Proposed Rules. Final rule

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BILLING CODE 3510-22-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 226 [Docket No. 070717354-8251-02] RIN 0648-AV73 Endangered and Threatened Species; Designation of Critical Habitat for North Pacific Right Whale AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: We, NMFS, designate critical habitat for the North Pacific right whale in this rulemaking.

The North Pacific right whale was recently listed as a separate, endangered species, and because this was a newly listed entity, we were required to designate critical habitat for it. DATES: This rule is effective on May 8, 2008. ADDRESSES: Comments and materials received, as well as supporting documentation used in the preparation of this final rule, are available for public inspection by appointment duringnormal business hours at the NMFS Alaska Region, 709 W. 9th Street, Juneau, AK 21688.

FOR FURTHER INFORMATION CONTACT: Brad Smith, NMFS Alaska Region

(907)271-5006; Kaja Brix, NMFS, Alaska Region,

(907)586-7235; or Marta Nammack,

(301)713-1401, ext. 180. The final rule, references, and other materials relating to this determination can be found on our website at *http://www.fakr.noaa.gov/* . SUPPLEMENTARY INFORMATION: Background On December 27, 2006, we published a proposed rule (71 FR 77694) to list the North Pacific right whale ( *Eubalaena japonica* ) as an endangered species pursuant to the Endangered Species Act

(ESA)(16 U.S.C. 1531 *et seq.* ), and we listed this species as endangered on March 6, 2008 (73 FR 12024). On October 29, 2007, we published a proposed rule (72 FR 61089) to designate critical habitat for the North Pacific right whale. We proposed the same two areas that we had previously designated as critical habitat for the northern right whale in the North Pacific Ocean (71 FR 38277, July 6, 2006). We now designate these same areas as critical habitat for the North Pacific right whale. A description of, and the basis for, the designation follows. Critical Habitat Designations Under the ESA Section 3 of the ESA defines critical habitat as “(i) the specific areas within the geographical area occupied by the species, at the time it is listed . . . on which are found those physical or biological features

(I)essential to the conservation of the species and which may require special management considerations or protection; and

(II)specific areas outside the geographical area occupied by the species at the time it is listed upon a determination by the Secretary to be essential for the conservation of the species.” Section 3 of the ESA (16 U.S.C. 1532(3)) also defines the terms “conserve,” “conserving,” and “conservation” to mean “to use, and the use of, all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.” In determining what areas meet the definition of critical habitat, 50 CFR 424.12(b) requires that we “consider those physical or biological features that are essential to the conservation of a given species including space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing of offspring; and habitats that are protected from disturbance or are representative of the historical geographical and ecological distribution of a species.” The regulations refine our task by directing us to “focus on the principal biological or physical constituent elements . . . that are essential to the conservation of the species,” and specify that the “known primary constituent elements shall be listed with the critical habitat description.” The regulations identify primary constituent elements

(PCEs)as including, but not limited to: “roost sites, nesting grounds, spawning sites, feeding sites, seasonal wetland or dryland, water quality or quantity, host species or plant pollinator, geological formation, vegetation type, tide, and specific soil types.” An area within the geographic area occupied by the species must contain one or more PCEs to be eligible for designation as critical habitat; an area upon which no PCE is found may not be designated in the hope it will acquire one or more PCEs in the future. Section 4 of the ESA requires that, before designating critical habitat, the Secretary consider economic impacts, impacts on national security, and other relevant impacts of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if the benefits of exclusion outweigh the benefits of inclusion, unless excluding an area from critical habitat will result in the extinction of the species concerned. Once critical habitat is designated, section 7(a)(2) of the ESA requires that each Federal agency, in consultation with and with the assistance of NMFS, ensure that any action authorized, funded, or carried out by such agency is not likely to result in the destruction or adverse modification of critical habitat. Geographical Area Occupied by the Species The ESA defines critical habitat (in part) as areas within the geographical area occupied by the species at the time it was listed under the ESA. Prior to the onset of commercial whaling in 1835, right whales were widely distributed across the North Pacific (Scarff, 1986; Clapham *et al.* , 2004; Shelden *et al.* , 2005). By 1900 they were scarce throughout their range. Japan and the USSR did not sign a League of Nations agreement in 1935 to protect right whales, so they continued right whaling until 1949, when the newly created International Whaling Commission endorsed the ban. After this, 23 North Pacific right whales were legally killed by Japan and the USSR under Article VIII of the International Convention for the Regulation of Whaling (1946), which permits the taking of whales for scientific research purposes. However, it is now known that the USSR illegally caught many right whales in the North Pacific (Doroshenko, 2000; Brownell *et al.* , 2001; Ivashchenko, 2007). By 1973, the North Pacific right whale had been severely reduced by commercial whaling. Sighting data from this remnant population are too sparse to identify the range of these animals in 1973. However, no reason exists to suspect that the right whales that remain alive today inhabit a substantially different range than right whales alive during the time of the Soviet catches; indeed, given the longevity of this species, it is likely that some of the individuals who survived that whaling episode remain alive now. Consequently, recent habitat use is unlikely to be different today. Both the SEBS and the western GOA (shelf and slope waters south of Kodiak) have been the focus of many sightings (as well as the illegal Soviet catches) in recent decades. In general, the majority of North Pacific right whale sightings (historically and in recent times) have occurred from about 40° N to 60° N latitude (lat.). There are historical records from north of 60° N lat., but these are rare and are likely to have been misidentified bowhead whales. North Pacific right whales have on rare occasions been recorded off California and Mexico, as well as off Hawaii. However, as noted by Brownell *et al.* (2001), there is no evidence that either Hawaii or the west coast of North America from Washington State to Baja California were ever important habitats for right whales. Given the amount of whaling effort as well as the human population density in these regions, it is highly unlikely that substantial concentrations of right whales would have passed unnoticed. Furthermore, no archaeological evidence exists from the U.S. west coast suggesting that right whales were the target of local native hunts. Consequently, the few records from this region are considered to represent vagrants. For the foregoing reasons, we determine that the geographical area occupied by the North Pacific right whale at the time of ESA listing extends over a broad area of the North Pacific Ocean, between 120° E and 123° W longitude and 40° N and 60° N latitude, as shown in Figure 1. BILLING CODE 3510-22-S ER08AP08.003 BILLING CODE 3510-22-C Unoccupied Areas ESA section 3(5)(A)(ii) further defines critical habitat to include “specific areas outside the geographical area occupied” if the areas are determined by the Secretary to be “essential for the conservation of the species.” 50 CFR 424.12(e) specifies that NMFS “shall designate as critical habitat areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” We are not designating any specific areas not occupied at the time of listing because insufficient information exists to identify any such areas that are essential to the conservation of the species. Future revisions to the critical habitat of the North Pacific right whale may consider new information which might lead to designation of areas outside the occupied area of these whales. Primary Constituent Elements

(PCEs)NMFS scientists considered PCEs for right whales in the North Pacific during a workshop held during July 2005. Unfortunately, many data gaps exist in our knowledge of the ecology and biology of these whales, and very little is known about the PCEs that might be necessary for their conservation. The life-requisites for such factors as temperatures, depths, substrates, are unknown, or may be highly variable. One certainty is the metabolic necessity of prey species to support feeding by right whales. Examination of harvested whales in the North Pacific and limited plankton tows near feeding right whales in recent years show these whales feed on several species of zooplankton. Several species of large copepods and other zooplankton constitute the primary prey of the North Pacific right whale. Therefore, we have determined that the PCEs for the North Pacific right whale are species of large zooplankton in areas where right whale are known or believed to feed. In particular, these are the copepods *Calanus marshallae* , Neocalanus cristatus, and *N. plumchrus* , and a euphausiid, *Thysanoessa raschii* , whose very large size, high lipid content, and occurrence in the region likely makes it a preferred prey item for right whales (J. Napp, pers. comm.). A description of the critical habitat (below) establishes the presence of these PCEs within the designated areas. In addition to the physical presence of these PCEs within the critical habitat, it is likely that certain physical forcing mechanisms are present which act to concentrate these prey species in densities which allow for efficient foraging by right whales. There may in fact be critical or triggering densities below which right whale feeding does not occur. Such densities are not presently described for North Pacific right whales in the North Pacific, but have been documented in the Atlantic. Accordingly, the critical habitat encompasses areas in which the physical and biological oceanography combines to promote high productivity and aggregation of large copepods into patches of sufficient density for right whales. The PCEs, essential for the conservation of the North Pacific right whale, and these physical forcing or concentrating mechanisms, contribute to the habitat value of the areas designated. Special Management Considerations or Protection An occupied area may be designated as critical habitat if it contains physical or biological features that “may require special management considerations or protection.” 50 CFR 424.02(j) defines “special management considerations or protection” to mean “any methods or procedures useful in protecting physical and biological features of the environment for the conservation of listed species.” We considered whether the copepods and other zooplankton which have been identified as the PCEs for the North Pacific right whale may require special management considerations or protection. The designated critical habitat areas support extensive and multi-species commercial fisheries for pollock, flatfish, cod, various crabs, and other resources (but not salmon, as salmon fisheries in Alaska are restricted to State waters, except in the case of trolling which is permitted in Federal waters but only immediately adjacent to the Southeast Alaska coastline; these areas are not included in the designated critical habitat areas). We believe the identified PCEs would not be harmed by these federally managed fisheries. However, plankton communities and species are vulnerable to physical and chemical alterations within the water column due to both natural processes, as well as pollution from various potential sources, including oil spills and discharges from oil and gas drilling and production. Because of the vulnerabilities to pollution sources, these PCEs may require special management or protection through such measures as conditioning Federal permits or authorizations through special operational restraints, mitigation measures, or technological changes. The 2005 wreck of the M/V *Selendang Ayu* near Unalaska caused the release of approximately 321,000 gallons (1,215,117 litres) of fuel oil and 15,000 gallons (56,781 litres) of diesel into the Bering Sea. That incident has precipitated recommendations for regulations which would improve navigational safety in the area for the protection of the marine environment. While such measures are not targeted towards protecting copepods or zooplankton per se, they would act to conserve these PCEs. PCEs in the Critical Habitat and Related Physical Processes The current abundance of North Pacific right whales is considered to be very low in relation to historical numbers or their carrying capacity, which is not determined. The existence of a persistent concentration of North Pacific right whales found within the SEBS since 1996 is somewhat extraordinary in that it may represent a significant portion of the remaining population. These areas of concentration where right whales feed are characterized by certain physical and biological features which include nutrients, physical oceanographic processes, certain species of zooplankton, and long photoperiod due to the high latitude. These feeding areas, supporting a significant assemblage of the remaining North Pacific right whales, are critical in terms of their conservation value. We have been able to substantiate this conclusion with observations of feeding behavior, direct sampling of plankton near feeding right whales, or records of stomach contents of dead whales. These conclusions underlie the designation of the critical habitat areas shown in Figure 2 and described below. Two areas are designated: an area of the SEBS and an area south of Kodiak Island in the GOA. BILLING CODE 3510-22-S ER08AP08.004 BILLING CODE 3510-22-C Shelden *et al.*

(2005)reviewed prey and habitat characteristics of North Pacific right whales. They noted that habitat selection is often associated with features that influence abundance and availability of a predator's prey. Right whales in the North Pacific are known to prey upon a variety of zooplankton species. Availability of these zooplankton greatly influences the distribution of right whales on their feeding grounds in the SEBS and GOA. Right whales require zooplankton patches of very high density, and zooplankton are typically small and distributed over space and time (Mayo and Marx, 1990). Typical zooplankton sampling is too broad-scale in nature to detect patches of these densities, and directed studies employing fine-scale sampling cued by the presence of feeding right whales are the only means of doing this (Mayo and Marx, 1990). Accordingly, there may be no obvious correlation between the abundance and distribution of prey copepods and euphausiids (as measured by broad-scale oceanographic sampling) and the distribution of right whales (M. Baumgartner, in prep.). In light of this, we must rely upon the whales themselves to indicate the location of important feeding areas in the North Pacific. Aggregations of right whales in high latitudes can be used with high confidence as an indicator of the presence of suitable concentrations of prey, and thus of feeding behavior by the whales. Right whales feed daily during spring and summer, and studies in the North Atlantic have consistently found an association between concentrations of whales and feeding behavior, with dense copepod patches recorded by oceanographic sampling around such groups of whales (Mayo and Marx, 1990; Baumgartner *et al.* , 2003a, 2003b). In the North Atlantic, an analysis of sighting data by NMFS indicated that a density of four or more right whales per 100 nm 2 was a reliable indicator of a persistent feeding aggregation (Clapham and Pace, 2001), and this had been used for Dynamic Area Management fisheries closures to reduce the risk of right whales becoming entangled in fishing gear. While this metric is a reliable indicator of the presence of feeding aggregations in the North Atlantic, it is not necessarily the only metric suitable for application in the North Pacific; the much smaller population of right whales in the eastern North Pacific Ocean typically results in sightings of single animals or pairs. Unlike with larger groups, such small numbers sometimes indicate transient passage through an area and thus cannot be unequivocally linked with feeding behavior. However, while sporadic sightings of right whales in such small numbers generally would not be considered a reliable indication of a feeding area, consistent sightings of right whales - even of single individuals and pairs - in a specific area in spring and summer over a long period of time is sufficient indication that the area is a feeding area containing suitable concentrations of copepods. Therefore, in the absence of data which describe the densities, as well as presence, of the PCEs themselves, sightings of right whales is used here as a proxy for the existence of suitably dense copepod and euphausiid patches and thus to identify the areas proposed herein for designation as critical habitat. Figure 2 depicts the designated critical habitat and the best available sightings data. Gulf of Alaska We designate critical habitat in the GOA (Figure 3), described as an area delineated by a series of straight lines connecting the following coordinates in the order listed: 57° 03′ N/153° 00′ W, 57° 18′ N/151° 30′ W, 57° 00′ N/151° 30′ W, 56° 45′ N/153° 00′ W, and returning to 57° 03′ N/153 00′ W. The area described by these boundaries lies completely within the waters of the United States and its Exclusive Economic Zone

(EEZ)and outside of waters of the State of Alaska. State waters extend seaward for 3 nautical miles from the shoreline; very few sightings occurred within State waters. The best available sightings data on right whales in this area totaled 5 out of 14 encounters in the GOA. Southeastern Bering Sea We also designate critical habitat in the Bering Sea (Figure 4), described as an area delineated by a series of straight lines connecting the following coordinates in the order listed: 58° 00′ N/168° 00′ W, 58° 00′ N/163° 00′ W, 56° 30′ N/161° 45′ W, 55° 00′ N/166° 00′ W, 56° 00′ N/168° 00′ W and returning to 58° 00′ N/168° 00prime; W. The area described by these boundaries lies completely within the waters of the United States and its EEZ and outside of waters of the State of Alaska. State waters extend seaward for 3 nautical miles from the shoreline. Because very few sightings occurred within 3 nautical miles of shore, State waters are not included in the proposed critical habitat. The best available information on right whale encounters occurring totaled 182 within this area, out of 184 encounters north of the Aleutian Islands. Physical Processes and the Existence of PCEs Within the Critical Habitat Southeastern Bering Sea Slope Waters The Bering Sea slope is a very productive zone, sometimes referred to as the “Greenbelt”, where annual primary production can exceed that on the adjacent shelf and basin by 60 percent and 270 percent, respectively (Springer *et al.* , 1996). Physical processes at the shelf edge, such as intensive tidal mixing, eddies, and up-canyon flow bring nutrients to the surface, thereby supporting enhanced productivity and elevated biomass of phytoplankton, zooplankton, and fish. Western North Pacific right whales have been observed in association with oceanic frontal zones that produce eddies southeast of Hokkaido Island, Japan, and southeast of Cape Patience (Mys Terpeniya), Sakhalin Island, in the Okhotsk Sea (Omura *et al.* , 1969). Whether the Bering Slope Current, or eddies shed from it, support production or entrain right whale prey is unknown. From August to October in 1955 and 1956, Soviet scientists observed aggregations of Calanus spp. between the Pribilof Islands and the Aleutian Islands (around 170° W long.) that were identified as *C. finmarchicus* , though, as mentioned above, were probably *C. marshallae* (Klumov, 1963). Flint *et al.*

(2002)also report high concentrations of *C. marshallae* at frontal zones near the Pribilof Islands, with especially high biomass noted for the subthermohaline layer. This oceanographic front effectively separates slope and outer shelf *Neocalanus* spp. from the inshore middle shelf community of *C. marshallae* (Vidal and Smith, 1986). Right whales were found on both sides of this frontal zone (that coincides with the shelf break at 170 m) during both the 19 th and 20 th centuries. This is similar to the habitat described by Baumgartner *et al.* (2003a) for right whales feeding in the North Atlantic. Six right whales that were caught under scientific permit in late July-early August 1962-63 in Bering Sea slope waters had exclusively consumed *N. cristatus* (Omura *et al.* , 1969). Although oceanic species such as *Neocalanus* spp. usually enter diapause and migrate to depths greater than 200 m by late summer in the slope waters of the Bering Sea (Vidal and Smith, 1986), right whales may still be able to utilize these resources by targeting regions where the bottom mixed layer forces the zooplankton into shallower, discrete layers (e.g., Baumgartner *et al.* , 2003a). Southeastern Bering Sea Middle-Shelf Waters The SEBS shelf has been the focus of intense oceanographic study since the late 1970s (e.g., Schumacher *et al.* , 1979; Coachman, 1986; Napp *et al.* , 2000; Hunt *et al.* , 2002a; Hunt *et al.* , 2002b), largely due to the considerable commercial fishing effort in the area (National Research Council, 1996). Coachman

(1986)described the now well-established hydrographic domains of the inner, middle, and outer shelf, separated by a front or transition zone at roughly the 50 m (inner front) and 100 m (outer front) isobaths. During the 1990s, research focused on these domains demonstrated dynamic advection of nutrient-rich Bering slope water onto the shelf in both winter and summer via eddies, meanders, and up-canyon flow (Schumacher and Stabeno, 1998; Stabeno and Hunt, 2002). These intrusions of nutrient-rich water, physical factors related to water column stratification, and long summer day length results in a very productive food web over the SEBS shelf (e.g. Livingston *et al.* ,1999; Napp *et al.* , 2002; Coyle and Pinchuk, 2002; Schumacher *et al.* , 2003). Specifically, copepod species upon which right whales feed (e.g., *C. marshallae* , *Pseudocalanus* spp., and *Neocalanus* spp.) are among the most abundant of the zooplankton sampled over the middle shelf (Cooney and Coyle, 1982; Smith and Vidal, 1986). Small, dense patches (to >500 mg per cubic meter) of euphausiids ( *T. raschii* , *T. inermis* ), potential right whale prey, have also been reported for waters near the SEBS inner front (Coyle and Pinchuk, 2002). Zooplankton sampled near right whales seen in the SEBS in July 1997 included *C. marshallae* , *P. newmani* , and *Acartia longiremis* (Tynan, 1998). *C. marshallae* was the dominant copepod found in these samples as well as samples collected near right whales in the same region in 1999 (Tynan *et al.* , 2001). *C. marshallae* is the only “large” calanoid species found over the SEBS middle shelf (Cooney and Coyle, 1982; Smith and Vidal, 1986). Concentrations of copepods were significantly higher in 1994-98 than in 1980-81 by at least an order of magnitude (Napp *et al.* , 2002). Tynan *et al.*

(2001)suggest that this increased production may explain the presence of right whales in middle shelf waters. However, at least three right whales were observed in 1985 in the same location as the middle shelf sightings reported in the late 1990s (Goddard and Rugh, 1998). Gulf of Alaska The central GOA is dominated by the Alaskan gyre, a cyclonic feature that is demarcated to the south by the eastward flowing North Pacific Current and to the north by the Alaska Stream and Alaska Coastal Current (ACC), which flow westward near the shelf break. The bottom topography of this region is rugged and includes seamounts, ridges, and submarine canyons along with the abyssal plain. Strong semi-diurnal tides and current flow generate numerous eddies and meanders (Okkonen *et al.* , 2001) that influence the distribution of zooplankton. Copepods are the dominant taxa of mesozooplankton found in the GOA and are patchily distributed across a wide variety of water depths. In northern GOA shelf waters, the late winter and spring zooplankton is dominated by calanoid copepods ( *Neocalanus* spp.), with a production peak in May, a cycle that appears resistant to environmental variability associated with El Nino Southern Oscillation

(ENSO)(Coyle and Pinchuk, 2003). In oceanic waters (50° N lat., 145° W long.), *N. plumchrus* dominate (Miller and Nielsen, 1988; Miller and Clemons, 1988) and have demonstrated dramatic shifts in the timing of annual peak biomass from early May to late July (Mackas *et al.* , 1998). From late summer through autumn, *N. plumchrus* migrate to deep water ranging from 200 m to 2000 m depending on location within the GOA (Mackas *et al.* , 1998). The three right whales caught under scientific permit on August 22, 1961, south of Kodiak Island had all consumed *N. plumchrus* (Omura *et al.* , 1969), potentially by targeting areas where adult copepods remained above 200 m (e.g. Baumgartner *et al.* , 2003a). The area designated as critical habitat within the SEBS presents several similarities to that designated within the GOA. Both areas are influenced by large eddies, submarine canyons, or frontal zones which enhance nutrient exchange and act to concentrate prey. These areas lie adjacent to major ocean currents (the ACC and the Aleutian ocean passes) and are characterized by relatively low circulation and water movement (P. Stabeno, pers. com.). Both critical habitat areas contain the designated PCEs and support feeding by North Pacific right whales. Right Whale Sightings as a Proxy for Locating the PCEs As noted above, consistent sightings of right whales - even of single individuals and pairs - in a specific area in spring and summer over an extended period of time can be used with high confidence as an indicator of the presence of the PCEs in a feeding area. We have used recent sighting records to make this determination because these records are a more reliable indicator of current distribution of feeding whales than historical sightings, especially given that most of the latter relate to animals that were removed from the population by whaling and are thus no longer extant. Of the 184 recent right whale sightings reported north of the Aleutian Islands, 182 occurred within the specific area designated as critical habitat in the Bering Sea. Since 1996, right whales have been consistently sighted in this area over a period of years during the spring and summer feeding seasons. For example, NMFS surveys alone recorded between two and four sightings in 1996 (Goddard and Rugh, 1998), 13 sightings in 2000 (Le Duc *et al.* , 2004) and over 23 sightings in 2004. Single right whales as well as pairs and aggregations of up to five animals were sighted during this period, and all sightings were within 100 nm 2 of one another. Based on consideration of these factors, we conclude that the right whale sightings in the specific area in the Bering Sea described in Figure 4 are a suitable proxy for the presence of the PCEs in this area. Recent sightings of right whales are fewer in number in the GOA than in the Bering Sea. However, three individuals were sighted recently in the critical habitat area designated in the GOA. These sightings occurred at a time when right whales typically feed in the North Pacific Ocean. In July 1998, a single right whale exhibiting behavior consistent with feeding activity was observed among a group of about eight humpback whales (Waite *et al.* , 2003). In August 2004, a NMFS researcher observed a single right whale among a group of humpbacks. In August 2005, a NMFS researcher reported yet another sighting of a right whale within 250 to 500 meters of groups of humpback and fin whales. Acoustic monitoring of the area conducted in summer 2000 recorded what appeared to be right whale calls in the area on September 6 (Waite *et al.* , 2003). Compared to the Bering Sea sightings, the GOA right whale sightings do not provide as strong an indication of feeding right whales. However, individual right whales have been directly observed in 1998, 2004, and 2005 and detected acoustically in 2000 during the spring and summer feeding seasons in the specific area in the GOA described in Figure 3. It is also instructive that one of these animals was exhibiting feeding behavior at the time it was observed. Based on consideration of these factors, we conclude that the right whale sightings in the specific area in the GOA described in Figure 3 are a reasonably reliable proxy for the presence of the PCEs in this area. Response to Comments *Comment 1:* A commenter supports our February 2002 finding that critical habitat cannot be designated for the (North Pacific right whale) because the essential biological requirements of the population were not sufficiently understood. *Response:* In October 2000, we were petitioned to revise the critical habitat for the northern right whale by designating an additional area in the North Pacific Ocean. In February 2002, we announced our decision that critical habitat could not be designated at that time because the essential biological and habitat requirements of the population were not sufficiently understood. However, in June 2005, a Federal court found this reasoning invalid and remanded the matter to us for further action ( *Center for Biological Diversity* v. *Evans* , Civ. No. 04-4496, N.D. Cal. June 14, 2005). In compliance with that order, we subsequently revised the northern right whale's critical habitat by designating areas within the Gulf of Alaska

(GOA)and Bering Sea as critical habitat under the ESA. We believe that relating the presence of feeding concentrations of right whales in the North Pacific Ocean to habitat attributes was, and remains, an appropriate basis upon which to designate critical habitat for the North Pacific right whale. *Comment 2:* There is no supporting evidence that:

(1)concentrations of sightings are not due to sampling area;

(2)concentration of Primary Constituent Elements are distinctly different in the designated areas; or

(3)the population of the North Pacific right whale shows any specific habitat preference. *Response:* Survey effort directed toward right whales has not been evenly distributed throughout their range. This is largely due to their very small population size, very large range, and limits on research funding. The area in the southeastern Bering Sea

(SEBS)where right whales have often been observed since 1996 has received relatively greater survey effort. However, we are required to base critical habitat designations using the best scientific data available, including survey effort, and we have done so here. We believe the described PCE (zooplankton species) concentrations are distinctly different in the designated areas. Our scientists concluded that aggregations of right whales in high latitudes can be used with high confidence as an indicator of the presence of suitable concentrations of prey, and thus of feeding behavior by the whales. Shelden *et al.*

(2005)reviewed prey and habitat characteristics of northern right whales in the North Pacific and noted that habitat selection is often associated with features that influence abundance and availability of the whales' prey. Right whales in the North Pacific are known to prey upon a variety of zooplankton species. Availability of these zooplankton greatly influences the distribution of these whales on their feeding grounds in the SEBS and GOA. Because few data exist to describe the concentrations of these primary constituent elements between areas, we must rely upon the whales themselves to indicate the location of such concentrations, which are important feeding areas in the North Pacific. Regarding habitat preference, right whales feed daily during spring and summer, and studies in the North Atlantic have consistently found an association between concentrations of whales and feeding behavior, with dense zooplankton patches recorded by oceanographic sampling around such groups of whales. In the North Pacific, we believe the persistent presence of right whales within a certain area during summer months strongly indicates the presence of zooplankton concentrations in right whale feeding grounds. *Comment 3:* The proposed critical habitat designations fail to provide for recovery, so the designation should include unoccupied right whale habitat. *Response:* Section 3(5)(A)(i) of the ESA requires us to identify specific areas within the geographical area occupied by the species that contain physical or biological features that may require special management considerations or protection. Section 3(5)(A)(ii) requires that specific areas outside the geographical area occupied by the species only fall within the definition of critical habitat if the Secretary determines that the area is essential for conservation. Our regulations further provide that we will designate unoccupied areas “only when a designation limited to [the species'] present range would be inadequate to ensure the conservation of the species (50 CFR 424.12(e)).” We found no information that would support designation of critical habitat in unoccupied areas. While historic data include sightings and other records of North Pacific right whales outside of the geographic area occupied by the species at the time it was listed, we do not have information allowing us to determine that the specific areas designated as critical habitat within the geographical area occupied by the species are inadequate for conservation, and that other unoccupied areas are essential for conservation. *Comment 4:* The extent of the areas proposed for designation as critical habitat in the North Pacific Ocean is not sufficient to provide for the recovery of the northern right whale. NMFS should also designate as critical habitat those areas which were historically used by right whales in the North Pacific. NMFS should provide critical habitat designations that are over-inclusive, rather than under-inclusive. *Response:* Our ability to identify critical habitat as defined in the ESA is limited by the level of information available to describe the biology and ecology of the North Pacific right whale. We have identified two specific areas within which are found biological features essential to the conservation of the species and which may require special management considerations or protection. The available scientific information on this species limits our ability to identify any additional specific areas meeting the definition of critical habitat. We anticipate modifications to the present designation may occur as more scientific information becomes available. For example, as we gather more information, the designation may be revised to encompass:

(1)additional areas in which zooplankton concentrations are found to occur; or

(2)the physical or biological features that comprise suitable calving grounds. *Comment 5:* The precautionary principle requires NMFS to designate other areas with similar features or habitat conditions as critical habitat. *Response:* It is unclear what “similar features” the commenter refers to here. We have used recent sighting records of feeding right whales as a proxy for the location of PCEs necessary to describe critical habitat. The ESA does not permit designation of specific areas containing features “similar” to the PCEs identified. The PCEs must be found in designated areas. Research on northern right whales indicates that these animals are able to locate prey in densities needed to meet their metabolic needs. Recent research indicates that right whales are feeding specialists that require exceptionally high densities of prey. The physical and biological parameters necessary to produce these “lenses” of highly concentrated zooplankton in the North Pacific are not understood. While other areas in the North Pacific may contain features that provide for the production of zooplankton and that may act as forcing mechanisms for the concentration of these zooplankton, we currently lack information as to whether the features in those areas actually concentrate the prey into aggregations sufficiently dense to encourage and sustain feeding by right whales. Similarly, we do not have sufficient information to characterize the areas designated as critical habitat based on other physical or biological characteristics. Lacking such information, we rely on the presence of zooplankton, as evidenced by recent observations of feeding right whales, to identify critical habitat for the North Pacific right whale. *Comment 6:* The primary constituent elements should be revised to include those habitat components that are essential for the primary biological needs of feeding, reproducing, resting, and migrating, and include all marine waters, along with associated marine aquatic flora and fauna in the water column, and the underlying marine benthic community. *Response:* As stated above, existing scientific information is not sufficient to describe the essential habitat components for many of the biological needs identified in the comment. For instance, the calving areas of the North Pacific right whales remain unknown, making it impossible to describe the essential features of such habitat. As noted in the previous response, we do not have sufficient information at this time to characterize the areas designated as critical habitat based on other physical or biological characteristics. *Comment 7:* The proposed critical habitat designation is inconsistent in basing designation on sighting effort, which is not consistent over the range of the North Pacific right whale. NMFS also fails to include historical data which show concentrations of North Pacific right whales in other areas that can be assumed to have important habitat attributes. The designation should be expanded. Specifically, this should include the SEBS, including the southern portion of the shelf break and the area of high prey and whale concentration to the west of the shelf break. *Response:* The ESA defines critical habitat, in part, as those areas occupied by the species at the time of listing on which the identified PCEs are found. We have insufficient basis to conclude that the PCEs are found in other areas, or occurred in the past century. The current sighting data are the best available data that can be used to determine that the PCEs are found on the designated areas. We considered the utility of historic data in identifying and designating critical habitat. Many records of the commercial whalers are general in nature and do not provide specific locations, information on the numbers of whales present at the time of the sighting or harvest, or descriptions of their behavior (e.g., whether the sightings indicated feeding behavior). Therefore, we concluded that the more recent sightings data from the time of listing represented the best evidence of the current presence of the PCEs in specific feeding areas. *Comment 8:* NMFS data demonstrate right whales are found through Unimak Pass and eastward to Kodiak Island. These waters also contain important features or serve important biological needs and should be added to the areas proposed for designation. *Response:* We have few data describing the migratory movements of right whales in the North Pacific Ocean. While it is likely right whales move through major ocean passes, we cannot determine at this time which passes right whales use. We will continue to collect information on the right whale's habitat use to identify migration corridors and determine whether PCEs are found within these areas. *Comment 9:* More research is needed to describe PCEs for the North Pacific right whale. *Response:* The NMFS National Marine Mammal Laboratory and other NOAA components are now conducting research on the North Pacific right whale and its habitat. We understand that there is a need to better identify and describe the habitat for these whales, along with their basic biology. We will continue to conduct and advocate research in this area. Activities That May Be Affected by This Designation Section 4(b)(8) of the ESA requires that we evaluate briefly and describe, in any proposed or final regulation to designate critical habitat, those activities involving a Federal action that may adversely modify such habitat or that may be affected by such designation. A wide variety of activities may affect critical habitat and, when carried out, funded, or authorized by a Federal agency, require that an ESA section 7 consultation be conducted. Such activities include, but are not limited to, oil and gas leasing and development on the Outer Continental Shelf (OCS), Federal management of high seas fisheries in territorial waters and the EEZ of the United States, dredge and fill, mining, pollutant discharges, other activities authorized or conducted by the Army Corps of Engineers and the Environmental Protection Agency (EPA), and military training exercises and other functions of the U.S. Armed Forces. This designation of critical habitat will provide these agencies, private entities, and the public with clear notification of the designation of critical habitat for North Pacific right whales and the boundaries of the habitat. This designation will also assist these agencies and others in evaluating the potential effects of their activities on critical habitat and in determining if section 7 consultation with NMFS is required. Exclusion Process Section 4 (b)(2) of the ESA states that critical habitat shall be designated after taking into consideration its economic impact, the impact on national security, and any other relevant impact. Any particular area may be excluded from critical habitat designation if the benefits of exclusion are found to outweigh those of inclusion, unless such exclusion would result in the extinction of the species. We will apply the statutory provisions of the ESA, including those in section 3 that define “critical habitat” and “conservation” to determine whether a proposed action might result in the destruction or adverse modification of critical habitat. Based upon the best available information, it appears there exists some probability of oil or gas exploration activities within (or immediately adjacent to) the North Pacific right whale critical habitat within the next 10 years. There are no commercial production facilities in operation, currently under development, nor permitted for future development, within these critical habitat areas. As only exploratory activities are expected within the next 10 years, there is little expectation that Federal actions in the oil and gas sector will have the potential to destroy or adversely modify the critical habitat within the analytical time horizon. While we expect to consult annually on fishery related proposed actions that may affect the critical habitat, none of these actions would be expected to destroy or adversely modify the critical habitat; thus, none would be expected to result in imposition of costs on commercial fishery participants. Because fisheries do not target or affect the PCEs for the North Pacific right whale, no fishing or related activity (e.g., at-sea processing, transiting) would be expected to be restricted or otherwise altered as a result of critical habitat. This action is anticipated to result in consultations with EPA on seafood processing waste discharges; with the DoD on military “underway training” activities it authorizes; and with the U.S. Coast Guard

