Proposed Rules. Petition for rulemaking: Resolution and closure of petition docket

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BILLING CODE 3510-22-S 73 137 Wednesday, July 16, 2008 Proposed Rules NUCLEAR REGULATORY COMMISSION 10 CFR Part 71 [Docket No. PRM-71-13; NRC-2007-0022] Christine O. Gregoire, Governor of the State of Washington; Consideration of Petition in Rulemaking Process AGENCY: Nuclear Regulatory Commission. ACTION: Petition for rulemaking: Resolution and closure of petition docket. SUMMARY: The U.S. Nuclear Regulatory Commission

(NRC)will consider the issues raised in a petition for rulemaking submitted by Christine O. Gregoire, Governor of the State of Washington, in the NRC's rulemaking process. Further information on this rulemaking may be tracked through *http://www.regulations.gov* under Docket ID NRC-2008-0120. The petition was docketed by the NRC on March 15, 2007, and was assigned Docket No. PRM-71-13 [NRC-2007-0022]. The petitioner requested that the NRC amend its regulations to require the use of global positioning satellite

(GPS)for tracking vehicles transporting highly radioactive mobile or portable radioactive devices. The petitioner also stated that another alternative was for the Commission to grant states the flexibility to impose more stringent requirements than those required under NRC's current increased controls. The NRC has determined that this petition will be considered through NRC's rulemaking process. DATES: The docket for the petition for rulemaking, PRM-71-13 [NRC-2007-0022], is closed on July 16, 2008. ADDRESSES: Further NRC action on the issues raised by this petition will be accessible at the Federal rulemaking portal, *http://www.regulations.gov* , by searching on rulemaking docket ID: NRC-2008-0120. The NRC also tracks all rulemaking actions in the “NRC Regulatory Agenda: Semiannual Report (NUREG-0936).” The Regulatory Agenda is a semiannual compilation of all rules on which the NRC has recently completed action, or has proposed action, or is considering action, and of all petitions for rulemaking that the NRC is working to resolve. You can access publicly available documents related to this petition for rulemaking using the following methods: *Federal e-Rulemaking Portal:* Go to *http://www.regulations.gov* , and search for documents filed under Docket ID [NRC-2008-0120]. *NRC's Public Document Room (PDR):* The public may examine and have copied for a fee publicly available documents at the NRC's PDR, Public File Area, Room O1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. *NRC's Agency-Wide Document Access and Management System (ADAMS):* Publicly available documents created or received at the NRC are available electronically at the NRC's electronic Reading Room at *http://www.nrc.gov/reading-rm/adams.html* . From this page, the public can gain entry into ADAMS, which provides text and image files of NRC's public documents. If you do not have access to ADAMS, or if there are problems in accessing the documents located in ADAMS, contact the NRC PDR reference staff at 1-899-397-4209, 301-415-4737, or by e-mail to *pdr.resource@nrc.gov* . FOR FURTHER INFORMATION CONTACT: Thomas Young, Office of Federal and State Materials and Environmental Management Programs, Division of Intergovernmental Liaison and Rulemaking, Rulemaking Branch A, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone 301-415-5795, e-mail *thomas.young@nrc.gov* . SUPPLEMENTARY INFORMATION: The Petition On April 27, 2007 (72 FR 20963), the NRC published a notice of receipt requesting comment on a petition for rulemaking filed by Christine O. Gregoire, Governor of the State of Washington. The public comment period closed on July 11, 2007. The petitioner requests that the NRC adopt the use of GPS tracking as a national requirement for vehicles transporting highly radioactive mobile or portable radioactive devices. The petitioner states that an alternative is for the Commission to grant states the flexibility to impose more stringent requirements than those required under current NRC's increased controls. The petitioner believes that GPS technology is an effective and relatively inexpensive tool that will help when a vehicle with radioactive material is missing. The petitioner acknowledges that requiring a GPS on these vehicles does not ensure that the radiological source will be found. However, the petitioner believes that these suggestions would give law enforcement a significant advantage. Public Comments on the Petition NRC staff received 15 comment letters on the petition. Comments were received from licensees, radiography source and device manufacturers, industry involved with radiography, a GPS manufacturer, a professional organization, a State agency, and a Federal agency. One comment letter did not have a comment included. The State of Washington submitted two additional comments to clarify that the intent of its petition was to track vehicles, not the device or source. In summary, seven commenters opposed the petition and five commenters supported it. Commenters who opposed the petition submitted similar comments stating that GPS units would not prevent theft of the devices, would provide little, if any, deterrence to thieves or terrorists, and would provide little, if any, enhancement of authorities' ability to recover a stolen radiography camera. Some commenters stated that the requirement to add GPS units to cameras will be a matter of public record, so anyone serious about illegally obtaining a camera would take measures in advance to defeat them from acting as tracking mechanisms. These commenters also stated that the multiple increased controls security measures that currently apply to industrial radiography sources are appropriate and adequately provide reasonable assurances to deter theft. Because the licensees recognize the threat posed by high activity radiation sources, there has been little opposition from the industry regarding these measures, despite the time and monetary investments that these measures require. In addition, some commenters stated that GPS units are a good example that additional security requirements provide a poor return on the investment because the costs to licensees and equipment manufacturers could be substantial. These commenters also stated that they are opposed to the petitioner's alternative to grant states the flexibility to impose more stringent requirements than those required under current NRC regulations, because it will not allow for a uniform set of regulations that apply to industrial radiographic operations in all jurisdictions. These commenters further stated that the lack of uniform regulations imposes a severe burden on the industry, which increases the complexity of regulatory requirements, and imposes additional burdens that increase costs and make compliance more difficult. The commenters suggested that state and Federal regulators enforce the existing regulations, instead of requiring GPS units on (or in) radiography cameras, or any other modifications to equipment, or additional equipment, or any other enhancements to equipment or procedures. One commenter stated that GPS units would not prevent theft of the devices and would provide little, if any, deterrence to thieves or terrorists, and stated that if someone has the wherewithal to steal a camera, they will likely have the ability to defeat its GPS unit. In addition, the commenter stated that the increased controls that currently apply to industrial radiography sources are sufficient and appropriate requirements that provide reasonable assurances to deter theft. The commenter also stated that GPS unit costs to licensees, especially to small companies, could be substantial, and that modifications to radiography cameras needed to incorporate GPS units would impose costs on equipment manufacturers due to research and development, and the regulatory approval and altered production processes. These costs would be passed on to the manufacturers' clients—the licensees, who already face skyrocketing insurance costs due to the increased threat associated with possession and use of high activity sources. Another commenter stated that the replacement of, or alteration to, existing equipment would be costly for users and create work time schedule and shipping burdens, especially for small companies. The commenter also stated that because industrial radiography is a cross jurisdictional service industry, the current regulations attempt to provide a uniform set of regulations that apply to industrial radiographic operations in all jurisdictions. Another commenter expressed opposition to the petition. The commenter, a manufacturer and distributor of industrial radiography equipment and oil well logging sources, commented that the petition represented a potential negative impact to the industry and noted that the petition is unclear if it is the vehicle or the device which will be equipped with GPS technology. The commenter also stated that the definition of “highly radioactive source” was not clear, and asked if it was intended to cover NRC Category 1 and 2 sources only, or if it also includes Category 3 sources. The commenter stated that any further serious review of this petition for rulemaking cannot accurately be made until these points were clarified. In addition, the commenter noted that there is no current technology that can successfully track a source or device reliably, and that this equipment is subject to harsh environments and usage, and any additional external feature would not hold up to being thrown around in a truck and/or jobsite. Therefore, any additional feature put on a device would require research and development, design, testing and licensing to assure the device continues to meet American National Standards Institute, International Organization for Standardization, NRC and Department of Transportation

(DOT)requirements for devices and transport packages. The commenter also stated that this is an expensive and time consuming process and would significantly add to the cost of the equipment, that end users would be unwilling to pay for this and a cost benefit analysis would need to be performed to determine if it is worth pursuing. This commenter also stated that there are already numerous other effective controls in place for device security and tracking, such as the increased controls, and NRC's national source tracking database, which would provide information if a source is not received at its destination when expected. The commenter stated its opposition to allowing individual states to impose more stringent requirements than the NRC because the industrial radiography and oil well logging industry are both very mobile and need to provide their services all across the United States. The commenter further stated that without a set of uniform standards the requirements could be quite different in each state and would significantly restrict interstate commerce. Another commenter, a manufacturer of industrial radiography devices and radioactive sources, expressed opposition to the petition and provided several reasons. Among them, the commenter noted the recently adopted increased controls for mobile devices in vehicles and stated that the imposition of a GPS system would represent an unjustified additional significant financial burden to the radiography industry. The commenter also stated that there is a significant lack of formal study to identify the effectiveness of GPS systems when used with vehicles, the costs, and the effectiveness and practicality of GPS systems when used in or on portable devices. In addition, the commenter expressed satisfaction with the effectiveness of the current controls because the petitioner stated that the radioactive source was quickly recovered during the event that triggered the petition. The commenter also stated that any proposal to increase the security of radioactive materials should be considered from the criminal activity versus terrorist activity perspectives, and stated that if a GPS system is required by rulemaking, it will be known to the public. The commenter stated that it is highly unlikely that a GPS system could be protected from being destroyed, removed or disabled by a sophisticated terrorist. Finally, the commenter expressed opposition to the proposal for the Commission to grant states the flexibility to impose more stringent requirements than those required under current NRC regulations because most radiography licensees work in several states and such a proposal would be counterproductive and unnecessarily financially burdensome for licensees to be subjected to different regulations from state to state. Another commenter stated that the burdensome administrative requirements of the current regulations and increased controls imposed on radiography licensees focuses only on prevention of the theft of these sources, and would greatly increase each licensee's liability in the event of a theft (even if a theft occurs beyond the control of a licensee, such as during shipment via a common carrier or a “carjacking”). The commenter stated that regulations and increased controls do not address recovery of a source following a theft. The commenter stated that while there appears to be no limit to the additional liabilities and responsibilities placed upon individual radiographic testing licensees, there are some functions that can be more effectively addressed by other means (in lieu of merely issuing citations and monetary fines to licensees). The commenter stated that there are multiple regulatory requirements regarding a licensee's responsibilities to prevent the theft of radiographic sources, so more of the same only provides an opportunity for regulatory agencies to cite multiple violations with little or no improvement on public health and safety. The commenter also stated that the regulations and increased control requirements, with which the licensee has complied, are useless in cases such as in the event that the licensee's transport vehicle (with a source on board) is carjacked, and that the priority then needs to be the immediate recovery of the stolen device/source and apprehension of the thieves. If an electronic tracking system could be “activated” immediately, a local law enforcement agency

(LLEA)could recover the device/source, apprehend the perpetrators, and recover the licensee's stolen property (vehicle, equipment, etc.). The commenter also stated that if an effective electronic tracking system ( *e.g.* , GPS) can be affixed/installed to radioactive material devices/sources of concern such that the location of the device can be determined by LLEA in order for them to respond, then the device manufacturers should be expected to install this type of technology, preferably integrated into the device design in lieu of an “add-on” which could be removed. The commenter also stated that additional costs would clearly be offset by the greater effectiveness of LLEA to recover a stolen device/source, and supported the concept of electronic tracking of sources in quantities of concern, including radiographic exposure devices, only under a number of specific conditions. The commenter expressed opposition to the issuance of any additional rules or regulations that are not consistently administered to all licensees across all regulatory jurisdictions, or that places the onus of interpretation, implementation and maintenance back on individual licensees. Among the commenters in favor of the petition, a GPS manufacturer submitted two comment letters. The first letter presented the commenter's views on the petition. The second letter presented the commenter's customers' views. In general, the commenter noted the benefits and practicability of GPS tracking units currently available and how they can benefit the industry. The commenter stated that GPS tracking devices are not over the counter devices with a magnet, at least not the appropriate devices for this application, and stated that the ideal solution is a device which is extremely small with little marking so the device identity is limited to most of the public. The commenter stated that GPS devices transmit their location when summoned and/or periodically, can be fitted with a siren that can be activated remotely to provide a more precise location when the device has been tracked to a home, storage facility, etc., and that this technology allows the owner/victim the ability to do the legwork before law enforcement arrives and, thus, saving valuable time in the recovery process. The commenter also stated that these devices, if installed on a vehicle, would not only provide the tracking, if stolen, but when accompanied by a simple sticker, work as a deterrent, and that the public notice of these systems being required would also act as a deterrent. However, the commenter stated that the willingness of a criminal to commit a crime does make the system worthless as others have stated, but the ability to make security measures redundant and exceptional would help in the recovery of the equipment and the apprehension of the thieves. The commenter also offered a description of costs for using this technology and stated that the availability and affordability of this technology is extremely feasible. Because industry has the most to gain from it, the security of the devices, equipment, vehicles, companies and public is too valuable to overlook. In the second letter, the commenter stated that if GPS is required for vehicles it would be inexpensive for the end users and would provide additional benefits. However, if it's required on devices and other equipment, the cost could be high to outfit these devices with little or no real benefit other than loss recovery. The commenter supported having the tracking devices in vehicles because of the additional benefit in recovery of lost material it represents. Another commenter, a licensee who is currently using a GPS for their shipments, questioned whether or not the licensees would have to incur the additional expense of tracking the device as well as the vehicle. Additionally, the commenter believed that GPS tracking by alternate means such as on the vehicle rather than the device should be allowed. The Illinois Emergency Management Agency (IEMA), Division of Nuclear Safety, submitted a comment letter in favor of the petition. IEMA stated that GPS systems are very reliable and that this technology is currently used by some of their distributors. IEMA also stated that these systems are very invaluable for locating shipments and that they would add further credibility to the increased control measures. In addition, IEMA suggested that packages containing highly radioactive sources ( *e.g.* , Category 1) be tagged for GPS tracking. A comment submitted by the Nuclear Energy Institute

(NEI)stated that adding a GPS unit would not work for the majority of sources and that the additional costs for a GPS unit do not offset the benefit for the few mobile devices which are lost each year. NEI stated that the petition had potential for a few highly radioactive sources in mobile devices, but it would not work for the majority of sources. NEI also stated that, to send a signal, GPS tracking devices require power supplies, as well as a means of monitoring the power supplies. NEI also stated that a large number of mobile radioactive devices containing highly radioactive sources are manually operated with no internal or external power supply. NEI believes this process would make it necessary for a manual unit to require a power supply in addition to the GPS unit, to require maintenance and recharging of the power unit to keep it available, and to require a network to pick up the signal. NEI also stated that this would result in additional weight and bulkiness to the unit, and would increase the capital cost, as well as the additional operation and maintenance expense. In addition, NEI stated that because the devices are designed to be low maintenance, light weight, and simple to operate, the addition of the GPS unit would detract from all three of its principal features. Therefore, this could result in a greater risk to worker safety in the handling and operation of the units. DOT submitted a comment letter stating that a risk-informed evaluation is necessary to ensure an appropriate decision on this petition is achieved. DOT stated that although it is generally agreed that GPS technology is effective, relatively inexpensive and may assist law enforcement in locating missing devices containing radioactive material and the associated transport vehicle, there were many factors to consider before requiring the use of these instruments. Among those, DOT stated that specific elements of concern should include a clarification of the definition of “mobile or portable uses of highly radioactive sources,” as well as an evaluation of the current security requirements and risk of diversion of carrier mode ( *i.e.* , rail, air, vessel, and road). In addition, DOT stated that in evaluating the proposal, it must be recognized that many existing devices containing radioactive material devices are too small to accommodate a GPS device, that not all losses are transport-related, and that any installed GPS device could likely be removed or disabled. DOT also stated that, although the U.S. has the right to enact unique security provisions, the impact on international transport must be considered, and the requirements for importers and exporters of radioactive material devices and the consequences for overseas buyers and suppliers of these devices must be analyzed. DOT stated that any actions undertaken by the NRC must consider security related measures being implemented or under evaluation for implementation by Federal agencies, including DOT and the U.S. Department of Homeland Security. DOT also commented that the proposal's ability to reduce both the probability of theft/diversion and the associated impacts of theft/diversion, as well as the advantages and disadvantages of state-specific regulations, in addition to national regulations, need to be evaluated. Specifically, DOT stated that requirements that vary widely from state to state could have significant impacts on interstate commerce. In addition, DOT stated that, although the petitioner cited that significant law enforcement efforts were undertaken to recover past devices, there is no quantified data provided for these efforts, nor quantification of potential benefits of the proposal, nor quantification of the impacts for a national or state GPS requirement, and stated that a requirement for a specific technology to be implemented, rather than a performance based measure that achieves the same objective, may have adverse impacts. DOT further stated that a risk-informed evaluation should be implemented taking these factors into account to ensure a measured and appropriate final decision on this petition is achieved. Reasons for Closure of the Petition The NRC concluded that the underlying issue of tracking shipments of highly radioactive sources is an important one and merits further consideration, and therefore, will be included into NRC's ongoing rulemaking efforts on the security requirements for the transportation of Radioactive Material in Quantities of Concern. This rulemaking will consider various tracking technologies including, but not limited to, GPS technology. Further information on this rulemaking may be tracked through *http://www.regulations.gov* under Docket ID NRC-2008-0120. While the NRC will consider the issues raised by the petition in the rulemaking process, the petitioner's concerns may not be addressed exactly as the petitioner has requested. During the rulemaking process, the NRC will solicit comments from the public and will consider all comments before finalizing the rule. Existing NRC regulations provide the basis for reasonable assurance that the common defense and security and public health and safety are adequately protected. For the reasons cited in this document, the NRC closes this petition. Dated at Rockville, Maryland, this 1st day of July, 2008. For the Nuclear Regulatory Commission. R.W. Borchardt, Executive Director for Operations. [FR Doc. E8-16235 Filed 7-15-08; 8:45 am] BILLING CODE 7590-01-P DEPARTMENT OF ENERGY 10 CFR Part 431 [Docket No. EERE-2008-BT-STD-0013] RIN 1904-AB83 Energy Conservation Program for Certain Industrial Equipment: Energy Conservation Standards for Commercial Heating, Air-Conditioning, and Water-Heating Equipment AGENCY: Office of Energy Efficiency and Renewable Energy, Department of Energy. ACTION: Notice of data availability and request for public comment. SUMMARY: The Energy Policy and Conservation Act of 1975 (EPCA), as amended, directs the U.S. Department of Energy

(DOE)to establish energy conservation standards for certain commercial and industrial equipment, including commercial heating, air-conditioning, and water-heating products. Of particular relevance here, the statute also requires that each time the corresponding consensus standard—the American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc. (ASHRAE)/ Illuminating Engineering Society of North America (IESNA) Standard 90.1—is amended, DOE must assess whether there is a need to update the uniform national energy conservation standards for the same equipment covered under EPCA. ASHRAE officially released an amended version of this industry standard (ASHRAE Standard 90.1-2007) on January 10, 2008, thereby triggering DOE's related obligations under EPCA. As a first step in meeting these statutory requirements, today's notice of data availability

(NODA)discusses the results of DOE's analysis of the energy savings potential of amended energy conservation standards for certain types of commercial equipment covered by ASHRAE Standard 90.1. Potential energy savings are based upon either the efficiency levels specified in the amended industry standard ( *i.e.* , ASHRAE Standard 90.1-2007) or more stringent levels that would result in significant additional conservation of energy and are technologically feasible and economically justified. DOE is publishing this NODA to:

(1)Announce the results and preliminary conclusions of DOE's analysis of potential energy savings associated with amended standards for this equipment, and

(2)request public comment on this analysis, as well as the submission of data and other relevant information. DATES: DOE will accept comments, data, and information regarding this NODA submitted no later than August 15, 2008. See Section IV, “Public Participation,” of this notice for details. ADDRESSES: Any comments submitted must identify the NODA for ASHRAE Products and provide the docket number EERE-2008-BT-STD-0013 and/or Regulatory Information Number

(RIN)1904-AB83. Comments may be submitted using any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *E-mail: ASHRAE_90.1_rulemaking@ee.doe.gov* . Include the docket number EERE-2008-BT-STD-0013 and/or RIN number 1904-AB83 in the subject line of the message. • *Postal Mail:* Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, Mailstop EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Please submit one signed paper original. • *Hand Delivery/Courier:* Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, 950 L'Enfant Plaza, SW., Suite 600, Washington, DC 20024. Telephone:

(202)586-2945. Please submit one signed paper original. For detailed instructions on submitting comments and additional information on this document, see section IV (Public Participation). *Docket:* For access to background documents or comments received, visit the U.S. Department of Energy, Resource Room of the Building Technologies Program, 950 L'Enfant Plaza, SW., Suite 600, Washington, DC 20024,

(202)586-2945, between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. Please call Ms. Brenda Edwards at the above telephone number for additional information about visiting the Resource Room. FOR FURTHER INFORMATION CONTACT: Mr. Mohammed Khan, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, Mailstop EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone:

(202)586-7892. E-mail: *Mohammed.Khan@ee.doe.gov.* Ms. Francine Pinto or Mr. Eric Stas, U.S. Department of Energy, Office of the General Counsel, Mailstop GC-72, Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone:

(202)586-9507. E-mail: *Francine.Pinto@hq.doe.gov* or *Eric.Stas@hq.doe.gov.* For information on how to submit public comments, contact Ms. Brenda Edwards, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, Mailstop EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone:

(202)586-2945. E-mail: *Brenda.Edwards@ee.doe.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. Introduction A. Authority B. Purpose of the Notice of Data Availability C. Background D. Summary of DOE's Preliminary Assessment of Equipment for Energy-Savings Analysis II. Discussion of Equipment for Further Consideration A. Commercial Warm-Air Furnaces 1. Gas-Fired Commercial Warm-Air Furnaces 2. Oil-Fired Commercial Warm-Air Furnaces B. Commercial Package Air-Conditioning and Heating Equipment 1. Three-Phase, Through-the-Wall Air-Cooled Air Conditioners and Heat Pumps 2. Three-Phase, Small-Duct, High-Velocity Air-Cooled Air Conditioners and Heat Pumps 3. Commercial Package Air-Cooled Air Conditioners with a Cooling Capacity at or Above 760,000 Btu per Hour 4. Water-Cooled and Evaporatively-Cooled Commercial Package Air Conditioners and Heat Pumps With a Cooling Capacity at or Above 135,000 Btu per Hour and Less Than 240,000 Btu per Hour 5. Water-Cooled and Evaporatively-Cooled Commercial Package Air Conditioners and Heat Pumps With a Cooling Capacity at or above 240,000 Btu per Hour C. Packaged Terminal Air Conditioners and Heat Pumps D. Commercial Water Heaters 1. Oil-Fired Instantaneous Water Heaters 2. Electric Storage Water Heaters E. Commercial Packaged Boilers 1. Small, Gas-Fired Hot Water Commercial Packaged Boilers 2. Small, Gas-Fired, Steam, All Except Natural Draft Commercial Packaged Boilers 3. Small, Gas-Fired, Steam, Natural Draft, Commercial Packaged Boilers 4. Small, Oil-Fired, Hot Water Commercial Packaged Boilers 5. Small, Oil-Fired, Steam, Commercial Packaged Boilers 6. Large, Gas-Fired, Hot Water Commercial Packaged Boilers 7. Large, Gas-Fired, Steam, All Except Natural Draft Commercial Packaged Boilers 8. Large, Gas-Fired, Steam, Natural Draft, Commercial Packaged Boilers 9. Large, Oil-Fired, Hot Water Commercial Packaged Boilers 10. Large, Oil-Fired, Steam Commercial Package Boilers III. Analysis of Potential Energy Savings A. Annual Energy Use B. Shipments C. Other Analytical Inputs 1. Site-to-Source Conversion 2. Effective Date 3. Analysis Period and Lifetime D. Estimates of Potential Energy Savings IV. Public Participation A. Submission of Comments B. Issues on Which DOE Seeks Comment I. Introduction A. *Authority* Title III of EPCA, Pub. L. 94-163, as amended, sets forth a variety of provisions concerning energy efficiency. Part A-1 1 of Title III created the energy conservation program for “Certain Industrial Equipment.” (42 U.S.C. 6311-6317) In general, this program addresses the energy efficiency of certain types of commercial and industrial equipment. Part A-1 specifically includes definitions (42 U.S.C. 6311), test procedures (42 U.S.C. 6314), labelling provisions (42 U.S.C. 6315), energy conservation standards (42 U.S.C. 6313), and the authority to require information and reports from manufacturers (42 U.S.C. 6316). 1 This part was originally titled Part C; however, it was redesignated Part A-1 after Part C of Title III of EPCA was repealed by Public Law 109-58. In relevant part here, EPCA contains mandatory energy conservation standards for commercial heating, air-conditioning, and water heating equipment. (42 U.S.C. 6313(a)) Specifically, the statute sets standards for small, large, and very large commercial package air-conditioning and heating equipment, packaged terminal air conditioners (PTACs) and packaged terminal heat pumps (PTHPs), warm-air furnaces, packaged boilers, storage water heaters, and unfired hot water storage tanks. *Id.* In doing so, EPCA established Federal energy conservation standards that generally correspond to the levels in ASHRAE Standard 90.1, *Energy Standard for Buildings Except Low-Rise Residential Buildings,* as in effect on October 24, 1992 ( *i.e.,* ASHRAE Standard 90.1-1989), for each type of covered equipment listed in 42 U.S.C. 6313(a). In acknowledgement of technological changes that yield energy efficiency benefits, Congress further directed DOE through EPCA to consider amending the existing Federal energy efficiency standard for each type of equipment listed, each time ASHRAE Standard 90.1 is amended with respect to such equipment. (42 U.S.C. 6313(a)(6)(A)) For each type of equipment, EPCA directs that if ASHRAE Standard 90.1 is amended, 2 DOE must adopt amended standards at the new efficiency level in ASHRAE Standard 90.1, unless clear and convincing evidence supports a determination that adoption of a more stringent level as a national standard would produce significant additional energy savings and be technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii)) If DOE decides to adopt as a national standard the minimum efficiency levels specified in the amended ASHRAE Standard 90.1, DOE must establish such standard not later than 18 months after publication of the amended industry standard. (42 U.S.C. 6313(a)(6)(A)(ii)(I)) However, if DOE determines that a more stringent standard is justified under 42 U.S.C. 6313(a)(6)(A)(ii)(II), then DOE must establish such more stringent standard not later than 30 months after publication of the amended ASHRAE Standard 90.1. (42 U.S.C. 6313(a)(6)(B)) 2 Although EPCA does not explicitly define the term “amended” in the context of ASHRAE Standard 90.1, DOE provided its interpretation of what would constitute an “amended standard” in a final rule published in the **Federal Register** on March 7, 2007 (hereafter referred to as the March 2007 final rule). 72 FR 10038. In that rule, DOE stated that the statutory trigger requiring DOE to adopt uniform national standards based on ASHRAE action is for ASHRAE to change a standard for any of the equipment listed in EPCA section 342(a)(6)(A)(i) (42 U.S.C. 6313(a)(6)(A)(i)) by increasing the energy efficiency level for that equipment type. Id. 10042. In other words, if the revised ASHRAE Standard 90.1 leaves the standard level unchanged or lowers the standard, as compared to the level specified by the national standard adopted pursuant to EPCA, DOE does not have the authority to conduct a rulemaking to consider a higher standard for that equipment pursuant to 42 U.S.C. 6313(a)(6)(A). As a preliminary step in this process, EPCA directs DOE to publish in the **Federal Register** for public comment an analysis of the energy savings potential of amended energy efficiency standards, within 180 days after ASHRAE Standard 90.1 is amended with respect to any of the covered products specified under 42 U.S.C. 6313(a). 3 (42 U.S.C. 6313(a)(6)(A)) 3 This statutory provision was added by section 305 of the Energy Independence and Security Act of 2007 (EISA 2007), Public Law 110-140, which applies to all of the products for which there are currently Federal energy conservation standards that are also covered by ASHRAE Standard 90.1. In addition, this document is also required under the Consent Decree (filed Nov. 6, 2006) in *New York* v. *Bodman,* No. 05 Civ. 7807 (S.D.N.Y. filed Sept. 7, 2005) and *Natural Resources Defense Council* v. *Bodman,* No. 05 Civ. 7808 (S.D.N.Y. filed Sept. 7, 2005), which requires an initial DOE action to be taken on any ASHRAE amendments related to products in the Consent Decree ( *i.e.,* packaged terminal air conditioners and packaged terminal heat pumps, packaged boilers, and instantaneous water heaters) no later than six months after adoption of the amendment by ASHRAE. (Consent Decree section III, paragraph 4) On January 9, 2008, ASHRAE's Board of Directors gave final approval to ASHRAE Standard 90.1-2007 4 for distribution, which ASHRAE officially released and made public on January 10, 2008. This action by ASHRAE triggered DOE's obligations under 42 U.S.C. 6313(a)(6), as outlined above. This NODA embodies the analysis of the energy savings potential of amended energy efficiency standards, as required under 42 U.S.C. 6313(a)(6)(A)(i). 4 This industry standard is developed with input from a number of organizations—most prominently, ASHRAE, the American National Standards Institute (ANSI), and the Illuminating Engineering Society of North America (IESNA). Therefore, this document may sometimes be referred to more formally as ANSI/ASHRAE/IESNA Standard 90.1-2007. *See http://www.ashrae.org* for more information. B. Purpose of the Notice of Data Availability As explained above, DOE is publishing today's NODA as a preliminary step pursuant to EPCA's requirements for DOE to consider amended energy conservation standards for certain types of commercial equipment covered by ASHRAE Standard 90.1, whenever ASHRAE amends its standard to increase the energy efficiency level for that equipment type. Specifically, this NODA presents for public comment DOE's analysis of the potential energy savings estimates for amended national energy conservation standards for these types of commercial equipment based on:

(1)The modified efficiency levels contained within ASHRAE Standard 90.1-2007, and

(2)more stringent efficiency levels. DOE describes these analyses and preliminary conclusions and seeks input from interested parties, including the submission of data and other relevant information. DOE is not required by EPCA to review additional changes in ASHRAE Standard 90.1-2007 for those equipment types where ASHRAE did not increase the efficiency level. For those types of equipment for which efficiency levels clearly did not change, DOE has conducted no further analysis. However, for other ASHRAE products, DOE found that while ASHRAE had made changes in ASHRAE Standard 90.1-2007, it was not immediately apparent whether such revisions to the Standard 90.1 level would make the equipment more or less efficient, as compared to the existing Federal energy conservation standards. For example, when setting a standard using a different efficiency metric (as is the case for several types of commercial packaged boiler equipment), ASHRAE Standard 90.1-2007 changes the standard level from that specified in EPCA, but it is not immediately clear whether a standard level will make equipment more or less efficient. Therefore, DOE is undertaking this additional threshold analysis in order to thoroughly evaluate the amendments in ASHRAE Standard 90.1-2007 in a manner consistent with its statutory mandate. Using this approach, DOE has undertaken a comprehensive analysis of the products covered under both EPCA and ASHRAE Standard 90.1-2007 to determine which products types require further analysis. Section II, *Discussion of Equipment for Further Consideration,* contains a description of DOE's evaluation of each ASHRAE equipment type for which energy conservation standards have been set pursuant to EPCA, in order for DOE to determine whether the amendments in Standard 90.1-2007 have resulted in increased efficiency levels. For those types of equipment in ASHRAE Standard 90.1, which have been determined to increase the efficiency levels, DOE subjected that equipment to further analysis under Section III, *Analysis of Potential Energy Savings.* In summary, the energy savings analysis presented in this NODA is a preliminary step required under 42 U.S.C. 6313(a)(6)(A)(i). After review of the public comments on this NODA, if DOE decides that the amended efficiency levels in ASHRAE Standard 90.1-2007 have the potential for additional energy savings for types of equipment currently covered by uniform national standards, DOE will commence rulemaking to consider amended standards, based upon either the efficiency levels in ASHRAE Standard 90.1-2007 or more stringent efficiency levels which would be expected to result in significant additional conservation of energy and are technologically feasible and economically justified. In conducting such rulemaking, DOE will address the general rulemaking requirements for all energy conservation standards, such as the anti-backsliding provision 5 (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(1)), the criteria for making a determination that a standard is economically justified 6 (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(2)(B)(i)-(ii)), and the prohibition on making unavailable existing products with performance characteristics generally available in the U.S. 7 (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(4)). 5 EPCA contains what is commonly known as an “anti-backsliding” provision (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(1)). This provision mandates that the Secretary not prescribe any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of covered equipment. *Natural Resources Defence Council* v. *Abraham,* 355 F. 3d 179 (2d Cir. 2004). 6 In deciding whether a more stringent standard is economically justified, DOE must review comments on the proposed standard, and then determine whether the benefits of the standard exceed its burdens by considering the following seven factors to the greatest extent practicable:

(1)The economic impact on manufacturers and consumers subject to the standard;

(2)The savings in operating costs throughout the estimated average life of the product in the type (or class), compared to any increase in the price, initial charges, or maintenance expenses of the products likely to result from the standard;

(3)The total projected amount of energy savings likely to result directly from the standard;

(4)Any lessening of product utility or performance likely to result from the standard;

(5)The impact of any lessening of competition, as determined in writing by the Attorney General, likely to result from the standard;

(6)The need for national energy conservation; and

(7)Other factors the Secretary considers relevant. (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(2)(B)(i)-(ii)) 7 The Secretary may not prescribe an amended standard if interested persons have established by a preponderance of evidence that the amended standard is “likely to result in the unavailability in the United States of any product type (or class)” with performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States at the time of the Secretary's finding. (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(4)) C. Background ASHRAE Standard 90.1-2007 As noted above, on January 9, 2008, ASHRAE's Board of Directors gave final approval to ASHRAE Standard 90.1-2007, which ASHRAE released on January 10, 2008. The ASHRAE standard addresses efficiency levels for many types of commercial heating, ventilating, air-conditioning (HVAC), and water-heating equipment covered by EPCA. ASHRAE Standard 90.1-2007 revised the efficiency levels for certain commercial equipment, but for the remaining equipment, ASHRAE left in place the preexisting levels ( *i.e.* , the efficiency levels specified in EPCA or the efficiency levels in ASHRAE Standard 90.1-1999). Table I.1 below sets forth the existing Federal energy conservation standards and the efficiency levels specified in ASHRAE Standard 90.1-2007 for equipment where ASHRAE modified its requirements. The balance of this section of the document will assess these equipment types to determine whether the amendments in ASHRAE Standard 90.1-2007 constitute increased energy efficiency levels, as would necessitate further analysis of the potential energy savings from amended Federal energy conservation standards under Section III. Table I.1.—Federal Energy Conservation Standards and Energy Efficiency Levels in ASHRAE Standard 90.1-2007 for Specific Types of Commercial Equipment* ASHRAE equipment class Federal energy conservation standards Energy efficiency levels in ASHRAE Standard 90.1-2007 ASHRAE Standard 90.1-2007 effective date Energy-savings potential analysis required Commercial Warm-Air Furnaces Gas-Fired Commercial Warm-Air furnace E t = 80% E c = 80% Interrupted or intermittent ignition device, jacket losses not exceeding 0.75% of input rating, power vent, or flue damper** 1/10/2008 No (See Section II.A.1.). Oil-Fired Commercial Warm-Air furnace E t = 81% E t = 81% Interrupted or intermittent ignition device, jacket losses not exceeding 0.75% of input rating, power vent, or flue damper** 1/10/2008 No (See Section II.A.2.). Commercial Package Air-Conditioning and Heating Equipment Through-the-Wall Air Conditioners 13.0 SEER*** (Effective as of 06/19/08) 12.0 SEER (As of 01/23/10) 1/23/2010 No (See Section II.B.1.). Through-the-Wall Air-Cooled Heat Pumps 13.0 SEER (Effective as of 06/19/08) 12.0 SEER 7.4 HSPF † (As of 01/23/10) 1/23/2010 No (See Section II.B.1.). Small Duct, High Velocity, Air-Cooled Air Conditioners 13.0 SEER (Effective as of 06/19/08) 10.0 SEER 1/10/2008 No (See Section II.B.2.). Small Duct, High Velocity, Air-Cooled Heat Pumps 13.0 SEER (Effective as of 06/19/08) 10.0 SEER 6.8 HSPF 1/10/2008 No (See Section II.B.2.). Packaged Air-Cooled Air Conditioners with Cooling Capacity ≥760,000 Btu/h †† and with No Heating or with Electric Resistance Heating None 9.7 EER ††† (As of 01/01/10) 1/1/2010 No (See Section II.B.3.). Packaged Air-Cooled Air Conditioners with Cooling Capacity ≥760,000 Btu/h and with Heating That is Other Than Electric Resistance Heating None 9.5 EER (As of 01/01/10) 1/1/2010 No (See Section II.B.3.). Water-Cooled and Evaporatively Cooled Air Conditioner with Cooling Capacity ≥135,000 and <240,000 Btu/h, and with No Heating or with Electric Resistance Heating 11.0 EER 11.0 EER ‡ 1/10/2008 No (See Section II.B.4.). Water-Cooled and Evaporatively Cooled Air Conditioner with Cooling Capacity ≥135,000 and <240,000 Btu/h, and with Heating That is Other Than Electric Resistance Heating 11.0 EER 10.8 EER ‡ 1/10/2008 No (See Section II.B.4.). Water-Cooled and Evaporatively Cooled Air Conditioner with Cooling Capacity ≥240,000 Btu/h and with No Heating or with Electric Resistance Heating None 11.0 EER 1/10/2008 No (See Section II.B.5.). Water-Cooled and Evaporatively Cooled Air Conditioner with Cooling Capacity ≥240,000 Btu/h and with Heating That is Other Than Electric Resistance Heating None 10.8 EER 1/10/2008 No (See Section II.B.5.) Packaged Terminal Air Conditioners (PTACs) and Heat Pumps (PTHPs) ‡‡ Packaged Terminal Air Conditioners with Cooling Capacity <7,000 Btu/h, and Standard Size ‡‡‡ (New Construction) EER = 8.88 EER = 11.0 ‡ 1/10/2008 No (See Section II.C.). Packaged Terminal Air Conditioners with Cooling Capacity <7,000 Btu/h, and Non-Standard Size ⋄ (Replacement) EER = 8.88 EER = 9.4 ‡ 1/10/2008 No (See Section II.C.). Packaged Terminal Air Conditioners with Cooling Capacity ≥7,000 and <15,000 Btu/h, and Standard Size ‡‡‡ (New Construction) EER = 10.0−(0.16 × Cap ⋄⋄ ) EER = 12.5−(0.213 × Cap ⋄⋄ ) ‡ 1/10/2008 No (See Section II.C.). Packaged Terminal Air Conditioners with Cooling Capacity ≥7,000 and <15,000 Btu/h, and Non-Standard Size ⋄ (Replacement) EER = 10.0−(0.16 × Cap ⋄⋄ ) EER = 10.9−(0.213 × Cap ⋄⋄ ) ‡ 1/10/2008 No (See Section II.C.). Packaged Terminal Air Conditioners with Cooling Capacity >15,000 Btu/h, and Standard Size ‡‡‡ (New Construction) EER = 7.6 EER = 9.3 ‡ 1/10/2008 No (See Section II.C.). Packaged Terminal Air Conditioners with Cooling Capacity >15,000 Btu/h, and Non-Standard Size ⋄ (Replacement) EER = 7.6 EER = 7.7 ‡ 1/10/2008 No (See Section II.C.). Packaged Terminal Heat Pumps with Cooling Capacity <7,000 Btu/h, and Standard Size ‡‡‡ (New Construction) EER = 8.88 COP ⋄⋄⋄ = 2.7 EER = 10.8 COP = 3.0 ‡ 1/10/2008 No (See Section II.C.). Packaged Terminal Heat Pumps with Cooling Capacity <7,000 Btu/h, and Non-Standard Size ⋄ (Replacement) EER = 8.88 COP = 2.7 EER = 9.3 COP = 2.7 ‡ 1/10/2008 No (See Section II.C.). Packaged Terminal Heat Pumps with Cooling Capacity ≥7,000 and <15,000 Btu/h, and Standard Size ‡‡‡ (New Construction) EER = 10.0−(0.16 × Cap ⋄⋄ ) COP = 1.3 + (0.16 × EER) EER = 12.3−(0.213 × Cap ⋄⋄ ) COP = 3.2−(0.026 × Cap ⋄⋄ ). ‡ 1/10/2008 No (See Section II.C.). Packaged Terminal Heat Pumps with Cooling Capacity ≥7,000 and <15,000 Btu/h, and Non-Standard Size ⋄ (Replacement) EER = 10.0−(0.16 × Cap ⋄⋄ ) COP = 1.3 + (0.16 × EER) EER = 10.8−(0.213 × Cap ⋄⋄ ) COP = 2.9−(0.026 × Cap ⋄⋄ ). ‡ 1/10/2008 No (See Section II.C.). Packaged Terminal Heat Pumps with Cooling Capacity >15,000 Btu/h, and Standard Size ‡‡‡ (New Construction) EER = 7.6 COP = 2.5 EER = 9.1 COP = 2.8 ‡ 1/10/2008 No (See Section II.C.) Packaged Terminal Heat Pumps with Cooling Capacity >15,000 Btu/h, and Non-Standard Size ⋄ (Replacement) EER = 7.6 COP = 2.5 EER = 7.6 COP = 2.5 ‡ 1/10/2008 No (See Section II.C.). Commercial Water Heaters Oil-Fired Instantaneous Water Heaters ≥4,000 Btu/h/gal and ≥10 gal E T = 78% SL = Q/800 + 110(V r ) 1/2 , Btu/h E T = 78% SL = Q/800 + 110(V) 1/2 , Btu/h ‡ 1/10/2008 No (See Section II.D.1.). Electric Storage Water Heaters SL = 0.3 + 27/V m (%/h) SL = 20 + 35(V) 1/2 , Btu/h ‡ 1/10/2008 No (See Section II.D.2.). Commercial Packaged Boilers Small Gas-Fired, Hot Water, Commercial Packaged Boilers E C = 80% E T = 80% 3/2/2010 Yes (See Section II.E.1, Section III, and Table III.4.). Small Gas-Fired, Steam, All Except Natural Draft Commercial Packaged Boilers E C = 80% E T = 79% 3/2/2010 Yes (See Section II.E.2, Section III, and Table III.5.). Small Gas-Fired, Steam, Natural Draft, Commercial Packaged Boilers E C = 80% E T = 77% (Effective 03/2/2010) E T = 79% (Effective 03/2/2020) 3/2/2010 3/2/2020 Yes (See Section II.E.3, Section III, and Table III.6.). Small Oil-Fired, Hot Water, Commercial Packaged Boilers E C = 83% E T = 82% 3/2/2010 Yes (See Section II.E.4, Section III, and Table III.7.). Small Oil-Fired, Steam, Commercial Packaged Boilers E C = 83% E T = 81% 3/2/2010 Yes (See Section II.E.5, Section III, and Table III.8.). Large Gas-Fired, Hot Water, Commercial Packaged Boilers E C = 80% E C = 82% 3/2/2010 Yes (See Section II.E.6, Section III, and Table III.9.). Large Gas-Fired, Steam, All except Natural Draft, Boilers E C = 80% E T = 79% 3/2/2010 Yes (See Section II.E.7, Section III, and Table III.10.). Large Gas-Fired, Steam, Natural Draft, Commercial Packaged Boilers E C = 80% E T = 77% (Effective 3/2/2010) E T = 79% (Effective 3/2/2020) 3/2/2010 3/2/2020 Yes (See Section II.E.8, Section III, and Table III.11.). Large Oil-Fired, Hot Water, Commercial Packaged Boilers E C = 83% E C = 84% 3/2/2010 Yes (See Section II.E.9, Section III, and Table III.12.). Large Oil-Fired, Steam, Commercial Packaged Boilers E C = 83% E T = 81% 3/2/2010 No (See Section II.E.10.). * All equipment classes included in this table are equipment where there is a perceived difference between the current Federal standard levels and the efficiency levels specified by ASHRAE Standard 90.1-2007. Although, in some cases, the efficiency levels in this table may appear to be equal or lower than the Federal energy conservation standards, DOE further reviewed the efficiency levels in ASHRAE Standard 90.1-2007 and presented its findings in section II, *Discussion of Equipment for Further Consideration.* ** A vent damper is an acceptable alternative to a flue damper for those furnaces that draw combustion air from conditioned space. *** Seasonal Energy Efficiency Ratio. † Heating Seasonal Performance Factor. †† British thermal units per hour (Btu/h). ††† Energy Efficiency Ratio. ‡ For the purposes of this NODA, the date shown in this column is the date of publication of ASHRAE Standard 90.1-2007 (Jan. 10, 2008) for equipment where the ASHRAE Standard 90.1-2007 initially appears to be different from the Federal energy conservation standards and where no effective date was specified by ASHRAE Standard 90.1-2007. ‡‡ For equipment rated according to the DOE test procedure, all EER values must be rated at 95°F outdoor dry-bulb temperature for air-cooled products and evaporatively-cooled products, and at 85°F entering water temperature for water-cooled products. All COP values must be rated at 47°F outdoor dry-bulb temperature for air-cooled products, and at 70°F entering water temperature for water-source heat pumps. ‡‡‡ Standard size refers to PTAC or PTHP equipment with wall sleeve dimensions ≥16 inches high, or ≥42 inches wide. ⋄ Non-standard size refers to PTAC or PTHP aequipment with wall sleeve dimensions less than 16 inches high and less than 42 inches wide. ASHRAE/IESNA Standard 90.1-1999 also includes a factory labeling requirement for non-standard size PTAC and PTHP equipment as follows: “MANUFACTURED FOR REPLACEMENT APPLICATIONS ONLY; NOT TO BE INSTALLED IN NEW CONSTRUCTION PROJECTS.” ⋄⋄ Cap means cooling capacity in kBtu/h at 95°F outdoor dry-bulb temperature. ⋄⋄⋄ Coefficient of Performance. D. Summary of DOE's Preliminary Assessment of Equipment for Energy-Savings Analysis DOE has reached a preliminary conclusion for each of the classes of commercial equipment for which ASHRAE Standard 90.1-2007 modified the pre-existing minimum efficiency standard. For each class of commercial equipment for which ASHRAE modified the pre-existing standard, DOE assessed whether the change made would increase energy efficiency and, therefore, require an energy-savings potential analysis. This assessment is summarized in Section II of this NODA. Table I.1 indicates whether DOE concluded, based on this assessment, that an energy-savings potential analysis is required. For those products for which such an analysis is required, DOE has indicated the results of its preliminary analysis in section III. Based upon DOE's analysis in section II, DOE has determined that ASHRAE increased the efficiency level for the following equipment classes. Accordingly, DOE performed an energy-savings analysis for these equipment types, the results of which are presented in section III. These equipment classes include: • Small, Gas-Fired Hot Water Commercial Packaged Boilers; • Small, Gas-Fired, Steam, All Except Natural Draft Commercial Packaged Boilers; • Small, Gas-Fired, Steam, Natural Draft, Commercial Packaged Boilers; • Small, Oil-Fired, Hot Water Commercial Packaged Boilers; • Small, Oil-Fired, Steam, Commercial Packaged Boilers; • Large, Gas-Fired, Hot Water Commercial Packaged Boilers; • Large, Gas-Fired, Steam, All Except Natural Draft Commercial Packaged Boilers; • Large, Gas-Fired, Steam, Natural Draft, Commercial Packaged Boilers; • Large, Oil-Fired, Hot Water Commercial Packaged Boilers. II. Discussion of Equipment for Further Consideration As discussed above, before beginning an analysis of the potential energy savings that would result from adopting the efficiency levels specified by ASHRAE Standard 90.1-2007 or more stringent efficiency levels, DOE first determined whether or not the ASHRAE Standard 90.1-2007 efficiency levels actually represented an increase in efficiency above the current Federal standard levels. This section contains a discussion of each equipment class where the ASHRAE Standard 90.1-2007 efficiency level differs from the current Federal standard level, along with a preliminary conclusion as to the action DOE would take with respect to that equipment. A. Commercial Warm-Air Furnaces Under EPCA, a “warm air furnace” is defined as “a self-contained oil- or gas-fired furnace designed to supply heated air through ducts to spaces that require it and includes combination warm air furnace/electric air-conditioning units but does not include unit heaters and duct furnaces.” (42 U.S.C. 6311(11)(A)) In its regulations, DOE defines a “commercial warm air furnace” as a “warm air furnace that is industrial equipment, and that has a capacity (rated maximum input) of 225,000 Btu per hour or more.” 10 CFR 431.72. The amendments in ASHRAE Standard 90.1-2007 trigger DOE to evaluate two types of furnaces:

(1)Gas-fired commercial warm air furnaces, and

(2)oil-fired commercial warm air furnaces. 1. Gas-Fired Commercial Warm-Air Furnaces Gas-fired commercial warm-air furnaces are fueled by either natural gas or propane. The Federal minimum energy conservation standard for commercial gas-fired warm-air furnaces corresponds to the efficiency level in ASHRAE Standard 90.1-1999, which specifies for equipment with a capacity of 225,000 Btu/h or more, the thermal efficiency at the maximum rated capacity (rated maximum input) must be no less than 80 percent. 10 CFR Part 431.77(a). The Federal minimum energy conservation standard for gas-fired commercial warm-air furnaces applies to equipment manufactured on or after January 1, 1994. 10 CFR 431.77. ASHRAE changed the efficiency levels for gas-fired commercial warm-air furnaces by changing the metric from a thermal efficiency descriptor to a combustion efficiency descriptor and adding three design requirements. Specifically, the efficiency levels in ASHRAE Standard 90.1-2007 specify a minimum combustion efficiency of 80 percent. ASHRAE Standard 90.1-2007 also specifies the following design requirements for commercial gas-fired warm-air furnaces: The gas-fired commercial warm-air furnace must use an interrupted or intermittent ignition device, have jacket losses no greater than 0.75 percent of the input rating, and use a power vent or flue damper. In order to evaluate the change in efficiency level (if any) effectuated by the amended ASHRAE standard, DOE reviewed the change of metric for gas-fired commercial warm-air furnaces. In general, the energy efficiency of a product is a function of the relationship between the product's output of services and its energy input. A furnace's output is largely the energy content of its output ( *i.e.,* warm air delivered to the building). A furnace's energy losses consist of energy that escapes through its flue (commonly referred to as “flue losses”), and of energy that escapes into the area surrounding the furnace (commonly referred to as “jacket losses”). In a final rule published in the **Federal Register** on October 21, 2004 (the October 2004 final rule), DOE incorporated definitions for commercial warm-air furnaces and its efficiency descriptor, energy efficiency test procedures, and energy conservation standards. 69 FR 61916. In the October 2004 final rule, DOE pointed out that EPCA specifies the energy conservation standard levels for commercial warm-air furnaces in terms of thermal efficiency (42 U.S.C. 6313(a)(4)(A)-(B); 10 CFR 431.77), but provides no definition for this term. DOE proposed to interpret this term in the context of commercial warm-air furnaces to mean combustion efficiency ( *i.e.,* 100 percent minus percent flue loss). *Id.* at 61919. Given use of the thermal efficiency term in EPCA and its continued use as the efficiency descriptor for furnaces in ANSI Standard Z21.47, *Gas-Fired Central Furnaces* (DOE's test procedure for this equipment), DOE stated that it would be confusing to use the term “combustion efficiency” in the final rule. Accordingly, DOE defined the term “thermal efficiency” to mean 100 percent minus the percent flue loss in the October 2004 final rule for gas-fired commercial warm-air furnaces. *Id.* Upon reviewing the efficiency levels and methodology specified in ASHRAE Standard 90.1-2007, DOE believes that despite changing the name of the energy efficiency descriptor from “thermal efficiency” to “combustion efficiency,” ASHRAE did not intend to change the efficiency metric for gas-fired commercial warm air furnaces. When ASHRAE specified a newer version of the test procedure manufacturers use for gas-fired commercial air furnaces ( *i.e.* , ANSI Standard Z21.47-2001), the calculation of thermal efficiency did not change from the previous version. So despite that change in the name of the energy efficiency descriptor, DOE believes that in the present context, the terms are synonymous, because the calculation of that value has not changed ( *i.e.* , 100 percent minus the percent flue loss). DOE sees no plausible reason why ASHRAE would have chosen to incorporate a different metric than that used in the ANSI Standard Z21.47-2001 test procedure. Consequently, because the amendments for this type of product set out in ASHRAE Standard 90.1-2007 do not appear to have changed the efficiency level, DOE tentatively plans to leave the existing Federal energy conservation standards in place for gas-fired commercial warm air furnaces, which specify a thermal efficiency of 80 percent using the definition of “thermal efficiency” established by DOE in the October 2004 final rule and presented in subpart D to 10 CFR part 431. 2. Oil-Fired Commercial Warm-Air Furnaces The Federal minimum energy conservation standard for commercial oil-fired warm-air furnaces corresponds to the efficiency level in ASHRAE Standard 90.1-1999, which specifies that for equipment with a capacity of 225,000 Btu/h or more, the thermal efficiency at the maximum rated capacity (rated maximum input) must be no less than 81 percent. 10 CFR 431.77(b). The Federal minimum energy conservation standard for oil-fired commercial warm-air furnaces applies to equipment manufactured on or after January 1, 1994. 10 CFR 431.77. The efficiency level in ASHRAE Standard 90.1-2007 specifies a minimum thermal efficiency of 81 percent. ASHRAE did not change the efficiency levels for oil-fired commercial warm-air furnaces, but ASHRAE added three design requirements. ASHRAE Standard 90.1-2007 now specifies that commercial, oil-fired, warm-air furnaces must use an interrupted or intermittent ignition device, have jacket losses no greater than 0.75 percent of the input rating, and use a power vent or flue damper. DOE published a final rule in the **Federal Register** on March 7, 2007, which states that the statutory trigger that requires DOE to adopt uniform national standards based on ASHRAE action is for ASHRAE to change a standard by increasing the energy efficiency of the equipment listed in EPCA section 342(a)(6)(A)(i) (42 U.S.C. 6313 (a)(6)(A)(i)). 72 FR 10038, 10042. If ASHRAE merely considers raising the standards for any of the equipment listed in this section but ultimately decides to leave the standard levels unchanged or lowers the standard, DOE does not have the authority to conduct a rulemaking for higher standards. *Id.* If ASHRAE imposes more stringent standards for a specific subset of the listed equipment, DOE only has the authority to adopt the ASHRAE levels for that subset of equipment and its effective dates specified in the new ASHRAE standard. *Id.* In practice, 42 U.S.C. 6313 generally allows ASHRAE Standard 90.1 to set minimum energy efficiency levels for equipment as a model building code and directs DOE to use these efficiency levels as the basis for maintaining consistent, uniform national energy conservation standards for the same equipment, provided all other applicable statutory requirements are met. If ASHRAE has not changed an efficiency level for a class of equipment subject to 42 U.S.C. 6313, DOE does not have authority to consider amending the uniform national standard at the time of publication of the amended ASHRAE Standard 90.1. Therefore, although ASHRAE added design requirements in ASHRAE Standard 90.1-2007, it did not change the efficiency levels for oil-fired commercial warm-air furnaces. Therefore, DOE does not have authority to amend the uniform national standard for this equipment. As stated in the March 2007 final rule, DOE believes that the statutory language specifically links ASHRAE's action in changing standards for specific equipment as a prerequisite to DOE's action for that same equipment. 72 FR 10038, 10042 (March 7, 2007). B. Commercial Package Air-Conditioning and Heating Equipment EPCA, as amended, includes the following definition of “commercial package air-conditioning and heating equipment”: “air-cooled, water-cooled, evaporatively-cooled, or water source (not including ground water source) electrically operated, unitary central air conditioners and central air-conditioning heat pumps for commercial application.” (42 U.S.C. 6311(8)(A); 10 CFR 431.92) EPCA also defines “small,” “large,” and “very large commercial package air-conditioning and heating equipment” based on the equipment's rated cooling capacity. (42 U.S.C. 6311(8)(B)-(D); 10 CFR 431.92) “Small commercial package air-conditioning and heating equipment” means “commercial package air-conditioning and heating equipment that is rated below 135,000 Btu per hour (cooling capacity).” (42 U.S.C. 6311(8)(B); 10 CFR 431.92) “Large commercial package air-conditioning and heating equipment” means “commercial package air-conditioning and heating equipment that is rated:

(i)at or above 135,000 Btu per hour; and

(ii)below 240,000 Btu per hour (cooling capacity). (42 U.S.C. 6311(8)(C); 10 CFR 431.92) “Very large commercial package air-conditioning and heating equipment” means “commercial package air-conditioning and heating equipment that is rated:

(i)at or above 240,000 Btu per hour; and

(ii)below 760,000 Btu per hour (cooling capacity). (42 U.S.C. 6311(8)(D); 10 CFR 431.92) 1. Three-Phase, Through-the-Wall Air-Cooled Air Conditioners and Heat Pumps ASHRAE Standard 90.1-2007 identifies efficiency levels for three-phase through-the-wall air-cooled air conditioners and heat pumps, single package and split systems, with a cooling capacity of no greater than 30,000 Btu/h. The efficiency levels specified by ASHRAE Standard 90.1-2007 include a seasonal energy efficiency ratio of 12.0 for cooling mode and a heating seasonal performance factor of 7.4 for equipment manufactured on or after January 23, 2010. 8 ASHRAE aligned these efficiency levels and its corresponding effective dates with the efficiency levels established in EPCA for single-phase residential versions of the same products. 8 ASHRAE provides the same requirement for single-phase and three-phase through-the-wall air-cooled air conditioners and heat pumps used in covered commercial buildings, but points out that single-phase products are regulated as residential products under 10 CFR 430.32(c)(2). Neither EPCA nor DOE has established a specific definition for commercial “through-the-wall air-cooled air conditioners and heat pumps.” The residential through-the-wall air-cooled air conditioners and heat pumps covered under EPCA, as amended by the National Appliance Energy Conservation Act of 1987 (NAECA) (Pub. L. 100-12) and defined in 10 CFR 430.2, are by definition single-phase products, whereas the commercial through-the-wall air-cooled air conditioners and heat pumps mentioned in ASHRAE Standard 90.1-2007 are three-phase products. In its regulations, DOE defines a residential “through-the-wall air conditioner and heat pump” as “a central air conditioner or heat pump that is designed to be installed totally or partially within a fixed-size opening in an exterior wall. * * *” 10 CFR 430.2. Furthermore, this equipment:

(1)Must be manufactured before January 23, 2010;

(2)must not be weatherized;

(3)must be clearly and permanently marked for installation only through an exterior wall;

(4)have a rated cooling capacity no greater than 30,000 Btu/h;

(5)exchange all of its outdoor air across a single surface of the equipment cabinet; and

(6)have a combined outdoor air exchange area of less than 800 square inches (split systems) or less than 1,210 square inches (single packaged systems) as measured on the surface described in paragraph

(5)of this definition. *Id.* In terms of equipment construction, commercial and residential through-the-wall air-cooled air conditioners and heat pumps are believed to utilize the same components in the same configurations to provide space cooling and heating. DOE believes commercial versions of through-the-wall air-cooled air conditioners and heat pumps are essentially the same as residential versions, except that they are powered using three-phase electric power. EPCA does not separate three-phase, through-the-wall air-cooled air conditioners and heat pumps from other types of small commercial package air-conditioning and heating equipment in its definitions. Therefore, EPCA's definition of “small commercial package air-conditioning and heating equipment” would include three-phase through-the-wall air-cooled air conditioners and heat pumps. Although EPCA does not use the term “three-phase through-the-wall air-cooled air conditioners and heat pumps,” the three-phase versions of this equipment, regardless of cooling capacity, fall within the definition of “small commercial package air-conditioning and heating equipment.” (42 U.S.C. 6311(8)(A)-(B)) There is no language in EPCA to indicate that three-phase through-the-wall air-cooled air conditioners and heat pumps are a separate type of covered equipment. The Federal energy conservation standards for three-phase, commercial package air conditioners and heat pumps less than 65,000 Btu/h were established by EISA 2007 for such products manufactured on or after June 19, 2008. Specifically, section 314(b)(4)(C) of EISA 2007 amended section 342(a) of EPCA (42 U.S.C. 6313(a)) by adding new provisions for three-phase commercial package air conditioners with a cooling capacity of less than 65,000 Btu/h. (42 U.S.C. 6313(a)(7)(D)) The provision in EISA 2007 mandates minimum seasonal energy efficiency ratios for cooling mode and minimum heating seasonal performance factors for heating mode of air-cooled, three-phase electric central air conditioners and central air-conditioning heat pumps with a cooling capacity of less than 65,000 Btu/h. 9 Three-phase, through-the-wall, air-cooled air conditioners and heat pumps are a smaller subset of three-phase commercial package air conditioners with a cooling capacity of less than 65,000 Btu/h and were not explicitly excluded from the standards in section 314(b)(4)(C) of EISA 2007. Because EISA 2007 set such standards, DOE must follow them, and they are more stringent than the levels contained in ASHRAE Standard 90.1-2007 for those products. Accordingly, DOE affirms that the EISA 2007 efficiency levels for small commercial package air-conditioning and heating equipment less than 65,000 Btu/h apply to three-phase through-the-wall air-cooled air conditioners and heat pumps with a cooling capacity no greater than 30,000 Btu/h. (42 U.S.C. 6313(a)(7)(D)) Therefore, no further analysis is required for three-phase, through-the-wall, air-cooled air conditioners and heat pumps. 9 Section 314(b)(4)(C) of EISA specifies for “equipment manufactured on or after the later of January 1, 2008, or the date that is 180 days after the date of enactment of the Energy Independence and Security Act of 2007—

(i)The minimum seasonal energy efficiency ratio of air-cooled 3-phase electric central air conditioners and central air-conditioning heat pumps less than 65,000 Btu per hour (cooling capacity), split systems, shall be 13.0;

(ii)the minimum seasonal energy efficiency ratio of air-cooled 3-phase electric central air conditioners and central air-conditioning heat pumps less than 65,000 Btu per hour (cooling capacity), single package, shall be 13.0;

(iii)the minimum heating seasonal performance factor of air-cooled 3-phase electric central air-conditioning heat pumps less than 65,000 Btu per hour (cooling capacity), split systems, shall be 7.7; and

(iv)the minimum heating seasonal performance factor of air-cooled 3-phase electric central air-conditioning heat pumps less than 65,000 Btu per hour (cooling capacity), single package, shall be 7.7.” (42 U.S.C. 6313(a)(7)(D)) 2. Three-Phase, Small-Duct, High-Velocity Air-Cooled Air Conditioners and Heat Pumps ASHRAE Standard 90.1-2007 identifies efficiency levels for three-phase small-duct, high-velocity

(SDHV)air-cooled air conditioners and heat pumps, both single-package and split systems, with a cooling capacity less than 65,000 Btu/h. 10 The efficiency levels specified by ASHRAE Standard 90.1-2007 include a seasonal energy efficiency ratio of 10.0 for cooling mode and a heating seasonal performance factor of 6.8 for equipment. ASHRAE aligned these efficiency levels and the corresponding effective dates with the efficiency levels established in EPCA for single-phase residential versions of the same products. 10 ASHRAE Standard 90.1-2007 includes efficiency levels for three-phase and single-phase SDHV air-cooled air conditioners and heat pumps used in commercial buildings. ASHRAE Standard 90.1-2007 also includes a footnote to these provisions, which indicates that the single-phase versions of this equipment are regulated as residential products under 10 CFR 430.32(c)(2). Just as with three-phase, through-the-wall air-cooled air conditioners and heat pumps, neither EPCA nor DOE has established a specific definition for commercial “three-phase SDHV air conditioners and heat pumps.” In its regulations, DOE defines a residential small-duct, high-velocity

(SDHV)air-cooled air conditioner or heat pump as “a heating and cooling product that contains a blower and indoor coil combination that:

(1)Is designed for, and produces, at least 1.2 inches of external static pressure when operated at the certified air volume rate of 220-350 CFM [cubic feet per minute] per rated ton of cooling; and

(2)When applied in the field, uses high velocity room outlets generally greater than 1,000 fpm [feet per minute] which have less than 6.0 square inches of free area.” 10 CFR 430.2. In terms of equipment construction, commercial and residential SDHV air conditioners and heat pumps are believed to utilize the same components in the same configurations to provide space cooling and heating. DOE believes commercial versions of SDHV systems are essentially the same as residential versions, except that they are powered using three-phase electric power. EPCA does not separate three-phase, SDHV air conditioners and heat pumps from other types of small commercial package air-conditioning and heating equipment in its definitions. Therefore, EPCA's definition of “small commercial package air-conditioning and heating equipment” would include three-phase SDHV air conditioners and heat pumps. Although EPCA does not use the term “three-phase SDHV air conditioners and heat pumps,” the three-phase versions of this equipment, regardless of cooling capacity, fall within the definition of “small commercial package air-conditioning and heating equipment.” (42 U.S.C. 6311(8)(A)-(B)) There is no language in EPCA to indicate that three-phase SDHV air conditioners and heat pumps are a separate type of covered equipment. The Federal energy conservation standards for three-phase, commercial package air conditioners and heat pumps less than 65,000 Btu/h were established by EISA 2007 for products manufactured on or after June 19, 2008. Specifically, section 314(b)(4)(C) of EISA 2007 amended section 342(a) of EPCA (42 U.S.C. 6313(a)) by adding new provisions for three-phase commercial package air conditioners with a cooling capacity of less than 65,000 Btu/h. (42 U.S.C. 6313(a)(7)(D)) As mentioned previously, the provision in EISA 2007 mandates minimum seasonal energy efficiency ratios for cooling mode and minimum heating seasonal performance factors for heating mode of air-cooled, three-phase electric central air conditioners and central air-conditioning heat pumps with a cooling capacity of less than 65,000 Btu/h. (42 U.S.C. 6313(a)(7)(D)) Three-phase, SDHV air conditioners and heat pumps are a smaller subset of three-phase commercial package air conditioners with a cooling capacity of less than 65,000 Btu/h and were not explicitly excluded from the standards in section 314(b)(4)(C) of EISA 2007. Because EISA 2007 set such standards, DOE must follow them, and they are more stringent than the levels contained in ASHRAE Standard 90.1-2007 for those products. Additionally, the residential versions of SDHV are subject to an exception issued by the Office of Heating and Appeals (OHA). On October 14, 2004, OHA granted an exception to SpacePak and Unico, Inc., authorizing them to manufacture SDHV systems (as defined in 10 CFR 430.2) with a SEER of no less than 11.0 and an HSPF of 6.8. The exception relief will remain in effect until the agency modifies the general energy efficiency standard for central air conditioners and establishes a different standard for SDHV systems that complies with EPCA. 11 However, this exception only applies to the residential, single-phase SDHV systems and would, therefore, exclude three-phase SDHV equipment. 11 DOE's Office of Hearing and Appeals. *Decision and Order: Applications for Exception* . October 14, 2004. *http://www.oha.doe.gov/cases/ee/tee0010.pdf.* Thus, manufacturers of three-phase SDHV equipment must follow the energy conservation standards in EISA 2007. Accordingly, DOE affirms that the EISA 2007 efficiency levels for three-phase small commercial package air-conditioning and heating equipment less than 65,000 Btu/h apply to three-phase SDHV air-cooled air conditioners and heat pumps with a cooling capacity less than 65,000 Btu/h. Therefore, no further analysis is required for the three-phase SDHV air-cooled air conditioners and heat pumps. 3. Commercial Package Air-Cooled Air Conditioners With a Cooling Capacity at or Above 760,000 Btu per Hour EPCA specifies energy conservation standards for small (cooling capacities at or above 65,000 and less than 135,000 Btu/h), large (cooling capacities at or above 135,000 and less than 240,000 Btu/h), and very large (cooling capacities at or above 240,000 and less than 760,000 Btu/h) commercial package air-cooled air conditioners. (42 U.S.C. 6313(a)(1)-(2), (7)-(9); 10 CFR Part 431.97) However, there are no Federal energy conservation standards for commercial package air-cooled air conditioners with a cooling capacity at or above 760,000 Btu/h. In contrast, ASHRAE Standard 90.1-2007 sets the minimum energy efficiency levels for this equipment at 9.7 EER for equipment with electric resistance heating, and 9.5 EER for equipment with any other type of heating or without heating. The efficiency level in ASHRAE Standard 90.1-2007 applies to equipment manufactured on or after January 1, 2010. Thus, units with capacities at or above 760,000 Btu/h fall outside the definitions of the small, large, and very large commercial package air-cooled air conditioner equipment classes established in EPCA. (42 U.S.C. 6311(8)(A)-(D); 10 CFR Part 431.92) Therefore, DOE has tentatively concluded that it does not have the authority to review the efficiency level for that equipment. 4. Water-Cooled and Evaporatively-Cooled Commercial Package Air Conditioners and Heat Pumps With a Cooling Capacity at or Above 135,000 Btu per Hour and Less Than 240,000 Btu per Hour The current Federal energy conservation standard for water-cooled and evaporatively-cooled commercial package air conditioners and heat pumps with a cooling capacity at or above 135,000 Btu/h and less than 240,000 Btu/h requires an EER no less than 11.0 for equipment manufactured on or after October 29, 2004. 10 CFR 431.97, Table 1. ASHRAE Standard 90.1-2007 includes the same efficiency level for water-cooled and evaporatively-cooled commercial package air conditioners and heat pumps with a cooling capacity at or above 135,000 Btu/h and less than 240,000 Btu/h that use electric resistance heating ( *i.e.* , an EER no less than 11.0). However, ASHRAE Standard 90.1-2007 specifies a different efficiency level for water-cooled and evaporatively-cooled commercial package air conditioners and heat pumps with a cooling capacity at or above 135,000 Btu/h and less than 240,000 Btu/h that use any type of heating other than electric resistance ( *i.e.* , an EER no less than 10.8). DOE reviewed the January 2001 final rule and ASHRAE Standard 90.1-1999 to determine the efficiency levels applicable to water-cooled and evaporatively-cooled commercial package air conditioners and heat pumps with a cooling capacity at or above 135,000 Btu/h and less than 240,000 Btu/h. The January 2001 final rule did not establish different efficiency levels for different types of supplemental heating systems associated with this equipment. All large water-cooled and evaporatively-cooled commercial package air conditioners and heat pumps were subject to the same minimum efficiency level of 11.0 EER regardless of heating type. ASHRAE Standard 90.l-1999 did establish different efficiency levels applicable to water-cooled and evaporatively-cooled commercial package air conditioners and heat pumps with a cooling capacity at or above 135,000 Btu/h and less than 240,000 Btu/h for different types of supplemental heating systems. DOE has tentatively concluded that the ASHRAE Standard 90.1-2007 efficiency levels for water-cooled and evaporatively cooled commercial package air conditioners and heat pumps with a cooling capacity at or above 135,000 Btu/h and less than 240,000 Btu/h that utilize any type of heating other than electric resistance would have the effect of lowering the minimum efficiency levels ( *i.e.* , EER) required by EPCA and allow increased energy consumption. Because of backsliding concerns, DOE has tentatively decided not to adopt the ASHRAE Standard 90.1-2007 efficiency levels for water-cooled and evaporatively cooled commercial package air conditioners and heat pumps with a cooling capacity at or above 135,000 Btu/h and less than 240,000 Btu/h that utilize any type of heating other than electric resistance. Therefore, further analysis is not required. 5. Water-Cooled and Evaporatively-Cooled Commercial Package Air Conditioners and Heat Pumps With a Cooling Capacity at or Above 240,000 Btu per Hour EPCA defines “commercial package air-conditioning and heating equipment” as “air-cooled, water-cooled, evaporatively-cooled, or water source (not including ground water source) electrically operated, unitary central air conditioners and central air-conditioning heat pumps for commercial application.” (42 U.S.C. 6311(8)(A); 10 CFR 431.92) EPCA goes on to define “very large commercial package air-conditioning and heating equipment” as commercial package air-conditioning and heating equipment that is rated at or above 240,000 Btu per hour and below 760,000 Btu per hour (cooling capacity). (42 U.S.C. 6311(8)(D); 10 CFR 431.92) Although water-cooled and evaporatively-cooled commercial package air conditioners and heat pumps with a cooling capacity at or above 240,000 Btu/h and less than 760,000 Btu/h fall within the definition of very large commercial package air-conditioning and heating equipment, EPCA does not specify Federal energy conservation standards for this equipment class. (EPCA set standards for air-cooled systems only, under 42 U.S.C. 6313(a)(7)-(9).) ASHRAE added this new equipment class to ASHRAE Standard 90.1-2007, setting minimum efficiency levels at 11.0 EER for equipment with electric resistance heating, and at 10.8 EER for equipment with all other types of heating or without heating. Under EPCA, DOE must either adopt the efficiency level specified in ASHRAE Standard 90.1-2007 for this new class of equipment, or consider a more stringent level that would result in significant additional energy savings and is technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)) DOE reviewed the market for water-cooled and evaporatively-cooled commercial package air conditioners and heat pumps and found that manufacturers offer few models. Furthermore, DOE surveyed the Air-conditioning, Heating, and Refrigerating Institute

(AHRI)Directory of Certified Product Performance and did not identify any equipment on the market with a cooling capacity at or above 240,000 Btu/h. Because there is currently no equipment in this class being manufactured, there are no energy savings associated with this class at this time; therefore, it is not possible to assess the potential for *additional* energy savings beyond the levels anticipated in ASHRAE Standard 90.1-2007. Thus, DOE did not perform a potential energy-savings analysis on this equipment type. DOE seeks comments from interested parties on the market and energy savings potential for this equipment type. This is Issue 1 under “Issues on Which DOE Seeks Comment” in section IV.B of this NODA. C. Packaged Terminal Air Conditioners and Heat Pumps EPCA defines a “packaged terminal air conditioner” as “a wall sleeve and a separate unencased combination of heating and cooling assemblies specified by the builder and intended for mounting through the wall. It includes a prime source of refrigeration, separable outdoor louvers, forced ventilation, and heating availability by builder's choice of hot water, steam, or electricity.” (42 U.S.C. 6311(10)(A)) EPCA defines a “packaged terminal heat pump” as “a packaged terminal air conditioner that utilizes reverse cycle refrigeration as its prime heat source and should have supplementary heat source available to builders with the choice of hot water, steam, or electric resistant heat.” (42 U.S.C. 6311(10)(B)) DOE codified these definitions in 10 CFR 431.92 in a final rule published in the **Federal Register** on October 21, 2004. 69 FR 61962, 61970. The current energy conservation standards in EPCA for PTACs and PTHPs apply to all equipment manufactured on or after January 1, 1994 (42 U.S.C. 6313(a)(3)), and correspond to the minimum efficiency levels in ASHRAE/IESNA Standard 90.1-1989. ASHRAE specified more stringent efficiency levels for PTACs and PTHPs in ASHRAE Standard 90.1-2007, corresponding to the efficiency levels in ASHRAE Standard 90.1-1999. The efficiency levels vary by equipment type ( *i.e.* , air conditioner or heat pump), wall sleeve dimensions ( *i.e.* , new construction and replacement), and cooling capacity. In response to the efficiency levels in ASHRAE Standard 90.1-1999, the March 2007 final rule states that DOE has decided to explore more stringent efficiency levels than in ASHRAE/IESNA Standard 90.1-1999 for PTACs and PTHPs through a separate rulemaking. 72 FR 10038, 10045 (March 7, 2007). Recently, DOE published a notice of proposed rulemaking

(NOPR)proposing more stringent standards than the efficiency levels in ASHRAE Standard 90.1-2007 for all types of PTACs and PTHPs. 73 FR 18858 (April 7, 2008). Since DOE is evaluating standard levels for packaged terminal air conditioners and heat pumps in a separate rulemaking, 12 DOE is excluding PTACs and PTHPs from further consideration, and interested parties can review the energy savings potential of more stringent efficiency levels in the April 2008 NOPR. D. Commercial Water Heaters 1. Oil-Fired Instantaneous Water Heaters EPCA defines an “instantaneous water heater” as “a water heater that has an input rating of at least 4,000 Btu per hour per gallon of stored water.” (42 U.S.C. 6311(12)(B)) DOE incorporated a more specific definition of instantaneous water heater into 10 CFR 431.105, which specifies that an oil-fired instantaneous water heater has an input rating no less than 4,000 Btu/h per gallon of stored water, and that it is industrial equipment (including equipment that heats water to 180 °F or higher). 12 For more information about the Packaged Terminal Air Conditioners and Heat Pumps rulemaking, visit the DOE Web site at: *http://www.eere.energy.gov/buildings/appliance_standards/commercial/packaged_ac_hp.html* . The Federal energy conservation standard for oil-fired instantaneous water heaters is a minimum thermal efficiency of 78 percent and a maximum standby loss of Q/800 + 110(V r ) 1/2 , where Q is the nameplate input rating in Btu/h and V r is the rated volume in gallons. 10 CFR 431.110. ASHRAE Standard 90.1-2007 did not change this minimum thermal efficiency requirement. ASHRAE Standard 90.1-2007 contains an efficiency-level specification for the maximum standby loss, which is Q/800 + 110(V) 1/2 , where Q is the nameplate input rating in Btu/h and V is the rated volume in gallons. Since V r and V are both defined as rated volume in gallons, DOE has determined there is no difference between the standby provisions for the Federal energy conservation standard and the requirements specified by ASHRAE Standard 90.1-2007. Therefore, further analysis is not required. 2. Electric Storage Water Heaters EPCA defines a “storage water heater” as equipment that “heats and stores water within the appliance at a thermostatically controlled temperature for delivery on demand. Such term does not include units with an input rating of 4,000 Btu/hr or more per gallon of stored water.” (42 U.S.C. 6311(12)(A); 10 CFR 431.102) Electric storage water heaters are storage water heaters that heat water using electric resistance heating elements. The Federal energy conservation standard for electric storage water heaters is set under EPCA as “the maximum standby loss, in percent per hour, of electric storage water heaters shall be 0.30 + (27/Measured Storage Volume [in gallons]).” (42 U.S.C. 6313(a)(5)(A); 10 CFR 431.110) ASHRAE Standard 90.1-2007 (which remains unchanged from Standard 90.1-1999) specifies a maximum standby loss in Btu per hour, of 20 + (35√V), where V is the rated volume of the tank in gallons. As discussed in the January 2001 final rule, DOE determined that the efficiency level in ASHRAE Standard 90.1-1999 (which is the same as the efficiency level specified by ASHRAE Standard 90.1-2007) would increase energy consumption relative to the standard in EPCA. 66 FR 3336, 3350 (Jan. 12, 2001). DOE further stated that under these circumstances, DOE cannot adopt the new efficiency level, because EPCA stipulates that its standards cannot be relaxed. *Id.* Therefore, DOE did not adopt the requirement specified by ASHRAE Standard 90.1-1999 for electric storage water heaters, thereby leaving the existing EPCA standards in place. Since ASHRAE incorporated exactly the same efficiency levels in ASHRAE Standard 90.1-2007 as it did in ASHRAE Standard 90.1-1999, DOE does not see why its conclusion would differ from the one it presented in the January 2001 final rule. Under these circumstances, DOE has tentatively concluded that it cannot adopt the amended efficiency level for electric storage water heaters. Therefore, no further analysis is necessary. E. Commercial Packaged Boilers EPCA defines a “packaged boiler” as “a boiler that is shipped complete with heating equipment, mechanical draft equipment, and automatic controls; usually shipped in one or more sections.” (42 U.S.C. 6311(11)(B)). In its regulations at 10 CFR 431.102, DOE further refined the “packaged boiler” definition to not include a boiler that is custom designed and field constructed; additionally, if the boiler is shipped in more than one section, the sections may be produced by more than one manufacturer, and may be originated or shipped at different times and from more than one location. There are various different types of commercial packaged boilers, which can be distinguished based on the input capacity size ( *i.e.* , small or large), fuel type ( *i.e.* , oil or gas), output ( *i.e.* , hot water or steam), and draft type ( *i.e.* , natural draft or other). The Federal energy conservation standards separate commercial packaged boilers only by the type of fuel used by the boiler, creating two equipment classes:

(1)gas-fired, and

(2)oil-fired. (42 U.S.C. 6313(a)(4)(C)-(D); 10 CFR 431.87). ASHRAE Standard 90.1-2007 further divided these two equipment classes into the following ten classes: • Small, gas-fired, hot water boilers; • Small, gas-fired, steam, all except natural draft; • Small, gas-fired, steam, natural draft boilers; • Small, oil-fired, hot water boilers; • Small, oil-fired, steam boilers; • Large, gas-fired, hot water boilers; • Large, gas-fired, steam, all except natural draft boilers; • Large, gas-fired, steam, natural draft boilers; • Large, oil-fired, hot water boilers; and • Large, oil-fired, steam boilers. EPCA specified minimum Federal standards for commercial packaged boilers manufactured on or after January 1, 1994. (42 U.S.C. 6313(a)(4)(C)-(D); 10 CFR 431.87). The minimum combustion efficiency at the maximum rated capacity of a gas-fired packaged boiler with capacity of 300,000 Btu/h (300 kBtu/h) or more shall be 80 percent. (42 U.S.C. 6313(a)(4)(C); 10 CFR 431.87(a)) The minimum combustion efficiency at the maximum rated capacity of an oil-fired packaged boiler with capacity of 300,000 Btu/h or more shall be 83 percent. (42 U.S.C. 6313(a)(4)(D); 10 CFR 431.87(b)) Table II.1 shows the ten equipment classes and efficiency levels established by ASHRAE. Table II.1.—ASHRAE Standard 90.1-2007 Energy Efficiency Levels for Commercial Packaged Boilers Equipment type Size category (Input kBtu/h) ASHRAE standard 90.1-2007 (effective 3/2/2010)* (percent) ASHRAE standard 90.1-2007 (effective 3/2/2020)* (percent) Small, Gas, Hot Water 300-2,500 E T = 80.0 E T = 80.0. Small, Gas, Steam, All Except Natural Draft 300-2,500 E T = 79.0 E T = 79.0. Small, Gas, Steam, Natural Draft 300-2,500 E T = 77.0 E T = 79.0. Small, Oil, Hot Water 300-2,500 E T = 82.0 E T = 82.0. Small, Oil, Steam 300-2,500 E T = 81.0 E T = 81.0. Large, Gas, Hot Water >2,500 E C = 82.0 E C = 82.0. Large, Gas, Steam, All Except Natural Draft >2,500 E T = 79.0 E T = 79.0. Large, Gas, Steam, Natural Draft >2,500 E T = 77.0 E T = 79.0. Large, Oil, Hot Water >2,500 E C = 84.0 E C = 84.0. Large, Oil, Steam >2,500 E T = 81.0 E T = 81.0. * E C , combustion efficiency; E T , thermal efficiency. ASHRAE changed the metric for determining energy efficiency for five equipment classes of small commercial packaged boilers and three equipment classes of large commercial packaged boilers in ASHRAE Standard 90.1-2007. The Federal energy conservation standards for these eight equipment classes are expressed in terms of combustion efficiency, whereas the efficiency levels in ASHRAE Standard 90.1-2007 are expressed in terms of thermal efficiency. The combustion efficiency descriptor used in EPCA for commercial packaged boilers differs from the thermal efficiency descriptor used in Standard 90.1-2007. 13 In general, the energy efficiency of a product is a function of the relationship between the product's output of services and its energy input. A boiler's output of services is measured largely by the energy content of its output (steam or hot water). Consequently, its efficiency is often viewed as the ratio between its energy output and energy input, with the energy output being calculated as the energy input minus the energy lost in producing the output. A boiler's energy losses consist of energy that escapes through its flue (commonly referred to as “flue losses”), and of energy that escapes into the area surrounding the boiler (commonly referred to as “jacket losses”). The combustion efficiency descriptor described in EPCA only accounts for flue losses and typically is defined as “100 percent minus percent flue loss.” (42 U.S.C. 6313(4)(C)-(D)) The thermal efficiency descriptor, as used in Standard 90.1-2007, accounts for jacket losses as well as flue losses, so it can be considered combustion efficiency minus jacket loss. Because all boilers will have at least some jacket losses (even if small) and because thermal efficiency takes these losses into account, the thermal efficiency for a particular boiler will always be lower than its combustion efficiency. 13 The combustion efficiency descriptor and the thermal efficiency descriptor are defined differently for commercial warm air furnaces and commercial packaged boilers. The thermal efficiency descriptor as it applies to commercial warm air furnaces is defined in Subpart D of 10 CFR part 430 as “one minus flue losses,” which corresponds to the combustion efficiency descriptor for commercial packaged boilers. There is no direct mathematical correlation between these two measures of efficiency. The factors that contribute to jacket loss ( *e.g.* , the boiler's design and materials) have little or no direct bearing on combustion efficiency. The lack of correlation between combustion efficiency and thermal efficiency presents some difficulties in determining how an energy conservation standard based on thermal efficiency, rather than combustion efficiency, would affect the energy consumption of commercial packaged boilers. EPCA provides that DOE may not prescribe any amended standard that increases the maximum allowable energy use, or decreases the minimum required energy efficiency of a product covered product. (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(1)) Therefore, in evaluating whether to adopt the thermal efficiency levels in ASHRAE Standard 90.1-2007 for these eight equipment classes, DOE needed to determine whether or not they decrease the efficiency levels of the combustion efficiencies that EPCA currently requires. DOE used the same methodology established in the March 2006 Notice of Availability and the March 2007 final rule for investigating the metric change for these eight equipment classes. 71 FR 12634, 12639-40 (March 13, 2006); 72 FR 10038, 10043 (March 7, 2007). If the numeric value for the minimum thermal efficiency (expressed as a percentage) were at or above the value for the combustion efficiency (expressed as a percentage), then clearly the ASHRAE Standard 90.1-2007 efficiency levels would not be lower than the EPCA energy conservation standard levels. If ASHRAE Standard 90.1-2007's thermal efficiency levels for each product class of commercial boilers were only slightly lower numerically than EPCA's combustion efficiency standards for such equipment, the Standard 90.1-2007 efficiency levels also probably would not represent a reduction in stringency of the minimum efficiency levels (although this would need to be confirmed). However, because the ASHRAE Standard 90.1-2007 thermal efficiency levels for some product classes of commercial packaged boilers have more than a small percentage point difference as compared to EPCA's combustion efficiency levels, DOE must carefully assess whether the Standard 90.1-2007 levels would represent a reduction of existing standards. To this end, DOE reviewed the AHRI's Institute of Boiler and Radiation Manufacturers (I=B=R) ratings directories for 2008. 14 The I=B=R directory provides efficiency ratings for most of the commercial packaged boilers for sale in the United States. DOE specifically reviewed boilers that fell into each of the eight equipment classes for which a metric change occurred. For each equipment class analyzed, DOE identified the average combustion and thermal efficiencies. DOE also identified the average thermal efficiency for those boilers DOE considers minimally compliant ( *i.e.* , those boilers with a combustion efficiency equal to the Federal energy conservation standards). 14 The Air-conditioning, Heating, and Refrigerating Institute, *I=B=R Ratings for Boilers, Baseboard Radiation, Finned Tube (Commercial) Radiation, and Indirect-Fired Water Heaters* (Jan. 2008). Available at: *http://www.gamanet.org/gama/inforesources.nsf/vAttachmentLaunch/E9E5FC7199EBB1BE85256FA100838435/$FILE/01-08_CBR.pdf* . For approximately 81 percent of the boilers DOE examined, the directory provided both the thermal efficiency and combustion efficiency levels. For 8.5 percent of these boilers, the ratings appear to be erroneous because the directory lists a thermal efficiency rating greater than its combustion efficiency rating, which is physically impossible. 15 As explained above, thermal efficiency includes the effects of jacket losses, whereas combustion efficiency does not. Excluding these boilers, DOE reviewed the thermal and combustion efficiency ratings for the remaining 74.3 percent of the boilers, where both types of efficiency ratings are listed in the 2008 I=B=R directory. DOE presents its review of the efficiency levels in ASHRAE Standard 90.1-2007 for all ten equipment classes of commercial packaged boilers and its review of the I=B=R directory for each of the eight equipment classes where a metric change occurred. DOE's review of each commercial packaged boiler equipment class will provide its planned course of action for each equipment class, along with reasoning for the suggested action. DOE is using its review of the I=B=R directory for each of the equipment classes to determine if ASHRAE raised the efficiency levels and if further DOE action is warranted. In order for DOE to determine whether ASHRAE raised the efficiency levels for each equipment class, DOE has identified the following from the January 2008 I=B=R directory: 15 These anomalous ratings are likely due to Hydronics Institute's

