554618, 3693223; 554614, 3693102; 554633, 3693030; 554641, 3692940; 554656, 3692862; 554698, 3692810; 554741, 3692755; 554779, 3692758; 554831, 3692771; 554894, 3692789; 554945, 3692809; 554981, 3692819; 555025, 3692810; 555052, 3692782; 555097, 3692737; 555141, 3692720; 555186, 3692687; 555247, 3692665; 555335, 3692663; 555405, 3692671; 555472, 3692679; 555550, 3692695; 555641, 3692707; 555702, 3692705; 555794, 3692681; 555854, 3692646; 555873, 3692601; 555862, 3692568; 555841, 3692555; 555772, 3692585; 555736, 3692630; 555656, 3692647; 555576, 3692652; 555510, 3692634; 555430, 3692621; 555384, 3692596; 555336, 3692588; 555254, 3692595; 555165, 3692617; 555093, 3692657; 555034, 3692714; 554983, 3692742; 554951, 3692741; 554897, 3692706; 554832, 3692680; 554735, 3692690; 554653, 3692737; 554578, 3692832; 554578, 3692882; 554582, 3692965; 554565, 3692998; 554559, 3693035; 554553, 3693196; 554548, 3693345; 554547, 3693423; 554570, 3693478; 554579, 3693523; 554542, 3693600; 554504, 3693683; 554471, 3693788; 554419, 3693910; 554400, 3694009; 554348, 3694075; 554287, 3694158; 554231, 3694252; 554217, 3694308; 554206, 3694451; 554173, 3694574; 554164, 3694602; 554154, 3694634; 554131, 3694713; 554142, 3694747; 554118, 3694756; 554107, 3694795; 554098, 3694876; thence returning to 554157, 3694858
(iv)Note: Map of subunit 4b for *Helianthus paradoxus* (Pecos sunflower) critical habitat follows: ER01AP08.343 BILLING CODE 4310-55-C
(v)Subunit 4c for *Helianthus paradoxus* , Oasis Dairy Subunit, Chaves County, New Mexico. From USGS 1:24,000 quadrangles Bottomless Lakes and South Spring, lands bounded by the following UTM NAD83 coordinates (meters E, meters N): 559225, 3688383; 559265, 3688370; 559292, 3688339; 559312, 3688333; 559335, 3688294; 559348, 3688262; 559355, 3688228; 559377, 3688207; 559420, 3688160; 559431, 3688128; 559436, 3688078; 559458, 3688030; 559492, 3687977; 559523, 3687927; 559548, 3687893; 559579, 3687870; 559595, 3687851; 559617, 3687819; 559638, 3687777; 559649, 3687709; 559647, 3687656; 559636, 3687605; 559608, 3687555; 559584, 3687497; 559559, 3687483; 559533, 3687486; 559506, 3687488; 559486, 3687523; 559475, 3687573; 559474, 3687634; 559481, 3687686; 559480, 3687729; 559469, 3687782; 559446, 3687826; 559433, 3687871; 559412, 3687924; 559385, 3687977; 559365, 3688014; 559345, 3688040; 559325, 3688077; 559305, 3688122; 559282, 3688159; 559238, 3688182; 559204, 3688219; 559184, 3688267; 559184, 3688314; 559199, 3688359; thence returning to 559225, 3688383. 558767, 3686447; 558771, 3686449; 558790, 3686451; 558823, 3686444; 558852, 3686446; 558879, 3686451; 558899, 3686458; 558917, 3686464; 558932, 3686466; 558952, 3686459; 558963, 3686453; 558977, 3686433; 558986, 3686422; 558997, 3686411; 559012, 3686407; 559030, 3686392; 559038, 3686377; 559038, 3686361; 559035, 3686343; 559031, 3686291; 559031, 3686253; 559026, 3686238; 559014, 3686223; 558985, 3686205; 558960, 3686191; 558934, 3686182; 558915, 3686177; 558884, 3686164; 558866, 3686152; 558839, 3686137; 558817, 3686127; 558804, 3686124; 558795, 3686123; 558772, 3686135; 558745, 3686144; 558722, 3686150; 558700, 3686157; 558678, 3686161; 558650, 3686157; 558621, 3686154; 558589, 3686153; 558561, 3686152; 558534, 3686153; 558498, 3686144; 558467, 3686137; 558439, 3686122; 558415, 3686108; 558398, 3686086; 558385, 3686058; 558380, 3686024; 558387, 3685985; 558396, 3685944; 558404, 3685914; 558408, 3685894; 558404, 3685879; 558387, 3685862; 558363, 3685843; 558338, 3685818; 558318, 3685805; 558305, 3685787; 558290, 3685762; 558284, 3685734; 558286, 3685712; 558292, 3685684; 558294, 3685662; 558288, 3685634; 558286, 3685609; 558276, 3685584; 558262, 3685566; 558253, 3685552; 558232, 3685540; 558208, 3685531; 558183, 3685532; 558148, 3685542; 558126, 3685553; 558099, 3685568; 558086, 3685583; 558073, 3685608; 558071, 3685633; 558079, 3685654; 558095, 3685671; 558115, 3685672; 558132, 3685672; 558150, 3685666; 558163, 3685655; 558192, 3685654; 558209, 3685658; 558221, 3685671; 558221, 3685689; 558221, 3685714; 558220, 3685738; 558211, 3685759; 558209, 3685781; 558207, 3685799; 558218, 3685819; 558232, 3685829; 558250, 3685836; 558262, 3685843; 558270, 3685859; 558275, 3685880; 558273, 3685888; 558255, 3685909; 558253, 3685931; 558252, 3685946; 558256, 3685956; 558259, 3685975; 558260, 3685989; 558258, 3686009; 558256, 3686024; 558250, 3686035; 558240, 3686046; 558233, 3686056; 558223, 3686065; 558221, 3686071; 558220, 3686078; 558224, 3686092; 558227, 3686102; 558227, 3686119; 558219, 3686147; 558215, 3686174; 558216, 3686193; 558228, 3686212; 558243, 3686232; 558267, 3686257; 558281, 3686271; 558297, 3686283; 558315, 3686290; 558338, 3686302; 558355, 3686314; 558368, 3686325; 558393, 3686346; 558406, 3686362; 558423, 3686381; 558432, 3686397; 558438, 3686423; 558437, 3686445; 558425, 3686461; 558410, 3686475; 558392, 3686490; 558373, 3686507; 558364, 3686529; 558413, 3686519; 558466, 3686502; 558514, 3686488; 558558, 3686475; 558601, 3686470; 558635, 3686457; 558667, 3686443; 558689, 3686445; 558720, 3686431; thence returning to 558767, 3686447.
(vi)Note: Map of Subunit 4c for *Helianthus paradoxus* (Pecos sunflower) critical habitat follows: BILLING CODE 4310-55-P ER01AP08.344 BILLING CODE 4310-55-C
(vii)Subunit 4d for *Helianthus paradoxus* , Lea Lake at Bottomless Lakes State Park, Chaves County, New Mexico. From USGS 1:24,000 quadrangle Bottomless Lakes, lands bounded by the following UTM NAD83 coordinates (meters E, meters N): 562371, 3687020; 562381, 3687019; 562402, 3687011; 562419, 3686993; 562437, 3686976; 562464, 3686956; 562476, 3686950; 562499, 3686947; 562515, 3686938; 562519, 3686919; 562520, 3686895; 562511, 3686875; 562495, 3686857; 562483, 3686851; 562471, 3686849; 562453, 3686850; 562442, 3686836; 562432, 3686814; 562420, 3686784; 562409, 3686747; 562410, 3686718; 562402, 3686690; 562391, 3686663; 562366, 3686642; 562325, 3686637; 562286, 3686639; 562276, 3686652; 562230, 3686695; 562216, 3686715; 562203, 3686732; 562200, 3686752; 562201, 3686770; 562203, 3686791; 562208, 3686818; 562221, 3686835; 562225, 3686852; 562222, 3686868; 562216, 3686888; 562217, 3686914; 562230, 3686939; 562250, 3686958; 562270, 3686978; 562293, 3686992; 562323, 3687006; 562351, 3687016; thence returning to 562371, 3687020.
(viii)Note: Map of Subunit 4d for *Helianthus paradoxus* (Pecos sunflower) critical habitat follows: ER01AP08.345
(ix)Subunit 4e for *Helianthus paradoxus* , Dexter Cienega, Chaves County, New Mexico. From USGS 1:24,000 quadrangle Dexter East, lands bounded by the following UTM NAD83 coordinates (meters E, meters N): 559316, 3678509; 559316, 3678510; 559329, 3678521; 559339, 3678530; 559355, 3678547; 559372, 3678557; 559402, 3678565; 559412, 3678566; 559432, 3678560; 559452, 3678542; 559471, 3678532; 559508, 3678527; 559525, 3678528; 559567, 3678532; 559595, 3678535; 559622, 3678521; 559635, 3678495; 559645, 3678472; 559648, 3678443; 559642, 3678414; 559630, 3678392; 559622, 3678376; 559606, 3678361; 559582, 3678344; 559549, 3678334; 559519, 3678314; 559493, 3678303; 559464, 3678290; 559439, 3678280; 559410, 3678271; 559381, 3678263; 559358, 3678260; 559329, 3678249; 559293, 3678233; 559265, 3678223; 559234, 3678215; 559205, 3678201; 559177, 3678193; 559160, 3678178; 559132, 3678157; 559111, 3678136; 559083, 3678118; 559048, 3678097; 559012, 3678082; 558980, 3678067; 558948, 3678058; 558915, 3678047; 558884, 3678045; 558855, 3678046; 558830, 3678054; 558801, 3678062; 558776, 3678067; 558754, 3678070; 558732, 3678071; 558714, 3678078; 558703, 3678089; 558702, 3678101; 558703, 3678116; 558711, 3678128; 558728, 3678126; 558757, 3678122; 558776, 3678124; 558812, 3678130; 558833, 3678134; 558843, 3678141; 558856, 3678145; 558869, 3678166; 558895, 3678186; 558906, 3678205; 558926, 3678207; 558948, 3678215; 558966, 3678227; 558976, 3678240; 558995, 3678256; 559017, 3678272; 559038, 3678284; 559074, 3678307; 559099, 3678323; 559124, 3678334; 559157, 3678352; 559185, 3678364; 559210, 3678373; 559242, 3678378; 559260, 3678389; 559269, 3678401; 559268, 3678424; 559272, 3678437; 559285, 3678457; 559299, 3678486; thence returning to 559316, 3678509.
(x)Note: Map of Subunit 4e for *Helianthus paradoxus* (Pecos sunflower) critical habitat follows: ER01AP08.346
(9)Unit 5: West Texas-Diamond Y Springs, Pecos County, Texas.
(i)Unit 5 for *Helianthus paradoxus* , West Texas—Diamond Y Spring, Pecos County, Texas. From USGS 1:24,000 quadrangles Diamond Y Spring and Fort Stockton West, lands bounded by the following UTM NAD83 coordinates (meters E, meters N): 698884, 3432181; 698826, 3432165; 698791, 3432139; 698736, 3432128; 698662, 3432110; 698622, 3432104; 698558, 3432087; 698508, 3432029; 698495, 3431944; 698484, 3431889; 698482, 3431809; 698466, 3431762; 698429, 3431714; 698368, 3431658; 698333, 3431624; 698304, 3431582; 698291, 3431529; 698275, 3431500; 698238, 3431492; 698183, 3431494; 698143, 3431534; 698111, 3431608; 698106, 3431682; 698132, 3431764; 698180, 3431828; 698222, 3431883; 698217, 3431955; 698246, 3432042; 698267, 3432103; 698288, 3432156; 698299, 3432225; 698275, 3432262; 698196, 3432251; 698069, 3432206; 697987, 3432198; 697936, 3432214; 697876, 3432223; 697820, 3432243; 697774, 3432254; 697727, 3432259; 697728, 3432663; 697784, 3432632; 697855, 3432612; 697932, 3432595; 698003, 3432587; 698052, 3432577; 698116, 3432570; 698179, 3432573; 698264, 3432570; 698313, 3432580; 698359, 3432591; 698402, 3432587; 698462, 3432584; 698507, 3432584; 698550, 3432584; 698596, 3432591; 698652, 3432605; 698702, 3432630; 698772, 3432665; 698814, 3432700; 698860, 3432736; 698920, 3432796; 699002, 3432859; 699062, 3432895; 699125, 3432930; 699204, 3432951; 699241, 3432959; 699347, 3432935; 699405, 3432877; 699416, 3432816; 699427, 3432729; 699411, 3432697; 699352, 3432634; 699310, 3432560; 699281, 3432504; 699265, 3432456; 699265, 3432409; 699270, 3432345; 699263, 3432289; 699233, 3432258; 699186, 3432213; 699128, 3432200; 699080, 3432194; 699011, 3432202; 698934, 3432197; thence returning to 698884, 3432181
(ii)Note: Map of Unit 5 for *Helianthus paradoxus* (Pecos sunflower) critical habitat follows: ER01AP08.347 Dated: March 17, 2008. David M. Verhey, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. E8-5811 Filed 3-31-08; 8:45 am] BILLING CODE 4310-55-C 73 63 Tuesday, April 1, 2008 Rules and Regulations Part IV Securities and Exchange Commission 17 CFR Parts 200, 239 and 240 Internet Availability of Proxy Materials; Regulation of Takeovers and Security Holder Communications; Cross-Border Tender and Exchange Offers, Business Combinations and Rights Offerings; Certain Other Related Rule Corrections; Final Rule SECURITIES AND EXCHANGE COMMISSION 17 CFR Parts 200, 239 and 240 [Release Nos. 34-55146A; IC-27671A; 34-56135A; IC-27911A; 33-7759A; 33-7760A; 34-42054A; 34-42055A; 39-2378A; IC-24107A; IS-1208A; File Nos. S7-10-05; S7-03-07; S7-28-98 and S7-29-98] RIN 3235-AJ47; 3235-AG84 and 3235-AD97 Internet Availability of Proxy Materials; Regulation of Takeovers and Security Holder Communications; Cross-Border Tender and Exchange Offers, Business Combinations and Rights Offerings; Certain Other Related Rule Corrections AGENCY: Securities and Exchange Commission. ACTION: Final rule; technical amendments. SUMMARY: This release contains technical amendments to Rule 14a-3(a)(3)(i), which was published in the **Federal Register** of Wednesday, August 1, 2007 (72 FR 42221), and Rule 14a-16(m), which was published in the **Federal Register** of Monday, January 29, 2007 (72 FR 4147). The rules do not permit, or require, the use of the notice and access model regarding Internet availability of proxy materials with respect to business combination transactions. We are also making technical amendments to Rules 14b-1 and 14b-2, which were published in the **Federal Register** of Wednesday, August 1, 2007 (72 FR 42221), to correct references in those rules. Further, we are making technical corrections to rules that were modified in Release Nos. 33-7759 and 33-7760, which were published in the **Federal Register** on November 10, 1999 (64 FR 61382 and 64 FR 61408, respectively). The amended rules revised the rules and regulations applicable to takeover transactions, including tender offers, mergers, acquisitions and similar extraordinary transactions, and, in order to facilitate U.S. investor participation, modified the rules relating to cross-border tender and exchange offers, business combinations and rights offerings relating to the securities of foreign private issuers. This document corrects certain cross-references in the regulatory text of the adopting releases, removes a reference to an inapplicable statute, otherwise corrects certain typographical errors, updates the contact information for the agency and amends the delegated authority of the Divisions of Corporation Finance and Market Regulation relating to issuer tender offers. DATES: *Effective Date:* April 1, 2008. FOR FURTHER INFORMATION CONTACT: Celeste M. Murphy, Special Counsel, Office of Mergers and Acquisitions at
(202)551-3440 or Ray Be, Special Counsel, Office of Rulemaking at
(202)551-3430, in the Division of Corporation Finance, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549. SUPPLEMENTARY INFORMATION: We are amending Forms F-4, F-8, F-9, F-10, F-80 and CB under the Securities Act of 1933; 1 Rules 0-11, 2 13e-3, 3 13e-4, 4 14a-2, 5 14a-3, 6 14a-14, 7 14a-16, 8 14b-1, 9 14b-2, 10 14d-1, 11 14d-3, 12 14d-9, 13 and 14e-1, 14 the title to Regulation 13D, 15 and Schedules 13D, 16 13G, 17 13E-4F, 18 TO, 19 14D-9, 20 14D-1F 21 and 14D-9-F 22 under the Securities Exchange Act of 1934; 23 and Rules 30-1 24 and 30-3 25 of the Rules of Organization and Program Management. 26 1 See 17 CFR 239.34, 17 CFR 239.38, 17 CFR 239.39, 17 CFR 239.40, 17 CFR 239.41, 17 CFR 239.800. 2 17 CFR 240.0-11. 3 17 CFR 240.13e-3. 4 17 CFR 240.13e-4. 5 17 CFR 240.14a-2. 6 17 CFR 240.14a-3. 7 17 CFR 240.14a-14. 8 17 CFR 240.14a-16. 9 17 CFR 240.14b-1. 10 17 CFR 240.14b-2. 11 17 CFR 240.14d-1. 12 17 CFR 240.14d-3. 13 17 CFR 240.14d-9. 14 17 CFR 240.14e-1. 15 17 CFR 240.13d-1-240.13f-1. 16 17 CFR 240.13d-101. 17 17 CFR 240.13d-102. 18 17 CFR 240.13e-102. 19 17 CFR 240.14d-100. 20 17 CFR 240.14d-101. 21 17 CFR 240.14d-102. 22 17 CFR 240.14d-103. 23 15 U.S.C. 78a *et seq.* 24 17 CFR 200.30-1. 25 17 CFR 200.30-3. 26 This authority relates to determining the applicability of the rules relating to issuer tender offers, which used to be interpreted by the Division of Market Regulation (now the Division of Trading and Markets). For several years, issuer tender offers have been handled only by the Division of Corporation Finance. I. Background to Internet Availability of Proxy Materials; Correction A. Rules 14a-3(a)(3)(i) and 14a-16(m) On January 22, 2007, the Commission adopted, 27 among other things, new Rule 14a-16(m) 28 under the Securities Exchange Act of 1934. On July 26, 2007, 29 the Commission adopted amendments to Rule 14a-3(a)(3). 30 These rules do not permit, or require, the use of the notice and access model regarding Internet availability of proxy materials with respect to business combination transactions. 27 See Release No. 34-55416 (Jan. 22, 2007) [72 FR 4147]. 28 17 CFR 240.14a-16(m). 29 See Release No. 34-56135 (July 26, 2007) [72 FR 42221]. 30 17 CFR 240.14a-3(a)(3). After the adoption of the rules, questions arose regarding whether the business combination transaction exclusion applied to all such certain transactions, including cash mergers. Although the discussion of this provision in the adopting release makes it clear that such transactions are covered by the exclusion, the regulatory text does not state that such transactions are excluded by virtue of its failure to reference applicable rule provisions. The proposing release had an identical discrepancy. 31 Specifically, the discussion in the adopting release stated: 31 See Release No. 34-52926 (Dec. 8, 2005) [70 FR 74598]. As adopted, the notice and access model is not available with regard to proxy materials related to a business combination transaction, which includes transactions covered by Rule 165 under the Securities Act, *as well as transactions for cash consideration requiring disclosure under Item 14 of Schedule 14A.* (emphasis added) However, the regulatory text as adopted describes the business combination transactions excluded from the notice and access model as those defined in Rule 165. 32 32 17 CFR 230.165. Accordingly, the amendments set forth in this release clarify that Rules 14a-3(a)(3)(i) and 14a-16(m) do not permit, or require, the use of the notice and access model with respect to business combination transactions as defined in Rule 165 under the Securities Act, as well as transactions for cash consideration requiring disclosure under Item 14 of Schedule 14A. 33 This change is a technical correction to clarify the rule as described in the original adopting release. 33 17 CFR 240.14a-101. B. Rules 14b-1 and 14b-2 On June 20, 2007, the Commission adopted, among other things, amendments to Rules 14b-1 and 14b-2 under the Exchange Act. 34 The amendatory language in that release erroneously contained references to “Legends 1 and 2” in paragraph (d)(5)(iii)(A) of each of those rules. These references should have been to “Legends 1 and 3,” consistent with the corresponding Rule 14a-16(n)(4)(i). All of these references address the legends not required in the Notice of Internet Availability of Proxy Materials. As we stated in the adopting release, the intent of this provision is to indicate that the issuer need not include the part of the prescribed legend relating to security holder requests for copies of the documents and instructions on how to request a copy of the proxy materials. The relevant legends are Legends 1 and 3, rather than Legends 1 and 2. Therefore, we are correcting those references. 34 See Release No. 34-56135 (July 26, 2007) [72 FR 42221]. II. Discussion of Corrections to Regulation of Takeovers and Security Holder Communications; Cross-Border Tender and Exchange Offers, Business Combinations and Rights Offerings; and Certain Other Related Rule Corrections A. Cross-references to Old Schedules 14D-1 and 13E-4 and Related Disclosure Items The amendments to Forms F-8, F-9, F-10 and F-80 under the Securities Act, Rules 0-11, 13e-4, and 14e-1 and Schedules 13D, 13G, 3E-4F and 14D-1F under the Exchange Act and Rule 30-1 under the Rules of Organization and Program Management are necessary to correct inaccurate cross-references to a disclosure schedule that is no longer in use. We adopted changes to integrate the disclosure schedules for issuer and third-party tender offers so that one disclosure schedule is applicable to both types of tender offers. 35 Those changes combined prior Schedules 13E-4 and 14D-1, the prior disclosure schedules for issuer and third-party tender offers, respectively, into a new Schedule TO. Forms F-8, F-9, F-10 and F-80 under the Securities Act, Rule 14e-1(e) and Schedules 13D, 13G and 14D-1F under the Exchange Act and Rule 30-1 under the Rules of Organization and Program Management continue to refer to former Schedule 14D-1; Rule 13e-4 and Schedule 13E-4F under the Exchange Act continue to refer to former Schedule 13E-4. We are correcting these errors by changing the references to refer to Schedule TO. Rule 0-11 continues to refer to filings made pursuant to former Schedule 14D-1. We are correcting that error by referring to filings made under Section 14(d)(1) of the Exchange Act, consistent with similar references in Rule 0-11. 35 See Regulation of Takeovers and Security Holder Communications, Release No. 33-7760 (Oct. 22, 1999) [64 FR 61408] (the “Regulation M-A Adopting Rule Release”) at II.F.1. For similar reasons, the amendments to Form F-4 under the Securities Act and to Rule 14e-1 under the Exchange Act are necessary to correct inaccurate cross-references to disclosure requirements that were relocated and redesignated in the Regulation M-A Adopting Rule Release. As part of our effort to integrate the disclosure regimes applicable to issuer tender offers, third-party tender offers and going-private transactions, we adopted changes to combine all of the disclosure requirements in one central location in a subpart of Regulation S-K, referred to as Regulation M-A. 36 This eliminated the need for the disclosure schedules themselves to contain disclosure requirements, as the schedules could simply refer to the comprehensive disclosure requirements located in Regulation M-A. Form F-4 under the Securities Act continues to refer to Item 9(b)(1)-(6) of Schedule 13E-3 when it should refer to Item 1015(b) of Regulation M-A. Rule 14e-1(e) under the Exchange Act continues to refer to Item 11 of former Schedule 14D-1 when it should refer to Item 12 of Schedule TO and Item 1016(a) of Regulation M-A. We are correcting these erroneous cross-references by inserting the redesignated disclosure items. 36 *Id.* B. Repeal of the Public Utility Holding Company Act of 1935 The amendments to Rules 13e-3, 14a-2 and 14a-14 under the Exchange Act are necessary to remove references to a statute that has been repealed. Rules 13e-3 and 14a-2 contain exceptions to the applicability of the going private and proxy solicitation rules, respectively, under specified circumstances involving holding companies registered under the Public Utility Holding Company Act of 1935. 37 Rule 14a-14 refers to several statutes, including the Public Utility Holding Company Act, to direct readers of the rule to certain defined terms. 38 The Public Utility Holding Company Act of 1935 was repealed effective February 8, 2006. 39 We are removing these references to the Public Utility Holding Company Act in these rules. 37 17 CFR 240.13e-3(g)(3) and 17 CFR 240.14a-2(a)(5). 38 17 CFR 240.14a-14(b). 39 42 U.S.C. 16451 *et seq.* C. Typographical Errors The amendments to Rules 13e-4, 14d-1 and 14d-3 and Schedules TO and 14D-9 under the Exchange Act are necessary to correct certain typographical errors. In one instance, the rule contains a duplicate reference to “15 U.S.C.” in the citation to Section 10(a) of the Securities Act. 40 In two instances, where the rule provides a definition, the term being defined “United States” is stated twice, unlike the rest of the definitions provided in the same subsection of the rules. 41 Further, in one instance, a rule contains a cross-reference to Rule 14d-6(e)(2)(i) and
(ii)when the cross-reference should be to Rule 14d-6(d)(2)(i) and (ii), because subparagraph
(e)does not exist and the context in which the cross-reference is being made—giving telephonic notice of the tender offer to national securities exchanges and the National Association of Securities Dealers, Inc. (“NASD”) 42 —indicates that the reference should be to subparagraph (d), which discusses the information required for summary publication. 43 In two more instances, the rules similarly contain erroneous cross-references to Rule 14d-1(f) when the cross-reference should be to Rule 14d-1(h). 44 Subparagraph
(h)of Rule 14d-1 discusses the requirements for signatures and was previously located under subparagraph
(f)but was redesignated when we added provisions to the tender offer rules to include exemptions from Regulation 14D in certain instances in order to facilitate the participation of U.S. holders. 45 We are correcting these typographical errors by removing the duplicative references or changing the cross-reference to the correct rule, as applicable. 40 See Rule 13e-4(e)(2) (17 CFR 240.13e-4(e)(2)). 41 See Instruction 3 to Rule 13e-4(h)(8) and (i)(17 CFR 240.13e-4) and Instruction 4 to Rule 14d-1(c) and
(d)(17 CFR 240.14d-1). 42 The name of NASD has been changed to the Financial Industry Regulatory Authority, Inc. (“FINRA”). 43 See Rule 14d-3(a)(3) (17 CFR 240.14d-3(a)(3)). 44 See Instruction to Signature for Schedules TO and 14D-9. 45 See Cross-Border Tender and Exchange Offers, Business Combinations and Rights Offerings, Release No. 33-7759 (Oct. 22, 1999) [64 FR 61382] (“Cross-Border Release”). D. Cross-References to Former Rule 10b-13 The amendments to Schedules 13E-4F and 14D-1F under the Exchange Act are necessary to correct inaccurate cross-references to a rule that was amended and redesignated. Rule 10b-13 was redesignated as Rule 14e-5. 46 Schedules 13E-4F and 14D-1F continue to refer to Rule 10b-13. We are correcting these errors by changing the references to refer to Rule 14e-5. 46 See the Regulation M-A Adopting Rule Release at II.G.5.a. E. Title to Rules 13d-1 Through 13d-7 The amendment to the title of Rules 13d-1 through 13d-7, which set forth the disclosure requirements for reporting beneficial ownership, is necessary to change the reference from Regulation 13D to Regulation 13D-G. We adopted changes to those rules to, among other things, add a new schedule—Schedule 13G—that sets forth the disclosure requirements for reporting beneficial ownership and related information of certain equity securities that are held by specific investors, such as institutional investors. 47 At that time, we integrated the filing requirements for all beneficial owners under Rule 13d-1, and described this as the “initial step in the adoption of an integrated ownership reporting system to be denominated as Regulation 13D-G.” 48 We are amending the title to these rules to reflect our prior intentions. 47 See Filing and Disclosure Requirements Relating to Beneficial Ownership, Release No. 33-5925 (April 21, 1978) [43 FR 18484]. 48 *Id.* See also Filing and Disclosure Requirements Relating to Beneficial Ownership, Release No. 34-15348 (Nov. 22, 1978) [43 FR 55751] where we also stated that “ `Regulation 13D' is re-captioned `Regulation 13D-G'* * *” F. Reduction of Paper Submissions of Form CB The amendment to the instructions for submitting Form CB reduces the number of copies of paper submissions currently required under the rule from five to two. This change is necessary to alleviate the cost of providing a number of copies of paper submissions that we have found to be unnecessary. G. Elimination of Paper Submission of Amendments on Schedule 14D-9 The amendment to Rule 14d-9(c)(1) under the Exchange Act is necessary to eliminate references to paper submissions because Schedule 14D-9 and amendments thereto are now filed electronically. This is consistent with the other rules relating to tender offer filings. H. Relocation of Agency The amendments to Forms F-8, F-9, F-10, F-80 and CB and Schedules 13E-4F, 14D1-F and 14D-9F are necessary to update the contact information for the headquarters of the agency in light of its relocation. These changes will remove and update contact information so as to facilitate communications with the agency. I. Delegation of Authority to the Director of the Division of Corporation Finance Finally, we are amending the Rules of Organization and Program Management governing Delegations of Authority by removing certain delegated authority from the Division of Market Regulation and transferring part of it to the Division of Corporation Finance. Specifically, the Director of the Division of Market Regulation had the authority to grant exemptions from the issuer tender offer rules and determine the applicability of the issuer tender offer rules pursuant to Exchange Act Rule 13e-4(g) to any exchange or tender offer for which an exemptive order has been granted by a Canadian federal, provincial or territorial regulatory authority. Currently, the Division of Corporation Finance administers the application of the issuer tender offer rules, so it is not necessary for the Director of the Division of Market Regulation to have this delegated authority. We are removing the authority to grant exemptions from the issuer tender offer rules from the Director of the Division of Market Regulation and transferring the authority to determine the applicability of the issuer tender offer rules to tender and exchange offers made by issuers pursuant to Exchange Act Rule 13e-4(g) from the Director of the Division of Market Regulation to the Director of the Division of Corporation Finance. 49 The staff may submit matters to the Commission for consideration as it deems appropriate. 49 This transfer of authority is consistent with the broader authority that was granted to the Director of the Division of Corporation Finance in Rule 30-1(e)(16)(i) to grant or deny exemptions from the tender offer provisions of Rule 13e-4 of the Exchange Act. See Cross-Border Release. Because the broader authority contained in Rule 30-1(e)(16)(i), which covers issuer and third-party tender offers, was granted after the authority in Rule 30-1(e)(13) was granted, which covered only third-party tender offers, it is appropriate to include issuer tender offers in the authority in Rule 30-1(e)(13). III. Certain Findings Under the Administrative Procedure Act, a notice of proposed rulemaking is not required “(A) [for] interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice; or
(B)when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 50 The correcting amendments to Forms F-4, F-8, F-9, F-10, F-80 and CB under the Securities Act and Rules 0-11, 13e-3, 13e-4, 14a-2, 14a-3, 14a-14, 14a-16, 14b-1, 14b-2, 14d-1, 14d-3, 14d-9, and 14e-1, the title to Regulation 13D, and Schedules TO, 13E-4F, 13D, 13G, 14D-9, 14D-1F and 14D-9F under the Exchange Act are technical changes that conform the regulatory text to the intent of the Commission and correct certain cross-references and typographical errors. For these reasons, the Commission finds that there is no need to publish notice of these amendments. The amendments to the instructions for submitting Form CB, the amendment to Rule 14d-9(c)(1) under the Exchange Act, and the amendments to Rules 30-1 and 30-3 under the Rules of Organization and Program Management relate to agency organization, procedure, or practice. As such, notice of proposed rulemaking is not required. 50 5 U.S.C. 553(b). For similar reasons, the amendments do not require an analysis under the Regulatory Flexibility Act or analysis of major status under the Small Business Regulatory Enforcement Fairness Act. 51 51 See 5 U.S.C. 601(2) (for purposes of Regulatory Flexibility Act analysis, the term “rule” means any rule for which the agency publishes a general notice of proposed rulemaking) and 5 U.S.C. 804(3)(C) (for purposes of congressional review of agency rulemaking, the term “rule” does not include any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties). The Administrative Procedures Act also requires publication of a rule at least 30 days before its effective date unless the agency finds otherwise for good cause. 52 For the same reasons described with respect to opportunity for notice and comment, the Commission finds there is good cause for the amendments to take effect on April 1, 2008. 52 See 5 U.S.C. 553(d)(3). IV. Need for Correction As published, certain regulations referenced in this release contain errors which may prove to be misleading and are in need of clarification. Text of Amendments List of Subjects 17 CFR Part 200 Administrative practice and procedure; Authority delegations (Government Agencies). 17 CFR Parts 239 and 240 Reporting and recordkeeping requirements, Securities. Text of the Adopted Rules Accordingly, Title 17 Chapter II of the Code of Federal Regulations is corrected by making the following amendments: PART 200—ORGANIZATION; CONDUCT AND ETHICS; AND INFORMATION AND REQUESTS 1. The authority citation for part 200, subpart A continues to read, in part, as follows: Authority: 15 U.S.C. 77o, 77s, 77sss, 78d, 78d-1, 78d-2, 78w, 78 *ll* (d), 78mm, 80a-37, 80b-11, and 7202, unless otherwise noted. 2. Amend § 200.30-1 by revising paragraph (e)(13) to read as follows: § 200.30-1 Delegation of authority to Director of Division of Corporation Finance.
(e)* * *
(13)To determine with respect to a tender or exchange offer otherwise eligible to be made pursuant to rule 13e-4(g) (§ 240.13e-4(g) of this chapter) or rule 14d-1(b) (§ 240.14d-1(b) of this chapter) whether, in light of any exemptive order granted by a Canadian federal, provincial or territorial regulatory authority, application of certain or all of the provisions of section 13(e)(1) and sections 14(d)(1) through 14(d)(7) of the Exchange Act, rule 13e-4, Regulation 14D (§§ 240.14d-1—240.14d-103 of this chapter) and Schedules TO and 14D-9 thereunder (§§ 240.14d-100 and 240.14d-101 of this chapter), and rule 14e-1 of Regulation 14E (§§ 240.14e-1—240.14f-1 of this chapter), to such offer is necessary or appropriate in the public interest. § 200.30-3 [Amended] 3. Amend § 200.30-3 by removing and reserving paragraph (a)(35). PART 239—FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933 4. The authority citation for part 239 continues to read, in part, as follows: Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77z-3, 77sss, 78c, 78 *l* , 78m, 78n, 78o(d), 78u-5, 78w(a), 78 *ll* , 78mm, 80a-2(a), 80a-3, 80a-8, 80a-9, 80a-10, 80a-13, 80a-24, 80a-26, 80a-29, 80a-30, and 80a-37, unless otherwise noted. 5. Amend Form F-4 (referenced in § 239.34) paragraph
(b)of Item 4 in Part I, revise the phrase “Item 9(b)(1) through
(6)of Schedule 13E-3 (§ 240.13e-100 of this chapter)” to read “Item 1015(b) of Regulation M-A (§ 229.1015(b) of this chapter)”. Note: The text of Form F-4 does not, and this amendment will not, appear in the Code of Federal Regulations. 6. Amend Form F-8 (referenced in § 239.38) by: a. In paragraph C. of General Instruction IV., second and third sentences, revise the phrase “(202) 942-8900.” to read “(202) 551-8900.” and revise the phrase “(202) 942-2940.” to read “(202) 551-3610.”; and b. In paragraph D. of General Instruction V., first sentence, revise the phrase “Schedule 14D-1” to read “Schedule TO”. Note: The text of Form F-8 does not, and this amendment will not, appear in the Code of Federal Regulations. 7. Amend Form F-9 (referenced in § 239.39) by: a. In paragraph D. of General Instruction II., second and third sentences, revise the phrase “(202) 942-8900.” to read “(202) 551-8900.” and the phrase “(202) 942-2940.” to read “(202) 551-3610.”; and b. In paragraph D. of General Instruction III., first sentence, revise the phrase “Schedule 14D-1” to read “Schedule TO”. Note: The text of Form F-9 does not, and this amendment will not, appear in the Code of Federal Regulations. 8. Amend Form F-10 (referenced in § 239.40) by: a. In paragraph D. of General Instruction II., second and third sentences, revise the phrase “(202) 942-8900.” to read “(202) 551-8900.” and the phrase “(202) 942-2940.” to read “(202) 551-3610.”; and b. In paragraph D. of General Instruction III., first sentence, revise the phrase “Schedule 14D-1” to read “Schedule TO”. Note: The text of Form F-10 does not, and this amendment will not, appear in the Code of Federal Regulations. 9. Amend Form F-80 (referenced in § 239.41) by: a. In paragraph C. of General Instruction IV., second and third sentences, revise the phrase “(202) 942-8900.” to read “(202) 551-8900.” and the phrase “(202) 942-2940.” to read “(202) 551-3610.”; and b. In paragraph D. of General Instruction V., first sentence, revise the phrase “Schedule 14D-1” to read “Schedule TO”. Note: The text of Form F-80 does not, and this amendment will not, appear in the Code of Federal Regulations. 10. Amend Form CB (referenced in § 239.800) by: a. In paragraph A.(1), General Instruction II., second and third sentences, revise the phrase “(202) 942-8900.” to read “(202) 551-8900.” and the phrase “(202) 942-2940.” to read “(202) 551-3610.”; b. In paragraph A.(4), first sentence, revise the phrase “you must furnish five copies” to read “you must furnish two copies”; and c. In paragraph B., second sentence, “Instructions for Submitting Form” remove the phrase “and at least one copy”. Note: The text of Form CB does not, and this amendment will not, appear in the Code of Federal Regulations. PART 240—GENERAL RULES AND REGULATIONS; SECURITIES EXCHANGE ACT OF 1934 11. The authority citation for Part 240 continues to read, in part, as follows: Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, 78j-1, 78k, 78k-1, 78 *l* , 78m, 78n, 78o, 78p, 78q, 78s, 78u-5, 78w, 78x, 78 *ll* , 78mm, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4, 80b-11, and 7201 *et seq.* ; and 18 U.S.C. 1350, unless otherwise noted. § 240.30-11 [Amended] 12. Amend § 240.0-11 by revising: a. The heading to paragraph
(d)“ *Schedule 14D-1 filings.* ” to read “ *Section 14(d)(1) filings.* ”; and b. In paragraph (d), first sentence, the phrase “At the time of filing a Schedule 14D-1,” to read “At the time of filing such statement as the Commission may require pursuant to section 14(d)(1) of the Act,”. 13. Revise the undesignated center heading “Regulation 13D” preceding § 240.13d-1 to read “Regulation 13D-G”. § 240.13d-101 [Amended] 14. Amend § 240.13d-101, Schedule 13D, second paragraph, first sentence of the Notes that follow the *Instructions for Cover Page* by revising the cite “(Schedule 13D, 13G, or 14D-1)” to read “(Schedule 13D, 13G, or TO)”and remove the authority citations following the section. § 240.13d-102 [Amended] 15. Amend § 240.13d-102, Schedule 13G, second paragraph, first sentence, of the Notes that follow the *Instructions for Cover Page* by revising the phrase “(Schedule 13D, 13G or 14D-1)” to read “ (Schedule 13D, 13G or TO)” and removing the authority citations following the section. § 240.13e-3 [Amended] 16. Amend § 240.13e-3 by removing and reserving paragraph (g)(3) and removing the authority citations following the section. 17. Amend § 240.13e-4 by: a. In paragraph (a)(3), second sentence, revise the cite “Schedule 13E-4” to read “Schedule TO”; b. In paragraph (e)(2), first sentence, revise the cite “(15 U.S.C. (15 U.S.C. 77j(a))” to read “(15 U.S.C. 77j(a))”; and c. Revise Instruction 3 to Instructions to paragraph (h)(8) and (i). The revision reads as follows: § 240.13e-4 Tender offers by issuers. *Instructions to paragraphs (h)(8) and
(i)of this section:* 3. *United States* means the United States of America, its territories and possessions, any State of the United States, and the District of Columbia. § 240.13e-102 [Amended] 18. Amend § 240.13e-102, Schedule 13E-4F, by: a. Revising the phrase “(202) 942-8900.” to read “(202) 551-8900.” and the phrase “(202) 942-2940.” to read “(202) 551-3610.” in General Instruction II.A(1), second and third sentences; b. Revising the phrase “Schedule 13E-4” to read “Schedule TO” in General Instruction III.A. each time it appears; c. Revising the phrase “provisions of section 13(e)(1)” to read “provisions of section 13(e)(1) of the Exchange Act” in General Instruction III.A.; d. Revising the phrase “Rule 10b-13 under the Exchange Act (§ 240.10b-13)” to read “Rule 14e-5 under the Exchange Act (§ 240.14e-5)” in General Instruction III.C., first sentence; and e. Revising the phrase “Rule 10b-13” to read “Rule 10b-13, the predecessor to Rule 14e-5” in General Instruction III.C., second sentence. § 240.14a-2 [Amended] 19. Amend § 240.14a-2 by removing and reserving paragraph (a)(5). 20. Revise paragraph (a)(3)(i) of § 240.14a-3 to read as follows: § 240.14a-3 Information to be furnished to security holders.
(a)* * *
(3)* * *
(i)The solicitation relates to a business combination transaction as defined in § 230.165 of this chapter, as well as transactions for cash consideration requiring disclosure under Item 14 of § 240.14a-101. § 240.14a-14 [Amended] 21. Amend § 240.14a-14, paragraph (b), last sentence, by removing the phrase “the Public Utility Holding Company Act of 1935,”. 22. Revise paragraph
(m)of § 240.14a-16 to read as follows: § 240.14a-16 Internet availability of proxy materials.
(m)This section shall not apply to a proxy solicitation in connection with a business combination transaction, as defined in § 230.165 of this chapter, as well as transactions for cash consideration requiring disclosure under Item 14 of § 240.14a-101. 23. Revise paragraph (d)(5)(iii)(A) of § 240.14b-1 to read as follows: § 240.14b-1 Obligation of registered brokers and dealers in connection with the prompt forwarding of certain communications to beneficial owners.
(d)* * *
(5)* * *
(iii)* * *
(A)Legends 1 and 3 in § 240.14a-16(d)(1); and 24. Revise paragraph (d)(5)(iii)(A) of § 240.14b-2 to read as follows: § 240.14b-2 Obligation of banks, associations and other entities that exercise fiduciary powers in connection with the prompt forwarding of certain communications to beneficial owners.