(USCG)and MMS on approvals of oil spill response plans, among others. It is unlikely that these activities will destroy or adversely modify the critical habitat; thus, no mandatory modifications would be required. It follows that no costs, beyond the small costs attributable to inter-agency (occasionally intra-agency) consultation, result from this designation. As explained in the impacts analysis prepared for this action, some larger benefit accrues to society as a result of designation, including the educational value derived from identification and designation of the critical habitat areas within which the PCEs are found. Thus we believe that the benefits of exclusion are outweighed by the benefits of inclusion. Our analysis (see ADDRESSES) did not find any specific areas which merit such exclusion in consideration of economics, nor have we determined that national security interests or other relevant impacts warrant the exclusion of any specific areas from this designation. The results of our 4(b)(2) analysis are further summarized in the CLASSIFICATION section below. Classification National Environmental Policy Act

(NEPA)We have determined that we need not prepare environmental analyses for critical habitat designations made pursuant to the ESA. See *Douglas County* v. *Babbitt* , 48 F.3d 1495 (9th Cir. 1995), cert. denied, 516 U.S. 1042 (1996). Regulatory Flexibility Act

(RFA)Critical habitat designations are subject to the RFA. Under the RFA (5 U.S.C. 601 *et seq.* , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of proposed rulemaking, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). We have prepared an initial regulatory flexibility analysis

(IRFA)for the proposed rule and a final regulatory flexibility analysis

(FRFA)for this final rule. The FRFA incorporates the IRFA and any comments received on the economic impacts of the rule. These documents are available upon request (see ADDRESSES ). A summary of the analysis follows. The small entities that may be directly regulated by this action are those that seek formal approval (e.g., a permit) from, or are otherwise authorized by, a Federal agency to undertake an action or activity that “may affect” critical habitat for the North Pacific right whale. Submission of such a request for a Federal agency's approval, from a small entity, would require that agency (i.e., the ' action agency') to consult with NMFS (i.e., the 'consulting agency'). Consultations vary from simple to complex, depending on the specific facts of each action or activity for which application is made. Attributable costs are directly proportionate to complexity. In the majority of instances projected to take place under the proposed critical habitat designation, these costs are expected to accrue solely to the Federal agencies that are party to the consultation. In only formal consultations might it be expected that a private sector applicant could potentially incur costs directly attributable to the consultation process itself. Furthermore, if destruction or adverse modification of critical habitat is found at the conclusion of formal consultation, the applicant must implement modifications to avoid such effects. These modifications could result in adverse economic impacts. An examination of the Federal agencies with management, enforcement, or other regulatory authority over activities or actions within, or immediately adjacent to, the critical habitat area indicated that potential action agencies may include: the EPA, USCG, DoD, MMS, and NMFS. Activities or actions with a nexus to these Federal agencies which are expected to require consultation include: EPA permitting of seafood processing waste discharges at-sea; USCG and MMS oil spill response plan approval, as well as emergency oil spill response; DoD authorization of military training activities in the Bering Sea and Aleutian Islands

(BSAI)and GOA; MMS leasing activity, oil and gas exploration and production permitting, and NMFS fishery management actions in the BSAI and GOA. A 10-year “post-designation” analytical horizon was adopted, during which time we may reasonably expect to consult an estimated 27 times on critical habitat-related actions with one or more of the action agencies identified above. The majority of the consultations are expected to be “informal,” projected to represent approximately 52 percent of the total. The more complex and costly “formal” consultations are projected to account for perhaps 37 percent, while the simplest and least costly “pre-consultations” are expected to account for 11 percent of the total. These figures reflect the best estimates information and experience can presently provide. On the basis of the underlying biological, oceanographic, and ecological science used to identify the PCEs that define critical habitat for the North Pacific right whale, as well as the foregoing assumptions, empirical data, historical information, and accumulated experience regarding human activity in the BSAI and GOA, it is believed that only OCS oil and gas exploration and production has the potential, albeit relatively small, to “destroy or adversely modify” right whale critical habitat. As previously indicated, MMS has authority over OCS oil and gas permitting. An examination of published information from the MMS Alaska Region reveals that three MMS OCS planning areas overlap some portion of the right whale critical habitat areas. Further, MMS sources indicate that in only one of these has there been any exploratory well drilling (i.e., St. George Basin). Ten exploratory wells were permitted, all of which were completed in 1984 and 1985 (with no subsequent associated exploration activity). It appears that there has been no recent OCS oil and gas activity in and adjacent to the areas designated as critical habitat. MMS reported no planned or scheduled OCS lease sales for these areas through 2007 (the end of the last 5-year Lease-Sale planning cycle). However, both seismic acquisition and leasing took place in the adjacent North Aleutian Basin Planning Area through Sale 92 held in 1988. Leases were held until 1995, when a “buy-back” settlement was reached between leaseholders and the Federal government. There are no current OCS lease holdings in the St. George Basin or North Aleutian Basin Planning Areas. In January 2007, the President modified the Presidential withdrawal for the North Aleutian Basin, allowing the Secretary of the Interior to offer this OCS planning area for leasing during the next 5-year OCS leasing program (2007- 2012). The 2007-2012 program now includes a lease sale in the North Aleutian Basin to be held in 2011. MMS may also offer a sale in the North Aleutian Basin which would be confined to a small portion of the planning area previously offered during lease sale 92 in 1988. When MMS records were consulted as to the identity of the entities that previously held lease rights to the wells in the St. George Basin, six businesses were listed for the ten permitted exploratory wells. These include: SHELL Western E&P Inc. (2 wells); ARCO Alaska Inc. (3 wells); EXXON Corp. (2 wells); Mobile Oil Corp. (1 well) (now merged with EXXON); GULF Oil Corp. (1 well); and CHEVRON USA Inc. (1 well). MMS records also indicate that the following nine companies submitted bids, jointly or individually, on blocks in the North Aleutian Basin under lease sale 92 held in 1988: Chevron, Unocal, Conoco, Murphy, Odeco, Amoco, Shell, Mobil, and Pennzoil. These data were last updated, according to the MMS website, on March 17, 2005. It would appear that none of these entities could reasonably be characterized as “small entities” for RFA purposes. All are widely recognized multi-national corporations and employ more than “500 full-time, part-time, temporary, or any other category of employees, in all of their affiliated operations worldwide” (the criterion specified by SBA for assessing entity size for this sector). The preferred alternative was compared to the mandatory “No Action” (or status quo) alternative. In addition, a third alternative was analyzed and its expected benefits and costs contrasted with the status quo and preferred alternatives. That alternative was based upon the proposed areas of the Bering Sea identified in an October 2000 petition that requested critical habitat be designated for the northern right whale within the North Pacific Ocean. The action does not impose new recordkeeping or reporting requirements on small entities. No comments were received on the IRFA identifying analytical deficiencies or objecting to the reported RFAA interpretations and conclusions, or on the economic impacts of the rule. Regulatory Planning and Review - Executive Order (E.O.) 12866 This rule to designate critical habitat for the North Pacific right whale has been determined to be significant for purposes of Executive Order (E.O.) 12866. As part of our exclusion process under section 4(b)(2) of the ESA, the economic benefits and costs of the proposed critical habitat designations are described in our economic report. Data are not available to express all costs and benefits of designation in monetary terms. Indeed, many costs and benefits accrue outside of traditional markets and, therefore, are not typically associated with a monetary measure (e.g., subsistence activities). While these benefits and costs cannot be either monetized nor quantified, they are nonetheless important to a full evaluation and understanding of the designation. These benefits and costs have been fully characterized in qualitative terms. Application of a benefit/cost framework is fully consistent with E.O. 12866. This rule designates as critical habitat for the North Pacific right whale the same critical habitat that was designated for the northern right whale in the eastern North Pacific Ocean in 2006 (71 FR 38227; July 6, 2006). The analysis provided largely mirrors the analysis provided in the 2006 rulemaking, updated as necessary to account for new information, and does not result in any substantive changes to the analytical conclusions. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) This final rule does not contain new or revised information collection for which OMB approval is required under the Paperwork Reduction Act. 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. Federalism E.O. 13132 requires agencies to take into account any federalism impacts of regulations under development. It includes specific consultation directives for situations where a regulation will preempt state law, or impose substantial direct compliance costs on state and local governments (unless required by statute). Neither of these circumstances is applicable to this critical habitat designation. In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual State and Federal interest, we provided the proposed rules to the relevant state agencies in each state in which the North Pacific right whale is believed to occur, and these state agencies were invited to comment. We have requested information from, and will coordinate development of, the critical habitat designation with appropriate State resource agencies in Alaska. The designation may have some benefit to State and local resource agencies in that the areas essential to the conservation of the species are more clearly defined, and the PCEs of the habitat necessary to the survival of the North Pacific right whale are specifically identified. Government-to-Government Relationship With Tribes - E.O. 13175 The longstanding and distinctive relationship between the Federal and tribal governments is defined by treaties, statutes, executive orders, judicial decisions, and agreements, which differentiate tribal governments from the other entities that deal with, or are affected by, the Federal Government. This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Indian Tribes and the application of fiduciary standards of due care with respect to Indian lands, tribal trust resources, and the exercise of tribal rights. E.O. 13175 - Consultation and Coordination with Indian Tribal Governments- outlines the responsibilities of the Federal Government in matters affecting tribal interests. We have determined the designation of critical habitat for the North Pacific right whale in the North Pacific Ocean will not have tribal implications, nor affect any tribal governments or issues. None of the designated critical habitat includes tribal lands, affects tribal trust resources, or affects the exercise of tribal rights. Military Lands The Sikes Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete, by November 17, 2001, an Integrated Natural Resource Management Plan. The National Defense Authorization Act for Fiscal Year 2004 (Public Law No. 108-136) amended the ESA to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(I) of the ESA (16 U.S.C. 1533(a)(3)(B)(I)) now provides: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” We have determined no military lands would be impacted by this proposed rule. Executive Order 13211. On May 18, 2001, the President issued an Executive Order (E.O.) on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking any action that promulgates or is expected to lead to the promulgation of a final rule or regulation that

(1)is a significant regulatory action under E.O. 12866 and

(2)is likely to have a significant adverse effect on the supply, distribution, or use of energy. We have considered the potential impacts of this action on the supply, distribution, or use of energy, and we find the designation of critical habitat will not have impacts that exceed the thresholds identified above. Unfunded Mandates Reform Act (2 U.S.C. 1501 *et seq.* ) In accordance with the Unfunded Mandates Reform Act, we make the following findings: This final rule designating critical habitat for the North Pacific right whale 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, 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; AFDC 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 ESA, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat. While non-Federal entities who 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, the legal duty to avoid destruction or adverse modification of critical habitat is borne by 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 the critical habitat designation shift the costs of the large entitlement programs listed above to State governments. Due to the prohibition against take of this species both within and outside of the designated areas, we do not anticipate that this final rule will significantly or uniquely affect small governments. Thus, a Small Government Agency Plan is not required. Takings In accordance with E.O. 12630, this final rule does not have significant takings implications. Under E.O. 12630, “Actions undertaken by governmental officials that result in a physical invasion or occupancy of private property, and regulations imposed on private property that *substantially affect its value or use* , may constitute a taking of property” [emphasis added]. The critical habitat designation can not be expected to substantially affect the value or use of property. A takings implication assessment is not required. The designation of critical habitat confers the ESA section 7 protection against “the destruction or adverse modification of [critical] habitat.” The designation of critical habitat in this rule affects only Federal agency actions, and will not increase or decrease the current restrictions on private property concerning take of right whales. Private lands do not exist within or near the designated critical habitat and therefore would not be affected by this action. Civil Justice Reform In accordance with E.O. 12988, the Department of Commerce has determined that this final rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the E.O. We are designating critical habitat in accordance with the provisions of the ESA. This final rule uses standard property descriptions and identifies the PCEs within the designated areas to assist the public in understanding habitat needs of North Pacific right whale. References Cited A complete list of all references cited in this rulemaking is available upon request from the NMFS (see ADDRESSES ). List of Subjects in 50 CFR Part 226 Endangered and threatened species. Dated: April 1, 2008. James W. Balsiger, Acting Assistant Administrator for Fisheries, National Marine Fisheries Service. For the reasons set out in the preamble, we amend part 226, title 50 of the Code of Regulations as set forth below: PART 226—DESIGNATED CRITICAL HABITAT 1. The authority citation of part 226 continues to read as follows: Authority: 16 U.S.C. 1533. 2. In § 226.203, the section heading is revised, the introductory text is removed, paragraph

(a)heading is removed, paragraph

(b)is removed in its entirety, and paragraphs (a)(1), (a)(2), and (a)(3) are redesignated as paragraphs (a), (b), and (c), respectively, to read as follows: § 226.203 Critical habitat for northern right whales. 3. Section 226.215 is added to read as follows: § 226.215 Critical habitat for the North Pacific Right Whale ( *Eubalaena japonica* ).

(a)*Primary Constituent Elements.* The primary constituent elements of the North Pacific right whale are the copepods *Calanus marshallae* , *Neocalanus cristatus* , and *N. plumchris* , and the euphausiid *Thysanoessa raschii* , in areas of the North Pacific Ocean in which North Pacific right whales are known or believed to feed, as described in paragraphs

(b)and

(c)of this section.

(b)*Bering Sea.* An area described by a series of straight lines connecting the following coordinates in the order listed: 58° 00′ N/168° 00′ W 58° 00′ N/163° 00′ W 56° 30′ N/161° 45′ W 55° 00′ N/166° 00′ W 56° 00′ N/168° 00′ W 58 °00′ N/168° 00′ W.

(c)Gulf of Alaska. An area described by a series of straight lines connecting the following coordinates in the order listed: 57° 03′ N/153° 00′ W 57° 18′ N/151° 30′ W 57° 00′ N/ 151° 30′ W 56° 45′ N/153° 00′ W 57° 03′ N/153° 00′ W.

(d)Maps of critical habitat for the North Pacific right whale follow: BILLING CODE 3510-22-S ER08AP08.005 ER08AP08.006 [FR Doc. E8-7233 Filed 4-7-08; 8:45 am] BILLING CODE 3510-22-C 73 68 Tuesday, April 8, 2008 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28160; Directorate Identifier 2007-NM-006-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 757-200 and 757-300 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Supplemental notice of proposed rulemaking (NPRM); reopening of comment period. SUMMARY: The FAA is revising an earlier proposed airworthiness directive

(AD)for certain Boeing Model 757-200 and 757-300 series airplanes. The original NPRM would have required installing a bonding jumper between a ground and the clamp on the tube of the forward and aft gray water composite drain masts. The original NPRM resulted from a report of charred insulation blankets and burned wires around the forward gray water composite drain mast found during an inspection of the forward cargo compartment on a Model 767-300F airplane. For certain airplanes, this action revises the original NPRM by adding a new inspection of existing aft bonding jumper assemblies that might be too short, repair if necessary, and replacement of the bonding jumper assembly with a new, longer bonding jumper assembly if necessary. We are proposing this supplemental NPRM to prevent a fire near a composite drain mast and possible disruption of the electrical power system due to a lightning strike on a composite drain mast, which could result in the loss of several functions essential for safe flight. DATES: We must receive comments on this supplemental NPRM by May 5, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Nicholas Wilson, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)917-6476; fax

(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-28160; Directorate Identifier 2007-NM-006-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion We issued a notice of proposed rulemaking

(NPRM)(the “original NPRM”) to amend 14 CFR part 39 to include an airworthiness directive

(AD)that would apply to certain Boeing Model 757-200 and 757-300 series airplanes. The original NPRM was published in the **Federal Register** on May 16, 2007 (72 FR 27497). The original NPRM proposed to require installing a bonding jumper between a ground and the clamp on the tube of the forward and aft gray water composite drain masts. Actions Since Original NPRM Was Issued Since we issued the original NPRM, Boeing has advised us of reports of the bonding jumper being too short to reach the bracket in the aft drain installation, as described in Boeing Special Attention Service Bulletin 757-30-0024, dated July 24, 2006. Boeing has issued Special Attention Service Bulletin 757-30-0024, Revision 1, dated October 25, 2007. The procedures in this service bulletin are essentially the same as those in the original service bulletin. The service bulletin also includes procedures to correct bonding jumper assemblies that are too short on airplanes that changed the aft drain mast in accordance with the original issue of the service bulletin, and procedures that should be followed if the proper resistance values of the bonding jumper cannot be met. We have added a new paragraph to this supplemental NPRM to require inspection, repair, and replacement of the aft bonding jumper assemblies installed according to the original service bulletin that have been determined to be too short. We have also revised paragraph

(f)of the supplemental NPRM to refer to Revision 1 of the service bulletin as the appropriate source of service information for the proposed requirements. Additional Changes to This Supplemental NPRM We have also updated the Costs of Compliance section of this supplemental NPRM to reflect the new inspection, the current number of U.S.-registered airplanes, and the cost of parts necessary to accomplish the proposed actions. We have confirmed with the airplane manufacturer that the composite and aluminum drain mast can be interchangeable. Therefore, we have added a new paragraph (h), “Parts Installation,” to this supplemental NPRM to prohibit installation of a composite gray water drain mast, unless a bonding jumper is also installed, as specified in paragraph

(f)of this AD. We have also re-identified subsequent paragraphs accordingly. FAA's Determination and Proposed Requirements of the Supplemental NPRM We are proposing this supplemental NPRM because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Certain changes described above expand the scope of the original NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this supplemental NPRM. Costs of Compliance There are about 83 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this supplemental NPRM. Estimated Costs Action Work hours Average labor rate per hour Parts Cost per airplane Number of U.S.- registered airplanes Fleet cost Bonding jumper installation 2 $80 $392, per kit (1 kit per drain mast) $944 70 $66,080. Inspection of existing bonding jumper installation in bulk cargo compartment 1 80 $392 472 Up to 70 Up to $33,040. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this supplemental NPRM and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Boeing:** Docket No. FAA-2007-28160; Directorate Identifier 2007-NM-006-AD. Comments Due Date

(a)We must receive comments by May 5, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to Boeing Model 757-200 and 757-300 series airplanes, certificated in any category; as identified in Boeing Special Attention Service Bulletin 757-30-0024, Revision 1, dated October 25, 2007. Unsafe Condition

(d)This AD results from a report of charred insulation blankets and burned wires around the forward gray water composite drain mast found during an inspection of the forward cargo compartment on a Model 767-300F airplane. We are issuing this AD to prevent a fire near a composite drain mast and possible disruption of the electrical power system due to a lightning strike on a composite drain mast, which could result in the loss of several functions essential for safe flight. Compliance

(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Bonding Jumper Installation

(f)Except as provided by paragraph

(g)of this AD: Within 60 months after the effective date of this AD, install a bonding jumper between a ground and the clamp on the tube of the forward and aft gray water composite drain mast, in accordance with Parts 1 and 2 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757-30-0024, Revision 1, dated October 25, 2007. Existing Bonding Jumper Inspection

(g)For airplanes on which the bonding jumper was installed on the aft drain mast in accordance with Boeing Special Attention Service Bulletin 757-30-0024, dated July 24, 2006: Within 60 months after the effective date of this AD, do a general visual inspection of the aft bonding jumper assembly for signs of riding (chafing) in accordance with Part 3 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757-30-0024, Revision 1, dated October 25, 2007. If no riding damage is found, no further action is required by this AD for the aft drain mast. If riding damage is found, before further flight do the actions specified in paragraphs (g)(1) and (g)(2) of this AD. Doing the actions specified in this paragraph terminates the requirement to install the bonding jumper on the aft drain mast specified in paragraph

(f)of this AD.

(1)Repair any riding damage found in accordance with the service bulletin.

(2)Remove the existing bonding jumper assembly and install a new, longer bonding jumper assembly in accordance with Part 3 of the Accomplishment Instructions of the service bulletin. As an option to the longer bonding jumper assembly, operators may remove the bracket, fill the holes in the stringer, and restore the finish in accordance with Part 3 of the Accomplishment Instructions of the service bulletin; and install the ground bracket and jumper assembly in accordance with Part 2 of the Accomplishment Instructions of the service bulletin. Parts Installation

(h)As of the effective date of this AD, no person may install, on any airplane, a composite gray water drain mast, unless a bonding jumper is also installed, as specified in paragraph

(f)of this AD. Alternative Methods of Compliance (AMOCs) (i)(1) The Manager, Seattle Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.

(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Issued in Renton, Washington, on March 31, 2008. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-7302 Filed 4-7-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-29240; Directorate Identifier 2007-CE-076-AD] RIN 2120-AA64 Airworthiness Directives; Cessna Aircraft Company Models 175 and 175A Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

(AD)for certain Cessna Aircraft Company (Cessna) Models 175 and 175A airplanes. This proposed AD would require you to check the airplane logbook to determine if the original engine mounting brackets have been replaced. If the original engine mounting brackets are still installed, this proposed AD would require you to repetitively inspect those brackets for cracks and replace any cracked engine mounting bracket. After replacing all four original engine mounting brackets, no further action would be required by this proposed AD. This proposed AD was prompted by a report that the engine became detached from the firewall during landing on one of the affected airplanes. We are proposing this AD to detect and correct cracks in the engine mounting brackets, which could result in failure of the engine mounting bracket. This failure could lead to the engine detaching from the firewall. DATES: We must receive comments on this proposed AD by June 9, 2008. ADDRESSES: Use one of the following addresses to comment on this proposed AD: • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *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. • *Fax:*

(202)493-2251. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. For service information identified in this proposed AD, contact Cessna Aircraft Company, Product Support, P.O. Box 7706, Wichita, Kansas 67277; telephone:

(316)517-5800; fax:

(316)942-9006. FOR FURTHER INFORMATION CONTACT: Gary Park, Aerospace Engineer, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone: 316-946-4123; fax: 316-946-4107; e-mail address: *gary.park@faa.gov* . SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number, “FAA-2007-29240; Directorate Identifier 2007-CE-076-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive concerning this proposed AD. Discussion We received a report of the engine detaching from the firewall on a Cessna Model 175 airplane during landing. Investigation revealed that cracks in the two top engine mounting brackets behind the firewall caused the brackets to fail. This resulted in the top half of the firewall failing, pulling forward and down about 18 inches. The National Transportation Safety Board

(NTSB)Materials Laboratory examined the cracked brackets. The examination revealed that the metal content of the brackets did not contain the constituent elements of the specified material and was approximately 40 percent below the specified strength. The NTSB determined that reduced structural integrity of the engine mounting brackets resulted in fatigue cracks developing in the brackets. We agree with the NTSB's determination that inadequate materials used in manufacturing the engine mounting brackets, which were used on Cessna Models 175 and 175A airplanes manufactured from 1958 through 1960, caused the engine mounting brackets to crack. This condition, if not corrected, could cause the engine mounting brackets to fail. This failure could result in the engine detaching from the firewall. Relevant Service Information We have reviewed Cessna Single Engine Service Bulletin SEB07-2, Revision 2, dated June 18, 2007. The service information describes procedures for: • Inspecting the upper and lower engine mounting brackets on both the left and right sides for cracks; and • Replacing cracked engine mounting brackets. FAA's Determination and Requirements of the Proposed AD We are proposing this AD because we evaluated all information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design. This proposed AD would require you to check the airplane logbook to determine if the original engine mounting brackets have been replaced. If the original engine mounting brackets are still installed, this proposed AD would require you to repetitively inspect those brackets for cracks and replace any cracked engine mounting bracket. After replacing all four original engine mounting brackets, no further action would be required by this proposed AD. This proposed AD would require you to use the service information described previously to perform these actions. Costs of Compliance We estimate that this proposed AD would affect 1,218 airplanes in the U.S. registry. We estimate the following costs to do each proposed inspection: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 7.5 work-hours × $80 per hour = $600 Not applicable $600 $730,800 We estimate the following costs to do the proposed replacements. Labor cost Parts cost Total cost per airplane 3 work-hours per bracket × $80 per hour = $240 per bracket. 4 brackets per airplane × $240 per bracket = $960 $200 per bracket. 4 × $200 = $800 for all 4 brackets $440 per bracket. $1,760 to replace all 4 brackets. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at *http://dms.dot.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone

(800)647-5527) is located at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Cessna Aircraft Company:** Docket No. FAA-2007-29240; Directorate Identifier 2007-CE-076-AD. Comments Due Date

(a)We must receive comments on this airworthiness directive

(AD)action by June 9, 2008. Affected ADs

(b)None. Applicability

(c)This AD applies to the following airplane models and serial numbers that are certificated in any category: Model Serial Nos. Year manufactured

(1)175 55001 through 55703 1958.

(2)175 55704 through 56238 1959.

(3)175 28700A, 626, and 640 1958 and 1959.

(4)175A 691, and 56239 through 56777 1960. Unsafe Condition

(d)A report that the engine became unattached from the firewall during landing on one of the affected airplanes prompts this AD. We are issuing this AD to detect and correct cracks in the engine mounting brackets, which could result in failure of the engine mounting bracket. This failure could lead to the engine detaching from the firewall. Compliance

(e)To address this problem, you must do the following, unless already done: Actions Compliance Procedures

(1)Check the airplane logbook to determine if all four of the original engine mounting brackets have been replaced. Within the next 30 days after the effective date of this AD The owner/operator holding at least a private pilot certificate as authorized by section 43.7 of the Federal Aviation Regulations (14 CFR 43.7) may do this action.

(2)If you can positively determine that all four of the original engine mounting brackets have been replaced, no further action is required. Not applicable Make an entry into the aircraft logbook showing compliance with this portion of the AD in accordance with section 43.9 of the Federal Aviation Regulations (14 CFR 43.9). The owner/operator holding at least a private pilot certificate as authorized by section 43.7 of the Federal Aviation Regulations (14 CFR 43.7) may do this action.

(3)If you cannot positively determine that all four of the original engine mounting brackets have been replaced, inspect each of the upper and lower engine mounting brackets on both the left and right sides for cracks as specified in the service bulletin. Initially inspect within the next 12 months after the effective date of this AD. If no cracks are found, repetitively inspect thereafter at intervals not to exceed 500 hours time-in-service

(TIS)until all four of the original engine mounting brackets are replaced Follow Cessna Single Engine Service Bulletin SEB07-2, Revision 2, dated June 18, 2007.

(4)If cracks are found in any of the engine mounting brackets during any inspection required in paragraph (e)(3) of this AD, replace the cracked engine mounting bracket(s). Before further flight after the inspection in which cracks are found. Replacing the cracked engine mounting bracket terminates the repetitive inspection required in paragraph (e)(3) of this AD only for the replaced engine mounting bracket Follow Cessna Single Engine Service Bulletin SEB07-2, Revision 2, dated June 18, 2007.

(5)To terminate the repetitive inspections required in paragraph (e)(3) of this AD, you may replace all four original engine mounting brackets. At any time before or after the initial inspection required in paragraph (e)(3) of this AD Follow Cessna Single Engine Service Bulletin SEB07-2, Revision 2, dated June 18, 2007.

(6)Dispose of every replaced bracket following 14 CFR 43.10, paragraph (c)(6), which states the following: “Mutilation. The part may be mutilated to deter its installation in a type certificated product. The mutilation must render the part beyond repair and incapable of being reworked to appear to be airworthy.” Before further flight after the engine mounting bracket is removed for replacement Not applicable. Alternative Methods of Compliance (AMOCs)

(f)The Manager, Wichita Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Gary Park, Aerospace Engineer, FAA, Wichita ACO, 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone: 316-946-4123; fax: 316-946-4107; e-mail address: *gary.park@faa.gov* . Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

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

(g)To get copies of the service information referenced in this AD, contact Cessna Aircraft Company, Product Support, P.O. Box 7706, Wichita, Kansas 67277; telephone:

(316)517-5800; fax:

(316)942-9006. To view the AD docket, go to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, or on the Internet at *http://dms.dot.gov* . The docket number is Docket No. FAA-2007-29240; Directorate Identifier 2007-CE-076-AD. Issued in Kansas City, Missouri, on March 31, 2008. Kim Smith, Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-7258 Filed 4-7-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2008-0307; Airspace Docket 08-AEA-18] Establishment of Class E Airspace; Removal of Class E Airspace; Roanoke Rapids, NC AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking. SUMMARY: This action proposes to establish Class E airspace at Halifax Northampton Regional Airport, (IXA), Roanoke Rapids, NC and remove Class E airspace at Halifax County Airport, Roanoke Rapids, NC, (RZZ). The operating status of the airport will include Instrument Flight Rule

(IFR)operations. This action would enhance the safety and airspace management of Halifax-Northampton Regional Airport. DATES: Comments must be received on or before May 23, 2008. ADDRESSES: Send comments on this proposal to the U. S. Department of Transportation, Docket Operations, West Building, Ground Floor, Room W12-140, 1200 New Jersey Ave, SE., Washington, DC 20590-0001; Telephone: 1-800-647-5527. You must identify the docket number FAA-2008-0307; Airspace Docket 08 AEA-18, at the beginning of your comments. You may also submit comments on the Internet at *http://www.regulations.gov* . You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Avenue, College Park, Georgia 30337. FOR FURTHER INFORMATION CONTACT: Melinda Giddens, System Support, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone

(404)305-5610. SUPPLEMENTARY INFORMATION: Comments Invited Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2008-0307; Airspace Docket No. 08-AEA-18.” The postcard will be date/time stamped and returned to the commenter. AD communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket. Availability of NPRMs An electronic copy of this document may be downloaded through the Internet at *http://www.regulations.gov* . Recently published rulemaking documents can also be accessed through the FAA's Web page at *http://www.faa.gov* or the **Federal Register** 's Web page at *http://www.gpoaccess.gov/fr/index.html* . Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking,

(202)267-9677, to request a copy of Advisory Circular No. 11 -2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure. The Proposal The FAA is considering an amendment to Part 71 of the Code of Federal Regulations (14 CFR part 71) to establish Class E5 airspace at Roanoke Rapids, NC. A new airport, Halifax-Northampton Regional Airport (IXA), has been built and will replace Halifax County Airport (RZZ); therefore, the airspace supporting RZZ is no longer required. Area Navigation

(RNAV)Global Positioning System

(GPS)Standard Instrument Approach Procedures (SIAPs) Runways

(RWYs)02-20 have been developed for Halifax-Northampton Regional Airport. As a result, controlled airspace extending upward from 700 feet Above Ground Level

(AGL)is needed to contain the SIAP and for Instrument Flight Rules

(IFR)operations at Halifax-Northampton Regional Airport. Class E airspace designations for airspace areas extending upward from 700 feet or more above the surface of the Earth are published in Paragraph 6005 of FAA Order 7400.9R, signed August 15, 2007, and effective September 15, 2007, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order. The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore,

(1)is not a “significant regulatory action” under Executive Order 12866;

(2)is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and

(3)does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace at Roanoke Rapids, NC. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). The Proposed Amendment In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, CLASS B, CLASS C, CLASS D, AND CLASS E AIRSPACE AREAS; AIRWAYS; ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: Authority: 49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. § 71.1 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9R, Airspace Designations and Reporting Points, signed August 15, 2007, and effective September 15, 2007, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 feet or More Above the Surface of the Earth. AEA NC E5 Roanoke Rapids, NC [REMOVE) Halifax County Airport, NC AEA NC E5 Roanoke Rapids, NC (NEW] Halifax-Northampton Regional Airport, NC (Lat. 36°19′47″ N., long. 77°38′07″ W.) That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Halifax-Northampton Regional Airport. Issued in College Park, Georgia, on March 19, 2008. Mark D. Ward, Manager, System Support Group Eastern Service Center. [FR Doc. E8-7092 Filed 4-7-08; 8:45 am] BILLING CODE 4910-13-M DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 5 RIN 2900-AL72 Burial Benefits AGENCY: Department of Veterans Affairs. ACTION: Proposed rule. SUMMARY: The Department of Veterans Affairs

(VA)proposes to reorganize and rewrite in plain language provisions applicable to burial benefits. These revisions are proposed as part of VA's rewrite and reorganization of all of its compensation and pension rules in a logical, claimant-focused, and user-friendly format. The intended effect of the proposed revisions is to assist claimants, beneficiaries, and VA personnel in locating and understanding these regulations regarding burial benefits. DATES: Comments must be received by VA on or before June 9, 2008. ADDRESSES: Written comments may be submitted through *http://www.Regulations.gov* ; by mail or hand-delivery to: Director, Regulations Management (00REG), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to

(202)273-9026 (not a toll free number). Comments should indicate that they are submitted in response to “RIN 2900-AL72—Burial Benefits.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call

(202)461-4902 for an appointment (not a toll free number). In addition, during the comment period, comments may be viewed online through the Federal Docket Management System

(FDMS)at *http://www.Regulations.gov* . FOR FURTHER INFORMATION CONTACT: William F. Russo, Director of Regulations Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420,