(HI)de-rating procedures, manufacturers' interpolation of results, varying test chambers and instrument calibration among manufacturers, or submittal of erroneous ratings. • A comparison of the average combustion efficiency and average thermal efficiency values of the models; • A comparison of the average combustion efficiency and average thermal efficiency values of the minimally compliant models ( *i.e.* , those with efficiency levels that minimally comply with EPCA); • The model with the lower thermal efficiency value and its corresponding combustion efficiency value; • The model with the highest thermal efficiency value and its corresponding combustion efficiency value; and • The percentage of models in the January 2008 I=B=R directory that have a thermal efficiency value lower than the efficiency level specified by ASHRAE Standard 90.1-2007. DOE used these five statistics to determine whether DOE believes the efficiency levels specified within ASHRAE Standard 90.1-2007 for a given equipment class provide reasonable assurance that ASHRAE increased the efficiency levels and further analysis is warranted by DOE. DOE presents its review of the efficiency levels in ASHRAE Standard 90.1-2007 for each equipment class of commercial packaged boilers as well as its review of the market data in the following subsections. 1. Small, Gas-Fired Hot Water Commercial Packaged Boilers A small, gas-fired hot water commercial packaged boiler is a commercial packaged boiler with a fuel input at or above 300 and less than or equal to 2,500 kBtu/h, fueled by either natural gas or propane, that supplies hot water for space heating. Small, gas-fired hot water commercial packaged boilers fall under the gas-fired commercial packaged boilers equipment class, whose Federal energy conservation standards, as established by EPCA, are a combustion efficiency of no less than 80.0 percent. (42 U.S.C. 6313(a)(4)(C); 10 CFR 431.87(a)) This equipment class accounts for 23.6 percent of the total models listed in the January 2008 I=B=R directory that DOE examined. Among all of the small, gas-fired hot water commercial package boilers in the I=B=R directory, DOE calculated the average thermal efficiency to be 0.9 percent lower than the average combustion efficiency. DOE also identified the small, gas-fired hot water commercial packaged boilers with combustion efficiencies that minimally comply with EPCA ( *i.e.* , with a combustion efficiency between 80.0 and 81.0 percent). For the minimally compliant small, gas-fired hot water commercial packaged boilers, the average thermal efficiency is 78.1 percent. The model with the lowest thermal efficiency is 76.8 percent, which corresponds to a combustion efficiency of 81 percent. The model with the highest thermal efficiency is 98.1 percent, which corresponds to a combustion efficiency of 98.3 percent. DOE found that of all the models in the 2008 I=B=R directory for this equipment class, 8.9 percent of them have thermal efficiency levels below the ASHRAE Standard 90.1-2007 efficiency level. ASHRAE Standard 90.1-2007 specifies a thermal efficiency of 80 percent for small, gas-fired hot water commercial packaged boilers. This thermal efficiency value is higher than the 78.1 percent average thermal efficiency of minimally compliant equipment currently on the market. Based on DOE's review of the I=B=R directory and the analysis conducted on the minimally compliant commercial packaged boilers, DOE has tentatively concluded that the thermal efficiency levels in ASHRAE Standard 90.1-2007 would, on average, increase efficiency for small, gas-fired hot water commercial packaged boilers. Consequently, DOE performed a potential energy-savings analysis on this equipment class under section III, as part of DOE's review of amended energy conservation standards. 2. Small, Gas-Fired, Steam, All Except Natural Draft Commercial Packaged Boilers A small, gas-fired, steam, all except natural draft commercial packaged boiler has a fuel input of at or above 300 and less than or equal to 2,500 kBtu/h, is fueled by either natural gas or propane, supplies steam for space heating and other applications, and uses a type of draft system other than natural draft (i.e., a forced or induced draft system). Small, gas-fired, steam, all except natural draft commercial packaged boilers fall under the gas-fired commercial packaged boilers equipment class, whose Federal energy conservation standards, as established by EPCA, are a combustion efficiency of no less than 80.0 percent. (42 U.S.C. 6313(a)(4)(C); 10 CFR 431.87) (a)) These boilers account for 18.5 percent of the total models listed in the January 2008 I=B=R directory. Among all of the small, gas-fired, steam all except natural draft commercial packaged boilers in the I=B=R directory, DOE calculated the average thermal efficiency to be 2.6 percent lower than the average combustion efficiency. DOE also identified the boilers in this equipment class with combustion efficiencies that minimally comply with EPCA (i.e., with a combustion efficiency between 80.0 and 81.0 percent). The average thermal efficiency of these minimally compliant boilers is 76.9 percent. The lowest thermal efficiency of these models is 75.4 percent, which corresponds to combustion efficiencies of 80 and 80.5 percent. The highest thermal efficiency is 83.1 percent, which corresponds to combustion efficiencies ranging from 83.7 to 84.8 percent. Of the 18.5 percent of units in the 2008 I=B=R directory for this equipment class, 51.2 percent of them have thermal efficiency levels below the ASHRAE Standard 90.1-2007 efficiency level. ASHRAE Standard 90.1-2007 specifies a thermal efficiency of 79 percent for small, gas-fired, steam, all except natural draft commercial packaged boilers. This thermal efficiency value is higher than the 76.9 percent average thermal efficiency of minimally compliant equipment on the market. Based on DOE's review of the I=B=R directory and the analysis of minimally compliant commercial packaged boilers, DOE has tentatively concluded that the thermal efficiency levels in ASHRAE Standard 90.1-2007 would, on average, result in an increase in efficiency for minimally compliant equipment. Therefore, DOE performed a potential energy-savings analysis on this equipment class under section III. 3. Small, Gas-Fired, Steam, Natural Draft, Commercial Packaged Boilers A small, gas-fired, steam, natural draft commercial packaged boiler has a fuel input at or above 300 and less than or equal to 2,500 kBtu/h, is fueled by either natural gas or propane, supplies steam for space heating and other applications, and uses a natural draft system (i.e., does not have mechanical draft equipment). Small, gas-fired, steam, natural draft commercial packaged boilers fall under the gas-fired commercial packaged boilers equipment class, whose Federal energy conservation standards, as established by EPCA, are a combustion efficiency of no less than 80.0 percent. (42 U.S.C. 6313(a)(4)(C); 10 CFR 431.87(a)) These boilers account for 1.8 percent of the total models listed in the January 2008 I=B=R directory. ASHRAE Standard 90.1-2007 set a two-tier efficiency level for this equipment, which includes two different thermal efficiency levels, as well as two effective dates. The first efficiency level specified in ASHRAE Standard 90.1-2007 for this equipment class includes a 77 percent thermal efficiency effective March 2, 2010. The second efficiency level specified by ASHRAE Standard 90.1-2007 for this equipment class includes a 79 percent thermal efficiency effective March 2, 2020. Among all of the small, gas-fired, steam, natural draft commercial packaged boilers in the I=B=R directory, DOE calculated the average thermal efficiency to be 3.6 percent lower than the average combustion efficiency. DOE also identified the small, gas-fired, steam, natural draft commercial packaged boilers with combustion efficiencies that minimally comply with EPCA (i.e., with a combustion efficiency between 80.0 and 81.0 percent). The average thermal efficiency for the minimally-compliant equipment of this type is 78.2 percent. The model with the lowest thermal efficiency is 77.6 percent, which corresponds to a combustion efficiency of 80.9 percent. The thermal efficiency of the most efficient models is 80.4 percent, which corresponds to combustion efficiencies of between 83.1 and 83.3 percent. In examining all the models in the 2008 I=B=R directory for this equipment class, DOE found that none has a thermal efficiency level below the ASHRAE Standard 90.1-2007 efficiency level effective in 2010, but 66.7 percent have thermal efficiency levels below the ASHRAE Standard 90.1-2007 efficiency level effective in 2020. Again, ASHRAE Standard 90.1-2007 specifies a thermal efficiency of 77 percent for small, gas-fired, steam, natural draft commercial packaged boilers manufactured on or after March 2, 2010. This is lower than the 78.2 percent average thermal efficiency of minimally-compliant equipment on the market. DOE could not identify any small, gas-fired, steam, natural draft equipment currently in the I=B=R directory with a thermal efficiency value less than 77.6 percent. DOE observed that the minimum thermal efficiency level effective March 2, 2010, in ASHRAE Standard 90.1-2007 appears to be lower than the average thermal efficiencies of boilers that minimally comply with EPCA's combustion energy efficiency standards. DOE believes that the potential consequence of setting thermal efficiency standards at levels lower than the thermal efficiencies of existing equipment would be equipment with lower combustion efficiencies than EPCA permits, meaning that the current minimum required efficiency would be decreased, thereby resulting in backsliding. Therefore, DOE has tentatively decided not to adopt the stage-1 ASHRAE Standard 90.1-2007 efficiency level for small, gas-fired, steam, natural draft commercial packaged boilers. Because ASHRAE set a two-tier requirement for this product type, DOE then analyzed the second efficiency level set by the amended ASHRAE standard. ASHRAE Standard 90.1-2007 specifies a thermal efficiency of 79 percent for small, gas-fired, steam, natural draft commercial packaged boilers manufactured on or after March 2, 2020. This thermal efficiency value is higher than the 78.2 percent average thermal efficiency of minimally-compliant equipment on the market. Based on DOE's review of the I=B=R directory and the analysis of minimally-compliant commercial packaged boilers, DOE has tentatively concluded that the second thermal efficiency level in ASHRAE Standard 90.1-2007 would, on average, result in an increase in efficiency for small, gas-fired, steam, natural draft commercial packaged boilers manufactured on or after March 2, 2020. Therefore, DOE performed a potential energy-savings analysis on this equipment class under section III. 4. Small, Oil-Fired, Hot Water Commercial Packaged Boilers A small, oil-fired, hot water commercial packaged boiler has a fuel input at or above 300 and less than or equal to 2,500 kBtu/h, is fueled by oil, and supplies hot water for space heating. Small, oil-fired, hot water commercial packaged boilers fall under the oil-fired commercial packaged boilers equipment class, whose Federal energy conservation standards, as established by EPCA, are a combustion efficiency of no less than 83.0 percent. (42 U.S.C. 6313(a)(4)(D); 10 CFR 431.87(b)) This equipment class accounts for 6.9 percent of the models listed in the January 2008 I=B=R directory. Among all of the small, oil-fired, hot water commercial packaged boilers in the I=B=R directory, DOE calculated the average thermal efficiency to be 2.3 percent lower than the average combustion efficiency. DOE also identified the small, oil-fired, hot water commercial packaged boilers with combustion efficiencies that minimally comply with EPCA (i.e., with a combustion efficiency between 83.0 and 84.0 percent). The average thermal efficiency of minimally-compliant equipment is approximately 80.7 percent. The thermal efficiency of the least-efficient model is 79.2 percent, which corresponds to a combustion efficiency of 83.2 percent. The thermal efficiency of the most-efficient model is 92.9 percent, which corresponds to a combustion efficiency of 93.3 percent. Of the all the models in the 2008 I=B=R directory for this equipment type, 29.3 percent of them have thermal efficiency levels below the ASHRAE Standard 90.1-2007 efficiency level. ASHRAE Standard 90.1-2007 specifies a thermal efficiency of 82 percent for small, oil-fired, hot water commercial packaged boilers. This value is higher than the 80.7 percent average thermal efficiency of minimally-compliant equipment on the market. Based on DOE's review of the I=B=R directory and the analysis conducted on the minimally-compliant commercial packaged boilers, DOE has tentatively concluded that the thermal efficiency level in ASHRAE Standard 90.1-2007 would, on average, result in an increase in the efficiency for small, oil-fired, hot water commercial packaged boilers. Therefore, DOE performed a potential energy-savings analysis on this equipment class under section III. 5. Small, Oil-Fired, Steam, Commercial Packaged Boilers A small, oil-fired, steam commercial packaged boiler has a fuel input at or above 300 and less than or equal to 2,500 kBtu/h, is fueled by oil, and supplies steam for space heating and other applications. Small, oil-fired, steam commercial packaged boilers fall under the oil-fired commercial packaged boilers equipment class, whose Federal energy conservation standards, as established by EPCA, are a combustion efficiency of no less than 83.0 percent. (42 U.S.C. 6313(a)(4)(D); 10 CFR 431.87(b)) These boilers account for 11.6 percent of the total models listed in the January 2008 I=B=R directory. Among all of the small, oil-fired, steam commercial packaged boilers in the I=B=R directory, DOE calculated the average thermal efficiency to be 2.5 percent lower than the average combustion efficiency. DOE also identified the small, oil-fired, steam commercial packaged boilers with combustion efficiencies that minimally comply with EPCA (i.e., with a combustion efficiency between 83.0 and 84.0 percent). The average thermal efficiency of minimally-compliant equipment is 81.6 percent. The thermal efficiency of the least-efficient model is 79.7 percent, which corresponds to a combustion efficiency of 83.3 percent. The thermal efficiency of the most-efficient models is 85.6 percent, which corresponds to a range of combustion efficiencies from 86.2 to 87.5 percent. Of all the models in the 2008 I=B=R directory for this equipment class, 17.5 percent of them have thermal efficiency levels below the ASHRAE Standard 90.1-2007 efficiency level. ASHRAE Standard 90.1-2007 specifies a thermal efficiency of 81 percent for small, oil-fired, steam commercial packaged boilers. This value is lower than the 81.6 percent average thermal efficiency of minimally-compliant equipment on the market. DOE identified a single minimally-compliant small, oil-fired steam commercial packaged boiler with a thermal efficiency of 79.7 percent, which is lower than the efficiency level in ASHRAE Standard 90.1-2007. DOE observed that the minimum thermal efficiency level in ASHRAE Standard 90.1-2007 for this equipment class appears to be lower than the average thermal efficiencies of boilers that minimally comply with EPCA's combustion energy efficiency standards. The consequence of setting thermal efficiency standards at levels lower than the thermal efficiencies of existing equipment would be manufacturing of equipment with lower combustion efficiencies than EPCA permits, meaning that the current minimum required efficiency would be decreased in violation of EPCA's “anti-backsliding” provision (see Section I.A). (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(1)) Therefore, DOE has tentatively decided not to adopt the ASHRAE Standard 90.1-2007 efficiency level for small, oil-fired, steam commercial packaged boilers, so no further analysis is required. 6. Large, Gas-Fired, Hot Water Commercial Packaged Boilers A large, gas-fired, hot water commercial packaged boiler has a fuel input of at or above 2,500 kBtu/h, is fueled by either natural gas or propane, and supplies hot water for space heating. Large, gas-fired, hot water commercial packaged boilers fall under the gas-fired commercial packaged boilers equipment class, whose Federal energy conservation standards, as established by EPCA, are a combustion efficiency of no less than 80.0 percent. (42 U.S.C. 6313(a)(4)(C); 10 CFR 431.87(a)). These boilers account for 4.0 percent of the total models listed in the January 2008 I=B=R directory. The existing Federal energy conservation standard for this equipment class corresponds to the energy conservation standard in EPCA, which specifies a minimum combustion efficiency no less than 80 percent. (42 U.S.C. 6313(4)(C)) ASHRAE Standard 90.1-2007 specifies a more stringent combustion efficiency of no less than 82 percent. Among all of the large, gas-fired, hot water commercial packaged boilers in the I=B=R directory, DOE calculate the average combustion efficiency to be 83.6 percent, which is 1.6 percent higher than the minimum combustion efficiency levels specified by ASHRAE Standard 90.1-2007. However, the combustion efficiency of approximately 17 percent of this equipment is lower than the minimum efficiency level specified by Standard 90.1-2007. For models with a combustion efficiency lower than 82 percent, ASHRAE Standard 90.1 represents a potential for energy savings. Therefore, DOE performed a potential energy-savings analysis on this equipment class under section III. 7. Large, Gas-Fired, Steam, All Except Natural Draft Commercial Packaged Boilers A large, gas-fired, steam all except natural draft commercial packaged boiler has a fuel input of at or above 2,500 kBtu/h, is fueled by either natural gas or propane, supplies steam for space heating and other applications, and uses a type of draft system other than natural draft (i.e., a forced or induced draft system). Large, gas-fired, steam, all except natural draft commercial packaged boilers fall under the gas-fired commercial packaged boilers equipment class, whose Federal energy conservation standards, as established by EPCA, are a combustion efficiency of no less than 80.0 percent. (42 U.S.C. 6313(a)(4)(C); 10 CFR 431.87(a)) These boilers account for 12.1 percent of the models listed in the January 2008 I=B=R directory. Among all of the large, gas-fired steam, all except natural draft commercial packaged boilers in the I=B=R directory, DOE calculated the average thermal efficiency to be 1.5 percent lower than the average combustion efficiency. DOE also identified those boilers with combustion efficiencies that minimally comply with EPCA ( *i.e.* , with a combustion efficiency between 80.0 and 81.0 percent). The average thermal efficiency of minimally-compliant boilers is 78.5 percent. The thermal efficiency of the least efficient model is 75.4 percent, which corresponds to a combustion efficiency of 80.5 percent. The thermal efficiency of the most efficient model is 83.2 percent, which corresponds to a combustion efficiency of 83.4 percent. Of all the models in the 2008 I=B=R directory for this equipment class, 49.1 percent of them have thermal efficiency levels below the ASHRAE Standard 90.1-2007 efficiency level. ASHRAE Standard 90.1-2007 specifies a thermal efficiency of 79 percent for large, gas-fired, steam, all except natural draft commercial packaged boilers. This value is higher than the 78.5 percent average thermal efficiency of minimally-compliant equipment on the market. Based on DOE's review of the I=B=R directory and the analysis conducted on the minimally-compliant commercial packaged boilers, DOE has tentatively concluded that the thermal efficiency level in ASHRAE Standard 90.1-2007 would, on average, result in an increase in efficiency for minimally-compliant boilers. Therefore, DOE performed a potential energy-savings analysis on this equipment class under section III. 8. Large, Gas-Fired, Steam, Natural Draft, Commercial Packaged Boilers A large, gas-fired, steam, natural draft commercial packaged boiler has a fuel input of at or above 2,500 kBtu/h, is fueled by either natural gas or propane, supplies steam for space heating and other applications, and uses a natural draft system ( *i.e.* , does not have mechanical draft equipment). Large, gas-fired, steam, natural draft commercial packaged boilers fall under the gas-fired commercial packaged boilers equipment class, whose Federal energy conservation standards, as established by EPCA, are a combustion efficiency of no less than 80.0 percent. (42 U.S.C. 6313(a)(4)(C); 10 CFR 431.87(a)) These boilers account for 4.4 percent of the models listed in the January 2008 I=B=R directory. ASHRAE set a two-tier efficiency level for this equipment, which includes two different thermal efficiency levels and two effective dates. The first efficiency level specified in ASHRAE Standard 90.1-2007 for this equipment class includes a 77 percent thermal efficiency effective March 2, 2010. The second efficiency level specified by ASHRAE Standard 90.1-2007 for this equipment class includes a 79 percent thermal efficiency effective March 2, 2020. Among all of the large, gas-fired, steam, natural draft commercial packaged boilers, DOE calculated the average thermal efficiency to be 1.8 percent lower than the average combustion efficiency. DOE also identified the large, gas-fired, steam, natural draft commercial packaged boilers with combustion efficiencies that minimally comply with EPCA ( *i.e.* , with a combustion efficiency between 80.0 and 81.0 percent). The average thermal efficiency of minimally-compliant boilers is approximately 79.1 percent. The thermal efficiency of the least efficient models is 78.6 percent, which corresponds to a combustion efficiency of 82.1 percent. The thermal efficiency of the most efficient models is 81.1 percent, which corresponds to a range of combustion efficiencies from 82.2 to 82.4 percent. In examining all the models in the 2008 I=B=R directory for this equipment class, DOE found that none has a thermal efficiency level below the ASHRAE Standard 90.1-2007 efficiency level effective in 2010, but 15.5 percent have thermal efficiency levels below the ASHRAE Standard 90.1-2007 efficiency level effective in 2020. Again, ASHRAE Standard 90.1-2007 specifies a thermal efficiency of 77 percent for large, gas-fired, steam, natural draft commercial packaged boilers manufactured on or after March 2, 2010. This value is lower than the 79.1 percent average thermal efficiency of minimally-compliant equipment on the market. DOE could not identify any large, gas-fired, steam, natural draft equipment in the I=B=R directory with a thermal efficiency value less than 78.6 percent. The minimum thermal efficiency level effective March 2, 2010, in ASHRAE Standard 90.1-2007 appears to be lower than any of the thermal efficiencies of boilers that are currently available on the market. DOE believes that the potential consequence of setting thermal efficiency standards at levels lower than the thermal efficiencies of existing equipment would be equipment having lower combustion efficiencies than EPCA permits, meaning that the current minimum required efficiency would be decreased, thereby resulting in backsliding. Therefore, DOE has tentatively decided not to adopt the stage-1 ASHRAE Standard 90.1-2007 efficiency level for this equipment class. Because ASHRAE set a two-tiered requirement for this product type, DOE then analyzed the second efficiency level set by the amended ASHRAE standard. ASHRAE Standard 90.1-2007 specifies a thermal efficiency of 79 percent for large, gas-fired, steam, natural draft commercial packaged boilers manufactured on or after March 2, 2020. This value is slightly lower than the 79.1 percent average thermal efficiency of minimally compliant equipment on the market. However, 15.5 percent of the equipment DOE analyzed has a thermal efficiency lower than the efficiency level in ASHRAE Standard 90.1-2007. Based on DOE's review of the I=B=R directory and the analysis conducted on minimally-compliant commercial packaged boilers, DOE has tentatively concluded that the thermal efficiency level specified by ASHRAE Standard 90.1-2007 effective March 2, 2020 would result in an increase in efficiency for small, gas-fired, steam, natural draft commercial packaged boilers manufactured on or after March 2, 2020 (compared to the EPCA combustion efficiency level). Therefore, DOE performed a potential energy-savings analysis on this equipment class under section III. 9. Large, Oil-Fired, Hot Water Commercial Packaged Boilers A large, oil-fired, hot water commercial packaged boiler has a fuel input at or above 2,500 kBtu/h, is fueled by oil, and supplies hot water for space heating. Large, oil-fired, hot water commercial packaged boilers fall under the oil-fired commercial packaged boilers equipment class, whose Federal energy conservation standards, as established by EPCA, are a combustion efficiency of no less than 83.0 percent. (42 U.S.C. 6313(a)(4)(D); 10 CFR 431.87(b)) These boilers account for 1.9 percent of the models listed in the January 2008 I=B=R directory. ASHRAE Standard 90.1-2007 adopted a more stringent combustion efficiency of 84 percent. Among all of the large, oil-fired, hot water commercial packaged boilers, DOE calculated the average combustion efficiency to be approximately 86.5 percent, 2.5 percent higher than the minimum combustion efficiency levels specified by ASHRAE Standard 90.1-2007. The minimum combustion efficiency of all large, oil-fired, hot water equipment on the market is 85.5 percent, which is 1.5 percent higher than the minimum level adopted by ASHRAE Standard 90.1-2007. Based on this, DOE believes there will be no potential energy savings resulting from adopting ASHRAE Standard 90.1-2007 for large, oil-fired, hot water commercial packaged boilers. However, DOE did perform a potential energy-savings analysis in section III, which examined efficiency levels more stringent than those contained within ASHRAE Standard 90.1-2007. 10. Large, Oil-Fired, Steam Commercial Packaged Boilers A large, oil-fired, steam commercial packaged boiler has a fuel input at or above 2,500 kBtu/h, is fueled by oil, and supplies steam for space heating and other applications. Large, oil-fired, steam commercial packaged boilers fall under the oil-fired commercial packaged boilers equipment class, whose Federal energy conservation standards, as established by EPCA, are a combustion efficiency of no less than 83.0 percent. (42 U.S.C. 6313(a)(4)(D); 10 CFR 431.87(b)) These boilers account for 15.2 percent of the models listed in the January 2008 I=B=R directory. Among all of the large, oil-fired, steam commercial packaged boilers, DOE calculated the average thermal efficiency to be 1.5 percent lower than the average combustion efficiency. DOE also identified the large, oil-fired, steam commercial packaged boilers with combustion efficiencies that minimally comply with EPCA ( *i.e.* , with a combustion efficiency between 83.0 and 84.0 percent). For the minimally-compliant large, oil-fired, steam commercial packaged boilers, the average thermal efficiency is 82.0 percent. The thermal efficiency of the least efficient model is 81.0 percent, which corresponds to a combustion efficiency of 84.6 percent. The thermal efficiency of the most efficient model is 85.8 percent, which corresponds to a combustion efficiency of 86.0 percent. In examining all the models in the 2008 I=B=R directory for this equipment class, DOE found that none had a thermal efficiency level below the ASHRAE Standard 90.1-2007 efficiency level. ASHRAE Standard 90.1-2007 specifies a thermal efficiency of 81 percent for large, oil-fired, steam commercial packaged boilers. This value is lower than the 82.0 percent average thermal efficiency of minimally-compliant equipment on the market. DOE could not identify any small, gas-fired, steam, natural draft equipment currently in the I=B=R directory with a thermal efficiency value less than 81.0 percent. The minimum thermal efficiency level in ASHRAE Standard 90.1-2007 appears to be lower than the average thermal efficiencies of boilers that minimally comply with EPCA's combustion energy efficiency standards. DOE believes that the potential consequence of setting thermal efficiency standards at levels lower than the thermal efficiencies of existing equipment would be equipment having lower combustion efficiencies than EPCA permits, meaning that the current minimum required efficiency would be decreased in violation of EPCA's “anti-backsliding” provision (see Section I.A). (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(1)) Therefore, DOE has tentatively decided not to adopt the ASHRAE Standard 90.1-2007 efficiency level for large, oil-fired, steam, commercial packaged boilers, so no further analysis is required. III. Analysis of Potential Energy Savings As required under 42 U.S.C. 6313(a)(6)(A), DOE performed an analysis to determine the energy-savings potential of amending Federal minimum energy conservation standard levels to the efficiency levels specified in ASHRAE Standard 90.1-2007, as well as more stringent efficiency levels than those specified in ASHRAE Standard 90.1-2007. As explained above, DOE's energy-savings analysis is limited to types of equipment covered by Federal energy conservation standards for which the amended ASHRAE Standard 90.1-2007 increased the efficiency levels. Based upon the analyses performed in section II, DOE is conducting the energy-savings analysis for eight equipment classes of commercial packaged boilers. The following discussion provides an overview of the energy-savings analysis conducted for those products, which had increased efficiency levels under ASHRAE Standard 90.1-2007, followed by summary results of that analysis. For each efficiency level analyzed, DOE calculated the potential energy savings to the Nation as the difference between a base case forecast (without amended standards) and the standards case (with amended standards). The national energy savings

(NES)refers to cumulative energy savings from 2012 through 2042. In the standards case, equipment that is more efficient gradually replaces less efficient equipment over time. This affects the calculation of the potential energy savings, which are a function of the total number of units in use and their efficiencies. Savings depend on annual shipments and equipment lifetime, including changes in shipments and retirement rates in response to changes in equipment costs due to standards. DOE calculated the potential energy savings by subtracting energy use under a standards scenario from energy use in a base case scenario. DOE estimated unit energy savings for each equipment class based on data from the 2000 Screening Analysis 16 for various heating equipment and the 2008 I=B=R directory. To estimate the total energy savings for each efficiency level, DOE first calculated the national site energy consumption ( *i.e.* , the energy directly consumed by the units of equipment in operation) for each class of commercial packaged boilers for the base case forecast and the standards case forecast. Second, DOE determined the annual site energy savings, consisting of the difference in site energy consumption between the base case and the standards case. Third, DOE converted the annual site energy savings into the annual amount of energy saved at the source of gas generation (the source energy) using a site-to-source conversion factor. Finally, DOE estimated the source energy savings from 2012 to 2042 to calculate the total potential energy savings for that period. DOE performed these calculations for each efficiency level within a given equipment class of commercial packaged boilers. Details of the energy-savings analysis are presented below. 16 U.S. Department of Energy, *Screening Analysis for EPACT-Covered Commercial HVAC and Water-Heating Equipment* (April 2000). Available at: *http://www.eere.energy.gov/buildings/highperformance/pdfs/screening_analysis_main.pdf* . A. Annual Energy Use DOE started with the annual energy use calculation methodology presented in the 2000 Screening Analysis for today's estimation of potential energy savings. For commercial packaged boilers, DOE used a modified full-load equivalent operating hours (FLEOH) to calculate the annual energy use as estimated in the 2000 Screening Analysis. FLEOH is the ratio of the total annual thermal energy output (either heating or cooling) provided by the equipment over the course of a year divided by equipment capacity. It is equal to the total number of hours that a piece of equipment would have to run at its rated capacity to provide total thermal energy output equivalent to that provided over the course of a year. The total annual standby loss is largely a function of the period available for operation (hot standby period). Because this period is an operation issue and not specific to equipment design and climate location, DOE believes the standby loss can be captured in a simplified analysis, as in the 2000 Screening Analysis. For that analysis, DOE adjusted the boiler FLEOHs by calculating a standby loss factor (as described in Appendix A of the 2000 Screening Analysis). DOE determined the national average FLEOHs to be 952 hours, regardless of boiler input fuel type, input capacity, or output type ( *i.e.* , steam or hot water). The Screening Analysis methodology provides a linear relationship between annual energy consumption and thermal efficiency. DOE used this linear relationship and the FLEOHs to calculate the annual energy use per unit within a given equipment class at a specific efficiency level using the following equation: EP16JY08.007 Where: • The annual energy use is the amount of energy used each year for a given equipment class at a given efficiency level in Btus; • The FLEOH 2000 Screening Analysis is the FLEOHs calculated in the 2000 Screening Analysis (i.e., 952.2 hours); • The Output Capacity 100 % Efficiency is the total output capacity when the equipment is assumed to be at 100 percent efficiency ( *i.e.* , output capacity = input capacity) in Btu/h; and • ηShipment Weighted Average is the average shipment-weighted efficiency, which is calculated for each standards case within each equipment class. B. Shipments DOE obtained data on annual shipments for commercial packaged boilers in 2007 from AHRI, totaling approximately 36,000 units. Then, DOE used the 2008 I=B=R directory to determine the percentage of models within each equipment class. DOE applied this percentage to estimate the number of unit shipments for each equipment class. Table III.1 exhibits the total shipment breakdown by equipment class. Table III.1.—Total Shipments of Commercial Packaged Boilers by Equipment Class Equipment class Percentage of models (%)* Approximate total shipments (units per year) Small, Gas-Fired, Hot Water 23.6 8,500 Small, Gas-Fired, Steam, All Except Natural Draft 18.5 6,700 Small, Gas-Fired, Steam, Natural Draft 1.8 650 Small, Oil-Fired, Hot Water 6.9 2,500 Small, Oil-Fired, Steam 11.6 4,200 Large, Gas-Fired, Hot Water 4 1,500 Large, Gas-Fired, Steam, All Except Natural Draft 12.1 4,400 Large, Gas-Fired, Steam, Natural Draft 4.4 1,600 Large, Oil-Fired, Hot Water 1.9 700 * Note that the identified boilers in this table do not add to 100 percent of annual shipments, because large, oil-fired, steam boilers (which constitute 15.2 percent of the market) are not included. Large, oil-fired, steam boilers are not included because the efficiency level in ASHRAE Standard 90.1-2007 would result in backsliding and accordingly cannot be adopted as a national standard. DOE then reviewed the 2008 I=B=R directory to determine the distribution of efficiency levels for commercially-available models within each equipment class. DOE bundled the efficiency levels into “efficiency ranges” and determined the percentage of models within each range. DOE applied the percentages of models within each range to the total unit shipments for a given equipment class to estimate the distribution of shipments within the base case. To determine the percentage of models in each efficiency range, DOE considered models greater than or equal to the lower bound of the efficiency range and models with efficiencies less than the upper bound of the efficiency range. For example, for the thermal efficiency range of 79-80 percent, DOE considered models with thermal efficiency levels from 79.0 to 79.9 to be within this range. In the case of the last efficiency range identified for each equipment class, DOE included those models with efficiency levels equal to the higher bound ( *i.e.* , the max-tech efficiency levels). The distribution of efficiencies in the base case for each equipment class can be found in the ASHRAE NODA TSD on DOE's Web site. 17 17 The ASHRAE NODA TSD is available on the Web page for ASHRAE Products at: *http://www.eere.energy.gov/buildings/appliance_standards/commercial/ashrae_products_docs_meeting.html* . For the standards case, DOE assumed shipments at lower efficiencies were most likely to roll up into higher efficiency levels in response to more stringent energy conservation standards. For each efficiency level analyzed within a given equipment class, DOE used a “roll-up” scenario to establish the market shares by efficiency level for the year that standards become effective ( *i.e.* , 2012). Information available to DOE suggests that the efficiencies of equipment in the base case that did not meet the standard level under consideration would roll up to meet the standard level. Available information also suggests that all equipment efficiencies in the base case that were above the standard level under consideration would not be affected. Table III.2 shows an example of the distribution of efficiencies within the base-case and the roll-up scenarios to establish the distribution of efficiencies in the standards cases for small, gas-fired, steam, all except natural draft commercial packaged boilers. For all the tables of the distribution of efficiencies in the base case and standards cases by equipment class, see the ASHRAE NODA TSD. Table III.2.—Distribution of Efficiencies in the Base Case and Standards Cases for Small, Gas-Fired, Steam, All Except Natural Draft Commercial Packaged Boilers Efficiency Range (E T ) 75.4-77 (percent) 77-79 (percent) 79-80* (percent) 80-81 (percent) 81-82 (percent) 82-83 (percent) 83-83.1 (percent) Base Case—Current Market 18 33 22 19 4 1 3 Efficiency Level 1—ASHRAE (79% E T ) 73 19 4 1 3 Efficiency Level 2—(80% E T 92 4 1 3 Efficiency Level 3—(81% E T ) 96 1 3 Efficiency Level 4—(82% E T ) 97 3 Efficiency Level 5—“Max-Tech”—(83.1%) E T ) 100 *The highlighted column indicates the efficiency level specified by ASHRAE Standard 90.1-2007 for this equipment class. DOE seeks input on its determination of the base-case distribution of efficiencies and its prediction on how amended energy conservation standards affect the distribution of efficiencies in the standards case. DOE identified this as Issue 2 under “Issues on Which DOE Seeks Comment” in section IV.B of this NODA. Using the distribution of efficiencies in the base case and in the standards cases for each equipment class of commercial packaged boilers analyzed in today's NODA, DOE calculated the shipment-weighted average efficiency values. The shipment-weighted average efficiency value represents the average efficiency of the total units shipped at a specified amended standard level. DOE used the weighted average efficiency values in Equation 1 (discussed previously) to calculate the annual energy use of the equipment class at a given efficiency level. For the baseline efficiency level, DOE used the average thermal efficiency value for each equipment class of the models below the efficiency level in ASHRAE Standard 90.1-2007. The shipment-weighted average efficiency values for the base case and the standards cases for each efficiency analyzed within the eight equipment classes is provided in the ASHRAE NODA TSD found on DOE's Web site. For small, commercial packaged boilers, DOE calculated the annual energy consumption based on three input capacities ( *i.e.* , 400 kBtu/h, 800 kBtu/h, and 1500 kBtu/h). DOE then reviewed the 2008 I=B=R directory to determine the distribution of input capacities for commercially-available models within each equipment class. DOE bundled the efficiency levels into “capacity ranges” and determined the percentage of models within each range. DOE applied the percentages of models within each range to the total unit shipments for a given equipment class to estimate the distribution of capacities within the base case and higher efficiency levels examined. To determine the percentage of models in each capacity range, DOE considered commercial packaged boilers with an input capacity equal to or greater than 300 kBtu/h and less than 600 kBtu/h to be represented by the energy use of the 400 kBtu/h model. DOE considered commercial packaged boilers with an input capacity equal to or greater than 600 kBtu/h and less than 1150 kBtu/h to be represented by the energy use of the 800 kBtu/h model. DOE considered commercial packaged boilers with an input capacity equal to or greater than 1150 kBtu/h and less than 2500 kBtu/h to be represented by the energy use of the 1500 kBtu/h model. For large, commercial packaged boilers, DOE calculated the annual energy consumption based on one input capacity ( *i.e.* , 3000 kBtu/h). DOE considered commercial packaged boilers with an input capacity equal to or greater than 2500 kBtu/h to be represented by the energy use of the 3000 kBtu/h model. The distribution of input capacities in the base case for each equipment class can be found in the ASHRAE NODA TSD. DOE seeks input on its determination of the base-case distribution of capacities and its prediction on how amended energy conservation standards would affect the distribution of capacities in the standard case. DOE identified this as Issue 3 under “Issues on Which DOE Seeks Comment” in section IV.B of this NODA. C. Other Analytical Inputs 1. Site-to-Source Conversion DOE converted the annual site energy savings into the annual amount of energy saved at the source of gas generation ( *i.e.* , primary energy), using an average site-to-source conversion factor over the analysis period (calculated from the Energy Information Agency's (EIA's) Annual Energy Outlook 2008 (AEO2008) projections). 18 The site-to-source conversion factor is the multiplicative factor DOE uses for converting site energy consumption (the energy used at the end-use site) into primary or source energy consumption (the energy used at the source before transmission or conversion losses). For the NODA, DOE calculated the average site-to-source conversion factor using the same analysis period ( *i.e.* , 2012-2042) as EIA's *AEO2008* . DOE derived the annual conversion factors by dividing the total energy used to produce gas in each forecast year in the United States, as indicated in *AEO2008* , by the total gas delivered for each forecasted year. DOE determined the 30-year average to be 1.097. 18 U.S. Department of Energy. Energy Information Administration, Annual Energy Outlook 2008 with Projections to 2030 (June 2008). Available at *http://www.eia.doe.gov/oiaf/aeo/index.html* . 2. Effective Date Generally, covered equipment to which a new or amended energy conservation standard applies must comply with the standard if such equipment is manufactured or imported on or after a specified date. In today's NODA, DOE is evaluating potential energy savings estimates for commercial packaged boilers at the efficiency levels specified by ASHRAE Standard 90.1-2007 and at more stringent efficiency levels than those in ASHRAE Standard 90.1-2007. If DOE were to propose a rule prescribing energy conservation standards at the efficiency levels contained in ASHRAE Standard 90.1-2007, EPCA states that any such standards shall become effective on or after a date which is two years after the effective date of the applicable minimum energy efficiency requirement in the amended ASHRAE/IES standard ( *i.e.* , ASHRAE Standard 90.1-2007) (42 U.S.C. 6313(a)(6)(D)). DOE has applied this two-year implementation period to determine the effective date of any energy conservation standard equal to the efficiency levels specified by ASHRAE Standard 90.1-2007 prescribed by this rulemaking. Thus, if DOE decides to adopt the levels in ASHRAE Standard 90.1-2007 ( *i.e.* , ones where efficiency levels were set in two stages), the rule would apply to products manufactured on or after 2012 or 2022, respectively, which is two years from the effective date specified in ASHRAE Standard 90.1-2007 since the effective date in ASHRAE Standard 90.1-2007 is January 1, 2010 for certain other equipment classes of commercial packaged boilers or January 1, 2020 for certain equipment classes of commercial packaged boilers. If DOE were to propose a rule prescribing energy conservation standards higher than the efficiency levels contained in ASHRAE Standard 90.1-2007, EPCA states that any such standards “shall become effective for products manufactured on or after a date which is four years after the date such rule is published in the **Federal Register** ” (42 U.S.C. 6313(a)(6)(D)). DOE has applied this four-year implementation period to determine the effective date of any energy conservation standard higher than the efficiency levels specified by ASHRAE Standard 90.1-2007 that might be prescribed in a future rulemaking. Thus, for products which DOE might adopt a level more stringent than the ASHRAE efficiency levels, the rule would apply to products manufactured on or after July 2013, which is four years from the date of publication of the final rule since DOE expects to issue a final rule for this proceeding around July 2009. For each equipment class for which DOE developed a potential energy savings analysis, Table III.3 exhibits the approximate effective dates of an amended energy conservation standard. Table III.3.—Approximate Effective Date of an Amended Energy Conservation Standard for Each Equipment Class of Commercial Packaged Boilers Equipment class Approximate effective date for adopting the efficiency levels in ASHRAE Standard 90.1-2007 Approximate effective date for adopting more stringent efficiency levels than those in ASHRAE Standard 90.1-2007 Small, Gas-Fired, Hot Water Commercial Packaged Boilers 01/2012 07/2013 Small, Gas-Fired, Steam, All Except Natural Draft Commercial Packaged Boilers 01/2012 07/2013 Small, Gas-Fired, Steam, Natural Draft Commercial Packaged Boilers 01/2022 07/2013 Small, Oil-Fired, Hot Water Commercial Packaged Boilers 01/2012 07/2013 Small, Oil-Fired, Steam Commercial Packaged Boilers 01/2012 07/2013 Large, Gas-Fired, Hot Water Commercial Packaged Boilers 01/2012 07/2013 Large, Gas-Fired, Steam, All Except Natural Draft Commercial Packaged Boilers 01/2022 07/2013 Large, Gas-Fired, Steam, Natural Draft Commercial Packaged Boilers 01/2012 07/2013 Large, Oil-Fired, Hot Water Commercial Packaged Boilers 01/2012 07/2013 3. Analysis Period and Lifetime DOE used an analysis period of 30 years spanning 2012 to 2042 for examining both the ASHRAE efficiency levels and the more stringent efficiency levels that were considered in the analysis. This period coincides with the lifetime of a commercial packaged boiler, which DOE found to be 30 years in the 2000 Screening Analysis. DOE assumed that the installed base of each equipment class in 2012 will not increase from its current levels ( *i.e.* , total unit shipments remain constant). For commercial packaged boilers (which have long equipment lifetimes), the installed base likely will not change significantly by 2012, an assumption based on historical values for shipments of commercial packaged boilers. DOE calculated the total energy savings from 2012 to 2042 based on the assumption that any new technology or technology switching prompted by an amended energy conservation standard will diffuse into the stock linearly over the lifetime of the equipment ( *i.e.* , over the 30-year analysis period). Although manufacturers are required to comply with a new standard level as soon as it becomes effective, the products that are actually being used by consumers are not replaced with more-efficient equipment until the old equipment is retired. Therefore, DOE is assuming that older equipment is retired and replaced with newer, more-efficient equipment linearly over the analysis period. DOE calculated the total actual energy savings over the lifetime of the equipment by calculating the total energy consumption for each equipment class at each efficiency level over the analysis period using the following equation: EP16JY08.008 The annual energy savings represents the total energy saved each year by replacing the entire installed stock of the equipment at base-case efficiencies with equipment consuming energy at the amended energy conservation standard level ( *i.e.* , at standards case efficiencies). Special consideration was given to small and large, gas-fired, steam, natural draft, commercial packaged boilers, because for both of these products, ASHRAE Standard 90.1-2007 specifies two tiers of efficiency levels, with one level that goes into effect in the year 2010, and another, more stringent efficiency level that becomes effective in the year 2020. 19 DOE has tentatively decided not to adopt the efficiency levels effective in 2010 because they appear to be less stringent than the current Federal energy conservation standards, and analyzed only the ASHRAE Standard 90.1-2007 efficiency levels effective 2020 for both of these equipment classes. Because the second tier of efficiency standards becomes effective ten years after the beginning of the analysis period, DOE adjusted the total energy savings to account for the delay in effective date. For the first ten years of the analysis period ( *i.e.* , 2012 to 2022), there would be no energy savings for these two equipment classes. Over the remaining 20 years of the analysis period, DOE assumed more-efficient equipment required by an amended energy conservation standard would diffuse into the existing stock of equipment linearly over the analysis period as older equipment is retired. 19 EPCA states if DOE adopts amended national energy conservation standards for commercial packaged boilers based on that ASHRAE Standard 90.1 efficiency levels, such standards shall become effective two years after the effective date of the applicable minimum energy efficiency requirement in the amended ASHRAE Standard 90.1. (42 U.S.C. 6313(a)(6)(D)) Thus, for purposes of DOE regulations, the effective dates of the 2010 and 2020 ASHRAE Standard 90.1-2007 efficiency levels would be 2012 and 2022, respectively. Because the lifetime of commercial packaged boilers was assumed to be 30 years and because only 20 years is remaining in the analysis period when these latter ASHRAE Standard 90.1-2007 efficiency levels would go into effect for these two equipment classes, only two-thirds of commercial packaged boiler equipment stock would be at efficiency levels at or above those specified by ASHRAE Standard 90.1-2007 at the end of the analysis period. The remaining one-third of the stock would still be at the same efficiency as it was before the standard levels were amended. The remaining one-third of the stock would then be retired over the following 10 years (after the analysis period has ended) and replaced with equipment that meets or exceeds the efficiency levels specified in ASHRAE Standard 90.1-2007. For efficiency levels more stringent than those efficiency levels specified by ASHRAE Standard 90.1-2007, DOE used a delayed implementation date, which coincides with the effective dates that are required consistent with EPCA. For the first two years of the analysis period ( *i.e.* , 2012 to 2014), there would be no energy savings if DOE were to adopt more stringent efficiency levels than those specified in ASHRAE Standard 90.1-2007 when the ASHRAE Standard 90.1-2007 efficiency levels are effective in 2010. For the first 12 years of the analysis period ( *i.e.* , 2012 to 2024), there would be no energy savings if DOE were to adopt the efficiency levels specified in ASHRAE Standard 90.1-2007 when the ASHRAE Standard 90.1-2007 efficiency levels are effective in 2020. Over the remaining 28 years of the analysis period for those efficiency levels where ASHRAE specifies an effective date of 2010, DOE assumed more-efficient equipment required by an amended energy conservation standard would diffuse into the existing stock of equipment linearly over the analysis period (commencing in 2012) as older equipment is retired. D. Estimates of Potential Energy Savings DOE estimated the potential primary energy savings in trillions of Btus for each efficiency level considered within each equipment class of commercial packaged boilers. DOE did not analyze the first set of ASHRAE Standard 90.1-2007 efficiency levels with 2010 effective dates for large, gas-fired, steam, natural draft commercial packaged boilers and for small, gas-fired, steam, natural draft commercial packaged boilers. Table III.4—Table III.12 show the potential energy savings for commercial packaged boilers resulting from the analyses conducted as part of this NODA. Table III.4.—Potential Energy Savings for Small, Gas-Fired, Hot Water Commercial Packaged Boilers Efficiency level Primary energy savings estimate* (trillion Btu) Level 1—ASHRAE—80% E T 13.3 Level 2—82% E T 18.7 Level 3—84% E T 64.0 Level 4—86% E T 127.5 Level 5—92% E T 320.0 Level 6—“Max-Tech”—98.1% E T 483.3 *DOE calculated the potential energy savings from making the efficiency levels more stringent than those specified by ASHRAE Standard 90.1-2007, using the efficiency levels in Standard 90.1-2007 as the baseline. Table III.5.—Potential Energy Savings Estimates for Small, Gas-Fired, Steam, All Except Natural Draft Commercial Packaged Boilers Efficiency level Primary energy savings estimate* (trillion Btu) Level 1—ASHRAE—79% E T 63.1 Level 2—80% E T 24.7 Level 3—81% E T 65.1 Level 4—82% E T 106.2 Level 5—“Max-Tech”—83.1% E T 150.9 *DOE calculated the potential energy savings from making the efficiency levels more stringent than those specified by ASHRAE Standard 90.1-2007, using the efficiency levels in Standard 90.1-2007 as the baseline. Table III.6.—Potential Energy Savings Estimates for Small, Gas-Fired, Steam, Natural Draft Commercial Packaged Boilers Efficiency level Primary energy savings estimate* (trillion Btu) Level 1—ASHRAE—79% E T 1.7 Level 2—“Max-Tech”—80.4% E T 6.6 *DOE calculated the potential energy savings from making the efficiency levels more stringent than those specified by ASHRAE Standard 90.1-2007, using the efficiency levels in Standard 90.1-2007 as the baseline. Table III.7.—Potential Energy Savings Estimates for Small, Oil-Fired, Hot Water Commercial Packaged Boilers Efficiency level Primary energy savings estimate* (trillion Btu) Level 1—ASHRAE—82% E T 7.9 Level 2—84% E T 12.5 Level 3—86% E T 28.1 Level 4—88% E T 47.4 Level 5—“Max-Tech”—92.9% E T 84.7 *DOE calculated the potential energy savings from making the efficiency levels more stringent than those specified by ASHRAE Standard 90.1-2007, using the efficiency levels in Standard 90.1-2007 as the baseline. Table III.8.—Potential Energy Savings Estimates for Small, Oil-Fired, Steam Commercial Packaged Boilers Efficiency level Primary energy savings estimate* (trillion Btu) Level 1—ASHRAE—81% E T 5.5 Level 2—82% E T 10.3 Level 3—83% E T 29.9 Level 4—84% E T 53.5 Level 5—“Max-Tech”—85.6% E T 67.5 *DOE calculated the potential energy savings from making the efficiency levels more stringent than those specified by ASHRAE Standard 90.1-2007, using the efficiency levels in Standard 90.1-2007 as the baseline. Table III.9.—Potential Energy Savings Estimates for Large, Gas-Fired, Hot Water Commercial Packaged Boilers Efficiency level Primary energy savings estimate* (trillion Btu) Level 1—ASHRAE—82% E C 5.5 Level 2—83% E C 13.1 Level 3—84% E C 34.5 Level 4—85% E C 57.1 Level 5—“Max-Tech”—96.9% E C 321.4 * DOE calculated the potential energy savings from making the efficiency levels more stringent than those specified by ASHRAE Standard 90.1-2007, using the efficiency levels in Standard 90.1-2007 as the baseline. Table III.10.—Potential Energy Savings Estimates for Large, Gas-Fired, Steam, All Except Natural Draft Commercial Packaged Boilers Efficiency level Primary energy savings estimate* (trillion Btu) Level 1—ASHRAE—79% E T 53.4 Level 2—80% E T 47.0 Level 3—81% E T 118.6 Level 4—82% E T 190.4 Level 5—“Max-Tech”—83.2% E T 276.5 * DOE calculated the potential energy savings from making the efficiency levels more stringent than those specified by ASHRAE Standard 90.1-2007, using the efficiency levels in Standard 90.1-2007 as the baseline. Table III.11.—Potential Energy Savings Estimates for Large, Gas-Fired, Steam, Natural Draft Commercial Packaged Boilers Efficiency level Primary energy savings estimate* (trillion Btu) Level 1—ASHRAE—79% E T 1.8 Level 2—80% E T 18.5 Level 3—“Max-Tech”—81.1% E T 34.2 * DOE calculated the potential energy savings from making the efficiency levels more stringent than those specified by ASHRAE Standard 90.1-2007, using the efficiency levels in Standard 90.1-2007 as the baseline. Table III.12.—Potential Energy Savings Estimates for Large, Oil-Fired, Hot Water Commercial Packaged Boilers Efficiency level Primary energy savings estimate* (trillion Btu) Level 1—86% E C **0 Level 2—87% E C 4.8 Level 3—“Max-Tech”—88.5% E C 23.3 * DOE calculated the potential energy savings from making the efficiency levels more stringent than those specified by ASHRAE Standard 90.1-2007, using the efficiency levels in Standard 90.1-2007 as the baseline. ** The current market average efficiency is 86% combustion efficiency, which is higher than the efficiency level specified by ASHRAE Standard 90.1-2007. Thus, the potential energy savings from adopting the ASHRAE Standard 90.1-2007 efficiency level for large, oil-fired, hot water commercial packaged boilers is zero. IV. Public Participation A. Submission of Comments DOE will accept comments, data, and information regarding this NODA no later than August 15, 2008. Please submit comments, data, and information electronically to the following e-mail address: *ASHRAE_90.1_rulemaking@ee.doe.gov* . Submit electronic comments in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format and avoid the use of special characters or any form of encryption. Comments in electronic format should be identified by the docket number, EERE-2008-BT-STD-0013, and/or RIN 1904-AB83, and whenever possible should carry the electronic signature of the author. Alternatively, comments may be submitted to the address provided at the beginning of this notice in the ADDRESSES section (which generally provides instructions for submission of comments in both electronic and hard-copy forms). No telefacsimiles (faxes) will be accepted. Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies. One copy of the document shall include all the information believed to be confidential, and the other copy of the document shall have the information believed to be confidential deleted. DOE will make its own determination about the confidential status of the information and treat it according to its determination. Factors that DOE considers when evaluating requests to treat submitted information as confidential include:

(1)A description of the items;

(2)whether and why such items are customarily treated as confidential within the industry;

(3)whether the information is generally known by, or available from, other sources;

(4)whether the information has previously been made available to others without obligation concerning its confidentiality;

(5)an explanation of the competitive injury to the submitting person which would result from public disclosure;

(6)when such information might lose its confidential character due to the passage of time; and

(7)why disclosure of the information would be contrary to the public interest. B. Issues on Which DOE Seeks Comment DOE is interested in receiving comments on all aspects of this NODA. DOE especially invites comments or data to improve DOE's analysis, including data or information that will respond to the following questions or concerns: 1. DOE surveyed the AHRI Directory of Certified Product Performance and did not identify any water-cooled and evaporatively-cooled commercial packaged air conditioners on the market with a cooling capacity at or above 240,000 Btu/h. Therefore, DOE did not perform a potential energy-savings analysis on this equipment type. DOE seeks comments from interested parties on the market for and energy-savings potential of water-cooled and evaporatively-cooled commercial package air conditioners and heat pumps with a cooling capacity at or above 240,000 Btu/h. 2. DOE seeks input on the base-case distribution of efficiencies and its prediction of how amended energy conservation standards would affect the distribution of efficiencies in the standards case. DOE used the distribution of models in the 2008 I=B=R directory as the basis for analysis. 3. DOE seeks input on the base-case distribution of capacities and its prediction of how amended energy conservation standards will affect the distribution of capacities in the standards case. DOE used the distribution of models in the 2008 I=B=R directory as the basis for analysis. Issued in Washington, DC, on July 9, 2008. Alexander A. Karsner, Assistant Secretary, Energy Efficiency and Renewable Energy. [FR Doc. E8-16256 Filed 7-15-08; 8:45 am] BILLING CODE 6450-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-156779-06] RIN 1545-BG27 Determining the Amount of Taxes Paid for Purposes of Section 901 AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking by cross-reference to temporary regulations and notice of public hearing SUMMARY: In the Rules and Regulations section in this issue of the **Federal Register** , the IRS is issuing temporary regulations that provide guidance relating to the determination of the amount of taxes paid for purposes of the foreign tax credit. The regulations affect taxpayers that claim direct and indirect foreign tax credits. The text of those temporary regulations also serves as the text of these proposed regulations. This document also provides notice of a public hearing on these proposed regulations. DATES: Written or electronic comments must be received by October 14, 2008. Outlines of topics to be discussed at the public hearing scheduled for December 11, 2008, at 10 a.m. must be received by November 20, 2008. ADDRESSES: Send submissions to CC:PA:LPD:PR (REG-156779-06), room 5203, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-156779-06), Courier's desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC 20224, or sent electronically via the Federal eRulemaking Portal at *www.regulations.gov* (IRS REG-156779-06). The public hearing will be held in the Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Concerning the regulations, Michael I. Gilman,

(202)622-3850; concerning submissions of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Regina Johnson,

(202)622-7180 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background and Explanation of Provisions Temporary regulations in the Rules and Regulations section of this issue of the **Federal Register** contain amendments to the Income Tax Regulations (26 CFR Part 1) which provide rules relating to the determination of the amount of taxes paid for purposes of the foreign tax credit. The text of those regulations also serves as the text of these proposed regulations. The preamble to the temporary regulations explains the temporary regulations and these proposed regulations. The regulations affect individuals and corporations claiming foreign tax credits. Special Analyses It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6), does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses. Comments and Public Hearing Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight

(8)copies) or electronic comments that are submitted timely to the IRS. In particular, the IRS and Treasury Department continue to study arrangements in which the foreign payments attributable to income of a special purpose vehicle

(SPV)do not substantially exceed the foreign taxes that would have been paid by a controlled foreign corporation that owns the SPV in the absence of the arrangement. The IRS and Treasury Department seek additional comments on how to overcome the administrative challenges of determining the amount of foreign taxes that would have been paid but for such arrangement. The IRS and Treasury Department also request comments on whether the regulations should contain additional guidance on the extent to which activities are conducted by an entity's employees or on the treatment of employees of affiliates that are seconded to, or supervised by employees of, the tested entity. Finally, the IRS and Treasury Department request comments on the clarity of the proposed regulations and how they can be made easier to understand. All comments will be available for public inspection and copying. A public hearing has been scheduled for December 11, 2008, at 10 a.m. in the Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble. The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments must submit electronic or written comments by October 14, 2008, and an outline of the topics to be discussed and time to be devoted to each topic (a signed original and eight

(8)copies) by November 20, 2008. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing. Drafting Information The principal author of these regulations is Michael I. Gilman, Office of Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in their development. List of Subjects in 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. Proposed Amendments to the Regulations Accordingly, 26 CFR part 1 is proposed to be amended as follows: PART 1—INCOME TAXES **Paragraph 1.** The authority citation for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * **Par. 2.** Section 1.901-1 is amended by revising paragraphs

(a)and

(b)to read as follows: § 1.901-1 Allowance of credit for taxes.

(a)and

(b)[The text of proposed § 1.901-2(a) and

(b)is the same as the text of § 1.901-1T(a) and

(b)published elsewhere in this issue of the **Federal Register** .] **Par 3.** Section 1.901-2 is amended by revising paragraphs (e)(5)(iii), (e)(5)(iv), and (h)(2) to read as follows: § 1.901-2 Income, war profits, or excess profits tax paid or accrued.

(e)* * *

(5)* * *

(iii)and

(iv)[The text of proposed § 1.901-2(e)(5)(iii) and

(iv)is the same as the text of § 1.901-2T(e)(5)(iii) and

(iv)published elsewhere in this issue of the **Federal Register** .]

(h)* * *

(2)[The text of proposed § 1.901-2(h)(2) is the same as the text of § 1.901-2T(h)(2) published elsewhere in this issue of the **Federal Register** .] Linda E. Stiff, Deputy Commissioner for Services and Enforcement. [FR Doc. E8-16331 Filed 7-15-08; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-101258-08] RIN 1545-BH66 Guidance Under Sections 642 and 643 (Income Ordering Rules); Correction AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Correction to notice of proposed rulemaking. SUMMARY: This document contains corrections to a notice of proposed rulemaking (REG-101258-08) that was published in the **Federal Register** on Wednesday, June 18, 2008 (73 FR 34670) providing guidance under Internal Revenue Code section 642(c) with regard to the Federal tax consequences of an ordering provision in a trust, a will, or a provision of local law that attempts to determine the tax character of the amounts paid to a charitable beneficiary of the trust or estate. The proposed regulations also make conforming amendments to the regulations under section 643(a)(5). The proposed regulations affect estates, charitable lead trusts

(CLTs)and other trusts making payments or permanently setting aside amounts for a charitable purpose. FOR FURTHER INFORMATION CONTACT: Vishal Amin at

(202)622-3060 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background The correction notice that is the subject of this document is under sections 642 and 643 of the Internal Revenue Code. Need for Correction As published, the notice of proposed rulemaking (REG-101258-08) contains errors that may prove to be misleading and are in need of clarification. Correction of Publication Accordingly, the publication of the notice of proposed rulemaking (REG-101258-08), which was the subject of FR Doc. E8-13611, is corrected as follows: 1. On page 34671, column 1, in the preamble, under the paragraph heading “Explanation of Provisions”, first paragraph, line 19, the language “proposed regulation will amend the” is corrected to read “proposed regulations will amend the”. 2. On page 34671, column 2, in the preamble, under the paragraph heading “Explanation of Provisions”, first paragraph of the column, line 3, the language “unrelated business tax income and tax-” is corrected to read “unrelated business taxable income and tax-”. 3. On page 34671, column 2, in the preamble, under the paragraph heading “Explanation of Provisions”, first paragraph of the column, line 22, the language “independent of the income tax” is corrected to read “independent of income tax”. § 1.642(c)-3 [Corrected] 4. On page 34672, column 1, § 1.642(c)-3, paragraph 2., first entry of the amendatory instructions, the language “Revising the paragraph heading of paragraph

(b)and add a heading to paragraph (b)(1).” is corrected to read “Revising the paragraph heading of paragraph

(b)and adding a heading to paragraph (b)(1).”. LaNita Van Dyke, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel, (Procedure and Administration). [FR Doc. E8-16178 Filed 7-15-08; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 54 [REG-120476-07] RIN 1545-BG71 Employer Comparable Contributions to Health Savings Accounts Under Section 4980G, and Requirement of Return for Filing of the Excise Tax Under Section 4980B, 4980D, 4980E or 4980G AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking and notice of public hearing. SUMMARY: This document contains proposed regulations providing guidance on employer comparable contributions to Health Savings Accounts

(HSAs)under section 4980G of the Internal Revenue Code

(Code)as amended by sections 302, 305 and 306 of the Tax Relief and Health Care Act of 2006 (the Act). The proposed regulations also provide guidance relating to the requirement of a return to accompany payment of the excise tax under section 4980B, 4980D, 4980E, or 4980G of the Code and the time for filing that return. These proposed regulations would affect employers that contribute to employees' HSAs and Archer MSAs, employers or employee organizations that sponsor a group health plan, and certain third parties such as insurance companies or HMOs or third-party administrators who are responsible for providing benefits under the plan. This document also provides notice of a public hearing on these proposed regulations. DATES: Written or electronic comments must be received by October 14, 2008. Outlines of topics to be discussed at the public hearing scheduled for October 30, 2008, at 10 a.m., must be received by October 13, 2008. ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-120476-07), Internal Revenue Service, room 5203, POB 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-120476-07), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC. Alternatively, taxpayers may submit comments electronically via the Federal eRulemaking Portal at *http://www.regulations.gov* (IRS REG-120476-07). The public hearing will be held in room 2116, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations as they relate to section 4980E or 4980G, Mireille Khoury at

(202)622-6080; concerning the proposed regulations as they relate to section 4980B or 4980D, Russ Weinheimer at

(202)622-6080; concerning submissions of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Richard Hurst at

(202)622-7180 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Paperwork Reduction Act The collections of information contained in this notice of proposed rulemaking have been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Comments on the collections of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:S Washington, DC 20224. Comments on the collection of information should be received by September 15, 2008. Comments are specifically requested concerning: Whether the proposed collections of information are necessary for the proper performance of the functions of the IRS, including whether the information will have practical utility; The accuracy of the estimated burden associated with the proposed collection of information; How the quality, utility, and clarity of the information to be collected may be enhanced; How the burden of complying with the proposed collection of information may be minimized, including through the application of automated collection techniques or other forms of information technology; and Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. The collections of information in these proposed regulations are in Q & A-11 in § 4980B-2, Q & A-1 in § 4980D-1, Q & A-1 in § 4980E-1, and Q & A-5 in § 4980G-1. These collections of information result from the requirement to file a return for the payment of the excise tax under section 4980B, 4980D, 4980E, or 4980G of the Code. The likely respondents are employers that contribute to employees' HSAs and Archer MSAs, employers or employee organizations that sponsor a group health plan, and certain third parties such as insurance companies or HMOs or third-party administrators who are responsible for providing benefits under the plan. Estimated total annual reporting burden: 2,500 hours. The estimated annual burden per respondent is 30 minutes. Estimated number of respondents: 5,000 The estimated frequency of responses per respondent is occasional, less than once per year. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103. Background This document contains proposed Pension Excise Tax Regulations (26 CFR part 54) under section 4980G of the Code, as amended by Sections 302 and 305 of the Tax Relief and Health Care Act of 2006 (the Act), under paragraph

(d)of section 4980G of the Code, as enacted by section 306 of the Act, and under Section 4980E of the Code. Section 1201 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (Modernization Act), Public Law 108-173 (117 Stat. 2066, 2003), added section 223 to the Code to permit eligible individuals to establish HSAs for taxable years beginning after December 31, 2003. Section 4980G was also added to the Code by the Modernization Act. Section 4980G(a) imposes an excise tax on the failure of an employer to make comparable contributions to the HSAs of its employees for a calendar year. Section 4980G(b) provides that rules and requirements similar to section 4980E (the comparability rules for Archer Medical Savings Accounts (Archer MSAs)) apply for purposes of section 4980G. Section 4980E(b) imposes an excise tax equal to 35% of the aggregate amount contributed by an employer to the Archer MSAs of employees during the calendar year if an employer fails to make comparable contributions to the Archer MSAs of its employees in a calendar year. Therefore, if the employer fails to make comparable contributions to the HSAs of its employees during a calendar year, an excise tax equal to 35% of the aggregate amount contributed by the employer to the HSAs of its employees during that calendar year is imposed on the employer. See sections 4980G(a) and

(b)and 4980E(b). See also Notice 2004-2 (2004-2 IRB 269), Q & A-32. On July 31, 2006, final regulations on comparability were published in the **Federal Register,** 72 FR 30501 (2007-26 IRB 1495), TD 9277. In addition, on April 17, 2008, final regulations were published in the **Federal Register,** 73 FR 20794 (2008-20 IRB 975), providing guidance on employer comparable contributions to HSAs in instances where an employee has not established an HSA by December 31st and in instances where an employer accelerates contributions for the calendar year for employees who have incurred qualified medical expenses. See § 601.601(d)(2). This document also contains proposed Pension Excise Tax Regulations (26 CFR part 54) under sections 4980B and 4980D of the Code. Under section 4980B of the Code, group health plans maintained by an employer with 20 or more employees must comply with continuation coverage requirements. If a plan does not satisfy these requirements, an excise tax is imposed of $100 per day per affected beneficiary. Final regulations under section 4980B have been published, including provisions concerning the excise tax, but no return filing requirement has previously been imposed. See § 54.4980B-2, Q & A-9 and Q & A-10. Moreover, under chapter 100 of the Code, group health plans must comply with various requirements, including limitations on preexisting condition exclusions, certification of creditable coverage, special enrollments, prohibitions against discrimination based on a health factor, parity in the annual and lifetime dollar limits placed on mental health benefits with those placed on medical/surgical benefits, and minimum hospital lengths of stay in connection with childbirth. If a plan does not satisfy any of these requirements under chapter 100, section 4980D imposes an excise tax of $100 per day per affected individual. Regulations interpreting the substantive requirements of chapter 100 have previously been published, but no regulations have been published concerning the excise tax under section 4980D. Explanation of Provisions Special Rule for Contributions to Nonhighly Compensated Employees New paragraph

(d)of section 4980G provides an exception to the comparability rules that allows, but does not require, employers to make larger contributions to the HSAs of nonhighly compensated employees than the employer makes to the HSAs of highly compensated employees. These proposed regulations interpret that requirement. Specifically, the proposed regulations, in § 54.4980G-4, provide that employer contributions to the HSAs of nonhighly compensated employees may be larger than employer contributions to the HSAs of highly compensated employees with comparable coverage during a period. Conversely, employer contributions to the HSAs of highly compensated employees may not exceed employer contributions to the HSAs of nonhighly compensated employees with comparable coverage during a period. The comparability rules still apply with respect to contributions to the HSAs of all nonhighly compensated employees who are comparable participating employees (eligible individuals who are in the same category of employees with the same category of high deductible health plan

(HDHP)coverage) and an employer must make comparable contributions to the HSA of each nonhighly compensated employee who is a comparable participating employee during the calendar year. Similarly, the comparability rules still apply with respect to contributions to the HSAs of all highly compensated employees who are comparable participating employees and an employer must make comparable contributions to the HSA of each highly compensated employee who is a comparable participating employee during the calendar year. Collectively bargained employees are disregarded for purposes of section 4980G, as are HSA contributions made through a cafeteria plan. For purposes of § 4980G(d), highly compensated employee is defined under section 414(q) and includes any employee who was

(1)a five-percent owner at any time during the year or the preceding year; or

(2)for the preceding year,

(A)had compensation from the employer in excess of $105,000 (for 2008, indexed for inflation) and

(B)if elected by the employer, was in the group consisting of the top 20 percent of employees when ranked based on compensation. Nonhighly compensated employees are employees that are not highly compensated employees. Maximum HSA Contribution Permitted for Employees Who Become Eligible Individuals Mid-Year Section 305 of the Act provides that individuals who are eligible individuals during the last month of the taxable year (that is, who, in the case of calendar year taxpayers, are eligible individuals on December 1 of the year) may make or have made on their behalf the maximum annual HSA contribution based on their HDHP coverage (self only or family) on that date. A portion of the contribution is included in income and subject to an additional 10 percent tax if the individual fails to remain an eligible individual for 12 months after the last month of the taxable year. See section 223(b)(8). Section 54.4980G-6 of the proposed regulations provides that the employer can contribute up to this maximum contribution on behalf of all employees who are eligible individuals during the last month of the taxable year, including employees who become eligible individuals after January 1st of the calendar year and eligible individuals who are hired after January 1st of the calendar year (both such classes of individuals are hereinafter referred to as “mid-year eligible individuals”). An employer who makes the maximum calendar year HSA contribution, or who contributes more than a pro-rata amount, on behalf of employees who are mid-year eligible individuals will not fail to satisfy comparability merely because some employees will have received more contributions on a monthly basis than employees who worked the entire calendar year. Employers are not required to make these greater than pro-rata contributions and may instead pro-rate contributions based on the number of months that an individual was both employed by the employer and an eligible individual. However, if an employer contributes more than the monthly pro-rata amount for the calendar year to the HSA of any employee who is a mid-year eligible individual, the employer must then contribute, on an equal and uniform basis, a greater than pro-rata amount to the HSAs of all comparable participating employees who are mid-year eligible individuals. Likewise, if the employer contributes the maximum annual contribution amount for the calendar year to the HSA of any employee who is a mid-year eligible individual, the employer must contribute that same amount to the HSAs of all comparable participating employees who are mid-year eligible individuals. Special Comparability Rules for Qualified HSA Distributions Section 302(a) of the Act provides for qualified HSA distributions. See section 106(e) and Notice 2007-22 (2007-10 IRB 670). See § 601.601(d)(2). A *qualified HSA distribution* is a direct distribution of an amount from a health flexible spending arrangement (health FSA) or a health reimbursement arrangement

(HRA)to an HSA. The distribution must not exceed the lesser of the balance in the health FSA or HRA on September 21, 2006, or as of the date of the distribution. Section 54.4980G-7 of the proposed regulations would provide that if an employer offers qualified HSA distributions to any employee who is an eligible individual covered under any HDHP, the employer must offer qualified HSA distributions to all employees who are eligible individuals covered under any HDHP. However, an employer that offers qualified HSA distributions only to employees who are eligible individuals covered under the employer's HDHP is not required to offer qualified HSA distributions to employees who are eligible individuals but are not covered under the employer's HDHP. Requirement of Return and Time for Filing of the Excise Tax Under Section 4980B, 4980D, 4980E or 4980G The regulations provide that persons who are liable for the excise tax under section 4980B, 4980D, 4980E, or 4980G are required to file a return on Form 8928, “Return of Certain Excise Taxes Under Chapter 43 of the Internal Revenue Code.” The excise tax under section 4980B, 4980D, 4980E or 4980G must be paid at the time prescribed for filing of the excise tax return (without extensions). With respect to the excise tax under section 4980B or 4980D for employers and third parties such as insurers or third party administrators, the return is due on or before the due date for filing the person's federal income tax return. An extension to file the person's income tax return does not extend the date for filing Form 8928. With respect to the excise tax under section 4980B or 4980D for multiemployer or specified multiple employer health plans, the return is due on or before the last day of the seventh month after the end of the plan year. Finally, with respect to the excise tax under section 4980E or 4980G for noncomparable contributions, the return is due on or before the 15th day of the fourth month following the calendar year in which the noncomparable contributions were made. Proposed Effective/Applicability Date The sections of these regulations that provide guidance on employer comparable contributions to HSAs under section 4980G are proposed to apply to employer contributions made on or after the first day of the first calendar year after the final regulations are published in the **Federal Register.** However, taxpayers may rely on these regulations for guidance with respect to employer contributions made on or after January 1, 2007, and before the effective date of final regulations. The sections of these regulations that provide guidance relating to the excise tax under section 4980B, 4980D, 4980E and 4980G are proposed to be effective for calendar years (or plan years, where applicable) beginning after the date the final regulations are published in the **Federal Register.** Special Analyses It has been determined that these regulations are not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that the collection of information in these regulations will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact, as previously noted, the estimated burden associated with the information collection averages thirty minutes per respondent and the estimated number of respondents is 5000. Moreover, the burden imposed under the collection of information in these regulations arises only if there has been a failure that triggers liability for the excise tax under section 4980B, 4980D, 4980E, or 4980G of the Code. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. Pursuant to section 7805(f) of the Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. Comments and Public Hearing Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight

(8)copies) or electronic comments that are submitted timely to the IRS. The IRS and the Treasury Department request comments on the clarity of the proposed regulations and how they can be made easier to understand. All comments will be available for public inspection and copying. The public hearing has been scheduled for October 30, 2008, beginning at 10 a.m. in room 2116, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble. The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit written or electronic comments by October 14, 2008, and submit an outline of the topics to be discussed and the time to be devoted to each topic (a signed original and eight

(8)copies) by October 13, 2008. A period of 10 minutes will be allocated to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving comments has passed. Copies of the agenda will be available free of charge at the hearing. Drafting Information The principal author of these proposed regulations is Mireille Khoury, Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities), Internal Revenue Service. However, personnel from other offices of the IRS and Treasury Department participated in their development. List of Subjects in 26 CFR Part 54 Excise taxes, Pensions, Reporting and recordkeeping requirements. Proposed Amendment to the Regulations Accordingly, 26 CFR part 54 is proposed to be amended as follows: PART 54—PENSION EXCISE TAXES **Paragraph 1.** The authority citation for part 54 is amended by adding entries to the table to read in part as follows: Authority: 26 U.S.C. 7805 * * * Section 54.4980G-6 also issued under 26 U.S.C. 4980G. Section 54.4980G-7 also issued under 26 U.S.C. 4980G. * * * **Par. 2.** Section 54.4980B-0 is amended by adding a new Q-11 to § 54.4980B-2 in the list of questions to read as follows: § 54.4980B-0 Table of contents. List of Questions § 54.4980B-2 Plans that must comply. Q-11: If a person is liable for the excise tax under section 4980B, what form must the person file and what is the due date for the filing and payment of the excise tax? **Par. 3.** Section 54.4980B-2 is amended by adding a new Q & A-11 to read as follows: § 54.4980B-2 Plans that must comply. Q-11: If a person is liable for the excise tax under section 4980B, what form must the person file and what is the due date for the filing and payment of the excise tax? A-11:

(a)*In general.* Any person who is liable for the excise tax under section 4980B must report this tax by filing Form 8928, “Return of Certain Excise Taxes Under Chapter 43 of the Internal Revenue Code”, and the tax must be paid at the time prescribed for filing such return (without extensions). The return must include the information required by Form 8928 and the instructions issued with respect to it.

(b)*Due date for filing of return by employers or other persons responsible for benefits under a group health plan.* If the person liable for the excise tax is an employer or other person responsible for providing or administering benefits under a group health plan (such as an insurer or a third party administrator), the return must be filed on or before the due date for filing the person's income tax return and must reflect the portion of the noncompliance period for each failure under section 4980B that falls during the person's taxable year. An extension to file the person's income tax return does not extend the date for filing Form 8928.

(c)*Due date for filing of return by multiemployer plans.* If the person liable for the excise tax is a multiemployer plan, the return must be filed on or before the last day of the seventh month following the end of the plan's plan year. The filing of Form 8928 by a plan must reflect the portion of the noncompliance period for each failure under section 4980B that falls during the plan's plan year.

(d)*Effective/applicability date.* In the case of an employer or other person mentioned in paragraph

(b)of this Q & A-11, the rules in this Q & A-11 are effective for taxable years beginning after the date the final regulations are published in the **Federal Register** . In the case of a plan mentioned in paragraph

(c)of this Q & A-11, the rules in this Q & A-11 are effective for plan years beginning after the date the final regulations are published in the **Federal Register** . **Par. 4.** Section 54.4980D-1 is added to read as follows: § 54.4980D-1 Requirement of return and time for filing of the excise tax under section 4980D. Q-1: If a person is liable for the excise tax under section 4980D, what form must the person file and what is the due date for the filing and payment of the excise tax? A-1:

(a)*In general.* Any person who is liable for the excise tax under section 4980D must report this tax by filing Form 8928, “Return of Certain Excise Taxes Under Chapter 43 of the Internal Revenue Code”, and the tax must be paid at the time prescribed for filing such return (without extensions). The return must include the information required by Form 8928 and the instructions issued with respect to it.

(b)*Due date for filing of return by employers.* If the person liable for the excise tax is an employer, the return must be filed on or before the due date for filing the employer's income tax return and must reflect the portion of the noncompliance period for each failure under chapter 100 that falls during the employer's taxable year. An extension to file the employer's income tax return does not extend the date for filing Form 8928.

(c)*Due date for filing of return by multiemployer plans or multiple employer health plans.* If the person liable for the excise tax is a multiemployer plan or a specified multiple employer health plan, the return must be filed on or before the last day of the seventh month following the end of the plan's plan year. The filing of Form 8928 by a plan must reflect the portion of the noncompliance period for each failure under chapter 100 that falls during the plan's plan year.

(d)*Effective/applicability date.* In the case of an employer or other person mentioned in paragraph

(b)of this Q & A-1, the rules in this Q & A-1 are effective for taxable years beginning after the date the final regulations are published in the **Federal Register** . In the case of a plan mentioned in paragraph

(c)of this Q & A-1, the rules in this Q & A-1 are effective for plan years beginning after the date the final regulations are published in the **Federal Register** . **Par. 5.** Section 54.4980E-1 is added to read as follows: § 54.4980E-1 Requirement of return and time for filing of the excise tax under section 4980E. Q-1: If a person is liable for the excise tax under section 4980E, what form must the person file and what is the due date for the filing and payment of the excise tax? A-1:

(a)*In general.* Any employer who is liable for the excise tax under section 4980E must report this tax by filing Form 8928, “Return of Certain Excise Taxes Under Chapter 43 of the Internal Revenue Code”, on or before the 15th day of the fourth month following the calendar year in which the noncomparable contributions were made. The tax must be paid at the time prescribed for filing such return (without extensions), and the return must include the information required by Form 8928 and the instructions issued with respect to it.

(b)*Effective/applicability date.* The rules in this Q & A-1 are effective for plan years beginning after the date the final regulations are published in the **Federal Register** . **Par. 6.** Section 54.4980G-1 is amended by: 1. Revising the last sentence in A-1 and adding a new sentence at the end of paragraph

(a)in A-2. 2. Adding a new Q & A-5. The revisions and addition read as follows: § 54.4980G-1 Failure of employer to make comparable health savings account contributions. A-1: * * * But see Q & A-6 in § 54.4980G-3 for treatment of collectively bargained employees and Q & A-1 in § 54.4980G-6 for the rules allowing larger comparable contributions to nonhighly compensated employees. A-2:

(a)* * * See also § 54.4980G-6 for the rules allowing larger comparable contributions to nonhighly compensated employees. Q-5: If a person is liable for the excise tax under section 4980G, what form must the person file and what is the due date for the filing and payment of the excise tax? A-5:

(b)*Effective/applicability date.* The rules in this Q & A-5 are effective for plan years beginning after the date the final regulations are published in the **Federal Register** . **Par. 7.** Section 54.4980G-3 is amended by: 1. Revising the introductory text in paragraph

(a)of A-5. 2. Adding a new sentence at the end of paragraph

(c)of A-5 and paragraph

(a)of A-9. The revision and additions read as follows: § 54.4980G-3 Failure of employer to make comparable health savings account contributions. A-5:

(a)*Categories.* The categories of employees for comparability testing are as follows (but see Q & A-6 of this section for the treatment of collectively bargained employees and Q & A-1 of § 54.4980G-6 for a special rule for contributions made to the HSAs of nonhighly compensated employees)—

(c)* * * But see § 54.4980G-6 for a special rule for contributions made to the HSAs of nonhighly compensated employees. A-9:

(a)* * * See § 54.4980G-6 for a special rule for contributions made to the HSAs of nonhighly compensated employees. **Par. 8.** Section 54.4980G-4 is amended by: 1. Adding a new sentence at the end of paragraph

(a)of A-1. 2. Adding paragraphs

(h)and

(i)to A-2. The additions read as follows: § 54.4980G-4 Calculating comparable contributions. A-1:

(a)* * * But see Q & A-1 of § 54.4980G-6 for a special rule for contributions made to the HSAs of nonhighly compensated employees. A-2: * * *

(h)*Maximum contribution permitted for all employees who are eligible individuals during the last month of the taxable year.* An employer may contribute up to the maximum annual contribution amount for the calendar year (based on the employees' HDHP coverage) to the HSAs of all employees who are eligible individuals during the last month of the taxable year, including employees who worked for the employer for less than the entire calendar year and employees who became eligible individuals after January 1st of the calendar year. For example, such contribution may be made on behalf of an eligible individual who is hired after January 1st or an employee who becomes an eligible individual after January 1st. Employers are not required to provide more than a pro-rata contribution based on the number of months that an individual was an eligible individual and employed by the employer during the year. However, if an employer contributes more than a pro-rata amount for the calendar year to the HSA of any eligible individual who is hired after January 1st of the calendar year or any employee who becomes an eligible individual any time after January 1st of the calendar year, the employer must contribute that same amount on an equal and uniform basis to the HSAs of all comparable participating employees (as defined in Q & A-1 in § 54.4980G-1) who are hired or become eligible individuals after January 1st of the calendar year. Likewise, if an employer contributes the maximum annual contribution amount for the calendar year to the HSA of any eligible individual who is hired after January 1st of the calendar year or any employee who becomes an eligible individual any time after January 1st of the calendar year, the employer must contribute the maximum annual contribution amount on an equal and uniform basis to the HSAs of all comparable participating employees (as defined in Q & A-1 in § 54.4980G-1) who are hired or become eligible individuals after January 1st of the calendar year. An employer who makes the maximum calendar year contribution or more than a pro-rata contribution to the HSAs of employees who become eligible individuals after the first day of the calendar year or eligible individuals who are hired after the first day of the calendar year will not fail to satisfy comparability merely because some employees will have received more contributions on a monthly basis than employees who worked the entire calendar year.

(i)*Examples.* The following examples illustrate the rules in paragraph

(h)in this Q & A-2. In the following examples, no contributions are made through a section 125 cafeteria plan and none of the employees are covered by a collective bargaining agreement. Example 1. On January 1, 2009, Employer Q contributes $1,000 for the calendar year to the HSAs of employees who are eligible individuals with family HDHP coverage. In mid-March of the same year, Employer Q hires Employee A, an eligible individual with family HDHP coverage. On April 1, 2009, Employer Q contributes $1,000 to the HSA of Employee A. In September of the same year, Employee B becomes an eligible individual with family HDHP coverage. On October 1, 2009, Employer G contributes $1,000 to the HSA of Employee B. Employer Q does not make any other contributions for the 2009 calendar year. Employer Q's contributions satisfy the comparability rules. Example 2. For the 2009 calendar year, Employer R only has two employees, Employee C and Employee D. Employee C, an eligible individual with family HDHP coverage, works for Employer R for the entire calendar year. Employee D, an eligible individual with family HDHP coverage works for Employer R from July 1st through December 31st. Employer R contributes $1,200 for the calendar year to the HSA of Employee C and $600 to the HSA of Employee D. Employer R does not make any other contributions for the 2009 calendar year. Employer R's contributions satisfy the comparability rules. **Par. 9.** Section 54.4980G-6 is added to read as follows: § 54.4980G-6 Special rule for contributions made to the HSAs of nonhighly compensated employees. Q-1: May an employer make larger contributions to the HSAs of nonhighly compensated employees than to the HSAs of highly compensated employees? A-1: Yes. Employers may make larger HSA contributions for nonhighly compensated employees who are comparable participating employees than for highly compensated employees who are comparable participating employees. See Q & A-1 in § 54.4980G-1 for the definition of comparable participating employee. For purposes of this section, highly compensated employee is defined under section 414(q). Nonhighly compensated employees are employees that are not highly compensated employees. The comparability rules continue to apply with respect to contributions to the HSAs of all nonhighly compensated employees. Employers must make comparable contributions for the calendar year to the HSA of each nonhighly compensated employee who is a comparable participating employee. Q-2: May an employer make larger contributions to the HSAs of highly compensated employees than to the HSAs of nonhighly compensated employees? A-2:

(a)*In general.* No. Employer contributions to HSAs for highly compensated employees who are comparable participating employees may not be larger than employer HSA contributions for nonhighly compensated employees who are comparable participating employees. The comparability rules continue to apply with respect to contributions to the HSAs of all highly compensated employees. Employers must make comparable contributions for the calendar year to the HSA of each highly compensated comparable participating employee. See Q & A-1 in § 54.4980G-1 for the definition of comparable participating employee.

(b)*Examples.* The following examples illustrate the rules in Q & A-1 and Q & A-2 of this section. No contributions are made through a section 125 cafeteria plan and none of the employees in the following examples are covered by a collective bargaining agreement. All of the employees in the following examples have the same HDHP deductible for the same category of coverage. Example 1. In 2009, Employer A contributes $1,000 for the calendar year to the HSA of each full-time nonhighly compensated employee who is an eligible individual with self-only HDHP coverage. Employer A makes no contribution to the HSA of any full-time highly compensated employee who is an eligible individual with self-only HDHP coverage. Employer A's HSA contributions for calendar year 2009 satisfy the comparability rules. Example 2. In 2009, Employer B contributes $2,000 for the calendar year to the HSA of each full-time nonhighly compensated employee who is an eligible individual with self-only HDHP coverage. Employer B also contributes $1,000 for the calendar year to the HSA of each full-time highly compensated employee who is an eligible individual with self-only HDHP coverage. Employer B's HSA contributions for calendar year 2009 satisfy the comparability rules. Example 3. In 2009, Employer C contributes $1,000 for the calendar year to the HSA of each full-time nonhighly compensated employee who is an eligible individual with self-only HDHP coverage. Employer C contributes $2,000 for the calendar year to the HSA of each full-time highly compensated employee who is an eligible individual with self-only HDHP coverage. Employer C's HSA contributions for calendar year 2009 do not satisfy the comparability rules. Example 4. In 2009, Employer D contributes $1,000 for the calendar year to the HSA of each full-time nonhighly compensated employee who is an eligible individual with self-only HDHP coverage. Employer D also contributes $1,000 to the HSA of each full-time highly compensated employee who is an eligible individual with self-only HDHP coverage. In addition, the employer contributes an additional $500 to the HSA of each nonhighly compensated employee who participates in a wellness program. The nonhighly compensated employees did not receive comparable contributions, and, therefore, Employer D's HSA contributions for calendar year 2009 do not satisfy the comparability rules. Example 5. In 2009, Employer E contributes $1,000 for the calendar year to the HSA of each full-time non-management nonhighly compensated employee who is an eligible individual with family HDHP coverage. Employer E also contributes $500 for the calendar year to the HSA of each full-time management nonhighly compensated employee who is an eligible individual with family HDHP coverage. The nonhighly compensated employees did not receive comparable contributions, and, therefore, Employer E's HSA contributions for calendar year 2009 do not satisfy the comparability rules. Q-3: May an employer make larger HSA contributions for employees with self plus two HDHP coverage than employees with self plus one HDHP coverage even if the employees with self plus two are all highly compensated employees and the employees with self plus one are all nonhighly compensated employees? A-3:

(a)Yes. Q & A-1 in § 54.4980G-4 provides that an employer's contribution with respect to the self plus two category of HDHP coverage may not be less than the contribution with respect to the self plus one category and the contribution with respect to the self plus three or more category may not be less than the contribution with respect to the self plus two category. Therefore, the comparability rules are not violated if an employer makes a larger HSA contribution for the self plus two category of HDHP coverage than to self plus one coverage, even if the employees with self plus two coverage are all highly compensated employees and the employees with self plus one coverage are all nonhighly compensated employees. Likewise, the comparability rules are not violated if an employer makes a larger HSA contribution for the self plus three category of HDHP coverage than to self plus two coverage, even if the employees with self plus three coverage are all highly compensated employees and the employees with self plus two coverage are all nonhighly compensated employees.