(d)* * *
(5)* * *
(iii)* * *
(A)Legends 1 and 3 in § 240.14a-16(d)(1); and 25. Amend § 240.14d-1 by revising paragraph 4. of the *Instructions to paragraphs
(c)and (d)* to read as follows: § 240.14d-1 Scope of and definitions applicable to Regulations 14D and 14E. *Instructions to paragraphs
(c)and (d):* 4. *United States* means the United States of America, its territories and possessions, any State of the United States, and the District of Columbia. 26. Amend § 240.14d-3 by revising the introductory text of paragraph (a)(3) to read as follows: § 240.14d-3 Filing and transmission of tender offer statement.
(a)* * *
(3)Gives telephonic notice of the information required by Rule 14d-6(d)(2)(i) and
(ii)(§ 240.14d-6(d)(2)(i) and (ii)) and mails by means of first class mail a copy of such Schedule TO, including all exhibits thereto: § 240.14d-9 [Amended] 27. Amend § 240.14d-9, paragraph (c)(1), by removing the phrase “eight copies of” and removing the citations following the section. § 240.14d-100 [Amended] 28. Amend § 240.14d-100, last sentence, in the *Instruction to Signature* by revising the phrase “240.14d-1(f)” to read “240.14d-1(h)”. § 240.14d-101 [Amended] 29. Amend § 240.14d-101, last sentence in the *Instruction to Signature,* revise the phrase “See § 240.14d-1(f)” to read “See § 240.14d-1(h)”. § 240.14d-102 [Amended] 30. Amend § 240.14d-102 Schedule 14D1-F, by: a. Revising the phrase “(202) 942-8900.” to read “(202) 551-8900.” and the phrase “(202) 942-2940.” to read “(202) 551-3610.” in the second and third sentences of General Instruction II.A.(1); b. Revising each phrase “Schedule 14D-1” to read “Schedule TO” in General Instruction III.A.; c. Revising the phrase “with the provisions of sections 14(d)(1) through 14(d)(7)” to read “with the provisions of sections 14(d)(1) through 14(d)(7) of the Exchange Act,” in General Instruction III.A.; d. Revising the phrase “Rule 10b-13” to read “Rule 14e-5” in General Instruction III.C., first sentence; e. Revising the phrase “§ 240.10b-13” to read “§ 240.14e-5” in General Instruction III.C. first sentence; and f. Revising the phrase “Rule 10b-13” to read “Rule 10b-13, the predecessor to Rule 14e-5” in General Instruction III.C., second sentence. § 240.14d-103 [Amended] 31. Amend § 240.14d-103, second and third sentences of General Instruction II.A.(1), revise the phrase “(202) 942-8900.” to read “(202) 551-8900.” and the phrase “(202) 942-2940.” to read “(202) 551-3610.”. 32. Amend § 240.14e-1 to revise paragraph
(e)to read as follows: § 240.14e-1 Unlawful tender offer practices.
(e)The periods of time required by paragraphs
(a)and
(b)of this section shall be tolled for any period during which the bidder has failed to file in electronic format, absent a hardship exemption (§§ 232.201 and 232.202 of this chapter), the Schedule TO Tender Offer Statement (§ 240.14d-100), any tender offer material required to be filed by Item 12 of that Schedule pursuant to paragraph
(a)of Item 1016 of Regulation M-A (§ 229.1016(a) of this chapter), and any amendments thereto. If such documents were filed in paper pursuant to a hardship exemption ( *see* § 232.201 and § 232.202(d)), the minimum offering periods shall be tolled for any period during which a required confirming electronic copy of such Schedule and tender offer material is delinquent. Dated: March 17, 2008. By the Commission. Florence E. Harmon, Deputy Secretary. [FR Doc. E8-5708 Filed 3-31-08; 8:45 am] BILLING CODE 8011-01-P 73 63 Tuesday, April 1, 2008 Proposed Rules Part V Department of Transportation Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171, 173, 174 and 179 Hazardous Materials: Improving the Safety of Railroad Tank Car Transportation of Hazardous Materials; Proposed Rule DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171, 173, 174 and 179 [Docket No. FRA-2006-25169] RIN 2130-AB69 Hazardous Materials: Improving the Safety of Railroad Tank Car Transportation of Hazardous Materials AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The Pipeline and Hazardous Materials Safety Administration and the Federal Railroad Administration are proposing revisions to the Federal Hazardous Materials Regulations to improve the crashworthiness protection of railroad tank cars designed to transport poison inhalation hazard materials. Specifically, we are proposing enhanced tank car performance standards for head and shell impacts; operational restrictions for trains hauling tank cars containing PIH materials; interim operational restrictions for trains hauling tank cars not meeting the enhanced performance standards; and an allowance to increase the gross weight of tank cars that meet the enhanced tank-head and shell puncture-resistance systems. DATES: Submit comments by June 2, 2008. To the extent possible, late-filed comments will be considered as we develop a final rule. ADDRESSES: You may submit comments identified by the docket number FRA-2006-25169 by any of the following methods: • *Federal eRulemaking Portal:* *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:* 1-202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. *Instructions:* All submissions must include the agency name and docket number (FRA-2006-25169) for this rulemaking. Note that all comments received will be posted without change to *http://www.regulations.gov* including any personal information. Please see the Privacy Act heading in the “Regulatory Analyses and Notices” section of this document for Privacy Act information related to any submitted comments or materials. Internet users may access comments received by DOT at *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: William Schoonover,
(202)493-6229, Office of Safety Assurance and Compliance, Federal Railroad Administration; Lucinda Henriksen,
(202)493-1345, Office of Chief Counsel, Federal Railroad Administration; or Michael Stevens,
(202)366-8553, Office of Hazardous Materials Standards, Pipeline and Hazardous Materials Safety Administration. SUPPLEMENTARY INFORMATION: Abbreviations and Terms Used in This Document AAR—Association of American Railroads ABS—Automatic Block Signal Action Plan—National Rail Safety Action Plan ADAMS—Automated Dynamic Analysis of Mechanical Systems ARI—American Railway Car Institute ATIP—Automated Track Geometry Program BNSF—BNSF Railway Company BTS—Bureau of Transportation Statistics C 3 RS—Confidential Close Call Reporting System CEQ—Council on Environmental Quality CPC—Casualty Prevention Circular CI—Chlorine Institute CP—Canadian Pacific CPR—Conditional Probability of Release CSXT—CSX Transportation Department—U.S. Department of Transportation DOW—Dow Chemical Company DOT—U.S. Department of Transportation ECP—Electronically Controlled Pneumatic Brake Systems ETMS—Electronic Train Management System Federal hazmat law—Federal hazardous materials transportation law (40 U.S.C. 5101 *et seq.* ) FRA—Federal Railroad Administration HMR—Hazardous Materials Regulations NGRTCP—Next Generation Rail Tank Car Project NPRM—Notice of Proposed Rulemaking NTSB—National Transportation Safety Board OMB—Office of Management and Budget PHMSA—Pipeline and Hazardous Materials Safety Administration PIH—Poison Inhalation Hazard PTC—Positive Train Control PV—Present Value QA—Quality Assurance R&D—Research and Development RSAC—Railroad Safety Advisory Committee RSI—Railway Supply Institute SAFETEA-LU—Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A Legacy for Users, Pub. L. 109-59 SBA—Small Business Administration SOMC—Association of American Railroads Safety and Operations Management Committee SRT—Structural Reliability Technologies Tank Car Manual—Association of American Railroads Tank Car Committee Tank Car Manual TCC—Association of American Railroads Tank Car Committee TFI—The Fertilizer Institute TIH—Toxic Inhalation Hazard TRANSCAER®—Transportation Community Awareness and Emergency Response TSA—Department of Homeland Security, Transportation Security Administration Trinity—Trinity Industries, Inc. Union Tank—Union Tank Car Company UP—Union Pacific Railroad Company Volpe—Volpe National Transportation Systems Center Table of Contents for Supplementary Information I. Background II. Summary of Proposals in this NPRM III. Statutory Authority, Congressional Mandate, and NTSB Recommendations IV. Brief Overview of FRA Programs to Continuously Improve Rail Safety Outside of Tank Car-Specific Efforts V. Relevant Regulatory Framework VI. Railroad Accidents Involving Hazardous Materials Releases and Accompanying NTSB Recommendations A. Minot B. FRA's Responses to the NTSB Tank Car Recommendations for Minot C. Macdona D. Graniteville E. FRA's Responses to the NTSB Tank Car Recommendations for Graniteville VII. Evaluating the Risk Related to Potential Catastrophic Releases from PIH Tank Cars in the Future A. Graniteville B. Minot VIII. The Railroad Industry's Liability and the Impact of Accidents Involving the Shipment of PIH Materials on Insurance Costs and Shipping Rates IX. Industry Efforts to Improve Railroad Hazardous Materials Transportation Safety A. General Industry Efforts B. Trinity Industries, Inc.'s Special Permit Chlorine Car C. AAR Proposals for Enhanced Chlorine and Anhydrous Ammonia Tank Cars D. Dow/UP Safety Initiative and the Next Generation Rail Tank Car Project E. The Chlorine Institute Study X. Discussion of Relevant Tank Car Research XI. Discussion of Public Comments A. May 31-June 1, 2006 Public Meeting B. December 14, 2006 Public Meeting C. March 30, 2007 Public Meeting XII. Proposed Rule and Alternatives XIII. Section-by-Section Analysis XIV. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking B. Executive Order 12866 and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act and Executive Order 13272 F. Paperwork Reduction Act G. Regulation Identifier Number
(RIN)H. Unfunded Mandates Reform Act I. Environmental Assessment J. Privacy Act I. Background Hazardous materials are essential to the economy of the United States and to the well being of its people. These materials are used in water purification, farming, manufacturing, and other industrial applications. Railroads carry over 1.7 million shipments of hazardous materials annually, including millions of tons of explosive, poisonous, corrosive, flammable, and radioactive materials. The need for hazardous materials to support essential services means that the transportation of highly hazardous materials is unavoidable. Rail transportation of hazardous materials is a safe method for moving large quantities of hazardous materials over long distances. The vast majority of hazardous materials shipped by railroad tank car each year arrive at their destinations safely and without incident. In the year 2004 (most recent data available), for example, out of the approximately 1.7 million shipments of hazardous materials transported by rail, there were 29 accidents in which a hazardous material was released. In these accidents, a total of 47 hazardous material cars released some amount of product; thus, the risk of a release was a tiny fraction of a percent (0.0028 percent or 47/1,700,000). The DOT Hazardous Materials Information System's ten-year incident data for 1997 through 2006 identifies a total of 17 fatalities resulting from rail hazardous materials incidents. While even one death is too many, these statistics show that train accidents involving a release of hazardous materials that causes death are rare. We recognize, however, that rail shipments of hazardous materials frequently move through densely populated or environmentally-sensitive areas where the consequences of an incident could be loss of life, serious injury, or significant environmental damage. Historically, the Pipeline and Hazardous Materials Safety Administration (PHMSA), working closely with the Federal Railroad Administration (FRA), has issued a number of regulations to improve the survivability of rail tank cars in accidents. 1 Among other things, these regulations require hazardous material tank cars to be equipped with tank-head puncture resistance systems (head protection), coupler vertical restraint systems (shelf couplers), insulation, and for certain high-hazard materials, thermal protection systems. The historical safety record of railroad tank car hazardous material transportation demonstrates that these systems, working in combination, have been successful in greatly reducing the potential harm to human health and the environment when tank cars are involved in accidents. 1 *Crashworthiness Protection Requirements for Tank Cars; Detection and Repair of Cracks, Pits, Corrosion, Lining Flaws, Thermal Protection Flaws and Other Defects of Tank Car Tanks,* 60 FR 49048 (Sept. 21, 1995); *Performance-Oriented Packaging Standards; Miscellaneous Amendments* , 58 FR 50224 (Sept. 24, 1993); *Performance Oriented Packaging: Changes to Classification, Hazard Communication, Packaging and Handling Requirements Based on UN Standards and Agency Initiative,* 55 FR 52402 (Dec. 21, 1990); *Transportation of Hazardous Materials, Miscellaneous Amendments,* 54 FR 38790 (Sept. 20, 1989); *Specifications for Railroad Tank Cars Used to Transport Hazardous Materials,* 49 FR 3468 (Jan. 27, 1984); *Shippers, Specifications for Tank Cars,* 49 FR 3473 (Jan. 27, 1984); Interlocking *Couplers and Restrictions of Capacity of Tank Cars,* 35 FR 14215 (Sept. 9, 1970); *Shippers; Specifications for Pressure Tank Cars,* 42 FR 46306 (Sept. 15, 1977); *Tank Car Tank-head Protection,* 41 FR 21475 (May 26, 1976). In the last several years, however, there have been a number of rail tank car accidents in which the car was breached and product lost on the ground or into the atmosphere. Of particular concern have been accidents involving materials that are poisonous, or toxic, by inhalation (referred to as PIH or TIH materials). For example, on January 18, 2002, a Canadian Pacific Railway Company
(CP)train derailed in Minot, North Dakota, resulting in one death and 11 serious injuries due to the release of anhydrous ammonia when five tank cars carrying the product catastrophically ruptured, and a vapor plume covered the derailment site and surrounding area. On June 28, 2004, a Union Pacific Railroad Company
(UP)train collided with a Burlington Northern and Santa Fe Railway Company (now known as BNSF Railway Company)
(BNSF)train in Macdona, Texas, breaching a loaded tank car containing chlorine and causing the deaths of three people and seriously injuring 30 others. On January 6, 2005, a Norfolk Southern Railway Company train collided with a standing train on a siding in Graniteville, South Carolina. The accident resulted in the breach of a tank car containing chlorine, and nine people died from the inhalation of chlorine vapors. Although none of these accidents was caused by hazardous material tank cars, the failure of the tank cars involved led to fatalities, injuries, evacuations, property and environmental damage. On August 10, 2005, Congress passed the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Pub. L. 109-59 (SAFETEA-LU). SAFETEA-LU added section 20155 to the Federal hazmat law. 49 U.S.C. § 20155. As discussed below, section 20155, in part, required FRA to
(1)validate a predictive model quantifying the relevant dynamic forces acting on railroad tank cars under accident conditions, and
(2)initiate a rulemaking to develop and implement appropriate design standards for pressurized tank cars. In response to these recent accidents and in light of Congress's mandate in SAFETEA-LU to develop and implement appropriate design standards for pressurized tank cars, PHMSA and FRA, the two operating administrations within DOT responsible for overseeing the safe transportation of hazardous materials by rail, initiated a comprehensive review of design and operational factors that affect rail tank car safety. DOT's approach to enhancing the safety of rail tank cars and transportation of hazardous materials by rail tank cars is on-going and multi-faceted. For example, DOT is utilizing a risk management approach to identify ways to enhance the safe transportation of hazardous materials in tank cars, including:
(1)Tank car design, manufacture, and requalification;
(2)railroad operational issues such as human factors, track conditions and maintenance, wayside hazard detectors, signals and train control systems; and
(3)improved planning and training for emergency response. Recognizing the need for public input into this review of hazardous material tank car safety, on May 31 and June 1, 2006, PHMSA and FRA hosted a public meeting to discuss the initiation of this comprehensive review and to invite interested parties to participate in the agencies' efforts to surface and prioritize issues relating to the safe transportation of hazardous materials by railroad tank car. Subsequent to the meeting, FRA established a public docket (Docket No. FRA-2006-25169) to provide interested parties with a central location to both send and review relevant information concerning the safety of railroad tank car transportation of hazardous materials and a venue to gather and disseminate information and views on the issues. *See* 71 FR 37974 (July 3, 2006). Building on the initial public meeting, FRA and PHMSA held a second public meeting on December 14, 2006. At this second meeting, FRA announced DOT's commitment to develop an enhanced tank car standard by 2008. In addition, at this meeting, the agencies solicited input and comments in response to nine specific questions pertaining to potential methods and goals of tank car improvements. On March 30, 2007, PHMSA and FRA held a third public meeting at which FRA shared the preliminary results of its research related to tank car survivability and provided an update on DOT's progress towards developing enhanced tank car safety standards. As discussed in Section XI below, meeting participants from both the railroad and shipping industries expressed agreement on the need for continuous improvement in the safe transportation of hazardous materials by railroad tank car, particularly in light of the Minot, Macdona, and Graniteville accidents. Accordingly, after careful review and consideration of all of the relevant research and data, oral comments at the public meetings, and comments submitted to the docket, PHMSA and FRA are proposing enhanced tank car performance standards and operating limitations designed to minimize the loss of lading from tank cars transporting PIH materials in the event of an accident. Issuance of this NPRM does not mean that FRA and PHMSA's efforts to improve tank car safety will end. Improving the safety and security of hazardous materials transportation via railroad tank car is an on-going process. Going forward, FRA's hazardous materials research and development (R&D) program will continue to focus on reducing the rate and severity of hazardous materials releases by optimizing the manufacture, operation, inspection, and maintenance procedures for the hazardous materials tank car fleet. FRA's overall R&D program will also continue to examine railroad operating practices and the use of technologies designed to increase overall railroad safety. II. Summary of Proposals in this NPRM As discussed in detail in Section X below, DOT's tank car research has shown that the rupture of tank cars and loss of lading are principally associated with the car-to-car impacts that occur as a result of derailments and train-to-train collisions. Conditions during an accident can be such that a coupler of one car impacts the head or the shell of a tank car. With sufficient speed, such impacts can lead to rupture and loss of lading. When a tank car is transporting PIH materials, the consequences of that loss of lading can be significant. Based on the information currently available, DOT believes that a significant opportunity exists to enhance the safe transportation of PIH materials by railroad tank car. Accordingly, in order to enhance the safety of hazardous materials transportation, and in direct response to the Congressional directive of 49 U.S.C. 20155, DOT is proposing revisions to the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) that would improve the accident survivability of railroad tank cars used to transport PIH materials. Specifically, in this NPRM, we are proposing to require: • A maximum speed limit of 50 mph for all railroad tank cars used to transport PIH materials; • A maximum speed limit of 30 mph in non-signaled (i.e., dark) territory for all railroad tank cars transporting PIH materials, unless the material is transported in a tank car meeting the enhanced tank-head and shell puncture-resistance systems performance standards of this proposal; • As an alternative to the maximum speed limit of 30 mph in dark territory, submission for FRA approval of a complete risk assessment and risk mitigation strategy establishing that operating conditions over the subject track provide at least an equivalent level of safety as that provided by signaled track; • Railroad tank cars used to transport PIH materials to be manufactured to meet enhanced performance standards for tank-head and shell puncture-resistance systems; • The expedited replacement of tank cars used for the transportation of PIH materials manufactured before 1989 with non-normalized steel 2 head or shell construction; and 2 Non-normalized steel is steel that has not been subjected to a specific heat treatment procedure that improves the steel's ability to resist fracture. • An allowance to increase the gross weight on rail for tank cars designed to meet the proposed enhanced tank-head and shell puncture-resistance systems performance standards. In drafting this proposed rule, DOT has carefully considered the results of all of its research regarding tank car accident survivability, all comments received through the series of public meetings held in the course of DOT's comprehensive review of tank car safety, as well as all written comments submitted to the docket of this proceeding. DOT believes that its two-pronged approach to enhancing the accident survivability of tank cars—that is, limiting the operating conditions of the tank cars transporting PIH materials and enhancing the tank-head and shell puncture-resistance performance—represents the most efficient and cost-effective method of improving the accident survivability of these cars. DOT invites comments on all aspects of this proposed rule. First, with regard to the proposed speed and operating restrictions, we have reviewed the results of research on the current tank car fleet used for the transportation of PIH materials. We have also reviewed recent accidents and subsequent recommendations of the National Transportation Safety Board (NTSB). As discussed in Section X below, FRA's research demonstrates that the speed at which a train is traveling has the greatest effect on the closing velocity between cars involved in a derailment or other accident situation. Specifically, the research indicates that, in general, the secondary car-to-car impact speed is approximately one-half that of the initial train speed—the speed of the train at the time of the collision or derailment. Limiting the operating speed of tank cars transporting PIH materials is one method to impose a control on the forces experienced by these tank cars. The rail industry, through the Association of American Railroads (AAR), has developed a detailed protocol on recommended operating practices for the transportation of hazardous materials. These recommended practices were originally implemented in 1990 by all of the Class 1 rail carriers operating in the United States. In 2006, AAR issued a revised version of this protocol, known as Circular OT-55-I, with short-line railroads also participating in the implementation. Among other requirements, OT-55-I restricts the operating speeds to a maximum of 50 mph for key trains, which are defined to include trains containing five or more tank car loads of PIH materials. Pursuant to OT-55-I, most trains with tank cars containing PIH materials are transported under this speed restriction. The period in which these tank cars are picked up or delivered is the most likely time when a train might not contain a sufficient quantity of hazardous materials to meet the definition of a key train and thus not operate under the 50 mph speed restriction. However, it is likely that the class of track into the facility may already limit the speed below 50 mph. Under FRA's Track Safety Standards, 3 there are minimum safety requirements that a track must meet, and the condition of the track is directly tied to the maximum allowable operating speed for the track. Only the two highest categories of track typically used for freight service, Classes 4 and 5, have a maximum allowable operating speed above 50 mph. In addition, 50% of track in the United States is non-signaled and restricted by the Track Safety Standards to a speed limit of 49 mph. We therefore believe that the proposed restrictions in this NPRM represent an effective way to control the forces experienced by the tank car during most derailment or accident conditions without imposing an undue burden on the industry. We invite commenters to address whether our assumption that most tank cars transporting PIH materials are transported in accordance with the speed restrictions in OT-55-I is accurate, particularly for smaller and short-line carriers. In addition, we invite commenters to address whether there are alternative approaches to reduce the consequences of a train derailment or accident involving PIH materials, including data and information in support of suggested alternative approaches or strategies. 3 *See* 49 CFR part 213. FRA analyzed data from chlorine incidents between 1965 and 2005, and anhydrous ammonia incidents between 1981 and 2005, to study those incidents resulting in loss of product from head and shell punctures, cracks, and tears. 4 This analysis suggests that a disproportionate number of those incidents occurred in non-signaled
(dark)territory, as compared to the percentage of total train miles in dark territory. Additionally, this analysis showed that at the time of these accidents, the median train speed was 40 mph and the average speed was 38 mph. This analysis also demonstrates that approximately 80% of the losses occurred at speeds greater than 30 mph. Notably, no catastrophic losses of chlorine occurred at speeds below 30 mph. Based on this data, we are proposing an interim measure to limit the speed of the existing fleet of tank cars used to transport PIH materials when traversing non-signaled territory. Specifically, we propose to limit the maximum allowable operating speed to 30 mph for tank cars transporting PIH materials over non-signaled territory unless the tank cars meet the enhanced tank-head and shell puncture-resistance systems performance standards of this proposal. We are also proposing alternate provisions that a railroad may choose to follow in lieu of the speed restriction. 4 *See* document no. 30 in docket no. FRA-2006-25169, “Loss of TIH Product in Head and Shell Punctures, Cracks & Tears.” Second, we are proposing enhanced tank-head and shell puncture-resistance performance standards that are designed to enhance the accident survivability of tank cars. One critical aspect of this enhancement is improved tank-head and shell puncture-resistance standards. The enhanced standards would require tank cars that transport PIH materials in the United States to be designed and manufactured with a shell puncture-resistance system capable of withstanding impact at 25 mph and with a tank-head puncture-resistance system capable of withstanding impact at 30 mph. As noted above, we are proposing these enhanced performance standards in tandem with an operational speed restriction of 50 mph. Because the secondary car-to-car impact speed in a derailment or collision scenario is approximately one-half of the initial train speed, designing and constructing tank cars to withstand shell impacts of at least 25 mph and limiting the speed of those tank cars to 50 mph will ensure that in most instances, the car will not be breached if it is involved in a derailment or other type of accident. Designing and constructing tank cars to withstand tank-head impacts of at least 30 mph would take advantage of the greater available space for impact-attenuating structures in front of the tank-head and would help mitigate possible differences between the generalized tank-head impact scenarios and the actual tank-head impacts that occur in collisions or derailments. Empirical evidence from recent accidents and the derailment dynamics research prepared by the Volpe National Transportation Systems Center (Volpe) show that impacts happen to both tank car heads and shells. Tank car heads have historically been provided more protection than tank shells because the majority of tank car punctures occurred in rail yards to the heads of tank cars as a result of overspeed impacts. However, given the recent PIH releases in train accidents, we believe that it is time to enhance the accident survivability of the tank car, increasing the level of protection to both the tank-head and the shell. To support the enhanced tank-head and shell puncture-resistance standards, we are proposing performance criteria, including impact test requirements. The proposed tests reflect generalized impact scenarios as a means to evaluate the performance of alternative designs. In the shell impact scenario, a rigid ram car with a punch impacts the shell of the tank car. Similarly, in the head impact scenario, a rigid ram car with a punch impacts the head of the tank car. The test procedures are based on the modeling developed by Volpe and the baseline tank car testing performed in cooperation with the Next Generation Rail Tank Car Project (NGRTCP), as discussed in Section IX below. As proposed in this NPRM, compliance with the proposed standards can be shown by computer simulation, by simulation in conjunction with substructure testing, by full-scale impact testing, or a combination thereof. The highest level of confidence, although at the greatest cost, is provided by full-scale impact testing. The least costly and lowest level of confidence is provided by simulation alone. Substructure testing significantly increases the confidence in simulation modeling, potentially with relatively modest costs, depending on the details of the substructure test. Economic analysis indicates that freight rail industry economics should allow the development of several new tank car designs, through compliance shown with simulations and substructure testing. The performance criteria proposed in this NPRM provide for full-scale testing, scale model or component testing, simulation, or comparative analysis to an approved design. We are proposing to require designs for which no full-scale testing is performed to be submitted to FRA for review. FRA's review is necessary to ensure that modeling parameters and scale or substructure testing are sufficient to ensure that the necessary level of safety has been achieved. In evaluating a design, FRA will consider appropriate data and analysis showing how the proposed design meets the enhanced performance standards for head and shell impacts. FRA will consider proper documentation of competent engineering analysis or practical demonstrations, or both, which may include validated computer modeling, structural crush analysis, component testing, or any combination thereof. This approach is consistent with FRA's practice in determining compliance with equipment performance standards promulgated in other areas of railroad safety. *See, e.g.* , 49 CFR 229.211 (Locomotive Crashworthiness). We request comments on this proposal. Third, to ensure timely replacement of the PIH tank car fleet, we are proposing an implementation schedule that allows for design development and manufacturing ramp-up in the first two years after the final rule becomes effective. We are also proposing that in the next three years, one-half of the existing fleet will be replaced, with the remaining fleet replacement taking place in the following three years. This schedule will allow for replacement of the current PIH tank car fleet within eight years from the effective date of the final rule. One of the factors we have taken into consideration in developing this proposal is the NTSB's recommendations related to pre-1989 tank cars manufactured with non-normalized steel. The NTSB, in its report on the Minot, North Dakota accident, 5 concluded that low fracture toughness of non-normalized steels used for tank shells contributed to the complete fracture and separation of the derailed cars. While we believe that low fracture toughness of non-normalized steels is only one of many material and design characteristics that can contribute to tank car releases, the pre-1989 tank cars are reaching the upper limits of their useful life. Therefore, we believe that these pre-1989 cars, which were manufactured with non-normalized steel, should be replaced in an expedited fashion. To accomplish this safety goal, we propose to prohibit the use of tank cars manufactured with non-normalized steel heads or shells beginning five years after the effective date of the final rule. We want to emphasize that this requirement is focused on the expedited removal of the pre-1989 tank cars that were manufactured using non-normalized steel. We recognize the efforts of the AAR to incorporate requirements for normalized steel for cars manufactured after 1988. We also recognize that some tank car manufacturers began using normalized steel prior to 1988; those tank cars would not be affected by this proposal. 5 *See infra* Section VI for a detailed discussion of the Minot, North Dakota accident. Finally, we are proposing to allow an increase in the gross weight of tank cars allowed on rail. Improvements in tank car performance have historically relied in large part on thicker and/or stronger steel, which brings with it a corresponding addition to the empty weight of the tank car. Therefore, a potential consequence of the proposed enhanced tank-head and shell puncture-resistance performance standards in this NPRM could be a measurable increase in the total number of PIH rail shipments to convey the same quantity of product to the customer since a heavier tank car means must contain less lading to keep within the gross weight limit. As noted above, however, there is a long history of safe shipment of hazardous materials via railroad tank car, and the enhancements proposed in this NPRM will further increase the accident survivability of the tank cars used to transport PIH materials. Accordingly, we are proposing to allow an increase in the gross weight allowed on rail (up to 286,000 pounds) for tank cars that transport PIH materials to offset the potentially increased weight of the enhanced tank car. This measure should enable shippers to continue meeting customer demands without significantly increasing the total number of PIH shipments. In proposing to allow tank cars meeting the enhanced tank-head and shell puncture-resistance system requirements to weigh up to 286,000 pounds gross weight on rail, we recognize that there are mechanical and structural concerns that must be addressed to ensure the safety of these cars during transportation. To ensure that tank cars exceeding the existing 263,000 pound limitation and weighing up to 286,000 pounds gross weight on rail are mechanically and structurally sound, we propose to require that such cars conform to AAR Standard S-286-2002, SPECIFICATION FOR 286,000 LBS. GROSS RAIL LOAD CARS FOR FREE/UNRESTRICTED INTERCHANGE SERVICE (adopted November 2002 and revised September 1, 2005), which we propose to incorporate by reference into the HMR. AAR Standard S-286-2002 is the existing industry standard for designing, building, and operating rail cars at gross weights between 263,000 pounds and 286,000 pounds. A copy of AAR Standard S-286-2002 has been placed in the docket. We recognize that some facilities and railroads do not currently have infrastructure sufficient to support the use of a 286,000 pound tank car. We anticipate tank car designers, working with the end users, will develop tank cars that will meet the enhanced tank-head and shell performance standards while minimizing the addition of weight to the empty car. The existing tank car specifications provide flexibility that will allow some use of new technologies and materials to provide the improved accident survivability required by this proposal. DOT encourages the development of innovative engineering design changes to meet the proposed enhanced accident survivability standard while minimizing added weight to the empty tank car. We also anticipate that the growing use of rail cars with gross weight on rail exceeding 263,000 lbs. for non-hazardous commodities, such as coal and grain, will minimize the track infrastructure barriers to the use of the heavier cars over time. For these reasons, we believe that the number of PIH shipments will not be significantly increased by the proposed enhanced accident survivability standards. As in all aspects of this proposed rule, we request comments on this proposal. We are particularly interested in data and information concerning the extent to which track infrastructure has already been modified to accommodate heavier rail cars, including how those modifications were accomplished and at what cost. We also invite comments concerning additional infrastructure modifications that may be required to accommodate the heavier cars that would be permitted in accordance with the proposals in this NPRM and the extent to which PIH shipments along certain rail lines may increase because existing infrastructure may not accommodate heavier cars. The specific proposals in this rule are explained in more detail in Section XIII, the Section-by-Section Analysis, which is set forth below. III. Statutory Authority, Congressional Mandate, and NTSB Recommendations The Federal hazardous material transportation law (Federal hazmat law, 49 U.S.C. 5101 *et seq.* ) authorizes the Secretary of DOT (Secretary) to “prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce.” The Secretary has delegated this authority to PHMSA. 49 CFR 1.53(b). The HMR, promulgated by PHMSA, are designed to achieve three goals:
(1)To ensure that hazardous materials are packaged and handled safely and securely during transportation;
(2)to provide effective communication to transportation workers and emergency responders of the hazards of the materials being transported; and
(3)to minimize the consequences of an incident should one occur. The hazardous material regulatory system is a risk management system that is prevention-oriented and focused on identifying a safety or security hazard and reducing the probability and quantity of a hazardous material release. Under the HMR, hazardous materials are categorized by analysis and experience into hazard classes and packing groups based upon the risks that they present during transportation. The HMR specify appropriate packaging and handling requirements for hazardous materials, and require a shipper to communicate the material's hazards through the use of shipping papers, package marking and labeling, and vehicle placarding. The HMR also require shippers to provide emergency response information applicable to the specific hazard or hazards of the material being transported. Finally, the HMR mandate training requirements for persons who prepare hazardous materials for shipment or who transport hazardous materials in commerce. The HMR also include operational requirements applicable to each mode of transportation. The Secretary also has authority over all areas of railroad transportation safety (Federal railroad safety laws, 49 U.S.C. 20101 *et seq.* ), and has delegated this authority to FRA. 49 CFR 1.49. Pursuant to its statutory authority, FRA promulgates and enforces a comprehensive regulatory program (49 CFR parts 200-244) to address railroad track, signal systems, railroad communications, rolling stock, rear-end marking devices, safety glazing, railroad accident/incident reporting, locational requirements for the dispatch of U.S. rail operations, safety integration plans governing railroad consolidations, merger and acquisitions of control, operating practices, passenger train emergency preparedness, alcohol and drug testing, locomotive engineer certification, and workplace safety. FRA inspects railroads and shippers for compliance with both FRA and PHMSA regulations. FRA also conducts research and development to enhance railroad safety. In addition, both PHMSA and FRA are working with the emergency response community to enhance its ability to respond quickly and effectively to rail transportation accidents involving hazardous materials. As noted above, on August 10, 2005, Congress passed SAFETEA-LU, which added section 20155 to the Federal hazmat law. 49 U.S.C. 20155. In part, section 20155 required FRA to
(1)validate a predictive model quantifying the relevant dynamic forces acting on railroad tank cars under accident conditions, and
(2)initiate a rulemaking to develop and implement appropriate design standards for pressurized tank cars. Prior to the Minot accident and the enactment of SAFETEA-LU, FRA had initiated tank car structural integrity research. In response to the Minot accident, the NTSB made four safety recommendations to FRA specific to the structural integrity of hazardous material tank cars. The NTSB recommended that FRA analyze the impact resistance of steels in the shells of pressure tank cars constructed before 1989 and establish a program to rank those cars according to their risk of catastrophic failure and implement measures to eliminate or mitigate this risk. The NTSB also recommended that FRA validate the predictive model being developed to quantify the maximum dynamic forces acting on railroad tank cars under accident conditions and develop and implement tank car design-specific fracture toughness standards for tank cars used for the transportation of materials designated as Class 2 hazardous materials under the HMR. In response to the Graniteville accident, the NTSB recommended, in part, that FRA “require railroads to implement operating measures such as * * * reducing speeds through populated areas to minimize impact forces from accidents and reduce the vulnerability of tank cars transporting” certain highly-hazardous materials. Each of these NTSB recommendations is discussed in more detail in Section VI below. The Department considers this NPRM responsive to section 20155's mandate, as well as to the NTSB recommendations. IV. Brief Overview of FRA Programs To Continuously Improve Rail Safety Outside of Tank Car-Specific Efforts FRA implements a broad and extensive safety program directed at reducing accidents, casualties, loss of property and threats to the human environment. Through the Railroad Accident/Incident Reporting System, FRA gathers data that are employed in crafting responsive measures. *See* 49 CFR part 225. FRA safety standards address track, equipment, signal and train control systems, motive power and equipment, and operating practices. These regulations set out detailed requirements for design or system performance, inspection and testing, and training. With respect to rail equipment accident/incidents (“train accidents”), the regulations seek to reduce the risk of derailments, collisions, and other losses such as fires involving on-track equipment. FRA employs the Railroad Safety Advisory Committee (RSAC), a group comprised of all of FRA's stakeholders, to help identify safety needs and to fashion responsive regulations. FRA also conducts R&D, both independently and in concert with the railroad industry, to identify new ways to enhance safety. R&D products are as diverse as the Track Quality Index, which can help guide investments in program maintenance before safety limits are encountered, and a human-machine interface evaluation tool that can help evaluate control systems and display designs. On May 16, 2005, DOT and FRA launched the National Rail Safety Action Plan (Action Plan) to address further the safety issues that face the nation's rail industry. The Action Plan targeted the most frequent, highest risk causes of accidents; focused federal oversight and inspection resources; and accelerated research into new technologies that can improve safety. The Action Plan elements focused heavily on preventing train accidents caused by human factors and track—the two major categories of train accident causes. In the area of human factors, FRA has issued a proposed rule that seeks to ensure better management of railroad operational tests and inspections. The proposed rule is also intended to establish greater accountability for compliance with operating rules, particularly those that are involved in human factors train accidents, such as the handling of switches. FRA is now completing consultations within the RSAC regarding resolution of public comments on the proposed rule, and a final rule will be issued this year. In November 2006, FRA fulfilled an Action Plan objective by releasing a study report entitled *Validation and Calibration of a Fatigue Assessment Tool for Railroad Work Schedules.* That report, and an accompanying White Paper, confirmed the impact of fatigue on human factor train accidents and announced the availability of an analytical model that can be used to evaluate crew scheduling. On February 13, 2007, DOT delivered proposed railroad safety reauthorization legislation to the Congress (introduced by request as H.R. 1516 and S. 918) that would replace the 100-year-old Hours of Service Law with science-based regulations addressing fatigue. Because the genesis of human factors accidents is often unclear, FRA joined with a national coalition of employee organizations and railroads to launch the Confidential Close Call Reporting System (C 3 RS). The Bureau of Transportation Statistics
(BTS)supports this effort by collecting the data and ensuring the anonymity of the persons providing reports. Local labor/management/FRA teams use the data to identify safety needs before a serious accident occurs. An initial C 3 RS project is presently underway at a major UP facility, and additional pilots are being planned. Other human factors initiatives include projects on “behavior-based safety” that seek peer involvement in workplace safety, initiatives to promote crew resource management, and extensive research to support further program development. In FY 2008, FRA will be seeking to integrate many of these efforts into a larger Risk Reduction Program intended to advance safety beyond what can be accomplished with traditional command and control approaches. Recognizing that the best answer to human factor risks is sometimes technology that can “backstop” the person in cases when errors have high consequences, FRA continues to work actively to promote Positive Train Control
(PTC)systems and similar technology. For instance, FRA R&D provided funding and technical support for the BNSF's deployment of a new Switch Position Monitoring System on the railroad's Avard Subdivision. This system can detect a misaligned main track switch in non-signal territory and provide notification to the dispatcher for appropriate action. BNSF is also demonstrating track integrity circuit technology that can help identify broken rails without the full expense of a signal system. These technologies, which are forward compatible with the railroad's PTC system, known as the Electronic Train Management System (ETMS), are already being installed on additional rail lines. FRA approved the Product Safety Plan for ETMS Configuration I in December 2006, under a performance-based regulation issued with RSAC input in March of 2005. The Product Safety Plan was submitted under subpart H of 49 CFR part 236 and described in detail the train control technology, concept of operations, and results of safety analysis for the system (which in this configuration is designed for single track territory either with a traffic control system or without any signal system). In the field of track safety, FRA is taking concrete steps in both research and enforcement. FRA research has provided a new tool to detect cracks in joint bars. This optical recognition technology can capture and analyze images for very small cracks while mounted on a hi-rail truck or other on-track vehicle. The system is already in initial use by two major railroads. In order to ensure compliance with track geometry limits under load, FRA acquired two additional Automated Track Geometry Program
(ATIP)cars instrumented for measurement of geometry at track speed, supplementing an existing Office of Safety car (and use of FRA's research cars for geometry surveys when available). This expanded ATIP capability will permit FRA to survey the core of the national rail system on an annual basis, returning to problem areas, as appropriate, without sacrificing coverage. These two additional cars were in service as of April 30, 2007. One of the most vexing areas of track safety work is rail integrity. The concentration of rail traffic on a smaller, post-merger system together with growth in traffic, increasing gross weight of cars, and a slow pace of rail replacement has led to heavy reliance on internal rail inspections to detect rail flaws before they become service failures and pose the imminent risk of an accident. The President's Budget for the current fiscal year requested nine positions for rail integrity specialists to build a better organized and aggressive approach to oversight of railroad rail integrity programs. The Congress authorized funding sufficient to support this staffing in February, and FRA is recruiting for these positions. Over time, strengthened oversight of compliance with railroad safety regulations, introduction of new technology such as PTC, better management of fatigue affecting safety critical employees, and other steps should yield a reduction in the risk of train accidents that could affect the transportation of hazardous materials. FRA is encouraged that, after over a decade of gradual increases in train accidents associated with the growth of rail traffic and other factors, both the train accident rate and total train accidents declined in 2006. This decline likely reflects improved compliance with regulatory requirements, reduced stress from fatigue associated with service disruptions, and other factors. However, history suggests that the underlying factors that create safety challenges, such as growing rail service demands that strain capacity, aging infrastructure, and factors beyond the effective control of the railroads (e.g., natural disasters, impacts with heavy vehicles at highway-rail crossings) will continue to introduce substantial risk even as train accident rates decline. Accordingly, it is necessary for PHMSA and FRA to take the additional actions proposed in this NPRM to reduce the probability that future train accidents will involve catastrophic releases of PIH materials. Thus, the Action Plan provided for acceleration of the research underlying this proposed rule, which is intended to make tank cars used for PIH service more resistant to product loss when a train accident occurs. The Action Plan also noted with approval the action of major railroads to make available to emergency responders information concerning the top 25 commodities transported through their jurisdictions and called on the railroads to make additional efforts to provide emergency responders with hazardous materials information, including the location of cars hauling hazardous materials on specific trains. CSX Transportation and CHEMTREC—the 24-hour emergency assistance hotline provided as a service by chemical manufacturers—have partnered to provide a demonstration of technology that can readily provide consistent information to emergency responders. PHMSA and FRA encourage other railroads to join in this effort. V. Relevant Regulatory Framework Today railroad tank cars in the United States are designed, built, maintained, and operated under four primary sets of regulations and guidelines:
(1)Regulations and orders issued under the Federal railroad safety laws;
(2)regulations and orders issued under the Federal hazmat law;
(3)the AAR's Interchange Rules; 6 and