(202)461-4902 (not a toll free number). SUPPLEMENTARY INFORMATION: The Secretary of Veterans Affairs has established an Office of Regulation Policy and Management to provide centralized management and coordination of VA's rulemaking process. One of the major functions of this office is to oversee a Regulation Rewrite Project (the Project) to improve the clarity and consistency of existing VA regulations. The Project responds to a recommendation made in the October 2001 “VA Claims Processing Task Force: Report to the Secretary of Veterans Affairs.” The Task Force recommended that the compensation and pension regulations be rewritten and reorganized in order to improve VA's claims adjudication process. Therefore, the Project began its efforts by reviewing, reorganizing, and redrafting the content of the regulations in 38 CFR part 3 governing the compensation and pension program of the Veterans Benefits Administration. These regulations are among the most difficult VA regulations for readers to understand and apply. Once rewritten, the proposed regulations will be published in several portions for public review and comment. This is one such portion. It includes proposed rules regarding burial benefits. After review and consideration of public comments, final versions of these proposed regulations will ultimately be published in a new part 5 in 38 CFR. Outline Overview of New Part 5 Organization Overview of Proposed Subpart J Organization Table Comparing Current Part 3 Rules with Proposed Part 5 Rules Content of Proposed Regulations Section 5.630 Types of VA burial benefits Section 5.631 Deceased veterans for whom VA may provide burial benefits Section 5.632 Persons who may receive burial benefits Section 5.633 Claims Section 5.634 Reimbursable burial expenses—General Section 5.635 Reimbursable transportation expenses for veterans who are buried in a national cemetery or who died while hospitalized by VA Section 5.636 Burial of veterans whose remains are unclaimed Section 5.638 Burial allowance based on service-connected death Section 5.639 Transportation expenses for burial in a national cemetery Section 5.643 Burial allowance based on nonservice-connected death Section 5.644 Burial allowance for veterans who died while hospitalized by VA Section 5.645 Plot or interment allowance Section 5.649 Priority of payments when there is more than one claimant Section 5.650 Escheat (payment of burial benefits to an estate with no heirs) Section 5.651 Effect of contributions by government, public, or private organizations Section 5.652 Effect of forfeiture on payment of burial benefits Section 5.653 Eligibility based on status before 1958 Endnote Regarding Amendatory Language Paperwork Reduction Act of 1995 Regulatory Flexibility Act Executive Order 12866 Unfunded Mandates Catalog of Federal Domestic Assistance Numbers and Titles List of Subjects in 38 CFR Part 5 Overview of New Part 5 Organization We plan to organize the new part 5 regulations so that most provisions governing a specific benefit are located in the same subpart, with general provisions pertaining to all compensation and pension benefits also grouped together. This organization will allow claimants, beneficiaries, and their representatives, as well as VA adjudicators, to find information relating to a specific benefit more quickly than the organization provided in current part 3. The first major subdivision would be “Subpart A—General Provisions.” It would include information regarding the scope of the regulations in new part 5, general definitions, and general policy provisions for this part. This subpart was published as proposed on March 31, 2006. *See* 71 FR 16464. “Subpart B—Service Requirements for Veterans” would include information regarding a veteran's military service, including the minimum service requirement, types of service, periods of war, and service evidence requirements. This subpart was published as proposed on January 30, 2004. *See* 69 FR 4820. “Subpart C—Adjudicative Process, General” would inform readers about claims and benefit application filing procedures, VA's duties, rights and responsibilities of claimants and beneficiaries, general evidence requirements, and general effective dates for new awards, as well as revision of decisions and protection of VA ratings. This subpart will be published as three separate Notices of Proposed Rulemaking (NPRMs) due to its size. The first, concerning the duties of VA and the rights and responsibilities of claimants and beneficiaries, was published as proposed on May 10, 2005. *See* 70 FR 24680. The second, covering general evidence requirements, effective dates for awards, revision of decisions, and protection of VA ratings, was published as proposed on May 22, 2007. *See* 72 FR 28770. “Subpart D—Dependents and Survivors” would inform readers how VA determines whether an individual is a dependent or a survivor for purposes of determining eligibility for VA benefits. It would also provide the evidence requirements for these determinations. This subpart was published as proposed on September 20, 2006. *See* 71 FR 55052. “Subpart E—Claims for Service Connection and Disability Compensation” would define service-connected disability compensation and service connection, including direct and secondary service connection. This subpart would inform readers how VA determines service connection and entitlement to disability compensation. The subpart would also contain those provisions governing presumptions related to service connection, rating principles, and effective dates, as well as several special ratings. This subpart will be published as three separate NPRMs due to its size. The first, concerning presumptions related to service connection, was published as proposed on July 27, 2004. *See* 69 FR 44614. “Subpart F—Nonservice-Connected Disability Pensions and Death Pensions” would include information regarding the three types of nonservice-connected pension: Old-Law Pension, Section 306 Pension, and Improved Pension. This subpart would also include those provisions that state how to establish entitlement to Improved Pension and the effective dates governing each pension. This subpart was published as two separate NPRMs due to its size. The portion concerning Old-Law Pension, Section 306 Pension, and elections of Improved Pension was published as proposed on December 27, 2004. *See* 69 FR 77578. The portion concerning eligibility and entitlement requirements, as well as effective dates for Improved Pension was published as proposed on September 26, 2007. *See* 72 FR 54776. “Subpart G—Dependency and Indemnity Compensation, Death Compensation, Accrued Benefits, and Special Rules Applicable Upon Death of a Beneficiary” would contain regulations governing claims for dependency and indemnity compensation (DIC); death compensation; accrued benefits; benefits awarded, but unpaid at death; and various special rules that apply to the disposition of VA benefits, or proceeds of VA benefits, when a beneficiary dies. This subpart would also include related definitions, effective-date rules, and rate-of-payment rules. This subpart was published as two separate NPRMs due to its size. The portion concerning accrued benefits, death compensation, special rules applicable upon the death of a beneficiary, and several effective-date rules, was published as proposed on October 1, 2004. *See* 69 FR 59072. The portion concerning DIC benefits and general provisions relating to proof of death and service-connected cause of death was published as proposed on October 21, 2005. *See* 70 FR 61326. “Subpart H—Special and Ancillary Benefits for Veterans, Dependents, and Survivors” would pertain to special and ancillary benefits available, including benefits for children with various birth defects. This subpart was published as proposed on March 9, 2007. *See* 72 FR 10860. “Subpart I—Benefits for Certain Filipino Veterans and Survivors” would pertain to the various benefits available to Filipino veterans and their survivors. This subpart was published as proposed on June 30, 2006. *See* 71 FR 37790. “Subpart J—Burial Benefits” would pertain to burial allowances. This subpart is the subject of this document. “Subpart K—Matters Affecting the Receipt of Benefits” would contain provisions regarding bars to benefits, forfeiture of benefits, and renouncement of benefits. This subpart was published as proposed on May 31, 2006. *See* 71 FR 31056. “Subpart L—Payments and Adjustments to Payments” would include general rate-setting rules, several adjustment and resumption regulations, and election-of-benefit rules. Because of its size, proposed regulations in subpart L will be published in two separate NPRMs. The first, concerning payments to beneficiaries who are eligible for more than one benefit, was published as proposed on October 2, 2007. *See* 72 FR 56136. The final subpart, “Subpart M—Apportionments to Dependents and Payments to Fiduciaries and Incarcerated Beneficiaries,” would include regulations governing apportionments, benefits for incarcerated beneficiaries, and guardianship. Some of the regulations in this NPRM cross-reference other compensation and pension regulations. If those regulations have been published in this or earlier NPRMs for the Project, we cite the proposed part 5 section. We also include, in the relevant portion of the Supplementary Information, the **Federal Register** page where a proposed part 5 section published in an earlier NPRM may be found. However, where a regulation proposed in this NPRM would cross-reference a proposed part 5 regulation that has not yet been published, we cite to the current part 3 regulation that deals with the same subject matter. The current part 3 section we cite may differ from its eventual part 5 counterpart in some respects, but this method will assist readers in understanding these proposed regulations where no part 5 counterpart has yet been published. If there is no part 3 counterpart to a proposed part 5 regulation that has not yet been published, we have inserted “[regulation that will be published in a future Notice of Proposed Rulemaking]” where the part 5 regulation citation would be placed. Because of its large size, proposed part 5 will be published in a number of NPRMs, such as this one. VA will not adopt any portion of part 5 as final until all of the NPRMs have been published for public comment. In connection with this rulemaking, VA will accept comments relating to a prior rulemaking issued as a part of the Project, if the matter being commented on relates to both rulemakings. Overview of Proposed Subpart J Organization This NPRM pertains to burial benefits. These regulations would be contained in proposed Subpart J of new 38 CFR part 5. Although these regulations have been substantially restructured and rewritten for greater clarity and ease of use, most of the basic concepts contained in these proposed regulations are the same as in their existing counterparts in 38 CFR part 3. However, a few substantive differences are proposed, as are some regulations that do not have counterparts in 38 CFR part 3. Table Comparing Current Part 3 Rules With Proposed Part 5 Rules The following table shows the relationship between the current regulations in part 3 and the proposed regulations contained in this NPRM: Proposed part 5 section or paragraph Based in whole or in part on 38 CFR part 3 section or paragraph (or “New”) 5.630 New 5.631(a)(1),

(2)3.1600 [first sentence] 5.631(a)(3) New 5.631(b) 3.1600 [second sentence] 5.631(c) 3.1600(d) 5.632 3.1601(a)(1) and

(2)5.633(a) 3.1601(a) 5.633(b)(1) 3.1601(b) 5.633(b)(2) 3.203(c) [second sentence] 5.634(a) New 5.634(b)(1) 3.1607 5.634(b)(2),

(3)3.1608 5.635 3.1606 5.636 3.1600(b)(3), 3.1601(b)(5), 3.1603, 3.1610(b) 5.638(a) 3.1600(a) 5.638(b) New 5.638(c)(1) 3.1600(g) 5.638(c)(2) New 5.639(a) and

(b)3.1600(g) 5.639(c) New 5.643 3.1600(b)(1), (2), and

(4)5.644(a) 3.1600(c); 3.1605 (intro paragraph) 5.644(b)(1)-(4) 3.1600(c) 5.644(b)(5) 3.1605(a) 5.644(b)(6) 3.1605(d) 5.644(c) 3.1605(a) 5.644(d) 3.1605(b) 5.645(a) 3.1604(d)(1)(i) through

(iv)and (d)(3) 5.645(b) 3.1600(f) 5.645(c) 3.1601(a)(3) 5.649(a) 3.1602(b); 3.1604(d)(4) 5.649(b) 3.1602(a) 5.649(c) 3.1602(c) 5.649(d) 3.1601(a)(2)(iii) [second and third sentences] 5.649(e) 3.1601(a) 5.650 3.1602(d) 5.651(a),

(b)3.1604(a) and (c); 3.1604(a)(2) 5.651(c)(1) 3.1604(b)(1) and

(2)5.651(c)(2) 3.1604(b)(3) 5.651(c)(3) New 5.651(d) 3.1604(a)(1) 5.652 3.1609 5.653 3.954 Readers who use this table to compare existing regulatory provisions with the proposed provisions, and who observe a substantive difference between them, should consult the text that appears later in this document for an explanation of significant changes in each regulation. Not every paragraph of every current part 3 section regarding the subject matter of this rulemaking is accounted for in the table. In some instances, other portions of the part 3 sections that are addressed in these proposed regulations will appear in subparts of part 5 that are being published separately for public comment. For example, a reader might find a reference to paragraph

(a)of a part 3 section in the table, but no reference to paragraph

(b)of that section because paragraph

(b)will be addressed in a separate NPRM. The table also does not include provisions from part 3 regulations that will not be repeated in part 5. Such provisions are discussed specifically under the appropriate part 5 heading in this preamble. Readers are invited to comment on the proposed part 5 provisions and also on our proposals to omit those part 3 provisions from part 5. Content of Proposed Regulations Generally Applicable Provisions Section 5.630 Types of VA Burial Benefits In order to give the public a general overview of the burial benefits VA provides, we propose to add § 5.630. This section lists each type of burial benefit described in this proposed rule and also those VA burial benefits described in other statutes or VA regulations. Section 5.631 Deceased Veterans for Whom VA May Provide Burial Benefits Proposed § 5.631, would set forth requirements as to the service of the deceased person for whom VA May provide monetary burial benefits. Proposed paragraph

(a)would define “veteran” for purposes of eligibility for monetary burial benefits as including a person who met one of three criteria. The first is, “[h]ad active military service,” the definition contained in the first paragraph of proposed § 5.1, “General definitions.” *See* 71 FR 16464, 16474 (Mar. 31, 2006). We believe this definition is consistent with congressional intent that the definition of veteran contained in 38 U.S.C. 101(2) should apply to burial benefit claims under 38 U.S.C. chapter 23. The second is, “[d]ied during authorized travel to or from a period of active duty under § 5.29(a)(1),” and is based on the introductory paragraph of current 38 CFR 3.1600. (Section 5.29(a)(1) is the part 5 counterpart to current § 3.6(b)(6) and was published as proposed on January 30, 2004. *See* 69 FR 4820, 4837.) The third is, “entitled to a burial benefit based on a specific provision of law.” An example of such a specific provision would be 46 U.S.C. 11201(a) (providing entitlement to burial allowance to Merchant Mariners who served between August 16, 1945, and December 31, 1946, who meet the requirements of 46 U.S.C. 11201-11204). In describing deceased veterans upon whom a claimant may base a claim for burial benefits, we propose not to include current § 3.1600(e), which begins, “Except as provided in § 3.1605(c) burial allowance is not payable in the following cases,” and then lists five classes of individuals. Other part 5 regulations explaining the requirements for recognition as a veteran would establish whether the listed persons are eligible for burial benefits. Accordingly, reiterating those classes of individuals in proposed § 5.631 is unnecessary and could be misleading in that it would be only a partial list of ineligible persons. The exceptions stated in current § 3.1605(c) are discussed below with regard to proposed § 5.644. Proposed paragraphs

(b)and

(c)are consistent with the second sentence of the introductory paragraph of current § 3.1600 and with § 3.1600(d), respectively. Proposed paragraph

(c)differs from the current rule in that under the proposed rule, VA is not bound by a service department holding that a deceased veteran's disability was not incurred in line of duty when “VA receives evidence that permits a different finding.” Under current § 3.1600(d), VA is similarly not bound when VA receives such evidence; however, § 3.1600(d) refers to evidence being “submitted.” We would use the word “receives” in the proposed regulation because VA may rely on evidence that we obtain through means other than submission by a claimant or third party. Section 5.632 Persons Who May Receive Burial Benefits Proposed § 5.632 would describe in plain language those individuals to whom VA may pay monetary burial benefits. The regulation would begin by stating the general principle that VA may grant a claim for burial benefits filed by any individual for a burial expense reimbursable by VA under this subpart, up to the amount of the applicable statutory burial allowance. The part 3 burial regulations do not explicitly state this rule, but the principle is implicit therein and this rule reflects VA's actual practice. The remainder of proposed § 5.632 is based on current § 3.1601(a)(1) and (2). The proposed language would not repeat redundant language used in the current rule, but does not contain any substantive change from current VA rules or practices. Section 5.633 Claims Proposed § 5.633(a) clearly states the time limits mandated by statute for filing claims for burial benefits. Under 38 U.S.C. 2304, “[a]pplications for payments under section 2302 of [title 38, United States Code,] must be filed within 2 years after the burial of the veteran.” Section 2302 provides authority for VA to pay the nonservice-connected burial allowance. Notwithstanding that there are no other time limitations contained within title 38, United States Code, on filing claims for burial benefits, the first sentence of current § 3.1601(a) applies a two-year time limit to “[c]laims for reimbursement or direct payment of burial and funeral expenses under § 3.1600(b) [the nonservice-connected burial allowance] and plot or interment allowance under § 3.1600(f).” Similarly, the second and third sentences of current § 3.1604(d)(2) specify a two-year time limit for claims for the plot or interment allowance under § 3.1604(d). The plot or interment allowance is authorized by 38 U.S.C. 2303(b), and therefore the statutory two-year time limit does not apply to the plot or interment allowance. In proposed part 5, we would apply only the statutory time limitation. The proposed rule would also clarify that no other time limitations apply to claims for burial benefits under this subpart. Proposed § 5.633(b)(1) describes the evidence that is needed to substantiate a claim for burial benefits. Paragraph

(b)contains the following substantive differences from the current regulations upon which it is based. Proposed paragraph (b)(1) would require that VA “receive” the evidence described, whereas current § 3.1601(b) requires that the claimant “submit” such evidence. The proposed language recognizes that VA may obtain relevant evidence on its own initiative and mirrors the language of the authorizing statute. *See* 38 U.S.C. 2304 (VA must deny claim “[i]f such evidence is not received within 1 year from the date” VA notifies claimant that application is incomplete). Proposed paragraph (b)(1)(ii) would require proof of death “in accordance with § 5.500,” whereas current § 3.1601(b)(3) requires proof of death “in accordance with § 3.211.” In part 5, § 5.500 would contain the rule set forth at § 3.211. *See* 70 FR 61326, 61341 (Oct. 21, 2005). Current § 3.1601(b)(1) requires claimants to provide a “[s]tatement of account” showing, “[the] name of the deceased veteran, the plot or interment costs, and the nature and cost of services rendered, and unpaid balance.” In proposed paragraph (b)(1)(iii), we propose to add “any credits or payments received” to this list because if expenses were paid, partially or entirely, by someone other than the claimant, that would affect the amount of entitlement to VA burial benefits. Proposed paragraph (b)(1)(iv) would allow claimants to provide a receipt showing payment to a representative of the funeral director and/or cemetery owner, as permitted by current § 3.1601(b)(2), or directly to the funeral director and/or cemetery owner. The proposed addition reflects long-standing VA practice and recognizes the fact that payments are sometimes made directly to the funeral director and/or cemetery owner. Additionally, paragraph (b)(1)(iv) would state that receipts for transportation charges must also show the dates of the services rendered, the name of the deceased veteran who was transported, and the name of the person who paid the transportation charges. This detail is added because VA needs such information in order to ensure accuracy in its adjudication of claims for reimbursement of transportation charges. Proposed paragraph (b)(2) is derived from the second sentence of current § 3.203(c), which states that in a claim for nonservice-connected benefits, evidence of service that VA relied upon to award compensation or pension during a veteran's lifetime will be sufficient to prove military service, unless there is some other evidence which creates doubt as to the correctness of that evidence of service. Section 5.634 Reimbursable Burial Expenses—General Burial expenses and funeral expenses are factually distinct categories. The relevant statutes treat burial expenses and funeral expenses the same for purposes of eligibility for VA burial benefits. Title 38 U.S.C. 2302 is titled, “Funeral expenses”, but in paragraphs

(a)and

(b)it refers to “burial and funeral expenses” without distinguishing between them. Title 38 U.S.C. 2303(a)(1)(A) refers to “the cost * * * of the burial and funeral” again without distinction. Current VA regulations use the terms burial expenses and funeral expenses inconsistently. To ensure that part 5 uses consistent terminology, proposed § 5.634(a) defines the term “burial expenses” for purposes of this subpart as “expenses of the funeral, transportation, and plot or interment.” Throughout proposed subpart J of part 5, we have used the term “burial expenses” to refer to the aggregate of these categories of expenses. Proposed paragraph

(a)also states that, generally, VA will reimburse burial expenses up to the applicable statutory limit. Part 3 of title 38, CFR, does not contain comparable language, and we believe it is useful to state this general principle before specifically describing what VA will not provide reimbursement for, as is provided in current part 3. Paragraph

(b)of proposed § 5.634 is based on current §§ 3.1607 and 3.1608, both of which bar reimbursement for particular items. The proposed rule reflects a clear and more contemporary articulation of these rules. Paragraph (b)(1) is based on current § 3.1607, which states: “No reimbursement will be authorized for the cost of a burial flag privately purchased by relatives, friends, or other parties but such cost may be included in a claim for the burial allowance.” The proposed rule would bar reimbursement for the expense of a “privately purchased burial flag, except when VA was unable to provide a burial flag.” The proposed language would not identify the private purchaser as coming from among “relatives, friends, or other parties” because the specific identity of the private purchaser is not relevant to whether VA will allow reimbursement. The proposed rule also does not include the phrase, “but such cost may be included in a claim for the burial allowance,” because that phrase, contained in current § 3.1607, has generated confusion by appearing to contradict the rule that the cost of flags is not generally an allowable expense. The proposed rule accurately reflects VA's policy and practice, which is that VA will allow a claim for reimbursement for the purchase of a flag only when claimed as an expense in a case where VA was unable to provide a burial flag. Proposed paragraph (b)(3) would liberalize the rule stated at current 3.1608, which bars reimbursement for “[a]ccessory items[, s]uch as items of food and drink.” We propose to modify this rule for purposes of part 5 such that under the proposed rule VA will not reimburse the expense of an item or service that is not necessary or related to the funeral, burial, or transportation of the deceased veteran. We wish to allow reimbursement for expenses related to a funeral, which may in some cases include food or drink. By barring reimbursement only for expenses not necessary or related to the funeral, burial, or transportation of the deceased veteran, we believe the regulation is fair and easy to understand and apply. Section 5.635 Reimbursable Transportation Expenses for Veterans Who Are Buried in a National Cemetery or Who Died While Hospitalized by VA Proposed § 5.635 restates current § 3.1606. The only changes are technical changes necessary to conform to other proposed part 5 regulations and to the current requirements for publication in the **Federal Register** . Section 5.636 Burial of Veterans Whose Remains Are Unclaimed Proposed § 5.636 is based on current §§ 3.1600(b)(3), 3.1601(b)(5), and 3.1603. Section 3.1603, “Authority for burial of certain unclaimed bodies,” states, in pertinent part: If the body of a deceased veteran is unclaimed, there being no relatives or friends to claim the body, and there is burial allowance entitlement which is not based on § 3.1600(b)(3), the amount provided for burial and plot or interment allowance will be available for the burial upon receipt of a claim accompanied by a statement showing what efforts were made to locate relatives or friends. We believe that there is no need to retain the requirement for a statement showing what efforts were made to locate relatives or friends, because payments under 38 U.S.C. 2307 (discussed in § 5.638 of this proposed rulemaking), 38 U.S.C. 2302(a)(1) (discussed in § 5.643 of this proposed rulemaking), and/or 38 U.S.C. 2303(b) (discussed in § 5.645 of this proposed rulemaking) are not dependent upon whether the remains were claimed or unclaimed. We have, therefore, excluded this requirement from proposed § 5.636(a)(1), (b), and (c). Because 38 U.S.C. 2302(a)(2) does include this requirement, we have included the requirement in proposed § 5.636(a)(2). Burial Benefits Based on Service-Connected Death Section 5.638 Burial Allowance Based on Service-Connected Death The second and third groups of part 5 regulations governing monetary burial benefits would be organized under the undesignated subheadings, “Burial Benefits Based on Service-Connected Death” and, “Burial Benefits Payable Regardless of Whether the Death Was Service-Connected.” The service-connected burial allowance would be governed by § 5.638. Proposed paragraph

(a)would state the general rules regarding eligibility for and the amount of the service-connected burial allowance, *i.e.* , the burial allowance based on service-connected death, which are derived from current § 3.1600(a) without substantive revision. In addition, proposed paragraph

(a)would clarify that a service-connected death is one described in § 5.504. Section 5.504 was published as proposed on October 21, 2005. *See* 70 FR 61326, 61342. The last sentence of proposed paragraph

(a)states that, subject to paragraph

(c)of this section, payment of the service-connected burial allowance is in lieu of other allowances authorized by this subpart and is subject to the applicable further regulations in this subpart. This is based on the second-to-last sentence in current § 3.1600(a), which makes entitlement to the service-connected burial allowance subject to the applicable further provisions of that section and §§ 3.1601 through 3.1610. The proposed regulation replaces the regulation numbers with the reference to “this subpart” because all of subpart J of part 5, title 38, CFR, would be dedicated to burial regulations. We have proposed similar language in paragraph

(a)of § 5.643, governing the nonservice-connected burial allowance. The current version of that rule is also subject to other applicable burial regulations. *See* 38 CFR 3.1600(b)(4). Proposed paragraph

(b)contains new material that reflects developments in the law subsequent to the promulgation of current § 3.1600. It provides that VA will not pay the service-connected burial allowance in two described circumstances. First, under proposed paragraph (b)(1), VA would not pay the service-connected burial allowance when compensation for the cause of the veteran's death is payable only under 38 U.S.C. 1151. Under section 1151, VA will provide compensation for certain disabilities or death caused by VA hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program “as if” such disability or death were service connected. An award of the service-connected burial allowance in such cases is precluded by the decision of the United States Court of Appeals for Veterans Claims

(CAVC)in *Mintz* v. *Brown* , 6 Vet. App. 277, 282-83 (1994). In that case, the CAVC held that the widow of a veteran was not entitled to service-connected burial benefits “unless service connection is established under a statutory provision other than 38 U.S.C. 1151.” *Id.* The proposed regulation is also consistent with *Alleman* v. *Principi* , 349 F.3d 1368, 1371 (Fed. Cir. 2003), which stated that “on its face section 1151 only grants compensation under chapter 11 and chapter 13 of title 38,” United States Code. In *Alleman* , the Court noted further that although section 1151 creates entitlement to housing benefits, “there is no basis in either the language of the pertinent statutes or their background that would justify construing section 1151 to entitle” a claimant to National Service Life Insurance. *Id.* at 1372-73. Similar to 38 U.S.C. 1151, 38 U.S.C. 1318 provides compensation to the surviving spouse and to the children of a deceased veteran as if the veteran's death were service-connected, after certain criteria are met. Proposed paragraph (b)(2) would bar payment of the service-connected burial allowance based on receipt of dependency and indemnity compensation under section 1318. The rationale for proposed paragraph (b)(2) is similar to the rationale for proposed paragraph (b)(1): No statutory language expressly authorizes service-connected burial compensation based on the widow or child's receipt of compensation “as if” the veteran's death were service connected pursuant to 38 U.S.C. 1318. A similar provision appears in this NPRM at proposed § 5.639(c), which would bar payment for transportation expenses based on entitlement to compensation under sections 1151 or 1318. We would add that paragraph for the reasons described above. Proposed paragraph (c)(2) authorizes VA to pay the plot or interment allowance for burial in a State veterans cemetery under § 5.645(a), in addition to the service-connected burial allowance. This reflects the amendment made to 38 U.S.C. 2307 by section 501 of the Veterans Benefits Act of 2003, Pub. L. No. 108-183, 117 Stat. 2651, 2666-67. Prior to the enactment of Public Law No. 108-183, title 38, United States Code, did not authorize a separate plot or interment allowance where VA paid the burial allowance for service-connected death. Proposed §§ 5.638, 5.643 (concerning the nonservice-connected burial allowance), and 5.645 (concerning the plot or interment allowance) do not refer to current 38 CFR 3.40 (or the part 5 counterpart thereto), which is referenced by current § 3.1600(a), (b), and (f). The reference in the current regulation provides for the payment of burial benefits for certain Filipino veterans. We have proposed a separate group of regulations in part 5, subpart I, which will govern the administration of VA benefits to Filipino veterans. *See* 71 FR 37790 (June 30, 2006). In view of this centralized organization, there is no need to refer to such veterans here in subpart J. Section 5.639 Transportation Expenses for Burial in a National Cemetery Proposed § 5.639 implements 38 U.S.C. 2308. Paragraphs

(a)and

(b)are derived from and consistent with current § 3.1600(g). Proposed paragraph

(c)consists of new material, as discussed earlier in this NPRM in our explanation of § 5.638(b). Burial Benefits Payable Regardless of Whether the Death Was Service-Connected Section 5.643 Burial Allowance Based on Nonservice-Connected Death The nonservice-connected burial allowance would be governed by § 5.643, which is based on current § 3.1600(b). Proposed § 5.643(a) states the general rules governing when VA will pay the nonservice-connected burial allowance and what amount may be paid, using construction similar to proposed § 5.638. Proposed § 5.643(b) would set forth eligibility requirements that are consistent with the requirements of current § 3.1600(b)(1) and (2), except as noted below. Current § 3.1600(b)(2) provides eligibility for the nonservice-connected burial allowance if the deceased veteran had a “reopened claim” for pension or disability compensation pending at the time of the veteran's death. Rather than refer to a “reopened claim,” in proposed paragraph (b)(3) we would refer to a “claim to reopen.” The rationale for awarding death benefits based on a pending claim is that the veteran would have met the prerequisite for an award of the nonservice-connected burial allowance ( *i.e.* , the veteran would have been receiving disability compensation or pension effective before the day the veteran died) if the veteran had not died before VA granted the veteran's claim for compensation or pension. Thus, it is important that the veteran's claim to reopen was filed, but it matters less whether VA actually reopened the claim (but had yet to award benefits thereon). In other words, the proposed language more accurately describes the regulatory requirement that the veteran have initiated the claims-adjudication process during his or her lifetime and that the claim is still pending. The use of the phrase “claim to reopen” rather than “reopened claim” does not represent a substantive change; it merely clarifies the intended effect of § 3.1600(b)(2). Current § 3.1600(b)(2) further requires that for eligibility for the nonservice-connected burial allowance, not only must the deceased veteran have had a claim pending at the time of his or her death, but also that there have been sufficient “evidence of record” prior to the veteran's death for VA to have granted pension or disability compensation. We believe it would be helpful to clarify the meaning intended by “evidence of record” for the public. We propose to use the phrase, “evidence in the claims file on the date of the veteran's death”, which is more explicit, and to define it in § 5.643(c) as, “evidence in VA's possession on or before the date of the deceased veteran's death, even if such evidence was not physically located in the VA claims file on or before the date of death.” This is consistent with the manner in which VA adjudicates claims for accrued benefits by the survivors of deceased veterans (see § 5.550(g), published as proposed at 69 FR 59072, 59085), and with VA's long-standing practice for adjudicating claims under § 3.1600(b)(2). We also believe it is fair to claimants and places a reasonable burden upon VA adjudicators to be constructively in possession of evidence located in VA medical centers or similar VA facilities. Proposed paragraph

(d)states that if the veteran had either an original claim or a claim to reopen pending at the time of death but the information in the claims file was not sufficient to award pension or disability compensation effective before the date of death, VA will request such evidence. If the evidence is not received within 1 year from the date of the request, VA will not award the burial allowance. The current regulation, § 3.1600(b)(2) may be subject, incorrectly, to a more limited interpretation, because the current version of this provision appears in a paragraph, § 3.1600(b)(2)(ii), dealing only with a reopened claim. We believe it will be clearer if the proposed regulation specifically refers to both a pending original claim and a pending claim to reopen. Proposed paragraph

(e)would identify the additional burial benefits—plot allowance and transportation expenses—potentially available in cases of non-service-connected death and would provide cross-references to the regulations governing those payments. Pursuant to 38 U.S.C. 2308, transportation expenses would not be payable for all nonservice-connected deaths, but only where the veteran was in receipt of compensation rather than pension. Proposed paragraph

(e)would reflect this limitation. Section 5.644 Burial Allowance for Veteran Who Died While Hospitalized by VA Proposed § 5.644 would implement the third burial allowance authorized by title 38, United States Code, which is the allowance provided for a veteran who died while hospitalized by VA, set forth at 38 U.S.C. 2303. Except as noted below, proposed § 5.644 restates rules found in current §§ 3.1600(c) and 3.1605, without substantive change. The last sentence of proposed paragraph

(a)states, “Payment under this section is subject to the applicable further regulations in this subpart.” Current § 3.1605 states that “[t]he amount payable under this section is subject to the limitations set forth in paragraph

(b)of this section, and §§ 3.1604 and 3.1606.” It is true that the amount payable under the current rule is subject to such limitations. However, it is also true that the other provisions of current § 3.1605, *i.e.* , those that do not relate to the amount payable, are subject to other applicable limitations set forth in the part 3 burial regulations. Thus, we would use broader language in the proposed rule. We propose not to include in part 5 the rule in current § 3.1605(b) that denies eligibility for transportation expenses to “retired persons hospitalized under section 5 of Executive Order 10122 * * * issued pursuant to Pub. L. 351, 81st Congress, and not as Department of Veterans Affairs beneficiaries.” Section 5 of Executive Order 10122 related to current and former service members who had been hospitalized for chronic diseases between May and October of 1950. Executive Order 10122 is more than half a century old and applied to a very small group of veterans. The reference is outdated and no longer necessary. Current § 3.1605(c) extends entitlement to burial benefits to the following persons who die while properly hospitalized by the Department of Veterans Affairs:

(1)Discharged or rejected draftees;

(2)Members of the National Guard who reported to camp in answer to the President's call for World War I, World War II, or Korean service, but who when medically examined were not finally accepted for active military service; or

(3)A veteran discharged under conditions other than dishonorable from a period of service other than a war period. We propose not to include such a provision in part 5. With respect to persons described in § 3.1605(c)(1) and

(2)(draftees and National Guard members not accepted for active service), proposed § 5.26 sets forth the circumstances under which they may be eligible for VA benefits. (Proposed § 5.26 is the part 5 counterpart to current § 3.7(o) and was published on January 30, 2004. *See* 69 FR 4820, 4835.) Regarding veterans discharged under conditions other than dishonorable from a period of service other than a war period, they are included in the definition of veteran under § 5.631(a)(1) and, as such, are eligible for burial benefits. Accordingly, it is unnecessary to include those provisions in this regulation. The proposed rule would also not incorporate the rule currently in § 3.1605(e) that states: “Where a deceased person was not properly hospitalized, benefits will not be authorized under this section.” Proposed § 5.644 clearly authorizes benefits only to persons who die while hospitalized pursuant to statutory authorities specified in that rule or who meet other criteria set forth in the rule. The proposed rule in no way suggests that it establishes additional entitlement to a person who was not hospitalized pursuant to statutory authorities within the definition of the rule. Including an express statement to that effect, such as that contained in § 3.1605(e), is unnecessary. Section 5.645 Plot or Interment Allowance In proposed § 5.645, we would include all of the rules governing awards of a plot or interment allowance. These rules currently appear in three different regulations, §§ 3.1600(f), 3.1601(a)(3), and 3.1604(d). We propose not to include the first sentence of current § 3.1604(d)(2), “A claim for payment under this paragraph shall be executed by a State, or an agency or political subdivision of a state on a claim form prescribed by the Department of Veterans Affairs” because it is redundant of the provision in current § 3.151(a), and we intend to propose a part 5 counterpart to current § 3.151(a) in a separate NPRM. The relevant authorizing statutes have been amended by the Veterans Benefits Act of 2003, Public Law 108-183, Sec. 501, 117 Stat. 2651, 2666-67. Section 501 of Public Law 108-183 removed the previously existing barrier that prevented VA from paying the plot or interment allowance based on the burial of a veteran on whose behalf VA also provided the service-connected burial allowance; however, the amendment only removed that barrier as to the plot or interment allowance payable to a State, or an agency or political subdivision of a State, under 38 U.S.C. 2302(b)(1). VA continues to lack authority to provide the plot or interment allowance payable under 38 U.S.C. 2302(b)(2) based on the burial of a veteran on whose behalf VA also provided the service-connected burial allowance. Hence, paragraph

(a)of the proposed rule conforms to the requirements of the new statute. Proposed § 5.645(a) would govern payment of the burial allowance under section 2303(b)(1), implementing the changes made by Public Law 108-183. Under the proposed rule, VA would pay the plot or interment allowance in the amount specified in 38 U.S.C. 2303(b)(1) to a State, or an agency or political subdivision of a State, that provided a burial plot for a veteran when the veteran meets the described criteria. Proposed paragraph

(a)would note, in parentheses, that the plot or interment allowance is payable under paragraph