(b)*Example.* The following example illustrates the rules in paragraph

(a)of this Q & A-3. In the following examples, no contributions are made through a section 125 cafeteria plan and none of the employees are covered by a collective bargaining agreement. Example. In 2009, Employer F contributes $1,000 for the calendar year to the HSA of each full-time employee who is an eligible individual with self plus one HDHP coverage. Employer F contributes $1,500 for the calendar year to the HSA of each employee who is an eligible individual with self plus two HDHP coverage. The deductible for both the self plus one HDHP and the self plus two HDHP is $2,000. Employee A, an eligible individual, is a nonhighly compensated employee with self plus one coverage. Employee B, an eligible individual, is a highly compensated employee with self plus two coverage. For the 2009 calendar year, Employer F contributes $1,000 for to Employee A's HSA and $1,500 to Employee B's HSA. Employer F's HSA contributions satisfy the comparability rules. **Par. 10.** Section 54.4980G-7 is added to read as follows: § 54.4980G-7 Special comparability rules for qualified HSA distributions contributed to HSAs on or after December 20, 2006 and before January 1, 2012. Q-1: How do the comparability rules of section 4980G apply to qualified HSA distributions under section 106(e)(2)? A-1: The comparability rules of section 4980G do not apply to amounts contributed to employee HSAs through qualified HSA distributions. However, in order to satisfy the comparability rules, if an employer offers qualified HSA distributions, as defined in section 106(e)(2), to any employee who is an eligible individual covered under any HDHP, the employer must offer qualified HSA distributions to all employees who are eligible individuals covered under any HDHP. However, if an employer offers qualified HSA distributions only to employees who are eligible individuals covered under the employer's HDHP, the employer is not required to offer qualified HSA distributions to employees who are eligible individuals but are not covered under the employer's HDHP. Linda E. Stiff, Deputy Commissioner for Services and Enforcement. [FR Doc. E8-16175 Filed 7-15-08; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 301 [REG-121698-08] RIN 1545-BI00 Amendments to the Section 7216 Regulations—Disclosure or Use of Information by Preparers of Returns; Correction AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Correction to a notice of proposed rulemaking by cross-reference to temporary regulations. SUMMARY: This document contains a correction to a notice of proposed rulemaking by cross-reference to temporary regulations (REG-121698-08) that was published in the **Federal Register** on Wednesday, July 2, 2008 (73 FR 37910) providing updated guidance affecting tax return preparers regarding the disclosure of a taxpayer's social security number to a tax return preparer located outside of the United States in order to provide an exception allowing such disclosure with the taxpayer's consent in limited circumstances. FOR FURTHER INFORMATION CONTACT: Lawrence E. Mack,

(202)622-4940 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background The correction notice that is the subject of this document is under section 7216 of the Internal Revenue Code. Need for Correction As published, a notice of proposed rulemaking by cross-reference to temporary regulations (REG-121698-08) contains an error that may prove to be misleading and is in need of clarification. Correction of Publication Accordingly, the publication of a notice of proposed rulemaking by cross-reference to temporary regulations (REG-121698-08), which was the subject of FR Doc. E8-15047, is corrected as follows: On page 37911, column 2, in the preamble, under the paragraph heading “Comments and Public Hearing”, line 4 of the last paragraph, the language “must submit written comments on” is corrected to read “must submit written comments by”. LaNita Van Dyke, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel, (Procedure and Administration). [FR Doc. E8-16304 Filed 7-15-08; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 110 [Docket No. USCG-2008-0155] RIN 1625-AA01 Anchorage Regulations; Port of New York AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to decrease the size of Romer Shoal Anchorage Ground in Lower New York Bay. This action is necessary to facilitate safe navigation in the area and to provide safe and secure anchorages for vessels transiting this area. This proposal is intended to increase the safety for life and property for the Port of New York, improve the safety of anchored vessels, and provide for the overall safe and efficient flow of commercial vessels and commerce. DATES: Comments and related material must reach the Coast Guard on or before September 15, 2008. ADDRESSES: You may submit comments identified by Coast Guard docket number USCG-2008-0155 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods:

(1)Online: *http://www.regulations.gov* .

(2)Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

(3)Hand delivery: Room W12-140 on the Ground Floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

(4)Fax: 202-493-2251. FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed rule, call LCDR Michael McBrady, Chief, Waterways Management Division, 718-354-2353. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Public Participation and Request for Comments We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to *http://www.regulations.gov* and will include any personal information you have provided. We have an agreement with the Department of Transportation

(DOT)to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below. Submitting Comments If you submit a comment, please include the docket number for this rulemaking (USCG-2008-0155), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. Viewing Comments and Documents To view comments, as well as documents mentioned in this preamble as being available in the docket, go to *http://www.regulations.gov* at any time. Enter the docket number for this rulemaking (USCG-2008-0155) in the Search box, and click “Go >>.” You may also visit either the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; or the Waterways Management Division, Coast Guard Sector New York, 212 Coast Guard Drive, room 210, Staten Island, New York 10305, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Privacy Act Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477), or you may visit *http://DocketsInfo.dot.gov* . Public Meeting We do not now plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose The Sandy Hook Pilots Association through the New York/New Jersey Harbor Safety Committee has requested the Coast Guard reduce the size of federal anchorage ground 27(ii) near Romer Shoal located between Ambrose and Swash Channels. The proposed eastern boundary of anchorage ground 27(ii) would move the eastern boundary about 2,860 yards to the west (inshore). The revised anchorage ground would be bound by the following points: 40°28′28.9″ N, 073°56′46.0″ W; thence to 40°29′48.1″ N, 073°56′46.0″ W; thence to 40°31′23.2″ N, 074°00′51.0″ W; thence to 40°32′11.5″ N, 074°01′39.3″ W; thence to 40°32′12.4″ N, 074°02′04.6″ W; thence to 40°31′28.5″ N, 074°02′05.0″ W; thence to 40°30′14.2″ N, 074°00′05.0″ W; thence to the point of origin (NAD 83). Discussion of Proposed Rule The Sandy Hook Pilots have observed foreign flag vessels, inbound via the New York Traffic Separation Scheme (TSS), proceeding through the Precautionary Area and the charted pilot area, sometimes at unsafe speeds of up to 18 knots to anchor in the eastern portion of this anchorage ground. The anchorage ground with charted water depths of between 39-63 feet, has obstructions which have the potential to create a grounding situation to certain types of vessels attempting to anchor there. The Sandy Hook Pilots report that the majority of these foreign flag vessel masters lack the local knowledge required to move to this anchorage without pilot assist and language barriers make it difficult for the pilots to communicate the potential danger to their vessel. As stated, these ships are proceeding at greater speeds for longer periods of time since they are not embarking a pilot enroute this anchorage ground. This also creates hazardous conditions with other vessels slowing down to embark and disembark pilots in the adjacent offshore pilot area. Additionally, during periods of low visibility the presence of an anchored ship in this rarely used section of the anchorage may cause tight passing conditions between tugs and their tows and larger recreational vessels entering or departing the port. Moving the eastern boundary of this anchorage ground to the west will reduce vessel congestion in the area and enhance transit safety for vessels into and out of the Port of NY/NJ. Regulatory Evaluation This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. This finding is based on the fact that the proposed change conforms to the changing needs of commercial vessels and increasing commercial vessel traffic within the Port of NY/NJ. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit through the charted Pilot Area to anchor in the eastern end of anchorage ground 27(ii). This revised anchorage ground would not have a significant economic impact on a substantial number of small entities for the following reason: These vessels would still be able to anchor in the northeastern quadrant of the Precautionary Area as they have been for several years now while awaiting orders, dock space, or inshore anchorage for conducting lightering, bunkering, crew transfer, or other necessary vessel operations. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LCDR Michael McBrady at 718-354-2353. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is not likely to have a significant effect on the human environment. A preliminary “Environmental Analysis Check List” supporting this preliminary determination is available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. List of Subjects in 33 CFR Part 110 Anchorage grounds. Words of Issuance and Proposed Regulatory Text For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 110 as follows: PART 110—ANCHORAGE REGULATIONS 1. The authority citation for part 110 continues to read as follows: Authority: 33 U.S.C. 471, 1221 through 1236, 2030, 2035, 2071; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1. 2. Amend § 110.155, by revising paragraph (f)(2)(ii) to read as follows: § 110.155 Port of New York.

(f)* * *

(2)* * *

(ii)Romer Shoal. All waters bound by the following points: 40°28′28.9″ N, 073°56′46.0″ W; thence to 40°29′48.1″ N, 073°56′46.0″ W; thence to 40°31′23.2″ N, 074°00′ 51.0″ W; thence to 40°32′11.5″ N, 074°01′39.3″ W; thence to 40°32′12.4″ N, 074°02′04.6″ W; thence to 40°31′28.5″ N, 074°02′05.0″ W; thence to 40°30′14.2″ N, 074°00′05.0″ W; thence to the point of origin (NAD 83). Dated: May 7, 2008. Timothy V. Skuby, Captain, U.S. Coast Guard, Acting Commander, First Coast Guard District. [FR Doc. E8-16171 Filed 7-15-08; 8:45 am] BILLING CODE 4910-15-P ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD 36 CFR Parts 1190 and 1191 RIN 3014-AA22 Emergency Transportable Housing Advisory Committee AGENCY: Architectural and Transportation Barriers Compliance Board. ACTION: Notice of meeting. SUMMARY: The Architectural and Transportation Barriers Compliance Board (Access Board) has established an advisory committee to make recommendations for possible revisions to the Americans with Disabilities Act

(ADA)and Architectural Barriers Act

(ABA)Accessibility Guidelines to include provisions for emergency transportable housing. This notice announces the dates and times of upcoming committee conference calls. DATES: The conference calls are scheduled for July 24 and August 21, 2008. Both calls will begin at 10 a.m. and will conclude no later than 1 p.m. (Eastern time). ADDRESSES: Individuals can participate in the conference calls by dialing a teleconference number which will be posted on the Access Board's Web site at *http://www.access-board.gov/eth/.* FOR FURTHER INFORMATION CONTACT: Marsha Mazz, Office of Technical and Information Services, Architectural and Transportation Barriers Compliance Board, 1331 F Street, NW., Suite 1000, Washington, DC 20004-1111. Telephone number

(202)272-0020 (Voice);

(202)272-0082 (TTY). These are not toll-free numbers. E-mail address: *mazz@access-board.gov.* SUPPLEMENTARY INFORMATION: On August 23, 2007, the Architectural and Transportation Barriers Compliance Board (Access Board) established an advisory committee to make recommendations for possible revisions to the Americans with Disabilities Act

(ADA)and Architectural Barriers Act

(ABA)Accessibility Guidelines to include provisions for emergency transportable housing (72 FR 48251; August 23, 2007). The committee will hold conference calls on July 24 and August 21, 2008 (a call that was previously scheduled for July 28 has been cancelled) to discuss a variety of outstanding issues yet to be resolved. Information about the committee, and the agenda, instructions (including information on requesting captioning), and dial in telephone numbers for the conference calls are available at *http://www.access-board.gov/eth/.* The conference calls are open to the public and interested persons can dial in and communicate their views during a public comment period scheduled during each conference call. Participants may call in from any location of their choosing. To enable individuals who are Deaf or hard-of-hearing to participate, Federal Relay Conference Captioning

(RCC)services will be provided on request. Requests for RCC should be made no later than three

(3)business days in advance of each scheduled teleconference by contacting Marsha Mazz. Persons wishing to provide handouts or other written information to the committee are requested to provide them in an electronic format to Marsha Mazz preferably by e-mail so that alternate formats such as large print can be distributed to committee members. Lawrence W. Roffee, Executive Director. [FR Doc. E8-16312 Filed 7-15-08; 8:45 am] BILLING CODE 8150-01-P LIBRARY OF CONGRESS Copyright Office 37 CFR Part 201 and 255 [Docket No. RM 2000-7] Compulsory License for Making and Distributing Phonorecords, Including Digital Phonorecord Deliveries AGENCY: Copyright Office, Library of Congress. ACTION: Notice of Proposed Rulemaking. SUMMARY: The Copyright Office of the Library of Congress is proposing to amend its regulations to clarify the scope and application of the Section 115 compulsory license to make and distribute phonorecords of a musical work by means of digital phonorecord deliveries. DATES: Written comments must be received in the Office of the General Counsel of the Copyright Office no later than August 15, 2008. Reply comments must be received in the Office of the General Counsel of the Copyright Office no later than September 2, 2008. ADDRESSES: If hand delivered by a private party, an original and five copies of a comment or reply comment should be brought to the Library of Congress, U.S. Copyright Office, Room 401, 101 Independence Avenue, SE, Washington, DC 20559, between 8:30 a.m. and 5 p.m. The envelope should be addressed as follows: Office of the General Counsel, U.S. Copyright Office. If delivered by a commercial courier, an original and five copies of a comment or reply comment must be delivered to the Congressional Courier Acceptance Site (“CCAS”) located at 2nd and D Streets, NE, Washington, DC between 8:30 a.m. and 4 p.m. The envelope should be addressed as follows: Office of the General Counsel, U.S. Copyright Office, LM 403, James Madison Building, 101 Independence Avenue, SE, Washington, DC 20559. Please note that CCAS will not accept delivery by means of overnight delivery services such as Federal Express, United Parcel Service or DHL. If sent by mail (including overnight delivery using U.S. Postal Service Express Mail), an original and five copies of a comment or reply comment should be addressed to U.S. Copyright Office, Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024. FOR FURTHER INFORMATION CONTACT: Tanya M. Sandros, General Counsel, or Stephen Ruwe, Attorney Advisor, Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024. Telephone:

(202)707-8380. Telefax: (202)-707-8366. SUPPLEMENTARY INFORMATION: *Background.* The copyright laws of the United States grant certain rights to copyright owners for the protection of their works of authorship. Among these rights are the right to make, and to authorize others to make, a reproduction of the copyrighted work, and the right to distribute, and to authorize others to distribute, the copyrighted work. 17 U.S.C. 106(1) and (3). Both the reproduction right and the distribution right granted to a copyright owner inhere in all works of authorship and are, for the most part, exclusive rights. However, for nondramatic musical works, the exclusivity of the reproduction right and distribution right are limited by the nonexclusive compulsory license set forth in Section 115 of Title 17, which allows third parties to make and distribute phonorecords of nondramatic musical works. The Section 115 compulsory license can be invoked once a nondramatic musical work embodied in a phonorecord has been distributed “to the public in the United States under the authority of the copyright owner.” 17 U.S.C. 115(a)(1). Unless and until such an act occurs, the copyright owner’s reproduction and distribution rights remain exclusive, and the compulsory license does not apply. Once distribution has occurred, the license permits anyone to make and distribute phonorecords of the musical work provided that they comply with all of the terms and conditions of Section 115. It is important to note that the compulsory license only permits the making and distribution of phonorecords of a musical work, and does not permit the use of a sound recording created by someone else. The compulsory licensee must either assemble his own musicians, singers, recording engineers and equipment to make a cover recording or obtain permission to use a preexisting sound recording before making a phonorecord that includes that sound recording. One who obtains permission to use another’s sound recording is eligible to use the compulsory license to clear the rights for use of the musical work embodied in the sound recording. The compulsory license was the first statutory license in U.S. copyright law, having its origin in the 1909 Copyright Act. It operated successfully for many years, and it continued under the 1976 Copyright Act with some modifications. However, in 1995, Congress passed the Digital Performance Right in Sound Recordings Act (“DPSRA”), Pub. L. No. 104-39, 109 Stat. 336, which amended Sections 114 and 115 of Title 17 to take into account technological changes which enable digital transmissions of sound recordings on a large scale. With respect to Section 115, the DPSRA expanded the scope of the compulsory license to include the right to distribute or authorize the distribution of a phonorecord by means of a “digital phonorecord delivery.” 17 U.S.C. 115(c)(3)(A). For purposes of Section 115, a “digital phonorecord delivery,” is defined as “each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording, regardless of whether the digital transmission is also a public performance of the sound recording or any nondramatic musical work embodied therein. A digital phonorecord delivery does not result from a real-time, non-interactive subscription transmission of a sound recording where no reproduction of the sound recording or the musical work embodied therein is made from the inception of the transmission through to its receipt by the transmission recipient in order to make the sound recording audible.” 17 U.S.C. 115(d). As a result of the DPSRA, the Section 115 license applies to two kinds of disseminations of nondramatic musical works: 1) the traditional making and distribution of physical phonorecords; and 2) digital phonorecord deliveries, commonly referred to as DPDs. However, in including DPDs within Section 115, Congress directed that rates and terms for DPDs should distinguish between “(i) digital phonorecord deliveries where the reproduction or distribution of a phonorecord is incidental to the transmission which constitutes the digital phonorecord delivery, and

(ii)digital phonorecord deliveries in general.” 17 U.S.C. 115(c)(3)(D). This language has led to endless debates as to what constitutes an “incidental DPD.” As required by the DPSRA, in 1996 the Library of Congress initiated a Copyright Arbitration Royalty Panel (“CARP”) proceeding to adjust the royalty rates for DPDs and incidental DPDs. 61 FR 37213 (July 17, 1996). The parties to the proceeding avoided arbitration by reaching a settlement as to new rates for DPDs and the time periods for conducting future rate adjustment proceedings for DPDs. The parties could not reach agreement, however, on new rates for incidental DPDs because the representatives of both copyright owners and users of the Section 115 license could not agree as to what was, and what was not, an incidental DPD. The resolution of this impasse was to defer establishing rates for incidental DPDs until the next scheduled rate adjustment proceeding. The Librarian of Congress accepted the settlement agreement of the parties and adopted new regulations setting rates for DPDs and a timeframe for future rate adjustments. 64 FR 6221 (February 9, 1999). Section 255.5 of 37 CFR specified royalty rates for DPDs “in general,” while § 255.6 of the rules expressly deferred consideration of incidental DPDs. The time table for future rate adjustment proceedings for general DPDs and incidental DPDs was set forth in Section 255.7 and provided for proceedings at two-year intervals upon the filing of a petition by an interested party. The year 2000 was a window year for the filing of such petitions. In accordance with this timetable, the Copyright Office received on November 22, 2000, a pleading from the Recording Industry Association of America (“RIAA”) styled as a “Petition for Rulemaking and to Convene a Copyright Arbitration Royalty Panel If Necessary.” The RIAA petition asked the Office to conduct a rulemaking proceeding to address the issue of what types of digital transmissions of prerecorded music are general DPDs, and what types are incidental DPDs. Specifically, RIAA asked the Office to determine the status of two methods used to deliver music digitally, On-Demand Streams and Limited Downloads, and whether and to what extent they come within the scope of the Section 115 license. For purposes of the proposed rulemaking, RIAA characterized an “On-Demand Stream” as a “on-demand, real-time transmission using streaming technology such as Real Audio, which permits users to listen to the music they want when they want and as it is transmitted to them,” and a “Limited Download” as an “on-demand transmission of a time-limited or other use-limited (i.e. non-permanent) download to a local storage device (e.g. the hard drive of the user’s computer), using technology that causes the downloaded file to be available for listening only either during a limited time ( *e.g* . a time certain or a time tied to ongoing subscription payments) or for a limited number of times.” RIAA petition at 1. RIAA steadfastly maintained that a rulemaking is necessary to determine the status of these two types of digital music delivery systems because the record companies and music publishers could not agree how to categorize them for purposes of the Section 115 license. RIAA stated its opinion that On-Demand Streams are more in the nature of an incidental DPD, for which there are currently no established royalty rates, whereas music publishers have taken the position that On-Demand Streams include the making of a general DPD for which they are entitled to full compensation. Consequently, RIAA asked the Office to determine whether On-Demand Streams are incidental DPDs and, if they were, to convene a CARP to set rates for these incidental DPDs. With respect to Limited Downloads, RIAA suggested that they may be either

(1)incidental DPDs or

(2)more in the nature of record rentals, leases or lendings. The latter approach is based upon the provision in the Section 115 license which authorizes the maker of a phonorecord to rent, lease or lend it, provided that a royalty fee is paid. Specifically, the statute states: A compulsory license under this section includes the right of the maker of a phonorecord of a nondramatic musical work ... to distribute or authorize distribution of such phonorecord by rental, lease, or lending (or by acts or practices in the nature of rental, lease, or lending). In addition to any royalty payable under clause

(2)and chapter 8 of this title, a royalty shall be payable by the compulsory licensee for every act of distribution of a phonorecord by or in the nature of rental, lease, or lending, by or under the authority of the compulsory licensee. With respect to each nondramatic musical work embodied in the phonorecord, the royalty shall be a proportion of the revenue received by the compulsory licensee from every such act of distribution of the phonorecord under this clause equal to the proportion of the revenue received by the compulsory licensee from distribution of the phonorecord under clause

(2)that is payable by a compulsory licensee under that clause and under chapter 8. The Register of Copyrights shall issue regulations to carry out the purpose of this clause. 17 U.S.C. 115(c)(4). RIAA noted that the Copyright Office has yet to adopt such regulations. This provision was added to Section 115 in the Record Rental Amendment of 1984, Pub. L. No. 98-450, which also amended the first sale doctrine codified in section 109 to restrict the owner of a phonorecord from disposing of the phonorecord for direct or indirect commercial advantage by rental, lease or lending without authorization of the sound recording copyright owner. The legislative history of the amendment to Section 115 states that the amendment was made to emphasize “that the right of authorization accorded to copyright owners of recorded musical works under revised section 109(a) is subject to compulsory licensing under revised Section 115” and that it gives the copyright owner of a nondramatic musical work recorded under a compulsory license the right to a share of the royalties for rental received by a compulsory licensee (a record company) in proportion equal to that received for distribution under Section 115(c)(2). H.R. Rep. No. 98-987, at 5 (1984). The Office was to issue appropriate regulations relating to the royalty for rental, lease or lending “as and when necessary to carry out the purposes” of Section 115(c)(4). S. Rep. No. 98-162, at 9 (1983). Thus far, there has been no need to issue such regulations because the Office has been unaware of any activity by sound recording copyright owners engaging in or authorizing the rental, lease or lending of phonorecords. In summary, RIAA asserted that it is unclear whether the Section 115 license permits all of the reproductions necessary to make On-Demand Streams or Limited Downloads, and if it does, what royalty rates apply. Consequently, RIAA petitioned the Office to determine: 1) whether On-Demand Streams are incidental DPDs covered by the license; 2) whether the license includes the right to make server copies or other copies necessary to transmit On-Demand Streams and Limited Downloads; and 3) the royalty rate applicable to On-Demand Streams (if they are covered by the license) and Limited Downloads. Prior to publication of a notice of inquiry, the Office received unsolicited comments from Napster, Inc. (“Napster”), Digital Music Associates, Inc. (“DiMA”); and MP3.com, Inc. (“MP3”) in response to the RIAA petition. In its comments, Napster opposed the RIAA petition and urged the Copyright Office to defer resolution of the issues to Congress, which it contended is the appropriate forum for resolving the types of questions raised by the petition. On the other hand, MP3 supported the RIAA petition and urged the Office to conduct a rulemaking proceeding to determine whether copies made in the course of On-Demand Streams are incidental DPDs, and whether the copies made that are necessary to stream musical works are covered by the Section 115 license. In the event the Office concluded that the disputed reproductions are covered, it also asked the Library to convene a CARP to “determine the appropriate rate or rates (if any)” for incidental DPDs. Like RIAA and MP3, DiMA was especially concerned with the status of copies of musical works made in the course of streaming. In particular, DiMA noted that the status of temporary RAM buffer copies created in a user’s personal computer during audio streaming was raised at the November 29, 2000, Copyright Office/National Telecommunications and Information Administration hearing on the Section 104 study mandated by the Digital Millennium Copyright Act of 1998 (“DMCA”) and urged that consideration of the same issue in a rulemaking proceeding be done in such a way as not to prejudice the outcome of that study. Thus, DiMA indicated that either the issue should be resolved in the Section 104 study, or that the Office should conduct a separate rulemaking proceeding devoted solely to the issue. DiMA suggested, however, that the complexity of the issue counsels for legislative action rather than agency interpretation of the existing statute. Although a number of parties urged the Office not to take up the questions, the Copyright Office published a Notice of Inquiry on March 9, 2001, 66 FR 14099, to gather information on the issues raised in the petition. The Notice asked for comments from interested parties on the interpretation and application of the Section 115 compulsory license to certain digital music services, namely, Limited Downloads and On-Demand Streams. In response to the March 9, 2001, Notice of Inquiry, the Copyright Office received eight comments and ten reply comments. On December 14, 2001, the Office published a follow-up notice seeking comments on the March 9, 2001, Notice of Inquiry in light of an agreement negotiated by RIAA, National Music Publishers Association (“NMPA”) and Harry Fox Agency (“HFA”) concerning the interpretation and application of Section 115 to On-Demand Streams and Limited Downloads. Eight comments were submitted in response to that notice. Some of the comments are discussed below. Subsequently, Congress passed the Copyright Royalty and Distribution Reform Act of 2003. This Act altered the administrative structure for determining rates and terms for various compulsory licenses in Title 17. It established the Copyright Royalty Judges, who assumed authority for determining rates and terms for the statutory licenses, including the Section 115 license. *See* 17 U.S.C. chapter 8. Additional legislative activity took place with respect to reform of the Section 115 license, and for several years the Office’s rulemaking activities were placed on the back burner as prospects for legislative reform, which could more comprehensively and effectively address the issues, were explored. On March 11, 2004, the Subcommittee on Courts, the Internet and Intellectual Property of the House Committee on the Judiciary held a hearing on “Section 115 of the Copyright Act: In Need of an Update.” Shortly after that hearing, the chairman of the subcommittee asked the Register of Copyrights to meet with the interested parties to explore ways in which Section 115 could be modernized by means of legislation that would address, among other things, the issues raised in this rulemaking. The Register’s discussions with the parties made limited progress, and legislative options were again explored at a hearing of the subcommittee on June 21, 2005. The Subcommittee on Intellectual Property of the Senate Judiciary Committee also conducted a hearing on July 12, 2005. Following those hearings, interested parties continued to discuss legislative reform, leading to the introduction of the proposed Section 115 Reform Act (“SIRA”), H.R. 5553, in the 109th Congress, and a further hearing in the House subcommittee on May 16, 2006. SIRA would have amended Section 115 to make clear that the compulsory license for DPDs covers “the making and distribution of general and incidental digital phonorecord deliveries in the form of full downloads, limited downloads, interactive streams, and any other form constituting a digital phonorecord delivery or hybrid offering” and that it covers “all reproduction and distribution rights necessary to engage in” those activities. H.R. 5553, Section 2. It also would have granted a royalty-free license “for the making of server and incidental reproductions to facilitate noninteractive streaming.” *Id.* Although SIRA was approved by the House Subcommittee on Courts, the Internet and Intellectual Property, the 109th Congress adjourned without further action on the bill. Since that time, there has been no further legislative action with respect to Section 115. Early in the current Congress, the House subcommittee once again explored reform of Section 115 at a March 22, 2007, hearing. However, no legislation has been introduced and no visible progress has been made on reform of the section in the 16 months since that hearing. Because of the lack of progress on legislative reform, the Office once again directed its attention to the possibility of regulatory reform a year ago. On June 15, 2007, the Copyright Office conducted a public roundtable to refresh the record in order to ascertain the scope of the Section 115 license in relation to certain digital music services. The roundtable participants expressed their analyses of the legal implication of current business models and offered insight regarding the technology employed in today’s marketplace. Over 20 representatives of organizations and companies representing copyright owners, songwriters, record companies, online music services and others participated in the roundtable. Their views will be discussed below. *Purpose of this proceeding* Having considered the views expressed at the June 15, 2007, roundtable as well as the previous record in this rulemaking proceeding, and mindful of the attempts to develop legislation that would reform Section 115, the Office now proposes to amend its regulations in a way that would enable digital music services to utilize the compulsory license to clear all reproduction and distribution rights in musical works that might be necessary in order to engage in activities such as the making of full downloads, Limited Downloads, On-Demand streams and non-interactive streams. 1 As discussed below, certain parties (including, for example, some digital music services) disputed whether it is necessary to obtain a license for the reproduction or distribution rights in order to engage in some of these activities, while other parties (such as music publishers) contended that it is necessary to clear the reproduction and distribution rights in order to engage in any of these activities lawfully. 2 1 The Office notes that the right to make and distribute a DPD does not include the exclusive rights to make and distribute the sound recording itself. These rights are held by the copyright owner of the sound recording and must be cleared through a separate transaction. *See* 17 U.S.C. 115(c)(3)(H). Certain transmission services, which operate under a Section 114(f) license to perform publically the sound recording, may operate under a separate statutory license to reproduce these sound recordings. *See* Section 112(e). However, a the right to distribute a sound recording is not included in the Section 112(e) license. 2 The position of the music publishers with respect to non-interactive streaming is somewhat ambiguous. Music publishers supported the provision in SIRA which would have offered a royalty-free compulsory license for the reproduction and distribution rights implicated in non-interactive streaming. The proposed regulatory changes take no position with respect to whether and when it is necessary to obtain a license to cover the reproduction or distribution of a musical work in order to engage in activities such as streaming. However, the amendments would make the use of the statutory license available to a music service that wishes to engage in such activity without fear of incurring liability for infringement of the reproduction or distribution rights. Nor would the proposed regulations preclude licensees from arguing to the Copyright Royalty Judges that the royalty fees for certain of the licensed activities should be nominal or even free. Copyright owners presumably would argue for a substantial royalty. The Copyright Royalty Judges have the authority, based on a review of the record and consideration of the objectives set forth in 17 U.S.C. 801(b)(1), to conclude that the reasonable royalty fee for certain reproductions included within the license would be a rate of zero or, on the other hand, that all reproductions and distributions of phonorecords included within the license should be subject to the same royalty fee. More specifically, the proposed regulations would allow the aforementioned services to employ the Section 115 license to cover all musical works embodied in phonorecords made and distributed to the public for private use including those phonorecords made on the end-users’ RAM or hard drive, on transmission service’s servers, and all intermediate reproductions on the networks through which transmission occurs. In reaching this tentative interpretation, the Office has considered the parties’ various interpretations of Section 115 which have evolved, as has ours, over the course of this proceeding. Moreover, the Office notes that both the continued legal uncertainty associated with operating music services in the current marketplace and the need to establish royalty rates for the statutory license highlight the need to resolve the outstanding questions concerning which reproductions of phonorecords made during the course of a stream falls within the scope of the statutory license and which, if any, do not. Such uncertainty has contributed to the current crisis in the music industry, due to the difficulty of obtaining licenses for all the rights required in order to offer various online music services in an environment in which it is not always apparent which rights must be cleared and how one can obtain them. While reasonable minds can differ on how to interpret Section 115 with respect to these reproductions, the Office proposes an approach which would support the making of all phonorecords made during the course of a transmission without regard to whether that transmission also involves the delivery of a public performance. With the publication of today’s notice, the Office seeks public comment on its proposed interpretation. *Regulatory Authority* As a preliminary matter, the Office requested comments on whether the questions raised in this proceeding could be addressed in an administrative rulemaking. While most of the commenters did not challenge the Office’s rulemaking authority in this proceeding, NMPA and Songwriter’s Guild of America (“SGA”) did suggest that the Office may be without authority to consider which phonorecords made during a digital transmission could be covered under a Section 115 license. NMPA and SGA argued that the Office has no authority to conduct a rulemaking to formulate a rule that would identify the general characteristics of an incidental DPD that distinguishes it from a general DPD. Moreover, NMPA contended that the Office has no authority to determine what types of activities, e.g., on-demand streams, constitute a DPD. It maintained that such determinations are so complex that they cannot be fixed by regulation and that such questions are best addressed by Congress through legislative changes or by the courts. NMPA also contended that rapid changes in technology would counsel against using a rulemaking proceeding to resolve these issues. The Consumer Electronics Association and Clear Channel Communications, Inc. (“CEA/Clear Channel”) supported NMPA’s position with respect to the Office’s authority to conduct this rulemaking and maintained that clarification of the law must come from Congress. *See also* Napster Reply Comment (arguing that Congress should balance the specific concerns of the interested parties and enact a legal regime that addresses their concerns). Other commenters, such as DiMA and RIAA, expressed support for the rulemaking process for the purpose of deciding which activities are covered under the Section 115 license in order to clarify those activities for which rates must be set. But RIAA wanted the rulemaking to accomplish considerably more than just clarifying whether certain activities fall within the scope of the license and asked the Office to adopt rules governing records of use, notice requirements, and rentals, lease and lendings. The Office is likely to address at least some of these issues in a separate proceeding, but not in the current one. The Office agrees that ideally, the resolution of the issues addressed herein should be made by Congress, and for that reason the Office has deferred moving forward in this rulemaking for several years. However, it seems unlikely that Congress will resolve these issues in the foreseeable future, yet the Office believes resolution is crucial in order for the music industry to survive in the 21st Century. The Copyright Office initiated this proceeding under its authority to establish regulations for the administration of its functions and duties under title 17. 17 U.S.C. 702. The Office exercises its authority under section 702 when it is necessary “to interpret the statute in accordance with Congress’ intentions and framework and, where Congress is silent, to provide reasonable and permissible interpretations of the statute.” Cable Compulsory License; Definition of Cable System, 57 FR 3284, 3292 (January 29, 1992); *see also* Satellite Carrier Compulsory License; Definition of Unserved Household, 63 FR 3685, 3686 (January 26, 1998) (invoking section 702 authority to determine whether a local over-the-air broadcast signal may be retransmitted into the local market area under the provisions of the section 119 statutory license). Our authority to act is supported by *Satellite Broadcasting and Communications Ass’n of Am. v. Oman* , 17 F.3d 344 (11th Cir. 1994) (“SBCA”), and *Cablevision Sys. Dev. Co. v. Motion Picture Ass’n of Am., Inc.* , 836 F.2d 599 (D.C. Cir.), *cert. denied* , 487 U.S. 1235

(1988)(“Cablevision”), where the Eleventh Circuit and the D.C. Circuit expressly acknowledged the Office’s authority to provide reasonable interpretations of the cable statutory license. *See* SBCA, 17 F.3d at 347 (“The Copyright Office is a federal agency with authority to promulgate rules concerning the meaning and application of section 111”); *Cablevision,* 836 F.2d at 608-09 (same). Section 115 gives the Register authority to administer the compulsory license insofar as the Register is to prescribe by regulation requirements for the compulsory licensee’s Notice of Intention to Obtain a Compulsory License, 17 U.S.C. 115(b)(1), and to issue regulations establishing requirements for the payment of royalties and governing statements of account submitted by compulsory licensees. 17 U.S.C. 115(c)(5). Moreover, the issues raised in this rulemaking are issues that will necessarily be resolved in the pending proceeding to determine rates and terms for the Section 115 compulsory license, Docket No. 2006-3 CRB DPRA. It will be the responsibility of the Register of Copyrights to review and, if necessary, correct the final determination of the Copyright Royalty Judges on material questions of substantive law, such as the questions addressed herein. 17 U.S.C. 802(f)(1)(D). *See also* 17 U.S.C. 802(f)(1)(B) (mandatory referral of novel material questions of substantive law to the Register of Copyrights). Because these issues will ultimately be presented to the Register for final administrative determination, it makes sense for the Register to offer guidance on those issues at this point in this ongoing rulemaking proceeding. *The scope of the Section 115 license* As a starting point, the parties offered a number of observations about the scope of the Section 115 license and Congress’s intent in amending it to include DPDs. In comments early in the proceeding, some commenters maintained that Congress amended Section 115 in 1995 merely to adapt the license to a digital distribution process and that the changes made to Section 115 did not expand or alter the reproduction and distribution rights, or blur existing lines between these rights and the copyright owner’s exclusive right to perform the musical work. DiMA and others also argued that streaming does not involve a digital download of a phonorecord because the process uses a temporary memory buffer to store packets of data that are not fixed for purposes of copyright law. DiMA also maintained that these temporary copies cannot be fairly characterized as DPDs because these copies are not “specifically identifiable reproductions,” as required by the statutory definition of a DPD. DiMA and others maintained that unless the reproduction is specifically recognizable to the transmission service that initiated the transmission, it does not comport with the statutory definition. 3 Finally, as a matter of policy, DiMA asserted that there is no economic justification for requiring payment for these intermediate copies because the copies are made to facilitate a licensed performance and are part of a single economic event. The National Association of Broadcasters (“NAB”) concurred, maintaining that “it would seem to turn the Section 115 license on its head if non-interactive streams required a license under Section 115, even though the recipient listens only once and does not end up with a reusable copy of the recording.” 3 By the time of the Roundtable DiMA accepted an alternative interpretation of the “specifically identifiable” requirement. *See* Infra, discussion of *Specifically identifiable* . Others took a different approach and asked the Office to focus on the purpose of the transmission. Some drew a distinction between subscription services and non-subcription services, arguing that in the case where the user cannot choose the song being played at a given time, and a permanent copy is not made, then the purpose of such a transmission is only to offer a performance. Alternatively, if the delivery of the song is interactive, in that the listener can choose to listen to a specific song at any time, the transmission of the song should be subject to the full mechanical rate because it replaces the need for the listener to buy a hard copy of the work. The Office recognizes that nearly all of the commenters have expressed some preference to distinguish different types of transmissions such as those made by Download Services, Limited Download Services, On-Demand/Interactive Streaming Services, and Non-interactive Streaming Services. The Office understands that distinctions relating to interactivity are appropriate in the context of the Section 114 license and that such distinctions may be appropriate to raise as a matter of economic value or policy before the CRJs - e.g., in setting rates - or Congress. However, distinctions such as these do not appear to be relevant in determining whether particular reproductions of phonorecords may be covered under the current Section 115 license, except perhaps under the last sentence of Section 115(d) which provides, “A digital phonorecord delivery does not result from a real-time, non-interactive subscription transmission of a sound recording where no reproduction of the sound recording or the musical work embodied therein is made from the inception of the transmission through to its receipt by the transmission recipient in order to make the sound recording audible.” 15 U.S.C. 115(d) (emphasis added). In the course of this proceeding, from the Notice of Inquiry through to the Office’s June 15, 2007, Roundtable discussion, no participant offered any evidence or argument that streaming music services, whether they be real-time non-interactive subscription transmission services or on-demand interactive services, are able to operate in a way in which no reproduction of the sound recording or the musical work embodied therein is made from the inception of the transmission through to its receipt by the transmission recipient. It appears that in the course of all stream transmissions buffer reproductions are made on the recipient’s device. In addition, in the course of at least some interactive stream transmissions, complete reproductions (as well as buffer reproductions) are made and distributed to the recipient. The Office considers whether these reproductions constitute phonorecords, or DPDs, in this Notice. Regardless of that analysis, the Office notes that they are in fact reproductions, making the last sentence of Section 115(d) (which excludes from the definition of DPDs certain non-interactive transmissions when no reproduction is made in the course of the transmission) inapplicable. Therefore, the Office, at this time, can discern no basis for distinguishing between interactive and non-interactive streams in determining whether a particular transmission does or does not result in a DPD and, therefore, it proposes to define a DPD without reference to the transmission types. We now offer the following analysis regarding whether and how the basic technical activities of reproducing digital copies during a digital transmission fall within the scope of the Section 115 license for making and distributing phonorecords. *Discussion* At the outset, the Office notes that there is general agreement that all transmission services involve the making of complete reproductions known as “Server Copies,” which the Office will refer to as “Server-end Complete Copies.” 4 The parties generally agree that certain transmission services, including Limited and Full Download Services, involve the making of complete reproductions on the recipient’s computer. These services may or may not limit a recipient’s use of a work. The Office will refer to these reproductions as “Recipient-end Complete Copies.” The parties also generally agree that all digital transmission services involve the making of reproductions known as “Buffer Copies.” 5 The Office understands that buffer copies are made on both the transmitting service’s server and on the recipient’s computer. The Office will refer to these reproductions as “Server-end Buffer Copies” and “Recipient-end Buffer Copies.” The Office notes, however, that recognition of the various types of reproductions made during the course of a digital transmission is only the first step in the analysis. 4 While we refer to these reproductions as types of “copies,” we acknowledge that parties disagree on the copyright implications of the reproductions, which are analyzed herein. 5 As discussed in greater detail herein, the Office understands that “buffer copies” are composed of packets of data that are deposited in temporary computer data storage, such as RAM, where these packets are assembled to an extent such that, while embodying less than the entire composition of a musical work, they constitute a material object from which sound recordings can be perceived, reproduced or otherwise communicated. A. Digital Phonorecord Deliveries, in general. In considering whether the reproductions made by a transmission service are digital phonorecord deliveries and fit within the scope of the Section 115 license, the Office turns to the definition of a DPD. 17 U.S.C. 115(d). The statute defines a DPD , in relevant part, as: “each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording, regardless of whether the digital transmission is also a public performance of the sound recording or any nondramatic musical work embodied therein. A digital phonorecord delivery does not result from a real-time, non-interactive subscription transmission of a sound recording where no reproduction of the sound recording or the musical work embodied therein is made from the inception of the transmission through to its receipt by the transmission recipient in order to make the sound recording audible.” 17 U.S.C. 115(d). In order for each type of reproduction identified above to qualify as a DPD under the statutory criteria, the reproduction must meet all the criteria specified in the definition:

(1)it must be delivered,

(2)it must be a phonorecord, and

(3)it must be specifically identifiable.

(1)*Delivery.* No party put forward any arguments that Server-end Copies are delivered as per the statutory requirement for a DPD. Indeed, the record indicates that Server-end Copies are retained by the transmission service. As such, the Office tentatively concludes that Server-end Complete Copies or Server-end Buffer Copies are not delivered and therefore do not satisfy the first requirement for being a DPD. 6 On the other hand, there is general agreement amongst the commenters that the reproductions created by transmission services on recipients’ computers are delivered. Despite the fact that several parties chose not to specifically consider whether buffer copies are delivered, this general agreement regarding delivery of recipient-end copies appears to include both Recipient-end Complete Copies as well as Recipient-end Buffer Copies. As such, the Office proposes that such copies are delivered and therefore satisfy the first requirement for being a DPD. 6 However, the fact that a server copy is not delivered does not necessarily place it outside the scope of the Section 115 license. *See* Infra discussion of Non-DPD copies under the Section 115 License.