(4)the AAR Tank Car Committee's Tank Car Manual (Tank Car Manual). 7 6 AAR, *Interchange Rules* , Washington, DC, published annually in a “Field Manual” and an “Office Manual.” 7 AAR, Operations and Maintenance Dep't, Mechanical Div., *Manual of Standards and Recommended Practices; Section C-Part III* , “Specifications for Tank Cars, Specification M-1002” (revised annually). FRA's freight car, safety appliance, and power brake regulations in 49 CFR parts 215, 231, and 232 apply to tank cars as they do every other type of railroad freight car. Parts 215 and 232 establish minimum safety standards; railroads are free to supplement these standards with additional or more stringent safety standards that are not inconsistent with the Federal standards. 49 CFR 215.1 and 232.1. The HMR treat the tank car as a packaging and mandate safety features, permissible materials and methods of construction, as well as inspection and maintenance standards. A material identified as a hazardous material by the HMR may not be shipped by railroad tank car unless the tank car meets the requirements of the HMR. 49 CFR 173.31(a). A separate set of standards—the AAR Interchange Rules, issued by AAR's standing Tank Car Committee
(TCC)8 —govern the tender and acceptance of rail cars among carriers within the general system of railroad transportation. The AAR Interchange Rules address a range of design and operational requirements intended to promote uniformity and reciprocity in car handling, including the obligation of rail carriers to perform running repairs on equipment received in interchange. Historically, the AAR Interchange Rules also have addressed certain subjects, such as rail tank car standards, now covered comprehensively by the HMR. Most recently, as discussed below, the TCC has issued an interchange requirement (Casualty Prevention Circular 1175, as amended by Casualty Prevention Circular 1178) that would require tank cars transporting anhydrous ammonia and chlorine to meet tank car design standards that are more stringent than those specified in the HMR. 8 The Mechanical Division of AAR's Operations and Maintenance Department is responsible for industry freight car standards and for administering the Interchange Rules, a body of private law that governs the acceptance and use by railroads of equipment which they do not own. *See* fn. 8, *supra.* Railroads, as common carriers, are generally required to provide transportation services in a reasonable manner, and they may not impose unreasonable requirements as a condition precedent to providing rail transportation services. Accordingly, interchange requirements, such as Casualty Prevention Circular 1178, that restrict the movement of railroad tank cars that meet DOT standards must be reasonable, and, if challenged, the burden is on the railroad to establish the reasonableness of the restriction. *See Akron, Canton & Youngstown R.R.* v. *ICC,* 611 F.2d 1162, 1169 (6th Cir. 1979); *see also Consolidated Rail Corp.* v. *ICC,* 646 F.2d 642, 650 (D.C. Cir. 1981), *cert denied,* 454 U.S. 1047 (1981). Two of the factors that the Surface Transportation Board and the courts consider in determining the reasonableness of interchange requirements are whether there are Federal safety standards on point and whether a railroad has the ability to seek changes to these standards to meet the safety concerns of the railroad. *See Consolidated Rail,* 646 F.2d at 651. In fact, DOT has established safety standards for tank cars carrying PIH commodities and, pursuant to this rulemaking, is proposing enhanced standards for tank-head and shell puncture resistance systems for these cars. Through participation in this rulemaking, railroads and other interested parties have the ability to influence the enhanced safety standards ultimately adopted by DOT. As discussed below, DOT has concluded that it is inappropriate at this time to establish new standards for top fittings protection, but DOT will continue to work with interested parties on research and ongoing discussions aimed at establishing enhanced consensus standards. There is, therefore, no reasonable basis for the railroads to implement Casualty Prevention Circular 1178 at this time. Railroads are free at any time to seek stricter tank car safety standards through a DOT rulemaking (49 CFR 106.95); to date, no rail carrier has petitioned PHMSA to adopt the tank car standards embodied in Casualty Prevention Circular 1178. FRA has notified the AAR that before the TCC can implement the proposed requirements in Circular 1178, the proposal must be submitted to DOT for approval. The AAR TCC is a standing committee of the Mechanical Division of AAR's Operations and Maintenance Department. Voting members of the TCC include representatives of AAR member railroads, as well as tank car shipper and owner organizations, tank car builders, and chemical and industry associations. In addition, the Bureau of Explosives and the Railway Supply Institute have non-voting membership on the TCC. FRA and PHMSA, as the Federal agencies responsible for oversight of the safety of hazardous materials transportation by railroad, also participate in the TCC as nonvoting members. Under the HMR, certain functions related to hazardous material tank cars are delegated to the TCC, including:
(1)Approvals for construction of tank cars meeting DOT specifications;
(2)procedures for repairs or alterations; and
(3)recommending changes in tank car specifications. 9 First, the HMR require tank car manufacturers to obtain TCC approval for specific tank car designs and construction methods and materials and procedures for repairs and alterations to tank cars. The HMR authorize the TCC to make the determination that the proposed design, construction, or repair procedures conform to the applicable DOT specification requirements and to issue the approval. 49 CFR 179.3. This authority is primarily a ministerial function, designed to ensure that plans to construct, alter, or convert tank car tanks conform to DOT regulations. In accordance with 49 CFR 179.3(b), the TCC must approve construction of a tank car that meets all Federal requirements. 9 Federal regulations also require tank car facilities to have quality assurance programs that are approved by AAR. These programs relate to construction, life-cycle maintenance, and continuing qualification for service. When a party seeks to construct a railroad tank car to be used in hazardous materials service that does not meet a current DOT specification ( *see* 49 CFR 179.10-179.500-18), the HMR authorize the TCC to review the proposed specification and report its recommendations on the proposal to DOT. 49 CFR 179.4. In this capacity, DOT benefits greatly from the technical expertise of the TCC members. However, final policy judgment lies with DOT, and only DOT is authorized to approve a new tank car specification, or, through issuance of a special permit in accordance with 49 CFR 107.101-.127, the construction and use of a tank car not meeting an existing DOT specification. DOT does not construe the procedures established in 49 CFR 179.4 as limitations on its rulemaking authority. In addition to the approval authority noted above, in several subsections of Part 179 of the HMR, the TCC is authorized to approve fittings, attachments, materials, designs, methods, and procedures relevant to tank car design, construction, maintenance, repair, and inspection. For example, 49 CFR 179.103-2(a) provides that manway covers “shall be of approved design.” Similarly, 49 CFR 179.201-9 states that “a gauging device of an approved design must be applied to permit determining the liquid level of the lading.” In addition, 49 CFR 179.10 states that “[t]he manner in which tanks are attached to the car structure shall be approved.” In each instance, the term “approved” refers to approval by the TCC. *See* 49 CFR 179.2. The primary document containing the standards governing these approvals of the TCC is the Tank Car Manual. The December 2000 version of the Tank Car Manual is incorporated by reference into the HMR at 49 CFR 171.7; thus, compliance with the Tank Car Manual's standards is required under the HMR. Chapter 2 of the Tank Car Manual contains the AAR requirements for DOT tank cars. As noted above, the TCC, subject to certain limitations, may establish standards for tank cars that go beyond the standards set by DOT. For example, the Tank Car Manual requires that the heads and shells of pressure tank cars constructed of certain types of steel must be normalized; although DOT participated in the discussions leading to these standards and approves of them, the tank car specifications contained in the HMR do not contain comparable requirements. 10 However, as indicated above, because the December 2000 version of the Tank Car Manual is incorporated by reference into the HMR, compliance with the tank car standards specified in that version of the Tank Car Manual is required under the HMR. Under the Administrative Procedure Act, compliance with any other version of the Tank Car Manual would be required under the HMR only upon the incorporation of that version into the HMR by reference through rulemaking. 10 Chapter 2 of the Tank Car Manual also includes additional commodity specific tank car requirements relevant to certain PIH materials which are not included in the HMR. See §§ 2.1.2 (hydrogen sulfide tank cars) and 2.1.4 (hydrogen fluoride tank cars). VI. Railroad Accidents Involving Hazardous Materials Releases and Accompanying NTSB Recommendations The NTSB investigated three recent accidents involving tank cars transporting PIH materials, which occurred between 2002 and 2005 in Minot, North Dakota; Macdona, Texas; and Graniteville, South Carolina. In all three accidents, the NTSB recommended that FRA study improving the safety and structural integrity of tank cars and develop necessary operational measures to minimize the vulnerability of tank cars involved in accidents. A. Minot The accident occurred at approximately 1:30 a.m. on January 18, 2002, near Minot, North Dakota, and resulted in the derailment of 31 cars of a 112-car train. Eleven of the 31 derailed cars were pressurized tank cars transporting anhydrous ammonia, a toxic liquefied compressed gas. Five of those tank cars (DOT 105J300W cars) received sidewall impacts to their shells, causing the cars to catastrophically rupture and instantaneously release their contents. Approximately 146,700 gallons of anhydrous ammonia were released from those five cars. As a result, a toxic vapor plume covered the derailment site and the surrounding area. The plume rose approximately 300 feet and gradually expanded five miles downwind of the accident site. The remaining six pressurized tank cars transporting anhydrous ammonia that derailed also suffered from shell impacts. Those cars, DOT 105J300W, 112J340W, and 105S300W cars, gradually released 74,000 gallons of anhydrous ammonia due to damage to the cars' fittings or small punctures and/or tears to the shells. One resident was fatally injured, and 333 people suffered other injuries (11 serious). According to the NTSB, early in the emergency response effort, the Chief of the Minot Rural Fire Department ordered residents in the affected area to shelter-in-place ( *i.e.* , remain inside their homes with the windows shut). NTSB concluded that sheltering-in-place was an effective emergency response and credited this action with the relatively low number of injuries, as compared to the number of persons affected by the vapor plume (333 injuries in 11,600 persons affected). The NTSB determined that the probable cause of the accident was an undetected defective rail. Damages to rolling stock and track, as well as monetary loss from the damaged or destroyed lading, exceeded $2.6 million. As of March 15, 2004, over $8 million has been spent on environmental remediation. Other significant costs include: evacuation costs, truck delay, rerouting and associated out of service expenses, expenses for disruption to non-railroad businesses, and expenses incurred in settling claims arising from the accident. 11 11 On October 9, 2007, a Federal judge approved a $7 million settlement in a class-action lawsuit between Canadian Pacific Railroad and individuals affected by the accident. On March 15, 2004, the NTSB released Safety Recommendations R-04-01 through R-04-07 as a result of the Minot accident. The first three recommendations (R-04-01, R-04-02, and R-04-03) pertain to FRA's oversight of continuous welded rail maintenance programs and are not relevant to this rulemaking. The four remaining recommendations (R-04-04, R-04-05, R-04-06, and R-04-07) concern tank car structural integrity and are relevant to this rulemaking. In fact, these four recommendations served as the basis for the reformulation of FRA's tank car research program. 12 Recommendations R-04-04 through R-04-07 read as follows: 12 *See* Section X, *infra,* for a more detailed discussion of FRA's tank car research program. ( *R-04-04* ). Conduct a comprehensive analysis to determine the impact resistance of the steels in the shells of pressure tank cars constructed before 1989. At a minimum, the safety analysis should include the results of dynamic fracture toughness tests and/or the results of nondestructive testing techniques that provide information on material ductility and fracture toughness. The data should come from samples of steel from the tank shells from original manufacturing or from a statistically representative sampling of the shells of the pre-1989 pressure tank car fleet. ( *R-04-05* ). Based on the results of the Federal Railroad Administration's comprehensive analysis to determine the impact resistance of the steels in the shells of pressure tank cars constructed before 1989, as addressed in Safety Recommendation R-04-04, establish a program to rank those cars according to their risk of catastrophic fracture and separation and implement measures to eliminate or mitigate this risk. This ranking should take into consideration operating temperatures, pressures, and maximum train speeds. ( *R-04-06* ). Validate the predictive model the Federal Railroad Administration is developing to quantify the maximum dynamic forces acting on railroad tank cars under accident conditions. ( *R-04-07* ). Develop and implement tank car design-specific fracture toughness standards, such as a minimum average Charpy value, for steels and other materials of construction for pressure tank cars used for the transportation of U.S. Department of Transportation class 2 hazardous materials, including those in “low-temperature” service. The performance criteria must apply to the material orientation with the minimum impact resistance and take into account the entire range of operating temperatures of the tank car. B. FRA's Responses to the NTSB Tank Car Recommendations for Minot In August 2004, the FRA responded to NTSB Safety Recommendations R-04-04 through R-04-07, which arose from the Minot accident. As for NTSB Recommendation R-04-04 and R-04-05, which recommended that FRA analyze the impact resistance of steels in the shells of pressure tank cars constructed before 1989 and establish a program to rank the cars according to their risk of fracture, FRA advised the NTSB that the TCC had developed a plan to sample steels from pre-1989 pressure tank cars and that a program to rank those cars would be established. Because of FRA's commitment to ranking the pre-1989 fleet, the NTSB classified Safety Recommendation R-04-05 as “Open—Acceptable Response.” The NTSB, however, classified Safety Recommendation R-04-04 as “Open—Unacceptable Response” because the Board did not believe that the necessary analysis would be completed in a timely manner. After FRA provided additional information to the NTSB about the sampling, including preliminary fracture toughness data relating to the samples from the pre-1989 tank cars, the NTSB reclassified Safety Recommendation R-04-04 as “Open—Acceptable Response.” As for NTSB Recommendation R-04-06, which recommended that FRA validate its model to quantify the dynamic forces acting on tank cars in accident conditions, the FRA advised the NTSB that it had initiated modeling programs at Volpe and the University of Illinois at Chicago to determine in-train forces on tank cars involved in train derailments. Based on FRA's response to Safety Recommendation R-04-06, the NTSB classified the Recommendation as “Open—Acceptable Response.” Finally, as for NTSB Recommendation R-04-07, which recommended that FRA develop tank car design-specific fracture toughness standards for steels used in pressure tank cars, the FRA responded by stating that more research was needed (approximately three years) to address tank car design-specific fracture toughness standards. Because the NTSB believed there were existing solutions and accident findings from which to gauge fracture toughness values, such as Charpy impact, in June 2005, the NTSB classified the FRA response to Safety Recommendation R-04-07 as “Open—Unacceptable Response.” Since June 2005, AAR, in cooperation with FRA, has developed standards that ensure a minimum level of impact resistance for normalized steel and that require that Charpy tests be performed in the orientation of the sample material with the lowest impact property. In July 2006, the NTSB determined that FRA had made progress on the development of fracture toughness standards, and it reclassified Safety Recommendation R-04-07 “Open—Acceptable Response.” C. Macdona The accident occurred at approximately 5 a.m. on June 28, 2004, in Macdona, Texas, and resulted in the derailment of four locomotives and 36 cars belonging to two trains that collided while traveling on the same track in opposing directions. As the eastbound 123-car train was attempting to leave the main line to enter a parallel siding, it was struck midpoint by a westbound train traveling on the same main line track. The 16th car of the westbound train was a pressurized tank car transporting chlorine, a toxic liquefied compressed gas. This tank car, a DOT 105A500W car, was punctured in the lower quadrant of the tank car head and the puncture terminated one inch beyond the seam joining the tank-head to the tank shell. The tank car instantaneously released approximately 9,400 gallons of chlorine, and a toxic vapor plume engulfed the accident area to a radius of at least 700 feet before drifting away from the site. The NTSB noted that the vapor cloud drifted with the wind from the accident site and traveled in a northwesterly direction toward several residential areas within the city of San Antonio. NTSB further noted that Sea-World, a large commercial entertainment venue, was about 10 miles northwest of Macdona in the path of the chlorine vapor cloud. The NTSB determined that the probable cause of the accident was UP train crew fatigue that resulted in the failure of the engineer and conductor to appropriately respond to wayside signals governing the movement of their train. Thirty-three persons were injured, three fatally (including the UP train conductor and two occupants of a residence located near the accident site). 13 Damages to rolling stock, track and signal equipment were estimated at $6.3 million. As of July 20, 2006, $150,000 was spent to clean-up environmental consequences. Other significant costs include: Evacuation costs, truck delay, rerouting and associated out of service expenses, expenses for disruption to non-railroad businesses, and expenses incurred in settling claims arising from the accident. 13 The crew of the striking train survived the collision and exited the locomotive unassisted, but could not escape the chlorine gas. The conductor and engineer were able to walk some distance from the collision where they were transported to hospitals. The engineer was treated and released, the conductor died several hours later from inhalation of the toxic gas. Given that both crew members survived the collision, no fatalities or serious injuries would have resulted from the accident had a tank car of chlorine not been punctured. On July 20, 2006, the NTSB released Safety Recommendations R-06-14 and R-06-15 as a result of the Macdona accident. Although neither recommendation specifically addressed the vulnerability of tank cars involved in an accident, the NTSB stated that the successful and timely implementation of Safety Recommendations R-04-04 through R-04-07 (recommendations from the Minot accident) and R-05-16 through R-05-17 (recommendations from the Graniteville accident discussed below) may have prevented/mitigated the Macdona accident and any future catastrophic releases of hazardous materials from pressurized tank cars involved in an accident. D. Graniteville The accident occurred at approximately 2:30 a.m. on January 6, 2005, in Graniteville, South Carolina, when a freight train was improperly switched from a main line track onto an industry track and struck an unoccupied, parked train head-on, on a rail spur leading to a textile manufacturing facility. The collision resulted in the derailment of three locomotives and 17 cars belonging to the two trains. Three of the 17 derailed cars were pressurized tank cars transporting chlorine. One tank car, a DOT 105J500W car, was punctured in the shell by the coupler of another car, and instantaneously released approximately 9,220 gallons of chlorine, creating a toxic vapor plume that engulfed the surrounding area. The NTSB concluded that the probable cause of the accident was the failure of a train crew to return a main line switch to the normal position after the crew completed work at the Avondale Mills' industry track. As a result of the chlorine release, 5,400 people within a 1-mile radius of the derailment site were evacuated for several days. Nine persons were fatally injured and 554 sustained other injuries (75 requiring hospitalization). The nine persons fatally injured included the train engineer, six employees of the textile manufacturing facility, Avondale Mills, a truck driver at one of Avondale Mills' facilities, and an individual in a residence south of the accident site. 14 Noting that emergency responders were enroute to the scene within two minutes of the accident occurring and that emergency responders used a “particularly efficient and expeditious means” of evacuating affected persons, the NTSB concluded that the emergency response efforts were “timely, appropriate, and effective.” 15 The Board noted, however, that despite these emergency response efforts, the eight civilian fatalities were determined to have resulted from asphyxia that occurred within minutes of exposure to chlorine gas. In other words, the fatalities occurred within the minutes that passed before emergency responders arrived on the scene or were able, because of the toxic fumes, to begin a safe search and rescue effort. 16 14 As was the case in the Macdona accident, both train crew members survived the collision (the engineer died later from exposure to the gas). Given that both crew members survived the collision, no fatalities or serious injuries would have resulted from the accident had a tank car of chlorine not been punctured. 15 NTSB, Railroad Accident Report, NTSB/RAR-05/04, *Collision of Norfolk Southern Freight Train 192 With Standing Norfolk Southern Local Train P22 with Subsequent Hazardous Materials Release at Graniteville, South Carolina,* (Jan. 6, 2005), at p. 40, Available at *http://www.regulations.gov* in docket no. FRA-2006-25169 and at *http://www.ntsb.gov* (Graniteville Report). 16 *Id.* The property damage, including damages to the rolling stock and track, exceeded $6.9 million. Other significant costs include: evacuation costs, truck delay, rerouting and associated out of service expenses, expenses for disruption to non-railroad businesses, costs to affected local governments and residents, as well as expenses incurred in settling claims arising from the accident. According to financial documents produced by NS, the railroad recorded $41 million of expenses related to the accident in 2005 and it is estimated that the costs of the Graniteville accident were approximately $138 million, excluding chlorine cleanup costs. 17 This cost estimate likely greatly underestimates the actual costs incurred by those affected by the accident. For example, according to various South Carolina State Emergency Operations Center and U.S. Environmental Protection Agency Situation Reports, 18 schools were closed for several days, mail service for the evacuated areas had to be forwarded to a neighboring post office, and preliminary estimates of costs to Aiken County were in the millions due to potential damage to electrical systems and equipment within homes and businesses, the cost of the first response and recovery operations, damage to fire and EMS response vehicles, and the treatment of the victims. 17 * Norfolk* Southern Corporation, *Quarterly Financial Review, Fourth Quarter 2006,* at p. 4. (downloaded at *http://www.nscorp.com/nscportal/nscorp/pdf/financial_q4_06.pdf* ). 18 Available at *http://www.epa.osc.org.* The fate of Avondale Mills, the textile manufacturing company with four facilities within the vicinity of the accident, illustrates the significant long-term economic impacts that may result from catastrophic hazardous materials transportation accidents. In July 2006, after spending $140 million on cleaning, re-cleaning, repairs, and damage mitigation as a result of the derailment, Avondale Mills reported that it was unable to recover financially from the derailment and closed its 10 mills in South Carolina and Georgia. The company cited irrevocable damage to its core facilities, as well as market and production losses caused by the derailment. For example, the Company was unable to identify cleaning and restoration protocols that would successfully or economically halt the chlorine's corrosive effects, repair the damage caused by the chlorine exposure, and return the affected facilities and equipment to their pre-derailment condition. As a result, the Company was faced with the expensive replacement of damaged assets in addition to the lost business, higher manufacturing costs, and lower profits related to the reduction in productive capacities resulting from the derailment. 19 At the time of its closure, Avondale Mills employed approximately 4,000 people. 19 *See* Avondale Incorporated, *Notes to Consolidated Financial Statements (Unaudited),* at note 1 (Aug. 25, 2006). Available at *http://www.sec.gov.* Although the costs of associated legal claims resulting from the derailment are still accumulating, in May 2006, Avondale Mills reached a $215 million settlement with its primary property and casualty insurer for all claims related to the derailment. Even with this multi-million dollar settlement, Avondale Mills' management believed that the amount was substantially less than the full value of the losses incurred as a result of the derailment. 20 In June 2006, a Federal judge approved a class-action settlement in excess of $10.5 million between Norfolk Southern and almost 500 individuals who claimed they suffered serious injuries after the derailment. In May 2005, Norfolk Southern announced that it had reached agreement on settlements for Graniteville residents and businesses that were evacuated as a result of the derailment, but did not seek medical attention. Under the terms of this settlement, Norfolk Southern offered each resident who was evacuated, but did not seek medical attention within 72 hours of the accident a flat amount of $2,000 for the evacuation plus $200 per person per day of the evacuation. These amounts are separate from any property damage claims. Norfolk Southern settled separately with the families of the nine people killed as a result of the accident. 20 *Id.* On December 12, 2005, the NTSB released Safety Recommendations R-05-14 through R-05-17 as a result of the Graniteville accident. The first recommendation (R-05-14) pertains to railroad switching devices and is not directly relevant to this rulemaking. The three remaining Safety Recommendations (R-05-15, R-05-16, and R-05-17) relate to operating speeds in non-signaled territory, as well as the transportation of PIH materials and other hazardous materials that may pose inhalation hazards in the event of unintentional release. Recommendations R-05-15 through R-05-17 read as follows: *(R-05-15).* Require railroads, in non-signaled territory and in the absence of switch position indicator lights or other automated systems that provide train crews with advance notice of switch positions, to operate those trains at speeds that will allow them to be safely stopped in advance of misaligned switches. *(R-05-16).* Require railroads to implement operating measures, such as positioning tank cars toward the rear of trains and reducing speeds through populated areas, to minimize impact forces from accidents and reduce the vulnerability of tank cars transporting chlorine, anhydrous ammonia, and other liquefied gases designated as poisonous by inhalation. *(R-05-17).* Determine the most effective methods of providing emergency escape breathing apparatus for all crewmembers on freight trains carrying hazardous materials that would pose an inhalation hazard in the event of unintentional release, and then require railroads to provide these breathing apparatus to their crewmembers along with appropriate training. In addition, noting that the punctured car was among the strongest tank cars in service, the NTSB concluded that even the “strongest tank cars in service can be punctured in accidents involving trains operating at moderate speeds.” 21 The NTSB then repeated its concern for crashworthiness integrity of railroad tank cars by restating what it said, in part, in response to the Minot accident: 21 *Graniteville* Report at p. 51. Improvements in the crashworthiness of pressure tank cars can be realized through the evaluation of alternative steels and tank car performance standards. The ultimate goal of this effort should be the construction of railroad tank cars that have sufficient impact resistance and that eliminate the risk of catastrophic brittle failures under all operating conditions and in all environments. Achieving such a goal does not necessarily require the construction of a tank car that is puncture-proof; it may only require construction of a car that will remain intact and slowly leak its contents if it is punctured. 22 22 *Id.* E. FRA's Responses to the NTSB Tank Car Recommendations for Graniteville. On June 30, 2006, the FRA responded to NTSB Safety Recommendations R-05-15 through R-05-17, which arose from the Graniteville accident. As for NTSB Recommendation R-05-15, which recommended that railroads be required, under certain conditions, to operate trains at lower speeds in non-signaled territory, the FRA informed the NTSB that the Recommendation was not feasible for operational and economic reasons. From an operational standpoint, depending on the terrain at the switches and the train make-up, train braking could prove difficult, generating excessive in-train forces that could cause derailments. From an economic standpoint, Recommendation R-05-15 would impede the movement of trains, especially on tracks where many switches exist, thereby causing train delays and an increase in running time. The FRA also explained that Recommendation R-05-15 was overly broad in that it would apply to all trains, regardless of lading. The NTSB classified Safety Recommendation R-05-15 as “Open—Response Received.” As for NTSB Recommendation R-05-16, which suggested that FRA require railroads to position tank cars towards the rear of trains and reduce their speeds through populated areas, the FRA advised the NTSB that it would be imprudent to require the placement of tank cars carrying PIH materials at the rear of trains for several reasons. First, the placement of tank cars carrying PIH materials at the rear of trains could expose the cars to the consequences of rear-end collisions. Second, FRA's research demonstrates that the preferred location for loaded cars is towards the front of trains because, upon braking, heavy cars decelerate more slowly than empty cars. If loaded cars are placed towards the rear of trains, they would push the more rapidly decelerating cars in front of them and generate higher buff forces. Finally, the switching of railroad cars to position tank cars containing PIH materials at the rear of trains involves the risk of increased yard accidents and employee injuries resulting from additional switching. In its response to NTSB Recommendation R-05-16, the FRA also noted several practical difficulties with slowing trains on a location-by-location basis (including the dangers of introducing additional train handling challenges, the impact of such a speed restriction on the efficiency and capacity of the rail network, as well as the potential negative effect that slowing operations could have on communities located along the track). Nonetheless, in its response, FRA stated that it would review the potential costs and benefits of slowing trains carrying certain toxic commodities. The NTSB classified Safety Recommendation R-05-16 as “Open—Response Received.” As for NTSB Recommendation R-05-17, which recommended that FRA examine the most effective methods of providing emergency escape breathing apparatus for crewmembers on trains carrying PIH materials, FRA explained to the NTSB that it would initiate a study of potential breathing apparatus for use by crewmembers of freight trains carrying TIH materials. Based on FRA's response to Safety Recommendation R-05-17, the NTSB classified the Recommendation as “Open—Acceptable Response.” The NTSB Safety Recommendations referenced in this section above and the publicly available responses to them may be found on the *http://www.regulations.gov* Web site under docket number FRA-2006-25169. VII. Evaluating the Risk Related to Potential Catastrophic Releases From PIH Tank Cars in the Future Although it is not possible to accurately determine the probability of future occurrences of railroad accidents that would result in the catastrophic release of hazardous materials, it is unrealistic to assume that absent the improvements proposed, consequences from future accidents involving hazardous materials tank cars would be of the same order of frequency and severity as in the past. In fact, absent the improvements proposed, one or more events could be significantly more severe than experienced thus far. All that would be required would be the necessary environmental conditions (concentrating and channeling a gas plume at ground level), an exposed population of scores or hundreds within the path of the plume, and an ineffective or delayed emergency response (either due to deficiencies in the emergency response process or because of safety risks posed to emergency responders prohibiting emergency responders from entering an accident area). Each of the three accidents discussed in section VI above share certain similarities that effectively minimized the catastrophic results of the accidents. Each accident occurred in a relatively rural area, thereby limiting the population exposed to the hazardous materials release. Each accident occurred during the early morning hours, while most of the surrounding populations were in their homes and not in the immediate accident vicinity. The meteorological conditions at the time of each accident effectively limited the speed at which the resulting toxic plumes expanded and the distance over which the plumes expanded. Had any of the accidents occurred in a more densely populated area or later in the day, it is likely that many more people would have been exposed to the toxic plumes. Had the meteorological conditions at the time of any of the accidents been different (e.g., wind speed or direction, temperature, barometric pressure, or humidity) it is possible that the plumes could have expanded more than what actually occurred, again, exposing many more people to the toxic chemicals. To demonstrate the potential affects of different accident conditions, such as location, time of day, or the weather, the circumstances surrounding the Graniteville and Minot accidents are discussed below. A. Graniteville Graniteville is a mixed rural and suburban area of Aiken County, South Carolina, with a population of approximately 7,000. 23 Graniteville lies in a relatively shallow valley, approximately 200 feet above sea level. The terrain surrounding the accident site is approximately 225 feet above sea level, with the elevation of the industry track where the accident occurred moderately decreasing as the track extends north and west towards the Avondale Mills plant. The January 6, 2005, accident occurred at 2:30 in the morning, a time at which most individuals were asleep in their homes and very few individuals were on the premises of the Avondale Mills plant. At the time of the accident, a light wind was blowing in a south-southwest direction, the temperature was approximately 55° F, and humidity was high. 23 As of 2006, the approximate population of Aiken County was 152,000. U.S. Census Bureau, State & County QuickFacts (available at *http://quickfacts.census.gov* ). The NTSB concluded that approximately 120,000 pounds (9,218 gallons) of liquefied chlorine was released before emergency responders arrived on the scene. 24 The chlorine settled in low areas around the railroad tracks and the plume expanded to the west of the accident site and into the Avondale Mills plant, generally following the local topography, running downhill to the south and west, 25 before being blown to the north by light winds where it hovered. The NTSB concluded that based on emergency responder observations and the locations of those receiving fatal injuries, the cloud extended at least 2,500 feet to the north; 1,000 feet to the east; 900 feet to the south; and 1,000 feet to the west. 24 Note: The vaporization of liquefied chlorine at 32 °F at atmospheric pressure can generate a gaseous cloud with a volume 450 times greater than the volume of the liquid released. *See* Graniteville NTSB Report at 49 (citation omitted). 25 Because chlorine gas is heavier than air with a vapor density of 2.5 at 32 °F, it will seek the lowest point in the immediate area. The area to the east of the accident site and extending in a southerly direction is primarily a residential area. To the west and extending in a northerly direction are several moderate- to large-sized industrial plant facilities, some of which operate continuously. A small commercial/retail district is just north of the accident site. Given the demographics and topography surrounding the accident site, had the accident occurred at a different time of day, or had any of the meteorological variables been different (e.g., wind speed or direction, temperature, barometric pressure, or humidity), it is likely that many more people would have been exposed to the chlorine plume. For instance, if the accident had occurred while the Avondale Mills plant was fully staffed, or during an afternoon shift change, hundreds of individuals could have been exposed. In addition, a middle school is located approximately 1,000 feet north of the accident site (well within the area of the plume that did occur). Had the accident happened while school was in session, approximately 500 students and scores more school personnel could have been exposed to the toxic plume. Similarly, had any meteorological variables been different (e.g., wind speed or direction, temperature, barometric pressure, or humidity), it is likely that the chlorine plume could have expanded more rapidly and affected a greater area than it did. For instance, at the time of the accident, a light wind was blowing in a south-southwest direction. If the wind had been blowing at the same intensity, but in a south-southeast direction, the chlorine plume could have hovered over the southeasterly side of the accident site, rather than the northwesterly side. Southeast of the accident site is primarily a residential area and given the size of the plume that did result, the plume could have endangered approximately 185 homes. Given the average household size of 2.68 in Aiken County, 26 almost 500 people to the southeast of the accident site could have been exposed to vapors above the ERPG-3 level causing significantly more casualties and fatalities. 27 We note as well that the high humidity at the time of the accident limited the plume's rate of expansion because the chlorine reacted with the moisture in the area (effectively diluting the chlorine) to form a weak hydrochloric acid. This weak hydrochloric acid, a highly corrosive liquid, then accumulated in low lying areas and on the abundant vegetation surrounding the accident site, limiting the expansion of the plume. At the time of the accident the outside temperate was approximately 55 °F. As the NTSB noted, the liquefied chlorine rapidly vaporized and expanded when it spilled from the tank car, but the sudden release of the gas caused the product remaining in the tank car to auto-refrigerate and remain in a liquid state, slowing the release of additional gas. 28 Had it been warmer, the higher temperature could have provided additional energy for the chlorine to expand, and it is likely that the chlorine plume would have expanded faster. 26 U.S. Census Bureau, American FactFinder (available at *http://factfinder.census.gov).* 27 “ERGP-3 level” refers to the American Industrial Hygiene Association's
(AIHA)Emergency Response Planning Guideline level 3 which means “[t]he maximum airborne concentration below which it is believed that nearly all individuals could be exposed for up to one hour without experiencing or developing life-threatening health effects.” *See* AIHA, Emergency Response Planning Committee, *Procedures and Responsibilities,* at 1 (Nov. 1, 2006) (downloaded from *http://www.aiha.org).* According to AIHA the ERGP levels are intended as health based guideline concentrations for single exposures to chemicals and the levels are commonly used in the emergency response planning industry for assessing the adequacy of accident prevention and emergency response plans. *Id.* 28 Graniteville Report at 11, 49. B. Minot The Minot accident occurred at approximately 1:30 in the morning, a time at which most individuals were sleeping inside their homes with their windows closed. Almost instantaneously, approximately 146,700 gallons of anhydrous ammonia were released as five tank cars catastrophically ruptured. A toxic vapor plume formed almost immediately. The plume rose approximately 300 feet and gradually expanded five miles downwind of the accident site and over a population of about 11,600 people (approximately one-third the population of the City of Minot). The outside temperature at the time of the accident was −6 °F, a light snow had fallen earlier in the day and a large amount of residual snow was on the ground. Recognizing the smell of the chemical, the responsible fire chief immediately determined that the leaking material was anhydrous ammonia. Because of the large amount of anhydrous ammonia released, emergency responders were unable to enter the accident area for approximately three hours. Within 15 minutes of the accident, however, 911 operators were advising residents in the affected area to shelter-in-place (i.e., remain inside their homes with the windows shut) and the emergency room of a local hospital was notified of the derailment. Upon notification of the derailment, the hospital activated its disaster plan and staff secured the facility against the hazardous vapors by shutting down air handlers, setting up a portable air-handling unit in the emergency room, and establishing an alternate emergency room entrance away from the vapor cloud. Within three hours of the accident, the ammonia cloud had drifted to and encompassed the hospital. Nevertheless, throughout the incident, the hospital treated approximately 300 people. Ultimately, one resident of the neighborhood nearest the derailment site was fatally injured, two residents were seriously injured, and 60-65 residents were rescued hours after the derailment. All three residents that were seriously injured left the protective confines of their homes and were directly exposed to the anhydrous ammonia cloud for a prolonged period of time (given the time of day and widespread power outages as a result of the accident, it is unknown whether these individuals had heard or seen any of the emergency directives to shelter-in-place). As a result of the accident, nine other people sustained serious injuries, and 322 people, including the two train crew members, sustained minor injuries. The NTSB concluded that sheltering-in-place was an effective emergency response and credited this action with the relatively low number of injuries, as compared to the number of persons affected by the vapor plume (approximately 330 injuries in 11,600 persons affected). However, had this accident happened at another time of day, possibly during the morning commuting hours when people are generally not at home, or if emergency responders did not promptly direct residents to shelter-in-place, or if the local hospital had not taken appropriate measures to protect itself from the plume, the consequences of the release could have been much worse than what occurred on January 18, 2002. Similar to the meteorological circumstances surrounding the Graniteville accident, had the atmospheric variables been different (particularly, the temperature at the time of the accident), it is likely that many more people could have been at risk of exposure to the toxic plume. The low atmospheric temperature at the time of the accident helped to keep the ammonia plume close to ground level as it traveled downwind and also minimized the chemical's vaporization, accordingly limiting the spreading of the plume. Had this accident happened in the spring or summer, or any other time of warmer temperatures, windows in the homes may have been open and it is likely that the ammonia plume would have expanded more rapidly, thus exposing a greater population to the chemical. Although the Minot, Macdona, and Graniteville accidents each occurred during the early morning hours, while most of the surrounding populations were in their homes and not in the immediate accident vicinity, because hazardous material transportation is not limited to early morning transportation, any of the accidents could have occurred later in the day, when neighboring factories were fully staffed, schools were in session, and unsuspecting individuals were otherwise outside of the protective confines of their homes and workplaces going about their daily routines. As an example, at approximately 11 a.m. on October 10, 2007, a CSX train transporting mixed freight of grain, lumber, and tank cars of various hazardous materials, derailed in Painesville, Ohio, 29 resulting in an explosion and subsequent fire as hazardous materials were released to the environment. Although the train was reportedly not carrying any toxic inhalation hazard materials, and no injuries were reported, 600 people (including over 300 children from a nearby elementary school) within a half mile radius of the train derailment were evacuated. 29 Painesville is located approximately 30 miles from Cleveland and has an estimated population of 20,000. Although the Minot, Macdona, and Graniteville accidents each occurred in a relatively rural area, the accidents could have occurred anywhere, including in the midst of major metropolitan areas. The Minot accident was caused by an undetected defective rail. A crew's failure to appropriately respond to wayside signals governing movement of their train led to the Macdona accident. The Graniteville accident was caused by a train crew's failure to correctly align a switch. Each of these “causes” could have occurred in close proximity to a metropolitan area, thus potentially impacting a much larger population of people. The Painesville, Ohio, incident, although not an accident with catastrophic results, illustrates this point. As a Cleveland City Councilman noted, had the derailment occurred closer to Cleveland, more than 8,000 people could have been affected. 30 30 David Summers, WKYZ-TV (Cleveland, Oh), Hazardous Cargo Legislation Stalled on the Tracks (Oct. 14, 2007). VIII. The Railroad Industry's Liability and the Impact of Accidents Involving the Shipment of PIH Materials on Insurance Costs and Shipping Rates In 2005, railroads moved just over 100,000 carloads of PIH materials and nearly 37 million total carloads. 31 The 100,000 carloads of PIH materials equate to approximately 0.3 percent of all rail carloads. Despite the small fraction of the railroad industry's business constituted by PIH materials (and the limited revenue it generates), railroad industry representatives, citing the Minot, Macdona, and Graniteville accidents, have noted that transporting PIH materials has led to the imposition of “hundreds of millions of dollars of liability.” 32 Further, noting that “railroads can suffer multi-billion dollar judgments” from accidents involving highly-hazardous materials, in 2007 the President and CEO of AAR testified before a Congressional committee that “every time a railroad moves [a highly-hazardous shipment] it faces potentially ruinous liability” and that the “insurance industry is unwilling to insure railroads against the multi-billion dollar risks associated with highly-hazardous shipments.” 33 In support of this assertion, a representative of the railroad industry noted that as a result of the Minot, Macdona, and Graniteville accidents, insurance costs for the entire railroad industry have gone up by 100 percent. 34 31 Written Statement of Edward R. Hamberger, President & CEO, AAR , before the U.S. House of Representatives Committee on Transportation and Infrastructure, Subcommittee on Railroads, Pipelines, and Hazardous Materials (Jan. 31, 2007) at 7 (Hamberger Statement). 32 Statement of Bob Fronczak, Assistant Vice President, Environment and Hazardous Materials, AAR, at the Dec. 14, 2006 public meeting (Fronczak Statement). *See* document no. 19 in the docket. 33 Hamberger Statement at 7-8. An example of such a judgment is *In re New Orleans Train Car Leakage Fire Litigation,* 795 So. 2d 364 (La. Ct. App. 2001). In that case, the Louisiana Court of Appeals upheld a class-action judgment of $850,000,000 in punitive damages and $2,100,000 in compensatory damages against CSX Transportation, Inc. Railroads, as common carriers, are generally required to provide transportation services in a reasonable manner and may not refuse to transport a material that the government has deemed safe for transportation. 34 Fronczak Statement. This increase in railroad insurance rates, coupled with the actual costs of the accidents, has resulted in increased shipping rates for the shippers of hazardous materials. Minimally, shipping rates for PIH materials have doubled; however, many shippers report larger increases (including at least one shipper which has had its rates increased over 4.8 times in a two-year period). IX. Industry Efforts To Improve Railroad Hazardous Materials Transportation Safety A. General Industry Efforts The rail industry, through the AAR, has developed a detailed protocol on recommended railroad operating practices for the transportation of hazardous materials. Although in early 1990 this protocol was implemented by only the Class 1 rail carriers operating in the United States, on July 17, 2006, AAR issued a revised version of this protocol, known as Circular OT-55-I, with short-line railroads also participating in the implementation. The Circular details recommended railroad operating practices for, among other things:
(1)Designating certain trains hauling hazardous materials as “key trains,” defined as trains containing five or more tank car loads of PIH materials;
(2)designating operating speed and equipment restrictions for key trains;
(3)designating “key routes” 35 for key trains and setting standards for track inspection and wayside detectors on these “key routes”;
(4)yard operating practices for handling placarded tank cars;
(5)storage, loading, unloading and handling of loaded tank cars;
(6)assisting communities with emergency response training and information;
(7)shipper notification procedures; and
(8)the handling of time-sensitive materials. The Circular also
(1)Restricts key trains to a maximum speed of 50 mph;
(2)requires, as practicable, that unless a siding or auxiliary track meets FRA Class 2 standards, a key train will hold main track at meeting or passing points;
(3)requires all cars in key trains to be equipped with roller bearings; and
(4)imposes a further speed restriction of 30 mph in the event a defect in a key train bearing is reported by a wayside detector, but is not able to be confirmed visually. A copy of the most recent version of Circular OT-55-I has been placed in the docket. 35 Circular OT-55-I defines the term “key routes” as “[a]ny track with a combination of 10,000 car loads or intermodal portable tank loads of hazardous materials, or a combination of 4,000 car loadings of PIH or TIH (Hazard zone A, B,C, or D), anhydrous ammonia, flammable gas, Class 1.1 or 1.2 explosives, environmentally-sensitive chemicals, Spent Nuclear Fuel (SNF), and High Level Radioactive Waste