(a)“without regard to whether any other burial benefits were provided based on that veteran.” We would include this language for clarity, due to the newness of the change in the law on this subject. In addition to being revised based on Public Law 108-183, the proposed rule would not include the caveat from current § 3.1604(d)(1)(v) that payment will be authorized only if “[t]he veteran was buried on or after October 1, 1978.” It is unlikely in the extreme that VA will receive claims for the plot or interment allowance, especially claims by a State, or an agency or political subdivision of a State, based upon a burial that occurred 30 years ago. Hence, the reference is no longer useful. Proposed § 5.645(b) is substantively similar to current § 3.1600(f); however, the proposed rule contains a technical correction for the purpose of restating that rule in part 5. Current § 3.1600(f)(2)(iii) offers entitlement to the plot or interment allowance, *inter alia* , when: The veteran was discharged from the active military, naval, or air service for a disability incurred or aggravated in line of duty (or at time of discharge has such a disability, shown by official service records, which in medical judgment would have justified a discharge for disability; the official service department record showing that the veteran was discharged or released from service for disability incurred in line of duty will be accepted for determining entitlement to the plot or interment allowance notwithstanding that the Department of Veterans Affairs has determined, in connection with a claim for monetary benefits, that the disability was not incurred in line of duty) * * *. 38 CFR 3.1600(f)(2)(iii). The material that appears before the semicolon in the above paragraph is the extent of the material that should have appeared within the parenthetical. After the semicolon, the regulation describes evidence showing a discharge from service due to disability, which clearly applies only to a veteran who was “discharged from the active military, naval, or air service for a disability incurred or aggravated in line of duty” as referenced before the parenthetical begins. The material that appears within the parenthetical but before the semicolon refers to a veteran who was not discharged due to disability, but who could have been so discharged based on other medical evidence. This represents a technical error in part 3. We would not duplicate the problem contained in the part 3 version of the rule by reorganizing the material as shown in the proposed regulation. The substantive effect of the rule, as reorganized, is consistent with other part 3 rules that contain language similar to § 3.1600(f)(2)(iii) but without the technical error therein. *See, e.g.* , 38 CFR 3.3(a)(1)(ii), 3.12a(d)(2). Special Rules Governing Payments Section 5.649 Priority of Payments When There Is More Than One Claimant Proposed § 5.649 would describe the order in which VA will reimburse multiple claimants for burial benefits. Under the current rule, VA will pay providers of services before paying “persons whose personal funds were expended.” 38 CFR 3.1602(b). In turn, people who used personal funds take priority over estates. 38 CFR 3.1602(c). Thus, under the current rule VA will reimburse a claimant who performed services or provided items (including a burial plot) and who has not been fully paid for the services or items first; next, VA will reimburse persons who expended personal funds; and last, VA will reimburse an estate. The current rule does not set forth this hierarchy in order of preference for payment. Proposed § 5.649(a) through

(c)would do so. The proposed paragraphs would be more straightforward than the current rule, but would not alter the existing payment hierarchy. Proposed paragraph

(a)differs from current § 3.1602(b) in that the proposed rule would offer payment preference to claimants who “provided items.” The current rule provides preference to persons who “performed * * * services or furnished the burial plot.” The current reference to “services” is intended to include items such as a coffin. The proposed use of the term, “items,” is merely a clarification of current VA policy. Proposed paragraph

(d)discusses payment priority in claims for the plot or interment allowance. It incorporates current rules from §§ 3.1601(a)(2)(iii) and 3.1604(d)(4). Proposed § 5.649(e) would clarify the current rule regarding waivers. Current § 3.1602(a) states that, if two or more persons have paid from their personal funds, burial benefits will be divided among such persons in accordance with the proportionate share paid by each, unless waiver is executed in favor of one of such persons by the other person or persons involved. The placement of the waiver rule in the context of a paragraph titled, “Two or more persons expended funds,” suggests that waiver only applies to persons who used personal funds to pay burial expenses. However, VA will accept as valid a waiver from any claimant. Thus, we propose to place the waiver rules in a separate paragraph that clearly applies to the entire section. Section 5.650 Escheat (Payment of Burial Benefits to an Estate With No Heirs) Proposed § 5.650 restates the rule in cases of escheat, which appears in current § 3.1602(d). We would place the rule in its own regulation because it does not logically fit any other proposed rule. Section 5.651 Effect of Contributions by Government, Public, or Private Organizations Proposed § 5.651 would provide special rules that apply when the deceased veteran's burial expenses have been paid for, in part or in full, by certain governmental and non-governmental organizations. Proposed paragraph

(a)restates the first sentence of current § 3.1604(a), with the clarification that the rule applies to all types of expenses that may be paid as “burial benefits.” The current rule uses the term “burial expenses,” which for the reasons explained above concerning proposed § 5.634, may have lead to the misperception that VA will not consider contributions by public or private organizations when VA is presented with a claim for reimbursement of expenses related to the transportation of the remains or the purchase of a burial plot. Proposed § 5.634 would clarify this matter by defining “burial expenses” to include transportation and plot expenses. To further clarify that proposed § 5.651 would apply to all such expenses, paragraph

(a)would state that the rule applies to claims for “burial benefits.” These clarififcations also eliminate the need for current § 3.1604(c), which states that the rule in current § 3.1604(a) applies to the plot or interment allowance. The proposed rule would clarify that the limitations contained in current § 3.1604(a) and

(c)only apply to nonservice-connected burial benefits. Although 38 U.S.C. 2302(b) and 2303(b)(2) limit payment of nonservice-connected burial benefits when payment has been made by a government or employer, 38 U.S.C. 2307, which establishes the right to a service-connected burial allowance, contains no such bar. Proposed paragraph (b), dealing with contributions or payments of burial expenses by other public or private organizations, is derived from current § 3.1604(a) and (c). The proposed rule would clarify that the limitations contained in current § 3.1604(a) and

(c)only apply to nonservice-connected burial benefits. Although 38 U.S.C. 2302(b) bars payment of nonservice-connected burial benefits if they would revert to or relieve an obligation of a public or private organization, 38 U.S.C. 2307, which establishes the right to a service-connected burial allowance, contains no such bar. Because proposed paragraph

(b)relates to both burial allowance and plot or interment allowance, we propose to use the generic term “burial benefits” rather than “burial allowance.” Proposed paragraph

(c)is derived from current § 3.1604(b)(1) and (2). The proposed paragraph differs from the current rule in several respects. Current § 3.1604(b)(1) states: Where a veteran dies while in employment covered by the United States Employees' Compensation Act, as amended, or other similar laws specifically providing for payment of the expenses of funeral, transportation, and interment out of Federal funds, burial allowance will not be authorized by the Department of Veterans Affairs. By specifically listing the “United States Employees’ Compensation Act,” the rule may be misread to apply only when the deceased veteran was a Federal employee. However, 38 U.S.C. 2302(b) requires VA to withhold burial benefits “in any case where specific provision is otherwise made for payment of expenses of funeral, transportation, and interment under any other Act.” We propose to use language in § 5.651(c)(1) that is similar to the statutory language, in order to ensure that the law is given its full intended effect. In addition, current § 3.1604(b)(1) states that where a law specifically provides for “payment of the expenses of funeral, transportation, and interment out of Federal funds, *burial allowance* will not be authorized.” (Emphasis added). The proposed rule would instead make this bar applicable only to the nonservice-connected burial allowance. Although 38 U.S.C. 2302(b) bars payment of the nonservice-connected burial allowance, as described above, 38 U.S.C. 2307, which establishes the right to a service-connected burial allowance, contains no such bar. Likewise, 38 U.S.C. 2303, which establishes the right to a burial allowance for veterans who died while hospitalized by VA and the right to a plot or interment allowance, contains no such bar. Proposed paragraph § 5.651(c)(3) would require an election between service-department and VA burial benefits in cases where both benefits are payable because the veteran died while hospitalized at the expense of the United States government. The rule, which avoids duplicate payments, represents current VA policy previously unstated in regulation. Furthermore, we believe that the election is required by 10 U.S.C. 1482(b), which states, “If reimbursement by the United States is also authorized under another provision of law or regulation, the individual may elect under which provision to be reimbursed.” Section 5.652 Effect of Forfeiture on Payment of Burial Benefits Proposed § 5.652 restates, in plain language, current § 3.1609, which governs the effect of a deceased veteran's or a claimant's forfeiture of the right to receive VA benefits on the right of a claimant to receive burial benefits. The only substantive change is that we propose to remove the requirement, contained in § 3.1609(b) that the pardon must have been granted during the veteran's lifetime. There is no such requirement in the relevant statutes, 38 U.S.C. 6103 and 6104. Moreover, the proposed VA regulation concerning the effect of a Presidential pardon on forfeiture, § 5.682, “Presidential pardon for offenses causing forfeiture,” *see* 71 FR 31056, 31065-68 (May 31, 2006), contains no such requirement, and it would be inconsistent to impose it on claimants seeking burial benefits. Current § 3.1609 lists the authority citations as 38 U.S.C. 5904(c)(2) and 5905(a). However, this citation is outdated. We propose to update the authority citations to the correct authorities, which are 38 U.S.C. 6103, 6104, and 6105, which govern forfeiture for fraud, treason, and subversive activities. Section 5.653 Eligibility Based on Status Before 1958 We propose to repeat the language of current § 3.954 at § 5.653, without change. Additional Regulations From Part 3 That Will Not Be Included in Part 5 For the reasons discussed below, we propose not to include in part 5 the rules contained in the following regulations and paragraphs from current part 3. 38 CFR 3.1610(a) We propose not to include current § 3.1610(a), relating to burial of a deceased veteran in a national cemetery. Current § 3.1610 reads, in relevant part: The statutory burial allowance and permissible transportation charges as provided in §§ 3.1600 through 3.1611 are also payable under the following conditions:

(a)Where burial of a deceased veteran is in a national cemetery, provided that burial in a national cemetery is desired by the person or persons entitled to the custody of the remains for interment and permission for burial has been received from the officers having jurisdiction over burials in national cemeteries * * *. Section 3.1610(a) merely states that burial in a national cemetery does not bar payment of burial benefits. There is no conflicting statement in the proposed regulations that authorize the various monetary burial benefits, which unambiguously state the requirements for payment of burial benefits. Moreover, proposed §§ 5.638(c) and 5.639(a) specifically authorize payment of transportation expenses based on burial in a national cemetery. Hence, there is no reason to include current § 3.1610(a) in part 5. 38 CFR 3.1611 Current § 3.1611 provides: “When requested by the person entitled to the custody of the body of a deceased beneficiary of the Department of Veterans Affairs, official representation at the funeral will be granted provided an employee is available for the purpose and this representation will entail no expense to the Department of Veterans Affairs.” It has been and continues to be VA's policy to accommodate a request for VA representation at the burial of a veteran, subject to issues of availability and cost. However, we do not believe it is necessary to stipulate this policy in the U.S. Code of Federal Regulations. 38 CFR 3.1612 We propose not to include current § 3.1612, which implements a repealed statutory provision. The rule provides a monetary allowance in lieu of a Government-furnished headstone or marker. The authority for the rule is a former version of 38 U.S.C. 2306(d) that was deleted from the United States Code in 1990. Pub. L. 101-508, title VIII, § 8041(a), 104 Stat. 1388, 1388-349 (1990). At the time that section 2306 was amended, VA believed that it was necessary to retain § 3.1612 because we still had authority to offer the benefit to veterans who died before November 1990. *See* § 3.1612(h) (recognizing that the “monetary allowance [payable under § 3.1612] is not payable if death occurred on or after November 1, 1990.”) We believe that the passage of time has rendered the rule obsolete. In the unlikely event that a claimant seeks the monetary allowance authorized under former section 2306(d) based on a veteran who died before November 1990, we would be authorized to pay the benefit pursuant to former section 2306(d), even in the absence of a VA regulation authorizing payment of the benefit. Endnote Regarding Amendatory Language We intend to ultimately remove part 3 entirely, but we are not including amendatory language to accomplish that at this time. VA will provide public notice before removing part 3. Paperwork Reduction Act of 1995 This document contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). Regulatory Flexibility Act The Secretary hereby certifies that this proposed regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Although this rule includes provisions providing for payments to some small entities, including funeral homes and local governments, the provisions merely restate existing provisions of statute and regulation and thus will have no additional impact on such small entities. Therefore, pursuant to 5 U.S.C. 605(b), this proposed amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. Executive Order 12866 Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget

(OMB)unless OMB waives such review, as any regulatory action that is likely to result in a rule that may:

(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2)Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3)Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4)Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. The economic, interagency, budgetary, legal, and policy implications of this proposed rule have been examined and it has been determined to be a significant regulatory action under the Executive Order because it is likely to result in a rule that may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Unfunded Mandates The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any 1 year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector. Catalog of Federal Domestic Assistance Numbers and Titles The Catalog of Federal Domestic Assistance program numbers and titles for this proposal are 64.100, Automobiles and Adaptive Equipment for Certain Disabled Veterans and Members of the Armed Forces; 64.101, Burial Expenses Allowance for Veterans; 64.102, Compensation for Service-Connected Deaths for Veterans' Dependents; 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, and Children; 64.106, Specially Adapted Housing for Disabled Veterans; 64.109, Veterans Compensation for Service-Connected Disability; 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death; 64.115, Veterans Information and Assistance; and 64.127, Monthly Allowance for Children of Vietnam Veterans Born with Spina Bifida. List of Subjects in 38 CFR Part 5 Administrative practice and procedure, Claims, Disability benefits, Health care, Pensions, Radioactive materials, Veterans, Vietnam. Approved: December 26, 2007. Gordon H. Mansfield, Deputy Secretary of Veterans Affairs. For the reasons set out in the preamble, VA proposes to amend 38 CFR part 5 as proposed to be added at 69 FR 4832, January 30, 2004, by adding subpart J to read as follows: PART 5—COMPENSATION, PENSION, BURIAL, AND RELATED BENEFITS Subpart J—Burial Benefits Sec. 5.630 Types of VA burial benefits. 5.631 Deceased veterans for whom VA may provide burial benefits. 5.632 Persons who may receive burial benefits. 5.633 Claims. 5.634 Reimbursable burial expenses—General. 5.635 Reimbursable transportation expenses for veterans who are buried in a national cemetery or who died while hospitalized by VA. 5.636 Burial of veterans whose remains are unclaimed. 5.637 [Reserved] 5.638 Burial allowance based on service-connected death. 5.639 Transportation expenses for burial in a national cemetery. 5.640-5.642 [Reserved] 5.643 Burial allowance based on nonservice-connected death. 5.644 Burial allowance for veteran who died while hospitalized by VA. 5.645 Plot or interment allowance. 5.646-5.648 [Reserved] 5.649 Priority of payments when there is more than one claimant. 5.650 Escheat (payment of burial benefits to an estate with no heirs). 5.651 Effect of contributions by government, public, or private organizations. 5.652 Effect of forfeiture on payment of burial benefits. 5.653 Eligibility based on status before 1958. 5.654-5.659 [Reserved] Authority: 38 U.S.C. 501(a) and as noted in specific sections. § 5.630 Types of VA burial benefits.

(a)*Burial benefits* . VA provides the following types of burial benefits, which are discussed in §§ 5.631 through 5.659 of this part:

(1)Burial allowance based on service-connected death;

(2)Burial allowance based on nonservice-connected death;

(3)Burial allowance for veteran who died while hospitalized by VA;

(4)Burial plot or interment allowance; and

(5)Allowance for transportation of remains.

(b)*Cross references* . Other benefits and services related to the memorialization of deceased veterans include the following:

(1)Burial in a national cemetery (§§ 38.600 through 38.629 of this chapter);

(2)Presidential memorial certificates (38 U.S.C. 112);

(3)Burial flags (§ 1.10 of this chapter); and

(4)Headstones or markers (§§ 38.630 through 38.633 of this chapter). § 5.631 Deceased veterans for whom VA may provide burial benefits.

(a)*Definition of “veteran” for purposes of burial benefits* . For the purposes of this subpart, a “veteran” is a person who:

(1)Had active military service and who was discharged or released;

(2)Died during authorized travel to or from a period of active duty under § 5.29(a)(1); or

(3)Is entitled to a burial benefit based on a specific provision of law.

(b)* Character of discharge* . The period of active military service upon which the claim is based must have ended by discharge or release under conditions other than dishonorable.

(c)*Line of duty determinations* . Where a claim for burial benefits would be or has been disallowed because the service department holds that the veteran's disability was not incurred in line of duty and VA receives evidence that permits a different finding, the decision of the service department is not binding on VA and VA will determine line of duty. The burden of proof rests upon the claimant. (Authority: 38 U.S.C. 101(2)), 2302, 2307) § 5.632 Persons who may receive burial benefits. VA may grant a claim for burial benefits filed by any individual for a burial expense reimbursable by VA under this subpart, up to the amount of the applicable statutory burial allowance. Except in claims filed by a State or an agency or political subdivision of a State under § 5.636(c) or § 5.645(a), such individuals generally include (but are not limited to) the following:

(a)The funeral director, if the entire bill is unpaid or if there is any unpaid balance.

(b)Any individual who used personal funds to pay or help pay burial expenses.

(c)The executor or administrator of the estate of any person, including the estate of the deceased veteran, who prepaid the burial expenses. If no executor or administrator has been appointed, VA may pay burial benefits based on a claim filed by a person acting for such estate who will make distribution of the burial benefits to the person or persons entitled to such distribution under the laws of the veteran's last State of residence.

(d)In a claim for a plot or interment allowance under § 5.645(b), the person or entity from whom the burial plot was purchased, if the entire bill was unpaid or if there was any unpaid balance. (Authority: 38 U.S.C. 2302, 2307) § 5.633 Claims.

(a)*When claims must be filed* —(1) *General.* Except as provided in paragraph (a)(2) of this section, claims for the nonservice-connected burial allowance must be received by VA no later than 2 years after the burial of the veteran. No other time limitations apply to claims for burial benefits under this subpart.

(2)*Correction of character of discharge.* If the nonservice-connected burial allowance was not payable at the death of the veteran because of the nature of the veteran's discharge from service, VA may pay the allowance if a deceased veteran's discharge is corrected by competent authority to reflect a discharge under conditions other than dishonorable. Claims for the nonservice-connected burial allowance must be filed no later than 2 years after the date that the discharge was corrected.

(b)*Supporting evidence* —(1) *General.* Evidence required to substantiate a claim for burial benefits must be submitted no later than 1 year after the date VA requests such evidence. In order to pay burial benefits, VA must receive all of the following:

(i)A proper claim form.

(ii)Proof of death in accordance with § 5.500.

(iii)A statement of account, preferably on letterhead or in the form of an invoice from the funeral director or cemetery owner, showing: the name of the deceased veteran; the plot or interment expenses incurred; the dates and expenses incurred for services rendered; the expenses incurred for any merchandise provided; any credits or payments received; and the unpaid balance.

(iv)A receipt from the funeral director and/or cemetery owner showing by whom payment was made and showing receipt directly by the funeral director and/or cemetery owner, or such person's representative. Receipts for transportation charges must also show the dates of the services rendered, the name of the deceased veteran who was transported, and the name of the person who paid the transportation charges.

(v)If the claim is filed by an heir for burial expenses paid using funds from the veteran's estate or some other deceased person's estate, the claim must include waivers or evidence of unconditional consent from all other heirs, and the identity and right of all other persons to share in that estate must have been established.

(2)*Nonservice-connected deaths.* In the case of a veteran whose death was not service connected, VA may establish qualifying service based upon evidence of service that VA relied upon to award compensation or pension during the veteran's lifetime, unless there is some other evidence which creates doubt as to the correctness of that evidence of service. (Authority: 38 U.S.C. 2304, 5107(a)) § 5.634 Reimbursable burial expenses—General.

(a)*General.* The term “burial expenses” as used in this subpart means expenses of the funeral, transportation, and plot or interment of a deceased veteran. Generally, VA will reimburse burial expenses up to the applicable statutory limit.

(b)*Non-reimbursable burial expenses.* VA will not allow reimbursement for burial expenses incurred for any of the following:

(1)*Flags.* A privately purchased burial flag, except when VA was unable to provide a burial flag.

(2)*Duplicate items.* Any item or service, such as a casket or clothing, previously provided or paid for by the U.S. Government.

(3)*Accessory items.* An item or service that is not necessary or related to the funeral, burial, or transportation of the deceased veteran. (Authority: 38 U.S.C. 2301, 2302, 2303(a), 2307) § 5.635 Reimbursable transportation expenses for veterans who are buried in a national cemetery or who died while hospitalized by VA. The transportation expenses of those persons who come within the provisions of §§ 5.639 and 5.644 may include the following:

(a)*Shipment by common carrier* —(1) *Pickup of remains.* Charge for pickup of remains from place hospitalized or place of death but not to exceed the usual and customary charge made to the general public for the same service.

(2)*Procuring permit for shipment.*

(3)*Shipping case.* When a box purchased for burial purposes is also used as the shipping case, the amount payable may not exceed the usual and customary charge for a shipping case. In any such instance any excess amount would be an acceptable item to be reimbursed as a burial expense.

(4)*Sealing.* Expense of sealing outside case (tin or galvanized iron), if a vault (steel or concrete) is used as a shipping case and also for burial, an allowance of $30 may be made thereon in lieu of a separate shipping case.

(5)*Hearse to common carrier.* Expense of hearse to point where remains are to be placed on common carrier for shipment.

(6)*Transportation and Federal taxes.* Expense of transportation by common carrier including amounts paid as Federal taxes.

(7)*Removal by hearse.* Expense of one removal by hearse direct from common carrier plus one later removal by hearse to place of burial.

(b)*Transported by hearse.*

(1)Charge for pickup of remains from place hospitalized or place of death and charge for one later removal by hearse to place of burial. These charges will not exceed those made to the general public for the same services.

(2)Payment of hearse charges for transporting the remains over long distances are limited to prevailing common carrier rates when common carrier service is available and can be easily and effectively utilized. (Authority: 38 U.S.C. 2303, 2308) § 5.636 Burial of veterans whose remains are unclaimed.

(a)*Unclaimed veteran's remains; burial allowance based on nonservice-connected death.* When a veteran's remains are unclaimed, burial allowance is payable either:

(1)Under § 5.643, “Burial allowance based on nonservice-connected death,” if the requirements of that section are met; or

(2)If a deceased veteran either served during wartime (as defined in § 5.20, “Dates of periods of war”) or was discharged or released from active military service for a disability incurred or aggravated in line of duty and the following conditions are met:

(i)The remains of the deceased veteran are being held by a State (or a political subdivision of a State); and

(ii)An appropriate official of the State or (a political subdivision of the State) where the remains are being held certifies in writing that:

(A)There is no next of kin or other person claiming the remains of the deceased veteran; and

(B)There are not available sufficient resources in the veteran's estate to cover the burial expenses.

(b)*Unclaimed veteran's remains: burial allowance based on service-connected death.* Benefits are payable under § 5.638, “Burial allowance based on service-connected death” if the requirements of that section are met.

(c)*Plot or interment allowance.* Benefits are payable under § 5.645, “Plot or interment allowance” if the requirements of that section are met.

(d)*Burial.* When a veteran's remains are unclaimed, the Director of the VA regional office in the area in which the veteran died will immediately complete arrangements for burial in a national cemetery or, at his or her option, in a cemetery or cemetery section meeting the requirements of § 5.645(a), provided that the total amount payable for burial expenses does not exceed the total amount payable had burial been in a national cemetery. (Authority: 38 U.S.C. 2302(a)) § 5.637 [Reserved] § 5.638 Burial allowance based on service-connected death.

(a)*General.* VA will pay a burial allowance of up to the amount specified in 38 U.S.C. 2307 to reimburse claimants for the burial expenses paid for a veteran who died as a result of a service-connected disability or disabilities (as described in § 5.504). Subject to paragraph

(c)of this section, payment of the service-connected burial allowance is in lieu of other allowances authorized by this subpart and is subject to the applicable further regulations in this subpart.

(b)*Exceptions.* VA will not pay the service-connected burial allowance if:

(1)Compensation for the cause of death is payable only under 38 U.S.C. 1151 (which provides compensation where a disability or death was caused by VA hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program); or

(2)The basis of the claim for burial allowance is entitlement to dependency and indemnity compensation under 38 U.S.C. 1318 (which provides for benefits for survivors of certain veterans rated totally disabled at the time of death as if the cause of death were service-connected).

(c)*Additional allowances available based on service-connected death.* In addition to the service-connected burial allowance authorized by this section:

(1)VA may provide reimbursement for transportation expenses related to burial in a national cemetery under § 5.639; and

(2)VA may pay the plot or interment allowance for burial in State veterans cemetery under § 5.645(a). (Authority: 38 U.S.C. 2307, 2308) § 5.639 Transportation expenses for burial in a national cemetery.

(a)*Eligibility.* VA will pay for the expense incurred, subject to paragraph

(b)of this section, to transport a veteran's remains for burial in a national cemetery if the veteran:

(1)Died as the result of a service-connected disability; or

(2)Was in receipt of service-connected disability compensation at the time of death; or

(3)Would have been in receipt of service-connected disability compensation at the time of death, but for the receipt of military retired pay or nonservice-connected disability pension.

(b)*Amount payable.* The amount payable under this section may not exceed the cost of transporting the remains to the national cemetery closest to the veteran's last place of residence in which burial space is available, and is subject to the limitations set forth in § 5.635 (relating to reimbursable transportation expenses) and § 5.651 (relating to the effect of contributions by government, public, or private organizations).

(c)*Eligibility exceptions.* VA will not provide payment under this section if:

(2)The basis of the claim for transportation expenses is entitlement to dependency and indemnity compensation under 38 U.S.C. 1318 (which provides for benefits for survivors of certain veterans rated totally disabled at the time of death as if the cause of death were service-connected). (Authority: 38 U.S.C. 2308) §§ 5.640-5.642 [Reserved] § 5.643 Burial allowance based on nonservice-connected death.

(a)*General.* VA will pay a burial allowance of up to the amount specified in 38 U.S.C. 2302 to reimburse claimants for the burial expenses paid for a veteran described in paragraph

(b)of this section. Payment of the nonservice-connected burial allowance is subject to the applicable further regulations in this subpart.

(b)*Eligibility.* VA will pay a nonservice-connected burial allowance under this section based upon a veteran whose death was not service connected (as described in § 5.504), *i.e.* , was not the result of a service-connected disability or disabilities, when the deceased veteran at the time of death:

(1)Was receiving VA pension or disability compensation; or

(2)Would have been in receipt of disability compensation but for the receipt of military retirement pay; or

(3)Had any of the following claims pending:

(i)An original claim for pension or disability compensation, and the evidence in the claims file on the date of death and any evidence received under paragraph

(d)of this section was sufficient to award pension or disability compensation effective before the date of death; or

(ii)A claim to reopen a pension or disability compensation claim, based on new and material evidence, and the evidence in the claims file on the date of the veteran's death and any evidence received under paragraph

(d)of this section was sufficient to reopen the claim and award pension or disability compensation effective before the date of death.

(c)*Evidence in the claims file on the date of the veteran's death* means evidence in VA's possession on or before the date of the deceased veteran's death, even if such evidence was not physically located in the VA claims file on or before the date of death.

(d)*Requesting additional evidence.* If the veteran had either an original claim or a claim to reopen pending at the time of death but the information in the claims file was not sufficient to award pension or disability compensation effective before the date of death, and VA determines that additional evidence is needed to confirm that the deceased would have been entitled prior to death, VA will request such evidence. If such evidence is not received by VA within 1 year from the date of the request, the claim will be denied.

(e)*Additional allowances available based on nonservice-connected death.* In addition to the nonservice-connected burial allowance authorized by this section:

(1)VA may provide reimbursement for transportation expenses related to burial in a national cemetery under § 5.639, but only if entitlement under paragraphs (b)(1) through

(3)of this section is based on a claim for or award of compensation, rather than a claim for or award of pension; and

(2)VA may pay the plot or interment allowance for burial in State veterans cemetery under § 5.645(a). (Authority: 38 U.S.C. 2302, 2304) § 5.644 Burial allowance for veteran who died while hospitalized by VA.

(a)*General.* VA will pay a burial allowance of up to the amount specified in 38 U.S.C. 2303(a) to reimburse claimants for the burial expenses paid for a veteran described in paragraph

(b)of this section. VA may pay an additional amount for transportation of the remains to the place of burial, as described in paragraph

(d)of this section. VA may pay an additional amount for the burial plot, as described in § 5.645. Payment under this section is subject to the applicable further regulations in this subpart.

(b)*Eligibility for burial allowance.* A burial allowance is payable under this section based upon a veteran whose death was not service connected and who died while hospitalized by VA. For the purposes of this allowance, a veteran was hospitalized by VA if the veteran:

(1)Was admitted to a VA facility (as described in 38 U.S.C. 1701(3)) for hospital, nursing home, or domiciliary care under the authority of 38 U.S.C. 1710 or 1711(a); or

(2)Was transferred or admitted to a non-VA facility (as described in 38 U.S.C. 1701(4)) for hospital care under the authority of 38 U.S.C. 1703; or

(3)Was transferred or admitted to a nursing home for nursing home care at the expense of the United States, under the authority of 38 U.S.C. 1720; or

(4)Was transferred or admitted to a State nursing home for nursing home care for which payment is authorized under the authority of 38 U.S.C. 1741; or

(5)Died while traveling under proper prior authorization and at VA expense to or from a specified place for the purpose of examination, treatment, or care; or

(6)Was hospitalized by VA pursuant to paragraph (b)(1) through

(4)of this section but was not at the VA facility at the time of death and was:

(i)On authorized absence that did not exceed 96 hours at the time of death; or

(ii)On unauthorized absence for a period not in excess of 24 hours at the time of death; or

(iii)Absent from the hospital for a period not in excess of 24 hours of combined authorized and unauthorized absence at the time of death.

(c)*Hospitalization in the Philippines.* Hospitalization in the Philippines under 38 U.S.C. 1731, 1732, and 1733 does not meet the requirements of this section.

(d)*Reimbursement of transportation expenses.* In addition to the burial allowance authorized by this section, VA will reimburse for the expense of transportation of the remains of an individual described in paragraph

(b)of this section to the place of burial where death occurs:

(1)Within a State or the Canal Zone (as defined by 38 U.S.C. 101(20)) and the remains are buried in a State or the Canal Zone; or

(2)Within a State or the Canal Zone (as defined by 38 U.S.C. 101(20)) but burial is to be outside of a State or the Canal Zone, except that reimbursement for the expense of transportation of the remains will be authorized only from the place of death to the port of embarkation, or to the border limits of the United States where burial is in Canada or Mexico. (Authority: 38 U.S.C. 2303, 2307) § 5.645 Plot or interment allowance.

(a)*Plot or interment allowance for burial in a State veterans cemetery.* VA will pay the plot or interment allowance in the maximum amount specified in 38 U.S.C. 2303(b)(1) to a State, or an agency or political subdivision of a State that provided a burial plot for a veteran (without regard to whether any other burial benefits were provided based on that veteran) when:

(1)The veteran was eligible for burial in a national cemetery under 38 U.S.C. 2402 but was not buried in a national cemetery or other cemetery under the jurisdiction of the United States; and

(2)The veteran was buried in a cemetery, or a section of a cemetery, which is owned by the State, or an agency or political subdivision of the State, which is claiming the plot or interment allowance; and

(3)The State or agency or political subdivision of the State did not charge for the expense of the plot or interment; and

(4)The cemetery, or section of a cemetery, is used solely for the interment of any or all of the following:

(i)Persons eligible for burial in a national cemetery;

(ii)In claims based on veterans dying on or after November 1, 2000, deceased members of a reserve component of the Armed Forces not otherwise eligible for interment in a national cemetery;

(iii)In claims based on veterans dying on or after November 1, 2000, deceased former members of a reserve component of the Armed Forces not otherwise eligible for interment in a national cemetery who were discharged or released from service under conditions other than dishonorable.

(b)*Plot or interment allowance payable based on burial in other than a State veterans cemetery.* VA will provide a plot or interment allowance of up to the amount specified in 38 U.S.C. 2303(b)(2) to reimburse claimants who incurred plot or interment expenses relating to the purchase of a burial plot for a deceased veteran who was eligible for burial in a national cemetery under 38 U.S.C. 2402 but was not buried in a national cemetery or other cemetery under the jurisdiction of the United States and who:

(1)Is eligible for a burial allowance under §§ 5.643 (nonservice-connected burial allowance) or 5.644 (death while hospitalized by VA); or

(2)Was discharged from active military service for a disability incurred in or aggravated in line of duty (in such cases, VA will accept the official service record as proof of eligibility for the plot or interment allowance and VA will disregard any previous VA determination made in connection with a claim for monetary benefits that the disability was not incurred or aggravated in line of duty); or

(3)Who, at the time of discharge from active military service, had a disability, shown by official service records, which in medical judgment would have justified a discharge for disability.

(c)*Definitions.* For the purposes of this subpart, “plot” or “burial plot” means the final disposal site of the remains, whether it is a grave, mausoleum vault, columbarium niche, or other similar place. “Plot or interment expenses” are those expenses associated with the final disposition of the remains and are not confined to the acts done within the burial grounds but may include the removal of remains for burial or interment. (Authority: 38 U.S.C. 501(a), 2303(b)) §§ 5.646-5.648 [Reserved] § 5.649 Priority of payments when there is more than one claimant.

(a)*Persons who performed services or provided items.* VA will reimburse, before all other claimants, claimants who performed services or provided items (including a burial plot) and who have not been fully paid for the services or items.

(b)*Two or more persons used personal funds.* If two or more claimants have paid personal funds toward the burial expenses, the applicable burial benefit(s) will be divided among such claimants in accordance with the proportionate share paid by each.

(c)*Personal funds* vs. *veteran's estate.* VA will reimburse claimants who used their own personal funds before VA will reimburse the estate of the deceased veteran for amounts that the estate paid toward allowable burial expenses.

(d)*Plot or interment allowance.*

(1)An unpaid bill for a burial plot will take precedence in payment of the plot or interment allowance over claims for other plot or interment expenses. Any remaining balance of the plot or interment allowance may then be applied to the other plot or interment expenses.

(2)Notwithstanding paragraphs

(a)through

(c)of this section, VA will provide the entire plot or interment allowance under § 5.645(a) to an eligible State, or an agency or political subdivision of a State, rather than any other claimant for plot or interment allowance.

(e)*Exceptions for waivers.* Notwithstanding paragraphs

(a)through

(d)of this section, any claimant may waive his or her right to receive burial benefits in favor of another claimant. However, even when waiver is executed in favor of a particular claimant, VA cannot pay that claimant more than the claimant personally paid toward allowable burial expenses. (Authority: 38 U.S.C. 2302, 2307) § 5.650 Escheat (payment of burial benefits to an estate with no heirs). VA will not pay burial benefits when the payment would escheat ( *i.e.* , would be turned over to the State because the estate of the person to whom such benefits would be paid has no heirs). (Authority: 38 U.S.C. 501) § 5.651 Effect of contributions by government, public, or private organizations.