(2)*Phonorecord.* In considering whether the reproductions made by a transmission service are phonorecords, the Office turns to the definition found in 17 U.S.C. 101. The statute defines phonorecords as: “material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘phonorecords’ includes the material object in which the sounds are first fixed.” 17 U.S.C. 101. The question though is whether each reproduction made during the course of a digital transmission meets this definition and thus satisfies the second prong of the statutory definition for a DPD. *a. Server-end Complete Reproductions.* There is general agreement among the commenters that a complete reproduction of a work created on a transmission service’s server satisfies the statutory definition of a phonorecord. It is a material object from which fixed sounds can be perceived. While DiMA puts forward the notion that Server-end Copies used to facilitate licensed public performances should be exempted from liability, its argument was based on economic and policy rationales. Furthermore, DiMA did not offer any legal analysis by which such a copy might, under existing law, be excluded from being considered a phonorecord. As such, the Office tentatively finds that a Server-end Complete Copy is a phonorecord and therefore satisfies the second (but, as noted above, not the first) requirement for being a DPD. *b. Recipient-end Complete Reproductions* . Likewise, the parties generally agree that the creation of a complete reproduction of a work on a recipient’s computer satisfies the statutory definition of a phonorecord. However, certain parties argued that a complete reproduction created on a recipient’s computer which is accessible for a limited time or number of plays should be distinguished as a matter of policy or for purposes of valuation. While policy reasons might exist for distinguishing such a limited download from a permanent reproduction, we can find no basis in the statute for considering a limited download to be something other than a phonorecord. Moreover, the fact that a limited download is a phonorecord does not in any way prevent the Copyright Royalty Judges from valuing it differently and setting a lower rate. As such, the Office proposes that a Recipient-end Complete Copy is a phonorecord and therefore satisfies the second requirement for being a DPD. *c. Buffer Reproductions* . The Office recognizes that several commenters dispute any finding that buffer copies made by transmission services on either the Server-end or Recipient-end fall within the statutory definition of a phonorecord. The positions advanced by these parties rely on the notion that buffer copies are not sufficiently fixed, that they are fragmentary, that they are temporary, or that they are de minimis. As previously indicated, in the Office’s consideration of these issues, it understands that buffer copies are composed of packets of data that are transmitted from one computer location to another temporary computer data storage, such as RAM, where they are assembled to an extent such that, while embodying less than the entire composition of a musical work, they constitute a material object from which sound recordings can be perceived, reproduced or otherwise communicated and, as such, are phonorecords for purposes of the copyright law. A finding that buffer copies created by transmission services on computer memory devices are phonorecords is also consistent with the legal analysis set forth in the Office’s DMCA Section 104 Report as well as subsequent rulings. The Section 104 Report correctly stated that RAM reproductions of copyrighted works are material objects. While allowing that certain RAM reproductions that exist only for a transitory duration may not exist as “fixed” copies, the Section 104 Report specifically pointed out that in general RAM copies are sufficiently fixed and noted that permanence is not required for fixation. Section 104 Report at 110-11. With regard to fixation, the Section 104 Report stated that the dividing line can be drawn between reproductions that exist for a sufficient period of time to be capable of being “perceived, reproduced, or otherwise communicated” and those that do not. DMCA Section 104 Report at 107-129 (August 29, 2001). The Report further noted that: To determine whether the reproduction right is implicated, the focus is on whether there has been a fixation in a material object, not on the quantity of material that has been so fixed. The reproduction right is not limited to copies of an entire work. Photocopying a page or paragraph out of an encyclopedia implicates the reproduction right and may, in appropriate circumstances, be an infringement. Whether or not a copy of a portion of a work is infringing is a question not of whether the reproduction right is implicated, but of whether the copying is substantial. *Id* at 123. The Office understands that individual RAM reproductions made on a recipient’s computer in the course of a transmission may, under various models, comprise small portions of copyrighted works. The Office also understands that NAB and DiMA challenged the extent to which such copies of small portions of works enjoy protection. Under their interpretation, the legislative history of DPSRA indicates that only the transmission and storage of an entire sound recording (and not fragments thereof) constitutes the making of a phonorecord. However, the Office understands that title 17’s language and purpose are broad and that portions of musical works should be treated the same as any other type of work. As stated in the Office’s Ringtone Decision, Section 115 “does not expressly exclude ‘portions of works’ from its scope and we cannot assume that such treatment was intended in the absence of clear statutory language to that effect.” *In the Matter of Mechanical and Digital Phonorecord Delivery Rate Adjustment Proceeding* , Docket No. RF 2006-1, at 13 (October 16, 2006). The Office’s consistent findings regarding fixation and coverage of fragments of works support a finding that buffer copies meet the statutory definition of phonorecords. Additionally, even if one were to assume that the individual portions of works created by a transmission service on a recipient’s RAM were not protectible, questions regarding the reproduction of a phonorecord would still not be settled. The Section 104 Report specifically addressed the matter, stating that “Even if each individual copy [the assemblage of several data packets] were to be considered a de minimis portion under the test for substantial similarity, the aggregate effect is the copying of the entire work.” DMCA Section 104 Report at 133. *See also, Twentieth Century Fox Film Corp. v. Cablevision Systems Corp.* , 478 F. Supp. 2d 607, 621 (2007), (creation of a buffer copy is “copying”). The Office has no reason to believe that developments in either technology or the law require us to revisit the above-stated conclusions. As such, Server-end Buffer Copies and Recipient-end Buffer Copies appear to be phonorecords and therefore satisfy the second requirement for being a DPD.

(3)*Specifically identifiable* . The Office recognizes that several parties argued that transmissions made by certain types of services should not be deemed to result in “specifically identifiable reproductions” within the meaning of the statutory definition of a DPD. More often than not, commenters’ views did not delve into legal analysis of this unique phrase and instead put forward arguments based on economic fairness. In addition, the Office notes that certain commenters’ interpretations of the phrase appear to have shifted over time. The Office therefore must determine whether and when a digital transmission results in a “specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording.” 7 7 The Office does not consider whether a server copy is specifically identifiable because, under the Office’s analysis the server copy is not delivered and therefore does not fall within the definition of DPD. As a result, we only consider if and when Recipient-end Buffer Copies and Recipient-end Complete Copies are “specifically identifiable.” Several commenters urged the Office to adopt an interpretation of “specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording” that would require that a reproduction be identifiable to the transmission service. To support this position, they cited to a passage from the legislative history of the DPSRA, which states “the phrase ‘specifically identifiable reproduction,’as used in the definition, should be understood to mean a reproduction specifically identifiable to the transmission service.” S. Rep. No. 104-128 at 44. Under this interpretation, DiMA argued that Recipient-end Buffer Copies and *certain* Recipient-end Complete Copies (referred to as “cache copies” which are complete copies that exist temporarily on a recipient’s computer to enable the recipient to hear the sound recording at substantially the same time as the transmission) are not specifically identifiable to the transmission service and therefore such copies do not satisfy the third requirement for being a DPD. At this point, it is unclear to the Office under what circumstances a service’s transmission may result in a reproduction that is specifically identifiable to the transmission service. The Office, therefore, seeks additional information regarding how the different transmission service models might result in Recipient-end Complete Copies or Recipient-end Buffer Copies that are specifically identifiable to the transmission service. Of course, identification of the reproduction by the transmission service is not the only option. By the time of the Roundtable discussion DiMA had altered its position and joined other parties in advancing an alternative interpretation of “specifically identifiable.” *Id* . at 62-63. The alternative interpretation does not look beyond the language of the statute itself. Instead, it focuses on the language of Section 115(d) and simply requires that a transmission of a sound recording result in a reproduction of a phonorecord that is either specifically identifiable by any transmission recipient or specifically identifiable *for* any transmission recipient. On the present record, the Office understands that reproductions of phonorecords appear to be “specifically identifiable” by both of these avenues. As to the first alternative, for the period of time during which each individual reproduction of a phonorecord exists on the recipient’s computer, the Office understands that the specific file data for Recipient-end Complete Copies and Recipient-end Buffer Copies can be identified by the transmission recipient. The Office recognizes that it may be rare for a recipient to actually search out and identify the relevant data, and it may not always be easy to identify it. However, the Office understands that such identification is able to be performed by the transmission recipient. Furthermore, the Office notes that it is not actual identification but the possibility of specifically identifying that satisfies the statutory requirement. The Office also understands that the recipient’s computer is necessarily able to specifically identify each individual reproduction of Recipient-end Complete Copies and Recipient-end Buffer Copies *for* the transmission recipient. The Office understands that such identification by the computer for the transmission recipient is a necessary step in the computer actually making the phonorecord perceptible to the transmission recipient. In other words, if a computer could not specifically identify each part of a stream, it would be unable to render the stream into a performance by assembling the parts in the proper order for performance. The statutory definition does not appear to require “identifiability” beyond that function. While the Office understands commenters’ desire to look to the legislative history (which states at one point that “the phrase ‘specifically identifiable reproduction,’ as used in the definition, should be understood to mean a reproduction specifically identifiable to the transmission service”) for the meaning of a phrase that is so unique in copyright law, the parties advocating that interpretation have made no concrete argument why there is any reason to look beyond the plain text of the statute. Therefore, the Office proposes to follow canons of statutory construction which dictate that “the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the law-making body which passed it, the sole function of the courts is to enforce it according to its terms.” *Caminetti v. United States* , 242 U.S. 470, 485 (1917). As such, the Office tentatively concludes that Recipient-end Complete Copies and Recipient-end Buffer Copies satisfy the requirement that a transmission of a sound recording must result in a reproduction of a phonorecord that is either “specifically identifiable *by* any transmission recipient” or “specifically identifiable for any transmission recipient” and therefore such copies satisfy the third requirement *for* being a DPD. The Office seeks comment on the above-stated analysis and proposals, which lead the Office to conclude that Recipient-end Complete Copies and Recipient-end Buffer Copies satisfy the definition for a DPD. 17 U.S.C. 115(d). B. Incidental DPDs. The Office recognizes commenters’ views that certain reproductions created by transmission services may be categorized as so-called incidental DPDs. Section 115 requires that rates and terms shall distinguish between general DPDs and incidental DPDs. However, the statute does not offer a definition of incidental DPDs. Indeed, the statute does not specifically refer to incidental DPDs; it simply directs the Copyright Royalty Judges to set rates that “distinguish between

(i)digital phonorecord deliveries where the reproduction or distribution of a phonorecord is incidental to the transmission which constitutes the digital phonorecord delivery, and

(ii)digital phonorecord deliveries in general.” The lack of a specific definition of incidental DPDs has created a great deal of confusion among those parties with an interest in the Section 115 license. Because these parties have been unable to agree upon what constitutes an incidental DPD, they have been unable to negotiate rates for the making and distribution of these reproductions. Moreover, amidst the disagreement over the meaning of incidental DPDs, the Office notes that the parties seem less interested in defining what constitutes an incidental DPD and more concerned about receiving clarification as to whether specific types of digital transmissions services fall within the scope of the statutory license. RIAA’s analysis began with the proposition that an incidental DPD is nothing more than a subset of DPDs. Along with other parties, RIAA encouraged the Office to interpret the meaning of incidental DPD in a rulemaking. NMPA, on the other hand, contended that it is not possible to define incidental DPDs through a definition of general application and suggested that the Office leave the matter to the industry to resolve these issues through negotiations or a rate setting proceeding. However, other parties, including DiMA, objected to the suggestion that the best approach is to leave the matter in the hands of the industry. In any event, the parties urging the Office to interpret the meaning of incidental DPD have not offered specific suggestions as to how the Office should define the term. Rather they offered conclusions as to which specific types of digital transmission *services* should be deemed to create reproductions that fall inside or outside the definition of incidental DPD. Support for these conclusions was made on policy or economic grounds. The few arguments that certain types of services do not create incidental DPDs were made largely in terms of whether reproductions satisfy the definition of DPDs in general, a matter which the Office has already addressed herein. Commenters also addressed the purpose of the transmission for purposes of characterizing a reproduction as incidental, drawing a distinction between services whose purpose is distribution and those whose purpose is public performance. As an initial matter, the Office is inclined to agree with the RIAA’s analysis that an incidental DPD is nothing more than a subset of DPDs. However, we can find little reason to accept the invitation to delineate the contours of that subset. Whether a DPD is “incidental” or “general,” it is subject to the compulsory license. Consequently, the Office questions whether the concept of incidental DPDs as set forth in the statute lends itself to further clarification in a regulation of general application. The Office observes that the legislative history of the DPSRA indicates that Congress recognized the likelihood of several different types of digital transmission systems. The Office also recognizes Congress’ indication that certain DPDs may be incidental to the *purpose* of the transmission. S. Rep. No. 104-128 at 39. However, the Office notes that, except for one discrete example of a type of service that would result in an incidental DPD, neither the statute nor the legislative history attempts to offer criteria for determining the purpose of a transmission. 8 8 “For example, if a transmission system was designed to allow transmission recipients to hear sound recordings substantially at the time of transmission, but the sound recording was transmitted in a high-speed burst of data and stored in a computer memory for prompt playback (such storage being technically the making of a phonorecord), and the transmission recipient could not retain the phonorecord for playback on subsequent occasions (or for any other purpose), delivering the phonorecord to the transmission recipient would be incidental to the transmission.” S. Rep. No. 104-128 at 39. The Office understands that neither the statute, the legislative history, nor the proposals submitted by commenters clearly propose any conclusive methods or criteria for determining the purpose of a transmission. Moreover, the only consequence of a determination that a digital phonorecord delivery is “incidental” is that a separate rate must be set for an incidental phonorecord delivery (although, in any event, it is inherent in the ratemaking provisions of Section 115 that several different rates may be set for various kinds of digital phonorecord deliveries). In setting rates, the Copyright Royalty Judges are to distinguish between general and incidental DPDs, and they have the authority to set different rates for different types of DPDs, depending on their analysis of the economics of the service and the other circumstances set forth in section 801(b)(1). The Office therefore proposes that any determination regarding the purpose of a transmission, upon which the determination of when a DPD is an incidental DPD appears to turn, should be made in the context of a factual inquiry before the CRJs, if such a determination proves to be relevant. 9 9 The Office also observes that nothing in the law prevents the CRJs from setting different rates for various kinds of incidental DPDs, or, for that matter, for various kinds of “general” DPDs. C. Non-DPD Copies Under the Section 115 License. RIAA and others acknowledged that certain copies made by transmission services, such as undelivered Server-end Copies, are not DPDs. 10 Such parties have urged the Office to consider whether these copies are covered by the Section 115 license. 10 The proposals put forward in this NPRM also conclude that Server-end copies are not DPDs. RIAA argued that delivery is not always required in order to operate under the Section 115 license and that delivery merely establishes the point at which copyright liability accrues. Thus, it opined that Section 115 covers all copies of a phonorecord made during a transmission, but that copyright liability attaches only upon the distribution of a DPD. Under such an approach, a service would incur liability only for those copies that are delivered and otherwise meet the requirements for DPDs. No obligation for payment would accrue for undelivered Server Copies. DiMA offered a similar approach in arguing that Server Copies are covered within the license, proposing that Server Copies are similar to professional manufacturing equipment used by vinyl record pressing plants or CD stamping facilities, for which no separate license is required. Other parties also argued that certain non-DPD copies are not infringing. Their argument was not that coverage for non-DPD copies comes from Section 115 but rather that such non-DPDs fall within the “fair use” doctrine. 11 11 That argument can also be made with respect to some DPDs. The Office well understands how the fair use doctrine might operate in this context. See Section 104 Report at 133-141. However, we note that the determination of fair use requires a case-specific analysis. Services that wish to rely on the fair use defense are free to do so, knowing that they may have to litigate the issue and that the outcome of such litigation is not necessarily clear. But whether or not such use is fair does not prevent the inclusion of such activity within the scope of the compulsory license. The Section 115 license can operate as a safe harbor for services that wish to use it without testing the question of whether their use is actually fair. Use of the license need not be deemed an admission that the licensed acts would otherwise be infringing. *A fortiori* , a regulation clarifying that all copies made in the course of or for the purpose of making a DPD are included within the Section 115 compulsory license should not be construed as an indication that all such copies would be infringing but for their inclusion within the scope of the license. The Office recognizes that the Section 115 license has traditionally provided coverage beyond those phonorecords made and distributed to the public for private use, so long as such phonorecords were used to achieve the primary purpose of making and distributing phonorecords under the Section 115 license. Indeed, when it enacted Section 115 in 1976, Congress stated that it intended the license to cover “every possible manufacturing or other process capable of reproducing a sound recording in phonorecords” 12 In fact, in the recording industry, the right to make master recordings that are used to make the phonorecords that are actually distributed has always been understood to be included in the Section 115 license. Thus, the Office tentatively concludes that Server-end Copies, as well as all other intermediate copies, used to create DPDs under the Section 115 license, perform an identical function in the world of digital phonorecord deliveries and, for the same reasons, fall within the scope of the license. Moreover, the Office notes that such copies are not distributed and, as a result, they do not entitle the owner to separate royalty payments. 17 U.S.C. 115(c)(1). 12 H. Rep. No. 94-1476, at 110. *See also* , The Copyright Act of 1976, Transitional and Supplementary Provisions, Sec. 106 (“...parts of instruments serving to reproduce phonorecords mechanically ... such parts made on or after January 1, 1978, constitute phonorecords.” *Threshold requirements for use of the Section 115 license* Under the above-stated proposals, the reproduction of Recipient-end Buffer Copies and certain Recipient-end Complete Copies created by Download Services, Limited Download Services, On-Demand/Interactive Streaming Services, and Non-interactive Streaming Services would satisfy the definition for DPDs. The question then arises whether these Services satisfy the threshold requirement for the Section 115 license. As expressed in Section 115(a)(1), “A person may obtain a compulsory license only if his or her primary purpose in making phonorecords is to distribute them to the public for private use, including by means of a digital phonorecord delivery.” The Office understands that digital phonorecord deliveries are, by the fact of their having been delivered, distributed within the meaning of the copyright law. This view is supported by the legislative history of the DPSRA which states that “the digital transmission of a sound recording that results in the reproduction by or for the transmission recipient of a phonorecord of that sound recording implicates the exclusive rights to reproduce and distribute the sound recording and the musical work embodied therein.” S. Rep. No. 104-128, at 27. The Office takes notice that some commenters have asserted that certain DPDs, known as “locked content” which may be encrypted, otherwise protected by digital rights management, or degraded so as not to substitute for the sale of a non-degraded recording, should not be considered distributed until the product is “unlocked.” The Office points out that under the proposed findings contained herein, all delivered DPDs are considered distributed regardless of such so-called “locks.” 13 Despite the presence of such technological protections, “locked content” appears to satisfy the requirements for being both phonorecords and DPDs. Of course, in a ratemaking proceeding a compelling case might be made that the royalties for such locked content should be significantly lower than for other DPDs or that no royalties shall be due for any DPD unless and until it is “unlocked.” 13 The Office understands that there may be other so-called “locked content” models which may involve the initial distribution of significant quantities of data to a recipient, yet such data may not satisfy the statutory requirements to be considered a phonorecord until subsequent distribution of the remaining essential data. In such cases, there would be no DPD until all of the required data has been delivered. Questions have also been raised as to whether reproductions which enable the recipient to hear the sound recording at substantially the same time as the transmission can be said to be for the primary purpose of facilitating private use of a phonorecord. It seems apparent that in the usual case, the recipient of a transmission of a phonorecord by an online service under any of the models discussed herein will be making a private use, even if that use is simply to hear the performance of the phonorecord contemporaneously with the transmission. Similarly, it appears that enabling the recipient to make such a private use is the services’ primary purpose in making phonorecords on the recipient’s device. Moreover, the Office notes that Congress intended the Section 115 license to cover DPDs “regardless of whether the digital transmission is also a public performance of the sound recording or any nondramatic musical work embodied therein.” 17 U.S.C. 115(d). *Rental, Lease or Lending.* In its initial petition, RIAA sought clarification on the question of whether a limited download should be considered to be in the nature of a rental, lease or lending. It has also asked the Office, in the event it determines a limited download to be in the nature of a rental, to clarify the interaction of section 109(b)(1)(A) of the Copyright Act, regarding the “first sale doctrine,” with Section 115(c)(4). The National Association of Recording Merchandisers and Video Software Dealers Association (“NARM/VSDA”) opposed the idea that a limited download could be treated as a rental, lease or lending. They maintained that once a consumer receives a copy of a work, that work becomes the property of the consumer and the consumer cannot be made to pay for the use or possession of one’s own property. Moreover, they asserted that a limited download cannot qualify as a rental because the recipient does not return anything at the end of the “rental period.” They viewed the transaction as substantially the same as the purchase of a CD in a store, even though the limited download transaction would by its very nature limit the use of the file for a period of time or a specified number of plays. The opposition stemmed from a concern that copyright owners would ultimately choose to limit a consumer’s choice to limited downloads only, thereby covertly asserting control over private performances by limiting a consumer’s right to control one’s own purchases. In the course of the roundtable discussion, the purpose of which was to refresh the record, the discussion turned to the question of whether a limited download may qualify as a rental, lease or lending. At that time, no participant advanced an argument that Download Services constituted a rental, lease or lending. This prompted the Register to specifically observe that “nobody today is supporting that it’s [a limited download is] a rental, lease, or lending.” Marybeth Peters, Register of Copyrights, Section 115 Roundtable Transcript, at 26. No participants at the roundtable, which included representatives from the recording industries and NARM, disputed this conclusion. Thus, the Office sees no reason to accept the invitation to consider limited downloads to be acts of rental, lease or lending under Section 115(c)(4) because, as is explained above, limited downloads easily fall into the definition of DPDs and within the scope of the compulsory license for DPDs. Therefore, the Office does not propose to issue a rule that considers limited downloads to be in the nature of a rental, lease or lending. *Issues outside the scope of this proceeding.* A number of commenters raised a variety of issues that fall outside of the scope of the current proceeding. For example, DiMA has articulated a number of revisions that it would like Congress to adopt, including provisions that would expressly exempt transient copies made during the course of an authorized digital performance of a sound recording and declare that server copies made to facilitate an authorized public performance have no independent economic value, but such matters are beyond the scope of the current proceeding. During the early stages of this rulemaking, some commenters proposed that the Office address additional issues. The Office considers those issues not addressed herein to be either moot due to the passage of time or peripheral, and does not propose to address them in its final rule. List of Subjects 37 CFR Part 201 Copyright, General provisions. 37 CFR Part 255 Compulsory license fees, Phonorecords. Proposed Regulations In consideration of the foregoing, the Copyright Office proposes to amend parts 201 and 255 of 37 CFR, as follows: PART 201—GENERAL PROVISIONS 1. The authority citation for part 201 continues to read as follows: Authority: 17 U.S.C. 702. 2. Amend § 201.18 as follows: a. By redesignating paragraphs (a)(2) through(a)(6) as (a)(4) through (a)(8); and b. By adding new paragraphs (a)(2) and (a)(3). The revisions to § 201.18 read as follows: § 201.18 Notice of intention to obtain a compulsory license for making and distributing phonorecords of nondramatic musical works.

(a)* * *

(2)A person is entitled to serve or file a Notice of Intention and thereby obtain a compulsory license pursuant to 17 U.S.C. 115 only if his primary purpose in making phonorecords is to distribute them to the public for private use, including by means of a digital phonorecord delivery.

(a)* * *

(3)For the purposes of this section, a “digital phonorecord delivery” is each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording, regardless of whether the digital transmission is also a public performance of the sound recording or any nondramatic musical work embodied therein. A reproduction is specifically identifiable if it can be identified by thetransmission recipient, or if a device receiving it can identify the reproduction for the transmission recipient, for purposes of rendering a performance of the sound recording. A digital phonorecord delivery includes a phonorecord that is made in the course of the transmission for the purpose of making the digital phonorecord delivery, so long as it is fixed for a sufficient period of time to be capable of being perceived, reproduced, or otherwise communicated. A digital phonorecord delivery also includes phonorecords which embody portions of a musical work so long as those portions are, individually or in the aggregate, sufficient to permit the recipient to render the sound recording which embodies the musical work. PART 255—ADJUSTMENT OF ROYALTY PAYMENTS UNDER COMPULSORY LICENSE FOR MAKING AND DISTRIBUTING PHONORECORDS 4. The authority citation for part 255 continues to read as follows: Authority: 17 U.S.C. 702. 5. Revise § 255.4 to read as follows: § 255.4 Definition of digital phonorecord delivery. A *“digital phonorecord delivery”* is each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording, regardless of whether the digital transmission is also a public performance of the sound recording or any nondramatic musical work embodied therein. A reproduction is specifically identifiable if it can be identified by the transmission recipient, or if a device receiving it can identify the reproduction for the transmission recipient, for purposes of rendering a performance of the sound recording. A digital phonorecord delivery includes a phonorecord that is made in the course of the transmission for the purpose of making the digital phonorecord delivery, so long as it is fixed for a sufficient period of time to be capable of being perceived, reproduced, or otherwise communicated. A digital phonorecord delivery also includes phonorecords which embody portions of a musical work so long as those portions are, individually or in the aggregate, sufficient to permit the recipient to render the sound recording which embodies the musical work. Dated: July 10, 2008 Marybeth Peters, Register of Copyrights [FR Doc. E8-16165 Filed 7-15-08; 8:45 am] BILLING CODE 1410-30-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2007-1105; FRL-8580-2] Revisions to the California State Implementation Plan, Mojave Desert Air Quality Management District and Ventura County Air Pollution Control District AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve revisions to the Mojave Desert Air Quality Management District and Ventura County Air Pollution Control District portions of the California State Implementation Plan (SIP). These revisions concern volatile organic compound

(VOC)emissions from marine coating operations and wood coating products. We are proposing to approve local rules to regulate these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act). DATES: Any comments on this proposal must arrive by August 15, 2008. ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-2007-1105, by one of the following methods: 1. *Federal eRulemaking Portal:* *www.regulations.gov.* Follow the on-line instructions. 2. *E-mail:* *steckel.andrew@epa.gov.* 3. *Mail or deliver:* Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. *Instructions:* All comments will be included in the public docket without change and may be made available online at *www.regulations.gov* , including any personal information provided, unless the comment includes Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through *www.regulations.gov* or e-mail. *www.regulations.gov* is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. 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:* The index to the docket for this action is available electronically at *www.regulations.gov* and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Cynthia G. Allen, EPA Region IX,

(415)947-4120, *allen.cynthia@epa.gov.* SUPPLEMENTARY INFORMATION: This proposal addresses the following local rules: MDAQMD Rule 1106 and VCAPCD Rule 74.30. In the Rules and Regulations section of this **Federal Register** , we are approving these local rules in a direct final action without prior proposal because we believe these SIP revisions are not controversial. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in subsequent action based on this proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment. We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action. Dated: June 3, 2008. Wayne Nastri, Regional Administrator, Region IX. [FR Doc. E8-16019 Filed 7-15-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R03-OAR-2007-0176; FRL-8693-2] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Redesignation of the Greene County 8-Hour Ozone Nonattainment Area to Attainment and Approval of the Maintenance Plan and 2002 Base-Year Inventory AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a redesignation request and State Implementation Plan

(SIP)revision submitted by the Commonwealth of Pennsylvania. The Pennsylvania Department of Environmental Protection (PADEP) is requesting that the Greene County 8-hour ozone nonattainment Area (referred to also as the “Greene County Area” or “Area”) be redesignated as attainment for the 8-hour ozone national ambient air quality standard (NAAQS). EPA is proposing to approve the ozone redesignation request for the Greene County Area. In conjunction with its redesignation request, the Commonwealth submitted a SIP revision consisting of a maintenance plan for the Greene County Area that provides for continued attainment of the 8-hour ozone NAAQS for at least 10 years after redesignation. EPA is proposing to make a determination that the Greene County Area has attained the 8-hour ozone NAAQS, based upon three years of complete, quality-assured ambient air quality monitoring data for 2003-2005. EPA's proposed approval of the 8-hour ozone redesignation request is based on its determination that the Greene County Area has met the criteria for redesignation to attainment specified in the Clean Air Act (CAA). In addition, the Commonwealth of Pennsylvania has also submitted a 2002 base-year inventory for the Greene County Area, and EPA is proposing to approve that inventory for the Area as a SIP revision. EPA is also providing information on the status of its adequacy determination for the motor vehicle emission budgets (MVEBs) that are identified in the maintenance plan for the Greene County Area for purposes of transportation conformity, and is proposing to approve those MVEBs. EPA is proposing approval of the redesignation request, the maintenance plan, and 2002 base-year inventory SIP revisions in accordance with the requirements of the CAA. DATES: Written comments must be received on or before August 15, 2008. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2007-0176 by one of the following methods: A. *www.regulations.gov.* Follow the on-line instructions for submitting comments. *B. E-mail:* *fernandez.cristina@epa.gov.* C. *Mail:* EPA-R03-OAR-2007-0606, Cristina Fernandez, Chief, Air Quality Planning Branch, Mailcode 3AP21, 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-2007-0176. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *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 *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 Pennsylvania Department of Environmental Protection Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105. FOR FURTHER INFORMATION CONTACT: Melissa Linden,

(215)814-2096, or by e-mail at *linden.melissa@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. Table of Contents I. What Are the Clean Air Actions EPA Is Proposing to Take? II. What Is the Background for These Proposed Actions? III. What Are the Criteria for Redesignation to Attainment? IV. Why Is EPA Taking These Actions? V. What Would Be the Effect of These Actions? VI. What Is EPA's Analysis of the Commonwealth's Request? VII. Are the Motor Vehicle Emissions Budgets Established and Identified in the Maintenance Plan for the Greene County Area Plan Adequate and Approvable? VIII. Proposed Actions IX. Statutory and Executive Order Reviews I. What Are the Clean Air Actions EPA Is Proposing To Take? On January 25, 2007, the PADEP formally submitted a request to redesignate the Greene County Area from nonattainment to attainment of the 8-hour NAAQS for ozone. Concurrently, Pennsylvania submitted a maintenance plan for the Greene County Area as a SIP revision to ensure continued attainment in the Area over the next 10 years. PADEP also submitted a 2002 base-year inventory for the Greene County Area as a SIP revision. On May 23, 2008, PADEP submitted a revision to the January 25, 2007 submittal to include an alternate methodology used to project the 2009 and 2018 nitrogen oxides (NO X ) emissions from stationary point sources. In addition, NO X emission projections from the January 25, 2007 submittal were changed to reflect the new methodology submitted in the May 23, 2008 revision. Greene County is currently designated a basic 8-hour ozone nonattainment area. EPA is proposing to determine that the Greene County Area has attained the 8-hour ozone NAAQS and that it has met the requirements for redesignation pursuant to section 107(d)(3)(E) of the CAA. EPA is, therefore, proposing to approve the redesignation request to change the designation of the Greene County Area from nonattainment to attainment for the 8-hour ozone NAAQS. EPA is also proposing to approve the Greene County maintenance plan as a SIP revision for the Area (such approval being one of the Act criteria for redesignation to attainment status). The maintenance plan is designed to ensure continued attainment in the Greene County Area for the next 10 years. EPA is also proposing to approve the 2002 base-year inventory for the Greene County Area as a SIP revision. Additionally, EPA is announcing its action on the adequacy process for the MVEBs identified in the Greene County maintenance plan, and proposing to approve the MVEBs identified for volatile organic compounds

(VOCs)and nitrogen oxides (NO X ) for the Area for transportation conformity purposes. II. What Is the Background for These Proposed Actions? A. General Ground-level ozone is not emitted directly by sources. Rather, emissions of Nitrogen Oxides (NO X ) and Volatile Organic Compounds

(VOC)react in the presence of sunlight to form ground-level ozone. The air pollutants NO X and VOC are referred to as precursors of ozone. The CAA establishes a process for air quality management through the attainment and maintenance of the NAAQS. On July 18, 1997, EPA promulgated a revised 8-hour ozone standard of 0.08 parts per million (ppm). This standard is more stringent than the previous 1-hour standard. EPA designated, as nonattainment, any area violating the 8-hour ozone NAAQS based on the air quality data for the three years of 2001-2003. These were the most recent three years of data at the time EPA designated 8-hour areas. The Greene County Area was designated a basic 8-hour ozone nonattainment area in a **Federal Register** notice signed on April 15, 2004 and published on April 30, 2004 (69 FR 23857), based on its exceedance of the 8-hour health-based standard for ozone during the years 2001-2003. On April 30, 2004, EPA issued a final rule (69 FR 23951, 23996) to revoke the 1-hour ozone NAAQS in the Greene County Area (as well as most other areas of the country), effective June 15, 2005. *See* 40 CFR 50.9(b); 69 FR at 23996 (April 30, 2004); 70 FR 44470 (August 3, 2005). However, on December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard. (69 FR 23951, April 30, 2004). *South Coast Air Quality Management Dist.* v. *EPA,* 472 F.3d 882 (DC Cir. 2006) (hereafter “South Coast”). On June 8, 2007, in *South Coast Air Quality Management Dist.* v. *EPA,* Docket No. 04-1201, in response to several petitions for rehearing, the DC Circuit clarified that the Phase 1 Rule was vacated only with regard to those parts of the rule that had been successfully challenged. Therefore, the Phase 1 Rule provisions related to classifications for areas currently classified under subpart 2 of Title I, part D of the Act as 8-hour nonattainment areas, the 8-hour attainment dates and the timing for emissions reductions needed for attainment of the 8-hour ozone NAAQS remain effective. The June 8 decision left intact the Court's rejection of EPA's reasons for implementing the 8-hour standard in certain nonattainment areas under Subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let stand EPA's revocation of the 1-hour standard and those anti-backsliding provisions of the Phase 1 Rule that had not been successfully challenged. The June 8 decision reaffirmed the December 22, 2006 decision that EPA had improperly failed to retain measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations:

(1)Nonattainment area New Source Review

(NSR)requirements based on an area's 1-hour nonattainment classification;

(2)Section 185 penalty fees for 1-hour severe or extreme nonattainment areas; and

(3)measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the Act, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS, or for failure to attain that NAAQS. In addition, the June 8 decision clarified that the Court's reference to conformity requirements for anti-backsliding purposes was limited to requiring the continued use of 1-hour motor vehicle emissions budgets until 8-hour budgets were available for 8-hour conformity determinations, which is already required under EPA's conformity regulations. The Court thus clarified that 1-hour conformity determinations are not required for anti-backsliding purposes. Elsewhere in this document, mainly in section VI. B. “The Greene County Area Has Met All Applicable Requirements Under Section 110 and part D of the Clean Air Act and has a Fully Approved SIP Under Section 110(k) of the Act”, EPA discusses its rationale why the decision in South Coast is not an impediment to redesignating the Greene County Area to attainment of the 8-hour ozone NAAQS. The CAA, title I, part D, contains two sets of provisions—subpart 1 and subpart 2—that address planning and control requirements for nonattainment areas. Subpart 1 (which EPA refers to as “basic” nonattainment) contains general, less prescriptive requirements for nonattainment areas for any pollutant—including ozone—governed by a NAAQS. Subpart 2 (which EPA refers to as “classified” nonattainment) provides more specific requirements for ozone nonattainment areas. In 2004, the Greene County Area was classified a basic 8-hour ozone nonattainment area based on air quality monitoring data from 2001-2003. Therefore, the Area is subject to the requirements of subpart 1 of part D. Under 40 CFR part 50, the 8-hour ozone standard is attained when the 3-year average of the annual fourth-highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.08 ppm ( *i.e.* , 0.084 ppm when rounding is considered). *See* 69 FR 23857 (April 30, 2004) for further information. Ambient air quality monitoring data for the 3-year period must meet data completeness requirements. The data completeness requirements are met when the average percent of days with valid ambient monitoring data is greater than 90 percent, and no single year has less than 75 percent data completeness as determined in Appendix I of 40 CFR part 50. The ozone monitoring data indicates that the Greene County Area has a design value of 0.081 ppm for the 3-year period of 2003-2005, using complete, quality-assured data. Therefore, the ambient ozone data for the Greene County Area indicates no violations of the 8-hour ozone standard. B. The Greene County Area Prior to its designation as an 8-hour ozone nonattainment area, the Greene County Area was an incomplete data 1-hour ozone nonattainment area. *See* 56 FR 56694 (November 6, 1991). On January 25, 2007, the PADEP requested that the Greene County Area be redesignated to attainment for the 8-hour ozone standard. The redesignation request included three years of complete, quality-assured data for the period of 2003-2005, indicating that the 8-hour NAAQS for ozone had been achieved in the Area. The data satisfies the CAA requirements that the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration (commonly referred to as the area's design value), must be less than or equal to 0.08 ppm ( *i.e.* , 0.084 ppm when rounding is considered). Under the CAA, a nonattainment area may be redesignated if sufficient complete, quality-assured data is available to determine that the area attained the standard and the area meets the redesignation requirements set forth in section 107(d)(3)(E) of the CAA. III. What Are the Criteria for Redesignation to Attainment? The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) allows for redesignation, providing that:

(1)EPA determines that the area has attained the applicable NAAQS;

(2)EPA has fully approved the applicable implementation plan for the area under section 110(k);

(3)EPA determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;

(4)EPA has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and

(5)The State containing such area has met all requirements applicable to the area under section 110 and part D. EPA provided guidance on redesignations in the General Preamble for the Implementation of Title I of the CAA, on April 16, 1992 (57 FR 13498), and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents: • “Ozone and Carbon Monoxide Design Value Calculations,” Memorandum from Bill Laxton, June 18, 1990; • “Maintenance Plans for Redesignation of Ozone and Carbon Monoxide Nonattainment Areas,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, April 30, 1992; • “Contingency Measures for Ozone and Carbon Monoxide

(CO)Redesignations,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, June 1, 1992; • “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992; • “State Implementation Plan

(SIP)Actions Submitted in Response to Clean Air Act

(Act)Deadlines,” Memorandum from John Calcagni Director, Air Quality Management Division, October 28, 1992; • “Technical Support Documents

(TSDs)for Redesignation Ozone and Carbon Monoxide

(CO)Nonattainment Areas,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993; • “State Implementation Plan

(SIP)Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide

(CO)National Ambient Air Quality Standards (NAAQS) on or after November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993; • Memorandum from D. Kent Berry, Acting Director, Air Quality Management Division, to Air Division Directors, Regions 1-10, “Use of Actual Emissions in Maintenance Demonstrations for Ozone and CO Nonattainment Areas,” dated November 30, 1993; • “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994; and • “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995. IV. Why Is EPA Taking These Actions? On January 25, 2007, the PADEP requested redesignation of the Greene County Area to attainment for the 8-hour ozone standard. Simultaneously, PADEP submitted a maintenance plan for the Greene County Area as a SIP revision, to ensure continued attainment of the 8-hour ozone NAAQS over the next 10 years, until 2018. PADEP also submitted a 2002 base-year inventory concurrently with its maintenance plan as a SIP revision. PADEP also submitted a revision to the January 25, 2007, submittal on May 23, 2008, to include alternate methodology used to project the 2009 and 2018 emissions amounts from stationary point sources. In addition, NO X emission projections from the January 25, 2007, submittal were changed to reflect the new methodology submitted in the May 23, 2008, revision. EPA has determined that the Greene County Area has attained the 8-hour ozone standard and has met the requirements for redesignation set forth in section 107(d)(3)(E). V. What Would Be the Effect of These Actions? Approval of the redesignation request would change the official designation of the Greene County Area from nonattainment to attainment for the 8-hour ozone NAAQS found at 40 CFR part 81. It would also incorporate into the Pennsylvania SIP a 2002 base-year inventory and a maintenance plan ensuring continued attainment of the 8-hour ozone NAAQS in the Greene County Area for the next 10 years, until 2018. The maintenance plan includes contingency measures to remedy any future violations of the 8-hour NAAQS (should they occur), and identifies the NO X and VOC MVEBs for transportation conformity purposes for the years 2004, 2009 and 2018. These motor vehicle emissions

(2004)and MVEBs (2009 and 2018) are displayed in the following table: Table 1.—Greene County Motor Vehicle Emissions Budgets in Tons per Summer Day

(tpsd)Year VOC NO X 2004 2.1 3.6 2009 1.6 2.6 2018 1.0 1.3 VI. What Is EPA's Analysis of the Commonwealth's Request? EPA is proposing to determine that the Greene County Area has attained the 8-hour ozone standard, and that all other redesignation criteria have been met. The following is a description of how the PADEP's January 25, 2007, submittal with the May 23, 2008, revision satisfies the requirements of section 107(d)(3)(E) of the CAA. A. The Greene County Area Has Attained the 8-Hour NAAQS EPA is proposing to determine that the Greene County Area has attained the 8-hour ozone NAAQS. For ozone, an area may be considered to be attaining the 8-hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR 50.10 and Appendix I of Part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain this standard, the design value, which is the 3-year average of the fourth-highest daily maximum 8-hour average ozone concentrations measured at each monitor, within the area, over each year must not exceed the ozone standard of 0.08 ppm. Based on the rounding convention described in 40 CFR part 50, Appendix I, the standard is attained if the design value is 0.084 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58, and recorded in the Air Quality System (AQS). The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment. In the Greene County Area, there is one monitor that measures air quality with respect to ozone. As part of its redesignation request, Pennsylvania referenced ozone monitoring data for the years 2003-2005 (the most recent 3 years of data available as of the time of the redesignation request) for the Greene County Area. This data has been quality assured and is recorded in the AQS. The PADEP uses the AQS as the permanent database to maintain its data and quality assures the data transfers and content for accuracy. The fourth-high 8-hour daily maximum concentrations for the period from 2003-2005, along with the three-year average, are summarized in Table 2. Table 2.—Greene County Nonattainment Area Fourth Highest 8-hour Average Values; Greene County Monitor, AQS ID 42-059-0002 Year Annual 4th high reading

(ppm)2003 0.083 2004 0.075 2005 0.085 2006 0.077 The average for the 3-year period 2003 through 2005 is 0.081 ppm. The average for the 3-year period 2004 through 2006 is 0.079 ppm. The air quality data for 2003-2005 shows that the Greene County Area has attained the standard with a design value of 0.081 ppm. The data collected at the Greene County Area monitor satisfies the Act requirement that the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration is below the maximum design value of 0.085 ppm. The PADEP's request for redesignation for the Greene County Area indicates that the data is complete and was quality assured in accordance with 40 CFR part 58. In addition, as discussed below with respect to the maintenance plan, PADEP has committed to continue monitoring in accordance with 40 CFR part 58. In summary, EPA has determined that the data submitted by Pennsylvania and data taken from AQS indicate that the Greene County Area has attained the 8-hour ozone NAAQS. B. The Greene County Area Has Met All Applicable Requirements Under Section 110 and Part D of the Clean Air Act and Has a Fully Approved SIP Under Section 110(k) of the CAA EPA has determined that the Greene County Area has met all SIP requirements applicable for purposes of this redesignation under section 110 of the CAA (General SIP Requirements) and that it meets all applicable SIP requirements under Part D of Title I of the CAA, in accordance with section 107(d)(3)(E)(v). In addition, EPA has determined that the SIP is fully approvable with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). In making these proposed determinations, EPA ascertained which requirements are applicable to the Greene County Area and determined that the applicable portions of the SIP meeting these requirements are fully approved under section 110(k) of the CAA. We note that SIPs must be fully approved only with respect to applicable requirements. The September 4, 1992 Calcagni memorandum (“Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992) describes EPA's interpretation of section 107(d)(3)(E) with respect to the timing of applicable requirements. Under this interpretation, to qualify for redesignation, States requesting redesignation to attainment must meet only the relevant Clean Air Act requirements that came due prior to the submittal of a complete redesignation request. *See also* , Michael Shapiro memorandum, September 17, 1993, and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of Detroit-Ann Arbor). Applicable requirements of the Act that come due subsequent to the area's submittal of a complete redesignation request remain applicable until a redesignation is approved, but are not required as a prerequisite to redesignation. Section 175A(c) of the Act. *Sierra Club* v. *EPA,* 375 F.3d 537 (7th Cir. 2004). *See also,* 68 FR at 25424, 25427 (May 12, 2003) (redesignation of St. Louis). This section sets forth EPA's views on the potential effect of the Court's rulings on this proposed redesignation action. For the reasons set forth below, EPA does not believe that the Court's rulings alters any requirements relevant to this redesignation action so as to preclude redesignation, and do not prevent EPA from proposing or ultimately finalizing this redesignation. EPA believes that the Court's December 22, 2006 and June 8, 2007 decisions impose no impediment to moving forward with redesignation of this area to attainment, because even in light of the Court's decisions, redesignation is appropriate under the relevant redesignation provisions of the CAA and longstanding policies regarding redesignation requests. 1. Section 110 General SIP Requirements Section 110(a)(2) of Title I of the CAA delineates the general requirements for a SIP, which includes enforceable emissions limitations and other control measures, means, or techniques, provisions for the establishment and operation of appropriate devices necessary to collect data on ambient air quality, and programs to enforce the limitations. The general SIP elements and requirements set forth in section 110(a)(2) include, but are not limited to the following: • Submittal of a SIP that has been adopted by the State after reasonable public notice and hearing; • Provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; • Implementation of a source permit program; provisions for the implementation of part C requirements (Prevention of Significant Deterioration (PSD); • Provisions for the implementation of Part D requirements for New Source Review