(HLRW)over a period of one year.” In addition, FRA is aware that some carriers have individually taken voluntary steps to reduce the occurrence of accidents that can lead to hazardous material releases. For example, BNSF has implemented a derailment prevention program that includes, among other efforts, implementing advanced train control technology; utilizing various freight car condition monitoring technologies; and installing and maintaining switch point position indicators and broken rail protection in non-signaled territory. Specific to the transportation of hazardous materials through non-signaled territory, BNSF has also revised its operating practices at certain locations in its system through which a significant amount of PIH materials are transported in an effort to decrease the probability of an accident or incident involving a train hauling PIH material. A more detailed discussion of BNSF's efforts in this regard is found in the “Discussion of Public Comments” section below. B. Trinity Industries, Inc.'s Special Permit Chlorine Car In accordance with 49 CFR 107.105, in early 2005, Trinity Industries, Inc. (Trinity) applied for a Special Permit to manufacture, mark, and sell DOT 105J600W specification tank cars, for use in chlorine service, with a variation in design and construction of the protective housing (the “Trinity car”). 36 Specifically, as noted in Trinity's application, the Trinity car varies from Federal standards because it has a protective housing welded, rather than bolted, to the tank nozzle and its maximum gross weight on rail is 286,000 pounds (due in part to a thicker head and shell than current chlorine cars). 37 In response to Trinity's application, several members of the hazardous materials shipping industry expressed concern with certain aspects of the proposed Trinity car. For example, commenters expressed concern regarding the proposed manway arrangement, noting that the modified pressure plate and protective housing may present difficulties for emergency responders because it was unclear whether the standard Emergency Kit C, which is used to contain leaks in and around the pressure relief device and angle valves, was compatible with the arrangement. Further, commenters expressed concern regarding the increased car pressure and corresponding pressure rating of the valves and fittings. Commenters also questioned the efficacy of increasing the thickness of the car's steel, but utilizing steel with a lower tensile strength than current chlorine cars. Furthermore, commenters expressed concern that given the increased weight of the car, some shipping and receiving facilities may not be able to handle the heavier car. 36 *See* 70 FR 12782, 12783 (Mar. 15, 2005) (Research and Special Programs Administration, List of Applications for Exemption). 49 U.S.C. § 5117 authorizes the DOT to issue special permits (previously referred to as “exemptions”) authorizing a variance from the HMR if the proposed variance is equivalent to the level of safety required by the HMR. 37 The HMR require bolted top fittings and provide for a tank car maximum gross weight on rail of 263,000 pounds. *See* 49 CFR 179.100-12 and 179.13. After careful review of Trinity's application, the comments received, and DOT's own analysis of the Trinity car, PHMSA issued the requested Special Permit on April 20, 2006, authorizing Trinity to manufacture, mark, and sell the car for use in chlorine service, subject to certain operational restrictions and inspection requirements. 38 Specifically, the terms of the Special Permit prohibit the Trinity car from being used in free interchange and require the manway nozzle welds to be requalified annually. The Special Permit was issued based on the finding that the Trinity car used under the specified conditions would provide an equivalent level of safety to current DOT specification cars and additionally would provide a way to gather data about an alternative to a regulatory standard over a relatively short time-span. 38 *See* 71 FR 47288, 47301 (Aug. 16, 2006) (PHMSA Special Permit number DOT-SP 14167). Subsequently, the Special Permit was revised on August 10, 2006 to clarify the outage and filling density requirements and specify requirements for filing agreements between carriers and filing non-destructive testing procedures. More recently, Trinity requested that the Special Permit be revised to amend the manway protective housing design. C. AAR Proposals for Enhanced Chlorine and Anhydrous Ammonia Tank Cars In early 2006, the Safety and Operations Management Committee
(SOMC)of the AAR directed the AAR's TCC to consider improved packaging for the shipment of chlorine and anhydrous ammonia. Specifically, SOMC directed the TCC to present a plan for developing performance standards for chlorine and anhydrous ammonia tank cars that would reduce the conditional probability of a release, given an accident, by a target of 65% from the current values, as well as a plan to phase in the new improved cars within a target time frame of five to seven years. The goal of a 65% reduction was based on the findings of researchers at the University of Illinois at Urbana-Champaign's Railroad Engineering Program, which concluded that utilizing existing technology, the probability of a release of anhydrous ammonia and chlorine from a tank car involved in an accident could be reduced by 65% or more by substituting enhanced tank cars for the cars currently used to transport these materials. 39 The enhanced tank car contemplated in the University of Illinois research is the thicker, heavier Trinity car designed for chlorine service and subject to PHMSA Special Permit 14167. As noted in the AAR Risk Analysis, the finding of a potential 65% improvement is premised on replacing the current 263,000 pound cars for anhydrous ammonia and chlorine with 286,000 pound cars equipped with additional head protection, thicker shells, and modified top fittings protection. 39 Christopher P.L. Barkan, Ph.D., M. Rapik Saat, M.S., Railroad Engineering Program, Department of Civil and Environmental Engineering, University of Illinois at Urbana-Champaign, *Risk Analysis of Rail Transport of Chlorine and Ammonia on U.S. Railroad Mainlines* (Feb. 27, 2006) (AAR Risk Analysis). In response to this directive, the TCC established a task force to develop the requested plan. The task force consisted of a wide spectrum of interested parties, including hazardous material shippers, railroads, the Railway Supply Institute (RSI), and railroad industry consultants. The task force, however, was unable to reach consensus on a recommendation to the TCC. In July 2006, the AAR TCC considered proposals for improved tank cars in light of its mandate from SOMC to make the cars transporting chlorine and anhydrous ammonia 65% safer. At the July TCC meeting, all member railroads, supported by Trinity, proposed that anhydrous ammonia be transported in DOT 112J500W tank cars, equipped with full-height half-inch thick or equivalent head shields and top fittings protection designed to withstand a rollover with a minimum linear velocity of nine miles per hour. Similarly, the same parties proposed that chlorine be transported in tank cars built to the 105J600W specification, equipped with full-height half-inch thick or equivalent head shields and top fittings protection designed to withstand a rollover with a minimum linear velocity of nine mph. Alternatively, cars for each commodity could be designed in accordance with a formula derived from the statistical analysis in the RSI-AAR Tank Car Safety Project Report RA 05-02. 40 For anhydrous ammonia, this statistical formula required shell and head protection to reduce the conditional probability of release
(CPR)by 32% given that the car is derailed in an accident; for chlorine, the statistical formula required shell and head protection to reduce the CPR by at least 45%. 41 This railroad/Trinity proposal contemplated that 50% of a car owner's fleet of anhydrous ammonia and chlorine cars would be replaced with these “enhanced cars” within approximately six years, with their entire fleets being replaced within approximately eleven years. 40 RSI-AAR Railroad Tank Car Safety Research and Test Project, *Safety Performance of Tank Cars in Accidents: Probabilities of Lading Loss,* RA-05-02 (Jan. 2006). 41 While this statistical analysis sought to advance the safety of tank cars, it does not foster new technology because the CPR was derived from empirical data. At the same TCC meeting, all shipper members of the TCC, as well as every rail tank car builder other than Trinity, supported a proposal submitted jointly by The Fertilizer Institute
(TFI)and the Chlorine Institute (CI). The TFI/CI proposal for cars constructed after a proposed effective date incorporated the Federal standard for head protection (49 CFR 179.16), with the ram car adjusted to reflect the increasing presence of cars with a gross rail load of 286,000 pounds. The TFI/CI proposal contemplated grandfathering existing cars in anhydrous ammonia and chlorine service prior to the effective date as compliant. The initial result of this deliberation was the TCC's issuance of Casualty Prevention Circular 1175 (CPC-1175) on July 28, 2006. CPC-1175 proposed to implement the railroad/Trinity proposal introduced at the July TCC meeting. In response to CPC-1175, several members of the hazardous materials shipping industry submitted comments to the AAR expressing concern with certain aspects of the proposal. For example, commenters expressed concern with the proposed implementation schedule, the proposed top fittings arrangement, and the scientific basis utilized for development of the standard. Commenters also questioned the efficacy of moving forward with the proposal without the benefit of the results of the FRA's Volpe research designed to quantify tank car survival conditions. FRA also corresponded with the AAR in response to CPC-1175. In its letters, FRA first noted that the Circular contained two proposed, amended tank car specifications and two proposed, new specifications. Accordingly, FRA noted that before the TCC could implement the proposed requirements in CPC-1175, in accordance with 49 CFR 179.4, the proposals would have to be submitted to the Department. The FRA also expressed concern regarding the engineering analysis underlying the proposal, specifically related to the analysis of the top fittings, tank-head and shell, as well as the tank car's capacity. In response to comments received from FRA and the industry, on October 18, 2006, the TCC issued Casualty Prevention Circular 1176 (CPC-1176), which adopted as a final TCC action the proposals set forth in CPC-1175 with minor modifications to the implementation period initially proposed. Specifically, the intermediate implementation goal of CPC-1175 (50% of the fleet by December 31, 2012) was eliminated and replaced by a requirement that the tank car owners' plans for implementation be submitted to AAR by December 31, 2007. Subsequently, on December 18, 2006, AAR issued Casualty Prevention Circular 1178 (CPC-1178) in response to appeals to CPC-1176. Although various aspects of CPC-1176 were appealed (e.g., the proposed implementation schedule, top fittings arrangement, and the scientific basis of the proposed design), CPC-1178 is substantially the same as CPC-1176, except the target implementation dates were delayed by one year (i.e., tank car owners' plans for implementation were required to be submitted by December 31, 2008 and tank cars were required to be 100% fleet compliant by December 31, 2018). 42 42 On August 28, 2007, the TCC issued Casualty Prevention Circular 1180 (CPC-1180) for public comment. CPC-1180 addresses certain high-hazard materials (including chlorine and anhydrous ammonia). CPC-1180 proposes an implementation period for a top fittings requirement consistent with that of CPC-1178, but also includes requirements for commodity specific tank improvement factors. The tank improvement factor requirements are new requirements for chlorine and anhydrous ammonia. D. Dow/UP Safety Initiative and the Next Generation Rail Tank Car Project In October 2005, the Dow Chemical Company
(Dow)and UP, Dow's largest rail service provider, formed a partnership to address rail safety and security improvements for the transportation of hazardous materials. Specific goals of the agreement between UP and Dow include:
(1)Reducing idle times for hazmat shipments by 50 percent in high-threat urban areas;
(2)redesigning Dow's customer supply chains to cut in half the amount of “highly hazardous chemicals” shipped by 2015;
(3)eliminating all nonaccidental leaks of certain hazardous materials in three years; and
(4)having hazardous material shipments monitored by satellite tracking tags and other sensors. 43 As Dow noted at the May 31-June 1, 2006, PHMSA/FRA public meeting, the companies' joint effort focuses on six areas for improvement:
(1)Supply chain redesign;
(2)next generation rail tank car design;
(3)improved shipment visibility;
(4)a strengthened commitment to TRANSCAER®; 44
(5)improved rail operations safety; and
(6)hazardous material shipment routing. 43 John D. Boyd, *UP, Dow Sign Safety Pact,* Traffic World (Mar. 19, 2007). 44 TRANSCAER® (Transportation Community Awareness and Emergency Response) is a voluntary national outreach effort that focuses on assisting communities to prepare for and respond to a possible hazardous materials transportation incident. TRANSCAER® members consist of volunteer representatives from the chemical manufacturing, transportation, distributor, and emergency response industries, as well as the government. For more information on TRANSCAER® see *http://www.transcaer.com/public/about.cfm.* With regard to supply chain redesign, Dow is evaluating potential ways to reduce the number and distance of shipments involving high-hazard materials. In this connection, Dow is evaluating the potential for co-location of production and consuming facilities; the use of pipelines instead of rail in some instances; and the conversion of highly hazardous products to less hazardous derivatives before shipping. 45 At the same public meeting, Dow noted that since 1999, the company has reduced the amount of chlorine it ships in the United States by 80%. Dow also noted that the company's current commitment is to have further reduced by 50 percent the number of shipments of highly hazardous materials (i.e., PIH materials and flammable gases) and container miles traveled by those shipments by 2015. Recognizing that the temperature, pressure, and other characteristics of the material being shipped affects the consequences of any hazardous materials release, Dow is also focusing its efforts on improving shipment visibility and tracking. Specifically, by the end of 2007, Dow's stated goal is to have implemented shipment tracking via GPS technology to know, in real time, exactly where its tank cars containing PIH materials are located and what condition they are in. Through TRANSCAER(r), Dow has also publicly committed to “touch every community” through which its highly hazardous materials travel within the next five years. Through this initiative, Dow's stated intent is to provide community awareness and emergency responder training to help ensure that the communities through which their highly hazardous materials travel are better prepared for potential chemical transportation emergencies. 45 *See* Transcript of May 31-June 1, 2006, public meeting in docket no. FRA-2006-25169. We invite commenters to provide data and information concerning the extent to which other companies are voluntarily implementing measures to reduce the transportation safety risks associated with the transportation of PIH materials in tank cars. We are particularly interested in efforts planned or underway to modify or redesign supply chains, reduce the number of shipments and the time-in-transit of shipments, or enhance shipment visibility and tracking. We ask commenters to consider whether implementation of these and similar risk-reduction measures industry-wide would militate against the need to improve the accident survivability of the current PIH tank car fleet, as proposed in this NPRM. With regard to improving rail tank car design, Dow, UP, and the Union Tank Car Company (Union Tank), which had joined the Dow/UP Partnership specifically to participate in the NGRTCP, initiated the NGRTCP for the stated purpose of collaborating on the design of a next generation railcar for the transportation of certain hazardous materials. The project is multi-generational with the first generation focusing on designing a breakthrough next generation tank car for the transport of PIH materials that will meet or exceed the AAR TCC performance requirements and provide a five- to ten-fold improvement in the safety and security performance of existing rail tank cars in PIH service. Subsequent generations of the project would build on the first generation to leverage the process, methodology, and criteria used in designing the next generation PIH tank car to design a tank car appropriate for other hazardous materials, such as flammable gases or chemicals that pose a significant risk to the environment if released. Dow's stated goal is full implementation within the company of a next generation PIH tank car by the end of 2014, and full implementation of further generations of tank cars for flammable gases and environmentally-sensitive chemicals by the end of 2029. The NGRTCP team includes industry leaders and representatives from Dow, UP, Union Tank, as well as an external advisory panel of academic, industry, and former regulatory leaders to help guide the development of the next generation rail tank car design. Recognizing the significant opportunities to leverage government and industry resources in designing this next generation rail tank car, in January 2007, FRA signed a Memorandum of Cooperation
(MOC)with the companies involved in the NGRTCP. This MOC provides for extensive information sharing and cooperation between ongoing FRA and industry research programs to improve the safety of rail shipments of hazardous commodities such as PIH materials. FRA hazardous materials safety and R&D personnel are actively involved in the project. 46 46 The MOC was amended in early 2007 when Transport Canada joined the project. The NGRTCP is following a six sigma approach (i.e., a data driven approach and methodology for eliminating defects) to tank car design, evaluating such issues as:
(1)Coupler penetration to tank sides and heads;
(2)hydrostatic failure;
(3)ability of tanks to withstand ballistic impacts;
(4)fittings protection;
(5)operational efficiency (including payload, infrastructure, maintenance and re-qualification); as well as
(6)fire and thermal protection. Recognizing that the traditional method of enhancing tank car survivability (i.e., utilizing thicker, stronger steel) is limited, the project is evaluating the use of alternative technologies and design concepts from other industry sectors (e.g., automotive and aerospace). The general framework for the modeling and testing contemplated by the NGRTCP consists of the use of quantitative analysis (computer simulation using finite element analysis), component testing, quarter- to half-scale model testing, and limited full-scale testing. The project also involves a comparison of any potential new design with existing designs (e.g., the DOT 105A500W base car, the DOT 105J600W tank car with full head shields and top fittings protection). 47 47 Additional discussion of the NGRTCP may be found in the “Discussion of Public Comments” section below and in the transcript to the December 14, 2006, public meeting (document no. 22 in FRA docket no. FRA-2006-25169). E. The Chlorine Institute
(CI)Study In late 2005, CI established a research program to investigate tank car puncture resistance and the potential development of alternative materials tests (e.g., un-notched Charpy test) to develop and validate alternative fracture criteria. The CI study recognizes that considerable advances have been made in the design of tank car steels to improve and increase the ductile-to-brittle transition temperature and that these improvements have resulted in recent tank car failures occurring in a ductile fashion due to an overload of the tank. The CI research is looking at several alternative strategies to increase the ductile performance of tank car design, including the development of novel material tests to better establish a relationship between overloading and material failure from specimens that do not include a pre-existing crack. This information will be used to refine how modeling of tank car failures occurs and to help with the evaluation of the alternative strategies being reviewed. X. Discussion of Relevant Tank Car Research The process of improving the safety of railroad tank cars has been ongoing for decades. It involves railroads, tank car builders, chemical companies, and government regulators. Historically, FRA has conducted, and continues to fund and co-fund, a substantial amount of tank car safety research and development projects with Transport Canada, as well as with RSI and AAR, through their cooperatively funded RSI-AAR Railroad Tank Car Safety Research and Test Project. The RSI-AAR Railroad Tank Car Safety Research and Test Project conducts tank car safety research in two principal ways:
(1)By maintaining a comprehensive database on the details of the damage suffered by tank cars in accidents, to enable better understanding of tank car design strengths and weaknesses, and
(2)by conducting engineering analyses of specific problems. The FRA further collaborates with industry through the TCC to develop standards for designing, constructing, maintaining, and safely operating railroad tank cars in North America. Historically, the Department's research has focused on developing information on damage tolerance for tailoring inspection intervals for specific tank car designs; developing non-destructive evaluation and testing techniques and methodologies; improving fittings protection and gaskets; reviewing tank car operating environments; and developing new linings, coatings, and tank car steels. Since the 1970s, based on the combined research efforts of the Department and industry, DOT has issued a number of regulations to improve the survivability of tank cars in accidents. For example, DOT has promulgated regulations requiring the installation of tank-head puncture-resistance systems (head protection), coupler vertical restraint systems (shelf couplers), insulation, and thermal protection systems on tank cars used to transport certain hazardous materials. Despite these safety improvements, as noted above, in the last several years there have been a number of rail tank car accidents in which the tank car was breached and product was lost on the ground or into the atmosphere. FRA's research focus changed after the tragic occurrence of these accidents. Specifically, as discussed in Section VI above, the NTSB issued seven safety recommendations to FRA as a result of the Minot derailment. Four of these recommendations concern tank car structural integrity (R-04-04, R-04-05, R-04-06, and R-04-07), and these four recommendations served as the basis for the reformulation of FRA's tank car research and development program. The current FRA tank car research program objective is the development of effective strategies to maintain tank integrity during train derailments or accidents. The key metric identified for this research is the maximum speed for which tank integrity is maintained. This metric has been identified because of the comparable ability for other researchers to perform large deformation analysis. Ascertaining the specifics of material failure through analysis is still extremely challenging. The ability to model tank car integrity with confidence will be critical to the ability of tank car manufacturers to develop new designs that conform to the performance standards proposed in this NPRM. Specifically, in response to NTSB's Minot recommendation R-04-07, work was conducted on the testing of tank car steels to examine the dynamic fracture toughness of such steels as a function of service temperature. This work included standardized fracture mechanics tests and the comparison of results from these tests with Charpy V-notch impact energies at different temperatures. Due to inherent material variability, the results from the fracture toughness tests are scattered by a factor of four, which would require a safety factor of at least 2 in a quality assurance
(QA)specification. This means, for example, the samples taken from a production heat of steel would have to average at least twice the toughness needed for service. Tightening the QA on steel products can result in inordinately expensive steel costs and most likely would be cost prohibitive. Alternatively, an unacceptable gain in structure weight may be required to sufficiently decrease the applied stresses to meet the safety factor with achievable material performance. Additionally, a specification will not provide an absolute guarantee of safety because, despite the implementation of any QA specification, some materials released from production may not meet the minimum fracture toughness standard. Accordingly, although FRA is in the process of completing the dynamic fracture toughness testing, it does not appear that a workable steel specification could be developed based on the results. Instead, in this NPRM, the Department has chosen to explore advances in tank car safety through engineering redesign of tank car structures to increase the amount of energy absorption a tank car experiences prior to a breach. The Department will continue to examine the dynamic fracture toughness of steels used in the construction of pressure tank cars in hazardous materials service and will incorporate any workable tank car design-specific fracture toughness standards into the HMR as appropriate in future rulemakings. Also in response to NTSB's Minot recommendations, a risk model framework was developed to provide the technical basis to rank the factors affecting catastrophic failure of tank cars in derailments or collisions. The risk model framework focuses on determining whether the risk of lading loss in an accident situation could be minimized by specifying a particular material, e.g., normalized versus non-normalized steel. A hierarchal approach (i.e., Level 1, Level 2, and Level 3) was applied and as research results become available they will be incorporated. In Level 1, a qualitative ranking is conducted by identifying the factors that are perceived to affect risk. These factors are then grossly sorted in terms of their expected impact on risk (e.g., high, medium, or low impacts). A simple Level 1 risk ranking has been completed. In Level 2, a systematic framework will be developed to provide a technical basis for ranking the risk factors. In this semi-quantitative method, a probabilistic approach will be used to account for uncertainties due to physical randomness and/or limited information. Different probability distributions (e.g., normal, Weibull, triangular, etc.) have been used to assess various uncertainties in the model. In Level 3, a quantitative risk ranking, the information obtained from other research programs will be incorporated with the goal of ranking tank cars that are perceived to be the most vulnerable to catastrophic failure. Although material properties play an important role in the performance of a tank car subjected to fatigue type loading, for overload conditions such as those experienced in collisions or derailments, the ranking developed is not expected to provide a tool for improving tank car performance. Instead, as noted above, in the NPRM, the Department has chosen to examine the potential redesign of the tank car structure to minimize the effect of the overload conditions, e.g., to absorb more energy prior to incipient rupture and spread the load over as large an area as possible. Currently, FRA's research focusing on the accident survivability of railroad tank cars involves a three-step process to assess the effects of various types of train accidents (e.g., derailments or collisions) on tank cars. Each phase involves the development of computational models with different objectives. The first phase involved the development of a physics-based model to analyze the gross motions of rail cars in a derailment (i.e., a derailment dynamics model). This derailment dynamics model was then used to estimate the closing speeds, peak impact forces, and angles of incidence between an impactor (e.g., the coupler of another car) and the tank car head or shell. The second phase involved the development of structural finite element analysis models to simulate the structural response of the tank car head or shell to an assumed scenario (i.e., penetrator shape, initial closing velocity, and effective collision mass). The third phase is an assessment of the damage created by the impacting loads, which entails the application of fracture mechanics testing and analysis methods. The research is being conducted by Volpe and is summarized below. In addition, a more detailed discussion of the research can be found in the transcript to the March 30, 2007, public meeting (document no. 29 in docket no. FRA-2006-25169) and in FRA's “Research Results” (document no. 24 in docket no. FRA-2006-25169). The first phase of FRA's current research program developed information about the performance of a train consist after a derailment occurs. Initially, this phase of the research was aimed at developing a derailment model effectively recreating the Minot derailment. However, due to the chaotic events and inherent complexities (e.g., track layout and condition; the three dimensional topography of the local terrain; car types in a train; and the location of each car in a train) of derailment situations, the initial and boundary conditions that lead up to specific derailment scenarios are very poorly understood. Early in its research effort, FRA realized that the exact circumstances and boundary conditions of the Minot derailment could not be accurately reproduced. Accordingly, FRA revised its objective in this first phase of research from trying to replicate the conditions of the Minot accident, to identifying all of the salient features of derailment situations based on historical accident consequence review, as well as active accident investigations, thereby creating a generalized accident scenario with well-defined initial and boundary conditions. This information was then used to establish more easily analyzed impact scenarios. Specifically, the derailment dynamics model was used to estimate the post-derailment car-to-car interactions; that is, the gross motions of the cars as they come off the track after a derailment, the closing impact speeds, and the orientations at which the derailed cars come together in a generalized derailment scenario. Sensitivity studies were then performed to assess the relative effect of various factors on derailment severity. The factors analyzed included:
(1)The number of cars derailed;
(2)the secondary car-to-car closing speed;
(3)the peak forces that the couplers experience; and
(4)the lateral displacement of the derailed cars from the point of derailment. Although there are several potential alternative analysis techniques that could be employed, FRA used two different types of models to calculate the gross motions of rail cars during a derailment scenario. One model was a purpose-built model using an explicit derivation of the equations of motions for a two-dimensional lumped-parameter representation. The second model involved a commercially-available, general-purpose model for rigid-body dynamics, commonly accepted within the rail industry. The inputs for the models included:
(1)Operational factors such as the number of cars in the train and the masses of the cars;
(2)descriptions of the initial conditions such as the longitudinal speed of the train just prior to derailment and the initial angular velocity used to perturb the train set and cause the derailment;
(3)the coefficients of friction between the tank car trucks (i.e., the swiveling frames of wheels under each end of the tank car) and the rail or the ground;
(4)specific coupler characteristics such as length, dead band, stiffness, and maximum swing angles; and
(5)higher-level model assumptions such as how the couplers break, the car-to-car contact forces, and lumped mass simplification. The input parameters were varied by as much as +/−fifty percent. The models consistently demonstrated that significant sensitivities are associated with initial train speed and ground friction. The higher the initial train speed, the higher the post-derailment car-to-car impact closing speed and the greater the number of derailed cars. However, the results indicate that, in general, the secondary car-to-car impact speed is one-half that of the initial train speed across the variation in input parameters. Additionally, the resulting car-to-car impact speeds are negatively affected by increases in ground friction. That is, for higher ground friction, the resulting car-to-car closing speeds are lower and fewer cars derail. Of interest was the finding that within the parameters of the modeling, the mass of the cars was not a significant factor on post-derailment car-to-car closing speeds or on the number of cars derailed. Results of the derailment dynamics modeling also demonstrated similar car-to-car interactions as observed in real world accident situations. For example, one type of impact occurs when two cars come together and the second car impacts the head of the first car (e.g., the Macdona accident). A second type of impact is associated with side/shell impacts (e.g., the Minot accident). Both the derailment dynamics models, as well as real world incidents documented in the RSI-AAR Tank Car Accident Damage Database, demonstrate that these head/shell impacts occur both at the centerline of the car as well as at the ends of the cars above the trucks/bogies. By combining this information, simple impact scenarios were developed that could be readily analyzed to compare the performance of different types of tank car designs (whether from the existing fleet or newer proposed designs). The second phase of FRA's current research program utilized the information generated from the derailment dynamics modeling to assess the forces to which cars can be subjected in the event of a collision or derailment. This work required the development of large deformation finite element models capable of analyzing post buckling/plastic deformations. Both head and shell impacts were analyzed, but emphasis was placed on head impacts because there is a greater body of knowledge available on head performance. In cooperation with FRA, extensive head puncture testing was conducted by the RSI-AAR Test Project throughout the 1970's and 1980's. This research, conducted on both empty, non-pressurized and loaded, pressurized tank cars, led to the HMR's current specification for head protection. It is important when developing such complicated models to start simply and build up in levels of complexity. Because head impacts are better understood, as is the deformation of a tank car unloaded and unpressurized, FRA initially modeled an empty, unpressurized tank car. There is greater uncertainty associated with pressurized fully-loaded cars, as well as understanding the stress states the cars experience prior to rupture. Results from the RSI-AAR head impact data, empirical puncture models, and three-dimensional laser mapping of the damage from the cars in Graniteville were used to help establish the validity and fidelity of the models. FRA intends to continue its modeling efforts to increase the level of complexity to analyze a loaded, pressurized car. The third phase of the FRA's current research program is an extension of the model development and assessment of damage to tank cars from prescribed impact loading conditions that may lead to catastrophic failure. The results from full-scale tests will be used to validate the second and third phases of the research. The FRA and the NGRTCP group are conducting a series of shell impact tests to provide information about the performance of conventional PIH tank cars under the collision conditions defined from the previous research program. In addition to providing baseline performance data, the test conditions developed are intended to aid in the development of a testing process that can be used to assess the relative performance of different designs, as well as to qualify a design. The full-scale testing approach involves a generalized impact condition based upon the scenarios defined previously and is designed to be simple to set-up, safe to conduct, and readily analyzed. It is also designed to provide consistent and repeatable results. The test conditions developed are not intended to replicate any specific accident conditions but are rather intended to result in similar failure and deformation modes as observed in accidents. This is a very similar approach that parallels the automotive 30 mph barrier test. Three full-scale tests have been conducted to date, on April 11, 2007, April 26, 2007, and July 11, 2007. These tests involved a side impact between a rigid ram car with a stylized punch striking a standing pressurized DOT specification 105 tank car broadside at the centerline of the tank, both horizontally and vertically. The ram car was ballasted to a weight of 286,000 pounds. The standing tank car was pressurized to 100 psig and was loaded with clay slurry with a density equal to liquid chlorine with an outage of 10.6%. The ram car was pulled back to a predetermined position on the slightly graded tangent track and released to achieve the desired impact speed. Just prior to impact with the standing tank car, the air brakes on the ram car were activated, such that upon rebound, a second impact would not occur. In the first two tests, the punch face size was approximately 23 inches by 17 inches; in the third test, the punch face size was approximately 6 inches by 6 inches. The first test was a limited instrumented assurance test designed to develop information about how the colliding equipment interact and to better understand the gross motions of the two cars. Because the test was designed to develop more detailed information about the interacting cars' behavior, and puncturing the standing car would have unnecessarily complicated the analysis and test set-up, the test speed was defined such that no puncture would occur. Specifically, the first test was conducted at 9.6 mph, and as predicted, no puncture occurred. The limited instrumentation on both the ram car and the standing tank car were analyzed and the force-time histories measured and predicted. The measured force-time histories from the collected data were within the standard deviation of the predicted test results. The second test that was conducted had a fully-instrumented standing tank car. The additional instrumentation helped to define load path into the tank car, the evolution of the plastic dent growth, and recovery. It also refined the measurements of the gross motions of the colliding cars' interaction. The test was conducted at 14.0 mph. As with the first test, this test speed was chosen so that puncture would not occur. The ram car was again released from a pre-defined location and allowed to roll freely under gravity and the grade to impact the standing tank car. The analysis of the test data are on-going, but preliminary review suggests that again the force-time histories of the ram car and the struck tank car are within the standard deviation of the predicted test results. After the second test, a careful inspection of the ram car showed that a modest amount of damage was inflicted on the lead truck and its carbody attachment. This damage was attributed to the off-axis vertical motions resulting from the difference in the centerline of the impactor and the height of the center-of-gravity of the ram car. In order to safely run a test to puncture the baseline car, either a smaller punch would be needed and the test speed maintained at 14 mph, or the center-of-gravity of the ram car would have to be raised to be more in line with the centerline of the punch, to minimize ram car vertical motions for impact speeds greater than 14 mph. The option selected was to reduce the punch size to 6 inches by 6 inches. There was equal confidence in simulating the influence of punch size and impact speed on tank rupture. DOT is seeking to significantly increase the impact speed at which tank cars carrying PIH materials can protect their lading. For a wide range of sizes, this goal is independent of punch size. In order to allow for safer test procedures and lower test speeds, it was decided to use the smaller punch size in the regulation. Because of the results of the second test, in the third test, the punch face size was approximately 6 inches by 6 inches. The standing tank car that was used during the third test was fully-instrumented. The test was conducted at 15.1 mph, and this test speed was chosen so that puncture would occur. The third test was designed to confirm that material failure of the tank car and puncture would occur at 15 mph with a smaller impactor. The test also provides a comparative baseline reference for the enhanced tank car designs. As with the second test, the ram car was again released from a pre-defined location and allowed to roll freely under gravity and the grade to impact the standing tank car. The analysis of the test data are on-going, but preliminary review suggests that again the force-time histories of the ram car and the struck tank car are within the standard deviation of the predicted test results. Additional tank car testing is planned. The further testing will provide additional insight and validation to the modeling. The additional tests include material, full-scale sub-assembly, and full-scale prototype car tests. Materials tests improve the constitutive models applicable to the specific sub-components used in alternative designs, such as behavior of composites, foams, and multi-layered metal structures. The full-scale sub-assembly tests build confidence in the fidelity of the models used as they capture both material and geometric nonlinear behavior exhibited by larger scale components. Finally, in conjunction with the NGRTC program, full-scale prototype cars will be subjected to side and head impact and over-the-road testing. Each additional test enhances the modelers' ability to predict and capture increasingly complicated behavior under extreme accident loading conditions. As noted in the discussion of the proposed rule text, the proposed head and shell performance standard is based on the model that has been developed by Volpe. As more testing is completed, any new information or refinements to the test procedure will be considered for incorporation in this proposed rule. For the reasons outlined above, FRA's research has focused on ways to enhance the accident survivability of tank cars through implementation of an enhanced performance standard for head shields and tank shells. We recognize that there may be a number of different ways for tank car manufacturers to meet this performance standard, including different design-types, variations in materials of construction, and the like. We invite commenters to suggest specific measures that would be utilized to meet the proposed performance standard. In addition, commenters may wish to provide data and information that would support alternative strategies for achieving the goal of improved tank car accident survivability. XI. Discussion of Public Comments As noted above, recognizing the need for public input as part of DOT's comprehensive review of design and operational factors affecting rail tank car safety, PHMSA and FRA held three public meetings inviting interested parties to comment on relevant aspects of tank car safety. As part of the public comment process, FRA established a public docket (Docket No. FRA-2006-25169), providing interested parties with a central location to both send and review relevant information concerning the safety of railroad tank car transportation of hazardous materials. The FRA docket contains several submissions from FRA (e.g., transcripts of the three public meetings, relevant Congressional testimony, research reports), as well as comments from numerous members of the regulated community. Specifically, written comments were received from the following organizations: BASF Corporation, the Institute of Makers of Explosives, Dow, TFI, Trinity, Applied Solutions, Inc., the Brotherhood of Railroad Signalmen, Agrium U.S. Inc., CI, and PPG Industries (PPG). Many of these same organizations attended the public meetings and provided oral comments at those meetings. The following discussion provides an overview of the written and verbal comments that were received. Where appropriate, a more detailed discussion of specific comments and how DOT has chosen to address those comments in this proposed rule can be found in Section XIII below, the Section-by-Section analysis portion of this preamble. A. May 31-June 1, 2006 Public Meeting The primary purpose of the first public meeting, held on May 31-June 1, 2006, was to surface and prioritize issues relating to the safe transportation of hazardous materials in railroad tank cars. Attendees included representatives from the railroad industry, shipping industry, railroad tank car manufacturing and repair companies, labor organizations, the NTSB, Transport Canada, and the Transportation Security Administration (TSA). At this meeting, commenters from both the railroad industry and the hazardous materials shipping industry expressed the view that rail is the safest mode of transportation for hazardous materials over land. For example, the AAR explained that since 1980, the rate of rail accidents with a hazardous materials release per thousand rail carload has dropped by 89%. RSI noted that approximately 1.7 million carloads of hazardous materials are transported by rail throughout the United States each year and 99.98% of those shipments reach their destinations without incident. Similarly, RSI commented that statistics demonstrate that it is 16 times safer to move hazardous materials by rail, as compared to highway. Noting that it would take approximately four cargo tank trucks to deliver the amount of hazardous materials that can be carried in one rail tank car, several shippers expressed concern that if shippers were forced to transport hazardous materials via highway, the overall safety risk would increase because of the increased number of shipments on the nation's roads. Several representatives of the hazardous materials shipping industry expressed the view that rail transportation of hazardous materials is essential to the competitiveness of the U.S. chemical and agricultural industries, to the public health, safety and welfare, as well as to the economy of the United States. Dow, the largest chemical company in the world, indicated that its North American business model is based on the belief that the rail transportation of hazardous materials is the safest, most efficient, most economical, and most socially acceptable way of shipping hazardous materials over land. Despite these safety statistics, meeting participants from both the railroad and shipping industries expressed agreement on the need for continuous improvement in the safe transportation of hazardous materials by railroad tank car, particularly in light of the Minot, Macdona, and Graniteville accidents. However, participants expressed differing views on how to accomplish that goal. Many representatives of organizations that depend on railroads for shipping hazardous materials stated that improvements in the safe transportation of hazardous materials by railroad tank car should be made only after a “holistic” consideration of the rail transportation system. For instance, several commenters expressed the view that not only should tank car design improvements be considered, but safety improvements should also address railroad operating and maintenance practices; railroad routing practices and how to reduce ton miles PIH materials travel due to inefficient routes; shipper commodity handling practices; and emergency response procedures. Both the Brotherhood of Locomotive Engineers and Trainmen
(BLET)and the United Transportation Union
(UTU)echoed several of these same concerns, particularly noting human factors issues, the prevalence of non-signalized territory, the training of crews to handle hazardous materials, and crews' access to personal protective equipment in the event of an incident. One commenter specifically suggested that DOT adopt AAR Circular OT-55-I as a regulation. Several commenters noted that the tank car is only one component of the rail transportation system, and no single component of the system can provide the entire means to improving tank car safety. Accordingly, many commenters expressed a desire for DOT to take a leadership role in addressing the safe transportation of hazardous materials by railroad tank car on a system-wide basis. FRA and PHMSA generally agree with these commenters. Although this NPRM focuses on enhancing the tank car packaging, it also proposes certain operational restrictions specific to tank cars transporting PIH materials, and DOT's comprehensive review of design and operational factors affecting rail tank car safety is not so limited. As noted above, DOT's rail safety efforts are multi-faceted, and DOT is addressing operational issues such as human factors, track conditions, and signal and train control systems designed to prevent accidents in the first place, as well as emergency response issues intended to ensure that in the event of an incident, emergency responders are able to respond appropriately. In addition, PHMSA has issued a proposed rule that would require railroads to gather traffic and commodity data on certain explosive, radioactive, and PIH materials they transport; analyze safety and security vulnerabilities of current and alternative routes used for these materials; and select the routes that pose the least safety and security risks after considering any mitigation measures that could be implemented. *See* 71 FR 76834 (Dec. 21, 2006). Other commenters noted the voluntary efforts already underway by many hazardous materials shippers to improve the safe transportation of their materials by rail. One example of an industry effort to address the safe transportation of hazardous materials in tank cars is the partnering of Dow and UP in a series of initiatives to improve rail safety and security, including the NGRTCP. These initiatives are discussed in more detail in Section IX above. Railroad participants, including the AAR, CP, and BNSF, expressed the view that the railroad industry itself has taken many voluntary steps to reduce the occurrence of accidents that can lead to hazardous materials releases. For instance, a representative from BNSF presented information on the carrier's derailment prevention efforts aimed at track caused derailments, equipment caused derailments, as well as derailments relating to operating practices. BNSF's efforts include implementing advanced train control technology; utilizing various freight car condition monitoring technologies; installing and maintaining switch point position indicators and broken rail protection in non-signalized dark territory; as well as modifying the carrier's operating practices when transporting a significant amount of PIH materials over non-signalized territory. Specifically, noting that nearly 50% of BNSF's PIH movement is over non-signaled territory, BNSF explained changes in its operating practices aimed at ensuring the safe transport of PIH materials over this type of territory. BNSF noted the following changes in operating practices when transporting PIH materials over dark territory:
(1)Inspecting the route prior to operating trains carrying PIH materials;
(2)restricting the speed of trains carrying PIH materials to 35 miles per hour;
(3)requiring that trains hauling PIH materials hold the main line during meets; and