(a)*Contributions by government or employer.* When a claimant files a claim for nonservice-connected burial benefits and contributions or payments to burial expenses have been made by the United States, a State, any agency or political subdivision of the United States or of a State, or the employer of the deceased veteran, VA will reimburse the claimant up to the lesser of:

(1)The allowable statutory amount; or

(2)The amount of the total burial expenses minus the amount of burial expenses paid by any or all of the organizations described in this paragraph.

(b)*Contributions or payments by any other public or private organization.* Contributions or payments by any other public or private organization, such as a lodge, union, fraternal or beneficial organization, society, burial association, or insurance company, will bar payment of nonservice-connected burial benefits if such benefits would revert to the funds of such organization or would discharge such organization's obligation without payment. This section does not apply to contributions or payments on the burial expenses that are made for humanitarian reasons if the organization making the contribution or payment is under no legal obligation to do so.

(c)*Burial expenses paid by other agencies of the United States.*

(1)*Burial allowance when Federal law or regulation also provides for payment.* VA cannot pay the nonservice-connected burial allowance when any Federal law or regulation also specifically provides for the payment of the deceased veteran's burial expenses. However, VA will pay the nonservice-connected burial allowance when a Federal law or regulation allows the payment of burial expenses using funds due, or accrued to the credit of, the deceased (such as Social Security benefits), but the law or regulation does not specifically require such payment. In such cases, VA will pay the difference between the total burial expenses and the amount paid thereon under such provision, not to exceed the amount specified in 38 U.S.C. 2302.

(2)*Payment by service department.* Burial allowance is not payable for deaths in active military service, or for other deaths where the burial expenses are paid by the service department.

(3)*When veteran dies while hospitalized.* When a veteran dies while hospitalized at the expense of the United States government (including death in a VA facility), the veteran's service department may be authorized to pay burial benefits under 10 U.S.C. 1481 or to reimburse an individual who paid such expenses under 10 U.S.C. 1482. The deceased veteran may also qualify for VA burial benefits. Only one of these benefits is payable. VA will attempt to locate the nearest relative or person entitled to reimbursement and will ask that individual to elect between these benefits.

(d)*Effect of payments made to a designated beneficiary of contract or insurance policy.* A contract or insurance policy that provides for payment on the death of a veteran to a designated beneficiary, who is not the person that actually provided the burial and funeral services, will not bar payment of burial benefits to the beneficiary. Payment is not barred even if the organization that issued the contract or policy has the option of making payment directly to the provider of the burial and funeral services. (Authority: 38 U.S.C. 2302(b), 2307) § 5.652 Effect of forfeiture on payment of burial benefits.

(a)*Forfeiture for fraud.* VA will pay burial benefits, if otherwise in order, based on a deceased veteran whose rights to receive VA benefits were forfeited due to fraud under § 5.676. However, VA will not pay burial benefits to a claimant who participated in fraudulent activity that resulted in forfeiture under § 5.676.

(b)*Forfeiture for treasonable acts or for subversive activity.* Burial benefits are not payable based on a period of service commencing prior to the date of commission of the offense where either the veteran or claimant has forfeited the right to gratuitous benefits § 5.677 or § 5.678 by reason of a treasonable act or subversive activities, unless the offense was pardoned by the President of the United States. (Authority: 38 U.S.C. 6103, 6104, 6105) § 5.653 Eligibility based on status before 1958. When any person who had a status under any law in effect on December 1, 1957, which afforded entitlement to burial benefits dies, the burial allowance will be paid, if otherwise in order, even though such status does not meet the service requirements of 38 U.S.C. chapter 23. (Authority: 38 U.S.C. 2305) §§ 5.654-5.659 [Reserved] [FR Doc. E8-7234 Filed 4-7-08; 8:45 am] BILLING CODE 8320-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2008-0036-200801(b); FRL-8552-1] Approval and Promulgation of Implementation Plans; North Carolina: Approval of Revisions to the 1-Hour Ozone Maintenance Plan for the Raleigh/Durham and Greensboro/Winston-Salem/High Point Areas AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a February 4, 2008, revision to the State Implementation Plan submitted by the North Carolina Department of Environment and Natural Resources on behalf of the State of North Carolina for the purpose of revising the subarea motor vehicle emissions budgets (MVEBs) for volatile organic compounds and nitrogen oxides for the Greensboro/Winston-Salem/High Point area. The Greensboro/Winston-Salem/High Point 1-hour ozone maintenance area (also referred to as the “Triad Area”) is comprised of Davidson, Forsyth, and Guilford Counties and a portion of Davie County. The revisions to the subarea MVEBs are approvable because of an available safety margin for volatile organic compounds and nitrogen oxides for this Area. In the Final Rules Section of this **Federal Register** , EPA is approving the State's SIP revision as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period on this document. Any parties interested in commenting on this document should do so at this time. DATES: Written comments must be received on or before May 8, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-OAR-2008-0036, by one of the following methods: 1. *www.regulations.gov:* Follow the on-line instructions for submitting comments.

(a)*E-mail: ward.nacosta@epa.gov* or *wood.amanetta@epa.gov.*

(b)*Fax:*

(404)562-9019. 2. *Mail:* EPA-R04-OAR-2008-0036, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. 3. Nacosta C. Ward, Regulatory Development Section, or Amanetta Wood, Air Quality Modeling Transportation Section, of the Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays. Please see the direct final rule which is located in the Rules section of this **Federal Register** for detailed instructions on how to submit comments. FOR FURTHER INFORMATION CONTACT: Ms. Nacosta C. Ward of the Regulatory Development Section, or Ms. Amanetta Wood, Air Quality Modeling Transportation Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone numbers are

(404)562-9140 and

(404)562-9025 respectively. Ms. Nacosta Ward can be reached via electronic mail at *ward.nacosta@epa.gov* Ms. Amanetta Wood can be reached via electronic mail at *wood.amanetta@epa.gov.* SUPPLEMENTARY INFORMATION: For additional information see the direct final rule which is published in the Rules Section of this **Federal Register** . Dated: March 27, 2008. J.I. Palmer, Jr., Regional Administrator, Region 4. [FR Doc. E8-7187 Filed 4-7-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 62 [EPA-R03-OAR-2008-MD-0209; FRL-8552-6] Approval and Promulgation of State Air Quality Plans for Designated Facilities and Pollutants; State of Maryland; Control of Large Municipal Waste Combustor

(LMWC)Emissions From Existing Facilities AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA proposes to approve the Maryland Department of the Environment

(MDE)large municipal waste combustor plan (the plan) revision for implementing Clean Air Act (the Act) emission guideline

(EG)amendments promulgated by EPA on May 10, 2006. The plan revision establishes revised emission limits, monitoring, and recordkeeping requirements for existing LMWC units with a unit capacity greater than 250 tons per day (TPD). An existing LMWC unit is one for which construction commenced on or before September 20, 1994. In the Final Rules section of this **Federal Register** , EPA is approving the State's 111(d)/129 plan revision submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed description for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. DATES: Comments must be received in writing by May 8, 2008. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2008-MD-0209 by one of the following methods: A. *http://www.regulations.gov.* Follow the on-line instructions for submitting comments. B. *E-mail: http://wilkie.walter@epa.gov.* C. *Mail:* EPA—R03-OAR-2008-MD-0209, Walter Wilkie, Chief, Air Quality Analysis Branch, Mailcode 3AP22, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2008-MD-0209. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230. FOR FURTHER INFORMATION CONTACT: James B. Topsale, P.E., at

(215)814-2190, or by e-mail at *topsale.jim@epa.gov.* SUPPLEMENTARY INFORMATION: For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section for this **Federal Register** publication. Dated: March 31, 2008. Donald S. Welsh, Regional Administrator, Region III. [FR Doc. E8-7345 Filed 4-7-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 32, 43, 52, and 53 [FAR Case 2005-032; Docket 2008-0002; Sequence 4] RIN: 9000-AI47 Federal Acquisition Regulation; FAR Case 2005-032, Contractor’s Request for Progress Payments AGENCIES: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Proposed rule. SUMMARY: The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are proposing to amend the Federal Acquisition Regulation

(FAR)to implement recommendations to improve the regulations at FAR 32.001, 32.5, and 52.232-16 related to requests for progress payments and the Standard Form

(SF)1443, Contractor's Request for Progress Payments form used to request those progress payments. DATES: Interested parties should submit written comments to the FAR Secretariat on or before June 9, 2008 to be considered in the formulation of a final rule. ADDRESSES: Submit comments identified by FAR Case 2005-032 by any of the following methods: • Regulations.gov: *http://www.regulations.gov* . Submit comments via the Federal eRulemaking portal by inputting “FAR Case 2005-032” under the heading “Comment or Submission”. Select the link “Send a Comment or Submission” that corresponds with FAR Case 2005-032. Follow the instructions provided to complete the “Public Comment and Submission Form”. Please include your name, company name (if any), and “FAR Case 2005-032” on your attached document. • Fax: 202-501-4067. • Mail: General Services Administration, Regulatory Secretariat (VPR), 1800 F Street, NW, Room 4035, ATTN: Diedra Wingate, Washington, DC 20405. *Instructions:* Please submit comments only and cite FAR case 2005-032 in all correspondence related to this case. All comments received will be posted without change to *http://www.regulations.gov* , including any personal and/or business confidential information provided. FOR FURTHER INFORMATION CONTACT Ms. Meredith Murphy, Procurement Analyst, at

(202)208-6925 for clarification of content. For information pertaining to status or publication schedules, contact the FAR Secretariat at

(202)501-4755. Please cite FAR case 2005-032. SUPPLEMENTARY INFORMATION: A. Background The proposed changes to FAR 32.001, 32.501-3, 32.503-6, 52.232-16 and the SF 1443, Contractor's Request for Progress Payments are to

(1)address revisions to the paid cost rule, and

(2)simplify the form and related regulations, and instructions to improve clarity. These proposed changes originated as a part of a review of the SF 1443 and related regulations by the Department of Defense (DoD). As a part of this review, the DoD requested input from both Department contracting professionals and the general public (see **Federal Register** 69 FR 67899, dated November 22, 2004). The recommendations resulting from that effort were considered in developing the proposed rule language reported herein. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. B. Discussion The Councils are revising the following FAR provisions: 1. FAR 32.001 is revised to add a definition for the term “Liquidate.” This proposed change is made to ensure that all parties understand what is meant by this term which is used frequently throughout FAR Part 32. 2. FAR 32.501-3(a)(1) is revised to ensure that the term “contract price” is used consistently in 32.501-3 and the SF 1443. This change is proposed to clarify that “contract price” includes the total amount to be paid for complete performance of the contract, to include the not-to-exceed amounts on unpriced modifications. Related changes are proposed to the instructions for Item 5 of the SF 1443. 3. FAR 32.503-1 is deleted, in its entirety. The language requiring the contractor to use the SF 1443 to request progress payments is moved to 52.232-16(g)(3). This change is made to move the requirement to use the form into the contract clause. New language is added allowing electronic submission of the SF 1443. 4. FAR 32.503-6(f) and (g), and 52.232-16(a)(9) and (c)(5) are revised to clarify the computation of the loss ratio. 5. FAR 52.232-16(g)(2) is added to require that contractors use current estimates to complete when preparing the SF 1443. Related changes are proposed for the SF 1443 Line 12b and related instructions. 6. Various other changes to the SF 1443 and related instructions are also proposed:

(a)Line 4 “Contract Number” is changed to require that the contractor include the Delivery or Task Order number, if applicable, so that the paying office can associate the SF 1443 with the correct order.

(b)Lines 9—11 are revised to reflect changes made to the “paid cost rule” in an earlier Final Rule.

(c)Line 14 is revised to make the language on the form consist with that of 52.232-16. A related change is also made to Line 20.

(d)Line 23 is revised to clarify that the amount on this line is the dollars that have been liquidated as well as the dollars to be liquidated.

(e)Minor editorial changes are proposed for various portions of the SF 1443 and related instructions. C. Regulatory Flexibility Act The Councils do not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, *et seq.* , because this proposed rule will not change the rules for buying or add a new information collection requirement. It will not have a significant economic impact to simplify the SF 1443 and related regulations and instructions. Further, most contracts awarded to small entities use the simplified acquisition procedures or are awarded on a competitive, fixed-price basis; neither of these requires the completion of the SF 1443. An Initial Regulatory Flexibility Analysis has, therefore, not been performed. We invite comments from small businesses and other interested parties. The Councils will consider comments from small entities concerning the affected FAR Part 32, 43, 52, and 53 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601, *et seq.* (FAR case 2005-032), in correspondence. D. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the proposed changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, *et seq.* List of Subjects in 48 CFR Parts 32, 43, 52, and 53 Government procurement. Dated: April 1, 2008. Al Matera, Director, Office of Acquisition Policy. Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 32, 43, 52, and 53 as set forth below: 1. The authority citation for 48 CFR parts 32, 43, 52, and 53 continues to read as follows: Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c). PART 32—CONTRACT FINANCING 2. Amend Section 32.001 by adding, in alphabetical order, the definition “Liquidate” to read as follows: 32.001 Definitions. *Liquidate* means to decrease a payment for an accepted supply item or service under a contract for the purpose of recouping financing payments previously paid to the contractor. 3. Amend section 32.501-3 by revising paragraphs (a)(1) and (a)(3) to read as follows: 32.501-3 Contract price.

(a)* * *

(1)Under firm-fixed price contracts, the contract price is the current amount fixed by the contract plus the not-to-exceed amount for any unpriced modifications.

(3)Under a fixed-price incentive contract, the contract price is the target price plus the not-to-exceed amount of unpriced modifications. However, if the contractor's properly incurred costs exceed the target price, the contracting officer may provisionally increase the price up to the ceiling or maximum price. 32.503-1 [Reserved] 4. Remove and reserve section 32.503-1. 5. Amend section 32.503-6 by revising paragraphs (a)(3), (f), and (g)(1)(i) to read as follows: 32.503-6 Suspension or reduction of payments.

(a)* * *

(3)In all cases, the contracting officer shall—

(i)Act fairly and reasonably.

(ii)Base decisions on substantial evidence.

(iii)Document the contract file. Findings made under paragraph

(c)of the Progress Payments clause shall be in writing.

(f)*Fair value of undelivered work.* Progress payments must be commensurate with the fair value of work accomplished in accordance with contract requirements. The contracting officer must adjust progress payments when necessary to ensure that the fair value of undelivered work equals or exceeds the amount of unliquidated progress payments. On loss contracts contracts, the application of a loss ratio as provided at paragraph

(g)of this section constitutes this adjustment.

(g)* * *

(1)* * *

(i)Revise the current contract price used in progress payment computations (the current ceiling price under fixed-price incentive contracts) to include the not-to-exceed amount for any pending change orders and unpriced orders. PART 43—CONTRACT MODIFICATIONS 43.102 [Amended] 6. Amend section 43.102 by removing from paragraph

(b)the word “maximum” and adding the word “ceiling” in its place. PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 7. Amend section 52.232-16 by revising the date of the clause; by adding paragraph (a)(9); and by revising paragraphs (c)(5) and

(g)to read as follows: 52.232-16 Progress Payments. PROGRESS PAYMENTS

(a)* * *

(9)The costs applicable to items delivered, invoiced, and accepted shall not include costs in excess of the contract price of the items.

(c)* * *

(5)The fair value of the undelivered work is less than the amount of unliquidated progress payments for that work.

(g)*Reports, forms, and access to records.*

(1)The Contractor shall promptly furnish reports, certificates, financial statements, and other pertinent information (including estimates to complete) reasonably requested by the Contracting Officer for the administration of this clause. Also, the Contractor shall give the Government reasonable opportunity to examine and verify the Contractor's books, records, and accounts.

(2)The Contractor shall furnish estimates to complete that have been developed or updated within six months of the date of the progress payment request. The estimates to complete shall represent the Contractor's best estimate of total costs to complete all remaining contract work required under the contract. The estimates shall include sufficient detail to permit Government verification.

(3)Each Contractor request for progress payment shall:

(i)Be submitted on Standard Form 1443, Contractor's Request for Progress Payment, or the electronic equivalent as required by agency regulations, in accordance with the form instructions and the contract terms; and

(ii)Include any additional supporting documentation requested by the Contracting Officer. PART 53—FORMS 53.232 [Amended] 8. Amend section 53.232 by removing “( *10/82* )” and adding “( *Date* )” in its place; and by removing “, as specified in 32.503.1”. 9. Revise section 53.301-1443 to read as follows: 53.301-1443 Contractor's Request for Progress Payments and Related Instructions. BILLING CODE 6820-EP-S EP08AP08.007 EP08AP08.008 [FR Doc. E8-7293 Filed 4-7-08; 8:45 am] BILLING CODE 6820-EP-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 070718369-7771-01] RIN 0648-AV34 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Amendment 30A AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. SUMMARY: NMFS issues this proposed rule that would implement Amendment 30A to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico

(FMP)prepared by the Gulf of Mexico Fishery Management Council (Council). This proposed rule would establish accountability measures for the commercial and recreational fisheries for greater amberjack and gray triggerfish, establish commercial quotas for greater amberjack and gray triggerfish, establish a recreational quota for greater amberjack and recreational catch limits for gray triggerfish, increase the commercial and recreational minimum size limit for gray triggerfish, increase the recreational minimum size limit for greater amberjack, and reduce the greater amberjack bag limit to zero for captain and crew of a vessel operating as a charter vessel or headboat. In addition, Amendment 30A would establish management targets and thresholds for gray triggerfish consistent with the requirements of the Sustainable Fisheries Act. This proposed rule is intended to end overfishing of greater amberjack and gray triggerfish and to rebuild these stocks to sustainable levels. DATES: Written comments must be received on or before May 23, 2008. ADDRESSES: You may submit comments on the proposed rule by any of the following methods: • Federal e-Rulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. • Mail: Peter Hood, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701. • Fax: 727-824-5308; Attention: Peter Hood. Instructions: All comments received are a part of the public record and will generally be posted to *http://www.regulations.gov* without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. Copies of Amendment 30A, which include a supplemental environmental impact statement (SEIS), an initial regulatory flexibility analysis (IRFA), and a regulatory impact review

(RIR)may be obtained from the Gulf of Mexico Fishery Management Council, 2203 North Lois Avenue, Suite 1100, Tampa, FL 33607; telephone 813-348-1630; fax 813-348-1711; e-mail *gulfcouncil@gulfcouncil.org* ; or may be downloaded from the Council's website at *http://www.gulfcouncil.org/* . FOR FURTHER INFORMATION CONTACT: Peter Hood, telephone 727-824-5305; fax 727-824-5308; e-mail *peter.hood@noaa.gov* . SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Background The Magnuson-Stevens Act requires NMFS and regional fishery management councils to prevent overfishing and achieve, on a continuing basis, the optimum yield

(OY)from federally managed fish stocks. These mandates are intended to ensure fishery resources are managed for the greatest overall benefit to the nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems. To further this goal, the Magnuson-Stevens Act requires fishery managers to specify their strategy to rebuild overfished stocks to a sustainable level within a certain time frame, and to minimize bycatch and bycatch mortality to the extent practicable. The reauthorized Magnuson-Stevens Act as amended through January 12, 2007, requires the councils to establish annual catch limits

(ACLs)for each stock or stock complex and accountability measures

(AMs)to ensure these ACLs are not exceeded. This proposed rule addresses these requirements for greater amberjack and gray triggerfish. Status of Stocks Greater amberjack have been under a rebuilding plan since 2003. However, a new stock assessment completed in 2006 concluded that the stock is not recovering as projected. It remains overfished and NMFS recently determined that overfishing is recurring. This proposed rule is necessary to end overfishing and adjust allowable catch levels and other management measures to bring the greater amberjack rebuilding plan back on course for stock recovery within the original 10-year time frame. Gray triggerfish were determined to be undergoing overfishing based on the results of a 2006 stock assessment. If approved, status determination criteria proposed in Amendment 30A would result in the gray triggerfish stock being considered overfished, requiring a rebuilding plan to be implemented. Therefore, this proposed rule is necessary to set quotas and management measures to end overfishing and rebuild the gray triggerfish stock. Reductions Required to End Overfishing and Rebuild Stocks Actions in the proposed rule are designed to reduce the total landings (commercial and recreational combined) of greater amberjack by 32 percent and gray triggerfish by at least 60 percent to end overfishing and allow the stocks to recover to a biomass level capable of producing maximum sustainable yield (B MSY ) within each species' respective rebuilding schedule. These landings reductions would reduce fishing mortality

(F)to levels associated with harvesting OY under equilibrium conditions (F OY ). This equates to a 50-percent reduction in F for greater amberjack and 54-percent reduction for gray triggerfish. In addition, Amendment 30A proposes management thresholds and targets for gray triggerfish that comply with the Sustainable Fisheries Act. Allocations Amendment 30A would establish an allocation of total allowable catch

(TAC)for the greater amberjack fishery of 73 percent for the recreational sector and 27 percent for the commercial sector. This allocation is estimated to increase the recreational share of TAC by 5 percent compared to the recreational/commercial ratio for 2000-2004. For the gray triggerfish fishery, Amendment 30A proposes reducing commercial and recreational landings proportionally; therefore, there would be no change relative to the 2000-2004 ratio of landings (i.e., 79 percent recreational and 21 percent commercial). Measures Applicable to the Greater Amberjack Fishery Rebuilding Plan Amendment 30A would continue the 3-year stepped rebuilding plan approach implemented through Secretarial Amendment 2 to the FMP. During the rebuilding plan, directed TAC for each 3-year interval would be set equal to the TAC for the first year of the interval as defined by the constant F OY projection from the latest available stock assessment, e.g. the 2006 assessment for 2008-2010. For 2008-2010, TAC would be set at 1.9 million lb (863,636 kg). TAC would remain at that level until revised via appropriate rulemaking. This rebuilding plan approach has been projected to have a better than 50-percent chance of rebuilding the stock to B MSY by the end of 2012. Commercial Measures Based on the TAC proposed in Amendment 30A, the proposed rule would establish a commercial quota for greater amberjack of 503,000 lb (228,157 kg) for each fishing year from 2008 through 2010. The commercial quota would remain at that level until revised via appropriate rulemaking. This quota would function as an ACL and represents a 43-percent reduction in annual landings. The quota reduction, in combination with the proposed recreational restrictions and proposed accountability measures, would end overfishing and rebuild biomass to B MSY by the end of 2010. The establishment of the quota should also reduce discards in proportion to the overall reduction in annual landings. Recreational Measures This proposed rule would establish a greater amberjack recreational quota of 1,368,000 lb (620,514 kg). This quota would function as an ACL. To help constrain the recreational harvest to this quota, the proposed rule would increase the minimum size limit to 30 inches (76 cm) fork length

(FL)and prohibit captain and crew of a vessel operating as a charter vessel or headboat from retaining a bag limit of greater amberjack. In combination, these restrictions are expected to reduce recreational landings by 26 percent. Increasing the minimum size limit to 30 inches (76 cm) FL from the current 28-inch (71-cm) limit would allow more than 50 percent of all females to mature before being landed. Although the proposed increase in the minimum size limit would increase the proportion of discards, the proposed recreational measures are expected to reduce the magnitude of dead discards because of the large reduction in recreational landings. In conjunction with the proposed commercial restrictions and the proposed accountability measures, these measures would end overfishing, and rebuild biomass to B MSY by the end of 2010. Accountability Measures

(AMs)for the Greater Amberjack Fishery This proposed rule would establish AMs for the greater amberjack fishery. These AMs are intended to ensure landings do not exceed the TAC allowed by the rebuilding plan. If commercial or recreational landings, as estimated by the Southeast Fisheries Science Center, reach or are projected to reach the respective commercial quota or recreational quota, the proposed rule would authorize the Assistant Administrator Fisheries, NOAA,

(AA)to file a notification with the Office of the Federal Register to close that sector of the fishery for the remainder of that fishing year. In addition, if the in-season closure does not prevent commercial landings from exceeding the quota, this proposed rule would authorize the AA to file a notification with the Office of the Federal Register reducing the commercial quota in the following year by the amount the quota was exceeded in the previous year. If the in-season closure does not prevent recreational landings from exceeding the quota, this proposed rule would authorize the AA to file a notification with the Office of the Federal Register to reduce the length of the following recreational fishing season for the time necessary to recover the overage from the previous year. Further, during that following year, if necessary, the AA may file additional notification with the Office of the Federal Register to readjust the reduced fishing season to ensure recreational harvest achieves but does not exceed the intended harvest level. Measures Applicable to the Gray Triggerfish Fishery Rebuilding Plan The Magnuson-Stevens Act specifies that no rebuilding plan shall exceed 10 years unless either biological or environmental conditions dictate otherwise. Because rebuilding projections indicate the gray triggerfish stock can rebuild in less than 10 years, a rebuilding plan not exceeding 10 years is required. In determining the rebuilding timeframe, however, the Magnuson-Stevens Act also specifies that the status and biology of the overfished population, as well as the needs of fishing communities and interactions of the population with the marine ecosystem be taken into account. After considering these factors and requirements, the Council proposed a rebuilding plan based on fishing at a rate that optimizes yield while allowing for the stock to rebuild within 6 years. Under the proposed rebuilding plan, TAC would be 500,000 lb (226,796 kg) for 2008, 580,000 lb (263,084 kg) for 2009, and 660,000 lb (299,371 kg) for 2010. After 2010, TAC would remain at the 2010 level until revised via appropriate rulemaking. Commercial Measures Consistent with the proposed rebuilding plan, this proposed rule would establish a commercial gray triggerfish quota of 80,000 lb (36,287 kg) for 2008, 93,000 lb (42,184 kg) for 2009, and 106,000 lb (48,081 kg) for 2010. After 2010, the commercial quota would remain at the 2010 level until revised via appropriate rulemaking. The quotas are expected to reduce commercial landings by 61 percent, as necessary, to end overfishing. To help constrain commercial gray triggerfish harvests to the applicable quota, the proposed rule would increase the commercial minimum size limit from 12 inches TL (30 cm TL) to 14 inches FL (36 cm FL). Increasing the commercial minimum size limit would slow the rate of harvest and may help minimize any seasonal closure that may be implemented under the proposed accountability measures. Gray triggerfish have a very low release mortality rate; therefore, most undersized fish that are released survive to contribute to rebuilding the stock. Increasing the commercial size limit would also increase the spawning potential for this species. Recreational Measures Consistent with the proposed rebuilding program, the proposed rule would establish ACLs for the recreational fishery, which would trigger implementation of the AMs. The ACL would be 394,000 lb (178,715 kg) for 2008, 426,000 lb (193,230 kg) for 2009, and 457,000 lb (207,291 kg) for 2010 and subsequent fishing years, unless revised via subsequent rulemaking. The proposed rule would also increase the recreational gray triggerfish minimum size limit from 12 inches total length

(TL)(30 cm TL) to 14 inches FL (36 cm FL). Increasing the minimum size limit is estimated to reduce recreational landings by 60 percent. Unlike nearly all other reef fish species managed by the Council, gray triggerfish are hardy fish that have a very low release mortality rate. Only approximately 1.5 percent of gray triggerfish die after release. Also, because the number of eggs produced by a gray triggerfish increases exponentially by size and age, the minimum size limit increase would increase spawning potential. Accountability Measures

(AMs)for Gray Triggerfish This proposed rule would establish AMs for the gray triggerfish fishery. These AMs are intended to ensure landings do not exceed the TAC allowed by the rebuilding plan. For the commercial fishery, this proposed rule would establish quotas and ACLs. The quota levels are less than the ACLs. The ACLs would trigger implementation of the AMs. If commercial landings, as estimated by the NMFS Southeast Fisheries Science Center, Science and Research Director (SRD), reach or are projected to reach the applicable quota, the AA would file a notification with the Office of the Federal Register to close the commercial fishery for the remainder of the fishing year. In addition, if despite such closure, commercial landings exceed the applicable ACL, the AA will file a notification with the Office of the Federal Register, at or near the beginning of the following fishing year to reduce the quota for that following year by the amount the prior-year ACL was exceeded. The applicable ACLs are 105,000 lb (47,627 kg) for 2008, 122,000 lb (55,338 kg) for 2009, and 138,000 lb (62,596 kg) for 2010 and subsequent fishing years. For the recreational fishery, this proposed rule would establish ACLs that would trigger implementation of the AMs. If recreational landings, as estimated by the SRD, exceed the applicable ACL, the AA will file a notification with the Office of the Federal Register reducing the length of the following recreational fishing season by the amount necessary to ensure recreational landings do not exceed the recreational target TAC for that following fishing year. The recreational ACLs are based on the yields under a constant fishing mortality (i.e., F OY ) rebuilding strategy that would allow the stock to rebuild within approximately 6 years. During year 1 of the rebuilding plan, the ACL is equal to the 2008 projected yield from the constant fishing mortality rebuilding plan. The year 2 ACL

(2009)would be the average of the projected yields for the first 2 years of the rebuilding plan (2008-2009). The 2010 (and thereafter) ACL would be a 3-year average of the projected yields for 2008-2010. The applicable ACLs are 394,000 lb (178,715 kg) for 2008, 426,000 lb (193,230 kg) for 2009, and 457,000 lb (207,291 kg) for 2010 and subsequent fishing years. The recreational target TACs are 356,000 lb (161,479 kg) for 2009 and 405,000 lb (183,705 kg) for 2010 and subsequent fishing years. Recreational landings would be evaluated relative to the applicable ACL as follows. For 2008, only 2008 recreational landings will be compared to the ACL; in 2009, the average of 2008 and 2009 recreational landings will be compared to the ACL; and in 2010 and subsequent fishing years, the 3-year running average recreational landings will be compared to the ACL. By averaging across multiple years, year-to-year fluctuations in landings resulting from recruitment variability, regulatory restrictions on other species, and prevailing economic conditions would be diminished. Reference Points and Thresholds for Gray Triggerfish The Magnuson-Stevens Act requires that each fishery management plan define reference points in the form of MSY and OY, and specify objective and measurable criteria for identifying when a fishery is overfished (minimum stock size threshold, MSST) or undergoing overfishing (maximum fishing mortality threshold, MFMT). Together, these four parameters are intended to provide fishery managers with the tools to measure fishery status and performance. MSY, MFMT, and OY were previously specified for gray triggerfish. Amendment 30A would establish and define MSST as (1-M)*B MSY , where M is the natural mortality rate and B 30%SPR is the proxy for B MSY . To be consistent with NMFS' precautionary approach guidance, Amendment 30A would also revise the current specification of OY, 20 percent spawning potential ratio (SPR), to be the yield corresponding to an F defined as F OY = 0.75*F MSY , where F 30%SPR is the proxy for F MSY . Availability of Amendment 30A Additional background and rationale for the measures discussed above are contained in Amendment 30A. The availability of Amendment 30A was announced in the **Federal Register** on March 31, 2008 (73 FR 16829). Written comments on Amendment 30A must be received by May 30, 2008. All comments received on Amendment 30A or on this proposed rule during their respective comment periods will be addressed in the preamble to the final rule. Classification Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 30A, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment. This proposed rule has been determined to be not significant for purposes of Executive Order 12866. NMFS prepared a SEIS for this amendment. A notice of availability for the draft SEIS was published on December 14, 2007 (72 FR 71138). NMFS prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act, for this proposed rule. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the objectives of, and legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the full analysis is available from the Council (see ADDRESSES ). A summary of the IRFA follows. The proposed rule would increase the recreational and commercial minimum size limit for gray triggerfish to 14 inches (35.6 cm) FL, increase the recreational minimum size limit for greater amberjack to 30 inches (76 cm) FL, reduce the greater amberjack bag limit for captain and crew of for-hire vessels to zero, establish quotas for greater amberjack and gray triggerfish, and establish accountability measures for greater amberjack and gray triggerfish. The Magnuson-Stevens Act provides the statutory basis for the proposed rule. No duplicative, overlapping, or conflicting Federal rules have been identified. This proposed rule would not alter existing reporting, record-keeping, or other compliance requirements. This proposed rule would be expected to directly affect vessels that operate in the Gulf of Mexico commercial reef fish fishery and for-hire reef fish fisheries, and reef fish dealers or processors. The Small Business Administration