(NSR)permit programs; • Provisions for air pollution modeling; and • Provisions for public and local agency participation in planning and emission control rule development. Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another State. To implement this provision, EPA has required certain states to establish programs to address transport of air pollutants in accordance with the NO X SIP Call, October 27, 1998 (63 FR 57356), amendments to the NO X SIP Call, May 14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and the Clean Air Interstate Rule (CAIR), May 12, 2005 (70 FR 25162). However, the section 110(a)(2)(D) requirements for a State are not linked with a particular nonattainment area's designation and classification in that State. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the State. Thus, we do not believe that these requirements are applicable requirements for purposes of redesignation. In addition, EPA believes that the other section 110 elements not connected with nonattainment plan submissions and not linked with an area's attainment status are not applicable requirements for purposes of redesignation. The Greene County Area will still be subject to these requirements after it is redesignated. The section 110 and Part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This policy is consistent with EPA's existing policy on applicability of conformity ( *i.e.* , for redesignations) and oxygenated fuels requirement. *See* Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174, October 10, 1996), (62 FR 24826, May 7, 1997); Cleveland-Akron-Lorain, Ohio final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995). * See also, * the discussion on this issue in the Cincinnati redesignation (65 FR at 37890, June 19, 2000), and in the Pittsburgh redesignation (66 FR at 53099, October 19, 2001). Similarly, with respect to the NO X SIP Call rules, EPA noted in its Phase 1 Final Rule to Implement the 8-hour Ozone NAAQS, that the NO X SIP Call rules are not “an” ‘applicable requirement' for purposes of section 110(1) because the NO X rules apply regardless of an area's attainment or nonattainment status for the 8-hour (or the 1-hour) NAAQS.” 69 FR 23951, 23983 (April 30, 2004). EPA believes that section 110 elements not linked to the area's nonattainment status are not applicable for purposes of redesignation. As we explain later in this notice, no Part D requirements applicable for purposes of redesignation under the 8-hour standard became due for the Greene County Area prior to submission of the redesignation request. 2. Part D Nonattainment Area Requirements Under the 1-Hour and 8-Hour Standards The Greene County Area was designated a basic nonattainment area for the 8-hour ozone standard. Sections 172-176 of the CAA, found in subpart 1 of Part D, set forth the basic nonattainment requirements for all nonattainment areas. As discussed previously, because the Greene County Area was designated incomplete data/ nonattainment under the 1-hour standard, there are no outstanding 1-hour nonattainment area requirements it would be required to meet. Thus, we find that the Court's ruling does not result in any additional 1-hour requirements for purposes of redesignation. With respect to the 8-hour standard, EPA notes that the Court's ruling rejected EPA's reasons for classifying areas under subpart 1 for the 8-hour standard, and remanded that matter to the Agency. Consequently, it is possible that this area could, during a remand to EPA, be reclassified under subpart 2. Although any future decision by EPA to classify this under subpart 2 might trigger additional future requirements for the area, EPA believes that this does not mean that redesignation of the area cannot now go forward. This belief is based upon

(1)EPA's longstanding policy of evaluating requirements in accordance with the requirements due at the time the request is submitted; and

(2)consideration of the inequity of applying retroactively any requirements that might in the future be applied. At the time the redesignation request was submitted, the Greene County Area was classified under subpart 1 and was obligated to meet subpart 1 requirements. Under EPA's longstanding interpretation of section 107(d)(3)(E) of the Clean Air Act, to qualify for redesignation, states requesting redesignation to attainment must meet only the relevant SIP requirements that came due prior to the submittal of a complete redesignation request. September 4, 1992 Calcagni memorandum (“Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division). *See also,* Michael Shapiro Memorandum, September 17, 1993, and 60 FR 12459, 12465-66 (March 7, 1995) (Redesignation of Detroit-Ann Arbor); *Sierra Club* v. *EPA,* 375 F.3d 537 (7th Cir. 2004) (which upheld this interpretation); 68 FR 25418, 25424, 25427 (May 12, 2003) (redesignation of St. Louis). Moreover, it would be inequitable to retroactively apply any new SIP requirements that were not applicable at the time the request was submitted. The DC Circuit recognized the inequity in such retroactive rulemaking. *See, Sierra Club* v. *Whitman,* 285 F. 3d 63 (DC Cir. 2002), in which the DC Circuit upheld a District Court's ruling refusing to make retroactive an EPA determination that was past the statutory due date. Such a determination would have resulted in the imposition of additional requirements on the area. The Court stated: “Although EPA failed to make the nonattainment determination within the statutory time frame, Sierra Club's proposed solution only makes the situation worse. Retroactive relief would likely impose large costs on the States, which would face fines and suits for not implementing air pollution prevention plan in 1997, even though they were not on notice at the time.” *Id.* at 68. Similarly, here it would be unfair to penalize the area by applying to it for purposes of resedignation additional SIP requirements under subpart 2 that were not in effect at the time it submitted its redesignation request. With respect to the 8-hour standard, EPA proposes to determine that Pennsylvania's SIP meets all applicable SIP requirements under Part D of the CAA, because no 8-hour ozone standard Part D requirements applicable for purposes of redesignation became due prior to submission of the redesignation request for the Greene County Area. Because the Commonwealth submitted a complete redesignation request for the Greene County Area prior to the deadline for any submissions required under the 8-hour standard, we have determined that the Part D requirements do not apply to the Greene County Area for the purposes of redesignation. In addition to the fact that no Part D requirements applicable under the 8-hour standard became due prior to submission of the redesignation request, EPA believes it is reasonable to interpret the general conformity and NSR requirements of Part D as not requiring approval prior to redesignation. With respect to section 176, Conformity Requirements, section 176(c) of the CAA requires States to establish criteria and procedures to ensure that Federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects developed, funded or approved under Title 23 U.S.C. and the Federal Transit Act (“transportation conformity”) as well as to all other Federally supported or funded projects (“general conformity”). State conformity revisions must be consistent with Federal conformity regulations relating to consultation, enforcement and enforceability that the CAA required EPA to promulgate. EPA believes it is reasonable to interpret the conformity SIP requirements as not applying for purposes of evaluating the redesignation request under section 107(d) since State conformity rules are still required after redesignation and Federal conformity rules apply where State rules have not been approved. *See, Wall* v. *EPA,* 265 F. 3d 426, 438-440 (6th Cir. 2001), upholding this interpretation. *See also,* 60 FR 62748 (December 7, 1995). In the case of the Greene County Area, EPA has also determined that before being redesignated, the Greene County Area need not comply with the requirement that a NSR program be approved prior to redesignation. Additionally, Pennsylvania's preconstruction permitting program regulations in Chapter 127.200-217 of the Pennsylvania Code (approved into the SIP at 40 CFR 52.2020(c)), apply only to ozone nonattainment area sources that are located in areas classified as marginal or worse, *i.e.* , to subpart 2 nonattainment areas. Pennsylvania's NSR regulations do not apply to sources in nonattainment areas classified as basic nonattainment under subpart 1. Consequently, sources in the Greene County Area are subject to Part D NSR requirements of Appendix S to 40 CFR part 51, pursuant to 40 CFR 52.24(k). Appendix S of 40 CFR part 51 contains the preconstruction permitting program that applies to major stationary sources in nonattainment areas lacking an approved Part D NSR program. Appendix S applies during the interim period after EPA designates an area as nonattainment, but before EPA approves revisions to a SIP to implement the Part D NSR requirements for that pollutant. *See,* 70 FR 71618 (November 29, 2005). The Chapter 127 part D NSR regulations in the Pennsylvania SIP explicitly apply to attainment areas within the Ozone Transport Region (OTR). *See,* Chapter 127 in 40 CFR 52.2020(c)(1); *See,* 66 FR 53094, October 19, 2001. Therefore, after the Greene County Area is redesignated to attainment, sources in the Greene County Area will be subject to Part D NSR applicable under the permitting regulations in Chapter 127, because the Greene County Area is located in the OTR. All areas in the OTR, both attainment and nonattainment, are subject to additional control requirements under section 184 for the purpose of reducing interstate transport of emissions that may contribute to downwind ozone nonattainment. The section 184 requirements include reasonably available control technology (RACT), NSR, enhanced vehicle inspection and maintenance, and Stage II vapor recovery or a comparable measure. In the case of Greene County Area, which is located in the OTR, nonattainment NSR will continue to be applicable after redesignation. On October 19, 2001 (66 FR 53094), EPA fully approved the 1-hour Pennsylvania's NSR SIP revision consisting of Pennsylvania's Chapter 127 Part D NSR regulations that cover the Greene County Area. The Chapter 127 Part D NSR regulations in the Pennsylvania SIP explicitly apply the requirements for NSR of section 184 of the CAA to attainment areas within the OTR. 3. The Greene County Area Has a Fully Approved SIP for Purposes of Redesignation EPA has fully approved the Pennsylvania SIP for the purposes of this redesignation. EPA may rely on prior SIP approvals in approving a redesignation request. Calcagni Memo, p.3; *Southwestern Pennsylvania Growth Alliance* v. *Browner,* 144 F. 3d 984, 989-90 (6th Cir. 1998), *Wall* v. *EPA,* 265 F. 3d 426 (6th Cir. 2001), plus any additional measures it may approve in conjunction with a redesignation action. *See,* 68 FR at 25425 (May 12, 2003) and citations therein. The Greene County Area was a 1-hour incomplete data nonattainment area at the time of its designation as a basic 8-hour ozone nonattainment area on April 30, 2004 (69 FR 23857). Because the Greene County Area was a 1-hour incomplete data nonattainment area, there are no previous Part D SIP submittal requirements. Also, no Part D submittal requirements have come due prior to the submittal of the 8-hour maintenance plan for the area. Therefore, all Part D submittal requirements have been fulfilled. Because there are no outstanding SIP submission requirements applicable for the purpose of redesignation of the Greene County Area the applicable implementation plan satisfies all pertinent SIP requirements. As indicated previously, EPA believes that the section 110 elements not connected with Part D nonattainment plan submissions and not linked to the area's nonattainment status are not applicable requirements for purposes of redesignation. EPA also believes that no 8-hour Part D requirements applicable for the purpose of redesignation have yet become due for the Greene County Area, and therefore they need not be approved in to the SIP prior to redesignation. C. The Air Quality Improvement in the Greene County Area is Due to Permanent and Enforceable Reductions in Emissions Resulting From Implementation of the SIP and Applicable Federal Air Pollution Control Regulations and Other Permanent and Enforceable Reductions EPA believes that the Commonwealth has demonstrated that the observed air quality improvement in the Greene County Area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, Federal measures, and other State-adopted measures. Emissions reductions attributable to these rules are shown in Table 3. Table 3.—Total VOC and NO X Emissions for 2002 and 2004 in Tons per Summer Day

(tpsd)Year Point Area Mobile Nonroad Total Volatiles Organic Compounds

(VOC)2002 1.9 1.9 2.4 1.3 7.5 2004 1.9 1.9 2.1 1.2 7.1 Difference (02-04) 0.0 0.0 −0.3 −0.1 −0.4 Nitrogen Oxides (NO X ) 2002 64.0 0.2 4.1 4.7 72.9 2004 53.7 0.2 3.6 4.5 62.0 Difference (02-04) −10.3 0.0 −0.5 −0.2 −10.9 * Totals may not add due to rounding. Between 2002 and 2004, VOC emissions decreased by 0.4 tpsd from 7.5 tpsd to 7.1 tpsd. During the same period, NO X emissions decreased by 10.9 tpsd from 72.9 tpsd to 62.0 tpsd. EPA believes that permanent and enforceable emissions reductions are the cause of the long-term improvement in ozone levels and are the cause of the Greene County Area achieving attainment of the 8-hour ozone standard. These reductions, as well as anticipated future reductions, are due to the following permanent and enforceable measures. 1. Stationary Point Sources NO X SIP Call (66 FR 43795, August 21, 2001). 2. Stationary Area Sources Solvent Cleaning (68 FR 2206, January 16, 2003). Portable Fuel Containers (69 FR 70893, December 8, 2004). 3. Highway Vehicle Sources Federal Motor Vehicle Control Programs (FMVCP): —Tier 1 Rule (56 FR 25724, June 5, 1991); —Tier 2 Rule (65 FR 6698, February 10, 2000). Heavy-duty Engine and Vehicle Standards (62 FR 54694, October 21, 1997, and 65FR59896, October 6, 2000). National Low Emission Vehicle

(NLEV)Program (64 FR 72564, December 28, 1999). Changes to Vehicle Safety Inspection Program in non-I/M Counties (70 FR 58313, October 6, 2005). 4. Non-Road Sources Non-road Diesel Rule (69 FR 38958, June 29, 2004). D. The Greene County Area Has a Fully Approvable Maintenance Plan Pursuant to Section 175A of the CAA In conjunction with its request to redesignate the Greene County ozone nonattainment area to attainment status, Pennsylvania submitted a SIP revision to provide for maintenance of the 8-hour ozone NAAQS in the Area for at least 10 years after redesignation. The Commonwealth is requesting that EPA approve this SIP revision as meeting the requirement of Clean Air Act section 175A. Once approved, the maintenance plan for the 8-hour ozone NAAQS will ensure that the SIP for the Greene County Area meets the requirements of the CAA regarding maintenance of the applicable 8-hour ozone standard. What Is Required in a Maintenance Plan? Section 175 of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after approval of a redesignation of an area to attainment. Eight years after the redesignation, the Commonwealth must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the 10 years following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain such contingency measures, with a schedule for implementation, as EPA deems necessary to assure prompt correction of any future 8-hour ozone violations. Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. The Calcagni memorandum dated September 4, 1992, provides additional guidance on the content of a maintenance plan. An ozone maintenance plan should address the following provisions:

(a)An attainment emissions inventory;

(b)a maintenance demonstration;

(c)a monitoring network;

(d)verification of continued attainment; and

(e)a contingency plan. Analysis of the Greene County Area Maintenance Plan

(a)*Attainment inventory—* An attainment inventory includes the emissions during the time period associated with the monitoring data showing attainment. PADEP determined that the appropriate attainment inventory year is 2004. That year establishes a reasonable year within the three-year block of 2003-2005 as a baseline and accounts for reductions attributable to implementation of the CAA requirements to date. The 2004 inventory is consistent with EPA guidance and is based on actual “typical summer day” emissions of VOC and NO X during 2004 and consists of a list of sources and their associated emissions.

(i)*Point source emissions—* Pennsylvania requires owners and operators of larger facilities to submit annual production figures and emission calculations each year. Throughput data are multiplied by emission factors from Factor Information Retrieval

(FIRE)Data System and EPA's publication series AP-42 and are based on Source Classification Code (SCC). Each process has at least one SCC assigned to it. If the owners and operators of facilities provide more accurate emission data based upon other factors, these emission estimates supersede those calculated using SCC codes.

(ii)*Area source emissions—* Area source emissions are generally estimated by multiplying an emission factor by some known indicator or collective activity for each area source category at the county level. Pennsylvania estimates emissions from area sources using emission factors and SCC codes in a method similar to that used for stationary point sources. Emission factors may also be derived from research and guidance documents if those documents are more accurate than FIRE and AP-42 factors. Throughput estimates are derived from county-level activity data, by apportioning national and statewide activity data to counties, from census numbers, and from county employee numbers. County employee numbers are based upon North American Industry Classification System (NAICS) codes to establish that those numbers are specific to the industry covered.

(iii)*On-road mobile sources—* PADEP employs an emissions estimation methodology that uses current EPA-approved highway vehicle emission model, MOBILE 6.2, to estimate highway vehicle emissions. The Greene County Area highway vehicle emissions in 2004 were estimated using MOBILE 6.2 and PENNDOT estimates of vehicles miles traveled

(VMT)by vehicle type and roadway type.

(iv)*Mobile nonroad emissions—* The 2004 emissions for the majority of nonroad emission source categories were estimated using the EPA NONROAD 2005 model. The NONROAD model estimates emissions for diesel, gasoline, liquefied petroleum gasoline, and compressed natural gas-fueled nonroad equipment types and includes growth factors. The NONROAD model does not estimate emissions from aircraft or locomotives. For 2004 locomotive emissions, PADEP projected emissions from a 1999 survey using national fuel information and EPA emission and conversion factors. There are no commercial aircraft operations in the Greene County Area. For 2004 aircraft emissions, PADEP estimated emissions using small aircraft operation statistics from *http://www.airnav.com,* and emission factors and operational characteristics in the EPA-approved model, Emissions and Dispersion Modeling System (EDMS). More detailed information on the compilation of the 2002, 2004, 2009, and 2018 inventories can found in the Technical Appendices, which are part of the January 25, 2007 state submittal and the revision submitted on May 23, 2008.

(b)*Maintenance Demonstration—* On January 25, 2007, the PADEP submitted a maintenance plan as required by section 175A of the CAA. The Greene County Area maintenance plan shows maintenance of the 8-hour ozone NAAQS by demonstrating that current and future emissions of VOC and NO X remain at or below the attainment inventory year 2004 emissions levels throughout the Area through the year 2018. A maintenance demonstration need not be based on modeling. *See Wall* v. *EPA, supra; Sierra Club* v. *EPA, supra. See also,* 66 FR at 53099-53100; 68 FR at 25430-32. Tables 4 and 5 specify the VOC and NO X emissions for the Greene County Area for 2004, 2009, and 2018. The PADEP chose 2009 as an interim year in the maintenance demonstration period to demonstrate that the VOC and NO X emissions are not projected to increase above the 2004 attainment level during the time of the maintenance period. The values in Table 5 reflect the alternative methodology submitted in the May 23, 2008 submittal. Table 4.—Total VOC Emissions for 2004-2018

(tpsd)Source category 2004 2009 2018 Point 1.9 1.9 2.2 Area 1.9 1.7 1.7 Mobile 2.1 1.6 1.0 Nonroad 1.2 1.0 0.8 Total 7.1 6.1 5.6 Table 5.—Total NO X Emissions for 2004-2018

(tpsd)Source category 2004 2009 2018 Point 53.7 21.0 23.0 Area 0.2 0.2 0.2 Mobile 3.6 2.6 1.3 Nonroad 4.5 4.1 3.6 Total 62.0 27.9 28.1 Additionally, the following programs are either effective or due to become effective and will further contribute to the maintenance demonstration of the 8-hour ozone NAAQS: • The Federal Clean Air Interstate Rule (71 FR 25328, April 28, 2006). • The NO X SIP Call (66 FR 43795, August 21, 2001). • Portable Fuel Containers Rule (69 FR 70893, December 8, 2004) • Consumer Products Rule (69 FR 70895, December 8, 2004) • Architectural and Industrial Maintenance

(AIM)Coatings (69 FR 68080, November 23, 2004). • Federal Light-duty Highway Vehicle Control Program (FMVCP)-Tier 1/Tier 2 Emissions Standards (Model Year 1994/2004); Tier 1—(56 FR 25724, June 5, 1991), Tier 2—(65 FR 6698, February 10, 2000). • Federal Heavy-duty Diesel Highway Engine Standards (Model Year 2004/2007)/Low-Sulfur Highway Diesel Fuel Standards (2006); (66 FR 5002, January 18, 2001). • Federal Nonroad Engine Emission Standards (Model Year 2008) and Nonroad Diesel Fuel 2007); (69 FR 38958, June 29, 2004). • NLEV/PA Clean Vehicle Program (54 FR 72564, December 28, 1999). • PA Vehicle Emission Inspection and Maintenance Program (70 FR 58313, October 6, 2005). • Changes to Vehicle Safety Inspection Program for Non-I/M Counties (70 FR 58313, October 6, 2005). Based on the comparison of the projected emissions and the attainment year emissions along with the additional measures, EPA concludes that PADEP has successfully demonstrated that the 8-hour ozone standard should be maintained in the Greene County Area.

(c)*Monitoring Network—* There is one ozone monitor that provided monitoring data to support of the Commonwealth's ozone maintenance plan for the Greene County Area. The Commonwealth has committed to continue to operate its monitoring network in accordance with 40 CFR part 58, with no reduction in the number of sites.

(d)*Verification of Continued Attainment* —In addition to maintaining the key elements of its regulatory program, the Commonwealth will track the attainment status of the ozone NAAQS in the Area by reviewing air quality and emissions data during the maintenance period. The Commonwealth will perform an annual evaluation of VMT data and emissions reported from stationary sources, and compare them to the assumptions about these factors used in the maintenance plan. The Commonwealth will also evaluate the periodic (every three years) emission inventories prepared under EPA's Consolidated Emission Reporting Regulation (40 CFR 51, subpart A) to see if they exceed the attainment year inventory

(2004)by more than 10 percent. The PADEP will also continue to operate the existing ozone monitoring station in the Area pursuant to 40 CFR part 58 throughout the maintenance period and submit quality-assured ozone data to EPA through the AQS system. Section 175A(b) of the CAA states that eight years following redesignation of the Greene County Area, PADEP will be required to submit a second maintenance plan that will ensure attainment through 2028. PADEP has made that commitment to meet the requirement section 175A(b).

(e)*The Maintenance Plan's Contingency Measures* —The contingency plan provisions are designed to promptly correct a violation of the NAAQS that occurs after redesignation. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to ensure that the Commonwealth will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the events that would “trigger” the adoption and implementation of a contingency measure(s), the contingency measure(s) that would be adopted and implemented, and the schedule indicating the time frame by which the state would adopt and implement the measure(s). The ability of the Greene County Area to stay in compliance with the 8-hour ozone standard after redesignation depends upon VOC and NO X emissions in the Area remaining at or below 2004 levels. The Commonwealth's maintenance plan projects VOC and NO X emissions to decrease and stay below 2004 levels through the year 2018. The Commonwealth's maintenance plan outlines the procedures for the adoption and implementation of contingency measures to further reduce emissions should a violation occur. Contingency measures will be considered if for two consecutive years the fourth highest 8-hour ozone concentration at the Greene County Area monitor is above 84 ppb. If this trigger point occurs, the Commonwealth will evaluate whether additional local emission control measures should be implemented in order to prevent a violation of the air quality standard. PADEP will also analyze the conditions leading to the excessive ozone levels and evaluate which measures might be most effective in correcting the excessive ozone levels. PADEP will also analyze the potential emissions effect of Federal, state and local measures that have been adopted but not yet implemented at the time the excessive ozone levels occurred. PADEP will then begin the process of implementing any selected measures. Contingency measures will also be considered in the event that a violation of the 8-hour ozone standard occurs at the Greene County Area monitor. In the event of a violation of the 8-hour ozone standard, PADEP will adopt additional emissions reduction measures as expeditiously as practicable in accordance with the implementation schedule listed later in this notice and in the Pennsylvania Air Pollution Control Act in order to return the Area to attainment with the standard. Contingency measures to be considered for the Greene County Area will include, but not be limited to the following: *Regulatory measures:* —Additional controls on consumer products. —Additional controls on portable fuel containers. *Non-Regulatory measures:* —Voluntary diesel engine “chip reflash” (installation software to correct the defeat device option on certain heavy-duty diesel engines). —Diesel retrofits, including replacement, repowering or alternative fuel use, for public or private local on-road or off-road fleets. —Idling reduction technology for Class 2 yard locomotives. —Idling reduction technologies or strategies for truck stops, warehouses and other freight handling facilities. —Accelerated turnover of lawn and garden equipment, especially commercial equipment, including promotion of electric equipment. —Additional promotion of alternative fuel ( *e.g.* , biodiesel) for home heating and agricultural use. The plan sets forth a process to have regulatory contingency measures in effect within 19 months of the trigger. The plan also lays out a process to implement non-regulatory contingency measures within 12-24 months of the trigger. VII. Are the Motor Vehicle Emissions Budgets Established and Identified in the Maintenance Plan for the Greene County Area Plan Adequate and Approvable? A. What are the Motor Vehicle Emissions Budgets? Under the CAA, States are required to submit, at various times, control strategy SIPs and maintenance plans in ozone areas. These control strategy SIPs ( *i.e.* , reasonable further progress SIPs and attainment demonstration SIPs) and maintenance plans identify and establish MVEBs for certain criteria pollutants and/or their precursors to address pollution from on-road mobile sources. In the maintenance plan, the MVEBs are termed “on-road mobile source emission budgets.” Pursuant to 40 CFR part 93 and 51.112, MVEBs must be established in an ozone maintenance plan. An MVEB is the portion of the total allowable emissions that is allocated to highway and transit vehicle use and emissions. An MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188). The preamble also describes how to establish and revise the MVEBs in control strategy SIPs and maintenance plans. Under section 176(c) of the CAA, new transportation projects, such as the construction of new highways, must “conform” to ( *i.e.* , be consistent with) the part of a State's air quality plan that addresses pollution from cars and trucks. “Conformity” to the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of or reasonable progress towards the NAAQS. If a transportation plan does not “conform,” most new projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria, and procedures for demonstrating and ensuring conformity of such transportation activities to a SIP. When reviewing submitted “control strategy” SIPs or maintenance plans containing MVEBs, EPA must affirmatively find the MVEB contained therein “adequate” for use in determining transportation conformity. After EPA affirmatively finds the submitted MVEB is adequate for transportation conformity purposes, the MVEB can be used by state and federal agencies in determining whether proposed transportation projects “conform” to the SIP as required by section 176(c) of the Act. EPA's substantive criteria for determining “adequacy” of a MVEB are set out in 40 CFR 93.118(e)(4) EPA's process for determining “adequacy” consists of three basic steps: public notification of a SIP submission, a public comment period, and EPA's adequacy finding. This process for determining the adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14, 1999 guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” This guidance was finalized in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards and Miscellaneous Revisions for Existing Areas; Transportation Conformity Rule Amendments—Response to Court Decision and Additional Rule Change” on July 1, 2004 (69 FR 40004). EPA consults this guidance and follows this rulemaking in making its adequacy determinations. The MVEBs for the Greene County Area are listed in Table 6 for 2009 and 2018. Table 6 presents the projected emissions for the on-road mobile sources plus any portion of the safety margin allocated to the MVEBs (safety margin allocation for 2009 and 2018 only). These emission budgets, when approved by EPA, must be used for transportation conformity determinations. B. What Is a Safety Margin? A “safety margin” is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. The following example is for the 2018 safety margin: the Greene County Area attained the 8-hour ozone NAAQS during the 2003 to 2005 time period. The Commonwealth used 2004 as the year to determine attainment levels of emissions for the Greene County Area. The sum total emissions for 2004 for point, area, mobile on-road, and mobile non-road sources for the Area are 7.1 tpsd of VOC and 62.0 tpsd of NO X . The PADEP projected that total emissions for the year 2018 will be 5.6 tpsd of VOC and 28.1 tpsd of NO X from all sources in the Area. The Area-wide safety margin for 2018 would be the difference between these amounts, or 1.5 tpsd of VOC and 33.9 tpsd of NO X . The emissions up to the level of the attainment year, including the safety margins, are projected to maintain the Area's air quality consistent with the 8-hour ozone NAAQS. The safety margin is the extra emissions reduction below the attainment levels that can be allocated for emissions by various sources as long as the total emission levels are maintained at or below the attainment levels. Table 6 shows the safety margins for the 2009 and 2018 years. Table 6.—Safety Margins for Greene County Area (2009 & 2018) Inventory year VOC emissions

(tpsd)NO X emissions

(tpsd)2004 Attainment 7.1 62.0 2009 Interim 6.1 27.9 2009 Safety Margin 1.0 34.1 2004 Attainment 7.1 62.0 2018 Final 5.6 28.1 2018 Safety Margin 1.5 33.9 C. Why Are the MVEBs Approvable? The 2009 and 2018 MVEBs for the Greene County Area are approvable because the MVEBs for VOCs and NO X continue to maintain the total emissions at or below the attainment year inventory levels as required by the transportation conformity regulations. D. What Is the Adequacy and Approval Process for MVEBs in the Maintenance Plan? The MVEBs for the Greene County Area maintenance plan are being posted to EPA's conformity Web site concurrently with this proposal. The public comment period will end at the same time as the public comment period for this proposed rule. In this case, EPA is concurrently processing action on the maintenance plan and the adequacy process for the MVEBs contained therein. In this proposed rule, EPA is proposing to find the MVEBs adequate and EPA is proposing to approve the MVEBs as part of the maintenance plan. The MVEBs cannot be used for transportation conformity until the maintenance plan and associated MVEBs are approved in a final **Federal Register** notice, or EPA otherwise finds the budgets adequate in a separate action following the comment period. If EPA receives adverse written comments with respect to the proposed approval of the Area's MVEBs, or any other aspect of our proposed approval of this updated maintenance plan, we will respond to the comments on the MVEBs in our final action or proceed with the adequacy process as a separate action. Our action on the Greene County Area MVEBs will also be announced on EPA's conformity Web site: *http://www.epa.gov/otaq/stateresources/transconf/index.htm* (from there, click on “Adequacy Review of SIP Submissions”). VIII. Proposed Actions EPA is proposing to determine that the Greene County Area has attained the 8-hour ozone NAAQS. EPA is also proposing to approve the redesignation of the Area from nonattainment to attainment for the 8-hour ozone NAAQS. EPA has evaluated Pennsylvania's redesignation request and determined that it meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA. EPA believes that the redesignation request and monitoring data demonstrate that the Area has attained the 8-hour ozone standard. The final approval of this redesignation request would change the designation of the Greene County Area from nonattainment to attainment for the 8-hour ozone standard. EPA is also proposing to approve the associated maintenance plan for the Area, submitted on January 25, 2007, as a revision to the Pennsylvania SIP. EPA is proposing to approve the maintenance plan for the Greene County Area because it meets the requirements of section 175A as described previously in this notice. EPA is also proposing to approve the 2002 base-year inventory for the Greene County Area, submitted by PADEP on January 25, 2007, along with the revision submitted on May 23, 2008 to include new methodology used to project the 2009 and 2018 emissions amounts from stationary point sources. Finally, EPA is proposing to approve the MVEBs submitted by Pennsylvania for the Greene County Area in conjunction with its redesignation request. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. IX. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Redesignation of an area to attainment under section 107(d)(3)(E) of the Clean Air Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. Redesignation of an area to attainment under section 107(d)(3)(E) of the Clean Air Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to affect the status of a geographical area, does not impose any new requirements on sources, or allow the state to avoid adopting or implementing other requirements, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Redesignation is an action that affects the status of a geographical area and does not impose any new requirements on sources. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule proposing to approve the redesignation of the Tioga Area to attainment for the 8-hour ozone NAAQS, the associated maintenance plan, the 2002 base year inventory, and the MVEBs identified in the maintenance plan, does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). This rule, proposing to approve the redesignation of the Greene County Area to attainment for the 8-hour ozone NAAQS, the associated maintenance plan, the 2002 base-year inventory, and the MVEBs identified in the maintenance plan, does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. 40 CFR Part 81 Air pollution control, National parks, Wilderness areas. Authority: 42 U.S.C. 7401 *et seq.* Dated: July 3, 2008. Donald S. Welsh, Regional Administrator, Region III. [FR Doc. E8-16278 Filed 7-15-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 0612242911-7380-01] RIN 0648-AU28 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery off the Southern Atlantic States; Amendment 14 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 to implement the applicable provisions of Amendment 14 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP), as prepared and submitted by the South Atlantic Fishery Management Council (Council). Amendment 14 proposes, and this rule would implement, establishment of eight marine protected areas

(MPAs)in which fishing for or possession of South Atlantic snapper-grouper would be prohibited. The prohibition on possession would not apply to a person aboard a vessel that was in transit with fishing gear appropriately stowed. Amendment 14 also proposes to prohibit the use of shark bottom longlines within the MPAs, however, NMFS is proposing to implement the prohibition of shark bottom longlines through separate rulemaking. The intended effects of this proposed rule are to protect a portion of the population and habitat of long-lived, slow growing, deepwater snapper-grouper from fishing pressure to achieve a more natural sex ratio, age, and size structure within the proposed MPAs, while minimizing adverse social and economic effects. DATES: Written comments on this proposed rule must be received no later than 5 p.m., eastern time, on August 15, 2008. ADDRESSES: You may submit comments, identified by “0648-AU28”, by any of the following methods: • Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal *http://www.regulations.gov* . • Fax: 727-824-5308; Attention: Kate Michie. • Mail: Kate Michie, Southeast Regional Office, NMFS, 263 13 th Avenue South, St. Petersburg, FL 33701. 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 14 may be obtained from the South Atlantic Fishery Management Council, 4055 Faber Place, Suite 201, North Charleston, SC 29405; phone: 843-571-4366 or 866-SAFMC-10 (toll free); fax: 843-769-4520; e-mail: *safmc@safmc.net* . Amendment 14 includes a Final Environmental Impact Statement (FEIS), a Biological Assessment, an Initial Regulatory Flexibility Analysis (IRFA), a Regulatory Impact Review, and a Social Impact Assessment/Fishery Impact Statement. FOR FURTHER INFORMATION CONTACT: Kate Michie, telephone: 727-824-5305, fax: 727-824-5308, e-mail: *Kate.Michie@noaa.gov* . SUPPLEMENTARY INFORMATION: The snapper-grouper fishery off the southern Atlantic states is managed under the FMP. The FMP was prepared by the Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. NMFS issues this proposed rule to implement the applicable provisions of Amendment 14 to the FMP. The Atlantic shark fishery is managed under the Consolidated Highly Migratory Species Fishery Management Plan (HMS FMP). The HMS FMP is implemented under the authority of the Magnuson-Stevens Act by regulations at 50 CFR part 635. Background Many snapper-grouper species are vulnerable to overfishing because they are long-lived (e.g., snowy grouper, golden tilefish, red snapper, gag, scamp, red grouper, and red porgy); they are protogynous, i.e., they may change sex from females to males as they grow older/larger (e.g., snowy grouper, speckled hind, Warsaw grouper, yellowedge grouper, gag, scamp, red porgy, and black sea bass); they form spawning aggregations (e.g., snowy grouper, gag, scamp, and red snapper); and they suffer high release mortality when taken from deep water. Deepwater snapper-grouper species (speckled hind, snowy grouper, Warsaw grouper, yellowedge grouper, misty grouper, golden tilefish, and blueline tilefish) are most vulnerable to overfishing because they live longer than 50 years, do not survive the trauma of capture, and are protogynous (groupers) or exhibit sexual dimorphism, i.e., males and females grow at different rates (tilefishes). Stock assessments indicate that black sea bass, red porgy, and snowy grouper are overfished, i.e., spawning stock biomass is not sufficient to reproduce and support continued productivity. In addition, black sea bass, golden tilefish, snowy grouper, and vermilion snapper are experiencing overfishing, i.e., the current rate of fishing mortality jeopardizes the capacity of the fishery to produce its maximum sustainable yield on a continuing basis. Reductions in catch and protection of habitat are needed. Proposed Measures This rule would establish eight MPAs in which a portion of the population and habitat of long-lived, slow growing, deepwater snapper-grouper species would be protected from directed fishing pressure. Fishing for or possession of South Atlantic snapper-grouper would be prohibited in the MPAs. However, the prohibition on possession would not apply to a person aboard a vessel that was in transit with fishing gear appropriately stowed, as specified in § 622.35(i)(2) of this proposed rule. MPAs are considered to be the most effective fishery management tool that would allow deepwater snapper-grouper to reach a more natural sex ratio, age, and size structure, protect spawning locations, and provide a refuge for early developmental stages of fish species. Using a collaborative process, the Council selected specific sites for MPAs on the basis of maximizing the biological benefits and enhancing enforceability and monitoring while minimizing the adverse social and economic effects. Sizes of the MPAs would range from approximately 5 by 10 nautical miles

(nm)to approximately 22 by 23 nm. One would be off North Carolina, three off South Carolina, one off Georgia, and three off the east coast of Florida. An artificial reef may be established at one of the South Carolina sites. The two most southern MPAs would be approximately 9 and 13 nm offshore, respectively, and the others at least 38 nm offshore. The eight proposed MPAs and their relative locations are shown in Figure 1. The prohibition of use of shark bottom longlines in the MPAs is considered necessary for habitat protection and to prevent the mortality of incidentally caught snapper-grouper. The Council voted to include this prohibition in Amendment 14 because of concerns regarding the enforcement of fishing activities by vessels that hold permits in both the snapper-grouper and shark bottom longline fisheries, both of which deploy similar gear. However, because the Atlantic shark fishery is managed under the HMS FMP, NMFS requested the HMS Division promulgate the prohibition of use of shark bottom longlines within the proposed MPAs. The HMS Division published a final rule on June 24, 2008 (72 FR 35778), prohibiting shark bottom longlining in the proposed MPAs through Amendment 2 to the consolidated HMS FMP. Availability of Amendment 14 Additional background and rationale for the measures discussed above are contained in Amendment 14. The availability of Amendment 14 was announced in the **Federal Register** on June 6, 2008, (73 FR 32281). Written comments on Amendment 14 will be accepted through August 5, 2008. All comments received on Amendment 14 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 14, 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. The Council prepared an FEIS for Amendment 14; a notice of availability was published on June 13, 2008 (73 FR 33813). 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. This proposed rule would establish eight MPAs in the Federal waters of the South Atlantic and prohibit fishing for or possession of South Atlantic snapper-grouper within any of the MPAs. The purpose of this proposed rule is to assist in the recovery of overfished stocks and persistence of healthy fish stocks, fisheries, and habitats. The Magnuson-Stevens Act provides the statutory basis for the proposed rule. No duplicative, overlapping, or conflicting Federal rules have been identified. Two general classes of small business entities would be directly affected by the proposed rule, commercial fishing vessels and for-hire fishing vessels. The Small Business Administration defines a small entity in the commercial fishing sector as a firm that is independently owned and operated, is not dominant in its field of operation, and has average annual gross receipts not in excess of $4 million (2002 NAICS 11411). For a for-hire business, the appropriate revenue benchmark is $6.5 million (2002 NAICS 487210). Average net incomes estimated from boats operating in the South Atlantic snapper-grouper fishery were sampled in a 1994 study that separated the fishery into northern and southern zones. The northern zone includes the area north of 28° N. latitude to the North Carolina/Virginia border. The southern zone includes the area south of 25° N. latitude to the border between the South Atlantic and Gulf of Mexico Fishery Management Councils. The estimated average net incomes, in 1994 (and 2006) dollars, were $83,224 ($113,212) for boats that primarily used bottom longlines in the northern zone, $23,075 ($31,389) for boats that primarily used black sea bass pots in the northern zone, $15,563 ($21,171) for boats that primarily used bottom longlines in the southern zone, $11,649 ($15,842) for boats that primarily used vertical lines in the southern zone, and $8,307 ($11,300) for boats that primarily used vertical lines in the northern zone. Overall, boats in the northern zone averaged $14,143 ($19,239) in net income based on average revenues of $48,702 ($66,250), while boats in the southern zone averaged $12,388 ($16,852) net income based on average revenues of $39,745 ($54,066). More recent data from the Southeast logbook program show the average annual ex-vessel revenue from landings of snapper-grouper species per vessel from 1999 to 2003 to range from $14,408 to $16,376 (2006 dollars). Although some fleet activity may exist in this fishery, the extent of such has not been determined. Thus, all vessels are assumed to be unique business entities. Given historic income data and the gross revenue profile captured by the Southeast logbook program, it is determined that all vessels that would be affected by the proposed rule are small entities. Charterboats are defined as boats for hire carrying six or fewer passengers that charge a fee to rent the entire boat. Headboats tend to be larger, generally can carry a maximum of around 60 passengers, and the fee is paid on an individual angler basis. This analysis, which estimates the range of the average gross revenues in 2006 dollars for this sector, is as follows: $61,714 to $83,820 for charterboats on the Atlantic coast of Florida; $72,768 to $88,778 for charterboats in North Carolina, $31,830 to $38,833 for charterboats in South Carolina; $68,629 to $83,486 for charterboats in Georgia; $170,276 to $362,482 for headboats in Florida; and $148,840 to $317,030 for headboats in the other South Atlantic states. Similar to the situation with the commercial harvest sector, some fleet activity may exist within the for-hire sector. The magnitude and identity of such is unknown, however, and all vessels are assumed to represent unique business entities. Given the gross revenue profiles provided, vessels in the for-hire recreational sector are determined to be small business entities. There were 1,066 commercial snapper-grouper permitted vessels in the South Atlantic during 2004. A number of these permitted vessels were not active in the snapper-grouper fishery. It is not possible to estimate the total number of true latent permits (i.e., those permits which are not expected to be fished in any given year and may exist only for speculative purposes) since permits with no associated landings could become active in a subsequent year. The number of permitted vessels, however, is an upper bound on the universe of vessels in this fishery. The assumed lower bound of the universe of vessels is the number of active vessels in the latest year for which data are available. This lower bound estimate is 906 vessels, which is the number of vessels/permits with recorded landings of snapper-grouper species in the South Atlantic in 2003. The upper bound is the 1,066 commercial snapper-grouper permitted vessels in the South Atlantic during 2004. Thus, the range of vessels assumed to potentially operate in the commercial snapper-grouper fishery is 906 to 1,066. Currently, there is insufficient information to determine the number of commercial fishing vessels that fish for or possess any snapper-grouper species in the proposed MPAs. In the for-hire sector, 1,594 snapper-grouper for-hire permits were issued to vessels in the South Atlantic states in 2004. The for-hire fishery operates as an open access fishery, and not all of the permitted snapper-grouper for-hire vessels are necessarily active in this fishery. Some vessel owners have been known to purchase open access permits as insurance for uncertainties in the fisheries in which they currently operate. Currently, there is insufficient information to assess the number of for-hire vessels that fish for or possess any snapper-grouper species in the proposed MPAs. There is insufficient information to assess the numbers or percentages of commercial and for-hire vessels that fish for or possess snapper-grouper species in the proposed MPAs and would be directly affected by the proposed rule. Consequently, it cannot be determined if the proposed rule would affect a substantial number of small entities. A direct cost of the proposed rule would be the lost revenues and profits derived from fishing for or possessing snapper-grouper species in those areas. It is expected that any vessel that historically fished in these areas would mitigate some of these losses by relocating to other areas. There is insufficient information to quantify any potential losses of revenues and profits from the creation of the MPAs. However, the relatively small sizes of the MPAs suggest there would not be significant adverse economic impact. Three alternatives, including the status quo, were considered for the first of the eight actions. Both the proposed action (Alternative 1) and Alternative 2 would establish an MPA at the area of the Snowy (Grouper) Wreck off the coast of North Carolina. The proposed MPA is 55 nm southeast of Southport, North Carolina, and Alternative 2 is located approximately 57 nm southeast of Southport. Each MPA is about 15 by 10 nm. Fishermen from Little River, Carolina Beach, and Southport ports would most likely be affected by either alternative. The proposed MPA and the MPA specified by Alternative 2 include an area ranging from 150 meters

(m)to 300 m deep. The proposed MPA includes a shallow area ranging from 60 to 100 m, while the MPA specified by Alternative 2 includes a deeper area exceeding 300 m in depth. Alternative 2 could result in the displacement of fewer fishermen than the proposed action, but would not be expected to protect as many mid-shelf species as the proposed action. The status quo alternative (Alternative 3) would not create an MPA in the Snowy (Grouper) Wreck area off the coast of North Carolina, would not increase the protection of mid-shelf and deepwater snapper-grouper species, and would not, therefore, meet the Council's objective. Four alternatives, including the status quo, were considered for the second action. The proposed action (Alternative 2) and two of the other alternatives (Alternatives 1 and 3) would establish an MPA off the northern South Carolina coast. The proposed MPA is located approximately 54 nm from Murrells Inlet, while Alternative 1 is located approximately 61 nm from Murrells Inlet, and the MPA specified by Alternative 3 is about 65 nm from Murrells Inlet. The proposed MPA and the MPAs specified by Alternatives 1 and 3 are 10 by 5 nm in size. Both the proposed MPA and the MPA specified by Alternative 1 run east to west, while the MPA specified by Alternative 3 runs parallel to shore. Waters in the proposed MPA area range from 50 to 180 m deep. The MPAs specified by Alternatives 1 and 3 share an area ranging in depth from 70 to 140 m, but the MPA specified by Alternative 1 includes more shallow waters, while the MPA specified by Alternative 3 includes a greater area of deep water. The proposed MPA is expected to protect more deepwater and mid-shelf snapper-grouper species than the MPAs specified by Alternatives 1 and 3. The status quo alternative (Alternative 4) would not create an MPA off the coast of northern South Carolina, would not increase the protection of mid-shelf and deepwater snapper-grouper species, and would not, therefore, meet the Council's objective. Three alternatives, including the status quo, were considered for the third action. Both the proposed action (Alternative 1) and Alternative 2 would establish an MPA off the coast of central South Carolina. The proposed MPA is oriented perpendicular to the coast and is located about 45 nm southeast of Charleston Harbor. The MPA specified by Alternative 2 is oriented parallel to the shoreline and is located approximately 50 nm southeast of Charleston Harbor. Both MPAs are 10 by 5 nm in size. The proposed MPA is expected to protect more mid-shelf and rare deepwater snapper-grouper species than Alternative 2. The status quo alternative (Alternative 3) would not create an MPA off the coast of central South Carolina, would not increase the protection of mid-shelf and deepwater snapper-grouper species, and would not, therefore, meet the Council's objective. Three alternatives, including the status quo, were considered for the fourth action. Both the proposed action (Alternative 1) and Alternative 2 would establish an MPA off the coast of Georgia. The proposed MPA is located approximately 69 nm southeast of the mouth of Wassaw Sound, while the MPA specified by Alternative 2 is located about 65 nm southeast of the mouth of Wassaw Sound. Both the proposed MPA and the MPA specified by Alternative 2 are 10 by 10 nm in size, and both share a common area with waters 90 to 210 m deep. However, the proposed MPA also includes waters ranging from 90 to 300 m deep and runs parallel to the shore, while the MPA specified by Alternative 2 includes an area with a wider depth range, from 65 to 380 m and does not run parallel to the coast. The proposed MPA is expected to be easier for industry to maneuver around and may result in greater protection of the mid-shelf habitat that serves as a nursery for deepwater species, notably tilefish, than the MPA specified by Alternative 2. The status quo alternative (Alternative 3) would not create an MPA off the coast of Georgia, would not increase the protection of tilefish, snowy grouper, and mid-shelf snapper-grouper species, and would not, therefore, meet the Council's objective. Seven alternatives, including the status quo, were considered for the fifth action. The proposed action (Alternative 4) and five of the other alternatives would establish an MPA off the coast of north Florida. The proposed MPA is approximately 60 nm off the mouth of St. John's River near Jacksonville. The MPA specified by Alternative 1 is approximately 57 nm off the mouth of the St. John's River; the MPA specified by Alternative 2 is about 47 nm east of St. Augustine; the MPA specified by Alternative 3 is approximately 43 nm off New Smyrna Beach; the MPA specified by Alternative 5 is about 55 nm east of St. Augustine; and the MPA specified by Alternative 6 is approximately 45 nm off New Smyrna Beach. The proposed MPA and the MPAs specified by Alternatives 1, 2, and 5 are 10 by 10 nm in size, while the MPAs specified by Alternatives 3 and 6 are 22 by 23 nm in size. The proposed MPA shares an area with the MPA specified by Alternative 1 that ranges from 60 to 200 m in depth. The proposed MPA also includes deeper waters, ranging from 200 to 380 m in depth, while the MPA specified by Alternative 1 includes an area of shallower water, ranging from 50 to 80 m in depth. The MPAs specified by Alternatives 2 and 5 share an area with depths ranging from 90 to 150 m. The MPA specified by Alternative 5 also includes a deeper area that ranges from 150 to 390 m, while the MPA specified by Alternative 2 includes a shallower area of 55 to 80 m. Most of the area included by the MPAs specified by Alternatives 3 and 6 overlap in an area ranging from 200 to 690 m deep. The MPA specified by Alternative 3 also includes a deeper area that exceeds 700 m, while the MPA specified by Alternative 6 includes a shallower area of 80 to 150 m. Although the MPAs specified by Alternatives 1 and 2 would protect more mid-shelf snapper-grouper species than the proposed MPA, while the MPAs specified by Alternatives 3, 5 and 6 would protect more deepwater species, these alternatives would also be expected to result in greater adverse economic impacts than the proposed MPA. The status quo alternative (Alternative 7), would not create an MPA off the coast of north Florida, would not increase the protection of mid-shelf and deepwater snapper-grouper species, and would not, therefore, meet the Council's objective. Two alternatives, including the status quo, were considered for the sixth action. The proposed action would establish an MPA in the area known as Sea Bass Rocks off the coast of Florida. The status quo alternative would not create an MPA in this area, would not increase the protection of deepwater snapper-grouper species in this area, and would not, therefore, meet the Council's objective. Two alternatives, including the status quo, were considered for the seventh action. The proposed action would establish an MPA in the vicinity of the area known as East Hump and Unnamed Hump off the coast of the Florida Keys. The status quo alternative, would not create an MPA in this area, would not increase the protection of deepwater snapper-grouper and protected species in this area, and would not, therefore, meet the Council's objectives. Two alternatives, including the status quo, were considered for the eighth action. The proposed action would establish an artificial reef MPA off the coast of South Carolina. The status quo alternative would not create this MPA, would not increase the opportunity to improve snapper-grouper populations in this area, and would not, therefore, meet the Council's objective. List of Subjects in 50 CFR Part 622 Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands. Dated: July 10, 2008. Samuel D. Rauch III, Deputy Assistant Administrator For Regulatory Programs, 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 definition of “MPA” is added in alphabetical order to read as follows: § 622.2 Definitions and acronyms. *MPA* means marine protected area. 3. In § 622.35, paragraph

(i)is added to read as follows: § 622.35 Atlantic EEZ seasonal and/or area closures.