(4)requiring trains on sidings to stop before PIH trains pass. Additionally, a representative from CP presented information on the carrier's efforts, dating back to 1995, to address human factors issues in the railroad environment, including efforts directed at crew resource management, and fatigue risk management. Noting member railroads' efforts to reduce the occurrence of accidents that can lead to hazardous materials releases, the AAR expressed the view that “[r]esponsible planning must consider that accidents can occur” and “in addition to the efforts to prevent accidents, industry must also do everything it can to reduce the probability of a release of TIH [materials], such as anhydrous ammonia and chlorine, should an incident occur.” Based on its research through the University of Illinois, AAR noted that there appears to be a significant opportunity to reduce the probability of a release of anhydrous ammonia and chlorine in the event of an accident. AAR indicated that the University of Illinois research concluded that, utilizing existing technology, the probability of a release of anhydrous ammonia and chlorine from a tank car involved in an accident could be reduced by 65 percent or more by substituting enhanced tank cars for the cars currently used to transport these materials. AAR explained that this conclusion was premised on replacing the current 263,000 pound tank cars used for transporting anhydrous ammonia and chlorine with 286,000 pound tank cars equipped with additional head protection, thicker shells, and enhanced top fittings protection (i.e., the Trinity car). Most commenters representing members of the hazardous materials shipping industry generally expressed support for the efforts of the AAR TCC to improve the transportation of hazardous materials by rail. However, those commenters expressed concerns with several aspects of the TCC's recent proposals. First, commenters stated that the implementation period proposed by AAR (i.e., replacing the entire chlorine and anhydrous tank car fleet within five to seven years) was unrealistic, particularly given tank car manufacturing capacity. One commenter, Terra Industries (Terra), a shipper of anhydrous ammonia, objected to AAR's proposal noting that the estimated costs to build cars to the standard would be approximately 160% higher than new ammonia cars being built today. In addition, Terra noted that because the cars would hold approximately 80% as much product as compared to current ammonia cars due to infrastructure restrictions, shippers would need more cars in order to make shipments at current levels. This, in turn, according to Terra, would increase the costs of shipping by approximately 75% before rail freight and fuel charges. Several other shippers and chemical manufacturers echoed Terra's concern regarding reduced capacity, noting that infrastructure restrictions of many facilities and some shortline railroads would prohibit utilizing a car weighing 286,000 pounds. These commenters also noted that this reduced car capacity could lead to an increased number of railroad tank car shipments, and in the case of anhydrous ammonia, a shift from rail transportation to highway transportation. Terra also noted that AAR's approach was inconsistent with the NTSB's recommendations in response to the Minot accident. Specifically, Terra stated that the NTSB's report for the Minot accident indicated that the construction of tank cars with sufficient impact resistance to eliminate or reduce leaks would require an evaluation of the dynamic forces acting on the tank cars in an accident situation, as well as an integrated analysis of the response of the tank's structure and the tank material to these forces. Terra noted that AAR's proposed approach considered none of these factors. Similarly, noting FRA's on-going research with Volpe, several commenters stated that any potential tank car design improvements should take into consideration the results of the Volpe research. Commenters generally noted that improved tank car design is dependent on understanding and defining the environment in which the tank car is expected to perform. FRA and PHMSA agree that in order to design an enhanced tank car with increased accident survivability, an understanding of the forces acting upon a tank car in a typical derailment or collision scenario is necessary. Accordingly, FRA has aggressively accelerated its research efforts related to tank car integrity and, as discussed above, FRA is working cooperatively with industry to leverage R&D resources. We will continue to update this docket to reflect the results of our ongoing research efforts and, as indicated above, may incorporate research results in a final rule developed as a result of this NPRM. Several commenters further expressed the view that the overriding goal of any effort must be to prevent accidents from occurring in the first place and that AAR's proposal does not address the root causes of accidents (e.g., operating factors). Again, FRA and PHMSA agree with commenters in this respect. As described above, FRA is aggressively working through a comprehensive action plan to not only improve the integrity of tank cars used to transport hazardous materials, but to address the root causes of such accidents as well. *B. December 14, 2006 Public Meeting* Although commenters at the second public meeting, which was held on December 14, 2006, raised many of the same issues discussed at the prior public meeting, discussion at the meeting focused on a series of nine questions posed by PHMSA and FRA in the meeting notice publication. *See* 71 FR 67015 (Nov. 17, 2006). Attendees again included representatives from the railroad industry, shipping industry, railroad tank car manufacturing and repair companies, Transport Canada, and TSA. First, PHMSA and FRA asked what new designs, materials, or structures DOT should be investigating for improved accident/derailment survivability of hazardous materials tank cars. In response to this question, CI expressed the view that advances in material science present an opportunity to investigate new materials for the construction and protection of tank cars. For example, CI noted advances in steelmaking practices, composites used for insulation, materials used for thermal protection, as well as crash energy management materials. Similarly, Trinity explained that the AAR TCC has an ongoing program evaluating non-traditional steels for tank car construction ( *i.e.* , steels not typically used in the construction of railroad tank cars) and suggested that DOT should actively participate in, and fund, this activity. FRA notes that it is an active participant in the AAR task force evaluating these steels, and FRA looks forward to continuing to work with industry on this research. CI commented further, however, that prior to the use of any of these new materials, DOT and industry would need to conduct appropriate research, utilizing real world accident data. To that end, CI noted its ongoing research through Structural Reliability Technologies, which preliminarily identified certain materials as having the potential to improve accident survivability of hazardous material rail cars. ARI stated that in order to accommodate material advances, certain existing DOT regulatory requirements may need to be revised. For example, ARI noted that the J-type tank car requires a metal external jacket for fire protection purposes, but because fire protection is now provided through layers of insulation, the metal jacket is not necessarily needed any longer. Instead, ARI explained that certain carbon fibers may better serve the purpose of the metal jacket. As discussed in more detail in the Section-by-Section analysis below, this NPRM proposes to retain the requirement that tank cars used to transport PIH materials be equipped with metal jackets. DOT, however, invites further comments on the efficacy of maintaining this requirement or suggestions for effective, feasible alternatives. On behalf of the NGRTCP, a representative of Dow generally explained the new designs, materials, and structures being explored by the project. The commenter noted that the current rail car design for the typical jacketed pressure car relies on the inner tank to serve three functions:
(1)Contain the commodity;
(2)carry all train stresses and loads; and
(3)protect the commodity from external forces. The NGRTCP is evaluating the potential to separate these tank functions, so that the inner tank's primary purpose is to contain the commodity and then effectively add layers of functionality to address train stresses and loads and protect the inner tank from external forces. This commenter also noted that the current jacketed pressure car is made up of three components:
(1)An outer shell or jacket,
(2)an interstitial space (typically 10-12 inches for a chlorine tank car), and
(3)the inner tank and that the NGRTCP is analyzing what can be done to improve tank car survivability by utilizing the interstitial space. Dow further explained that the NGRTCP was evaluating two high-level tank car designs. The first design under evaluation is how a typical jacketed pressure car could be improved by adding layers of functionality and incorporating alternative technologies, particularly in the interstitial space. The second design under evaluation by the NGRTCP is similar to a DOT 113/115 tank-within-a-tank design. The primary purpose of the inner tank in this design is to contain the commodity. The interstitial space and outer structure of the tank is then used to bear trainload stresses and protect the inner tank from external forces. A tank-within-a-tank approach allows the inner tank to be designed around the physical and chemical properties of the material being transported and allows for several different alternatives for designing the interstitial space and the outer tank structure to bear trainloads and protect the inner tank. For example, Dow explained that the inner tank could potentially be made of a thinner steel than that used in current cars and wrapped in a composite material. Additionally, deformable materials could be used to create “crumple zones” in the interstitial space; the outer structure of the tank could be constructed of a different type of steel, not necessarily suitable for use in a typical pressure car; and potentially an impact resistant coating could be applied to the outer structure. Dow noted that this could possibly result in a stronger tank, which weighs less than the current design. The Department encourages industry to continue evaluating the potential use of the new materials, new types of steel, and alternative designs discussed at the meeting. FRA believes that, by utilizing existing technology, a significant improvement can be made to enhance railroad tank car accident survivability. Accordingly, the performance standards for enhanced head and shell protection set forth in this NPRM are technology-neutral and are intended to allow for the most design, material, and manufacturing flexibility, while significantly improving the accident survivability of railroad tank cars. We ask commenters to submit data and information concerning alternative strategies for enhancing accident survivability that may be as effective as, or more effective than, the enhanced head and shell protection measures proposed in this NPRM. Second, PHMSA and FRA solicited information regarding tank car top fittings. Specifically, the agencies asked whether there were any design changes that would enhance the survivability of tank car top fittings ( *e.g.* , modifications to height or placement of valves or modifications to the protective structure that surrounds the valves). In response to this question, commenters generally agreed that two of the most important factors for top fitting survivability in an accident are lowering the profile of the fittings to reduce vulnerability and strengthening the protection surrounding the fittings. Along those lines, a few commenters representing the railroad industry suggested that the ultimate goal of enhancing top fittings protection should be a tank car with only a flange on the pressure plate that could be skid- or roll bar-protected, or a tank car that could be shipped with no fittings, requiring that the fittings be installed at the point of unloading. In response to the idea of a tank car being shipped with no fittings, however, shippers generally expressed concern with the safety and compatibility of such a system given existing plant infrastructure and the regulatory scheme surrounding tank car unloading. Trinity suggested that DOT could facilitate improvements in top fittings protection by modifying the regulations to require lower profiles and by replacing the current hardware-specific requirements with a performance standard. As noted in Section IX above, CPC-1178 would require anhydrous ammonia and chlorine tank cars constructed after January 1, 2008 and used in interchange to have top fittings designed to withstand a rollover with a minimum linear velocity of nine mph. See discussion in Section V above on interchange requirements. Although DOT is aware that incidents involving tank car top fittings do occur, historical accident data demonstrates that top fittings are not a significant factor in attempting to reduce the risk associated with large product losses. For example, considering the more than 2 million chlorine shipments between 1965 and 2005, only 1 of the 14 losses in accidents from top fittings was reasonably deemed substantial, with 1,000 gallons lost. During the same time frame, the next largest chlorine release from top fittings in an accident involved 100 gallons, while the remaining 12 top fitting losses in accidents were small amounts, many of them 10 gallons or less, with an average loss of approximately 13 gallons. None of these incidents resulted in injuries. At the same time, catastrophic losses from tank-head or shell punctures averaged approximately 10,000 gallons per accident. These data demonstrate that failures or breaches of tank car heads or shells tend to lead to large quantities of chemicals released, and accordingly, pose the greatest safety risk. Despite the minimal risk of substantial releases from tank car top fittings in accidents, FRA and industry are actively researching methods for enhancing tank car safety through modifications to top fittings. FRA has an ongoing research program focused on improving the performance of tank car top fittings in the event of roll-over incidents. Additionally, both the TCC and the NGRTCP are investigating potential improvements to top fittings. The TCC is examining the effectiveness of various fitting protection devices and the feasibility of using recessed fittings. The TCC has indicated that initial simulations of these concepts demonstrate potential for providing significant protection, particularly at higher speeds. The NGRTCP is examining potential improvements including
(1)Lowering the profile of the fittings;
(2)reducing the number of valves;
(3)the use of internal closures; and
(4)redesign of the pressure relief valve. We expect that modified top fittings will be ready for service trials in early 2008. Although the research appears promising, at this time it is inappropriate to propose new standards (by rulemaking or otherwise) for top fittings protection because it is not yet clear what modifications would provide a substantial improvement in the ability of top fittings to:
(1)Withstand accident conditions, while providing at least the same level of protection from non-accident releases,
(2)Continue to work with industry's existing loading and unloading infrastructure, and
(3)Maintain compatibility with current emergency response requirements (e.g., compatibility with Emergency Kit C, which is used to contain leaks in and around the pressure relief device and valves in the case of chlorine tank cars). We expect that FRA's research, together with the findings of the TCC and NGRTCP, will lead to a consensus-based industry standard for enhanced tank car top fittings protection. Provided that the design does not deviate from Federal regulations, the Department will evaluate implementation. If the consensus design does deviate from Federal standards or if the Department deems that the industry actions are not sufficient, we will propose revised Federal standards for top fittings in a separate rulemaking proceeding as early as next year. To support these efforts, the Department intends to hold a public meeting early next year to discuss the need for revised top fittings standards. Parties wishing the Department to consider proposed revised top fittings standards may, of course, petition the Department at any time for a rulemaking to change the existing Federal standards. 49 CFR 106.55. As discussed in Section I above, improving the safety and security of hazardous materials transportation via railroad tank car is an ongoing process. As we continue our comprehensive review of tank car safety, we anticipate holding additional public meetings to address relevant issues other than those contained in this NPRM. At this time, however, because the loss of lading from side or head impacts in accident scenarios presents the greatest risk, FRA is concentrating its efforts on those areas for purposes of this rulemaking. We do, however, invite commenters to provide any data or other information relative to potential modifications to tank car top fittings or potential enhanced safety standards for fittings, including the design of fittings utilized on the Trinity tank car. Commenters may also wish to provide data and information concerning the costs that would be incurred to modify tank cars built to the performance standard proposed in this NPRM to incorporate enhanced fitting designs. We also remind interested parties that any person may petition the Department to initiate a rulemaking proceeding regarding issues relevant to the transportation of hazardous materials by rail. 49 CFR 106.55. The third question posed by PHMSA and FRA pertained to tank car puncture-resistance (including the puncture-resistance of the head and shell), and specifically whether there are any design, material, or manufacturing changes that could lead to improved tank car puncture-resistance. In response to this question, a representative of the NTSB suggested that the relevant issue should not be limited to what PHMSA and FRA termed “puncture-resistance.” Instead, the NTSB noted that low-speed impacts by large objects lead to structural deformation and possible puncture, and accordingly, any structural deformation and puncture must be looked at together as an issue of structural impact and response. DOT recognizes NTSB's point with regard to the specific term “puncture resistance.” However, DOT's research efforts are aimed at improving the accident survivability of railroad tank cars, and in examining this issue, DOT is considering not just the ability of a tank car to resist puncture, but as noted in Section X above, the agency has analyzed the equipment's overall structural response to head or shell impacts. DOT believes that an understanding of a tank car's overall structural response to impacts is necessary in any effort to improve the ability of a tank car to maintain its integrity under accident conditions. However, DOT believes that for purposes of regulatory language setting forth a performance standard regarding a tank car's ability to maintain its integrity under accident conditions, the term “puncture resistance” is an accurate representation of the performance that needs to be achieved (i.e., the tank car maintains its integrity such that no lading is released as a result of the impact). Accordingly, in this NPRM, DOT has maintained the term “puncture resistance.” The NTSB also stated that any new tank car design should take advantage of the large increase in structural stiffness and strength that results from coupling two rigid shells together, as opposed to a floating tank-within-a-tank design. The NTSB further suggested that the materials utilized between the inner and outer shells should be designed so that they can serve as a local impact energy dissipation momentum transfer mechanism, effectively spreading out the impacting force. Following the NTSB's line of reasoning and noting that pressure within a tank is a “pushback” against external forces, ARI expressed the view that consideration needs to be given to lowering the internal pressure of tank cars (depending on the vapor pressure of the commodity contained in the car), so that impact forces result in deformation to the tank shell, rather than a puncture of the shell. Commenters generally noted that several concepts aimed at improving tank car puncture-resistance are currently being explored in the industry, or could be explored. For example, Trinity suggested that tank-head protection could be provided by ultra-high strength, non-formable, flat plates such as armor plating, thereby permitting tank-head thickness to be reduced to that required to contain the internal pressure. CI commented that improving puncture resistance is the single most important design factor in enhancing accident survivability. To this end, CI noted that through its ongoing research with Structural Reliability Technologies (SRT), it is looking at potential improvements through a combination of new material for tank and/or jacket construction (e.g., high strength/low alloy steels) and the incorporation of energy-absorbing materials into the configuration of tank cars and tank car jackets. Commenters also suggested that DOT consider technologies utilized in other industries. For example, one commenter noted antiterrorism industry projects regarding self-sealing technologies. DOT, together with TSA and industry, are currently investigating the potential of utilizing self-sealing technologies on hazardous material tank cars to aid in the quick repair of the tank in the event of a breach. DOT believes that this research is promising, particularly in the context of ballistic impacts. However, the technologies appear to be of limited utility in the repair of tank breaches resulting from derailments and other collision scenarios where the area breached tends to be larger than what results from ballistic impacts. Dow, on behalf of the NGRTCP, explained that in connection with improved puncture-resistance, the project is examining different types of steels (e.g., the current TC-128 with varying sulfur contents, as well as other types of steels not currently used in railroad tank car construction). In addition, the NGRTCP is considering structural foams as energy absorbing and diffusing materials, as well as crash energy management systems, impact limiters, the use of deformable materials (particularly based on experience in the automobile racing industry), and impact resistant coatings. In the fourth question, PHMSA and FRA solicited information pertaining to whether there were measures, other than accident survivability, such as improved security of operating fittings, or an ability to locate cars beyond current car movement reporting systems, that could improve the overall safety and security of hazardous material shipments via railroad tank car. In response to this question, commenters generally noted the many voluntary efforts, which are already underway in both the shipping and railroad industries, designed to detect hazardous materials leaks, monitor the temperature and other conditions of materials being transported in railroad tank cars, and track the locations of railroad tank car hazardous material shipments. Although commenters generally expressed the view that the existing car movement reporting system, including the automatic equipment identification system, is sufficient for purposes of locating shipments in a timely fashion, most commenters expressed support for utilizing additional location monitoring and other shipment monitoring technologies (e.g., car securement sensors, temperature sensors) depending on the commercial viability of the technologies and the risk presented by the product being shipped. The fifth question PHMSA and FRA posed at the public meeting pertained to whether, in addition to accident survivability, tank cars should be designed to withstand other types of extraordinary events (e.g., ballistic attack or unauthorized access to tank car valving). In response to this question, one shipper commented that tank cars should not be designed to withstand extraordinary events. Instead, the environment in which tank cars operate needs to be modified to prevent such extraordinary events as derailments. Other commenters suggested that tank car design changes should be made to prevent unauthorized access to the cars' contents and to potentially withstand ballistic attack. Generally, however, commenters recognized the need to examine any such potential changes on a risk basis, taking into consideration whether such requirements would be cost effective in particular situations given the risk presented by a particular commodity. Noting that the HMR currently include performance standards for coupler vertical restraint systems, pressure relief devices, tank-head puncture-resistance systems, thermal protection systems, and service equipment protection, the sixth question PHMSA and FRA posed at the public meeting pertained to whether those standards are adequate for future tank cars, and if not, what areas and aspects of railroad tank cars need to be improved. In response to this question, Trinity suggested that the current requirement in the HMR for top fittings protection on pressure cars (49 CFR 179.100-12) is not a performance standard and should be made one. In addition, Trinity suggested that the HMR should be updated in other areas, such as bottom outlet protection and requiring normalized steel for pressure cars, to make the regulations consistent with industry standards. Echoing comments raised at the initial public meeting, CI suggested that all railroad freight cars be equipped with double shelf couplers to avoid couplers on non-hazardous materials cars from becoming disengaged and breaching a tank car containing hazardous materials. FRA is actively researching the potential benefits of modifying freight car couplers (e.g., the use of push-back couplers or other coupler technology advancements) to potentially reduce the likelihood of a tank car being punctured by the coupler of another car during an accident. If the results of FRA's research demonstrates that such coupler modifications would increase safety cost-effectively, FRA will consider such a requirement in a future rulemaking proceeding. Commenters generally expressed a preference for the development of performance standards, as opposed to hardware-specific requirements. Commenters noted, however, that there is not uniform agreement on what constitutes a performance standard. For example, CI stated that a performance standard is something that is physically verifiable, that can be tested to, considers risks and benefits, and that can be applied to new technologies and new designs. However, CI noted that the probability of release is not something that can be tested to. Trinity also expressed support for utilizing performance standards in the tank car regulations. Trinity suggested that any performance standard should also include at least one default hardware-specific standard that can be applied by those who do not have the time or resources to develop their own performance-based design. As an example, Trinity cited AAR's CPC-1176, which contains both a performance standard and a default design standard conforming to the performance standard. Expressing the view that CPC-1176 is a true performance standard, AAR encouraged the Department to use the work already done by the TCC. We agree with an approach that specifies a performance standard. In fact, in the final rule relating to Crashworthiness Protection Requirements for Tank Cars, 48 we agreed with commenters that a performance-based standard for shell-puncture resistance could have merit over a specification-based standard. At that time, however, we did not have the data to support a performance-based standard. Since then, we have assembled enough research and data to allow for the promulgation of a performance-based standard, which will foster new technology and provide design, material, and manufacturing flexibility. 48 *Crashworthiness Protection Requirements for Tank Cars; Detection and Repair of Cracks, Pits, Corrosion, Lining Flaws, Thermal Protection Flaws and Other Defects of Tank Car Tanks* , 60 FR 49048 (Sept. 21, 1995). The seventh question on which PHMSA and FRA solicited information pertained to how the agencies should consider risk factors in determining whether to require tank car safety and security enhancements. For example, the agencies asked whether the risk of the car/commodity pair should be considered so that improvements would first apply to the car/commodity pairs considered to have the greatest risk or for which the car/commodity pair would benefit most from the improvement. In addition, the agencies solicited information on what other risk factors should be considered. In response to this question, commenters generally maintained that tank car safety and security enhancements should be based on the hazard of the commodity involved, as well as the existing tank car safety features, materials, and methods of construction. For example, CI stated that the appropriate way to prioritize tank car safety enhancements is to start with those commodities that have the greatest consequence and greatest likelihood of causing consequences if released. Accordingly, CI concluded that starting with PIH materials was logical. Similarly, citing its efforts at developing an enhanced tank car standard, AAR commented that tank car safety improvements should first focus on the cars carrying commodities that are hazardous to human health (i.e., PIH materials). Even more specifically, AAR suggested that those PIH materials with the highest hazards and those shipped most often, should be addressed first. With regard to the tank car itself, ARI noted that the better protected a tank car is at the present time, it should be one of the last cars retrofitted or taken out of service. In addition, ARI expressed the view that the order in which cars are retrofitted or taken out of service should be left to car owners. We agree that car owners need a certain amount of flexibility in managing improvements to their tank car fleets. Accordingly, this NPRM proposes an implementation period spread over eight years during which car owners are free to manage the implementation of the proposed enhancements within their fleets, provided certain milestones are met. The NPRM does provide, however, that five years after the effective date of the final rule, tank cars manufactured using non-normalized steel for head or shell construction would no longer be authorized for the transportation of PIH materials. The eighth question posed by PHMSA and FRA pertained to whether the installation of bearing sensors or other on-board tracking/monitoring systems capable of monitoring, for example, tank car pressure, temperature, and safety conditions, would improve the safety and security of hazardous materials shipments by railroad tank car and, if so, whether implementing such a system is feasible. In response to this question, commenters generally noted that many hazardous materials shippers have already implemented onboard tracking and monitoring systems for a variety of reasons. A representative of the NGRTCP noted that it was expected that certain on-board tracking/monitoring systems would be included in the Next Generation Rail Car design, but that many detailed practicalities of such a system would need to be addressed (e.g., monitors attached to individual cars or through a system of wayside detectors, the utilization of data collected and communication of that data to affected parties). The final question posed by PHMSA and FRA pertained to whether the installation of electronically controlled pneumatic
(ECP)brake systems on tank cars would improve the safety of hazardous materials shipments by railroad tank car. Only Trinity and a representative of the NGRTCP responded to this question. Expressing the view that for ECP brakes to be effective, all equipment in a train would have to be equipped with such brakes, Trinity commented that ECP brakes would be of little or no benefit to improving hazardous material safety. A representative of the NGRTCP, however, noted that the Next Generation Rail Car will probably incorporate a duality of systems—a traditional brake system with the anticipation of ECP brakes. This commenter further noted that the implementation of ECP brakes is a long-term issue. Although FRA encourages industry to pursue implementation of ECP brake technology as expeditiously as possible, and is encouraged by NGRTCP's representation that a new tank car design may incorporate the duality of brake systems, FRA recognizes that this is a long-term issue affecting the entire railroad industry, and accordingly, such a requirement is outside the scope of this rulemaking. C. March 30, 2007 Public Meeting The third public meeting was held on March 30, 2007. At this meeting, FRA explained that DOT is aggressively working to develop a performance standard for an enhanced tank car design, which will allow innovation and foster new technology in the tank car design process. FRA, through representatives of Volpe, presented its preliminary research results regarding tank car survivability, and solicited comments from meeting participants on several specific ideas regarding how DOT was considering moving forward with the development and implementation of a performance standard based on that research. In addition, on behalf of the AAR, Christopher P.L. Barkan, Ph.D., of the University of Illinois at Urbana-Champaign, Railroad Engineering Program, presented the results of a risk analysis performed by the University on behalf of AAR pertaining to PIH materials transported by railroad tank car. First, FRA noted that, in light of the NTSB recommendations in response to the Minot accident and the mandates of SAFETEA-LU, the agency's current research efforts regarding tank car survivability are primarily focused on tank-head and shell performance. In response, commenters stated that DOT should also consider enhancements to top fittings protection in any rulemaking designed to improve tank car accident survivability. As discussed previously in this section, although we believe that improvements to tank car top fittings may be one method of enhancing tank car safety, we are not proposing new standards for top fittings protection at this time because the research demonstrating the efficacy and feasibility of such enhanced standards is not yet complete. Additionally, based on historical accident data, the greatest likelihood of a catastrophic release of material from a tank car is through the tank-head or shell, not the fittings. Accordingly, this NPRM focuses on enhancing tank-head and shell impact resistance. FRA will, however, continue to investigate potential improvements to tank car top fittings and if appropriate, will pursue such improvements in a separate rulemaking proceeding. Second, Volpe made presentations relating to FRA's tank car research program. Volpe's presentations focused on three aspects of FRA's ongoing tank car research program:
(1)Derailment dynamics analysis (designed to calculate ranges of closing speeds and incidence angles between cars involved in pile-ups);
(2)dynamic structural analysis (designed to estimate the forces corresponding to closing speeds for head and shell impacts); and
(3)damage assessment (designed to estimate deformations to tank-heads and shells and the force at which puncture is expected to occur). Volpe explained that the key results of the derailment dynamics study are that
(1)train speed has the most significant effect on the number of cars that derail, and
(2)closing speed (that is, the car-to-car impact speed) is approximately one-half the train speed at which the derailment occurs. In response to Volpe's presentations, meeting participants posed several questions. A few participants questioned why FRA did not explicitly model the Minot or Graniteville derailments and what efforts have been made to relate the modeling results to real world scenarios. Similarly, noting that Volpe's derailment dynamics models were “straightforward” models that consider just one force acting against a car, one commenter noted that real life derailment situations are generally more complicated. As noted in Section X, above, FRA's research was initially aimed at developing a derailment model specific to the Minot accident. However, due to the inherent complexities and variables surrounding any derailment situation (e.g. track layout and condition, three dimensional topography of the local terrain, car type and location within train consist), the initial and boundary conditions of particular accident scenarios cannot be reasonably ascertained. Additionally, the initial perturbation (i.e., the train speed and track location) resulting in derailments is not precisely known. Accordingly, FRA revised its research objective to define a generalized derailment situation identifying the salient features of derailment situations based on historical accident consequences. This information was then used to establish more easily analyzed impact scenarios (i.e., post derailment car-to-car interactions; and the speeds, orientations and trajectories of the cars as a function of location in the train). Commenters also noted that although Volpe apparently used two different models in its derailment dynamics study, only the results of one model were presented in detail. As noted at the public meeting, although Volpe utilized two models to investigate the derailment kinematics, each of the models predicted the same trends. Accordingly, for ease of presentation, only the results of the ADAMS (Automatic Dynamic Analysis of Mechanical Systems) model were presented in any detail at the meeting because of the ability of the ADAMS software to provide animations of the results. Noting that Volpe's presentation showed that the highest closing speed occurs for the last car that allows the coupler to break, one commenter questioned what would happen if more couplers were allowed to break and whether it was expected that the highest closing speed would always occur at the point. FRA explained that the highest closing speed may occur at the point of the last coupler break, but again noted that the average closing speed between cars is approximately one-half the initial train speed. In addition, because software limitations only allowed the modeling of up to ten coupler breaks in a particular scenario, FRA stated that before any more concrete conclusions can be drawn, further research would be necessary. Another commenter inquired as to how much variation in force the derailment model could predict and whether Monte Carlo techniques (i.e., a type of computational algorithm utilizing random numbers and probability statistics to simulate the behavior of physical or mathematical systems) should be applied to try to develop a more statistical understanding of the potential variability. FRA noted that although Monte Carlo techniques could be applied, FRA's first and foremost focus is on predicting the salient car-to-car interactions that take place during derailments. FRA intends to analyze the forces achieved in other modeling programs using non-linear large deformation crush calculations and validate the models by full scale testing. Commenters also questioned why the baseline car mass utilized in the derailment dynamics study was 150,000 pounds (which does not represent a typical light car or a typical loaded car) and whether the initial angular velocity used to cause a derailment has a large effect on the number of cars derailed and/or the secondary car-to-car impact speeds. In response, FRA explained that the baseline values utilized in the study were varied +/−20% to +/−50%. Further, FRA noted that a sensitivity analysis of the results from generalized derailment scenarios demonstrated that both car mass and initial angular speed causing a derailment are very weakly correlated to the number of cars that derail. Instead, the highest sensitivities are associated with initial train speed and the ground friction experienced. Stating that, in most real-world accident scenarios, tank cars are impacted by “coupler like” objects, one commenter questioned the use of a square flat-surface ram in Volpe's modeling to impact the tank-heads and shells while another commenter questioned why the collision dynamic model of a car is shaped like a cube. Specifically, Trinity noted that in its own crashworthiness analysis performed on the newly designed Trinity car, a rigid coupler head was used as the impacting object. Further, Trinity noted that after the crashworthiness analysis was completed, the results were compared with real-world accidents, as well as the type of punctures and tank deformations that occurred. Trinity further reported finding a good correlation between their crashworthiness analysis and the shape of punctures and deformations found in real-world accident vehicles. FRA responded that the collision dynamics model is a lumped mass model connected by non-linear springs and that the masses are treated as rigid objects. Further, the collision dynamics model uses as an input the force-crush characteristics predicted or measured from analysis and testing. This input is derived through the application of the simplified collision scenarios defined for the performance standards. The shape of the force crush characteristic is weakly affected by the impactor size for a range within +/−50 percent of that prescribed in the testing program. If the impactor size was sufficiently small, then the mode of material failure initiation would change. The impactor size chosen for the baseline testing captures the salient deformation and failure modes observed in accidents and testing. Accordingly, neither the shape of the impactor or the car is determinative. FRA further explained that in accident scenarios, a tank car may be impacted by a variety of different objects (e.g., couplers, pieces of rail, rail car trucks, other car draft sills, side sills) and accordingly, the goal of FRA's current research is to develop a standardized method for comparing the relative performance between different tank car designs, regardless of what the impactor is in a particular scenario. Additionally, as Volpe noted at the meeting, the simulations have resulted in modes of deformation that are similar to the deformations found in accident vehicles. Another commenter also noted that the modeling presented by Volpe at the meeting addressed main line derailments only and questioned whether FRA intended to expand the analysis to collision scenarios. In response to this comment, FRA explained that generally, collisions degenerate into derailment-like situations. Accordingly, the secondary car-to-car interactions obtained through Volpe's modeling and review of historical accident consequences provided a methodology to simplify the impact conditions such that a generalized performance standard for two cars interacting could be identified. Utilization of this performance standard compares the relative performance between different tank car designs, and FRA further plans to investigate the use of pushback couplers and deformable anti-climbing systems to decrease the aggressivity between new and older tank car designs in the future. With regard to the dynamic structural analysis, noting the apparent ductile properties of the model materials (i.e., that the elliptical head almost turns itself inside out), one commenter questioned what type of material model was being used. At the meeting, Volpe explained that the tensile strength of the material being modeled is the minimum required for TC-128 steel. Further, DOT noted that the results presented were of an empty tank, where material failure was not allowed. The results represented the first step in a series of models that gradually build in complexity—starting with an empty tank and applying first elastic, then elastic with plastic loadings, and finally building up to material failure. After the model results are checked against analytical solutions available in literature, pressurized fluid tanks will be evaluated in the same manner. At the meeting, Volpe also addressed the full-scale impact tests being performed on existing DOT 105A500W cars in an effort to develop a methodology for assuring a minimum level of tank integrity, defining the conditions for which a tank car is capable of maintaining its contents, and identifying the maximum speed at which a tank car can survive the generalized impact scenarios developed in the derailment dynamics study. In response to this portion of Volpe's presentation, commenters raised two main concerns. First, commenters questioned how the pressure and outage requirements used in the tests to establish the baseline performance of current tank cars were chosen. DOT explained that although a pressure and outage that could be expected in everyday transport were utilized (i.e., 10.6 percent outage, 100 psi pressure), because the goal is to establish the relative performance of different tank car designs, such parameters are ultimately irrelevant, provided the same pressure and outage is used for all cars analyzed. In other words, in order to establish the relative performance of different tank car designs, all designs must be tested under the same initial and boundary conditions (including weights, pressure, and outage). Second, commenters again questioned why DOT was performing “simplified tests” and not examining the effect of applying multiple forces simultaneously in different locations on tank cars. DOT responded that its goal is to establish the relative performance of different tank car designs by developing a safe and simple test that is relatively easy to set up and conduct, easy to analyze, and provides repeatable results. FRA reiterated that it did not intend to conduct a test that represents any particular accident situation. Instead, FRA's goal is to establish a test that provides the salient and predominant failure modes observed from historical accident consequences in a consistent manner. At the March 30, 2007 meeting, FRA also presented several specific ideas regarding how DOT was considering moving forward, given the results of Volpe's research. FRA noted that it was considering imposing a 50 mph speed restriction on all tank cars carrying PIH materials. Assuming a 50 mph speed restriction, based on Volpe's research anticipating a closing speed of 25 mph in the event of a derailment or collision, FRA stated that it was also considering setting a performance standard requiring tank cars to be constructed such that tank-heads and shells would resist puncture or other catastrophic loss from impacts at speeds around 25 mph. Because any necessary tank car fleet change out would require a reasonable implementation period, as an interim measure, FRA noted its consideration of imposing an interim 30 mph speed restriction in dark territory for trains transporting PIH tank cars of current designs, based on the higher train mile collision risk and the increased derailment risk present in dark territory. In response to FRA's ideas, one commenter noted that FRA's proposal presented a “one-size-fits-all” approach to enhancing PIH transportation via railroad tank car. This commenter noted that there are many PIH materials that do not pose the same dangers as materials such as chlorine and anhydrous ammonia. This commenter expressed the view that FRA's proposal would be “extremely penalizing” to those other materials. For uniformity purposes, in its regulations, DOT has historically addressed hazardous materials as a class. Employing this rationale, DOT decided that, for the purposes of the present rulemaking, it would similarly address PIH materials as a class. Moreover, while some PIH materials may not pose as great a threat to the public and the environment as other PIH materials, it is in the public's best interest that all PIH materials are transported in the safest manner possible. Additionally, in this proposed rule, DOT has identified a performance standard rather than a specific standard, which provides the regulated community with the flexibility to design an enhanced tank car with features that are appropriate for the type of PIH materials that the car will transport. Other commenters questioned whether risk would be considered and how benefits of implementing such new requirements would be quantified. Lastly, one commenter expressed the view that given current tank car manufacturing capacity, a five- to ten-year implementation period would be reasonable. This commenter further noted that existing tank cars designed to carry anhydrous ammonia could be retrofitted and utilized to transport materials other than PIH materials, but existing chlorine cars, however, would probably need to be replaced. XII. Proposed Rule and Alternatives The proposed rule would seek to control destructive forces brought to bear on tank cars in the course of derailments and collisions by establishing a maximum speed limit and by enhancing the ability of the package to withstand those forces by making it more crashworthy. Although the proposed rule would establish a performance standard for head and shell puncture-resistance, this is most likely to be achieved by a strategy to absorb energy short of breaching the tank. The proposed rule would also impose a more stringent limit on train speed during the period tank cars of current design remain in use. There may be other means of achieving the same end results (e.g., protecting persons from the effects of PIH materials released into the atmosphere), and DOT invites comments that might identify such means and describe how their effectiveness might be verified. Mitigation of harm from accidental releases is a major component of any effort to improve the safety of hazardous materials transportation. DOT engages in significant actions to help prepare emergency responders for hazardous materials releases. For instance, PHMSA periodically publishes an Emergency Response Guidebook, which provides information on initial steps to take to respond to hazardous materials accidents, with the objective of ensuring that it is present at every command center and on every emergency vehicle. As noted above, the railroad and chemical industries conduct outreach to local authorities through the TRANSCAER® program. In March 2005, the AAR, with FRA encouragement, adopted an amendment to its Circular No. OT-55, which established procedures for providing information to local emergency response agencies concerning the top 25 hazardous materials transported through their communities. Ensuring the availability of detailed hazardous materials information, when an event does occur, is also a critical means of mitigating the consequences of a release. The HMR require that railroads maintain hazardous materials information on-board trains reflecting the position of cars in the train, and hazard information regarding the commodities transported in specific rail cars. 49 FRA actively enforces these requirements through periodic audits of railroad information systems and through review of documentation on-board trains. 49 49 CFR part 172, subpart G; 49 CFR § 174.26. In response to the accidents detailed in this notice, FRA approached the AAR and requested consideration of additional action to ensure that detailed and specific hazardous materials information, including the position of cars in the train, is readily available to emergency responders even when crew members are disabled or otherwise unable to contact responders at the scene. FRA conducted two meetings with the AAR, various railroads, and emergency response organizations to discuss enhancements to the emergency response system that would ensure emergency responders have access to necessary information during incidents and accidents. As a result of the discussions, and in response to the positive comments from the emergency response community, CSX Transportation
(CSXT)and Chemtrec, the chemical industry's 24-hour hotline, entered into a pilot project in August of 2005, to test improvements. The pilot project consists of providing access to the Chemtrec watchstanders, who have direct communications with emergency responders, to CSXT's information network where they can obtain virtually real-time information, either verbally or via electronic means, almost immediately after receiving notification of an incident or accident. This system relies in part on train position information from CSXT locomotives equipped with Global Positioning System receivers and means for communicating the position to the CSXT operations center, together with a geographic information system on which the information is displayed. This is a capability not yet fully available elsewhere in the industry, but it could be acquired. PHMSA and FRA request that commenters address the following questions:
(1)Are other rail carriers considering the implementation of emergency response communications systems similar to that currently being tested by CSXT?
(2)Are there impediments to more widespread implementation of such communication systems? If so, how should these impediments be addressed?