(SBA)has established size criteria for all major industry sectors in the U.S. including fish harvesters, for-hire operations, fish processors, and fish dealers. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all affiliated operations worldwide. For for-hire operations, the other qualifiers apply and the annual receipts threshold is $6.5 million (NAICS code 713990, recreational industries). For seafood processor and dealers, rather than a receipts threshold, the SBA uses an employee threshold of 500 or fewer persons on a full-time, part-time, temporary, or other basis, at all affiliated operations for a seafood processor and 100 or fewer persons for a seafood dealer. Due to incomplete 2006 and 2007 data at the time the assessments were conducted, 2005 fishing data were used to evaluate the expected economic impacts of the proposed actions. A commercial reef fish permit is required to operate in the Gulf of Mexico commercial reef fish fishery, and a moratorium on the issuance of new permits has been in effect since 1992. On July 1, 2005, 1,209 commercial reef fish permits were either active (not expired; 1,118 permits) or expired but eligible for renewal (91 permits), and this is assumed to comprise the universe of commercial harvest operations in the fishery. However, 1,285 vessels reported reef fish landings in 2005, including vessels that transferred permits during the year. While all commercial reef fish permitted vessels can harvest greater amberjack or gray triggerfish, only 519 vessels landed greater amberjack and 477 vessels landed gray triggerfish in 2005. The annual average gross revenue and net income per vessel for vessels in the greater amberjack or gray triggerfish fishery is unknown. For all vessels in the commercial reef fish fishery, the average annual gross and net revenue, respectively, for vertical line vessels is estimated to range from approximately $24,100 (2005 dollars; $6,800 net income) to $110,100 ($28,500 net income), while the values for bottom longline vessels are approximately $87,600 (2005 dollars; $15,000 net income) to $117,000 ($25,500 net income). Some fleet behavior is known to exist in the commercial reef fish fishery, but the extent of such is unknown, though the maximum number of permits reported to be owned by the same entity is six. Additional permits in this and other fisheries (and associated revenues) may be linked through affiliation rules but these links cannot be made using existing data. Nevertheless, based on the average annual gross revenue information for all commercial reef fish vessels, NMFS determines, for the purpose of this analysis, that all commercial reef fish entities potentially affected by this proposed rule are small business entities. An estimated 1,692 vessels are permitted to operate in the Gulf of Mexico reef fish for-hire fishery. It is unknown how many of these vessels operate as headboats or charterboats, a distinction which is based on pricing behavior, and individual vessels may operate as both types of operations at different times. However, 76 vessels participate in the Federal headboat logbook program. Several entities own multiple for-hire permits, with at least one entity owning as many as 12 permits. The average charterboat is estimated to generate approximately $77,000 (2005 dollars) in annual revenues, while the comparable figure for an average headboat is approximately $404,000 (2005 dollars). Based on the average annual gross revenue information for these vessels, NMFS determines, for the purpose of this analysis, that all for-hire entities potentially affected by this proposed rule are small business entities. An estimated 227 dealers are permitted to buy and sell Gulf of Mexico reef fish species. Based on vessel logbook records for 2005, 192 of these dealers actively bought and sold greater amberjack, while 177 bought and sold gray triggerfish. All reef fish processors would be included in this total since a processor must be a dealer. Dealers often hold multiple types of permits and operate in both Federal and state fisheries. It is unknown what percentage of any of the average dealer's business comes from either greater amberjack or gray triggerfish. Average employment information per reef fish dealer is unknown. Although dealers and processors are not synonymous entities, total employment for reef fish processors in the Southeast is estimated at approximately 700 individuals, both part and full time. While all processors must be dealers, a dealer need not be a processor. Further, processing is a much more labor-intensive exercise than dealing. Therefore, given the employment estimate for the processing sector and the total number of dealers operating in the reef fish fishery, NMFS determines that the average number of employees per dealer and processor does not surpass the SBA employment benchmark and, NMFS determines, for the purpose of this analysis, that all dealers potentially affected by this rule are small entities. This proposed action would reduce greater amberjack harvests by 26 percent in the recreational sector and 43 percent in the commercial sector, and gray triggerfish harvests by 60 percent and 61 percent for the recreational and commercial sectors, respectively. Although the expected harvest reductions are large, the subsequent impact on vessel profits will depend on the importance of these species to vessel revenues. In the commercial reef fish fishery, only 120 vessels landed more than 1,000 lb (454 kg) of greater amberjack in 2005 and only 31 vessels landed more than 10,000 lb (4,536 kg) of greater amberjack. For gray triggerfish, 44 vessels landed more than 1,000 lb (454 kg), and no vessels landed more than 10,000 lb (4,536 kg). Thus, 399 vessels, or approximately 77 percent of the fleet, landed less than 1,000 lb (454 kg) of greater amberjack, while 433 vessels, or approximately 91 percent of the fleet landed less than 1,000 lb (454 kg) of gray triggerfish. This suggests that relatively few vessels in the commercial reef fish fishery are dependent on greater amberjack, and even fewer would be expected to be dependent on gray triggerfish. The proposed greater amberjack actions are projected to result in a reduction of approximately $1.3 million in net revenues to commercial reef fish vessels over the 2008-2012 rebuilding period, or approximately $260,000 per year. This annual loss equates to an average of approximately $500 to $2,200 per vessel if distributed across all vessels landing greater amberjack

(519)or just vessels landing greater than 1,000 lb (454 kg) (120). The proposed gray triggerfish actions are projected to result in a reduction of approximately $716,000 in net income during the 2008-2012 rebuilding period, or $145,200 per year. This annual loss equates to approximately $300 per vessel if distributed among all vessels landing gray triggerfish

(477)or $3,300 if distributed across only those vessels landing more than 1,000 lb (454 kg) of gray triggerfish (44). While for-hire vessels do not derive revenues from greater amberjack or gray triggerfish sales, most vessels target these species at some time during the year. Assuming angler demand declines in response to the proposed restrictions for these species, revenue and profit reductions can be projected. As a result of the proposed greater amberjack actions, the for-hire sector is projected to experience a loss in net income of approximately $763,000 per year, while the proposed gray triggerfish actions are projected to result in a loss of approximately $514,000 per year. If these losses were distributed equally across all vessels in the fishery, the resulting loss per vessel would be less than $800 per vessel. Some vessels are likely more dependent on these species than other vessels due to where they fish and client preferences and, thus, may be more severely impacted by the proposed measures. Three alternatives, including the status quo, were considered for the action to modify the greater amberjack rebuilding plan. The proposed action, the status quo, would maintain the current stepped rebuilding plan, but would update the plan with data from the 2006 stock assessment. The first alternative to the proposed action would use the same yield projections as the proposed action, but would increase the TAC annually instead of stepped increases. The second alternative to the proposed action would also increase the TAC annually, but would limit the total harvest over the 5 years of the plan to equal that under the proposed action. These alternatives were not selected as the proposed action because the Council believed the step increases would allow greater stability to the fishery while still allowing harvest to progressively increase. Three alternatives, including the status quo, were considered for the action to specify accountability measures for greater amberjack. The proposed action would implement corrective action based on single-year fishery harvest totals. Because the greater amberjack fishery is nearer the end of the rebuilding plan, the single-year approach provides the greatest probability of ending overfishing and rebuilding the stock. The first alternative to the proposed greater amberjack accountability measures, the status quo, would not specify accountability measures and would not satisfy the requirements of the Magnuson-Stevens Act. The second alternative to the proposed greater amberjack accountability would trigger accountability actions on the single year projections for the 2008 fishing season, but trigger accountability measures through multi-year analyses thereafter. This alternative was not selected as the proposed action because multi-year assessment and corrective action would be expected to delay stock rebuilding, resulting in slower realization of benefits from a rebuilt stock. Five alternatives, including the status quo, were considered for the action to establish management measures for the greater amberjack recreational fishery. The first alternative to the proposed suite of management measures, the status quo, would not alter current management measures and would not result in sufficient harvest reduction to satisfy the rebuilding plan. This alternative would not, therefore, achieve the Council's objective. The second alternative to the proposed action would impose a higher size limit and thus would result in more adverse economic impacts. The third alternative to the proposed action would impose a 2-month seasonal closure. Because a closure would result in trip cancellations, this alternative would result in more adverse economic impacts than the proposed action which would simply restrict the catch but otherwise allow the fishery to remain open. The last alternative to the proposed action would impose both a seasonal closure and higher size limit, and thus would result in even more adverse economic impacts. Five alternatives, including the status quo, were considered for the action to establish management measures for the greater amberjack commercial fishery. The first alternative to the proposed suite of management measures, the status quo, would not alter current management measures and would not result in sufficient harvest reduction to satisfy the rebuilding plan. This alternative would not, therefore, achieve the Council's objective. The second alternative to the proposed action would impose a trip limit. Although this alternative would achieve the same reduction as the proposed action, it would tend to impose a more restrictive limit on fishing operations and eventually result in more adverse economic impacts. The third alternative to the proposed action would impose an even lower trip limit and has been estimated to result in more adverse economic impacts than the proposed action. The last alternative to the proposed action would add a 3-month seasonal closure to the existing 3-month closure. Although this would achieve about the same harvest reduction as the proposed action, fishermen have already indicated they lost a good part of their market to the existing 3-month closure so adding 3 more months to the existing closed months would only exacerbate the situations fishermen would face. Three alternatives, including sub-options and the status quo, were considered for the action to define stock benchmarks for gray triggerfish. The first alternative to the proposed action, the status quo, would maintain current definitions of OY and MFMT, but would not set an overfished threshold (MSST), which is a required component of a fishery management plan. This alternative would not, therefore, achieve the Council's objective. The second alternative to the proposed benchmarks would establish a less conservative MSST, i.e., 0.5*B MSY versus the proposed 0.73*B MSY , increasing the risk of not maintaining a healthy resource relative to the proposed action. Three alternatives, including the status quo, were considered for the action to establish a gray triggerfish rebuilding plan. The first alternative to the proposed rebuilding plan, the status quo, would not establish a gray triggerfish rebuilding plan and would not achieve the Council's objective. The second alternative to the proposed rebuilding plan would establish a stepped plan rather the constant F rebuilding plan under the proposed action. The stepped rebuilding plan would increase TAC in 3-year stepped intervals with TAC in each interval set equal to the first year of the corresponding TAC in the constant F OY . This alternative is projected to result in greater adverse short-term economic impacts than the proposed action. Five alternatives were considered for the action to specify accountability measures for gray triggerfish. The proposed action would impose accountability measures for the recreational sector, with the period of evaluation increasing from a 1-year to a 2-year to a 3-year running average of landings as the rebuilding plan progresses. For the commercial sector, the proposed action would evaluate landings on an annual basis. The first alternative to the proposed gray triggerfish accountability measures, the status quo, would not specify accountability measures and would not satisfy the requirements of the Magnuson-Stevens Act. The second and third alternatives to the proposed accountability measures would require corrective action only if the combined harvests of both the commercial and recreational sectors exceed the overall target levels, differing by the type of corrective action, allowing either a range of management harvest reduction tools, such as trip, bag, season, or minimum size adjustments, or limiting the corrective action to season length (closure). These alternatives were not chosen as the proposed action because they would not preserve the balance of sector allocations and would not achieve the enhanced stock recovery benefits of the proposed action. The fourth alternative to the proposed accountability measures would impose the same sector-specific and period-of-assessment requirements of the proposed action, but would result in a delay of corrective action because such action could only be imposed via temporary rulemaking as authorized by section 305(c) of the Magnuson-Stevens Act as opposed to the more timely publication of a notification in the **Federal Register** under the proposed action. This delay would be expected to increase the severity of corrective action, thereby imposing greater adverse economic impacts relative to the proposed action. Two alternatives, including the status quo, were considered for the action on regional gray triggerfish management. The proposed action is the status quo, which would not establish different gray triggerfish management measures for the eastern and western Gulf. The proposed action would manage gray triggerfish as a unit throughout the Gulf EEZ. The only other alternative to the proposed action would divide the management area for gray triggerfish into two regions, namely, east and west of the Mississippi river, and limit all proposed gray triggerfish restrictive measures to the region east of the Mississippi river. This alternative would be inconsistent with the identification of the species as a single stock throughout the Gulf of Mexico and would not rebuild the resource uniformly through its range and, thus, would not achieve the Council's objective. Four alternatives, including the status quo, were considered for the action to establish management measures for the recreational gray triggerfish fishery. The first alternative to the proposed suite of management measures, the status quo, would not alter current management measures and would not result in sufficient harvest reduction to satisfy the rebuilding plan. The second alternative to the proposed action would establish a bag limit and raise the size limit for gray triggerfish while the third alternative to the proposed action would impose an even lower bag limit but retain the size limit for gray triggerfish. These additional two alternatives would not achieve the necessary harvest reductions for the recreational sector and would not, therefore, achieve the Council's objective. Six alternatives, including the status quo, were considered for the action to establish management measures for the commercial gray triggerfish fishery. The first alternative to the proposed suite of management measures, the status quo, would not alter current management measures and would not result in sufficient harvest reduction to satisfy the rebuilding plan. The other four alternatives to the proposed action would:

(1)establish a very low trip limit;

(2)increase the size limit;

(3)increase the size limit and impose a trip limit; and,

(4)slightly increase the size limit and impose a lower trip limit. These other four alternatives are projected to result in greater harvest reductions than are required to satisfy the rebuilding plan. Also, these alternatives were not selected as the proposed action because specifying a quota in addition to the minimum size limit, as would occur under the proposed action, was expected to provide greater control over total harvest and better ensure that rebuilding plan goals are realized. List of Subjects in 50 CFR Part 622 Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands. Dated: April 2, 2008. James W. Balsiger, Acting Assistant Administrator for Fisheries, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows: PART 622—FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC 1. The authority citation for part 622 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. In § 622.2, the definitions of “accountability measures” and “annual catch limit” are added in alphabetical order to read as follows: § 622.2 Definitions and acronyms. *Accountability measure* means a management control implemented such that overfishing is prevented, where possible, and mitigated if it occurs. *Annual catch limit (ACL)* means the level of catch that serves as the basis for invoking accountability measures. 3. In § 622.37, paragraphs (d)(3)(i) and (d)(3)(iv) are revised to read as follows: § 622.37 Size limits.

(d)* * *

(3)* * *

(i)*Gray triggerfish* —14 inches (35.6 cm), fork length.

(iv)*Greater amberjack* —30 inches (76 cm), fork length, for a fish taken by a person subject to the bag limit specified in § 622.39(b)(1)(i) and 36 inches (91.4 cm), fork length, for a fish taken by a person not subject to the bag limit. 4. In § 622.39, paragraph (b)(1)(i) is revised to read as follows: § 622.39 Bag and possession limits.

(b)* * *

(1)* * *

(i)*Greater amberjack* —1. However, no greater amberjack may be retained by the captain or crew of a vessel operating as a charter vessel or headboat. The bag limit for such captain and crew is zero. 5. In § 622.42, paragraphs (a)(1)(v) and (a)(1)(vi) are added, and paragraph (a)(2) is revised to read as follows: § 622.42 Quotas.

(a)* * *

(1)* * *

(v)*Greater amberjack* —503,000 lb (228,157 kg), round weight.

(vi)*Gray triggerfish* —(A) *For fishing year 2008* —80,000 lb (36,287 kg), round weight.

(B)*For fishing year 2009* —93,000 lb (42,184 kg), round weight.

(C)*For fishing year 2010 and subsequent fishing years* —106,000 lb (48,081 kg), round weight.

(2)*Recreational quotas* . The following quotas apply to persons who fish for Gulf reef fish other than under commercial vessel permits for Gulf reef fish and the applicable commercial quotas specified in paragraph (a)(1) of this section.

(i)*Recreational quota for red snapper* . The recreational quota for red snapper is 2.45 million lb (1.11 million kg), round weight.

(ii)*Recreational quota for greater amberjack* . The recreational quota for greater amberjack is 1,368,000 lb (620,514 kg), round weight. 6. In § 622.43, paragraph (a)(1)(iii) is added to read as follows: § 622.43 Closures.

(a)* * *

(1)* * *

(iii)Recreational quota for greater amberjack. The bag and possession limit for greater amberjack in or from the Gulf EEZ is zero. 7. Section 622.49 is added to subpart C to read as follows: § 622.49 Accountability measures.

(a)*Gulf reef fish* —(1) *Greater amberjack* —(i) *Commercial fishery* . If commercial landings, as estimated by the SRD, reach or are projected to reach the applicable quota specified in § 622.42(a)(1)(v), the Assistant Administrator for Fisheries, NOAA,

(AA)will file a notification with the Office of the Federal Register to close the commercial fishery for the remainder of the fishing year. In addition, if despite such closure, commercial landings exceed the quota, the AA will file a notification with the Office of the Federal Register, at or near the beginning of the following fishing year to reduce the quota for that following year by the amount of the overage in the prior fishing year.

(ii)*Recreational fishery* . If recreational landings, as estimated by the SRD, reach or are projected to reach the applicable recreational quota specified in § 622.42(a)(2)(ii), the AA will file a notification with the Office of the Federal Register, to close the recreational fishery for the remainder of the fishing year. In addition, if despite such closure, recreational landings exceed the quota, the AA will file a notification with the Office of the Federal Register, at or near the beginning of the following fishing year, to reduce the length of the recreational fishing season for the following fishing year by the amount necessary to recover the overage from the prior fishing year. Further, during that following year, if necessary, the AA may file additional notification with the Office of the Federal Register to readjust the reduced fishing season to ensure recreational harvest achieves but does not exceed the intended harvest level.

(2)*Gray triggerfish* —(i) *Commercial fishery* . If commercial landings, as estimated by the SRD, reach or are projected to reach the applicable quota specified in § 622.42(a)(1)(vi), the AA will file a notification with the Office of the Federal Register to close the commercial fishery for the remainder of the fishing year. In addition, if despite such closure, commercial landings exceed the applicable annual catch limit (ACL), the AA will file a notification with the Office of the Federal Register, at or near the beginning of the following fishing year, to reduce the quota for that following year by the amount the prior-year ACL was exceeded. The applicable ACLs are 105,000 lb (47,627 kg) for 2008, 122,000 lb (55,338 kg) for 2009, and 138,000 lb (62,596 kg) for 2010 and subsequent fishing years.

(ii)*Recreational fishery* . If recreational landings, as estimated by the SRD, exceed the applicable ACL, the AA will file a notification with the Office of the Federal Register reducing the length of the following recreational fishing season by the amount necessary to ensure recreational landings do not exceed the recreational target total allowable catch for that following fishing year. The applicable ACLs are 394,000 lb (178,715 kg) for 2008, 426,000 lb (193,230 kg) for 2009, and 457,000 lb (207,291 kg) for 2010 and subsequent fishing years. The recreational target total allowable catches are 356,000 lb (161,479 kg) for 2009 and 405,000 lb (183,705 kg) for 2010 and subsequent fishing years. Recreational landings will be evaluated relative to the applicable ACL as follows. For 2008, only 2008 recreational landings will be compared to the ACL; in 2009, the average of 2008 and 2009 recreational landings will be compared to the ACL; and in 2010 and subsequent fishing years, the 3-year running average recreational landings will be compared to the ACL.

(b)[Reserved] [FR Doc. E8-7379 Filed 4-7-08; 8:45 am] BILLING CODE 3510-22-S 73 68 Tuesday, April 8, 2008 Notices DEPARTMENT OF AGRICULTURE Food and Nutrition Service Agency Information Collection Activities: Proposed Collection; Comment Request—Child Nutrition Labeling Program AGENCY: Food and Nutrition Service, USDA. ACTION: Notice. SUMMARY: In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on the proposed information collection. The proposed collection is a revision of a currently approved collection. The purpose of the Child Nutrition Labeling Program is to aid schools and institutions participating in Child Nutrition Programs in determining the contribution a commercial product makes toward the food-based meal pattern requirements of these programs. DATES: Comments on this notice must be received by *June 9, 2008* to be assured of consideration. ADDRESSES: Comments are invited on:

(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;

(b)the accuracy of the Agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used;

(c)ways to enhance the quality, utility, and clarity of the information to be collected; and

(d)ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to: Tim Vazquez, Acting Team Leader, Technical Assistance Section, Nutrition Promotion and Training Branch, Child Nutrition Division, Room 632, Food and Nutrition Service, United States Department of Agriculture, 3101 Park Center Drive, Alexandria, VA 22302. All responses to this notice will be summarized and included in the request for OMB approval. All comments will also be a matter of public record. FOR FURTHER INFORMATION CONTACT: Requests for additional information or copies of the information collection instrument and instructions should be directed to Tim Vazquez at

(703)305-2609. SUPPLEMENTARY INFORMATION: *Title:* Child Nutrition Labeling Program. *OMB Number:* 0584-0320. *Expiration Date:* July 31, 2008. *Type of Request:* Revision of currently approved collection. *Abstract:* The Child Nutrition

(CN)Labeling Program is a voluntary technical assistance program to aid schools and institutions participating in the National School Lunch Program (NSLP), School Breakfast Program (SBP), Child and Adult Care Food Program (CACFP), and Summer Food Service Program

(SFSP)in determining the contribution a commercial product makes toward the food-based meal pattern requirements of these programs. (See Appendix C to 7 CFR Parts 210, 220, 225 and 226 for more information on this program). There is no Federal requirement that commercial products must have a CN label statement. To participate in the Child Nutrition Labeling Program, a manufacturer submits product labels and formulations to the Food and Nutrition Service

(FNS)that are in conformance with the Food Safety and Inspection Service

(FSIS)label approval program for meat and poultry, or United States Department of Commerce

(USDC)label approval program for seafood products. FNS reviews a manufacturer's product formulation to determine the contribution a serving of the product makes toward the food-based meal pattern requirements. The application form submitted to FNS is the same application form that companies submit to FSIS or USDC to receive label approval. A CN label application is also reviewed by FNS for accuracy. Participation in the CN Labeling Program is voluntary: only manufacturers who wish to place CN labels on their products must comply with CN Labeling Program requirements. *Affected Public:* Businesses. *Type of Respondents:* Manufacturers of food produced for school food service. The annual reporting burden: *Estimated Number of Respondents:* 269; *Estimated Number of Responses per Respondent:* 7.8; *Estimated Total Annual Responses:* 2,098; *Estimated Time per Response:* 0.75; *Estimated Total Annual Burden:* 1,574. Estimate of Burden Summary of burden for this collection Number of respondents Est. annual responses per respondent Est. total annual responses Est. hours per response Est. total annual burden for this ICR 269 7.8 2098.2 0.75 1573.65 Dated: March 25, 2008. Roberto Salazar, Administrator, Food and Nutrition Service. [FR Doc. E8-7239 Filed 4-7-08; 8:45 am] BILLING CODE 3410-30-P DEPARTMENT OF AGRICULTURE Food and Nutrition Service Special Supplemental Nutrition Program for Women, Infants and Children (WIC): Income Eligibility Guidelines AGENCY: Food and Nutrition Service, USDA. ACTION: Notice. SUMMARY: The Department announces adjusted income eligibility guidelines to be used by State agencies in determining the income eligibility of persons applying to participate in the Special Supplemental Nutrition Program for Women, Infants and Children Program (WIC). These income eligibility guidelines are to be used in conjunction with the WIC Regulations. DATES: July 1, 2008. FOR FURTHER INFORMATION CONTACT: Debra Whitford, Branch Chief, Policy and Program Development Branch, Supplemental Food Programs Division, FNS, USDA, 3101 Park Center Drive, Alexandria, Virginia 22302,

(703)305-2746. SUPPLEMENTARY INFORMATION: Executive Order 12866 This notice is exempt from review by the Office of Management and Budget under Executive Order 12866. Regulatory Flexibility Act This action is not a rule as defined by the Regulatory Flexibility Act (5 U.S.C. 601-612) and thus is exempt from the provisions of this Act. Paperwork Reduction Act of 1995 This notice does not contain reporting or recordkeeping requirements subject to approval by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507). Executive Order 12372 This program is listed in the Catalog of Federal Domestic Assistance Programs under No. 10.557, and is subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials (7 CFR Part 3015, Subpart V, 48 FR 29114, June 24, 1983, and 49 FR 22676, May 31, 1984). Description Section 17(d)(2)(A) of the Child Nutrition Act of 1966 (42 U.S.C. 1786 (d)(2)(A)) requires the Secretary of Agriculture to establish income criteria to be used with nutritional risk criteria in determining a person's eligibility for participation in the WIC Program. The law provides that persons will be income eligible for the WIC Program only if they are members of families that satisfy the income standard prescribed for reduced-price school meals under section 9(b) of the Richard B. Russell National School Lunch Act (42 U.S.C. 1758(b)). Under section 9(b), the income limit for reduced-price school meals is 185 percent of the Federal poverty guidelines, as adjusted. Section 9(b) also requires that these guidelines be revised annually to reflect changes in the Consumer Price Index. The annual revision for 2008 was published by the Department of Health and Human Services

(HHS)at 73 FR 3971, January 23, 2008. The guidelines published by HHS are referred to as the poverty guidelines. Section 246.7(d)(1) of the WIC regulations (Title 7, Code of Federal Regulations) specifies that State agencies may prescribe income guidelines either equaling the income guidelines established under section 9 of the Richard B. Russell National School Lunch Act for reduced-price school meals or identical to State or local guidelines for free or reduced-price health care. However, in conforming WIC income guidelines to State or local health care guidelines, the State cannot establish WIC guidelines which exceed the guidelines for reduced-price school meals, or which are less than 100 percent of the Federal poverty guidelines. Consistent with the method used to compute income eligibility guidelines for reduced-price meals under the National School Lunch Program, the poverty guidelines were multiplied by 1.85 and the results rounded upward to the next whole dollar. At this time the Department is publishing the maximum and minimum WIC income eligibility guidelines by household size for the period July 1, 2008, through June 30, 2009. Consistent with section 17(f)(17) of the Child Nutrition Act of 1966 (42 U.S.C. 1786(f)(17)), a State agency may implement the revised WIC income eligibility guidelines concurrently with the implementation of income eligibility guidelines under the Medicaid program established under Title XIX of the Social Security Act (42 U.S.C. 1396, et seq.). State agencies may coordinate implementation with the revised Medicaid guidelines, but in no case may implementation take place later than July 1, 2008. State agencies that do not coordinate implementation with the revised Medicaid guidelines must implement the WIC income eligibility guidelines on July 1, 2008. The first table of this notice contains the income limits by household size for the 48 contiguous States, the District of Columbia and all Territories, including Guam. Because the poverty guidelines for Alaska and Hawaii are higher than for the 48 contiguous States, separate tables for Alaska and Hawaii have been included for the convenience of the State agencies. Authority: 42 U.S.C. 1786. Dated: April 1, 2008. Roberto Salazar, Administrator. Income Eligibility Guidelines [Effective from July 1, 2008 to June 30, 2009] Household size Federal poverty guidelines—100% Annual Monthly Twice-monthly Bi-weekly Weekly Reduced price meals—185% Annual Monthly Twice-monthly Bi-weekly Weekly 48 Contiguous States, DC, Guam and Territories 1 $10,400 $867 $434 $400 $200 $19,240 $1,604 $802 $740 $370 2 14,000 1,167 584 539 270 25,900 2,159 1,080 997 499 3 17,600 1,467 734 677 339 32,560 2,714 1,357 1,253 627 4 21,200 1,767 884 816 408 39,220 3,269 1,635 1,509 755 5 24,800 2,067 1,034 954 477 45,880 3,824 1,912 1,765 883 6 28,400 2,367 1,184 1,093 547 52,540 4,379 2,190 2,021 1,011 7 32,000 2,667 1,334 1,231 616 59,200 4,934 2,467 2,277 1,139 8 35,600 2,967 1,484 1,370 685 65,860 5,489 2,745 2,534 1,267 Each Add'l Member Add +3,600 +300 +150 +139 +70 +6,660 +555 +278 +257 +129 Alaska 1 13,000 1,084 542 500 250 24,050 2,005 1,003 925 463 2 17,500 1,459 730 674 337 32,375 2,698 1,349 1,246 623 3 22,000 1,834 917 847 424 40,700 3,392 1,696 1,566 783 4 26,500 2,209 1,105 1,020 510 49,025 4,086 2,043 1,886 943 5 31,000 2,584 1,292 1,193 597 57,350 4,780 2,390 2,206 1,103 6 35,500 2,959 1,480 1,366 683 65,675 5,473 2,737 2,526 1,263 7 40,000 3,334 1,667 1,539 770 74,000 6,167 3,084 2,847 1,424 8 44,500 3,709 1,855 1,712 856 82,325 6,861 3,431 3,167 1,584 Each Add'l Member Add +4,500 +375 +188 +174 +87 +8,325 +694 +347 +321 +161 Hawaii 1 11,960 997 499 460 230 22,126 1,844 922 851 426 2 16,100 1,342 671 620 310 29,785 2,483 1,242 1,146 573 3 20,240 1,687 844 779 390 37,444 3,121 1,561 1,441 721 4 24,380 2,032 1,016 938 469 45,103 3,759 1,880 1,735 868 5 28,520 2,377 1,189 1,097 549 52,762 4,397 2,199 2,030 1,015 6 32,660 2,722 1,361 1,257 629 60,421 5,036 2,518 2,324 1,162 7 36,800 3,067 1,534 1,416 708 68,080 5,674 2,837 2,619 1,310 8 40,940 3,412 1,706 1,575 788 75,739 6,312 3,156 2,914 1,457 Each Add'l Member Add +4,140 +345 +173 +160 +80 +7,659 +639 +320 +295 +148 [FR Doc. E8-7240 Filed 4-7-08; 8:45 am] BILLING CODE 3410-30-P DEPARTMENT OF AGRICULTURE Forest Service Opal Creek Scenic Recreation Area

(SRA)Advisory Council AGENCY: Forest Service, USDA. ACTION: Notice of Meeting. SUMMARY: Opal Creek Scenic Recreation Area Advisory Council meetings will convene in Stayton, Oregon on Wednesday, April 23, 2008. These meetings are scheduled to begin at 6:30 p.m., and will conclude at approximately 8:30 p.m. Meetings will be held in the South Room of the Stayton Community Center located on 400 West Virginia Street in Stayton, Oregon. The Opal Creek Wilderness and Opal Creek Scenic Recreation Area Act of 1996 (Opal Creek Act) (Pub. L. 104-208) directed the Secretary of Agriculture to establish the Opal Creek Scenic Recreation Area Advisory Council. The Advisory Council is comprised of thirteen members representing state, county and city governments, and representatives of various organizations, which include mining industry, environmental organizations, inholders in Opal Creek Scenic Recreation Area, economic development, Indian tribes, adjacent landowners and recreation intersects. The council provides advice to the Secretary of Agriculture of preparation of a comprehensive Opal Creek Management Plan for the SRA, and consults on a periodic and regular basis on the management of the area. Tentative agenda items include: Elkhorn resort development presentation, abandoned mine closures, and Opal Creek management strategy. A direct public comment period is tentatively schedule to begin at 8 p.m. Time allotted for individual presentations will be limited to 3 minutes. Written comments are encouraged, particularly if the material cannot be presented within the time limits of the comment period. Written comments may be submitted prior to scheduled meetings by sending them to Designated Federal Official Paul Matter at the address given below. FOR FURTHER INFORMATION CONTACT: For more information regarding this meeting, contact Designated Federal Official Paul Matter; Willamette National Forest, Detroit Ranger District, HC 73 Box 320, Mill City, OR 97360;

(503)854-3366. Dated: March 31, 2008. Dallas J. Emch, Forest Supervisor. [FR Doc. E8-7181 Filed 4-7-08; 8:45 am] BILLING CODE 3410-11-M DEPARTMENT OF COMMERCE Bureau of Industry and Security Information Systems Technical Advisory Committee; Notice of Partially Closed Meeting The Information Systems Technical Advisory Committee (ISTAC) will meet on April 23 and 24, 2008, 9 a.m., in the Herbert C. Hoover Building, Room 3884, 14th Street between Constitution and Pennsylvania Avenues, NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on technical questions that affect the level of export controls applicable to information systems equipment and technology. Wednesday, April 23 Public Session 1. Welcome and Introduction. 2. Atomic Layer Deposition and Cluster Tools. 3. History of U.S. Export Controls. 4. Census Data for Export Control. 5. Preliminary Discussion. 6. 4A003e: Equipment Performing Analog-to-Digital Conversions. Thursday, April 24 Closed Session 7. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3). The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at *Yspringer@bis.doc.gov* , no later than April 16, 2008. A limited number of seats will be available for the public session. Reservations are not accepted. To the extent time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the Committee suggests that public presentation materials or comments be forwarded before the meeting to Ms. Springer. The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on March 22, 2008, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 § (10)(d))), that the portion of the meeting concerning trade secrets and commercial or financial information deemed privileged or confidential as described in 5 U.S.C. 552b(c)(4) and the portion of the meeting concerning matters the disclosure of which would be likely to frustrate significantly implementation of an agency action as described in 5 U.S.C. 552b(c)(9)(B) shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public. For more information, call Yvette Springer at

(202)482-2813. Dated: April 3, 2008. Yvette Springer, Committee Liaison Officer. [FR Doc. E8-7371 Filed 4-7-08; 8:45 am] BILLING CODE 3510-JT-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG92 Fisheries Off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; Application for an Exempted Fishing Permit

(EFP)AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; receipt of EFP applications; intent to issue EFPs; request for comments. SUMMARY: NMFS announces the receipt of two exempted fishing permit

(EFP)applications, and the intent to issue EFPs for vessels participating in the EFP fisheries. The EFPs are necessary to allow activities that are otherwise prohibited by Federal regulations. The EFPs will be effective no earlier than May 1, 2008, and would expire no later than December 31, 2008, but could be terminated earlier under terms and conditions of the EFPs and other applicable laws. DATES: Comments must be received no later than 5 p.m., local time on May 8, 2008. ADDRESSES: You may submit comments, identified by 0648-XG92 by any one of the following methods: • Fax: 206-526-6736, Attn: Gretchen Arentzen. • Mail: D. Robert Lohn, Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Gretchen Arentzen. FOR FURTHER INFORMATION CONTACT: To request copies of the EFP applications, contact Gretchen Arentzen (Northwest Region, NMFS), phone: 206-526-6147, fax: 206-526-6736. SUPPLEMENTARY INFORMATION: This action is authorized by the Magnuson-Stevens Fishery Conservation and Management Act provisions at 50 CFR 600.745, which states that EFPs may be used to authorize fishing activities that would otherwise be prohibited. At the November 2007 Pacific Fishery Management Council (Council) meeting in San Diego, California, NMFS and the Council received applications for two EFPs from:

(1)The Nature Conservancy and their collaborators and

(2)the Recreational Fishing Alliance and Golden Gate Fisherman's Association. An opportunity for public testimony was provided during the Council meeting. The Council recommended that NMFS issue the EFPs and forwarded the EFP applications to NMFS with the contingency that all applicants improve the data analysis and reporting requirements detailed in their applications. NMFS is worked with the applicants and participants who would be fishing under the EFPs to resolve retention, data analysis and monitoring issues affecting these EFPs prior to their final application for EFPs. All EFPs, if issued, would require that all rockfish species are retained and that prohibited rockfish species must be surrendered to the State in which they are landed. All vessels participating under an EFP would be required to have a human observer on board during every trip conducted under the EFP. Community Based Fishing Association EFP The Nature Conservancy

(TNC)submitted their final EFP application package to NMFS on February 14, 2008, along with their collaborators: City of Morro Bay Harbor Department; Port San Luis Commercial Fishermen's Association; Port San Luis Harbor District; California Department of Fish and Game; Morro Bay Commercial Fishermen's Organization, Inc.; and Environmental Defense. The primary purpose of the EFP is to test whether establishing a cooperatively managed, community based fishing association that employs commercial trawl permits to use longline, trap, pot, and hook-and-line gear off the Central California coast, under shared total catch amounts for target and bycatch species, can provide several important economic and environmental performance benefits. In addition, fishing under this EFP is expected to provide valuable information on how to structure a more cost-effective monitoring system that emphasizes individual accountability in a rationalized fishery and also on the costs of managing a rationalized fishery. Since 2003, TNC and Environmental Defense have been working on various projects with participants in the bottom trawl industry along the Central Coast of California. In 2005, NMFS approved a plan to protect more than 130,000 square miles (336,698 square km) of marine waters off the West coast as essential fish habitat

(EFH)for groundfish (71 FR 24601, May 11, 2006). The plan prohibits fishing methods that can cause long-term damage to the ocean floor, such as bottom trawling, within much of this area. At roughly the same time, TNC and Environmental Defense purchased several limited entry trawl permits

(LEPs)from fishermen that operated trawl vessels along the central California coast. Under current federal regulations, bottom trawl LEPs cannot be converted to LEPs for harvesting groundfish with other gear types, such as hook and line and pot gears. This issue was identified by TNC when they purchased bottom trawl permits, and they have been exploring ways to mitigate the negative economic effects of the bottom trawl LEP purchases, while exploring a shift to other harvest mechanisms. The commercial fishery operating out of Morro Bay and Port San Luis has been much reduced in recent years, causing economic hardship on these fishing ports and the reduction of commercial fishing infrastructure, including processors and ice dealers. In 2004, the Pacific Fishery Management Council (Council) began public scoping for development of a trawl rationalization and individual fishing quota

(IFQ)program. As the Council moves forward with planning and analysis in drafting an Environmental Impact Statement, it would be useful to have practical information on how rationalized fisheries, fishing with individual quotas, would operate in the Pacific coast groundfish fishery. TNC developed a proposal for working with central California coast fishery participants to form a community based fishing association that would cooperatively manage fishing operations to maintain harvests within a total catch amount for target and incidental species, rather than under the cumulative trip limit structure in current Pacific coast groundfish regulations. Target species with total catch amounts include: sablefish, slope rockfish, longspine thornyhead, shortspine thornyhead, lingcod, chilipepper rockfish, splitnose rockfish, spiny dogfish, Dover sole, petrale sole, and other flatfish. Incidental catch species with total catch amounts include all of the overfished species: canary rockfish, yelloweye rockfish, widow rockfish, darkblotched rockfish, Pacific ocean perch, cowcod, and bocaccio. Catches would be closely monitored by TNC and NMFS to ensure total catch amounts are not exceeded. If issued, this EFP would allow TNC to temporarily convert bottom trawl LEPs into longline, trap, pot, and hook and line gear LEPs. It would also allow TNC and designated vessels to land some groundfish species in excess of trip limits so that they may structure their fishing operation to better meet the needs of the community based fishing association. If the EFP is issued, no more than six vessels would participate in the EFP at any time. Vessels would be fishing between 36° N. lat. and 34°27.00′ N. lat. with longline, trap, pot and hook and line gear, and would be subject to the non-trawl Rockfish Conservation Area

(RCA)in that region. All fish harvested under this EFP would be landed in Morro Bay or Port San Luis, California. Any groundfish species for which there is not a specified total catch amount would be subject to the open access trip limits applicable during the cumulative limit period in which fish are landed, and for the area between 36° N. lat. and 34°27.00′ N. lat. Without an EFP, these activities are otherwise prohibited by Federal regulations and TNC would not be able to test the usefulness of a community based fishing association and gear switching mechanisms to mitigate the impact of trawl effort reduction on communities and promote conservation of fishing resources. Data collected during this project are expected to have a broader significance to the management of the Pacific coast groundfish fishery by providing insight into the challenges and successes of managing a community based fishing association under a rationalized fishery, as well as informing fishery monitoring provisions that would need to accompany an IFQ program for which individual accountability is a key component. Recreational Chilipepper EFP The Recreational Fishing Alliance

(RFA)and the Golden Gate Fishermen's Association submitted their final EFP application package to NMFS on February 14, 2008. The primary purpose of the EFP is to do an area-based recreational fishing study to test if hook and line fishing gear can be used to access underutilized chilipepper rockfish seaward of the non-trawl RCA while keeping bycatch of overfished species low. Because the Pacific coast groundfish fishery is a mixed stock fishery, catch of healthy stocks is constrained in order to reduce the catch of rebuilding groundfish species. Chilipepper rockfish are an underutilized species, and there has been increasing interest in recent years in developing fisheries to target chilipepper rockfish. This EFP would test development of a selective recreational target fishery in depths seaward of 150-fm (274-m) off California, between 40°10.00′ N. lat. and 34°27.00′ N. lat. (the North Central and South Central regions). The RFA developed a proposal for a self-funding EFP fishery, where individual anglers would pay for an offshore chilipepper rockfish trip on a charter passenger fishing vessel that would operate throughout the year. Approximately 20 vessels would participate in this fishery, however only a few boats would fish at any one time in order to meet requirements for observer coverage. For every trip taken in the EFP fishery, each passenger would be subject to a 10 groundfish total bag limit for any groundfish species. Total catch of the target species, chilipepper rockfish, would be limited on each trip by the 10 fish bag limit per angler. Total catch of incidentally caught species, particularly overfished rockfish species, would be limited by total catch amounts for the entire EFP fishery. Incidental catch species with total catch amounts include all of the overfished species: canary rockfish, yelloweye rockfish, widow rockfish, darkblotched rockfish, Pacific ocean perch, cowcod, and bocaccio. Catches would be closely monitored by the RFA and NMFS to ensure total catch amounts for these overfished species are not exceeded. If issued, this EFP would allow recreational fishing for chilipepper rockfish seaward of 150-fm (274-m) between 40°10.00′ N. lat. and 34°27.00′ N. lat. It would also passengers aboard the EFP charter fishing vessel to be exempt from recreational sub-bag limits for any groundfish species, such as bocaccio, and it would also allow passengers to retain and land overfished species, such as canary rockfish, yelloweye rockfish, and cowcod, because they would be required to retain all rockfish for catch accounting and conservation purposes. Without an EFP, these activities are otherwise prohibited by Federal regulations and the RFA would not be able to test a new market for offshore recreational fishing opportunities for underutilized species. Data collected during this project are expected to have a broader significance to the management of the Pacific coast groundfish fishery by testing if a sustainable fishing opportunity could be provided in an offshore recreational fishery for chilipepper rockfish. Catch composition data and illustration of impacts to overfished species would be the primary measure of success for the recreational hook and line fishery that would be conducted under this EFP. If successful, and the EFP demonstrates that bycatch is avoided targeting chilipepper rockfish using hook and line gear seaward of 150-fm (274-m), it may be possible in the future that some of the central California recreational fishing effort can be shifted offshore, where there are fewer interactions with overfished canary rockfish. Authority: 16 U.S.C. 1801 *et seq.* Dated: April 2, 2008. Emily H. Menashes Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E8-7268 Filed 4-7-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG97 Fisheries of the South Atlantic; South Atlantic Fishery Management Council (Council)—Meeting of the Shrimp Review Panel AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice. SUMMARY: The South Atlantic Fishery Management Council will hold a meeting of its Shrimp Review Panel via conference call. DATES: The conference call will take place at 2 p.m. on April 24, 2008. ADDRESSES: The meeting will be held via conference call. The public may call in to listen by calling toll free 866-256-9295. FOR FURTHER INFORMATION CONTACT: Kim Iverson, Public Information Officer, South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, North Charleston, S.C., 29405; phone 843/571-4366 or toll free 866/SAFMC-10; FAX 843/769-4520; email: *kim.iverson@safmc.net* . SUPPLEMENTARY INFORMATION: The Council will convene a meeting of its Shrimp Review Panel via conference call to address the condition of the pink shrimp stock. Amendment 6 to the Fishery Management Plan for the Shrimp Fishery of the South Atlantic Region established a proxy for a minimum stock size threshold as a parent stock size capable of producing maximum sustainable yield the following year. The Panel will convene to review the current status of the pink shrimp stock and determine whether action by the Council is required at this time. The Panel will prepare a report with its recommendations for review by the Council's Scientific and Statistical Committee and the Shrimp Committee to determine if management action is needed. Special Accommodations These meetings are physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the council office (see ADDRESSES ) three days prior to the meetings. Dated: April 2, 2008. Tracey L. Thompson Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E8-7265 Filed 4-7-08; 8:45 am] BILLING CODE 3510-22-S CORPORATION FOR NATIONAL AND COMMUNITY SERVICE Proposed Information Collection; Comment Request AGENCY: Corporation for National and Community Service. ACTION: Notice. SUMMARY: The Corporation for National and Community Service (hereinafter the “Corporation”), as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance 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)(2)(A)). This program helps to 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 requirement on respondents can be properly assessed. Currently, the Corporation is soliciting comments concerning its revised Martin Luther King, Jr. Day of Service Application Instructions using the Corporation's Electronic Application System, eGrants. Completion of the Martin Luther King, Jr. Day of Service Application Instructions is required for funding considerations. Copies of the information collection requests can be obtained by contacting the office listed in the address section of this notice. DATES: Written comments must be submitted to the individual and office listed in the ADDRESSES section by June 9, 2008. ADDRESSES: You may submit comments, identified by the title of the information collection activity, by any of the following methods:

(1)*By mail sent to:* Corporation for National and Community Service, Georgia State Office; Attention Ms. Rochelle Barry, State Program Director, Suite 902; 75 Piedmont Avenue, NE., Atlanta, GA 30303.

(2)By hand delivery or by courier to the mail address given in paragraph

(1)above, between 9 a.m. and 4 p.m. Monday through Friday, except Federal holidays.

(3)*By fax to:*

(404)331-2898, Attention Ms. Rochelle Barry, State Program Director.

(4)Electronically through the Corporation's e-mail address system: *mlkgrants@cns.gov* . FOR FURTHER INFORMATION CONTACT: Rochelle Barry,

(404)331-4646, ext. 2 or by e-mail at *mlkgrants@cns.gov.* SUPPLEMENTARY INFORMATION: The OMB is particularly interested in comments which: • Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Corporation, 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; • Propose ways to enhance the quality, utility, and clarity of the information to be collected; and • Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses. Description The purpose of these Martin Luther King, Jr. Day of Service Grants is to mobilize more Americans to observe the Martin Luther King, Jr. Federal Holiday as a day of service in communities and to bring people together around the common focus of service to others. The Corporation will award these funds to eligible applicants who will in turn subgrant to eligible local organizations or fund separate events to plan and carry out service activities. Background The Martin Luther King, Jr. Day of Service Grant application is completed by applicant organizations interested in supporting an MLK Day of Service Program. The application is completed electronically by using the Corporation's web-based system, eGrants. Current Action The Corporation seeks to create renewal application instructions specifically for the Martin Luther King, Jr. Day of Service grants. When finalized, the application will include additional instructions to clarify narrative and budget sections; will contain an updated list of “Service Categories” used by applicants to identify the types of needs the national service participants will meet; and will contain current references used in the grants management system. *Type of Review:* Renewal. *Agency:* Corporation for National and Community Service. *Title:* Martin Luther King, Jr. Day of Service Application Instructions. *OMB Number:* 3045-0110. *Affected Public:* Eligible applicants to the Corporation for National and Community Service for funding of Martin Luther King, Jr. Day of Service Grants. *Total Respondents:* 80. *Frequency:* Annual. *Average Time per Response:* Ten

(10)hours. *Estimated Total Burden Hours:* 800 hours. *Total Burden Cost (capital/startup):* None. *Total Burden Cost (operating/maintenance):* None. Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record. Dated: April 2, 2008. Elizabeth Seale, Chief Operating Officer, Office of Chief Operating Officer. [FR Doc. E8-7289 Filed 4-7-08; 8:45 am] BILLING CODE 6050-$$-P DEPARTMENT OF DEFENSE Office of the Secretary Reserve Forces Policy Board

(RFPB)AGENCY: Department of Defense; Office of the Secretary of Defense Reserve Forces Policy Board. ACTION: Notice of Advisory Committee Meeting. SUMMARY: Pursuant to the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Sunshine in the Government Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150, the Department of Defense announces the following Federal advisory committee meeting: Name of Committee: Reserve Forces Policy Board (RFPB). Date: April 15-16, 2008. Time:

(15th)8 a.m.-4:30 p.m.;

(16th)8 a.m.-4 p.m. Location: Meeting address is HQ U.S. Northern Command, Building 2, Peterson Air Force Base, Colorado 80914. Mailing address is Reserve Forces Policy Board, 7300 Defense Pentagon, Washington, DC 20301-7300. Purpose of the Meeting: An open quarterly meeting of the Reserve Forces Policy Board. Agenda: Discussion of homeland security and other issues relevant to the Reserve Components. Meeting Accessibility: Pursuant to 5 U.S.C. 552b, as amended, and 41 CFR 102-3.140 through 102-3.165, and the availability of space this meeting is open to the public. To request a seat, contact the DFO not later than 4/9/08 at 703-697-4486, or by e-mail, *marjorie.davis@osd.mil* and/or *donald.ahern@osd.mil* . Written Statements: Pursuant to 41 CFR 102-3.105(j) and 102-3.140, the public or interested organizations may submit written statements to the membership of the Reserve Forces Policy Board at any time or in response to the stated agenda of a planned meeting. Written statements should be submitted to the Reserve Forces Policy Board's Designated Federal Officer. The Designated Federal Officer's contact information can be obtained from the GSA's FACA Database— *https://www.fido.gov/facadatabase/public.asp* . Written statements that do not pertain to a scheduled meeting of the Reserve Forces Policy Board may be submitted at any time. However, if individual comments pertain to a specific topic being discussed at a planned meeting then these statements must be submitted no later than five business days prior to the meeting in question. The Designated Federal Officer will review all submitted written statements and provide copies to all the committee members. FOR FURTHER INFORMATION CONTACT: Col Marjorie Davis, Designated Federal Officer,

(703)697-4486 (Voice),

(703)614-0504 (Facsimile), *marjorie.davis@osd.mil* . Mailing address is Reserve Forces Policy Board, 7300 Defense Pentagon, Washington, DC 20301-7300. SUPPLEMENTARY INFORMATION: Due to scheduling difficulties the Reserve Forces Policy Board was unable to finalize its agenda in time to publish notice of its meeting in the **Federal Register** for the 15-calendar days required by 41 CFR 102-3.150(a). Accordingly, the Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement. Dated: April 2, 2008. L.M. Bynum, Alternate OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. E8-7314 Filed 4-7-08; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF DEFENSE Office of the Secretary of Defense Renewal of Department of Defense Federal Advisory Committees AGENCY: DoD. ACTION: Renewal of Federal Advisory Committee. SUMMARY: Under the provisions of the Federal Advisory Committee Act of 1972, (5 U.S.C. Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.65, the Department of Defense gives notice that it is renewing the charter for the Defense Department Advisory Committee on Women in the Services (hereafter referred to as the Committee). The Committee is a discretionary federal advisory committee established by the Secretary of Defense to provide the Department of Defense, and the Under Secretary of Defense (Personnel and Readiness), independent advice and recommendations on matters and policies relating to the recruitment and retention, treatment, employment, integration, and well-being of highly qualified professional women in the Armed Forces and provide advice and recommendations on family issues related to. The Committee, in accomplishing its mission:

(a)Reports and recommends healthcare issues specific to female service members; and

(b)provides recommendations to military spouse career and employment opportunity. The Committee shall be composed of not more than 15 members, who represent a distribution of demography, professional career fields, community service, and geography, and selected on the basis of their experience in the military, as a member of a military family, or with women's or family-related workforce issues. Committee members appointed by the Secretary of Defense, who are not federal officers or employees, shall serve as Special Government Employees under the authority of 5 U.S.C. 3109. Committee members shall be appointed on an annual basis by the Secretary of Defense, and shall serve no more than three years on the Committee; the Secretary of Defense may authorize a Committee member to serve longer than three years on the Committee. Committee members shall serve without compensation, with the exception of travel and per diem for official travel. The Committee shall be authorized to establish subcommittees, as necessary and consistent with its mission, and these subcommittees or working groups shall operate under the provisions of the Federal Advisory Committee Act of 1972, the Government in the Sunshine Act of 1976, and other appropriate federal regulations. Such subcommittees or workgroups shall not work independently of the chartered Committee, and shall report all their recommendations and advice to the Committee for full deliberation and discussion. Subcommittees or workgroups have no authority to make decisions on behalf of the chartered Committee nor can they report directly to the Department of Defense or any federal officers or employees who are not Committee members. SUPPLEMENTARY INFORMATION: The Committee shall meet at the call of the Committee's Designated Federal Officer, in consultation with the Committee's chairperson. The Designated Federal Officer, pursuant to DoD policy, shall be a full-time or permanent part-time DoD employee, and shall be appointed in accordance with established DoD policies and procedures. The Designated Federal Officer or duly appointed Alternate Designated Federal Officer shall attend all committee meetings and subcommittee meetings. Pursuant to 41 CFR 102-3.105(j) and 102-3.140, the public or interested organizations may submit written statements to the Defense Department Advisory Committee on Women in the Services membership about the Committee's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned meetings of the Defense Department Advisory Committee on Women in the Services. All written statements shall be submitted to the Designated Federal Officer for the Defense Department Advisory Committee on Women in the Services, and this individual will ensure that the written statements are provided to the membership for their consideration. Contact information for the Defense Department Advisory Committee on Women in the Service's Designated Federal Officer can be obtained from the GSA's FACA Database— *https://www.fido.gov/facadatabase/public.asp* . The Designated Federal Officer, pursuant to 41 CFR 102-3.150, will announce planned meetings of the Defense Department Advisory Committee on Women in the Services. The Designated Federal Officer, at that time, may provide additional guidance on the submission of written statements that are in response to the stated agenda for the planned meeting in question. FOR FURTHER INFORMATION CONTACT: Contact Jim Freeman, Deputy Committee Management Officer for the Department of Defense, 703-601-6128. Dated: April 2, 2008. L.M. Bynum, Alternate OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. E8-7316 Filed 4-7-08; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF DEFENSE Department of the Army Advisory Committee Meeting Notice AGENCY: Department of the Army, DOD. ACTION: Notice of meeting. SUMMARY: In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), announcement is made of the following meeting: *Name of Committee:* Army Education Advisory Committee. *Date:* April 23, 2008. *Place:* Crowne Plaza Williamsburg at Ft. Magruder, 6945 Pocahontas Trail, Williamsburg, VA 23185. *Time:* 0830-1700. *Proposed Agenda:* The meeting agenda includes a review of actions and recommendations from five subcommittees: Defense Language Institute Foreign Language Center, Command and General Staff College Board of Visitors, Army War College Board of Visitors, Distance Learning/Training Technology Applications Subcommittee, and the Reserve Officer Training Corps Subcommittee. Committee members will also be briefed on new Department of the Army initiatives: the College of the American Soldier and the Army Civilian University. *Purpose of the Meeting:* To review recommendations submitted from the last meeting of each of the five subcommittees and forward approved recommendation to the Office of the Administrative Assistant, Secretary of the Army and the subcommittee decision maker. To provide for the continuous exchange of information and ideas for training and education between the U.S. Army Training and Doctrine Command (TRADOC), HQ Department of the Army, and the academic and business communities. *For Further Information Contact:* All communications regarding this committee should be addressed to Mr. Carlton Hardy, at Commander, Headquarters TRADOC, ATTN: ATTG-VN (Mr. Hardy), Fort Monroe, VA 23651-5000; e-mail: *carlton.hardy@us.army.mil* . *Supplementary Information:* Meeting of the advisory committee is open to the public. Because of limited meeting space, attendance will be limited to those persons who have notified the Advisory Committee Management Office in writing at least five days prior to the meeting of their intention to attend. Contact Mr. Hardy ( *carlton.hardy@us.army.mil* ) for meeting agenda and specific locations. Any member of the public may file a written statement with the committee before, during, or after the meeting. To the extent that time permits, the committee chairman may allow public presentations or oral statements at the meeting. Robert E. Seger, Senior Executive Service, Assistant Deputy Chief of Staff, G-3/5/7. [FR Doc. E8-7320 Filed 4-7-08; 8:45 am] BILLING CODE 3710-08-P DEPARTMENT OF DEFENSE Department of the Army; Corps of Engineers Intent To Prepare an Environmental Impact Statement for the Proposed University of California Merced and University Community Project, Corps Permit Application Number 199900203 AGENCY: Department of the Army, U.S. Army Corps of Engineers, DOD. ACTION: Notice of intent. SUMMARY: The University of California, Merced (University) and University Community Land Company

(UCLC)LLC have submitted an application to the U.S. Army Corps of Engineers (Corps) under the Clean Water Act Section 404 and River and Harbor Act Section 10 for a proposal to construct an approximately 810-acre campus and an associated University Community in Merced County. The Proposed Action is located in eastern Merced County, east of Lake Road and Yosemite Lake, approximately 2 miles northeast of the City of Merced, California. The Proposed Action consists of three major components: the 810-acre Campus; the 870-acre Community North; and the 1,245-acre Community South. The University controls the land that comprises the campus. University Community Land Company, LLC (UCLC), a not-for-profit corporation, owns the land that comprises Community North. LWH Farms, LLC owns the land that comprises Community South. The University is currently preparing an amendment to its Long Range Development Plan to guide the development of the proposed campus. The proposed campus and Community North would consist of the following five districts: Academic Core; Gateway District; Student Neighborhoods; University Community Town Center; and University Community Neighborhoods. Community South would be developed in accordance with the previously adopted University Community Plan, which designates the Community South area for Multiple Use Urban Development and agricultural uses. The Campus and the northern portion of the University Community would affect 76.6 acres of the waters of the United States, including vernal pools and other wetlands. The primary federal involvement is the fill materials within waters of the United States, work and structures in affecting navigable waters of the United States, and potential impacts on the human environment from such activities. DATES: The Corps and the University will jointly conduct a public scoping meeting that will be held on Wednesday April 23, 2008. ADDRESSES: The scoping meeting will be held in the California Room at UC Merced, located at 5200 N. Lake Road, Merced, CA 95340. FOR FURTHER INFORMATION CONTACT: Ms. Nancy Haley,

(916)557-7731, e-mail: *ucmerced@usace.army.mil* . SUPPLEMENTARY INFORMATION: Interested parties are invited to submit written comments on the permit application on or before April 28, 2008. Scoping comments should be submitted within the next 60 days, but may be submitted at any time prior to publication of the Draft EIS. To submit comments on this notice or for questions about the proposed action and the Draft EIS, please contact Nancy Haley, 1325 J Street (Room 1480), Sacramento, CA 95814-2922. Parties interested in being added to the Corps' electronic mail notification list for the University can register at: *http://www.spl.usace.army.mil/regulatory/register.html* . Please refer to Identification Number 200601050 in any correspondence. The University and UCLC have submitted an application for a Department of the Army permit. Because the campus and Community North are immediately adjacent to each other, the land use planning of these two areas is closely integrated and the actions are connected. The overall purpose of the Proposed Action is to establish a major research university in Merced County that would ultimately support 25,000 full-time equivalent students with an associated community needed to support the university. Projections by the California Department of Finance and the University indicated that a new campus is needed to accommodate near-term enrollment demand and an enrollment of 25,000 students in the long term. An adjacent community is needed to support the university by providing housing and other amenities. To comply with the National Environmental Policy Act (NEPA), the Corps is requiring the preparation of an EIS prior to rendering a final decision on the University and UCLC's permit application. The Corps may ultimately make a determination to permit or deny the Proposed Action or permit or deny modified versions of the Proposed Action. The EIS will also provide the technical basis for the Corps to use in its preparation of its 404(b)(1) Guidelines compliance document as part of the Record of Decision (ROD). To comply with the requirements of the California Environmental Quality Act (CEQA), the University will prepare an Environmental Impact Report

(EIR)for the UC Merced and University Community project. The Corps and the University have agreed to jointly prepare an EIS/EIR for the Proposed Action in order to optimize efficiency and avoid duplication. The EIS/EIR will include alternatives to the Proposed Action that will meet both NEPA and CEQA requirements. The alternatives will also meet the requirements of *CWA Section 404(b)(1) Guidelines* . At this time it is expected that the joint EIS/EIR will evaluate the following alternatives:

(1)No Action Alternative;

(2)Proposed Action;

(3)Yosemite Avenue Alternative (formerly referred to as Alternative 20);

(4)Downtown Merced Alternative;

(5)Bellevue Ranch Alternative (formerly referred to as Off-Site Alternative 2);

(6)Previously Proposed Campus and Community; and

(7)No Build Alternative. The Corps' public involvement program includes several opportunities to provide oral and written comments. Affected federal, state, local agencies, Indian tribes, and other interested private organizations and parties are invited to participate. The EIS/EIR will address several potential environmental issues including: Impacts to waters of the United States, including vernal pools and other wetlands; aesthetics, agricultural resources; air quality, cultural resources; geology and soils; hazards and hazardous materials; hydrology and water quality; land use and planning; noise and vibration; navigation; public health and safety; public services and utilities; recreation; socioeconomics; traffic and transportation. Additional issues may be identified during the scoping process. The Corps has initiated formal consultation with the U.S. Fish and Wildlife Service under Section 7 of the Endangered Species Act for federally threatened and endangered species that may be affected by the Proposed Action. In addition, the Corps will consult with the State Historic Preservation Officer under Section 106 of the National Historic Preservation Act regarding potential impacts to sites listed, or eligible for listing, on the National Register for Historic Places. The joint lead agencies expect the Draft EIS/EIR to be made available to the public in August, 2008. A public hearing will be held during the public comment period for the Draft EIS/EIR. Dated: March 27, 2008. James A. Porter, Lieutenant Colonel, U.S. Army, Deputy District Enginee. [FR Doc. E8-7315 Filed 4-7-08; 8:45 am] BILLING CODE 3710-EH-P DEPARTMENT OF DEFENSE Department of the Army; Corps of Engineers Chief of Engineers Environmental Advisory Board AGENCY: Department of the Army, U.S. Army Corps of Engineers DoD. ACTION: Notice of open meeting. SUMMARY: In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), announcement is made of the following committee meeting: *Name of Committee:* Chief of Engineers Environmental Advisory Board (EAB). *Topic:* The EAB will discuss national considerations related to ecosystem restoration through integrated water resources management with emphasis on communications and the implementation of the Environmental Operating Principles. *Date of Meeting:* April 30, 2008. *Place:* Red Lion Hotel, 1415 5th Avenue, Seattle, WA. *Time:* 9 a.m. to 12 p.m. Forty-five minutes will be set side for public comment. Members of the public who wish to speak are asked to register prior to the start of the meeting. Registration will begin at 8:30. Statements are limited to 3 minutes. FOR FURTHER INFORMATION CONTACT: Ms. Rennie Sherman, Executive Secretary, *rennie.h.sherman@usace.army.mil* 202-761-7771. SUPPLEMENTARY INFORMATION: The EAB advises the Chief of Engineers by providing expert and independent advice on environmental issues facing the Corps of Engineers. The public meeting will include discussion between the EAB and the Chief of Engineers as well as presentations by the EAB and Corps staff. The meeting is open to the public, and public comment is tentatively scheduled for 45 minutes beginning at 11:15. Brenda S. Bowen, Army Federal Register Liaison Officer. [FR Doc. E8-7318 Filed 4-7-08; 8:45 am] BILLING CODE 3710-92-P DEPARTMENT OF DEFENSE Department of the Navy Notice of Intent To Grant Exclusive Patent License; SPADAC, Inc. AGENCY: Department of the Navy, DoD. ACTION: Notice. SUMMARY: The Department of the Navy hereby gives notice of its intent to grant to SPADAC, Inc., a revocable, nonassignable, exclusive license in the United States and certain foreign countries, the Government-owned invention described in U.S. Patent No. 7,120,620: Method and System for Forecasting Events and Threats Based on Geospatial Modeling, Navy Case No. 96,695 and any continuations, divisionals or re-issues thereof. DATES: Anyone wishing to object to the grant of this license must file written objections along with supporting evidence, if any, not later than April 23, 2008. ADDRESSES: Written objections are to be filed with the Naval Research Laboratory, Code 1004, 4555 Overlook Avenue, SW., Washington, DC 20375-5320. FOR FURTHER INFORMATION CONTACT: Rita Manak, Head, Technology Transfer Office, NRL Code 1004, 4555 Overlook Avenue, SW., Washington, DC 20375-5320, telephone: 202-767-3083. Due to U.S. Postal delays, please fax: 202-404-7920, e-mail: *rita.manak@nrl.navy.mil* or use courier delivery to expedite response. Authority: 35 U.S.C. 207, 37 CFR part 404. Dated: April 1, 2008. T.M. Cruz, Lieutenant, Judge Advocate General's Corps, U.S. Navy, Federal Register Liaison Officer. [FR Doc. E8-7261 Filed 4-7-08; 8:45 am] BILLING CODE 3810-FF-P DEPARTMENT OF EDUCATION Notice of Waivers Granted Under Section 9401 of the Elementary and Secondary Education Act, as Amended SUMMARY: In this notice, we enumerate the waivers that the U.S. Department of Education (Department) granted during calendar year 2007 under the waiver authority in section 9401 of the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the No Child Left Behind Act of 2001. In 2007, the Department granted a total of 35 waivers under the ESEA section 9401 waiver authority. The waivers granted were as follows:

(1)Four waivers related to Hurricanes Katrina and Rita;

(2)four growth model pilots;

(3)four waivers allowing local educational agencies

(LEAs)in need of improvement to be eligible to apply to their State educational agency

(SEA)to become supplemental educational services

(SES)providers;

(4)four waivers allowing LEAs to provide SES rather than public school choice to eligible students attending schools that receive funding under Part A of Title I of the ESEA (Title I schools) and are in the first year of school improvement;

(5)two substitute assessment waivers;

(6)one waiver of the notification requirements regarding public school choice under Part A of Title I;

(7)one schoolwide eligibility waiver;

(8)one Title I, Part A within-district allocation waiver;

(9)one transferability waiver; and

(10)thirteen waivers allowing recipients of funds under the Indian Education program to charge additional administrative costs to the program. Waiver Data I. Waivers Related to Hurricanes Katrina and Rita 1. Waiver Applicant: Louisiana Department of Education • Provision waived: Section 1127(b) of the ESEA. • Date waiver granted: March 9, 2007. • Description of waiver: Permits Louisiana to waive for its LEAs, more than once every three years, the 15 percent carryover limitation applicable to Title I, Part A funds. 2. Waiver Applicant: Louisiana Department of Education • Provision waived: Tydings Amendment, section 421(b) of the General Education Provisions Act (GEPA). • Date waiver granted: March 9, 2007. • Description of waiver: Extended until September 30, 2008 the period of availability for fiscal year 2005 ESEA funds. 3. Waiver Applicant: Mississippi Department of Education • Provision waived: Section 1127(b) of the ESEA. • Date waiver granted: July 10, 2007. • Description of waiver: Permits Mississippi to waive for its LEAs, more than once every three years, the 15 percent carryover limitation applicable to Title I, Part A funds. 4. Waiver Applicant: Mississippi Department of Education • Provision waived: Tydings Amendment, section 421(b) of GEPA. • Date waiver granted: October 12, 2007. • Description of waiver: Extended until September 30, 2008 the period of availability for fiscal year 2005 Title I, Part A funds. II. Growth Model Pilots 1. Waiver Applicant: Alaska Department of Education • Provision waived: Section 1111(b)(2) of the ESEA. • Date waiver granted: July 3, 2007. • Description of waiver: Provided Alaska the flexibility to implement a growth-based accountability model as part of determining adequate yearly progress

(AYP)beginning in the 2006-2007 school year. 2. Waiver Applicant: Arizona Department of Education • Provision waived: Section 1111(b)(2) of the ESEA. • Date waiver granted: July 3, 2007. • Description of waiver: Provided Arizona the flexibility to implement a growth-based accountability model as part of determining AYP beginning in the 2006-2007 school year. 3. Waiver Applicant: Iowa Department of Education • Provision waived: Section 1111(b)(2) of the ESEA. • Date waiver granted: August 15, 2007. • Description of waiver: Provided Iowa the flexibility to implement a growth-based accountability model as part of determining AYP beginning in the 2006-2007 school year. 4. Waiver Applicant: Ohio Department of Education • Provision waived: Section 1111(b)(2) of the ESEA. • Date waiver granted: August 15, 2007. • Description of waiver: Provided Ohio the flexibility to implement a growth-based accountability model as part of determining AYP beginning in the 2006-07 school year, conditional upon Ohio's adopting a uniform minimum group size for all students in the State, including students with disabilities and limited English proficient students. III. Allowing LEAs in Need of Improvement To Be Eligible To Apply to Their SEA To Become Supplemental Educational Services

(SES)Providers 1. Waiver Applicant: Anchorage School District, AK • Provision waived: 34 CFR 200.47(b)(1)(iv)(B). • Date waiver granted: August 7, 2007. • Description of waiver: Permitted the Anchorage School District to be eligible to apply to its SEA to become a provider of SES to eligible students during the 2007-2008 school year even though the district was identified for improvement. 2. Waiver Applicant: Boston Public Schools, MA • Provision waived: 34 CFR 200.47(b)(1)(iv)(B). • Date waiver granted: August 7, 2007. • Description of waiver: Permitted Boston Public Schools to be eligible to apply to its SEA to become a provider of SES to eligible students during the 2007-2008 school year even though the district was identified for improvement. 3. Waiver Applicant: Chicago Public Schools, IL • Provision waived: 34 CFR 200.47(b)(1)(iv)(B). • Date waiver granted: August 9, 2007. • Description of waiver: Permitted Chicago Public Schools to be eligible to apply to its SEA to become a provider of SES to eligible students during the 2007-2008 school year even though the district was identified for improvement. 4. Waiver Applicant: Hillsborough County Public Schools, FL • Provision waived: 34 CFR 200.47(b)(1)(iv)(B). • Date waiver granted: August 7, 2007. • Description of waiver: Permitted Hillsborough County Public Schools to be eligible to apply to its SEA to become a provider of SES to eligible students during the 2007-2008 school year even though the district was identified for improvement. IV. Allowing LEAs To Provide SES Rather Than Public School Choice to Eligible Students in Title I Schools in the First Year of School Improvement 1. Waiver Applicant: Alaska Department of Education and Early Development • Provisions waived: Sections 1116(b)(1)(E) and 1116(b)(5)(B) • Date waiver granted: August 1, 2007. • Description of waiver: For the 2007-2008 school year, permitted two school districts—Anchorage School District and Juneau School District—to offer SES, rather than public school choice, to eligible students in Title I schools in the first year of school improvement. 2. Waiver Applicant: Indiana Department of Education • Provisions waived: Sections 1116(b)(1)(E) and 1116(b)(5)(B) • Date waiver granted: August 1, 2007. • Description of waiver: For the 2007-2008 school year, permitted three school districts—Blackford County Schools, Metropolitan School District of Decatur Township, and Monroe County Community School Corporation—to offer SES, rather than public school choice, to eligible students in Title I schools in the first year of school improvement. 3. Waiver Applicant: North Carolina Department of Public Instruction • Provisions waived: Sections 1116(b)(1)(E) and 1116(b)(5)(B) • Date waiver granted: August 1, 2007. • Description of waiver: For the 2007-2008 school year, permitted seven school districts—Burke County, Cumberland County, Durham County, Guilford County, Moore County, Northampton County, and Pitt County—to offer SES, rather than public school choice, to eligible students in Title I schools in the first year of school improvement. 4. Waiver Applicant: Virginia Department of Education • Provisions waived: Sections 1116(b)(1)(E) and 1116(b)(5)(B) • Date waiver granted: August 1, 2007. • Description of waiver: For the 2007-2008 school year, permitted seven school districts—Fairfax County Public Schools, Fauquier County Public Schools, Greene County Public Schools, Hampton City Public Schools, Henrico County Public Schools, Henry County Public Schools, and Newport News City Public Schools—to offer SES, rather than public school choice, to eligible students in Title I schools in the first year of school improvement. V. Substitute Assessment Waivers 1. Waiver Applicant: Maryland Department of Education • Provision waived: 34 CFR 200.3(a)(1)(i). • Date waiver granted: August 28, 2007. • Description of waiver: Permits Maryland to use the results of Advanced Placement