(3)Should the Federal government promote more widespread adoption of such communication systems? If so, how could this be accomplished? More generally, we ask commenters to consider the relationship between effective emergency response actions and risk reduction. As indicated above, the HMR address risk in two ways—that is, the regulations are intended to reduce the risk of an accident occurring and to minimize the consequences of an accident should one occur. Commenters may wish to provide comments concerning the extent to which effective emergency response, including proactive measures such as alert warnings, evacuations, and shelter-in-place directives, affects the basic risk equation (risk = the probability of an accident multiplied by the consequences of an accident) and whether there are ways to combine more effective emergency response with accident prevention measures to enhance overall safety. Similarly, Dow's safety program for these products is exploring more effective tracking and remote monitoring of tank cars so that, in the case of an incident or accident, critical parameters such as geographic location, internal pressure, or product temperature might be determined and provided to emergency responders. PHMSA and FRA invite commenters to address the extent to which this strategy promises advances in safety that might substitute, in whole or in part, for the proposals contained in this NPRM. We also ask commenters to discuss whether there are additional regulatory options that should be considered. XIII. Section-by-Section Analysis Part 171 Section 171.7—Reference Material Existing § 171.7 addresses reference materials that are not specifically set forth in the HMR, but that are incorporated by reference into the HMR. We propose to amend § 171.7(a)(3), the table of material incorporated by reference, to add the entry for AAR Standard S-286-2002, Specification for 286,000 lbs. Gross Rail Load Cars for Free/Unrestricted Interchange Service, revised as of September 1, 2005. AAR Standard S-286-2002 is the existing industry standard for designing, building, and operating rail cars at gross weights between 263,000 pounds and 286,000 pounds. By incorporating AAR Standard S-286-2002 into the HMR, we will ensure that tank cars exceeding the existing 263,000 pound limitation and weighing up to 286,000 pounds gross weight on rail are mechanically and structurally sound. Part 173 Section 173.31—Use of Tank Cars Existing § 173.31 addresses the use of tank cars to transport hazardous materials and contains various safety system and marking requirements. This NPRM proposes to revise existing paragraphs (a)(6), (b)(3), (b)(6) and (e)(2)(ii), as well as add new paragraphs (b)(7) and (b)(8). Existing paragraph (a)(6) explains that any tank car of the same class with a higher tank test pressure than the tank car authorized in the HMR may be used. It also specifies the hierarchy of the letters in the specification marking that indicate special protective systems (e.g., “J” for thermally protected, jacketed cars; “T” for thermally protected, non-jacketed cars; “S” for cars with head shields but without thermal protection; and “A” for cars without protective systems) for which cars are equipped. We are proposing to add the letter “M” to represent tank cars with the enhanced tank-head and shell puncture-resistance systems of this proposed rule, but that do not meet the HMR's thermal protection requirement. For tank cars that meet the thermal protection requirement and are equipped with the enhanced tank-head and shell puncture-resistance systems proposed, we are proposing the use of the letter “N” in the specification marking. Additionally, we are proposing to modify the hierarchy of use to incorporate these two new delimiters in a manner consistent with the current hierarchy. In other words, tank cars with the delimiter “M” may be used when “A” or “S” is authorized. Tank cars with the delimiter “N” may be used when tank cars with an “A,” “S,” “T,” “J,” or “M” are authorized. We are proposing the use of two different delimiters for tank cars meeting the enhanced head and shell protection requirements of this proposal because there are some PIH materials for which the HMR do not require use of a tank car with a thermal protection system (e.g., hydrogen fluoride, anhydrous ammonia). Therefore, we have proposed to allow a tank car to be constructed that would meet the enhanced tank-head and shell puncture-resistance system requirements, but not be equipped with a thermal protection system. Existing paragraph (b)(3) requires head protection for all tank cars transporting Class 2 materials and tank cars constructed from aluminum or nickel plate. We are proposing to revise this paragraph to remove outdated compliance dates, and require tank cars used to transport PIH materials to be equipped with an enhanced tank-head puncture-resistance system. Specifically, proposed paragraph (b)(3)(i) reiterates the existing head protection requirements for tank cars used to transport Class 2 materials, other than PIH materials, and tank cars constructed from aluminum or nickel plate used to transport hazardous materials. New paragraph (b)(3)(ii) would require all tank cars used to transport PIH materials to be equipped with the enhanced tank-head puncture-resistance system of proposed 179.16(b). Specifically, beginning two years after the effective date of the final rule, new paragraph (b)(3)(ii)(A) would require all new tank cars used for the transportation of PIH materials to conform to the enhanced head protection requirements of 179.16(b). Within eight years of the effective date of the final rule, new paragraph (b)(3)(ii)(B) would require all tank cars used to transport PIH materials to conform to the enhanced head protection standard. This proposed implementation period would allow one year for the design of tank cars meeting the proposed performance standard, a second year for tank car manufacturers to modify their manufacturing process as necessary to construct the improved tank cars, and a further six-year period to bring the entire North American fleet of PIH tank cars into compliance with the enhanced standards. The Department has developed this proposed implementation schedule after careful consideration of the number of tank cars in PIH service and tank car manufacturing capacity. After the implementation period, any tank car that transports PIH materials in the United States, including PIH-carrying tank cars that originate in countries outside of the United States, must conform to the enhanced tank-head puncture-resistance standard. As in all aspects of this proposal, however, the Department requests comments as to the feasibility and costs of this proposed implementation schedule, as well as suggestions for any alternatives. We are particularly interested in data and information concerning current tank car manufacturing capacity and whether capacity limitations will affect the implementation period proposed in this NPRM. Existing paragraph (b)(6) requires tank car owners to implement measures to ensure the phased-in completion of modifications previously required by the Department and to annually report progress on such phased-in implementation. This NPRM proposes to modify paragraph (b)(6) by deleting the references to paragraphs (b)(3) (head protection) and (e)(2) (special requirements for tank cars used to transport PIH materials) because the existing compliance dates in each section have now passed and this NPRM proposes new modifications, with new compliance dates set forth in proposed §§ 173.31(b)(3) (head protection), (b)(7) (shell protection), and (b)(8) (implementation schedule). New paragraph (b)(7) would require tank cars used to transport PIH material to be equipped with an enhanced tank shell puncture-resistance system. Specifically, proposed paragraph (b)(7)(i) would require that beginning two years after the effective date of the final rule, all new tank cars to be used for the transportation of PIH materials must comply with the shell protection requirements of 179.24. Furthermore, new paragraph (b)(7)(ii) would require that within eight years of the effective date of the final rule, all tank cars used to transport PIH materials must comply with the enhanced shell protection standard. This proposed implementation schedule is consistent with that proposed for the enhanced tank-head protection system. It would allow one year for the design of tank cars meeting the proposed performance standard, a second year for tank car manufacturers to modify their manufacturing process as necessary to construct the improved tank cars, and a further six year period to bring the entire North American fleet of PIH tank cars into compliance with the enhanced standard. Again, after the implementation period, any tank car that transports PIH materials in the United States, including PIH-carrying tank cars that originate in countries outside of the United States, must conform to the enhanced tank shell puncture-resistance standard. The Department requests comments as to the feasibility and costs of this proposed implementation schedule, as well as suggestions for any alternatives. New paragraph (b)(8) is added to set forth the phased-in implementation schedule for the enhanced head- and shell-protection requirements of proposed 179.16(b) and 179.24. Specifically, new paragraph (b)(8)(i) would require owners of tank cars subject to these enhanced requirements to have brought at least 50 percent of their affected fleet into compliance with the new requirements within five years of the final rule's effective date. The Department believes that allowing a full five years to replace half of the PIH tank car fleet is reasonable and will ensure the phased-in construction and use of tank cars meeting the enhanced standards. Further, this implementation period again contemplates an initial one-year design period, a second year for manufacturers to modify their manufacturing process as necessary to construct the improved tank cars, three years to replace half of the fleet, and a final three-year period to complete fleet replacement. New paragraph (b)(8)(ii) prohibits the use of tank cars manufactured using non-normalized steel for head or shell construction for the transportation of PIH material five years after the final rule's effective date. In other words, the Department expects that tank cars constructed of non-normalized steel in the head or shell will be phased out within the first half of the fleet replacement period ( *i.e.* , no later than five years after the effective date of the final rule). This section is intended to ensure that tank cars constructed prior to 1989 that utilize non-normalized steel in the head or shell are the first cars phased out in the course of implementing the proposed enhanced standards. The Department understands that pre-1989 tank cars constructed of non-normalized steel comprise almost 50 percent of the current chlorine tank car fleet and approximately 20 percent of the current anhydrous ammonia tank car fleet. Significantly, a large portion of chlorine cars with non-normalized steel are approaching retirement age. Because chlorine and anhydrous ammonia account for over 80 percent of the annual PIH shipments in the United States, the Department believes that requiring the phase out of these cars within the first half of the fleet replacement period is reasonable. Finally, proposed paragraph (b)(8)(iii) requires the submission of a progress report to FRA two months after the initial five years of the implementation period has passed. Specifically, this section would require tank car owners to report to FRA the total number of in-service tank cars in PIH service and the number of those cars in compliance with the enhanced head and shell protection requirements of proposed §§ 179.16(b) and 179.24. In addition, this paragraph would require that tank car owners certify that their fleets do not contain any pre-1989 tank cars in PIH service utilizing non-normalized steel in the head or shell construction. Existing paragraph (e)(2) requires that tank cars used to transport PIH materials must have a minimum tank test pressure of 20.7 Bar (300 psig), head protection, and a metal jacket. We are proposing to revise this paragraph to remove the outdated compliance date in (e)(2)(ii), and cross reference the proposed requirements for enhanced head- and shell protection contained in proposed §§ 179.16(b) and 179.24 to make it clear that tank cars used to transport PIH materials must meet the enhanced head- and shell-protection requirements of this proposal. We are also proposing to cross reference the proposed implementation schedule for the tank-head and shell puncture-resistance systems in paragraph (b)(8). This will make it clear that five years after the final rule's effective date, at least 50 percent of each tank car owner's fleet of tank cars that transport PIH materials must comply with the enhanced tank-head and shell requirements and that five years after the final rule's effective date, tank cars manufactured with non-normalized steel for tank-heads or shells are no longer authorized for the transport of PIH materials. Finally, we are proposing to maintain the requirement that tank cars used to transport PIH materials be equipped with metal jackets because as noted in an earlier rulemaking proceeding, the purpose of the metal jacket is to provide “both accident damage and fire protection” for certain PIH materials. 50 As in all aspects of this proposal, DOT invites comments on the proposed revisions to this section. 50 *Crashworthiness Protection Requirements for Tank Cars; Detection and Repair of Cracks, Pits, Corrosion, Lining Flaws, Thermal Protection Flaws and Other Defects of Tank Car Tanks; Final Rule* , 60 FR 49048, 49054 (Sept. 21, 1995) (citing final rule on *Performance-Oriented Packaging Standards; Miscellaneous Amendments* , 58 FR 50224 (Sept. 24, 1993) and the NPRM, 58 FR 37612 (July 12, 1993)). Section 173.249—Bromine Existing § 173.249 sets forth specific packaging requirements, including specific tank car requirements, for bromine, a PIH material. This NPRM proposes to add new paragraph
(g)to the section, clarifying that railroad tank cars transporting bromine must comply with the enhanced tank-head and shell puncture-resistance requirements of proposed §§ 179.16(b) and 179.24. Section 173.314—Compressed Gases in Tank Cars and Multi-Unit Tank Cars Existing § 173.314 sets forth specific filling limits and tank car packaging requirements for various compressed gases, including chlorine, a PIH material. As relevant to this NPRM, existing paragraph
(c)prohibits the transportation of more than 90 tons of chlorine in a single unit-tank car and paragraph
(k)contains specific tank car packaging requirements relevant to chlorine. We propose to revise paragraph
(k)to make clear that railroad tank cars transporting chlorine must comply with the enhanced tank-head and shell puncture-resistance requirements of proposed §§ 179.16(b) and 179.24. We are also proposing to replace the current insulation system of 2-inches glass fiber over 2-inches ceramic fiber with a requirement to meet the existing thermal protection requirements of § 179.18, or with a system that has an overall thermal conductance of no more than 0.613 kilojoules per hour, per square meter, per degree Celsius temperature differential. This proposal does not impose a new requirement for the chlorine cars. Based on research conducted by FRA, 51 the 2+2 glass and ceramic fiber insulation used for chlorine cars provides an equivalent level of thermal protection as the requirements of § 179.18. We are replacing the specific requirement for the insulation system with the more generic requirements to allow flexibility in the use of the interstitial space between the tank shell and jacket. Use of this space for crush energy management is integral to improving the accident survivability of the PIH tank cars. 51 W. Wright, W. Slack, and W. Jackson, *Thermal Insulation Systems Study for the Chlorine Tank Car* , FRA-ORD-85-10, April 1985, Federal Railroad Administration, Washington, DC 20590; and W. Wright, W. Slack, and W. Jackson, *Evaluation of the Thermal Effectiveness of Urethane Foam and Fiberglass as Insulation Systems for Tank Cars* , FRA-ORD-87-11, July 1987, Federal Railroad Administration, Washington, DC 20590. We are not proposing any change to the 90-ton single-unit tank car commodity limit. However, we believe tank car manufacturers could employ innovative engineering design changes to meet the proposed enhanced accident survivability standard, and it may be possible, using new technology and materials, to actually increase the volume capacity of the tank car and meet the new performance standards. It is not clear, however, that increasing the quantity of chlorine transported in the tank car is advantageous—to the shipper, the receiver, or the emergency response community. If the 90-ton limit were changed, we could rely solely on the normal lading and filling density limits; we could increase the limit from 90 tons to a slightly higher amount ( *e.g.* , 94 tons); or we could incorporate a process for application to FRA for approval to increase the limit above the 90 tons, either by the manufacturer for a specific design or by the shipper for specified tank cars. We are asking commenters to consider these alternatives and provide input on potentially changing the 90-ton limit. In particular, we are interested in the potential positive or negative ramifications of allowing an increase in the quantity of chlorine in a tank car. We recognize that chlorine is regularly transported between the United States and Canada. The Canadian requirements for transporting chlorine do not include the 90-ton capacity limit; however there is a requirement for use of tank cars with a minimum 500 psi tank test pressure. Section 173.323—Ethylene Oxide Existing § 173.323 sets forth specific packaging requirements, including specific tank car requirements, for ethylene oxide, a PIH material. Relevant to this proposal, paragraph (c)(1) contains specific requirements for transporting ethylene oxide in railroad tank cars. Accordingly, we propose to revise paragraph (c)(1) to make clear that railroad tank cars transporting ethylene oxide must comply with the enhanced tank-head and shell puncture-resistance requirements of proposed §§ 179.16(b) and 179.24. Part 174 Section 174.86—Maximum Allowable Operating Speed Existing § 174.86 addresses the maximum allowable operating speed for molten metals and molten glass. We propose to amend this section to
(1)limit the operating speed of all railroad tank cars transporting PIH materials to 50 mph, and
(2)in non-signaled territory limit the operating speed of railroad tank cars transporting PIH materials to 30 mph, unless alternative measures providing an equivalent level of safety are provided, or the material is being transported in a tank car conforming to the enhanced requirements of proposed §§ 179.16(b) and 179.24. Specifically, new paragraph
(b)would restrict all tank cars containing PIH materials to a maximum operating speed of 50 mph. As discussed above, the current industry standard, OT-55-I, currently restricts the operating speed of trains containing five or more tank car loads of PIH materials to a maximum of 50 mph and we believe that extending this restriction to all tank cars transporting PIH materials is a reasonable way to control the forces experienced by the tank car during most derailment or accident conditions, without unduly burdening industry. Moreover, this 50 mph speed restriction in conjunction with the 25 mph enhanced shell and the 30 mph enhanced tank-head puncture-resistance performance standards, should ensure that tank integrity will be maintained in most derailments or other accidents. New paragraph (c)(1) provides that if a tank car not meeting the enhanced performance standards of proposed §§ 179.16(b) and 179.24 is used to transport PIH material over non-signaled territory, its maximum operating speed is limited to 30 mph. For purposes of this section, non-signaled territory is defined to mean “a rail line not equipped with a traffic control system or automatic block signal system” compliant with 49 CFR part 236. As discussed above, this 30 mph speed restriction is based on FRA's finding that a disproportionate number of incidents occurring between 1965 and 2005, which resulted in loss of product from head and shell punctures, cracks, and tears, occurred in non-signaled territory. New paragraph (c)(2) proposes an alternative to complying with the speed restriction of paragraph (c)(1) in non-signaled territory. Specifically, paragraph (c)(2) proposes to allow railroads to implement alternative safety measures in lieu of complying with the 30 mph speed restriction, so long as those alternative safety measures provide an equivalent level of safety as a traffic control system complying with 49 CFR part 236 (Part 236). A traffic control system is a block signal system 52 under which train movements are authorized by block signals whose indications supersede the superiority of trains for both opposing and following movements on the same track. Part 236 sets forth standards governing the use of traffic control systems. Typically, railroads utilize a centralized traffic control system, governed by a series of signal arrangements and capable of detecting the presence of trains and the positions of switches. Although the vital circuitry for a typical centralized traffic control system is in the field, the dispatcher can request movement authority. 52 A block signal system is a method of governing the movement of trains into or within one or more blocks by block signals ( *i.e.* , roadway signals operated either automatically or manually at the entrance to a block) or cab signals ( *i.e.* , a signal located in the engineer's compartment or cab, indicating a condition affecting the movement of a train). Potential mitigation measures which could provide an equivalent (or better) level of safety as a traffic control system, depending on the particular circumstances of a location, include an automatic block signal
(ABS)system, an interlocking arrangement, or a positive train control system. Part 236 again sets forth standards governing the implementation and use of ABS systems, interlockings, and certain types of PTC systems. *See* 49 CFR part 236, subparts B, C and H. Track circuits, which are integral to any Part 236 traffic control system or ABS system, are electrical devices designed to detect the presence or absence of a train on a certain segment of track, but also serve to detect broken rails due to electrical discontinuity. Any potential alternative risk mitigation measures designed to comply with paragraph (c)(2), must take into consideration the alternative's ability to detect broken rails. A railroad might also be able to establish equivalent safety by implementing a combination of measures that together address the relevant risks, but without installing a full signal or train control system on the line. For instance, by installing a switch position monitoring system, track integrity circuits, and additional safety procedures (e.g., patrolling ahead of PIH trains or reducing PIH train speeds to something less than 49 mph), a railroad might be able to demonstrate that reducing PIH train speeds to 30 mph is not warranted. The proposed rule would permit any combination of technologies or procedures that could be shown to be effective. Paragraph (c)(2) further provides that once a railroad completes a risk assessment demonstrating that certain identified alternative measures provide an equivalent level of safety to a Part 236 traffic control system, and FRA approves this risk assessment, the railroad may operate tank cars containing PIH materials at up to 50 mph. Because, in this proposal, we are providing for specific markings to delineate tank cars complying with the enhanced head and shell protection standards proposed, railroad personnel should be able to easily identify tank cars that are not subject to the non-signaled territory speed restriction. DOT believes that the proposed operating restrictions in this section are responsive to NTSB Safety Recommendations R-05-15 and R-05-16 stemming from the Graniteville accident. We recognize that this proposal does not directly adopt the NTSB's recommendations to reduce speeds of tank cars transporting certain highly-hazardous materials through populated areas or reduce speeds of all trains in non-signaled territory in the absence of advance notice of switch positions. However, we believe that this proposal will achieve the goal of the recommendation, i.e., to minimize impact forces from accidents and reduce the vulnerability of tank cars transporting certain hazardous materials. At the same time, the proposal will adequately take into consideration the practical issues related to any reduction in train speed, such as higher crew costs and longer trip time. Comment is requested on means to further limit any burdens associated with the 30 mph speed restriction in dark territory, and the proposed rule may be changed based on the comments received. For instance, because it is desirable from a safety standpoint and from the point of view of fuel conservation to maintain constant train speed, because most affected rail lines intersect scores of small towns and suburban areas, and because even very small populations present the potential for serious consequences, this proposal would apply regardless of the population size along the line. Major hazardous material accidents have historically occurred in small-to mid-sized communities away from major terminals, in part because of the elevated actual speeds that can be attained in these areas. However, there may be lines that traverse wilderness areas or extensive farm lands over distances that would permit increases in train speed without the threat of serious consequences should a release occur. We ask commenters to address the following questions:
(1)Should an exception be made for those line segments?
(2)How should any such exception be defined?
(3)Do railroads have sufficient information regarding abutting land use, and changes in land use over time, so that such an exception could be implemented practicably?
(4)If an exception is provided, should it extend to all PIH materials, or are there materials whose potential impacts on the environment are so great that the exception should not apply? Part 179 Section 179.13—Tank Car Capacity and Gross Weight Limitation Existing § 179.13 sets forth tank car capacity and gross weight limitations. Specifically, this section provides that tank cars may not exceed a capacity of 34,500 gallons or 263,000 pounds gross weight on rail. These limitations date back to 1970 and were based on DOT's findings that weight related stress failures in track and car parts accounted for approximately 50 percent of all rail accidents at the time. 35 FR 14216, 14217 (Sept. 9, 1970). Accordingly, DOT reasoned that imposing capacity and gross weight limitations on tank cars would limit the impact forces in a derailment and therefore lessen the likelihood that a tank car would be breached in the event of a derailment or other accident. *Id.* at 14217. Since the promulgation of this section in 1970, however, rail infrastructure has changed, and through industry and regulatory efforts, tank car accident survivability has improved. 53 53 DOT has also issued several Special Permits allowing the use of tank cars weighing up to 286,000 pounds. For example, on April 20, 2006, Trinity was issued Special Permit number DOT-SP 14167, authorizing it to manufacture, mark, and sell the Trinity Cart, which has a maximum gross weight on rail of 286,000 pounds. *See* 71 FR 47288, 47301 (Aug. 16, 2001). To ensure that tank cars that transport PIH materials and that exceed the existing 263,000 pound limitation and weigh up to 286,000 pounds gross weight on rail are mechanically and structurally sound, we propose to require that such cars comply with AAR Standard S-286-2002, SPECIFICATION FOR 286,000 LBS. GROSS RAIL LOAD CARS FOR FREE/UNRESTRICTED INTERCHANGE SERVICE (adopted November 2002 and revised September 1, 2005). AAR Standard S-286-2002 is the existing industry standard for designing, building, and operating rail cars at gross weights between 263,000 pounds and 286,000 pounds. This standard sets forth industry-tested practices for designing, building and operating rail cars at gross weights between 263,000 pounds and 286,000 pounds. Section 179.16—Tank-Head Puncture-Resistance Systems Existing § 179.16 contains the tank-head puncture resistance requirements applicable to tank cars currently required under the HMR to have tank-head puncture-resistance systems. We propose to amend this section to specify an enhanced tank-head puncture-resistance performance standard for tank cars used to transport PIH materials. As discussed above, research prepared by Volpe was relied upon to develop this performance standard. Specifically, the speed chosen for this performance standard, a 30 mph impact, is related to the maximum allowable operating speed of 50 mph, which is also proposed in this NPRM. FRA is cognizant that while the proposed 25 mph closing speed, which is based on the maximum allowable operating speed of 50 mph, protects well against derailment-like events in which the secondary car-to-car impact speeds are approximately half the original train speed, impacts can occur in rail yards, at switches or turnouts, and in mainline tracks where a tank car can be involved in the primary collision. In this situation, it is desirable to have better protection strategies available to help alleviate the risk of loss of lading. The proposed tank-head puncture resistance system can accommodate the proposed 30 mph impact speed because there is more space available in the front of the tank-head to place energy absorbing material between the head shield or jacket and the inner commodity tank when compared with tank shell protection systems, which have more limited expansion space due to design constraints. Section 179.22—Marking Existing § 179.22 contains marking requirements applicable to railroad tank cars. Specifically, this section provides that tank cars must be marked in accordance with the Tank Car Manual and assigns meaning to each of the delimiters used in tank car specification markings ( *e.g.* , a tank car with a tank-head puncture-resistance system must include the letter “S” in its specification marking, a car with a tank-head puncture-resistance system, a thermal protection system, and a metal jacket, must be marked with the letter “J” in its specification marking). Proposed new paragraphs
(e)and
(f)of this section would define the delimiters to be used to mark tank cars conforming to the enhanced head- and shell-protection requirements of this proposal. Specifically, new paragraph
(e)provides that each tank car that requires a tank-head puncture-resistance system prescribed in proposed § 179.16(b), a shell puncture-resistance system prescribed in § 179.24, and without a thermal protection, must be marked with the delimiter “M” in its specification marking. Similarly, new paragraph
(f)provides that each tank car that requires a tank-head puncture-resistance system prescribed in proposed § 179.16(b), a shell puncture-resistance system prescribed in § 179.24, and a thermal protection system, must be marked with the delimiter “N” in its specification marking. Section 179.24—Tank Shell Puncture-Resistance Systems Proposed new § 179.24 specifies an enhanced tank shell puncture-resistance performance standard for tank cars used to transport PIH materials. Previous rulemakings have not focused on shell protection, but the statutory mandate, recent accidents, and Volpe's derailment dynamics research together indicate the need to extend a higher level of protection to the tank car body, including both the tank-head and the shell. As discussed above, research prepared by Volpe was relied upon to develop the performance standard proposed, a 25 mph impact test, which is directly tied to the proposed speed restriction of 50 mph. It is important to note, the impact test proposed in Appendix C is to resist puncture at a particular point on the shell. The performance standard requirement for tank car shell protection is intended to apply to the entire tank shell. Section 179.102-17—Hydrogen Chloride, Refrigerated Liquid Existing § 179.102-17 sets forth specific tank car packaging requirements for hydrogen chloride, refrigerated liquid, a PIH material. We propose to revise this section by adding a new paragraph
(m)to make clear that railroad tank cars transporting hydrogen chloride must comply with the enhanced tank-head and shell puncture-resistance requirements of proposed §§ 179.16(b) and 179.24. XIV. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking This NPRM is published under authority of the Federal hazmat law. Section 5103(b) of Federal hazmat law authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce. SAFETEA-LU, which added section 20155 to the Federal hazmat law, requires, in part, that FRA
(1)validate a predictive model quantifying the relevant dynamic forces acting on railroad tank cars under accident conditions and
(2)initiate a rulemaking to develop and implement appropriate design standards for pressurized tank cars. Additionally, the Federal Railroad Safety Act, 49 U.S.C. 20101 *et seq.* , authorizes the Secretary to issue regulations over all areas of railroad transportation safety. B. Executive Order 12866 and DOT Regulatory Policies and Procedures This proposed rule has been evaluated in accordance with existing policies and procedures, and determined to be significant under both Executive Order 12866 and DOT policies and procedures (44 FR 11034; Feb. 26, 1979). We have prepared and placed in the docket a regulatory impact analysis
(RIA)addressing the economic impact of this proposed rule. PHMSA and FRA invite comments on this RIA. The costs anticipated to accrue from adopting this proposed rule would include:
(1)The labor and material costs for incorporating enhanced crashworthiness features into tank cars that transport PIH materials,
(2)the design and re-engineering costs required to implement the proposed enhanced tank-head and shell puncture-resistance systems,
(3)the costs for transferring existing PIH tank cars to other commodity services, and
(4)the maintenance and inspection costs for the new more crashworthy tank cars. Additionally, there would be costs incurred as a result of the operational restrictions for tank cars that transport PIH materials, including:
(1)The cost of restricting railroad tank cars used to transport PIH materials to 50 mph, and
(2)the cost of temporarily restricting existing railroad tank cars used to transport PIH materials in non-signaled territory to 30 mph. Finally, there would be a cost for the increased traffic or volume of tank cars that transport PIH materials due to the increased weight, and thus lower commodity capacity, of those cars. The primary potential benefits or savings expected to accrue from the implementation of this proposed rule would be the reduction in the number and severity of casualties arising from train accidents and derailments involving tank cars that transport PIH materials. In addition, benefits would accrue from a decrease in property damages, including damages to locomotives, railroad cars, and track; environmental damage; track closures; road closures; and evacuations. Moreover, there would also be a benefit in fuel savings (which may offset some of the operational costs) due to limiting train operating speeds. This document presents a 30-year analysis of the costs and benefits associated with DOT's proposed rule, using both 7 percent and 3 percent discount rates. It also presents an analysis of a regulatory alternative considered, and sensitivity analyses associated with varying assumptions used for estimating PIH release-related benefits. A baseline cost estimate is particularly important for the conduct of these analyses. The railroad industry has expressed its intention to proceed with a standard of its own absent issuance of a DOT rule requiring enhanced crashworthiness of PIH tank cars. In general, industry participants appear to recognize the need to improve the design of tank cars transporting PIH materials. In fact, the AAR has mandated (but temporarily suspended to permit issuance of this notice of proposed rulemaking) use of heavier cars with top fittings that meet specified requirements such as the new tank cars built by Trinity for the transportation of PIH materials. Accordingly the baseline for the analyses conducted reflects compliance with the AAR standard by replacing the existing fleet of PIH tank cars with AAR compliant Trinity-like tank cars. This baseline includes incremental costs associated with the design, construction, and operation of new Trinity-like tank cars to replace existing cars and the transfer of existing PIH tank cars to other commodity services. The 30-year cost estimates associated with this baseline are $476.6 million (PV, 7%) and $718.7 million (PV, 3%). Annualized costs are $38.4 million (PV, 7%) and $36.7 million (PV, 3%). The analysis of the proposed rule takes into account the incremental impacts that would be incurred with meeting the proposed requirements ( *i.e.* , the design, construction, and operation costs for the new DOT-compliant cars in excess of the baseline impacts that would be incurred absent this rulemaking with the introduction of the AAR-mandated cars). In addition, the proposed rule analyzes full impacts related to the proposed operating speed restrictions). Thus, this analysis takes into account the fact that the AAR and shippers have active plans to make major changes in the tank car fleet that moves PIH commodities. The 30-year cost estimates associated with implementation of the proposed rule are $350.6 million (PV, 7%) and $431.6 million (PV, 3%). Annualized costs are $28.3 million (PV, 7%) and $22.0 million (PV, 3%). The benefits of the proposed rule fall into two sub-groups. The first group consists of benefits that would accrue from avoidance of collision- and derailment-related PIH releases resulting from a combination of the enhanced tank car crashworthiness standards and operating speed restrictions. This group of benefits includes reductions in casualties; property damage, including damage to locomotives, rail cars and track; environmental damage; evacuation and shelter-in-place costs; track closures; road closures; and electric power disruptions. Casualty mitigation estimates are based on a value of statistical life of $5.8 million. This group of benefits also includes more difficult to monetize benefits such as the avoidance of hazmat accident related costs incurred by Federal, state, and local governments and impacts to local businesses. As with costs, the benefits associated with introducing DOT-compliant tank cars are reduced by the level of benefits that DOT estimates would accrue from replacing existing cars with AAR-mandated cars absent this rulemaking. This analysis includes a scenario which DOT believes is the most realistic projection of benefits that would be realized, including the possibility of an event with moderately more severe consequences than has occurred in the past 10 years. This approach recognizes the significant probability that, given the quantity of product released and the proximity of potentially affected populations to accident sites, in one or more events the consequences known to be possible will be realized, with loss of life on a scale not previously encountered. The second group of benefits consists of business benefits that would accrue in response to the operating speed restrictions (which may partially offset the operating costs imposed by these restrictions) and the enhanced tank car design. This group includes fuel savings from economic efficiencies resulting from operating speed restrictions and repair savings from more salvageable tank cars. DOT believes that the useful life of compliant tank cars introduced during the 30-year analysis period will extend well beyond that period. Moreover, the residual value at year 30 of tank cars constructed to meet the enhanced standards proposed will be greater than the residual value of conventional tank cars and Trinity-like tank cars contemplated by AAR's new standard. Thus, the analysis includes a benefit reflecting the higher residual value for the new tank cars at year 30. FRA then added up both of these groups of benefits over the next 30 years. Taking both of these groups of benefits, relative to the state of the world where the AAR would enforce it's interchange standard, the 30-year benefit estimates associated with implementation of the proposed rule are $666 million (PV, 7%) and $1.089 billion (PV, 3%). Annualized benefits are $53.7 million (PV, 7%) and $55.6 million (PV, 3%). An evaluation of a “status quo” alternative is also included. In general, industry parties appear to recognize the need to improve the design of tank cars transporting PIH materials. In fact, as previously noted, the AAR has mandated the use of Trinity-like cars for the transportation of PIH materials in interchange. Accordingly, the “status quo” alternative would be to allow the AAR to enforce its interchange standard. The costs associated with such an alternative would still be represented by the baseline cost scenario; however, they would be equivalent to the costs the railroad industry is willing to incur voluntarily, and thus, would not be considered true regulatory costs. In addition, this alternative would not include costs from any operating speed restrictions. The benefits from this alternative would be those resulting from the use of a heavier car of the same basic design currently in place and can be estimated as approximately 15% of the benefits that would be expected to result from implementation of the crashworthiness requirements of the proposed rule. As with the costs, this alternative would not offer any of the business benefits associated with the DOT proposal due to the operating speed restrictions. The 30-year cost estimates associated with this alternative are $476.6 million (PV, 7%) and $718.7 million (PV, 3%). Finally, three sensitivity analyses varying assumptions used to estimate the benefits of the proposed rule are included. The first addresses the uncertainty regarding the consequences from release of PIH materials resulting from train accidents. This analysis is based on the assumption that the consequences of projected incidents will be of the same average severity as those in the past ten years. It does not recognize how fortunate the circumstances surrounding recent past incidents have been. Given the rarity of the occurrence of rail accidents resulting in the release of PIH materials from tank cars, and the high variability in the circumstances and consequences of such events, this sensitivity analysis is useful. The 30-year benefit estimates associated with this scenario are $786,073,251 (PV, 7%) and $866,616,695 (PV, 3%). The second and third sensitivity analyses address the imprecision of assumptions regarding the value of a life, which affect the level of safety benefits ( *i.e.* , casualty mitigation) that would result from promulgation of the proposed rule. This analysis presents benefit levels associated with values of a statistical life of $3.2 million and $8.4 million. The 30-year benefit estimates associated with these scenario are $562,100,371 (PV, 7%, VSL: $3.2M), $857,952,000 (PV, 7%, VSL: $8.4M). This rulemaking would fulfill the mandate of SAFETEA-LU and respond to NTSB's recommendations pertaining to tank car structural integrity and operational measures, by specifying performance standards and operational restrictions sufficient to reduce the likely frequency of catastrophic releases to a level as low as reasonably possible, given the need to transport the products in question, and based on analysis of the forces that result from serious train accidents. PHMSA and FRA note that, while the proposed actions are based exclusively on railroad safety considerations, strengthening the protective systems on PIH tank cars may also reduce the likelihood of a catastrophic release caused by criminal acts, such as deliberately throwing a switch in the face of an oncoming train or taking other action that could result in a derailment or collision. The proposed actions would not reduce to zero the probability of a catastrophic release. However, achieving that goal is likely inconsistent with the purpose of the transportation service provided and beyond design practice that presently can be conceived. The proposed actions would substantially reduce the risk presently attending transportation of the subject products, and these reductions can be achieved within a time certain. Providing reassurance to the communities through which these trains travel, that every feasible action has been taken to safeguard those potentially affected, itself provides societal benefits. Included among these benefits are peace of mind of residents and others within the potential zones of danger, and likely avoidance of more costly and less effective public responses (such as prohibiting transportation of the products outright or establishing burdensome conditions of transportation that are perceived to benefit individual communities while driving up total public exposure). C. Executive Order 13132 This NPRM has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). If adopted in a final rule, the proposals in this NPRM would amend PHMSA's existing regulations on the design and manufacturing of rail tank cars authorized for the transportation of PIH materials and the handling of rail shipments of PIH materials in these rail tank cars. As discussed below, State and local requirements on the same subject matters covered by PHMSA's existing regulations and the amendments proposed in this NPRM, including certain State common law tort actions, are preempted by 49 U.S.C. 5125 and 20106. At the same time, this NPRM does not propose any regulation that would have direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Additionally, it would not impose any direct compliance costs on State and local governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. The Federal Railroad Safety Act (49 U.S.C. 20101 *et seq.* ) provides that all regulations prescribed by the Secretary related to railroad safety (such as the rule proposed in this NPRM) preempt any State law, regulation, or order covering the same subject matter, except a provision necessary to eliminate or reduce an essentially local safety or security hazard that is not incompatible with a Federal law, regulation, or order and that does not unreasonably burden interstate commerce. An amendment to Section 20106 enacted in 2007 alters the preemption of certain tort actions by this section that arise from events or activities occurring on or after January 18, 2002, to the extent that a tort action seeks damages for personal injury, death, or property damage and alleges:
(1)A violation of the Federal standard of care established by regulation or order issued by the Secretary of Transportation (with respect to railroad safety) or the Secretary of Homeland Security (with respect to railroad security);
(2)a party's violation of, or failure to comply with, its own plan, rule, or standard that it created pursuant to a regulation or order issued by either of the two Secretaries; or
(3)a party's violation of a State standard that is necessary to eliminate or reduce an essentially local safety or security hazard, is not incompatible with a law, regulation, or order of the United States Government, and does not unreasonably burden interstate commerce. While this recent amendment has altered the preemptive reach of Section 20106, it is important to note that there are limits to this exception. For example, Congress provided an exception only for an action in State court seeking damages for personal injury, death, or property damage. The statute does not provide for the recovery of punitive damages in the permitted common law tort actions. In addition, the statue permits actions for violation of an internal plan, rule, or standard only when such are created pursuant to a Federal regulation or order issued by DOT or DHS to the minimum required by the Federal regulation or order. While parties are encouraged to go beyond the minimum regulatory standard in establishing safety and security standards, these requirements are not created pursuant to Federal regulation or order. Accordingly, there is no clear authorization of a common law tort action alleging a violation of those aspects of such an internal plan, rule, or standard related to the subject matter of this regulation that exceeds the minimum required by the Federal regulation or order. Separately, the Federal hazardous materials transportation law, 49 U.S.C. 5101 *et seq.* , contains an express provision (49 U.S.C. 5125(b)) preempting State, local, and Indian tribe requirements on certain covered subjects. Covered subjects are:
(1)The designation, description, and classification of hazardous material;
(2)the packing, repacking, handling, labeling, marking, and placarding of hazardous material;
(3)the preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents;
(4)the written notification, recording, and reporting of the unintentional release in transportation of hazardous material; and
(5)the design, manufacturing, fabricating, marking, maintenance, reconditioning, repairing, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material. This proposed rule addresses both items 2 and 5 of the HMR and would therefore preempt any State, local, or Indian tribe requirement that is not substantively the same as PHMSA's regulations on these subject matters, as those regulations would be amended as proposed in this NPRM. The agency welcomes comments about the extent to which the preemptive effect under this statutory authority differs from that discussed above. Pursuant to 49 U.S.C. 5125(b)(2) of the Federal hazmat law, if the Secretary of Transportation issues a regulation concerning any of the covered subjects, the Secretary must determine and publish in the **Federal Register** the effective date of Federal preemption. The effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. PHMSA has determined that the effective date of Federal preemption for these requirements under the Federal hazmat law would be one year from the date of publication of a final rule in the **Federal Register** . D. Executive Order 13175 We analyzed this proposed rule in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this proposed rule does not significantly or uniquely affect tribes and does not impose substantial and direct compliance costs on Indian tribal governments, the funding and consultation requirements of Executive Order 13175 do not apply, and a tribal summary impact statement is not required. E. Regulatory Flexibility Act and Executive Order 13272; Initial Regulatory Flexibility Assessment The Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) and Executive Order 13272 require a review of proposed and final rules to assess their impacts on small entities. An agency must prepare an initial regulatory flexibility analysis
(IRFA)unless it determines and certifies that a rule, if promulgated, would not have a significant impact on a substantial number of small entities. DOT has not determined whether this proposed rule would have a significant economic impact on a substantial number of small entities. Therefore, we are publishing this IRFA to aid the public in commenting on the potential small business impacts of the proposals in this NPRM. We invite all interested parties to submit data and information regarding the potential economic impact that would result from adoption of the proposals in this NPRM. We will consider all comments received in the public comment process when making a determination in the final Regulatory Flexibility Assessment (RFA). In accordance with the Regulatory Flexibility Act, an IRFA must contain:
(1)A description of the reasons why action by the agency is being considered;
(2)A succinct statement of the objectives of, and the legal basis for, the proposed rule;
(3)A description of, and where feasible, an estimate of the number of small entities to which the proposed rule will apply;
(4)A description of the projected reporting, recordkeeping and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record;
(5)An identification, to the extent practicable, of all relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule; and
(6)A description of any significant alternatives to the proposed rule that accomplish the state objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities. 5 U.S.C. 603(b), (c). I. Reasons for Considering Agency Action As discussed in earlier sections of this preamble, in the last several years there have been a number of serious rail tank car accidents involving catastrophic releases of PIH materials causing the attention of the rail industry, PIH shippers and other members of the public, press, NTSB and the Congress to focus on the serious consequences of these events. In 2005 SAFETEA-LU directed the Secretary of Transportation to “initiate a rulemaking to develop and implement appropriate design standards for pressurized tank cars.” This proposed rulemaking is responsive to SAFETEA-LU's mandate, as well as recommendations of the NTSB. II. Objectives and Legal Basis for Proposed Rule A. Legal Basis for Proposed Rule As discussed in more detail in section III of this preamble, Federal hazmat law authorizes the Secretary of Transportation to “prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce.” The Secretary has delegated this authority to PHMSA. The Secretary also has authority over all areas of railroad transportation safety (Federal Railroad Safety laws, 49 U.S.C. 20101 *et seq.* ) and has delegated this authority to FRA. 49 CFR 1.49. A primary safety and security concern in the rail transportation of hazardous materials is the prevention of a catastrophic release in proximity to places such as populated areas, events or venues with large numbers of people in attendance, iconic buildings, landmarks, or environmentally sensitive areas. Over the past several years, several very serious accidents involving catastrophic releases of PIH materials from railroad tank cars have focused the attention of the public, press, NTSB, and the Congress on the serious consequences of these events. Since 2002, NTSB investigated three accidents involving tank cars transporting PIH materials. (See section VI of the preamble for a more detailed discussion of the relevant accidents). In response to all three accidents, the NTSB recommended that FRA study improving the safety and structural integrity of tank cars and develop necessary operational measures to minimize the vulnerability of tank cars involved in accidents. In particular, in response to a January 18, 2002, freight train derailment in Minot, North Dakota, which resulted in one death and 11 serious injuries due to the release of anhydrous ammonia when five tank cars carrying the product catastrophically ruptured and a vapor plume covered the derailment site and surrounding area, the NTSB made four safety recommendations to FRA specific to the structural integrity of hazardous material tank cars. Subsequently, in 2005, section 20155 of SAFETEA-LU reiterated NTSB's recommendations in part and further directed the Secretary of Transportation to “initiate a rulemaking to develop and implement appropriate design standards for pressurized tank cars.” B. Objective of Proposed Rule The objective of this proposed rule is to improve the crashworthiness protection of railroad tank cars designed to transport PIH materials by
(1)requiring enhanced tank-head and shell protection, and
(2)limiting the operating speed of the tank cars. See sections II and XII of the preamble for a more detailed discussion regarding the objective of this proposed rule. III. Description and Estimate of Small Entities Affected The “universe” of the entities to be considered in an IRFA generally includes only those small entities that can reasonably be expected to be directly regulated by the proposed action. Five types of small entities are potentially affected by this proposed rule:
(1)PIH material shippers and tank car owners;
(2)governmental jurisdictions of small communities;
(3)small railroads;