(AP)and International Baccalaureate

(IB)assessments, through the 2009-2010 school year, as substitutes for the high school end-of-course assessments for purposes of determining AYP. 2. Waiver Applicant: Virginia Department of Education • Provision waived: 34 CFR 200.3(a)(1)(i). • Date waiver granted: July 16, 2007. • Description of waiver: Permits Virginia to use the results of AP and IB assessments, through the 2009-2010 school year, as substitutes for the high school end-of-course assessments for purposes of determining AYP. VI. Public School Choice Notification Waiver 1. Waiver Applicant: Pinellas County Schools, FL • Provision waived: 34 CFR 200.44(a)(4)(i). • Date waiver granted: August 20, 2007. • Description of waiver: As a result of actions Pinellas County Schools was required to take under desegregation and related court orders, waived the requirement that the LEA identify two or more specific schools to which parents may transfer their children under the public school choice provisions of Title I. VII. Schoolwide Eligibility Waiver 1. Waiver Applicant: Bismarck Public Schools, ND • Provision waived: Section 1114(a)(1) of the ESEA. • Date waiver granted: November 19, 2007. • Description of waiver: Permits a middle school to implement a schoolwide program even though less than 40 percent of its students are from low-income families. VIII. Title I Within-District Allocation Waiver 1. Waiver Applicant: Keene School District, NH • Provision waived: Section 1113(a)(2)(B) of the ESEA. • Date waiver granted: June 14, 2007. • Description of waiver: Allows two elementary schools that have fallen slightly below the district-wide poverty rate to remain eligible for Title I, Part A services. IX. Transferability Waiver 1. Waiver Applicant: Jefferson County Public Schools, KY • Provision waived: Section 6123(b)(1) of the ESEA. • Date waiver granted: July 13, 2007. • Description of waiver: Permits the district, which has been identified for corrective action, to continue to transfer up to 30 percent of certain Federal funds to its allocations under Part A of Title V to support its high school dropout prevention program. X. Waivers of the Administrative Cost Limitation That Applies to Indian Education Funds On July 17, 2007, the Department granted the following school districts waivers of section 7115(d) of the ESEA, which establishes a five percent administrative cost limitation on funds awarded under the Indian Education Formula Grant program: • San Carlos Unified School District, AZ; • Whiteriver Unified School District, AZ; • Eureka Unified School District, CA; • Shasta Union High School District, CA; • Ventura Unified School District and Ventura County School District, CA; • Bay City Public Schools, MI; • Broken Arrow Public Schools, OK; • Colcord Public Schools, OK; • Muskogee Public Schools, OK; • Norman Public Schools, OK; • Oolagah-Talala Public Schools, OK; • Tulsa Public Schools, OK; • Spokane Public Schools (School District 81), WA. FOR FURTHER INFORMATION CONTACT: Susan Winingar, U.S. Department of Education, 400 Maryland Avenue, SW., room 3W310, Washington, DC 20202. Telephone:

(202)260-0942 or by e-mail: *susan.winingar@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 program contact person listed in this section. *Electronic Access to This Document:* You may 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. Dated: April 3, 2008. Kerri L. Briggs, Assistant Secretary for Elementary and Secondary Education. [FR Doc. E8-7383 Filed 4-7-08; 8:45 am] BILLING CODE 4000-01-P ELECTION ASSISTANCE COMMISSION Sunshine Act Notice AGENCY: United States Election Assistance Commission (EAC). ACTION: Notice of Virtual Public Forum for EAC Board of Advisors. Date and time: Monday, April 21, 2008, 9 a.m. EDT through Friday, April 25, 2008, 5 p.m. EDT. Place: EAC Board of Advisors Virtual Meeting Room at *http://www.eac.gov.* Once at the main page of EAC's Web site, viewers should click the link to the Board of Advisors Virtual Meeting Room. The virtual meeting room will open on Monday, April 21, 2008, at 9 a.m. EDT and will close on Friday, April 25, 2008, at 5 p.m. EDT. The site will be available 24 hours per day during that 5-day period. Purpose: The EAC Board of Advisors will review and provide comment on eight draft chapters of the Election Management Guidelines. The draft chapters contain recommendations and best practices regarding: Absentee voting and vote by mail; acceptance testing; ballot building; contingency planning and change management; developing an audit trail; polling place and vote center management; pre-election and parallel testing; and uniformed and overseas voters. The EAC Board of Advisors Virtual Meeting Room was established to enable the Board of Advisors to conduct business in an efficient manner in a public forum, including being able to review and discuss draft documents, when it is not feasible for an in-person board meeting. The Board of Advisors will not take any votes or propose any resolutions during the 5-day forum of April 21-25, 2008. Members will post comments about the eight draft chapters of the Election Management Guidelines. This activity is open to the public. The public may view the proceedings of this special forum by visiting the EAC Board of Advisors Virtual Meeting Room at *http://www.eac.gov* at any time between Monday, April 21, 2008, 9 a.m. EDT and Friday, April 25, 2008, 6 p.m. EDT. The public also may view the draft chapters of the Election Management Guidelines, which will be posted on EAC's Web site beginning April 21, 2008. The public may file written statements to the EAC Board of Advisors at *boardofadvisors@eac.gov.* Data on EAC's Web site is accessible to visitors with disabilities and meets the requirements of section 508 of the Rehabilitation Act. Person to Contact for Information: Bryan Whitener, Telephone:

(202)566-3100. Gracia M. Hillman, Commissioner, U.S. Election Assistance Commission. [FR Doc. E8-7149 Filed 4-7-08; 8:45 am] BILLING CODE 6820-KF-M DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 13082-000] Robertson Energy Group LLC; Notice of Application Accepted for Filing and Soliciting Motions To Intervene, Protests, and Comments March 31, 2008. Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection: a. *Type of Application:* Preliminary Permit. b. *Project No.:* 13082-000. c. *Date filed:* November 21, 2007. d. *Applicant:* Robertson Energy Group LLC. e. *Name of Project:* Carlyle Lake Hydroelectric Project. f. *Location:* Kaskaskia River in Clinton County, Illinois. It would use the U.S. Army Corps of Engineers' Carlyle Lake Dam. g. *Filed Pursuant to:* Federal Power Act, 16 U.S.C. 791(a)-825(r). h. *Applicant Contact:* Mr. James R. Robertson, Robertson Energy Group LLC, 5702 Reno Court, Boonsboro, MD 21713,

(301)432-7882. i. *FERC Contact:* Henry Woo,

(202)502-8872. j. *Deadline for filing motions to intervene, protests and comments:* 60 days from the issuance date of this notice. All documents (original and eight copies) should be filed with: Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “eFiling” link. The Commission strongly encourages electronic filings. Please include the project number (P-13082-000) on any comments or motions filed. The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. k. *Description of Project:* The proposed project, using the U.S. Army Corps of Engineers' Carlyle Lake Dam, would consist of:

(1)A new intake structure;

(2)five 600-foot long steel penstocks approximately 8 feet in diameter;

(3)a new powerhouse containing five generating units with a total installed capacity of 4.0 megawatts;

(4)a new 3,000-foot long, 5 kilovolt transmission line; and

(5)appurtenant facilities. The proposed Carlyle Lake Hydroelectric Project would have an average annual generation of 32 gigawatt-hours, which would be used to service its customers. l. *Locations of Applications:* A copy of the application is available for inspection and reproduction at the Commission in the Public Reference Room, located at 888 First Street, NE., Room 2A, Washington, DC 20426, or by calling

(202)502-8371. This filing may also be viewed on the Commission's Web site at *http://www.ferc.gov* using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, call toll-free 1-866-208-3676 or e-mail *FERCOnlineSupport@ferc.gov.* For TTY, call

(202)502-8659. A copy is also available for inspection and reproduction at the address in item h above. m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission. n. *Competing Preliminary Permit—* Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30 and 4.36. o. *Competing Development Application* —Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30 and 4.36. p. *Notice of Intent* —A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice. q. *Proposed Scope of Studies under Permit* —A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project. r. *Comments, Protests, or Motions to Intervene* —Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application. s. *Filing and Service of Responsive Documents* —Any filings must bear in all capital letters the title “COMMENTS”,“NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “eFiling” link. The Commission strongly encourages electronic filings. t. *Agency Comments* —Federal, State, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives. Kimberly D. Bose, Secretary. [FR Doc. E8-7287 Filed 4-7-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket Nos. EG08-19-000; EG08-20-000; EG08-21-000; EG08-22-000; EG08-23-000; EG08-24-000; EG08-25-000; EG08-27-000; EG08-28-000] Sweetwater Wind 5 LLC; South Trent Wind LLC; Forward Windpower, LLC; Lookout Wind Power, LLC; Breech Ridge Energy LLC; Las Vegas Cogeneration Limited Partnership; Buffalo Gap Wind Farm 3, LLC; Rail Splitter Wind Farm, LLC; Waterbury Generation, LLC; Notice of Effectiveness of Exempt Wholesale Generator or Foreign Utility Company Status March 31, 2008. Take notice that during the month of February 2008, the status of the above-captioned entities as Exempt Wholesale Generators became effective by operation of the Commission's regulations. 18 CFR 366.7(a). Kimberly D. Bose, Secretary. [FR Doc. E8-7286 Filed 4-7-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP08-29-000] Vector Pipeline L.P.; Notice of Availability of the Environmental Assessment for the Proposed Athens Compressor Expansion Project March 31, 2008. The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared an environmental assessment

(EA)on the natural gas pipeline facilities proposed by Vector Pipeline L.P. (Vector) in the above-referenced docket. The EA was prepared to satisfy the requirements of the National Environmental Policy Act. The FERC staff concludes that approval of the proposed project, with appropriate mitigating measures, would not constitute a major federal action significantly affecting the quality of the human environment. The EA assesses the potential environmental effects of the construction and operation of Vector's proposed Athens Compressor Expansion

(ACE)Project. The ACE Project would involve construction of a new 15,000-horsepower compressor station along Vector's existing pipeline system in Calhoun County, Michigan and modifications at the existing Springville and Highland Compressor Stations, which are located along Vector's pipeline system in LaPorte County, Indiana and Oakland County, Michigan, respectively. The ACE Project would increase mainline capacity by approximately 105,000 dekatherms per day. The EA has been placed in the public files of the FERC. A limited number of copies of the EA are available for distribution and public inspection at: Federal Energy Regulatory Commission, Public Reference Room, 888 First Street, NE., Room 2A, Washington, DC 20426,

(202)502-8371. Copies of the EA have been mailed to Federal, State, and local agencies, public interest groups, interested individuals, newspapers, and parties to this proceeding. Any person wishing to comment on the EA may do so. To ensure consideration prior to a Commission decision on the proposal, it is important that we receive your comments before the date specified below. Please note that the Commission strongly encourages electronic filing of any comments or interventions or protests to this proceeding. See 18 Code of Federal Regulations 385.2001(a)(1)(iii) and the instructions on the Commission's Internet Web site at *http://www.ferc.gov* under the link to “ *Documents and Filings* ” and “eFiling.” eFiling is a file attachment process and requires that you prepare your submission in the same manner as you would if filing on paper, and save it to a file on your hard drive. New eFiling users must first create an account by clicking on “ *Sign up* ” or “ *eRegister* .” You will be asked to select the type of filing you are making. This filing is considered a “Comment on Filing.” In addition, there is a “ *Quick Comment* ” option available, which is an easy method for interested persons to submit text only comments on a project. The *Quick-Comment User Guide* can be viewed at *http://www.ferc.gov/docs-filing/efiling/quick-comment-guide.pdf* . Quick Comment does not require a FERC eRegistration account; however, you will be asked to provide a valid e-mail address. All comments submitted under either eFiling or the Quick Comment option are placed in the public record for the specified docket. If you are filing written comments, please carefully follow these instructions to ensure that your comments are received in time and properly recorded: • Send an original and two copies of your comments to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Room 1A, Washington, DC 20426; • Reference Docket No. CP08-29-000; • Label one copy of the comments for the attention of the Gas Branch 1, PJ-11.1; and • Mail your comments so that they will be received in Washington, DC, on or before April 30, 2008. Comments will be considered by the Commission but will not serve to make the commentor a party to the proceeding. Any person seeking to become a party to the proceeding must file a motion to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR 385.214). 1 Only intervenors have the right to seek rehearing of the Commission's decision. 1 Interventions may also be filed electronically via the Internet in lieu of paper. See the previous discussion on filing comments electronically. Affected landowners and parties with environmental concerns may be granted intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which would not be adequately represented by any other parties. You do not need intervenor status to have your comments considered. Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site ( *http://www.ferc.gov* ) using the eLibrary link. Click on the eLibrary link, click on “General Search” and enter the docket number excluding the last three digits in the Docket Number field. Be sure you have selected an appropriate date range. For assistance, please contact FERC Online Support at *FercOnlineSupport@ferc.gov* or toll free at 1-866-208-3676, or for TTY, contact

(202)502-8659. The eLibrary link also provides access to the texts of formal documents issued by the Commission, such as orders, notices, and rulemakings. In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to the documents. Go to *http://www.ferc.gov/esubscribenow.htm* . Kimberly D. Bose, Secretary. [FR Doc. E8-7288 Filed 4-7-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket Nos. ER08-577-000; ER08-577-001; ER08-578-000; ER08-578-001; ER08-579-000; ER08-579-001] Nobel Bellmont Windpark, LLC; Noble Chateaugay Windpark, LLC; Noble Wethersfield Windpark, LLC; Notice of Issuance of Order April 1, 2008. Noble Bellmont Windpark, LLC, Noble Chateaugay Windpark, LLC, Noble Wethersfield Windpark, LLC (Noble Applicants) filed applications for market-based rate authority, with accompanying market-based rate tariffs. The proposed market-based rate tariffs provides for the sale of energy, capacity and ancillary services at market-based rates. The Noble Applicants also requested waivers of various Commission regulations. In particular, the Noble Applicants requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by the Noble Applicants. On March 27, 2008, pursuant to delegated authority, the Director, Division of Tariffs and Market Development-West, granted the request for blanket approval under part 34 (Director's Order). The Director's Order also stated that the Commission would publish a separate notice in the **Federal Register** establishing a period of time for the filing of protests. Accordingly, any person desiring to be heard concerning the blanket approvals of issuances of securities or assumptions of liability by the Noble Applicants, should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure. 18 CFR 385.211, 385.214 (2007). The Commission encourages the electronic submission of protests using the FERC Online link at *http://www.ferc.gov* . Notice is hereby given that the deadline for filing protests is April 28, 2008. Absent a request to be heard in opposition to such blanket approvals by the deadline above, the Noble Applicants are authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of the Noble Applicants, compatible with the public interest, and is reasonably necessary or appropriate for such purposes. The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approvals of the Noble Applicants' issuance of securities or assumptions of liability. Copies of the full text of the Director's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at *http://www.ferc.gov* , using the eLibrary link. Enter the docket number excluding the last three digits in the docket number filed to access the document. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Kimberly D. Bose, Secretary. [FR Doc. E8-7283 Filed 4-7-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 2030-141] Portland General Electric Company; Notice of Application and Soliciting Comments, Motions To Intervene, and Protests March 31, 2008. Take notice that the following application has been filed with the Commission and is available for public inspection: a. *Application Type:* Amendment of Project License. b. *Project No.:* 2030-141. c. *Date Filed:* March 20, 2008. d. *Applicant:* Portland General Electric Company and the Confederated Tribes of the Warm Springs Reservation of Oregon (CTWS). e. *Name of Project:* Pelton Round Butte Hydroelectric Project. f. *Location:* The project is located on the Deschutes River in Jefferson County, Oregon. The project occupies 3,503.74 acres of federal and tribal lands administered by the U.S. Forest Service (FS), U.S. Bureau of Land Management, and U.S. Bureau of Indian Affairs. g. *Filed Pursuant to:* Federal Power Act, 16 U.S.C. 791(a)-825(r). h. *Applicant Contact:* Ms. Julie A. Keil, Director of Hydro Licensing, Portland General Electric Company, 121 SW Salmon, Portland, OR 97204,

(503)464-8864. i. *FERC Contact:* Any questions on this notice should be addressed to Christopher Yeakel at

(202)502-8132, or by e-mail: *christopher.yeakel@ferc.gov* . j. *Deadline for filing comments and/or motions:* 30 days from the date of this notice. All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, DHAC, PJ-12.1, 888 First Street, NE., Washington, DC 20426. Please include the project number (p-2030-141) on any comments or motions filed. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. k. *Description of Proposal:* The licensees propose to amend the approved Recreation Resources Implementation Plan

(RRIP)pursuant to article 424 of the project license by modifying the schedule and revising those measures outlined in table 1 of the RRIP. The proposed modifications consist of the addition, deletion, and postponement of various measures determined by the Recreation Resources Working Group to address resource concerns and evolving recreation needs. The specific proposed changes are detailed in the licensees' annual report pursuant to article 424 filed on March 20, 2008, and pertain to Cove Palisades State Park, Street Creek Boat Launch, Perry South and Monty Campgrounds, Pelton Bark, and Lake Billy Chinook. Proposed changes at Cove Palisades State Park include postponing of road repairs, installing additional parking, lawn areas, and a restroom, and eliminating a new trail segment to Willow Creek from the Canyon Rim Trail and a boat-in camping area. Proposed changes at Street Creek Boat Launch include the eliminating a new restroom and courtesy dock, delaying installation of additional gravel parking, and adding a measure to develop an operation and maintenance agreement with the FS for portable facilities that will be provided if and when the Perry South boat ramp is closed. l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at *http://www.ferc.gov* using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, contact FERC Online Support at *FERCOnlineSupport@ferc.gov* or call toll-free 1-866-208-3676, or for TTY, call

(202)502-8659. m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission. n. *Comments, Protests, or Motions to Intervene* —Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application. o. *Filing and Service of Responsive Documents* —Any filings must bear in all capital letters the title “COMMENTS”, “RECOMMENDATIONS FOR TERMS AND CONDITIONS”, “PROTEST”, OR “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application. p. *Agency Comments* —Federal, State, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives. Kimberly D. Bose, Secretary. [FR Doc. E8-7285 Filed 4-7-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL08-48-000] Braintree Electric Light Department, Hingham Municipal Lighting Plant, Hull Municipal Lighting Plan, Mansfield Municipal Electric Department, Middleborough Gas & Electric Department, Taunton Municipal Light Plant v. ISO New England Inc.; Notice of Complaint April 1, 2008. Take notice that on March 28, 2008, Braintree Electric Light Department, Hingham Municipal Lighting Plant, Hull Municipal Lighting Plant, Mansfield Municipal Electric Department, Middleborough Gas & Electric Department, and Taunton Municipal Light Plant (Complainants) filed a formal complaint against ISO New England Inc. (Respondent), alleging that the Respondent violated its tariff by assessing certain out-of-merit generation costs as Local Second Contingency Protection Resource charges to be allocated among all load in Southeast Massachusetts, pursuant to section 206 of the Commission's Rules of Practice and Procedure, 18 CFR 385.206 and section 205 and 306 of the Federal Power Act, 16 U.S.C. 824(e) and 825(e). The Complainants have requested fast track processing of their complaint. The Complainants also disagree with the Critical Energy Infrastructure Information

(CEII)designation of the complaint and accompanying testimony which includes information designated by the Respondent as CEII and request that the Commission remove the CEII designation and release the unredacted copy of the complaint to make it publicly available. The Complainants state that a copy of the complaint has been served on the Respondent and on all persons on the Commission's official service list under Docket No. ER07-921-000. Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants. The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at *http://www.ferc.gov* . Persons unable to file electronically should submit an original and 14 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. This filing is accessible on-line at *http://www.ferc.gov* , using the “eLibrary” link and is available for review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail *FERCOnlineSupport@ferc.gov* , or call

(866)208-3676 (toll-free). For TTY, call

(202)502-8659. *Comment Date:* 5 p.m. Eastern Time on April 28, 2008. Kimberly D. Bose, Secretary. [FR Doc. E8-7284 Filed 4-7-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL08-49-000] BJ Energy LLC, Franklin Power LLC, GLE Trading LLC, Ocean Power LLC, Pillar Fund LLC, Complainants, v. PJM Interconnection, L.L.C., Respondent; Notice of Complaint April 1, 2008. Take notice that on March 28, 2008, BJ Energy LLC, Franklin Power LLC, GLE Trading LLC, Ocean Power LLC, and Pillar Fund LLC (Complainants) filed a formal complaint against PJM Interconnection, L.L.C. (Respondent) alleging that the Respondent is violating its own tariff on an ongoing basis because of

(1)the Respondent's refusal to return excess collateral requested by the Complainants and due and payable to the Complainants, and

(2)the Respondent's refusal to distribute certain amounts of revenue due and payable to the Complainants. The Complainants request the Commission to direct the Respondent to immediately return the revenues due and the excess collateral requested by the Complainants, pursuant to sections 206 of the Commission's Rules of Practice and Procedure, 18 CFR 385.206 and sections 205, 206, 306 and 309 of the Federal Power Act, 16 U.S.C. 824(d), 824(e), 825(e) and 825(h). The Complainants state that a copy of the complaint has been served on the Respondent. Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants. The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at *http://www.ferc.gov* . Persons unable to file electronically should submit an original and 14 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. This filing is accessible on-line at *http://www.ferc.gov* , using the “eLibrary” link and is available for review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail *FERCOnlineSupport@ferc.gov* , or call

(866)208-3676 (toll free). For TTY, call

(202)502-8659. *Comment Date:* 5 p.m. Eastern Time on April 17, 2008. Kimberly D. Bose, Secretary. [FR Doc. E8-7282 Filed 4-7-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. RM07-18-000] Elimination of FERC Form No. 423; Notice Providing for Termination of Collection of FERC Form No. 423 March 28, 2008. On March 11, 2008, the Commission issued a Final Rule in the above-referenced proceeding, amending its regulations at 18 CFR 141.61, to eliminate the collection of the FERC Form No. 423, “Monthly Report of Cost and Quality of Fuels for Electric Plants” (Form 423), 122 FERC ¶ 61,225 (2008). The Commission stated that it intended to cease collection of the Form 423 ending with the December 2007 report, which was due February 15, 2008, but that it would coordinate its actions with the Energy Information Administration's

(EIA)collection of this data on its newly authorized EIA-923, “Power Plant Operations Report” to ensure that there would not be a break in the monthly collection of data. EIA has indicated that it will begin the collection of its EIA-923 starting with the January 2008 report. The Commission by this notice therefore announces that it has terminated collection of the Form 423 ending with the December 2007 report, which was due February 15, 2008. Kimberly D. Bose, Secretary. [FR Doc. E8-7281 Filed 4-7-08; 8:45 am] BILLING CODE 6717-01-P ENVIRONMENTAL PROTECTION AGENCY [FRL-8552-7; Docket ID No. EPA-HQ-ORD-2008-0057] Draft Toxicological Review of Thallium: In Support of the Summary Information in the Integrated Risk Information System

(IRIS)AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of Peer Review Workshop. SUMMARY: EPA is announcing that Eastern Research Group, Inc. (ERG), an EPA contractor for external scientific peer review, will convene an independent panel of experts and organize and conduct an external peer review workshop to review the external review draft document titled, “Toxicological Review of Thallium: In Support of Summary Information on the Integrated Risk Information System (IRIS)” (NCEA-S-2949; EPA/635/R-08/001). EPA previously announced the 60-day public comment period (ending April 15, 2008) for the draft document in the **Federal Register** on February 15, 2008 (73 FR 8867). EPA will consider public comments and recommendations from the expert panel workshop as EPA finalizes the draft document. The public comment period and the external peer review workshop are separate processes that provide opportunities for all interested parties to comment on the document. EPA intends to forward public comments submitted in accordance with the **Federal Register** notice (73 FR 8867) to ERG for consideration by the external peer review panel prior to the workshop. EPA is releasing this draft document solely for the purpose of pre-dissemination peer review under applicable information quality guidelines. This document has not been formally disseminated by EPA. It does not represent and should not be construed to represent any Agency policy or determination. The public may attend this workshop as observers through a registration process, and time will be set aside for observers to give brief oral comments at the workshop regarding the draft document under review. Pre-registration is strongly recommended as space is limited, and registrations will be accepted on a first-come, first-served basis. The deadline for pre-registration is Monday, May 12, 2008. If space allows, registrations will continue to be accepted after this date, including on-site registrations. Time will be set aside to hear comments from observers, and individuals will be limited to a maximum of five minutes during the morning session of peer review workshop. When you register, please indicate that you wish to make oral comments during the comment period. The draft document and EPA's peer review charge are available via the Internet on NCEA's home page under the Recent Additions and the Data and Publications menus at *http://www.epa.gov/ncea* . When finalizing the draft document, EPA intends to consider the comments and recommendations from the external peer review workshop and any public comments that EPA receives in accordance with 73 FR 8867, February 15, 2008. Public comments submitted during the 60-day public comment period ending April 15, 2008, may be observed at *http://www.regulations.gov* under Docket ID No. EPA-HQ-ORD-2008-0057. DATES: The peer review workshop will begin on Monday, May 19, 2008, at approximately 8:30 a.m. and end at no later than 4:30 p.m., Eastern time. Observers must register by May 12, 2008, and indicate that you wish to make brief oral comments at the workshop. ADDRESSES: The peer review workshop will be held at the Navy League Building, 2300 Wilson Blvd, Arlington, Virginia 22201. ERG is organizing, convening, and conducting the peer review workshop. To attend the workshop as an observer, register by May 12, 2008, via the Internet at *http://www2.ergweb.com/projects/conferences/peerreview/register-thallium.htm* . You may also register by e-mail at *meetings@erg.com* (subject line: Thallium), by phone: 781-674-7374 or toll free at 800-803-2833, or by faxing a registration request to 781-674-2906 (please reference the “Thallium Peer Review Workshop” and include your name, title, affiliation, full address and contact information). The draft “Toxicological Review of Thallium: In Support of Summary Information on the Integrated Risk Information System (IRIS)” is available via the Internet on the National Center for Environmental Assessment's

(NCEA)home page under the Recent Additions and the Data and Publications menus at *http://www.epa.gov/ncea* . A limited number of paper copies are available from NCEA's Information Management Team, telephone: 703-347-8561; facsimile: 703-347-8691. If you are requesting a paper copy, please provide your name, mailing address, and the document title. Copies are not available from ERG. The 1988 Midwest Research Institute

(MRI)study referenced in the draft Toxicological Review of Thallium is available by contacting EPA's IRIS Hotline (by phone at 202-566-1676, by facsimile at 202-566-1749, or by e-mail at *hotline.iris@epa.gov* ), via the docket at *http://www.regulations.gov* under Docket ID No. EPA-HQ-ORD-2008-0057, or at the NCEA home page under the Recent Additions and the Data and Publications menus at *http://www.epa.gov/ncea* . FOR FURTHER INFORMATION CONTACT: For information on the peer review workshop, contact ERG, 110 Hartwell Avenue, Lexington, MA 02421-3136; telephone: 781-674-7374; facsimile: 781-674-2906; or e-mail: *meetings@erg.com* (subject line: Thallium). If you have questions about the document, contact Susan Rieth, IRIS Staff, National Center for Environmental Assessment, (8601D), U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone: 703-347-8582; facsimile: 703-347-8689; or e-mail: *rieth.susan@epa.gov* . SUPPLEMENTARY INFORMATION: I. Summary of Information About the Integrated Risk Information System

(IRIS)IRIS is a database that contains potential adverse human health effects information that may result from chronic (or lifetime) exposure to specific chemical substances found in the environment. The database (available on the Internet at *http://www.epa.gov/iris* ) contains qualitative and quantitative health effects information for more than 540 chemical substances that may be used to support the first two steps (hazard identification and dose-response evaluation) of a risk assessment process. When supported by available data, the database provides oral reference doses

(RfDs)and inhalation reference concentrations

(RfCs)for chronic health effects, and oral slope factors and inhalation unit risks for carcinogenic effects. Combined with specific exposure information, government and private entities can use IRIS data to help characterize public health risks of chemical substances in a site-specific situation and thereby support risk management decisions designed to protect public health. II. Workshop Information Members of the public may attend the workshop as observers, and there will be a limited time for oral comments from the public. Please let ERG know if you wish to make comments during the workshop by registering on the Web site at *https://www2.ergweb.com/projects/conferences/peerreview/register-thallium.htm* and indicating your intent to make oral comments. Space is limited, and reservations will be accepted on a first-come, first-served basis. Dated: April 1, 2008. Rebecca Clark, Director, National Center for Environmental Assessment. [FR Doc. E8-7350 Filed 4-7-08; 8:45 am] BILLING CODE 6560-50-P FEDERAL COMMUNICATIONS COMMISSION Sunshine Act Meeting; FCC to Hold Open Commission Meeting, Thursday, April 10, 2008 April 3, 2008 The Federal Communications Commission will hold an Open Meeting on the subjects listed below on Thursday, April 10, 2008, which is scheduled to commence at 9:30 a.m. in Room TW-C305, at 445 12th Street, SW., Washington, DC. Item No. Bureau Subject 1 International TITLE: Spectrum and Service Rules for Ancillary Terrestrial Components in the 1.6/2.4 GHz Big LEO Bands; Globalstar Licensee LLC, Authority to Implement an Ancillary Terrestrial Component (IB Docket No. 07-253). SUMMARY: The Commission will consider a Report and Order and Order Proposing Modification increasing the spectrum available for code division multiple access satellite systems in the 1.6/2.4 GHz Big LEO bands to provide ancillary terrestrial component service from 11 MHz to 19.275 MHz, and technical rules to prevent interference to other services. 2 Public Safety & Homeland Security TITLE: Petition for Notice of Inquiry Regarding 911 Call-Forwarding Requirements and Carriers' Blocking Options for Non-Initialized Phones. SUMMARY: The Commission will consider a Notice of Proposed Inquiry in response to a Petition filed by nine public safety organizations. 3 Public Safety & Homeland Security TITLE: Commercial Mobile Alert System (PSHS Docket No. 07-287). SUMMARY: The Commission will consider a Report and Order concerning implementation of the Warning, Alert and Response Network (“WARN”) Act. 4 Wireline Competition TITLE: TracFone Wireless, Inc. Petition for designation as an Eligible Telecommunications Carrier in New York, Florida, Virginia, Connecticut, Massachusetts, Alabama, North Carolina, Tennessee, Delaware, and New Hampshire (CC Docket No. 96-45). SUMMARY: The Commission will consider an Order addressing petitions by TracFone Wireless, Inc. for designation as an Eligible Telecommunications Carrier (ETC), eligible only to receive universal service Lifeline support, in several states and the District of Columbia. 5 Enforcement TITLE: Various Manufacturers, Notices of Apparent Liability for Forfeiture. SUMMARY: The Commission will consider Notices of Apparent Liability for Forfeiture against nine consumer electronics manufacturers for violation of the Commission's requirement that digital television receivers be capable of responding to changes in the content advisory rating system. 6 Enforcement TITLE: Various Retailers, Notices of Apparent Liability for Forfeiture. SUMMARY: The Commission will consider Notices of Apparent Liability for Forfeiture against 14 consumer electronics retailers for violation of the Commission's labeling requirement for television receivers capable of receiving only analog signals. 7 Enforcement TITLE: Manufacturer, Forfeiture Order and Further Notice of Apparent Liability. SUMMARY: The Commission will consider a Forfeiture Order and Further Notice of Apparent Liability for Forfeiture against a consumer electronics manufacturer for violation of the Commission's rule restricting the importation and interstate shipment of analog-only television receivers and violation of the Commission's rule prohibiting negligent misrepresentation in filings submitted to the Commission. 8 Enforcement TITLE: Manufacturer, Notice of Apparent Liability for Forfeiture. SUMMARY: The Commission will consider a Notice of Apparent Liability for Forfeiture against an exercise equipment manufacturer for violation of the Commission's rule restricting the importation and interstate shipment of analog-only television receivers. Open captioning will be provided for this event. Other reasonable accommodations for people with disabilities are available upon request. Include a description of the accommodation you will need including as much detail as you can. Also include a way we can contact you if we need more information. Make your request as early as possible; please allow at least 5 days' advance notice. Last minute requests will be accepted, but may be impossible to fill. Send an e-mail to: *fcc504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). Additional information concerning this meeting may be obtained from Audrey Spivack or David Fiske, Office of Media Relations,

(202)418-0500; TTY 1-888-835-5322. Audio/Video coverage of the meeting will be broadcast live with open captioning over the Internet from the FCC's Audio/Video Events Web page at *http://www.fcc.gov/realaudio.* For a fee this meeting can be viewed live over George Mason University's Capitol Connection. The Capitol Connection also will carry the meeting live via the Internet. To purchase these services call

(703)993-3100 or go to *http://www.capitolconnection.gmu.edu.* Copies of materials adopted at this meeting can be purchased from the FCC's duplicating contractor, Best Copy and Printing, Inc.

(202)488-5300; Fax

(202)488-5563; TTY

(202)488-5562. These copies are available in paper format and alternative media, including large print/type; digital disk; and audio and video tape. Best Copy and Printing, Inc. may be reached by e-mail at *FCC@BCPIWEB.com.* Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. 08-1113 Filed 4-4-08; 12:20 pm]

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