(4)small farms; and
(5)small explosives manufacturers. “Small entity” is defined in 5 U.S.C. 601. Section 601(3) defines a “small entity” as having the same meaning as “small business concern” under section 3 of the Small Business Act. This includes any small business concern that is independently owned and operated, and is not dominant in its field of operation. Section 601(4) includes not-for-profit enterprises that are independently owned and operated, and are not dominant in their field of operations within the definition of “small entities.” Additionally, section 601(5) defines as “small entities” governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000. The U.S. Small Business Administration
(SBA)stipulates “size standards” for small entities. It provides that the largest a for-profit railroad business firm may be (and still classify as a “small entity”) is 1,500 employees for “Line-Haul Operating” railroads, and 500 employees for “Short-Line Operating” railroads. 54 For PIH material shippers potentially impacted by this rule, SBA's size standard is 750 or 1,000 employees, depending on the industry the shipper is in as determined by its North American Industry Classification System (NAICS) Code. SBA size standards also stipulate in NAICS Code Subsector 111 that the average annual receipt for “crop production” agriculture is $750,000 per year. Thus, any farm that produces crops is not considered to be a small entity unless its annual revenue is less than $750,000. For explosives manufacturers, NAICS Code 325920, the size standard is 750 employees. 54 “Table of Size Standards,” U.S. Small Business Administration, January 31, 1996, 13 CFR Part 121. *See also* NAICS Codes 482111 and 482112. SBA size standards may be altered by Federal agencies in consultation with SBA, and in conjunction with public comment. Pursuant to the authority provided to it by SBA, FRA has published a final policy, which formally establishes small entities as railroads that meet the line haulage revenue requirements of a Class III railroad. 55 Currently, the revenue requirements are $20 million or less in annual operating revenue, adjusted annually for inflation. The $20 million limit (adjusted annually for inflation) is based on the Surface Transportation Board's threshold of a Class III railroad carrier, which is adjusted by applying the railroad revenue deflator adjustment. 56 The same dollar limit on revenues is established to determine whether a railroad shipper or contractor is a small entity. DOT proposes to use this definition for this rulemaking. 55 *See* 68 FR 24891 (May 9, 2003). 56 For further information on the calculation of the specific dollar limit, please see 49 CFR Part 1201. A. Shippers Almost all hazardous materials tank cars, including those cars that transport PIH materials, are owned or leased by shippers. DOT believes that a majority, if not all, of these shippers are large entities. DOT used data from the DOT/PHMSA Hazardous Materials Information System
(HMIS)database to screen for PIH material shippers that may be small entities. The HMIS uses the SBA size standards as the basis for determining if a company qualifies as a small business. DOT also gathered data from industry trade groups such as the American Chemistry Council and The Fertilizer Institute
(TFI)to help identify the number of small shippers that might be affected. After identifying the set of small businesses that could potentially be impacted, DOT cross-referenced this group with *The Official Railway Equipment Register* (October, 2007) to determine if any of these actually own tank cars subject to this rule. From the DOT/PHMSA HMIS database, and industry sources, DOT found eight small shippers that might be impacted. By further checking information available on the companies' Web sites, all eight shippers are noted as being subsidiaries of larger businesses. Out of these eight, however, only one owns tank cars that would be affected. The remaining seven shippers either do not own tank cars or own tank cars that would not be affected by this rule. The one remaining small shipper potentially impacted has annual revenues that exceed by 20 times the FRA size standard for a small entity. Further, although this shipper is for-profit, the parent company is a non-profit. Thus, DOT believes that there are none or very few PIH material shippers that are small businesses affected by this rule. Additionally, no small shippers commented during the public meeting process. DOT invites commenters to submit information that might assist it in assessing the quantity of small shippers that may be affected by the requirements set forth in the proposed rule, as well as the potential impact on any such entities. B. Governmental Jurisdictions of Small Communities Small entities that are classified as governmental jurisdictions of small communities may also be affected by the proposals in this NPRM. As stated above, and defined by SBA, this term refers to governments of cities, counties, towns, townships, villages, school districts, or special districts with populations of less than 50,000. The potential impact of this rulemaking to these entities is related to chlorine and the use of it in the water purification process for community water districts. DOT does not know how many community water systems are owned by governmental jurisdictions that meet SBA's definition of a small entity, how many community water systems use chlorine at their facilities, or how many could easily substitute a nondangerous or less lethal material, i.e., bleach, for chlorine. DOT understands that most water plants for small communities receive their chlorine via 1-ton tanks, which are transported in highway vehicles. These facilities might be impacted indirectly by increasing prices for chlorine due to higher shipping rates. Also, in recent years, the shipping rates for chlorine have been increased due to the PIH accidents that have occurred over the past 10 years. With the introduction of this proposed regulation, DOT expects that the rates will flatten or will increase at a slower pace because the safety features of the rule will reduce the chance of an accident that releases PIH materials, and therefore result in lower accident and associated costs. DOT notes that many existing chlorine tank cars are nearing the end of their useful lives. Even in the absence of the proposed rulemaking, the affected entities would have to replace these older chlorine tank cars in the next few years. The industry, through AAR, has also been working to improve tank car safety. As discussed in section IX of this preamble, absent this regulation, new AAR chlorine tank car standards will also result in existing tank cars being replaced and entities impacted through higher shipping rates. Accordingly, DOT cannot accurately assess the number of governmental jurisdictions of small communities that would be directly impacted by this proposed regulation and what the impact would be. DOT requests comment from affected governmental jurisdictions as to the impact the proposed rule will have on them. C. Railroads DOT estimates that approximately 46 railroads meeting the definition of “small entity” as described above transport PIH materials via railroad tank car. 57 Because the proposed rule would apply to all 46 of these small railroads, we have concluded that a substantial number of such entities would be impacted. 57 Data provided by Railinc, Corp. (a subsidiary of AAR) indicates that approximately 80 short-line and regional railroads transport PIH materials via railroad tank car. Of these 80 railroads, 34 are regional railroads that meet the Surface Transportation Board's definition of a Class II railroad, and thus, are not considered “small entities” for the purposes of this IRFA. It is important to note, however, that absent this rulemaking, all railroads that transport PIH materials via railroad tank car, including the 46 railroads identified as small entities, would still have to incur the additional expense to accommodate 286,000-pound tank cars to comply with the new AAR PIH tank car standard ( *i.e.* , a 286,000-pound tank car equipped with additional head protection, thicker shell, and modified top fittings). (See section IX of this preamble for a more detailed discussion of the new AAR PIH tank car standard). As noted in section I of this preamble, however, DOT anticipates that tank car designers, working with end users, will develop tank cars that will meet the proposed enhanced tank-head and shell performance standards of this NPRM while minimizing the addition of weight to the empty cars. Recognizing the growing use of rail cars with gross weight on rail exceeding 263,000 pounds for non-hazardous commodities, such as grain, this NPRM provides the flexibility to design a tank car for the transportation of PIH materials weighing up to 286,000 pounds, in line with AAR's existing standard S-286-2002. Accordingly, the actual impact of the general increase in gross weight on rail of products in this commodity group in relation to the overall transition now being completed within the industry (which has been eased by tax incentives and, in some cases, government-guaranteed loan arrangements) should not be substantial. While we recognize that some small railroads will not be able to accommodate the additional weight on some of their bridges and track, we believe that railroads that handle PIH cars have, in general, already made or are making the transition to track structures and bridges capable of handling 286,000-pound cars in line with the general movement in the industry toward these heavier freight cars. These railroads include many switching and terminal railroads that are partially or totally owned by Class 1 railroads as interline connections. These connections have previously mandated upgrading to 286,000-pound capability. For example, in 2005, the Texas Transportation Institute reported that 42 percent of the short-line railroad miles that were operated in Texas that year had already been upgraded, nine percent would not need an upgrade, and 47 percent needed upgrading if they wanted to transport any type of 286,000-pound shipments. 58 In addition, the results of a 1998-1999 survey conducted by the ASLRRA indicated that 41 percent of respondent short-line railroads could handle 286,000-pound rail cars and 87 percent of the respondent short-line railroads indicated that they would need to accommodate 286,000-pound railcars in the future. 59 More current data from the ASLRRA suggests that many of the railroads needing future capability to handle 286,000-pound rail loads for this rule have been upgraded within the past two years. 60 58 Jeffrey E. Warner & Manuel Solari Terra, “Assessment of Texas Short Line Railroads, “ Texas Transportation Institute (Nov. 15, 2005). 59 The Ten-Year Needs of Short Line and Regional Railroads, Standing Committee on Rail Transportation, American Association of State Highway and Transportation Officials, Washington, DC (Dec. 1999). This report was based on a survey conducted by the ASLRRA in 1998 and 1999 with data from 1997. 60 John Gallagher, “Tank Car Tensions,” Traffic World (June 19, 2006). Nevertheless, we believe that some new 263,000-pound cars will be built for anhydrous ammonia service to address rail line and facility compatibility concerns thus minimizing the burden of the rule on small railroads. In general, most of the impacts will not burden the 46 small railroads potentially affected by this proposed rule. Any costs incurred by railroads most likely will be passed to shippers and end users through higher transportation costs. Thus, DOT does not expect this regulation to impose a significant burden on the affected small railroads. We invite commenters to submit information that might assist us in assessing the cost impacts on small railroads of the proposals in this NPRM. D. Farms Anhydrous ammonia is an important source of nitrogen fertilizer for crops. It is used in farming because it is one of the most efficient and widely used sources of nitrogen for plant growth. Its use has increased because it is relatively easy to apply and readily available. Nonetheless, it does carry disadvantages to the farming environment because it must be stored and handled under high pressure. Urea, urea ammonium nitrate, or ammonium nitrate could be used for anhydrous ammonia as substitutes for agricultural purposes. Anhydrous ammonia has a free ammonia percentage of 86 percent, while the substitutes have a free ammonia percentage of 46, 28-32, and 34 percent, respectively. Shippers of anhydrous ammonia do not own tank cars; rather they are leased from larger entities. According to TFI, a switch to a redesigned heavier tank car would increase monthly car lease rates from the current level of $800-$850 per car to $1,300-$1,400 per car. TFI's members lease about 6,000 tank cars and ship about 52,000 cars per year. If these increased lease costs are passed through to customers, then any agricultural or farming operation that utilizes anhydrous ammonia as part of its fertilizing program could be negatively impacted. It is important to note, however, that not all crops utilize anhydrous ammonia, nor in the same quantities. Agriculture crops that require greater leaf development, such as corn and wheat, utilize anhydrous ammonia as a fertilizer more than crops that require a greater root development, e.g., carrots, potatoes, and beets, which utilize phosphorus more as a fertilizer. Therefore, not all small farms will be impacted in the same way by an increase in the shipping rates for anhydrous ammonia. DOT invites commenters to submit information that might assist it in assessing the quantity of small agricultural operations that may be affected by the requirements set forth in the proposed rule. During DOT's public meetings, one commenter noted that the survival of family farms in the Northwest is tied to retaining a cheap source of nitrogen via anhydrous ammonia which is transported via rail. 61 Other commenters noted that NH3 costs 40 to 50 percent less per pound of nitrogen than less concentrated forms of nitrogen. 62 For example, one commenter noted that anhydrous ammonia costs 24 cents per pound of nitrogen, compared to 34 cents per pound for ammonium nitrate. 63 61 U.S. DOT Public Meeting Transcripts, Testimony of Fred Morscheck from the McGregor Company, May 31, 2006, p. 168. 62 *Id.* p. 169. 63 U.S. DOT Public Meeting Transcripts, Testimony of William Wolf from The Andersons, Inc. (a shipper), May 31, 2006, p. 190. Anhydrous ammonia is dependent on natural gas for its production. In North America, anhydrous ammonia production plants are typically built near a dedicated supply of natural gas, and the price and demand for the product are also dependent and responsive to the price of natural gas. Thus, the production at some plants is currently down due to the increase in price of natural gas. On the demand side of the economic equation there is an increase in the demand and use of anhydrous ammonia due to the recent increase in ethanol demand. Ethanol is typically produced in the United States from corn, and the production of corn requires substantial amounts of nitrogen, much of which comes from anhydrous ammonia. Because there are a number of factors contributing to increased costs for anhydrous ammonia, it is difficult to determine how much of any increase in the price of the PIH material would be a product of this proposed regulation and shipping via rail. We note as well that increased costs may well make substitute produces more attractive. Currently PIH shippers are experiencing rapidly increasing rate increases as a result of the railroads' concern over possible train accidents involving the release of PIH materials. The use of the more crashworthy tank cars coupled with the operating restrictions DOT is proposing should significantly reduce the risk of catastrophic PIH releases and ultimately translate into relief from these escalating rail transportation costs. (These rate escalations would likely continue were DOT not to issue its proposed rule since the car mandated by AAR's new standard (i.e., a Trinity-type car) would probably not prevent PIH tank car releases in even moderate speed train accidents). Shippers would be able to make the case that higher rates would no longer be “reasonable” given the significantly reduced probability of a catastrophic release. This “cost-savings” would allow shippers to offset new-car costs to a large extent. Given that new car expenses are typically financed over several years, we believe that the increased costs passed on by shippers to small farmers would not be significant. The farmers, in turn, would be expected to pass shipping cost increases to end consumers in the form of higher agricultural product prices. We request comment from affected agricultural operations as to the impact that the proposed rule would have on them. E. Explosives Manufacturers Anhydrous ammonia is also used in producing explosives. The Institute of Makers of Explosives (IME), an industry trade group, reports that there are 22 explosives manufacturers in the United States. Of these 22 manufacturers, eight actually produce explosives material while the remaining 14 are associated manufacturers making components or assemblies. Finally, three manufacturers consume anhydrous ammonia to produce explosives. None of these three potentially impacted manufactures, however, is considered a small business. IV. Description of Reporting, Recordkeeping, and Other Compliance Requirements and Impacts on Small Entities Resulting From Specific Proposed Requirements A. Reporting Requirement of Proposed § 173.31(b)(8)(iii) Proposed § 173.31(b)(8)(iii) requires that after the initial 5-year implementation period has passed, owners of PIH tank cars submit a progress report to FRA identifying the total number of in-service tank cars in PIH service owned and the number of those cars in compliance with the enhanced head and shell protection requirements of the proposed rule. This paragraph would also require that tank car owners certify in their progress reports that their fleet does not contain any pre-1989 tank cars in PIH service subject to paragraph (b)(8)(ii). 64 64 This proposed requirement restricts the use of PIH tank cars that were manufactured using non-normalized steel for tank-head or shell construction. Under it, tank cars manufactured using non-normalized steel for the tank-head or shell are not authorized to transport PIH materials five years after the effective date of the final rule. DOT estimates that the burden for this reporting would be 5 minutes per pertinent tank car. 65 In the Regulatory Impact Analysis (RIA), DOT estimated that this requirement will cost $19,200 in the beginning of the 6th year of the analysis, and this cost is for each tank car. In addition, DOT has provided postage, envelopes, and handling charges of $1 per tank car report. This cost would total $7,650, which would also be incurred in the beginning of the 6th year of the analysis. The total cost for this requirement is $26,800 for all PIH tank car owners. DOT does not expect many of these tank cars to be owned by small entities. Therefore, this reporting requirement would have very little, if any, impact on small entities. 65 CALCULATION: ($30.05 wage rate) * (5 minutes/60 minutes) * (15,300 *.5) = $19,157. B. Filing Requirement for Alternative Compliance With Proposed § 174.86(c)(1) Proposed § 174.86(c)(1) provides that if a tank car not meeting the enhanced tank-head and shell puncture resistance standards of the proposed rule is used to transport PIH material over non-signaled territory, its maximum operating speed is limited to 30 mph. Alternatively, paragraph (c)(2) provides that railroads may implement alternative safety measures in lieu of complying with the 30 mph speed restriction, so long as those alternative safety measures provides an equivalent level of safety as a traffic control system complying with 49 CFR Part 236 and the railroad completes a risk assessment demonstrating this equivalent level of safety. The rule proposes that this risk assessment be submitted to FRA for review and approval. DOT does not expect a great number of these applications. A typical submission might consist of a commitment to install a switch position monitoring system, track integrity circuits (except in areas where new rail is prevalent), and a temporary speed reduction to 40 mph during the period a positive train control system is installed on the wayside. DOT expects that the average submission would consist of between 20 and 30 pages. DOT does not expect any of these applications to be by small railroads. C. Demonstration of Compliance With Proposed Enhanced Tank-Head and Shell Puncture Resistance System Tests Proposed Appendix C to 49 CFR Part 179 provides that compliance with the proposed enhanced tank head and shell puncture-resistance standards can be shown by computer simulation, by simulation in conjunction with substructure testing, by full-scale impact testing, or a combination thereof. The lowest cost and lowest level of confidence is provided by simulation alone. Substructure testing increases the confidence in simulation modeling, potentially with relatively modest costs, depending on the details of the substructure test. The highest level of confidence is provided by full-scale impact testing, along with the greatest cost. The cost of such compliance is not important to this assessment. DOT firmly believes that no small entities will be impacted by this requirement. D. Impacts on Small Entities Resulting From Specific Proposed Requirements The impacts from this proposed rulemaking would primarily result from complying with the requirements for building enhanced PIH tank cars. The proposed rule provides affected entities an 8-year period of time in which to accomplish this goal. 1. Additional Cost for Enhanced PIH Tank Cars One of the impacts from this proposed regulation would be an increase in the cost of new PIH tank cars. The enhanced crashworthiness features, while increasing safety, would cause the average PIH tank car to increase in cost and also increase in weight. DOT believes that the impact from this increased cost in the tank cars would be substantially passed from the manufacturer to the tank car owners. Since most tank cars are owned by the shippers, much of this cost would be passed on to them. These shippers would most likely pass this cost on to the end users in the form of higher shipping costs. The capacity constraints in the railroad system give shippers some market power to pass on a substantial portion of the costs ( *i.e.* , shippers do not need to cut costs to attract customers). However, the flexibility provided by the long phase in period of the rulemaking, and the ability of some customers to use substitute products or purchase from shippers that rely on other modes of transportation if costs rise beyond their willingness to pay, may temper passing through of costs. If any of the additional or marginal increases in a PIH tank car's cost are absorbed by shippers, then few, if any, PIH material shippers that are considered to be small entities would be negatively affected. Based on information from the DOT/PHMSA HMIS registry of shippers, and industry trade groups, DOT believes no small PIH material shippers would be impacted. If the higher cost of cars meeting the proposed performance standard are not absorbed by shippers and are not offset by reductions in shipping rates attributable to reduce potential liability for catastrophic releases, small farmers using anhydrous ammonia for fertilizer might be impacted. The degree to which they might be impacted depends, among other things, on their ability to pass costs on to consumers of agricultural products. This may, in turn, be affected by Federal government agricultural policy. FRA specifically requests comments on this issue. 2. Transferring Current PIH Tank Cars to Other Services A second impact from this proposed rulemaking is the cost for transferring the current PIH tank car fleet into service for other products. This cost would only be incurred for those PIH tank cars that still have a useful life left. DOT has estimated a cost of $2,500 per PIH tank car for this impact. This cost would only be incurred to the extent that such an investment is believed to yield a positive return to the investor. As noted above, very few, if any, PIH material shippers are considered to be small entities. Thus, DOT does not believe that a substantial number of PIH material shippers would be impacted, nor by a significant economic amount. 3. Maintenance, Inspections, and Training Related to the New PIH Tank Cars Another proposed requirement that could impact small entities is the maintenance, inspection, and training costs related to the new PIH tank cars. This impact will be borne by the shippers. This impact would be temporary and would occur as the first new PIH tank cars are placed into service because DOT expects that initially it may be necessary to inspect the new tank cars more often than conventional tank cars to ensure conformance with the enhanced performance standards. 4. Fuel Cost: Impact of the Additional Weight in New PIH Tank Cars One of the impacts from this proposed regulation would be an increased fuel usage by trains resulting from the additional 23,000 lbs that the new PIH tank cars will carry due to the enhanced crashworthiness features. (This increased fuel cost would also be incurred under the new AAR PIH tank car standard.) Initially, this is a cost that would be borne by the railroads. However, the railroads would likely pass much of that cost on to the PIH material shippers through higher shipping rates. This cost would in turn be passed on to the end users, depending on the product's price elasticity of demand, and the factors noted in the “Additional Cost for Enhanced PIH Tank Cars” section above. Thus, this impact should not affect any of the small railroads. Any shippers that qualify as a small entity will most likely pass the cost on to an end user. Small farms and governmental jurisdictions of small communities are end users of PIH materials. They could potentially be impacted by this cost. However, the cost would be reflected in the shipping rates of these materials. The shipping rates of these products should also decrease or stop increasing due to the insurance costs related to the PIH materials. This is because the proposed enhanced features for the future PIH tank cars would serve to reduce the likelihood of a PIH material release. Therefore, the risk of an accident or derailment occurring where a PIH tank car is ruptured and releases its contents would have decreased, and therefore serve to lower the insurance costs associated with the shipment of these materials. 5. Cost of Restricting Traffic Speed to 50 mph One of the proposed requirements of this rulemaking is that PIH tank cars be limited to speeds of 50 mph on signaled territory or track. This requirement is not expected to impact any small railroads, because none of them travel at speeds greater than 50 mph. 6. Increased Traffic/Volume of PIH Tank Cars Due to several of the proposed requirements in this rulemaking, it is anticipated that the actual volume of PIH tank car traffic would increase. In general, this could affect railroads. However, most small railroads transport PIH tank cars from the manufacturing facility to the connection point with the Class I railroad. The traffic of these types of shipments, for the short time they are handled by small railroads, is not expected to impact these railroads. The number of cars will be few at that point, and small railroads usually only run one or two trains a day. 7. Cost of Restricting Speed to 30 mph in Dark Territory In proposed § 174.86(c), PIH tank cars that do not meet the new performance requirements would not be allowed to travel at speeds in excess of 30 mph when that tank car travels in non-signaled territory. Railroads could exceed the 30 mph limit, provided equivalent safety criteria are met. This proposed requirement should not impact small railroads since most do not operate at speeds greater than 30 mph. This proposed requirement could serve to delay deliveries for PIH material shippers and contribute to higher shipping rates. However, DOT does not believe that there are any small PIH material shippers. DOT would encourage any entities that do meet these criteria and would be negatively impacted to provide comment to this rulemaking. Governmental jurisdictions of small communities that own a water system that uses chlorine could be impacted. Most chlorine that is transported to these facilities is transported to the end destination via a truck in 1-ton tanks. This requirement will serve to slow down some rail traffic and increase the cost to ship via rail. Therefore, small farms that use anhydrous ammonia as a fertilizer could also be impacted. V. Identification of Relevant Duplicative, Overlapping, or Conflicting Federal Rules There are no Federal rules that would duplicate, overlap, or conflict with this proposed rule. VI. Alternatives Considered DOT has identified no significant alternative to the proposed rule which satisfies the mandate of SAFETEA-LU, related provisions of the Federal hazmat law, or meets the agency's objective in promulgating this rule, and that would minimize the economic impact of the proposed rule on small entities. As in all aspects of this IRFA, DOT requests comments on this finding of no significant alternative related to small entities. The process by which this proposed rule was developed provided outreach to small entities. DOT held three public meetings (May 31-June 1, 2006, December 14, 2006, and March 30, 2007). 66 At each of the public meetings, DOT sought comment and input from small entities on issues related to the safe transportation of hazardous materials by railroad tank car and how the proposed concepts would impact small entities, as well as potential alternatives that might mitigate such impacts. Subsequent to publication of this notice of proposed rulemaking, DOT expects to hold additional public meetings to discuss all aspects of the proposed rule, including its potential impact on small entities, and DOT encourages the active participation of any small entity potentially affected. 66 *See* 71 FR 30019, 71 FR 67015, 72 FR 12259. F. Paperwork Reduction Act This proposed rule may result in an increase in the information collection and recordkeeping burden due to the enhanced performance standards and operational restrictions for railroad tank cars that transport PIH materials. PHMSA currently has an approved information collection under OMB Control Number 2137-0559, “(Rail Carriers and Tank Car Tanks Requirements) Requirements for Rail Tank Car Tanks—Transportation of Hazardous Materials by Rail,” with 2,689 annual burden hours and an expiration date of May 31, 2008. Pursuant to 5 CFR 1320.8(d), PHMSA is required to provide interested members of the public and affected agencies with an opportunity to comment on information collection and recordkeeping requests. This notice identifies a revised information collection request that PHMSA will submit to the Office of Management and Budget
(OMB)for approval based on the requirements in this proposed rule. PHMSA has developed burden estimates to reflect proposals in this NPRM. PHMSA estimates that the proposals in this rulemaking will result in approximately 2,255 additional burden hours and $67,650.00 additional burden costs. PHMSA estimates that the total information collection and recordkeeping burdens for OMB Control Number 2137-0559, “(Rail Carriers and Tank Car Tank Requirements) Requirements for Rail Tank Car Tanks-Transportation of Hazardous Materials by Rail,” would be as follows: *Total Annual Number of Respondents:* 400. *Total Annual Responses:* 16,781. *Total Annual Burden Hours:* 4,944. *Total Annual Burden Cost:* $170,236.25. Requests for a copy of the information collection should be directed to Deborah Boothe or T. Glenn Foster, U.S. Department of Transportation, Office of Hazardous Materials Standards (PHH-11), Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue, SE., East Building, 2nd Floor, Washington, DC 20590-0001, Telephone
(202)366-8553. All comments should be addressed to the Dockets Unit as identified in the ADDRESSES section of this rulemaking, and received prior to the close of the comment period identified in the DATES section of this rulemaking. In addition, you may submit comments specifically related to the information collection burden to the PHMSA Desk Officer, OMB, at fax number 202-395-6974. Under the Paperwork Reduction Act of 1995, no person is required to respond to an information collection unless it displays a valid OMB control number. If these proposed requirements are adopted in a final rule with any revisions, we will resubmit any revised information collection and recordkeeping requirements to OMB for re-approval. We specifically request comments on the information collection and recordkeeping burden associated with developing, implementing, and maintaining these requirements for approval under this proposed rule. *G. Regulation Identifier Number (RIN)* A RIN is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda. *H. Unfunded Mandates Reform Act* Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $120,700,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. The proposed rule may result in the expenditure of more than $120,700,000 (adjusted annually for inflation) by the public sector in any one year. The analytical requirements under Executive Order 12866 are similar to the analytical requirements under the Unfunded Mandates Reform Act of 1995, and, thus, the same analysis complies with both analytical requirements. *I. Environmental Assessment* 1. Background The National Environmental Policy Act, 42 U.S.C. 4321-4375, requires that federal agencies analyze proposed actions to determine whether the action will have a significant impact on the human environment. The Council on Environmental Quality
(CEQ)regulations order federal agencies to conduct an environmental review considering:
(1)The need for the proposed action,
(2)alternatives to the proposed action,
(3)probable environmental impacts of the proposed action and the alternatives, and
(4)the agencies and persons consulted during the consideration process. 40 CFR 1508.9(b). We are proposing regulations to enhance the safety of the transportation by rail of certain hazardous materials. We developed this assessment to determine the effects of this proposed rule on the environment and whether a more comprehensive environmental impact statement may be required. 2. Purpose and Need Hazardous materials are transported by aircraft, vessel, rail, pipeline, and highway. The need for hazardous materials to support essential services means that the transportation of hazardous materials is unavoidable. However, these shipments frequently move through heavily-populated or environmentally-sensitive areas where the consequences of an incident could be loss of life, serious injury, or significant environmental damage. To address the safety and environmental risks associated with the transportation of hazardous materials by rail, rail tank cars must conform to rigorous design, manufacturing, and requalification requirements. The result is that tank cars are robust packagings, equipped with features such as shelf couplers, head shields, thermal insulation, and bottom discontinuity protection that are designed to ensure that a tank car involved in an accident will survive the accident intact. In the last several years, however, there have been a number of rail tank car accidents in which the tank car was breached and product was lost on the ground or into the atmosphere. Of particular concern have been accidents involving PIH materials. The purpose of this NPRM is to adopt regulations to enhance the safety of transporting PIH materials by tank car. A primary safety concern is the prevention of a catastrophic release in proximity to populated areas, including urban areas and events or venues with large numbers of people in attendance. Also of major concern is the release of PIH materials in proximity to iconic buildings, landmarks, or environmentally-sensitive areas. Such a catastrophic event could be the result of an accident—such as the January 18, 2002 derailment near Minot, North Dakota, that resulted in the derailment of 31 cars of a 112-car train. Approximately 146,700 gallons of anhydrous ammonia were immediately released from five cars in the train set. As a result, a toxic vapor plume covered the derailment site and the surrounding area. As of March 15, 2004, over $8 million had been spent on environmental remediation from this one incident. 3. Alternatives Considered The goal of this proposed rule is to enhance the safety of transporting PIH materials by rail. In developing this proposed rule, we considered three alternatives: *Alternative 1: Do nothing.* This alternative continues the status quo. In this alternative, we would not issue a proposed rule to enhance the accident survivability of tank cars (i.e., limiting the operating conditions of the tank cars transporting PIH materials and enhancing the tank-head and shell puncture-resistance systems), which represents the most efficient and cost-effective method of improving the accident survivability of these cars. This is not an acceptable alternative. The transportation of PIH materials poses unique and significant safety threats that warrant careful consideration of measures to address safety vulnerabilities in existing authorized packagings. The January 6, 2005 derailment and release of chlorine in Graniteville, South Carolina, is an example of the serious consequences that can result from the unintentional release of a PIH material. Selection of this alternative could have a negative impact on the environment because it does not reduce safety vulnerabilities related to the transportation of PIH materials. *Alternative 2: Impose enhanced safety requirements for a limited list of PIH materials transported by rail.* Under this alternative, we would propose enhanced tank-head and shell-puncture resistance standards for tank cars used to transport a subset of PIH materials that pose the most significant safety risks, such as chlorine, but not for tank cars used to transport less hazardous materials, such as bromine or acrolein. The HMR define hazardous materials by class. Any material, including a mixture or solution, that meets the definition of one of the nine defined hazard classes is considered a hazardous material and subject to the applicable regulatory requirements. This ensures that the regulations comprehensively address the hazards posed by many different types and formulations of materials. Employing this rationale, we determined that, for the purposes of this rulemaking, we would similarly address PIH materials as a class. Moreover, while some PIH materials may not pose as great a threat to the public or the environment as other PIH materials, it is in the public's best interest for all PIH materials to be transported in the safest manner possible. Nonetheless, selection of this alternative could have a positive impact on the environment because it would reduce safety vulnerabilities related to the transportation of certain PIH materials. *Alternative 3: Impose enhanced safety requirements for all PIH materials transported by rail.* Under this alternative, we would propose enhanced tank-head and shell-puncture resistance standards for tank cars used to transport all materials meeting the definition of a PIH material. This approach is consistent with the overall regulatory philosophy underlying the HMR in that it addresses the safety risks posed by all materials classed as PIH materials. This alternative represents the most efficient and cost-effective method of improving the accident survivability of tank cars transporting PIH materials. This alternative should have a positive impact on the environment because it would enhance the accident survivability of all rail tank cars used to transport PIHmaterials, thereby minimizing the possibility that PIH materials would be released. 4. Analysis of Environmental Impacts The potential for environmental damage or contamination exists when packages of hazardous materials are involved in transportation accidents. The ecosystems that could be affected by a hazardous materials release during transportation include air, water, soil, and ecological resources (i.e.,wildlife habitats). The adverse environmental impacts associated with releases of most hazardous materials are short-term impacts that can be greatly reduced or eliminated through prompt clean-up of the accident scene. Releases of PIH materials, such as chlorine and anhydrous ammonia, may result in serious health effects. High concentrations of ammonia (greater than 1,700 parts per million (ppm)) in the atmosphere cause compulsive coughing and death, while lower concentrations (lower than 700 ppm) cause eye and throat irritation. Ammonia is lighter than air so that it dissipates into the atmosphere, the rate of dissipation depending on the weather. Chlorine gas is more than twice as heavy as air. Therefore, it can settle in low lying areas in the absence of wind. Humans detect the presence of chlorine at concentrations as low as 1 to 3 ppm. At 30 ppm, coughing and pain result; at 430 ppm death results in as little as 30 minutes. Higher concentrations of chlorine can cause rapid fatality. Chlorine gas reacts with water in the air to form vapors of hydrochloric acid and liberate nascent oxygen, both of which cause massive tissue damage. Releases of PIH materials may also result in adverse environmental impacts to soil and ground water. For example, when anhydrous ammonia is released into water, it floats on the surface, rapidly dissolving into the water as ammonium hydroxide while simultaneously boiling into the atmosphere as gaseous ammonia. In an aquatic or wetland environment, ammonium hydroxide can cause fish, planktonic, and benthic organism mortality in the vicinity of the release—the size depending on the volume of anhydrous ammonia that is released. The chemical can also strip protective oils from the feathers of shore birds, causing drowning or infection. Such die offs could spur high nutrient levels that could stimulate noxious blooms of algae. Terrestrial vegetation can also be either damaged or killed, depending on atmospheric concentrations. Similarly, in an aquatic environment, chlorine gas reacts with water to form hypochlorous acid and hydrochloric acid. The breakdown of hydrochloric acid causes a decrease in the pH of the water, making it more acidic. These changes in water chemistry can cause widespread damage to aquatic environments, including fish kills. If chlorine gas is released into soil, chlorine will react with moisture, forming hypochlorous acid and hydrochloric acid, which can contaminate ground water. If adopted, we expect that the tank car performance standards and operating limitations will minimize the loss of lading in the event of a derailment or train-to-train collision. Therefore, we have preliminarily determined that there are no significant adverse environmental impacts associated with the proposals in this NPRM and that to the extent there might be any environmental impacts, they would be beneficial given the reduced likelihood of a hazardous materials release. 5. Locomotive Emissions The U.S. Environmental Protection Agency
(EPA)finalized locomotive emissions standards in 1997, which became effective in 2000. 67 Three separate sets of emission standards were established, with applicability of the standards dependent on the date a locomotive is first manufactured. The first set of standards (Tier 0) apply to locomotives and locomotive engines originally manufactured from 1973 through 2001, at any time they are remanufactured. The second set of standards (Tier 1) apply to locomotives and locomotive engines originally manufactured from 2002 through 2004. The final, and most stringent, set of standards (Tier 2) apply to locomotives and locomotive engines manufactured in or after 2005. Tier 2 locomotives and locomotive engines will be required to meet the applicable standards at the time of original manufacture and at each subsequent manufacture. 67 40 CFR 92.8. As noted in the RIA to this NPRM, we expect the speed restrictions proposed in this rule to produce a net cost savings in the area of fuel. Accordingly, the use of less fuel, combined with the increasingly stringent locomotive emissions standards of the EPA will further reduce the emissions from railroad freight transportation for movements subject to the requirements of this proposal. 6. Consultations and Public Comment As of March 2007, FRA and PHMSA have conducted three public meetings intended to solicit public, private, and government comments on alternatives (regulatory or otherwise) to address this serious issue. We invite commenters to address the possible beneficial and/or adverse environmental impacts of the proposals in this NPRM. We will consider comments received in response to this NPRM in our assessment of the environmental impacts of a final rule on this issue. *J. Privacy Act* Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477) or at *http://www.dot.gov/privacy.html.* List of Subjects 49 CFR Part 171 Exports, Hazardous materials transportation, Hazardous waste, Imports, Incorporation by reference, Reporting and recordkeeping requirements. 49 CFR Part 173 Hazardous materials transportation, Packaging and containers, Radioactive materials, Reporting and recordkeeping requirements, Uranium. 49 CFR Part 174 Hazardous materials transportation, Radioactive materials, Rail carriers, Railroad safety, Reporting and recordkeeping requirements. 49 CFR Part 179 Hazardous materials transportation, Railroad safety, Reporting and recordkeeping requirements. The Proposed Rule On the basis of the foregoing, PHMSA proposes to amend title 49, Chapter I, Subchapter C, as follows: PART 171—GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS 1. The authority citation for part 171 continues to read as follows: Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53. 2. In § 171.7, in paragraph (a)(3), in the Table of Material Incorporated by Reference, under the entry “Association of American Railroads,” add the entry “AAR Standard S-286-2002, Specification for 286,000 lbs. Gross Rail Load Cars for Free/Unrestricted Interchange Service, revised as of September 1, 2005,” to read as follows: § 171.7 Reference material.
(a)* * *
(3)*Table of material incorporated by reference.* * * * *Source and name of material* * 49 CFR reference* * * * * * * * Association of American Railroads * * * * * * * AAR Standard S-286-2002, Specification for 286,000 lbs. Gross Rail Load Cars for Free/Unrestricted Interchange Service, revised as of September 1, 2005 179.13 * * * * * * * PART 173—SHIPPERS—GENERAL REQUIREMENTS FOR SHIPMENTS AND PACKAGINGS 3. The authority citation for part 173 continues to read as follows: Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45, 1.53. 4. Amend § 173.31 as follows: a. Revise paragraphs (a)(6) and (b)(3); b. Revise paragraph (b)(6) introductory text; c. Add paragraphs (b)(7) and (b)(8); and d. Revise paragraph (e)(2)(ii). The revisions and additions read as follows: § 173.31 Use of Tank Cars.
(a)* * *
(6)Unless otherwise specifically provided in this part:
(i)When the tank car delimiter is an “A,” offerors may also use tank cars with a delimiter “S,” “J,” “M,” “N” or “T.”
(ii)When the tank car delimiter is an “S,” offerors may also use tank cars with a delimiter “J,” “M,” “N” or “T.”
(iii)When the tank car delimiter is a “T,” offerors may also use tank cars with a delimiter of “J” or “N.”
(iv)When the tank car delimiter is a “J,” offerors may also use tank cars with a delimiter of “N.”
(v)When a tank car delimiter is an “M,” offerors may also use tank cars with delimiter of “N.”
(vi)When a tank car delimiter is an “N,” offerors may not use a tank car with any other delimiter.
(b)* * *
(3)*Tank-head puncture-resistance requirements.*
(i)Tank cars used to transport a Class 2 material, other than a material poisonous by inhalation, and tank cars constructed from aluminum or nickel plate used to transport any hazardous material must have a tank-head puncture-resistance system that conforms to the requirements of § 179.16(a) of this subchapter.
(ii)Tank cars used to transport material poisonous by inhalation must have a tank-head puncture-resistance system that conforms to the requirements of § 179.16(b) of this subchapter, as follows:
(A)Tank cars built after [INSERT DATE 2 YEARS AFTER EFFECTIVE DATE OF FINAL RULE] must have a tank-head puncture-resistance system conforming to the requirements of § 179.16(b) of this subchapter.
(B)Tank cars built on or before [INSERT DATE 2 YEARS AFTER EFFECTIVE DATE OF FINAL RULE] must have a tank-head puncture-resistance system conforming to the requirements of § 179.16(b) by [INSERT DATE 8 YEARS AFTER EFFECTIVE DATE OF FINAL RULE].
(6)*Scheduling of modifications and progress reporting.* The date of conformance for the continued use of tank cars subject to paragraphs (b)(4), (b)(5), and
(f)of this section and § 173.314(j) is subject to the following conditions and limitations.
(7)*Tank shell puncture-resistance system.* Tank cars used to transport material poisonous by inhalation must have a tank shell puncture-resistance system that conforms to the requirements of § 179.24 of this subchapter, as follows:
(i)Tank cars built after [INSERT DATE 2 YEARS AFTER EFFECTIVE DATE OF FINAL RULE] must have a tank shell puncture-resistance system conforming to the requirements of § 179.24 of this subchapter.
(ii)Tank cars built on or before [INSERT DATE 2 YEARS AFTER EFFECTIVE DATE OF FINAL RULE] must have a tank shell puncture-resistance system conforming to the requirements of § 179.24 by [INSERT DATE 8 YEARS AFTER EFFECTIVE DATE OF FINAL RULE].
(8)*Tank-head and shell puncture-resistance systems implementation schedule and reporting requirement.* Each owner of a tank car subject to paragraphs (b)(3)(ii) and (b)(7) of this section must comply with the following implementation schedule and reporting requirements:
(i)No later than [INSERT DATE 5 YEARS FROM THE EFFECTIVE DATE OF THE FINAL RULE], each owner must have brought at least 50 percent of its tank car fleet used to transport material poisonous by inhalation into compliance with the requirements of §§ 179.16(b) and 179.24 of this subchapter.
(ii)After [INSERT DATE 5 YEARS AFTER EFFECTIVE DATE OF FINAL RULE], tank cars manufactured using non-normalized steel for head or shell construction may not be used for the transportation of material poisonous by inhalation.
(iii)No later than [INSERT DATE 5 YEARS AND TWO MONTHS FROM THE EFFECTIVE DATE OF FINAL RULE], each tank car owner must submit to the Federal Railroad Administration, Hazardous Materials Division, Office of Safety Assurance and Compliance, 1200 New Jersey Avenue, SE., Washington, DC, 20590, a progress report that shows the total number of in-service tank cars subject to paragraphs (b)(3)(ii) and (b)(7) of this section and of those tank cars, the number of cars in compliance with §§ 179.16(b) and 179.24 of this subchapter. In this report, the tank car owner must also certify that its fleet does not include any tank car subject to paragraph (b)(8)(ii).
(e)* * *
(2)* * *
(ii)*Tank-head and shell puncture-resistance systems.* As provided in paragraphs (b)(3)(ii) and (b)(7) of this section, each tank car transporting a material poisonous by inhalation must meet the tank-head and shell puncture-resistance system requirements of §§ 179.16(b) and 179.24 of this subchapter. Except as provided in paragraph (b)(8) of this section, a tank car that does not conform to these requirements may not be used to transport any material poisonous by inhalation after [INSERT DATE 8 YEARS AFTER EFFECTIVE DATE OF FINAL RULE]. 5. Amend § 173.249 as follows: a. Revise the last sentence of paragraph (a); and b. Add new paragraph (g). The revisions and additions read as follows: § 173.249 Bromine.
(a)* * * Tank cars must conform to the requirements in paragraphs
(a)through
(g)of this section.
(g)Except as provided in § 173.31(b)(8), for shipments offered for transportation or transported after [INSERT DATE 8 YEARS AFTER EFFECTIVE DATE OF FINAL RULE], each tank car must meet the tank-head and shell puncture-resistance system requirements of §§ 179.16(b) and 179.24 of this subchapter. 6. In § 173.314, revise paragraph
(k)to read as follows: § 173.314 Compressed gases in tank cars and multi-unit tank cars.
(k)*Special requirements for chlorine.*
(1)Tank cars built after September 30, 1991, and before [INSERT 2 YEARS AFTER EFFECTIVE DATE OF THE FINAL RULE] must have an insulation system consisting of 5.08 cm (2 inches) glass fiber placed over 5.08 (2 inches) of ceramic fiber. Tank cars built after [INSERT 2 YEARS AFTER EFFECTIVE DATE OF THE FINAL RULE] must have a thermal protection system conforming to § 179.18 of this subchapter, or have an insulation system with an overall thermal conductance of no more than 0.613 kilojoules per hour, per square meter, per degree Celsius temperature differential (0.03 B.t.u. per square foot, per hour per degree Fahrenheit temperature differential).
(2)Tank cars must have excess flow valves on the interior pipes of liquid discharge valves.
(3)Tank cars constructed to a DOT 105A500W specification may be marked as a DOT 105A300W specification with the size and type of reclosing pressure relief valves required by the marked specification.
(4)Except as provided in § 173.31(b)(8), for shipments offered for transportation or transported after [INSERT DATE 8 YEARS AFTER EFFECTIVE DATE OF FINAL RULE], each tank car must meet the tank-head and shell puncture-resistance system requirements of §§ 179.16(b) and 179.24 of this subchapter. 7. In § 173.323, revise paragraph (c)(1) to read as follows. § 173.323 Ethylene Oxide.
(c)* * *
(1)*Tank cars.* Class DOT 105 tank cars:
(i)Each tank car must have a tank test pressure of at least 20.7 Bar (300 psig); and
(ii)Except as provided in § 173.31(b)(8), for shipments offered for transportation or transported after [INSERT DATE 8 YEARS AFTER EFFECTIVE DATE OF FINAL RULE], each tank car must meet the tank-head and shell puncture-resistance system requirements of §§ 179.16(b) and 179.24 of this subchapter. PART 174—CARRIAGE BY RAIL 8. The authority citation for part 174 continues to read as follows: Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53 9. Add new § 174.2 to read as follows: § 174.2 Limitation on actions by states, local governments, and Indian tribes. Sections 5125 and 20106 of Title 49, United States Code, limit the authority of states, political subdivisions of states, and Indian tribes to impose requirements on the transportation of hazardous materials in commerce. A state, local, or Indian tribe requirement on the transportation of hazardous materials by rail may be preempted under either 49 U.S.C. 5125 or 20106, or both.
(a)Section 171.1(f) of this subchapter describes the circumstances under which 49 U.S.C. 5125 preempts a requirement of a state, political subdivision of a state, or Indian tribe.
(b)Under the Federal Railroad Safety Act (49 U.S.C. 20106), administered by the Federal Railroad Administration (see 49 CFR parts 200-268), laws, regulations and orders related to railroad safety, including security, shall be nationally uniform to the extent practicable. A state may adopt, or continue in force, a law, regulation, or order covering the same subject matter as a DOT regulation or order applicable to railroad safety and security (including the requirements in this subpart) only when an additional or more stringent state law, regulation, or order is necessary to eliminate or reduce an essentially local safety or security hazard; is not incompatible with a law, regulation, or order of the United States Government; and does not unreasonably burden interstate commerce. 10. Revise § 174.86 to read as follows: § 174.86 Maximum allowable operating speed.
(a)For molten metals and molten glass shipped in packagings other than those prescribed in § 173.247 of this subchapter, the maximum allowable operating speed may not exceed 24 km/hour (15 mph) for shipments by rail.
(b)For trains transporting tank cars containing a material poisonous by inhalation, the maximum allowable operating speed may not exceed 80.5 km/hour (50 mph) for shipments by rail.
(1)Prior to [INSERT DATE 8 YEARS AFTER EFFECTIVE DATE OF FINAL RULE], if a tank car that does not meet the tank-head and shell puncture-resistance system requirements of § 179.16(b) and § 179.24 of this subchapter is used to transport by rail a material poisonous by inhalation, the maximum allowable operating speed of the train may not exceed 48.3 km/hour (30 mph) for that tank car when transported over non-signaled territory. For purposes of this section, non-signaled territory means a rail line not equipped with a traffic control system or automatic block signal system that conforms to the requirements in part 236 of this chapter.
(2)As an alternative to complying with paragraph (c)(1) of this section, a railroad may provide for alternative risk mitigations and complete a risk assessment that includes appropriate data and analysis establishing that the operating conditions over the subject trackage provide at least an equivalent level of safety as a traffic control system that conforms to the requirements in part 236 of this chapter, including consideration of the contribution of the traffic control system to broken rail detection, provided:
(i)The risk assessment is submitted to FRA's Associate Administrator for Safety, for review; and
(ii)The Associate Administrator determines in writing that the risk assessment establishes that the requirement of paragraph (c)(2) is met. PART 179—SPECIFICATIONS FOR TANK CARS. 11. The authority citation for part 179 continues to read as follows: Authority: 49 U.S.C. 5101-5128; 49 CFR part 1.53. 12. Add a new § 179.8 to read as follows: § 179.8 Limitation on actions by states, local governments, and Indian tribes. Sections 5125 and 20106 of Title 49, United States Code, limit the authority of states, political subdivisions of states, and Indian tribes to impose requirements on the transportation of hazardous materials in commerce. A state, local, or Indian tribe requirement on the transportation of hazardous materials by rail may be preempted under either 49 U.S.C. 5125 or 20106, or both.
(a)Section 171.1(f) of this subchapter describes the circumstances under which 49 U.S.C. 5125 preempts a requirement of a state, political subdivision of a state, or Indian tribe.
(b)Under the Federal Railroad Safety Act (49 U.S.C. 20106), administered by the Federal Railroad Administration (see 49 CFR parts 200-268), laws, regulations and orders related to railroad safety, including security, shall be nationally uniform to the extent practicable. A state may adopt, or continue in force, a law, regulation, or order covering the same subject matter as a DOT regulation or order applicable to railroad safety and security (including the requirements in this subpart) only when an additional or more stringent state law, regulation, or order is necessary to eliminate or reduce an essentially local safety or security hazard; is not incompatible with a law, regulation, or order of the United States Government; and does not unreasonably burden interstate commerce. 13. Revise § 179.13 to read as follows: § 179.13 Tank car capacity and gross weight limitation.
(a)Except as provided in paragraph
(b)of this section, tank cars built after November 30, 1970, may not exceed 34,500 gallons (130,597 L) capacity or 263,000 pounds gross weight on rail. Existing tank cars may not be converted to exceed 34,500 gallons capacity or 263,000 pounds gross weight on rail.
(b)Tank cars meeting the tank-head and shell puncture-resistance requirements of § 179.16(b) and § 179.24 of this subchapter, may not exceed 34,500 gallons (130,597 L) capacity or 286,000 pounds (129,727 kg) gross weight on rail. Tank cars exceeding 263,000 pounds and up to 286,000 pounds gross weight on rail must meet the requirements of AAR Standard S-286-2002, SPECIFICATION FOR 286,000 LBS. GROSS RAIL LOAD CARS FOR FREE/UNRESTRICTED INTERCHANGE SERVICE (adopted November, 2002 and revised September 1, 2005) (IBR; see § 171.7 of this subchapter). 14. Revise § 179.16 to read as follows: § 179.16 Tank-head puncture-resistance systems. When the regulations in this subchapter require a tank-head puncture-resistance system, the system must meet the following requirements:
(a)*Performance standard for tank cars transporting a hazardous material other than a material poisonous by inhalation.*
(1)For rail tank cars required to have tank-head puncture-resistance systems pursuant to § 173.31(b)(3)(i) of this subchapter, the tank-head puncture-resistance system must be capable of sustaining, without any loss of lading, coupler-to tank-head impacts at relative car speeds of 29 km/hour (18 mph) when:
(i)The weight of the impact car is at least 119,295 kg (263,000 pounds);
(ii)The impacted tank car is coupled to one or more backup cars that have a total weight of at least 217,724 kg (480,000 pounds) and the hand brake is applied on the last “backup” car; and
(iii)The impacted tank car is pressurized to at least 6.9 Bar (100 psig).
(2)Compliance with the requirements of paragraph (a)(1) of this section must be verified by full-scale testing according to appendix A of this part.
(3)As an alternative to requirements prescribed in paragraph (a)(2) of this section, compliance with the requirements of paragraph (a)(1) of this section may be met by installing full-head protection (shields) or full tank-head jackets on each end of the tank car conforming to the following:
(i)The full-head protection (shields) or full tank-head jackets must be at least 1.27 cm (0.5 inch) thick, shaped to the contour of the tank head and made from steel having a tensile strength greater than 379.21 N/mm 2 (55,000 psi);
(ii)The design and test requirements of the full-head protection (shields) or full tank-head jackets must meet the impact test requirements in Section 5.3 of the AAR Specifications for Tank Cars (IBR, see § 171.7 of this subchapter); and
(iii)The workmanship must meet the requirements in Section C, Part II, Chapter 5, of the AAR Specifications for Design, Fabrication, and Construction of Freight Cars (IBR, see § 171.7 of this subchapter).
(b)*Performance standard for tank cars transporting material poisonous by inhalation.* For rail tank cars required to have a tank-head puncture-resistance system pursuant to § 173.31(b)(3)(ii) of this subchapter, the tank-head puncture-resistance system must be capable of sustaining an impact at 48.3 km/hour (30 mph) without loss of lading, as demonstrated by any of the methods of compliance specified in Appendix C of this part. 15. In § 179.22, add paragraphs
(e)and
(f)to read as follows: § 179.22 Marking.
(e)Each tank car conforming to the tank-head puncture-resistance system requirements prescribed in § 179.16(b) and the shell puncture-resistance system requirements prescribed in § 179.24, but with no thermal protection system, must have the letter “M” substituted for the letter “A” or “S” in the specification marking.
(f)Each tank car conforming to the tank-head puncture-resistance system requirements prescribed in § 179.16(b), the shell puncture-resistance system requirements prescribed in § 179.24, and with a thermal protection system, must have the letter “N” substituted for the letter “A,” “J,” “M,” “S,” or “T” in the specification marking. 16. Add a new § 179.24 to read as follows: § 179.24 Tank shell puncture-resistance systems; performance standard. When the regulations in this subchapter require a tank shell puncture-resistance system, the tank shell puncture-resistance system must be capable of sustaining an impact at 40.3 km/hour (25 mph) without loss of lading, as demonstrated by any of the methods of compliance specified in Appendix C of this part. 17. In § 179.102-17, add a new paragraph
(m)to read as follows: § 179.102-17 Hydrogen chloride, refrigerated liquid.
(m)Except as provided in § 173.31(b)(8) of this subchapter, each tank car must meet the tank-head and shell puncture-resistance system requirements of §§ 179.16(b) and 179.24 of this subchapter by [INSERT DATE 8 YEARS AFTER EFFECTIVE DATE OF FINAL RULE]. 18. Add Appendix C to Part 179 to read as follows: APPENDIX C TO PART 179—PROCEDURES FOR ENHANCED TANK-HEAD AND SHELL PUNCTURE-RESISTANCE SYSTEMS TESTS This Appendix provides performance criteria for the impact evaluation of tank cars designed to carry material poisonous by inhalation. Each of the following criteria describes a collision scenario in which the integrity of the tank must be maintained. These performance criteria are intended to prevent loss of lading during train collisions and derailments.
(a)Tank Heads.
(1)*Objective.* The end structures of the tank car must withstand a frontal impact with a proxy object which is intended to approximate a loaded freight car, including the coupler with the knuckle removed. (see figure 1).
(2)*Fixed rigid punch characteristics and orientation.* The fixed rigid punch must have the following characteristics: It shall protrude at least 1.5 meters (60 inches) from its base and it shall be 0.5 meters (21 inches) above the lowest edge of the commodity tank. The fixed rigid punch must have cross-section of 15.2 centimeters (6 inches) high by 15.2 centimeters (6 inches) wide, with 1.3 centimeter ( 1/2 inch) radii on the edges of the impact face.
(3)*Tank car characteristics.* The tank car must be filled with no more than 10% outage with lading of the same density as the commodity the car type is intended to carry, and pressurized to at least 100 psi.
(4)*Impact.* The end structure of the tank car must withstand a 48.3 km/hour (30 mph) impact with the fixed rigid punch, resulting in the tank maintaining its integrity. At the instant of contact, the longitudinal centerline of the punch must be aligned with the longitudinal centerline of the tank.
(5)*Result.* There must be no loss of lading due to this impact. A test is successful if there is no visible leak from the standing tank car for at least one hour after the impact. EP01AP08.357
(b)Tank Shell.
(1)*Objective.* The shell structure of the tank car must withstand a side impact with a proxy object which is intended to approximate a loaded freight car, including the coupler with the knuckle removed (see figure 2).
(2)*Proxy object characteristics and orientation.* The proxy object must have the following characteristics: 286,000 pound minimum weight and rigid punch protruding at least 1.5 meters (60 inches). The rigid punch must have cross-section of 15.2 centimeters (6 inches) high by 15.2 centimeters (6 inches) wide, with 1.3 centimeter ( 1/2 inch) radii on the edges of the impact face.
(3)*Tank car characteristics.* The tank car must be filled with no more than 10% outage with lading of the same density as the commodity the car type is intended to carry, and pressurized to at least 100 psi. The tank car must be restrained in the direction of impact.
(4)*Impact.* The end structure of the tank car must withstand a 40.3 km/hour (25 mph) impact with the proxy object resulting in the tank maintaining its integrity. At the instant of contact, the longitudinal centerline of the punch must be aligned with the lateral centerline of the tank.
(5)*Result.* There must be no loss of lading due to this impact. A test is successful if there is no visible leak from the standing tank car for at least one hour after the impact. EP01AP08.358
(c)Demonstration of Compliance.— Compliance with the tank-head and shell puncture-resistance system requirement tests above must be demonstrated by any of the methods prescribed in this paragraph, or by a combination of these methods. Before a design is implemented based on the methods in
(2)through
(5)below, the party seeking to comply must submit all relevant documentation and analysis to FRA and FRA will acknowledge in writing that compliance with the requirements has been met.
(1)Full-scale testing.
(2)Performance of the test with substructures or models of appropriate scale incorporating those features that are significant with respect to the item under investigation, when engineering experience has shown results of those tests to be suitable for design purposes. When a scale model is used, the need for adjusting certain test parameters must be taken into account.
(3)Calculations, computer simulation, or substructure testing using reliable and conservative procedures and parameters;
(4)Reference to a previous satisfactory design of a sufficiently similar nature; or
(5)A combination of any of the methods set forth in paragraphs
(2)through
(4)above. Issued in Washington, DC on March 26, 2008, under the authority delegated in 49 CFR Part 106. Theodore L. Willke, Associate Administrator for Hazardous Materials Safety. [FR Doc. E8-6563 Filed 3-31-08; 8:45 am] BILLING CODE 4910-60-P 73 63 Tuesday, April 1, 2008 Notices Part VI Department of Education Notice of Final Priority, Definitions, Requirements, and Selection Criteria; Notice DEPARTMENT OF EDUCATION Notice of Final Priority, Definitions, Requirements, and Selection Criteria AGENCY: Office of Safe and Drug-Free Schools, Department of Education. ACTION: Notice of final priority, definitions, requirements, and selection criteria. SUMMARY: The Assistant Deputy Secretary for Safe and Drug-Free Schools announces a priority, definitions, requirements, and selection criteria under the Models of Exemplary, Effective, and Promising Alcohol or Other Drug Abuse Prevention Programs on College Campuses grant competition. The Assistant Deputy Secretary may use the priority, definitions, requirements, and selection criteria for competitions in fiscal year
(FY)2008 and later years. DATES: *Effective Date:* The priority, definitions, requirements, and selection criteria are effective May 1, 2008. FOR FURTHER INFORMATION CONTACT: Richard Lucey, Jr., U.S. Department of Education, 400 Maryland Avenue, SW., room 3E335, Washington, DC 20202-6450. Telephone:
(202)205-5471, or by e-mail: *richard.lucey@ed.gov* . If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service
(FRS)at 1-800-877-8339. Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT . SUPPLEMENTARY INFORMATION: We published a notice of proposed priority, definitions, requirements, and selection criteria for this competition in the **Federal Register** on December 26, 2007 (72 FR 73012). Except for minor editorial revisions in the priority, there are no differences between the notice of proposed priority, definitions, requirements, and selection criteria and this notice of final priority, definitions, requirements, and selection criteria. Analysis of Comments and Changes In response to our invitation in the notice of proposed priority, definitions, requirements, and selection criteria, one party submitted a comment on the proposed eligibility requirements. An analysis of the comment and of any changes in the priority, definitions, requirements, and selection criteria since publication of the notice of proposed priority, definitions, requirements, and selection criteria follows. Generally, we do not address technical and other minor changes—and suggested changes the law does not authorize us to make under the applicable statutory authority. Eligible Applicants *Comment:* One commenter recommended that eligible applicants include the national headquarters or educational foundations of campus-based fraternities and sororities. *Discussion:* We have designed this program for institutions of higher education
(IHEs)because the emphasis of this grant program is not only to recognize an IHE for having implemented an exemplary, effective, or promising program on its campus, but also to assist the IHE in strengthening the program through enhancement and further evaluation. This emphasis encourages and fosters key aspects of effective campus-based prevention, including conducting a problem analysis or needs assessment, setting goals and objectives that are relevant to the campus's identified alcohol or other drug abuse problems, implementing and evaluating appropriate prevention and early intervention strategies, and identifying and securing the involvement of a cross-representation of campus- and community-based partners. If we extended eligibility for this grant program to non-IHEs, we would run the risk of recognizing entities that are developing programs for a specific student population, such as first-year students, members of fraternities and/or sororities, and student-athletes, in an insular manner without any collaboration or input with the at-large campus community. Such an approach would run counter to current prevention research that demonstrates coalition-building and collaboration with a broad representation of constituents as a vital and effective component of a campus's alcohol or other drug abuse prevention efforts. Research strongly supports the use of comprehensive, integrated programs with multiple complementary components that target individuals, including at-risk or alcohol-dependent drinkers; the student population as a whole; and the college and surrounding community. Although we do not propose that non-IHEs be eligible for funding under this grant program, we recognize that non-IHEs can play an important role in collaborating with an IHE as part of the campus's comprehensive alcohol or other drug abuse prevention efforts and we strongly encourage such a relationship. For instance, an IHE may submit an application for recognition as an exemplary, effective, or promising program that has evidence of effectiveness in preventing alcohol or other drug abuse among members of the campus's fraternity and/or sorority members, and is supported by the national headquarters or educational foundations of campus-based fraternities and sororities. *Changes:* None. Note: This notice does *not* solicit applications. In any year in which we choose to use the priority, definitions, requirements, and selection criteria, we invite applications through a notice in the **Federal Register** . When inviting applications we designate the priority as absolute, competitive preference, or invitational. The effect of each type of priority follows: *Absolute Priority:* Under an absolute priority we consider only applications that meet the priority (34 CFR 75.105(c)(3)). *Competitive preference priority:* Under a competitive preference priority we give competitive preference to an application by either
(1)awarding additional points, depending on how well or the extent to which the application meets the competitive priority (34 CFR 75.105(c)(2)(i)); or
(2)selecting an application that meets the competitive priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)). *Invitational priority:* Under an invitational priority we are particularly interested in applications that meet the invitational priority. However, we do not give an application that meets the invitational priority a competitive or absolute preference over other applications (34 CFR 75.105(c)(1)). Priority: Exemplary, Effective, and Promising Alcohol or Other Drug Abuse Prevention Programs on College Campuses Under this priority the Department provides funding to IHEs that have implemented an exemplary, effective, or promising alcohol or other drug abuse prevention program on their campus. To meet the priority, in its application, an applicant must: 1. Describe the program that has for at least two full years been implemented on its campus, including the structure and content of the program, the student population that is targeted by the program, and any unique features of the program; 2. Provide a detailed theoretical basis for the program's effectiveness; 3. Provide data to demonstrate the program's impact on the target student population, including evidence of cognitive or behavioral changes, or both, among the target population; and 4. Consent to a site visit to clarify information in the application and verify evaluation data. Under this program, the Department selects an IHE for recognition as having an exemplary, effective, or promising program based on the recommendation from the two peer reviewers who conduct the site visit. Therefore, note that selection for a site visit does not ensure recognition as an exemplary, effective, or promising program by the Department. Recognition Types Contingent upon the quality of data provided by the applicant and the recommendation of site visitors, an applicant may earn one of three levels of recognition. Level 1 is recognition as an exemplary program. An IHE whose program is designated as exemplary must: 1. Within 30 days of receiving an award, provide to the Department a plan to disseminate information about its program to other IHEs; 2. Upon approval by the Department, implement its dissemination plan; and 3. Enhance and further evaluate the exemplary program during the project period of the grant award. Level 2 is recognition as an effective program. An IHE whose program is designated as effective must: 1. Within 30 days of receiving an award, provide to the Department a plan to disseminate information about its program to other IHEs; 2. Upon approval by the Department, implement its dissemination plan; and 3. Enhance and further evaluate the effective program during the project period of the grant award. Level 3 is designation as a promising program. An IHE whose program is recognized as promising must: 1. Within 30 days of receiving an award, submit to the Department a plan to enhance and further evaluate its program; 2. Upon approval by the Department, implement its enhancement and evaluation plan; and 3. Within 12 months of award, provide to the Department a report detailing the results of its evaluation. Definitions 1. *Exemplary program* means a program that has a strong theoretical base and demonstrated effectiveness in reducing alcohol or other drug abuse among college students or reducing problems resulting from alcohol or other drug use among college students, using a research design of the highest quality. For the purpose of this grant competition, a research design of the highest quality means an experimental design in which students are randomly assigned to participate in a project being evaluated (treatment group) or not participate in the project (control group). The effect of the project is the difference in outcomes between the treatment and control groups. If strong, experimentally determined evidence of the effectiveness of a program already exists, and the program was implemented on the applicant's campus with fidelity to the research, then a quasi-experimental evaluation of the program's implementation on the applicant's campus may be an acceptable research design. For the purpose of this grant competition, quasi-experimental designs include several designs that attempt to approximate a random assignment design. 2. *Effective program* means a program that has a strong theoretical base and has been evaluated using either an experimental or quasi-experimental research design, with the evaluation results suggesting effectiveness in reducing alcohol or other drug abuse among college students, reducing problems resulting from alcohol or other drug use among college students, reducing risk factors, enhancing protective factors, or resulting in some combination of those impacts. 3. *Promising program* means a program that has a strong theoretical base and for which evidence has been obtained, using limited research methods, that the program may reduce alcohol or other drug abuse among college students, reduce problems resulting from alcohol or other drug use among college students, reduce risk factors, enhance protective factors, or result in some combination of those impacts. For the purpose of this grant competition, limited research methods are methods that include a pre- and post-treatment measurement of the effects of a treatment on a single subject or group of single subjects. Requirements Eligible Applicants Only IHEs that offer an associate or baccalaureate degree are eligible under this program. Limitations on Eligibility
(a)*Exemplary or effective programs.* The length of time an IHE is ineligible for a subsequent award after receiving recognition for an exemplary or effective program is three years.
(b)*Promising programs.* Programs recognized as promising may be eligible for a new award when their current grant is no longer active. A grant is considered active until the end of the grant's project or funding period, including any extensions of those periods that extend the grantee's authority to obligate funds. A project that fails to achieve exemplary or effective status after a second designation as a promising program may not reapply for three years after its second project period is no longer active. Funding Limits for Applicants The maximum amount an applicant may receive for a project recognized as an exemplary or effective program may be no more than $150,000 plus indirect costs, and a project recognized as a promising program may receive no more than $100,000 plus indirect costs. Selection Criteria 1. Significance
(a)The potential contribution of the program to the development and advancement of theory, knowledge, and practices in the field of study.
(b)The quality of the applicant's plan to disseminate the program in ways that will enable others to use the information or strategies, including evidence of the program's readiness for replication. 2. Project Design
(a)The extent to which the design of the program reflects up-to-date knowledge from research and effective practices.
(b)The extent to which the plan to enhance the program reflects up-to-date knowledge from research and effective practices.
(c)The extent to which the goals, objectives, and outcomes to be achieved by the enhancement to the program are clearly specified and measurable. 3. Project Evaluation
(a)The extent to which the evaluation data provide evidence of the effectiveness of the program in reducing alcohol or other drug use, or both, reducing problems resulting from alcohol or other drug use, or both, reducing risk factors, enhancing protective factors, or some combination of those impacts.
(b)The extent to which the methods of evaluation used during the implementation of the program will provide guidance about effective strategies suitable for replication or testing in other settings.
(c)The extent to which the methods of evaluation used during the enhancement of the program will provide performance feedback and permit periodic assessment of progress toward achieving intended outcomes. Executive Order 12866 This notice of final priority, definitions, requirements, and selection criteria has been reviewed in accordance with Executive Order 12866. Under the terms of the order, we have assessed the potential costs and benefits of this regulatory action. The potential costs associated with the notice of final priority, definitions, requirements, and selection criteria are those resulting from statutory requirements and those we have determined as necessary for administering this program effectively and efficiently. In assessing the potential costs and benefits—both quantitative and qualitative—of this notice of final priority, definitions, requirements, and selection criteria, we have determined that the benefits of the final priority, definitions, requirements, and selection criteria justify the costs. We have also determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions. We summarized the costs and benefits in the notice of proposed priority, definitions, requirements, and selection criteria. Intergovernmental Review This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance. This document provides early notification of our specific plans and actions for this program. Electronic Access to This Document You may view this document, as well as all other Department of Education documents published in the **Federal Register** , in text or Adobe Portable Document Format
(PDF)on the Internet at the following site: *http://www.ed.gov/news/fedregister* . To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC area at
(202)512-1530. You may also view this document in text at the following site: *http://www.ed.gov/programs/dvpcollege/applicant.html* . Note: The official version of this document is the document published in the **Federal Register** . Free Internet access to the official edition of the **Federal Register** and the Code of Federal Regulations is available on GPO Access at: *http://www.gpoaccess.gov/nara/index.html* . (Catalog of Federal Domestic Assistance Number: 84.184N Office of Safe and Drug-Free Schools—Models of Exemplary, Effective, and Promising Alcohol and Other Drug Abuse Prevention Programs on College Campuses) Program Authority: 20 U.S.C. 7131. Dated: March 26, 2008. Deborah A. Price, Assistant Deputy Secretary for Safe and Drug-Free Schools. [FR Doc. E8-6678 Filed 3-31-08; 8:45 am] BILLING CODE 4000-01-P 73 63 Tuesday, April 1, 2008 Notices Part VII Department of Education Office of Safe and Drug-Free Schools; Overview Information; Models of Exemplary, Effective, and Promising Alcohol or Other Drug Abuse Prevention Programs on College Campuses; Notice Inviting Applications for New Awards for Fiscal Year
(FY)2008; Notice DEPARTMENT OF EDUCATION Office of Safe and Drug-Free Schools; Overview Information; Models of Exemplary, Effective, and Promising Alcohol or Other Drug Abuse Prevention Programs on College Campuses Notice inviting applications for new awards for fiscal year
(FY)2008. Catalog of Federal Domestic Assistance
(CFDA)Number: 84.184N. DATES: *Applications Available:* April 4, 2008. *Deadline for Transmittal of Applications:* May 19, 2008. *Deadline for Intergovernmental Review:* July 18, 2008. Full Text of Announcement I. Funding Opportunity Description *Purpose of Program:* The goals of this program are to identify and disseminate information about exemplary and effective alcohol or other drug abuse prevention programs implemented on college campuses. Through this grant program, the U.S. Department of Education
(ED)also will recognize colleges and universities whose programs, while not yet exemplary or effective, show evidence that they are promising. *Priority:* This priority is from the notice of final priority, definitions, requirements, and selection criteria for this program, published elsewhere in this issue of the **Federal Register** . *Absolute Priority:* For FY 2008 and any subsequent year in which we make awards based on the list of unfunded applicants from this competition, this priority is an absolute priority. Under 34 CFR 75.105(c)(3) we consider only applications that meet this priority. This priority is: *Exemplary, Effective, and Promising Alcohol or Other Drug Abuse Prevention Programs on College Campuses* Under this priority the Department provides funding to IHEs that have implemented an exemplary, effective, or promising alcohol or other drug abuse prevention program on their campus. To meet the priority, in its application, an applicant must: 1. Describe the program that has for at least two full years been implemented on its campus, including the structure and content of the program, the student population that is targeted by the program, and any unique features of the program; 2. Provide a detailed theoretical basis for the program's effectiveness; 3. Provide data to demonstrate the program's impact on the target student population, including evidence of cognitive or behavioral changes, or both, among the target population; and 4. Consent to a site visit to clarify information in the application and verify evaluation data. Under this program, the Department selects an IHE for recognition as having an exemplary, effective, or promising program based on the recommendation from the two peer reviewers who conduct the site visit. Therefore, note that selection for a site visit does not ensure recognition as an exemplary, effective, or promising program by the Department. Recognition Types Contingent upon the quality of data provided by the applicant and the recommendation of site visitors, an applicant may earn one of three levels of recognition. Level 1 is recognition as an exemplary program. An IHE whose program is designated as exemplary must: 1. Within 30 days of receiving an award, provide to the Department a plan to disseminate information about its program to other IHEs; 2. Upon approval by the Department, implement its dissemination plan; and 3. Enhance and further evaluate the exemplary program during the project period of the grant award. Level 2 is recognition as an effective program. An IHE whose program is designated as effective must: 1. Within 30 days of receiving an award, provide to the Department a plan to disseminate information about its program to other IHEs; 2. Upon approval by the Department, implement its dissemination plan; and 3. Enhance and further evaluate the effective program during the project period of the grant award. Level 3 is designation as a promising program. An IHE whose program is recognized as promising must: 1. Within 30 days of receiving an award, submit to the Department a plan to enhance and further evaluate its program; 2. Upon approval by the Department, implement its enhancement and evaluation plan; and 3. Within 12 months of award, provide to the Department a report detailing the results of its evaluation. Definitions 1. *Exemplary program* means a program that has a strong theoretical base and demonstrated effectiveness in reducing alcohol or other drug abuse among college students or reducing problems resulting from alcohol or other drug use among college students, using a research design of the highest quality. For the purpose of this grant competition, a research design of the highest quality means an experimental design in which students are randomly assigned to participate in a project being evaluated (treatment group) or not participate in the project (control group). The effect of the project is the difference in outcomes between the treatment and control groups. If strong, experimentally determined evidence of the effectiveness of a program already exists, and the program was implemented on the applicant's campus with fidelity to the research, then a quasi-experimental evaluation of the program's implementation on the applicant's campus may be an acceptable research design. For the purpose of this grant competition, quasi-experimental designs include several designs that attempt to approximate a random assignment design. 2. *Effective program* means a program that has a strong theoretical base and has been evaluated using either an experimental or quasi-experimental research design, with the evaluation results suggesting effectiveness in reducing alcohol or other drug abuse among college students, reducing problems resulting from alcohol or other drug use among college students, reducing risk factors, enhancing protective factors, or resulting in some combination of those impacts. 3. *Promising program* means a program that has a strong theoretical base and for which evidence has been obtained, using limited research methods, that the program may reduce alcohol or other drug abuse among college students, reduce problems resulting from alcohol or other drug use among college students, reduce risk factors, enhance protective factors, or result in some combination of those impacts. For the purpose of this grant competition, limited research methods are methods that include a pre- and post-treatment measurement of the effects of a treatment on a single subject or group of single subjects. Program Authority: 20 U.S.C. 7131. *Applicable Regulations:*
(a)The Education Department General Administrative Regulations (EDGAR) in 34 CFR parts 74, 75, 77, 79, 80, 81, 82, 84, 85, 86, 97, 98, and 99.
(b)The regulations in 34 CFR part 299.
(c)The notice of final priority, definitions, requirements, and selection criteria, published elsewhere in this issue of the **Federal Register** . Note: The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes. Note: The regulations in 34 CFR part 86 apply to institutions of higher education only. II. Award Information *Type of Award:* Discretionary grants. *Estimated Available Funds:* $715,000. Contingent upon the availability of funds and the quality of applications, we may make additional awards later in FY 2008 and FY 2009 and in subsequent years from the list of unfunded applicants from this competition. *Estimated Range of Awards:* $125,000-$175,000. *Estimated Average Size of Awards:* $143,000. *Estimated Number of Awards:* 5. Note: The Department is not bound by any estimates in this notice. *Project Period:* Up to 18 months for projects designated as exemplary or effective, and up to 12 months for projects designated as promising. III. Eligibility Information 1. *Eligible Applicants:* IHEs that offer an associate or baccalaureate degree. *Limitations on Eligibility:*
(a)*Exemplary or effective programs.* The length of time an IHE is ineligible for a subsequent award after receiving recognition for an exemplary or effective program is three years.
(b)*Promising programs.* Programs recognized as promising may be eligible for a new award when their current grant is no longer active. A grant is considered active until the end of the grant's project or funding period, including any extensions of those periods that extend the grantee's authority to obligate funds. A project that fails to achieve exemplary or effective status after a second designation as a promising program may not reapply for three years after its second project period is no longer active. 2. *Cost Sharing or Matching:* This competition does not require cost sharing or matching. IV. Application and Submission Information 1. *Address to Request Application Package:* You can obtain an application package via the Internet or from the Education Publications Center (ED Pubs). To obtain a copy via the Internet, use the following address: *http://www.ed.gov/fund/grant/apply/grantapps/index.html* . You may also access the electronic version of the application at the following Web sites: *http://www.grants.gov* or *http://www.ed.gov/programs/dvpcollege/applicant.html* . To obtain a copy from ED Pubs, write, fax, or call the following: Education Publications Center, P.O. Box 1398, Jessup, MD 20794-1398. Telephone, toll free: 1-877-433-7827. FAX:
(301)470-1244. If you use a telecommunications device for the deaf (TDD), call, toll free: 1-877-576-7734. You can contact ED Pubs at its Web site, also: *http://www.ed.gov/pubs/edpubs.html* or at its e-mail address: *edpubs@inet.ed.gov* . If you request an application from ED Pubs, be sure to identify this program as follows: CFDA number 84.184N. Individuals with disabilities can obtain a copy of the application package in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) by contacting the program contact person listed in this section. 2. *Content and Form of Application Submission:* Requirements concerning the content of an application, together with the forms you must submit, are in the application package for this competition. 3. *Submission Dates and Times:* Applications Available: April 4, 2008. Deadline for Transmittal of Applications: May 19, 2008. Applications for grants under this competition may be submitted electronically using the Grants.gov Apply site ( *http://www.Grants.gov* ), or in paper format by mail or hand delivery. For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery, please refer to section IV. 6. *Other Submission Requirements* in this notice. We do not consider an application that does not comply with the deadline requirements. Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under FOR FURTHER INFORMATION CONTACT in section VII in this notice. If the Department provides an accommodation or auxiliary aid to an individual with a disability in connection with the application process the individual's application remains subject to all other requirements and limitations in this notice. *Deadline for Intergovernmental Review:* July 18, 2008. 4. *Intergovernmental Review:* This competition is subject to Executive Order 12372 and the regulations in 34 CFR part 79. Information about Intergovernmental Review of Federal Programs under Executive Order 12372 is in the application package for this competition. 5. *Funding Restrictions:* The maximum amount an applicant may receive for a project recognized as an exemplary or effective program may be no more than $150,000 plus indirect costs, and a project recognized as a promising program may receive no more than $100,000 plus indirect costs. 6. *Other Submission Requirements:* Applications for grants under this competition may be submitted electronically or in paper format by mail or hand delivery. a. Electronic Submission of Applications. To comply with the President's Management Agenda, we are participating as a partner in the Governmentwide Grants.gov Apply site. The Models of Exemplary, Effective, and Promising Alcohol or Other Drug Abuse Prevention Programs on College Campuses, CFDA Number 84.184N, is included in this project. We request your participation in Grants.gov. If you choose to submit your application electronically, you must use the Governmentwide Grants.gov Apply site at *http://www.grants.gov* . Through this site, you will be able to download a copy of the application package, complete it offline, and then upload and submit your application. You may not e-mail an electronic copy of a grant application to us. You may access the electronic grant application for the Models of Exemplary, Effective, and Promising Alcohol or Other Drug Abuse Prevention Programs on College Campuses Grant Competition at *http://www.grants.gov* . You must search for the downloadable application package for this competition by the CFDA number. Do not include the CFDA number's alpha suffix in your search (e.g., search for 84.184, not 84.184N). Please note the following: • Your participation in Grants.gov is voluntary. • When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation. • Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not consider your application if it is date and time stamped by the Grants.gov system later than 4:30 p.m., Washington, DC time, on the application deadline date. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30 p.m., Washington, DC time, on the application deadline date. • The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov. • You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov at *http://e-Grants.ed.gov/help/GrantsgovSubmissionProcedures.pdf.* • To submit your application via Grants.gov, you must complete all steps in the Grants.gov registration process (see *http://www.grants.gov/applicants/get_registered.jsp* ). These steps include
(1)Registering your organization, a multi-part process that includes registration with the Central Contractor Registry (CCR);
(2)registering yourself as an Authorized Organization Representative (AOR); and
(3)getting authorized as an AOR by your organization. Details on these steps are outlined in the Grants.gov 3-Step Registration Guide (see *http://www.grants.gov/section910/Grants.govRegistrationBrochure.pdf* ). You also must provide on your application the same D-U-N-S Number used with this registration. Please note that the registration process may take five or more business days to complete, and you must have completed all registration steps to allow you to submit successfully an application via Grants.gov. In addition you will need to update your CCR registration on an annual basis. This may take three or more business days to complete. • You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you submit your application in paper format. • If you submit your application electronically, you must submit all documents electronically, including all information you typically provide on the following forms: Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. Please note that two of these forms—the SF 424 and the Department of Education Supplemental Information for SF 424—have replaced the ED 424 (Application for Federal Education Assistance). • If you submit your application electronically, you must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password-protected file, we will not review that material. • Your electronic application must comply with any page-limit requirements described in this notice. • After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application). • We may request that you provide us original signatures on forms at a later date. *Application Deadline Date Extension in Case of Technical Issues With the Grants.gov System:* If you are experiencing problems submitting your application through Grants.gov, please contact the Grants.gov Support Desk, toll free, at 1-800-518-4726. You must obtain a Grants.gov Support Desk Case Number and must keep a record of it. If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice. If you submit an application after 4:30 p.m., Washington, DC time, on the application deadline date, please contact the person listed under FOR FURTHER INFORMATION CONTACT in section VII in this notice and provide an explanation of the technical problem you experienced with Grants.gov, along with the Grants.gov Support Desk Case Number. We will accept your application if we can confirm that a technical problem occurred with the Grants.gov system and that that problem affected your ability to submit your application by 4:30 p.m., Washington, DC time, on the application deadline date. The Department will contact you after a determination is made on whether your application will be accepted. Note: The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system. b. Submission of Paper Applications by Mail. If you submit your application in paper format by mail (through the U.S. Postal Service or a commercial carrier), you must mail the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address: *By mail through the U.S. Postal Service:* U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.184N), 400 Maryland Avenue, SW., Washington, DC 20202-4260; or *By mail through a commercial carrier:* U.S. Department of Education, Application Control Center, Stop 4260, Attention: (CFDA Number 84.184N), 7100 Old Landover Road, Landover, MD 20785-1506. Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1)A legibly dated U.S. Postal Service postmark.
(2)A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3)A dated shipping label, invoice, or receipt from a commercial carrier.
(4)Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education. If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1)A private metered postmark.
(2)A mail receipt that is not dated by the U.S. Postal Service. If your application is postmarked after the application deadline date, we will not consider your application. Note: The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office. c. Submission of Paper Applications by Hand Delivery. If you submit your application in paper format by hand delivery, you (or a courier service) must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.184N), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260. The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays. *Note for Mail or Hand Delivery of Paper Applications:* If you mail or hand deliver your application to the Department—
(1)You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2)The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at
(202)245-6288. V. Application Review Information *Selection Criteria:* The selection criteria for this competition are from the notice of final priority, definitions, requirements, and selection criteria for this program, published elsewhere in this issue of the **Federal Register** and are listed in the application package. VI. Award Administration Information 1. *Award Notices:* If your application is successful, we notify your U.S. Representative and U.S. Senators and send you a Grant Award Notification (GAN). We may notify you informally, also. If your application is not evaluated or not selected for funding, we notify you. 2. *Administrative and National Policy Requirements:* We identify administrative and national policy requirements in the application package and reference these and other requirements in the *Applicable Regulations* section in this notice. We reference the regulations outlining the terms and conditions of an award in the *Applicable Regulations* section in this notice and include these and other specific conditions in the GAN. The GAN also incorporates your approved application as part of your binding commitments under the grant. 3. *Reporting:* At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary in 34 CFR 75.118. The Secretary also may require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to *http://www.ed.gov/fund/grant/apply/appforms/appforms.html.* 4. *Performance Measures:* The Secretary may choose to develop performance measures for the Models of Exemplary, Effective, and Promising Alcohol or Other Drug Abuse Prevention Programs on College Campuses grant competition in accordance with the Government Performance and Results Act (GPRA). If measures are developed, grantees will be asked to provide information that relates to participant outcomes and project management. VII. Agency Contact FOR FURTHER INFORMATION CONTACT: Richard Lucey, Jr., U.S. Department of Education, 400 Maryland Avenue, SW., room 3E335, Washington, DC 20202-6450. Telephone:
(202)205-5471 or by e-mail: *richard.lucey@ed.gov.* If you use a TDD, call the FRS, toll free, at 1-800-877-8339. VIII. Other Information *Alternative Format:* Individuals with disabilities can obtain this document and a copy of the application package in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT in section VII in this notice. *Electronic Access to This Document:* You can view this document, as well as all other documents of this Department published in the **Federal Register** , in text or Adobe Portable Document Format
(PDF)on the Internet at the following site: *http://www.ed.gov/news/fedregister* . To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at
(202)512-1530. Note: The official version of this document is the document published in the **Federal Register** . Free Internet access to the official edition of the **Federal Register** and the Code of Federal Regulations is available on GPO Access at: *www.gpoaccess.gov/nara/index.html* . Dated: March 26, 2008. Deborah A. Price, Assistant Deputy Secretary for Safe and Drug-Free Schools. [FR Doc. E8-6691 Filed 3-31-08; 8:45 am] BILLING CODE 4000-01-P 73 63 Tuesday, April 1, 2008 Presidential Documents Part VIII The President Presidential Determination No. 2008-17 of March 28, 2008—Determinations Under Section 1106(a) of the Omnibus Trade and Competitiveness Act of 1988—Ukraine Title 3— The President Presidential Determination No. 2008-17 of March 28, 2008 Determinations Under Section 1106(a) of the Omnibus Trade and Competitiveness Act of 1988—Ukraine Memorandum for the United States Trade Representative Pursuant to section 1106(a) of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. 2905(a)) (the “Act”), I determine that state trading enterprises account for a significant share of Ukraine's exports and goods that compete with imports into Ukraine. I further determine that such state trading enterprises unduly burden and restrict, or adversely affect, the foreign trade of the United States or the United States economy, or are likely to result in such burden, restriction, or effect. Ukraine is seeking to become a member of the World Trade Organization (WTO). The terms and conditions for Ukraine's accession to the WTO include Ukraine's commitments that it will ensure that all state trading enterprises will make purchases of goods and services that are not intended for governmental use, and sales in international trade in accordance with commercial considerations (including price, quality, availability, marketability, and transportation) and that U.S. firms will have an adequate opportunity, in conformity with customary practice, to compete for such purchases or sales. The obligations that Ukraine will assume under the WTO Agreement, including Ukraine's protocol of accession, meet the requirements of section 1106(b)(2)(A) of the Act (19 U.S.C. 2905(b)(2)(A)), and thus my determinations under section 1106(a) do not require invocation of the nonapplication provisions of the Marrakesh Agreement Establishing the WTO with regard to Ukraine. You are directed to publish this determination in the **Federal Register** . GWBOLD.EPS THE WHITE HOUSE, Washington, March 28, 2008. [FR Doc. 08-1087 Filed 3-31-08; 8:53 am]
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  • Pub. L. 93-638
  • 45 CFR 75
  • 45 CFR 92
  • 25 CFR 900
  • 42 CFR 36.101
  • 45 CFR 74
  • Pub. L. 92-463
  • 44 USC 35
  • 24 CFR 990
  • Pub. L. 110-161
  • 103 Stat. 1987
  • 43 CFR 2
  • 43 CFR 3108.2-3(a)
  • Pub. L. 106-399
  • 2007 CFR 250.107
  • 10 CFR 50
  • 17 CFR 240.19
  • 15 USC 78(f)(b)(5)
  • Pub. L. 106-181
  • Pub. L. 108-176
  • 49 CFR 1.56
  • Pub. L. 106-107
  • 14 CFR 150
  • 15 USC 1392
  • Pub. L. 102-519
  • 49 CFR 564
  • 49 CFR 1152
  • 49 CFR 1105.7
  • 49 CFR 1105.8
  • 49 CFR 1105.11
  • 49 CFR 1105.12
  • 49 CFR 1152.50(d)(1)
  • 49 CFR 1152.27(c)(2)
  • 49 CFR 1152.29
  • 49 CFR 1152.28
  • 49 CFR 1002.2(f)(25)
  • 49 CFR 1152.29(e)(2)
  • 44 USC 3501-3521
  • 44 USC 3501-21
  • Pub. L. 108-173
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U.S.C.§ 3545
U.S.C.§ 2011
U.S.C.§ 552
U.S.C.§ 552a
U.S.C.§ 188
U.S.C.§ 9701
F. App'x215 F.3d 58
F. App'x378 F.3d 1059
F. App'x245 F.3d 434
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