(i)*MPAs* .

(1)No person may fish for a South Atlantic snapper-grouper in an MPA, and no person may possess a South Atlantic snapper-grouper in an MPA. However, the prohibition on possession does not apply to a person aboard a vessel that is in transit with fishing gear appropriately stowed as specified in paragraph (i)(2) of this section. In addition to these restrictions, see § 635.21(d)(1)(iii) of this chapter regarding restrictions applicable within these MPAs for any vessel issued a permit under part 635 of this chapter that has longline gear on board. MPAs consist of deepwater areas as follows:

(i)*Snowy Grouper Wreck MPA* is bounded by rhumb lines connecting, in order, the following points: Point North lat. West long. A 33°25′ 77°04.75′ B 33°34.75′ 76°51.3′ C 33°25.5′ 76°46.5′ D 33°15.75′ 77°00.0′ A 33°25′ 77°04.75′

(ii)*Northern South Carolina MPA* is bounded on the north by 32°53.5′ N. lat.; on the south by 32°48.5′ N. lat.; on the east by 78°04.75′ W. long.; and on the west by 78°16.75′ W. long.

(iii)*Edisto MPA* is bounded on the north by 32°24′ N. lat.; on the south by 32°18.5′ N. lat.; on the east by 78°54.0′ W. long.; and on the west by 79°06.0′ W. long.

(iv)*Charleston Deep Artificial Reef MPA* is bounded by rhumb lines connecting, in order, the following points: Point North lat. West long. A 32°04′ 79°12′ B 32°08.5′ 79°07.5′ C 32°06′ 79°05′ D 32°01.5′ 79°09.3′ A 32°04′ 79°12′

(v)*Georgia MPA* is bounded by rhumb lines connecting, in order, the following points: Point North lat. West long. A 31°43′ 79°31′ B 31°43′ 79°21′ C 31°34′ 79°29′ D 31°34′ 79°39′ A 31°43′ 79°31′

(vi)*North Florida MPA* is bounded on the north by 30°29′ N. lat.; on the south by 30°19′ N. lat.; on the east by 80°02′ W. long.; and on the west by 80°14′ W. long.

(vii)*St. Lucie Hump MPA* is bounded on the north by 27°08′ N. lat.; on the south by 27°04′ N. lat.; on the east by 79°58′ W. long.; and on the west by 80°00′ W. long.

(viii)East Hump MPA is bounded by rhumb lines connecting, in order, the following points: Point North lat. West long. A 24°36.5′ 80°45.5′ B 24°32′ 80°36′ C 24°27.5′ 80°38.5′ D 24°32.5′ 80°48′ A 24°36.5′ 80°45.5′

(2)For the purpose of paragraph (i)(1) of this section, transit means direct, non-stop progression through the MPA. Fishing gear appropriately stowed means—

(i)A longline may be left on the drum if all gangions and hooks are disconnected and stowed below deck. Hooks cannot be baited. All buoys must be disconnected from the gear; however, buoys may remain on deck.

(ii)A trawl or try net may remain on deck, but trawl doors must be disconnected from such net and must be secured.

(iii)A gillnet, stab net, or trammel net must be left on the drum. Any additional such nets not attached to the drum must be stowed below deck.

(iv)Terminal gear (i.e., hook, leader, sinker, flasher, or bait) used with an automatic reel, bandit gear, buoy gear, handline, or rod and reel must be disconnected and stowed separately from such fishing gear. A rod and reel must be removed from the rod holder and stowed securely on or below deck.

(v)A crustacean trap, golden crab trap, or sea bass pot cannot be baited. All buoys must be disconnected from the gear; however, buoys may remain on deck. 4. Add Figure 1 to Part 622 to read as follows: EP16JY08.009 [FR Doc. E8-16252 Filed 7-15-08; 8:45 am] BILLING CODE 3510-22-S 73 137 Wednesday, July 16, 2008 Notices DEPARTMENT OF AGRICULTURE Cooperative State Research, Education, and Extension Service; Notice of Intent To Revise and Extend a Currently Approved Information Collection AGENCY: Cooperative State Research, Education, and Extension Service, USDA. ACTION: Notice and request for comments. SUMMARY: In accordance with the Office of Management and Budget

(OMB)regulations (5 CFR Part 1320) that implement the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, *et seq.* ), this notice announces the Cooperative State Research, Education, and Extension Service's (CSREES) intention to request approval to revise and extend a currently approved information collection for the Expanded Food and Nutrition Education Program (EFNEP). DATES: Written comments on this notice must be received by September 15, 2008 to be assured of consideration. Comments received after that date will be considered to the extent practicable. ADDRESSES: You may submit comments by any of the following methods: *Federal eRulemaking Portal: http://regulations.gov.* Follow the instructions for submitting comments. *E-mail: jhitchcock@csrees.usda.gov; Mail:* Jason Hitchcock, Information Systems and Technology Management, USDA/CSREES, STOP 2216, 1400 Independence Avenue, SW., Washington, DC 20250-2216; *Hand Delivery/Courier:* Jason Hitchcock, Information Systems and Technology Management, USDA/CSREES, 800 9th Street, SW., Room 4217, Waterfront Centre, Washington, DC 20024. FOR FURTHER INFORMATION CONTACT: Jason Hitchcock,

(202)720-4343. SUPPLEMENTARY INFORMATION: *Title:* Expanded Food and Nutrition Education Program. *OMB Number:* 0524-0044. *Expiration Date of Current Approval:* January 31, 2009. *Type of Request:* Intent to seek approval to revise and extend a currently approved information collection for three years. *Abstract:* The U.S. Department of Agriculture's

(USDA)CSREES Expanded Food and Nutrition Education Program (EFNEP) is a unique program that began in 1969 and is designed to reach limited resource audiences, especially youth and families with young children. Extension professionals train and supervise paraprofessionals and volunteers who teach food and nutrition information and skills to limited resource families and youth. EFNEP operates through the 1862 and 1890 Land-Grant Institutions in all 50 States and in American Samoa, the District of Columbia, Guam, Micronesia, the Northern Marianas, Puerto Rico, and the U.S. Virgin Islands. EFNEP is authorized under section 3(d) of the Smith-Lever Act (7 U.S.C. 343 (d)) and section 1425 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3175). The objectives of EFNEP are to assist limited resource families and youth in acquiring the knowledge, skills, attitudes, and changed behaviors necessary to obtain nutritionally sound diets, and to contribute to their personal development and the nutritional well-being of the entire family. CSREES sponsors an integrated data collection process that is used at the county, State, and federal level. The current data collection system, the Nutrition Education Evaluation and Reporting System (NEERS), is an update to the OMB approved Evaluation and Reporting System (E/RS). NEERS has been developed to capture EFNEP impacts. Its purpose is to gauge if the federal assistance provided has had an impact on the target audience. It also enables CSREES staff to make programmatic improvements in delivering nutrition education. Further, the data collected provide information for program management decisions at the local level, and diagnostic assessments of participant needs. Specifications for this system were developed by a committee made up of representatives from across the United States and are in compliance with Federal standards for maintaining, collecting, and presenting data on race and ethnicity and protecting personally identifiable information. NEERS stores information on:

(1)Adult program participants, their family structure and their dietary practices;

(2)youth group participants; and

(3)staff. NEERS consists of separate software sub-systems for the county and State/territory levels. County data are exported electronically to the State-level systems. University staff import county level data into the State/territory level system. The State/territory level data is used to generate State/territory level reports for stakeholders and to guide program management decisions. States also export State/territory level data electronically to the Federal-level system for State and national assessments of the program's impact. One revision to the software is that NEERS will not have a formal system for data collection at the Federal level. Instead, the State-compiled data will be aggregated using statistical software and then, as before, will be used to create national reports which are made available to the public. Other revisions to the currently approved information collection include: Receiving latitude and longitude coordinates on people served, and Metropolitan Statistical Area and Congressional District information related to program participation. This feature can be used to illustrate program reach and impact in a targeted way. NEERS also includes a new foods database and revised client impact reports matching the USDA MyPyramid food groupings, quantities consumed, and physical activity measures of clients. This feature allows EFNEP data collection to be consistent with current Federal dietary recommendations. The evaluation processes of EFNEP remain consistent with the requirements of legislation and OMB requirements. The Government Performance and Results Act of 1993

(GPRA)(Pub. L. 103-62) and the Agricultural Research, Extension, and Education Reform Act of 1998 (AREERA) (Pub. L. 105-185), together with OMB requirements, support the reporting requirements requested in this information collection. One of the five Presidential Management Agenda initiatives, Budget and Performance Integration, builds on GPRA and earlier efforts to identify program goals and performance measures and link them to the budget process. AREERA requires a performance evaluation to be conducted to determine whether federally funded agricultural research, extension, and education programs result in public goods that have national or multistate significance (7 U.S.C. 7671). *Estimate of Burden:* The respondents include the 1862 and 1890 Land-Grant Institutions in all 50 States and in American Samoa, the District of Columbia, Guam, Micronesia, the Northern Marianas, Puerto Rico, and the U.S. Virgin Islands. The number of respondents has increased from 56 to 75 institutions (i.e. State/territory level responses annually), thus constituting a total annual estimated burden of 91,982 hours for this data collection process—for participant education and data entry, aggregation, and reporting. Updates to NEERS are still being implemented in some states in FY 08, so burden estimates reflect the previous version of the data collection system. *Comments:* 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 being collected; and

(d)ways to minimize the burden of the collection of information on those who respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. *Obtaining a Copy of the Information Collection:* A copy of the information collection and related instructions may be obtained free of charge by contacting Jason Hitchcock by telephone,

(202)720-4343, or by e-mail, *jhitchcock@csrees.usda.gov.* Done in Washington, DC, this 10th day of July, 2008. Merle Pierson, Deputy Under Secretary, Research, Education, and Economics. [FR Doc. E8-16149 Filed 7-15-08; 8:45 am] BILLING CODE 3410-22-P DEPARTMENT OF AGRICULTURE Office of the Secretary Notice of Appointment of Members to the National Agricultural Research, Extension, Education, and Economics Advisory Board AGENCY: Research, Education, and Economics, USDA. ACTION: Solicitation for membership. SUMMARY: In accordance with the Federal Advisory Committee Act, 5 U.S.C. App., the United States Department of Agriculture announces solicitation for nominations to fill 6 vacancies on the National Agricultural Research, Extension, Education, and Economics Advisory Board. DATES: Deadline for Advisory Board member nominations is August 25, 2008. ADDRESSES: The nominee's name, resume, and completed Form AD-755 must be sent to the U.S. Department of Agriculture, National Research, Extension, Education, and Economics Advisory Board Office, 1400 Independence Avenue, SW., Room 344-A, Whitten Building, Washington, DC 20250-2255. FOR FURTHER INFORMATION CONTACT: Karen Hunter, Executive Director, National Agricultural Research, Extension, Education, and Economics Advisory Board, 1400 Independence Avenue, SW., Room 344-A, Whitten Building, Washington, DC 20250-2255, telephone: 202-720-3684; fax: 202-720-6199; e-mail: *khunter@csrees.usda.gov.* SUPPLEMENTARY INFORMATION: Section 1408 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3123) was amended by the Farm Security and Rural Investment Act of 2008 by deleting six members to the National Agricultural Research, Extension, Education, and Economics Advisory Board, to total 25 members. Since the inception of the Advisory Board by congressional legislation in 1996, each member has represented a specific category related to farming or ranching, food production and processing, forestry research, crop and animal science, land-grant institutions, non-land grant college or university with a historic commitment to research in the food and agricultural sciences, food retailing and marketing, rural economic development, and natural resource and consumer interest groups, among many others. The Board was first appointed by the Secretary of Agriculture in September 1996 and one-third of its members were appointed for a one-, two-, and three-year terms, respectively. The terms for 6 members who represent specific categories will expire September 30, 2008. Nominations for a 3-year appointment for these 6 vacant categories are sought. All nominees will be carefully reviewed for their expertise, leadership, and relevance to a category. The 6 slots to be filled are: Category B. Farm Cooperatives Category D. Plant Commodity Producer Category G. National Aquaculture Association Category J. National Food Science Organization Category L. National Nutritional Science Society Category M. Land-Grant Colleges and Universities-1862 Nominations are being solicited from organizations, associations, societies, councils, federations, groups, and companies that represent a wide variety of food and agricultural interests throughout the country. Nominations for one individual who fits several of the categories listed above, *or* for more than one person who fits one category, will be accepted. In your nomination letter, please indicate the specific membership category for each nominee. Each nominee must fill out a form AD-755, “Advisory Committee Membership Background Information” (which can be obtained from the contact person below or may be printed out from the following Web site: *http://www.nareeeab.ree.usda.gov* and then searching for “AD-755”). All nominees will be vetted before selection. Nominations are open to all individuals without regard to race, color, religion, sex, national origin, age, mental or physical handicap, marital status, or sexual orientation. To ensure that recommendations of the Advisory Board take into account the needs of the diverse groups served by the Department, membership shall include, to the extent practicable, individuals with demonstrated ability to represent minorities, women, and persons with disabilities. Appointments to the National Agricultural Research, Extension, Education, and Economics Advisory Board will be made by the Secretary of Agriculture. Done at Washington, DC, this 10th day of July 2008. Merle D. Pierson, Deputy Under Secretary, Research, Education, and Economics. [FR Doc. E8-16189 Filed 7-15-08; 8:45 am] BILLING CODE 3410-03-P DEPARTMENT OF AGRICULTURE Commodity Credit Corporation Notice of Funds Availability: Inviting Applications for the Emerging Markets Program *Announcement Type:* New. *Catalog of Federal Domestic Assistance

(CFDA)Number:* 10.603. SUMMARY: The Commodity Credit Corporation

(CCC)announces that it is inviting proposals for the 2009 Emerging Markets Program (EMP). The intended effect of this notice is to solicit applications from the private sector and from government agencies for FY 2009 and award funds in October 2008. The EMP is administered by personnel of the Foreign Agricultural Service (FAS). DATES: All proposals must be received by 5 p.m. Eastern Daylight Time, August 15, 2008. Applications received after this time will be considered only if funds are still available. FOR FURTHER INFORMATION CONTACT: Entities wishing to apply for funding should contact the Grants Management Branch, Foreign Agricultural Service, phone:

(202)720-5306, fax:

(202)690-0193, e-mail: *emo@fas.usda.gov.* Information is also available on the Foreign Agricultural Service Web site at *http://www.fas.usda.gov/mos/em-markets/em-markets.asp* SUPPLEMENTARY INFORMATION: I. Funding Opportunity Description *Authority:* The EMP is authorized by section 1542(d)(1)(D) of the Food, Agriculture, Conservation and Trade Act of 1990 (The Act), as amended. The EMP regulations appear at 7 CFR part 1486. *1. Purpose:* The EMP is designed to assist U.S. entities in developing, maintaining, or expanding exports of U.S. agricultural commodities and products by providing partial funding for technical assistance activities that promote U.S. products in emerging foreign markets. The Program is intended primarily to support export market development efforts of the private sector, but Program resources may also be used to assist public organizations. All U.S. agricultural commodities, except tobacco, are eligible for consideration. Agricultural product(s) should be comprised of at least 50 percent U.S. origin content by weight, exclusive of added water, to be eligible for funding. Proposals which seek support for multiple commodities are also eligible. EMP funding may only be used to support exports of U.S. agricultural commodities/products through generic activities. *2. Appropriate Activities:* Following are illustrative of the types of project activities that may be considered for funding under the EMP: —Projects designed specifically to improve market access in emerging foreign markets. Example: Activities that mitigate the impact of political or economic events; —Projects that specifically address various constraints to U.S. exports, including sanitary and phytosanitary issues and other non-tariff barriers. Examples: Seminars on U.S. food safety standards and regulations; and assessing and addressing pest and disease problems that inhibit U.S. exports; —Short-term training in broad aspects of agriculture and agribusiness trade that will benefit U.S. exporters. Examples: Retail training or transportation/distribution seminars; —Projects that help foreign governments collect and use market information and develop free trade policies that benefit U.S. exporters as well as the target country or countries. Examples: Agricultural statistical analysis or development of market information systems; —Assessments and follow-up activities designed to improve country-wide food and business systems or to determine potential use of general export credit guarantees. Examples: Product needs assessments and market analysis; —Studies of food distribution channels in emerging markets, including infrastructural impediments to U.S. exports. Examples: Grain storage handling and inventory systems; and distribution infrastructure development; and —Marketing and distribution of value-added products. Example: Market research on the potential for consumer-ready foods or new uses of a product. EMP funds may not be used to support normal operating costs of individual organizations, nor as a source to recover pre-award costs or prior expenses from previous or ongoing projects. Proposals that counter national strategies or duplicate activities planned or already underway by U.S. non-profit agricultural commodity or trade associations (“cooperator”) organizations will not be considered. Other ineligible expenditures include branded product promotions (in-store, restaurant advertising, labeling, etc.); advertising, administrative, and operational expenses for trade shows; Web site development; equipment purchases; and the preparation and printing of brochures, flyers, and posters (except in connection with specific technical assistance activities such as training seminars.) For a more complete description of ineligible expenditures, please refer to the EMP regulations. *3. Eligible Markets:* The Act defines an emerging market as any country that the Secretary of Agriculture determines:

(a)Is taking steps toward developing a market-oriented economy through the food, agriculture, or rural business sectors of the economy of the country; and

(b)Has the potential to provide a viable and significant market for United States agricultural commodities or products of United States agricultural commodities. Because EMP funds are limited and the range of potential emerging market countries is worldwide, consideration will be given to proposals that target countries or regional groups with per capita income of less than $11,115 (the current ceiling on upper middle income economies as determined by the World Bank [World Development Indicators; July 2007, *http://siteresources.worldbank.org/DATASTATISTICS/Resources/CLASS.XLS]* ) and populations of greater than 1 million. Income limits and their calculation can change from year to year with the result that a given country may qualify under the legislative and administrative criteria one year but not the next. Therefore, CCC has not established a fixed list of “emerging market” countries. A few countries technically qualify as emerging markets but may require a separate determination before funding can be considered because of political sensitivities. II. Award Information In general, all qualified proposals received before the application deadline will compete for EMP funding. Priority consideration will be given to proposals that identify and seek to address specific problems or constraints to trade in emerging markets through technical assistance activities that are intended to expand or maintain U.S. agricultural exports. Priority consideration will also be given to proposals that directly support or address at least one of the goals and objectives in the USDA and FAS Strategic Plans. The applicants' willingness to contribute resources, including cash or goods and services will be a critical factor in determining which proposals are funded under the EMP. Proposals will also be judged on the potential benefits to the industry represented by the applicant and the degree to which the proposal demonstrates industry support. The limited funds and the range of eligible emerging markets worldwide generally preclude CCC from approving large budgets for individual projects. While there is no minimum or maximum amount set for EMP-funded projects, most projects are funded at a level of less than $500,000 and for a duration of approximately 1 year. Private entities may submit multi-year proposals requesting higher levels of funding that may be considered in the context of a detailed strategic implementation plan. Funding in such cases is generally limited to 3 years and provided one year at a time with commitments beyond the first year subject to interim evaluations and funding availability. Federal government entities are not eligible for multi-year funding. Funding for successful proposals will be provided through specific agreements. The CCC, through FAS, will be kept informed of the implementation of approved projects through the requirement to provide quarterly progress reports and final performance reports. Changes in the original project timelines and adjustments within project budgets must be approved by FAS. Note: EMP funds awarded to federal government agencies must be expended or otherwise obligated by close of business, September 30, 2009. III. Eligibility and Qualification Information *1. Eligible Applicants:* Any United States private or Government entity with a demonstrated role or interest in exports of U.S. agricultural commodities or products may apply to the program. Government entities consist of Federal, State, and local agencies. Private entities include non-profit trade associations, universities, agricultural cooperatives, state regional trade groups (SRTG), profit-making entities, and consulting businesses. Proposals from research and consulting organizations will be considered if they provide evidence of substantial participation in and financial support from the U.S. industry. For-profit entities are also eligible but may not use program funds to conduct private business, promote private self-interests, supplement the costs of normal sales activities, or promote their own products or services beyond specific uses approved by CCC in a given project. U.S. market development cooperators and SRTGs may seek funding to address priority, market specific issues and to undertake activities not suitable for funding under other marketing programs, *e.g.* , the Foreign Market Development Cooperator (Cooperator) Program and the Market Access Program (MAP). Foreign organizations, whether government or private, may participate as third parties in activities carried out by U.S. organizations, but are not eligible for funding assistance from the program. *2. Cost Sharing:* No private sector proposal will be considered without the element of cost-share from the applicant and/or U.S. partners. The EMP is intended to complement, not supplant, the efforts of the U.S. private sector. There is no minimum or maximum amount of cost-share, though the range in recent successful proposals has been between 35 and 75 percent. The degree of commitment to a proposed project, represented by the amount and type of private funding, is used in determining which proposals will be approved for funding. Cost-share may be actual cash invested or professional time of staff assigned to the project. Proposals for which private industry is willing to commit cash, rather than in-kind contributions such as staff resources, will be given priority consideration. Cost-sharing is not required for proposals from U.S. Government agencies, but is mandatory for all other eligible entities, even when they may be party to a joint proposal with a U.S. Government agency. Contributions from USDA or other U.S. Government agencies or programs may not be counted toward the stated cost-share requirement. Similarly, contributions from foreign (non-U.S.) organizations may not be counted toward the cost-share requirement, but may be counted in the total cost of the project. *3. Other:* Proposals should include a justification for funding assistance from the program—an explanation as to what specifically could not be accomplished without Federal funding assistance and why the participating organization(s) would be unlikely to carry out the project without such assistance. Applicants may submit more than one proposal. IV. Application and Submission Information *1. Address to Request Application Package:* EMP applicants have the opportunity to utilize the Unified Export Strategy

(UES)application process, an on-line system which provides a means for interested applicants to submit a consolidated and strategically coordinated single proposal that incorporates funding requests for any or all of the market development programs administered by FAS. Organizations are encouraged to submit their application to FAS through the UES application Internet Web site. However, applicants are not required to use the UES format. The Internet-based format reduces paperwork and expedites the FAS processing and review cycle. Applicants planning to use the on-line UES system must contact the Program Policy Staff at

(202)720-4327 to obtain site access information, including a user ID and password. The Internet-based application, including step-by-step instructions for its use, is located at the following URL address: *http://www.fas.usda.gov/cooperators.html* . A help file is available to assist applicants with the process. Applicants using the online system should also provide, promptly after the deadline for submitting the on-line application, a printed or e-mailed version of each proposal (using Word or compatible format) to the following address: Hand Delivery (including FedEx, DHL, UPS, etc.): U.S. Department of Agriculture, Foreign Agricultural Service, Grants Management Branch, Portals Office Building, Suite 400, 1250 Maryland Avenue, SW., Washington, DC 20024. Applicants electing not to use the on-line system must submit both

(1)two printed copies of their application to the address above and

(2)an electronic version to *emo@fas.usda.gov* . *2. Content and Form of Application Submission:* To be considered for the EMP, an applicant must submit to the FAS information required by the EMP regulations 7 CFR part 1486. EMP regulations and additional information are available at the following URL address: *http://www.fas.usda.gov/mos/em-markets/em-markets.asp* . In addition, in accordance with the Office of Management and Budget's issuance of a final policy (68 FR 38402) regarding the need to identify entities that are receiving government awards, all applicants must submit a Dun and Bradstreet Data Universal Numbering System

(DUNS)number. An applicant may request a DUNS number at no cost by calling the dedicated toll-free DUNS number request line on 1-866-705-5711. Applications should be no longer than ten

(10)pages and include the following information:

(a)Date of proposal;

(b)Name of organization submitting proposal;

(c)Organization address, telephone and fax numbers;

(d)Tax ID number;

(e)DUNS number;

(f)Primary contact person;

(g)Full title of proposal;

(h)Target market(s);

(i)Current conditions in the target market(s) affecting the intended commodity or product;

(j)Description of problem(s), i.e., constraint(s), to be addressed by the project, such as inadequate knowledge of the market, insufficient trade contacts, lack of awareness by foreign officials of U.S. products and business practices, impediments (infrastructure, financing, regulatory or other non-tariff barriers), etc.;

(k)Project objectives;

(l)Performance measures: Benchmarks for quantifying progress in meeting the objectives;

(m)Rationale: Explanation of the underlying reasons for the project proposal and its approach, the anticipated benefits, and any additional pertinent analysis;

(n)Clear demonstration that successful implementation will benefit a particular industry as a whole, not just the applicant(s);

(o)Explanation as to what specifically could not be accomplished without Federal funding assistance and why the participating organization(s) would be unlikely to carry out the project without such assistance;

(p)Specific description of activity/activities to be undertaken;

(q)Timeline(s) for implementation of activity, including start and end dates;

(r)Information on whether similar activities are or have previously been funded with USDA resources in target country/countries (e.g., under MAP and/or Cooperator programs); and

(s)Detailed line item activity budget; Cost items should be allocated separately to each participating organization. Expense items constituting a proposed activity's overall budget (e.g., salaries, travel expenses, consultant fees, administrative costs, etc.), with a line item cost for each, should be listed, clearly indicating:

(1)Which items are to be covered by EMP funding;

(2)Which by the participating U.S. organization(s); and

(3)Which by foreign third parties (if applicable). Cost items for individual consultant fees should show calculation of daily rate and number of days. Cost items for travel expenses should show number of trips, destinations, cost, and objective for each trip. Qualifications of applicant(s) should be included as an attachment. *3. Submission Dates and Times:* All applications must be received by 5 p.m. Eastern Daylight Time on August 15, 2008, in the Grants Management Branch. Proposals received after this date and time will not be reviewed or considered for program funding. *4. Funding Restrictions:* Certain types of expenses are not eligible for reimbursement by the program, and there are limits on other categories of expenses such as indirect overhead charges, travel expenses, and consulting fees. CCC will also not reimburse unreasonable expenditures or expenditures made prior to approval of a proposal. Full details of the funding restrictions are available in the EMP regulations. *5. Other Submission Requirements and Considerations:* All Internet-based applications must be properly submitted by 5 p.m. Eastern Daylight Time, August 15, 2008. All applications on compact disc (with two accompanying paper copies) and any other form of application must be received by 5 p.m. Eastern Daylight Time, August 15, 2008, at the following address: Hand Delivery (including FedEx, DHL, UPS, etc.): U.S. Department of Agriculture, Foreign Agricultural Service, Grants Management Branch, Portals Office Building, Suite 400, 1250 Maryland Ave., SW., Washington, DC 20024. V. Application Review Information *1. Criteria:* Key criteria used in judging proposals include, among others: —Appropriateness of the activities for the targeted market(s) and the extent to which the project identifies market barriers, e.g., a fundamental deficiency in the market and/or a recent change in market conditions; —Potential of the project to expand U.S. market share, increase U.S. exports or sales, and/or improve awareness of U.S. agricultural commodities and products; —Quality of the project's performance measures, and the degree to which they relate to the objectives, deliverables, and proposed approach and activities; —Justification for Federal funding; —Overall cost of the project and the amount of funding provided by the applicant and any partners; and —Evidence that the organization has the knowledge, expertise, ability, and resources to successfully implement the project. Please see 7 CFR part 1486 for additional evaluation criteria. *2. Review and Selection Process:* All applications undergo a multi-phase review within FAS, by appropriate FAS field offices, and as needed, by the private sector Advisory Committee on Emerging Markets to determine the qualifications, quality, appropriateness of projects, and reasonableness of project budgets. *3. Anticipated Announcement Date:* EMP funding decisions are anticipated in late summer/fall of 2008. However, projects cannot begin before October 1, 2008. VI. Award Administration Information *1. Award Notices:* FAS will notify each applicant in writing of the final disposition of its application. FAS will send an approval letter and project agreement to each approved applicant. The approval letter and agreement will specify the terms and conditions applicable to the project, including the levels of EMP funding and cost-share contribution requirements. *2. Administrative and National Policy Requirements:* Interested parties should review the EMP regulations which are available at the following URL address: *http://www.fas.usda.gov/mos/em-markets/em-markets.asp* . *3. Reporting* . Quarterly progress reports for all programs 1 year or longer in duration are required. Projects of less than 1 year generally require a mid-term progress report. Final performance reports are due 90 days after completion of each project. Content requirements for both types of reports are contained in the Project Agreement. Final financial reports are also due 90 days after completion of each project as attachments to the final reports. VII. Agency Contact(s) For additional information and assistance, contact the Grants Management Branch, Foreign Agricultural Service, U.S. Department of Agriculture, phone:

(202)720-5306, fax:

(202)690-0193, e-mail: *emo@fas.usda.gov* . Dated: July 1, 2008. Michael W. Yost, Administrator, Foreign Agricultural Service and Vice President, Commodity Credit Corporation. [FR Doc. E8-16372 Filed 7-15-08; 8:45 am] BILLING CODE 3410-10-P DEPARTMENT OF AGRICULTURE Commodity Credit Corporation Notice of Funds Availability: Inviting Applications for the Foreign Market Development Cooperator Program *Announcement Type:* New. *Catalog of Federal Domestic Assistance

(CFDA)Number:* 10.600. SUMMARY: The Commodity Credit Corporation

(CCC)announces that it is inviting proposals for the 2009 Foreign Market Development Cooperator (Cooperator) program. The intended effect of this notice is to solicit applications from eligible applicants and award funds in October 2008. The Cooperator program is administered by personnel of the Foreign Agricultural Service (FAS). DATES: All applications must be received by 5 p.m. Eastern Daylight Time, August 15, 2008. Applications received after this date will not be considered. FOR FURTHER INFORMATION CONTACT: Entities wishing to apply for funding assistance should contact the Program Policy Staff, Foreign Agricultural Service, Portals Office Building, Suite 400, 1250 Maryland Avenue, SW., Washington, DC 20024, phone:

(202)720-4327, fax:

(202)720-9361, e-mail: *ppsadmin@fas.usda.gov.* Information is also available on the Foreign Agricultural Service Web site at *://www.fas.usda.gov/mos/programs/fmdprogram.asp* . SUPPLEMENTARY INFORMATION: I. Funding Opportunity Description *Authority:* The Cooperator program is authorized by title VII of the Agricultural Trade Act of 1978, as amended. Cooperator program regulations appear at 7 CFR part 1484. *Purpose:* The Cooperator program is designed to create, expand, and maintain foreign markets for U.S. agricultural commodities and products through cost-share assistance. Financial assistance under the Cooperator program will be made available on a competitive basis and applications will be reviewed against the evaluation criteria contained herein. All agricultural commodities, except tobacco, are eligible for consideration. The FAS allocates funds in a manner that effectively supports the strategic decision-making initiatives of the Government Performance and Results Act

(GPRA)of 1993 and the USDA's Food and Agricultural Policy (FAP). In deciding whether a proposed project will contribute to the effective creation, expansion, or maintenance of foreign markets, the FAS seeks to identify a clear, long-term agricultural trade strategy, and a program effectiveness time line against which results can be measured at specific intervals using quantifiable product or country goals. The FAS also considers the extent to which a proposed project targets markets with the greatest growth potential. These factors are part of the FAS resource allocation strategy to fund applicants who can demonstrate performance and address the objectives of the GPRA and FAP. II. Award Information Under the Cooperator program, the FAS enters into agreements with nonprofit U.S. trade organizations which have the broadest possible producer representation of the commodity being promoted and gives priority to those organizations which are nationwide in membership and scope. Cooperators may receive assistance only for the promotion of generic activities that do not involve promotions targeted directly to consumers. The program generally operates on a reimbursement basis. III. Eligibility Information *1. Eligible Applicants:* To participate in the Cooperator program, an applicant must be a nonprofit U.S. agricultural trade organization. *2. Cost Sharing:* To participate in the Cooperator program, an applicant must agree to contribute resources to its proposed promotional activities. The Cooperator program is intended to supplement, not supplant, the efforts of the U.S. private sector. The contribution must be stated in dollars and be at least 50 percent of the value of resources provided by CCC for activities conducted under the project agreement. The degree of commitment of an applicant to the promotional strategies contained in its application, as represented by the agreed cost share contributions specified therein, is considered by the FAS when determining which applications will be approved for funding. Cost-share may be actual cash invested or in-kind contributions, such as professional staff time spent on design and execution of activities. The Cooperator program regulations, in sections 1484.50 and 1484.51, provide detailed discussion of eligible and ineligible cost-share contributions. *3. Other:* Applications should include a justification for funding assistance from the program—an explanation as to what specifically could not be accomplished without federal funding assistance and why participating organization(s) are unlikely to carry out the project without such assistance. IV. Application and Submission Information *1. Address to Request Application Package:* Organizations are encouraged to submit their FMD applications to FAS through the UES application Internet Web site. The UES allows interested entities to submit a consolidated and strategically coordinated single proposal that incorporates requests for funding and recommendations for virtually all the FAS marketing programs, financial assistance programs, and market access programs. The suggested UES format encourages applicants to examine the constraints or barriers to trade that they face, identify activities that would help overcome such impediments, consider the entire pool of complementary marketing tools and program resources, and establish realistic export goals. Applicants are not required, however, to use the UES format. Organizations can submit applications in the UES format by two methods. The first allows an applicant to submit information directly to the FAS through the UES application Internet website. The FAS highly recommends applying via the Internet, as this format virtually eliminates paperwork and expedites the FAS processing and review cycle. Applicants also have the option of submitting electronic versions (along with two paper copies) of their applications to the FAS on compact disc. Applicants planning to use the Internet-based system must contact the FAS/Program Policy Staff on

(202)720-4327 to obtain site access information. The Internet-based application, including a help file containing step-by-step instructions for its use, may be found at the following URL address: *http://www.fas.usda.gov/cooperators.html* . Applicants who choose to submit applications on compact disc can obtain an application format by contacting the Program Policy Staff on

(202)720-4327. *2. Content and Form of Application Submission:* To be considered for the Cooperator program, an applicant must submit to the FAS information required by the Cooperator program regulations in section 1484.20. In addition, in accordance with the Office of Management and Budget's issuance of a final policy (68 FR 38402 (June 27, 2003)) regarding the need to identify entities that are receiving government awards, all applicants must submit a Dun and Bradstreet Data Universal Numbering System

(DUNS)number. An applicant may request a DUNS number at no cost by calling the dedicated toll-free DUNS number request line at 1-866-705-5711. Incomplete applications and applications which do not otherwise conform to this announcement will not be accepted for review. The FAS administers various other agricultural export assistance programs, including the Market Access Program (MAP), Cochran Fellowships, the Emerging Markets Program, the Quality Samples Program, Technical Assistance for Specialty Crops program, and several Export Credit Guarantee programs. Any organization that is not interested in applying for the Cooperator program but would like to request assistance through one of the other programs mentioned should contact the Program Policy Staff on

(202)720-4327. *3. Submission Dates and Times:* All applications must be received by 5 p.m. Eastern Daylight Time, August 15, 2008. All Cooperator program applicants, regardless of the method of submitting an application, also must submit by the application deadline, an original signed certification statement as specified in 7 CFR 1484.20(a)(14). Applications or certifications received after this date will not be considered. *4. Funding Restrictions:* Certain types of expenses are not eligible for reimbursement by the program, and there are limits on other categories of expenses. CCC also will not reimburse unreasonable expenditures or expenditures made prior to approval. Full details are available in the Cooperator program regulations in sections 1484.54 and 1484.55. *5. Other Submission Requirements and Considerations:* All Internet-based applications must be properly submitted by 5 p.m. Eastern Daylight Time, August 15, 2008. Signed certification statements also must be received by that time at the address listed below. All applications on compact disc (with two accompanying paper copies and a signed certification statement) and any other form of application must be received by 5 p.m. Eastern Standard Time, August 15, 2008, at the following address: Hand Delivery (including FedEx, DHL, UPS, etc.): U.S. Department of Agriculture, Foreign Agricultural Service, Program Policy Staff, Portals Office Building, Suite 400, 1250 Maryland Ave., SW., Washington, DC 20024. V. Application Review Information *1. Criteria and Review Process:* Following is a description of the FAS process for reviewing applications and the criteria for allocating available Cooperator program funds.

(1)Phase 1—Sufficiency Review and FAS Divisional Review Applications received by the closing date will be reviewed by the FAS to determine the eligibility of the applicants and the completeness of the applications. These requirements appear at sections 1484.14 and 1484.20 of the Cooperator program regulations. Applications that meet the requirements then will be further evaluated by the proper Commodity Branch in FAS' Market Development and Grants Management Division. The Commodity Branch will review each application against the criteria listed in sections 1484.21 and 1484.22 of the Cooperator program regulations. The purpose of this review is to identify meritorious proposals and to recommend an appropriate funding level for each application based upon these criteria.

(2)Phase 2—Competitive Review Meritorious applications then will be passed on to the Office of the Deputy Administrator, Office of Trade Programs, for the purpose of allocating available funds among the applicants. Applications will compete for funds on the basis of the following allocation criteria (the number in parentheses represents a percentage weight factor):

(a)Contribution Level

(40)• The applicant's 6-year average share (2004-2009) of all contributions (contributions may include cash and goods and services provided by U.S. entities in support of foreign market development activities) compared to; • The applicant's 6-year average share (2004-2009) of all Cooperator marketing plan expenditures.

(b)Past Export Performance

(20)• The 6-year average share (2003-2008) of the value of exports promoted by the applicant compared to; • The applicant's 6-year average share (2003-2008) of all Cooperator marketing plan expenditures plus a 6-year average share (2002-2008) of MAP expenditures and a 6-year average share (2002-2007) of foreign overhead provided for co-location within a U.S. agricultural trade office.

(c)Past Demand Expansion Performance

(20)• The 6-year average share (2003-2008) of the total value of world trade of the commodities promoted by the applicant compared to; • The applicant's 6-year average share (2003-2008) of all Cooperator marketing plan expenditures plus a 6-year average share (2002-2008) of MAP expenditures and a 6-year average share (2002-2007) of foreign overhead provided for co-location within a U.S. agricultural trade office.

(d)Future Demand Expansion Goals

(10)• The projected total dollar value of world trade of the commodities being promoted by the applicant for the year 2014 compared to; • The applicant's requested funding level.

(e)Accuracy of Past Demand Expansion Projections

(10)• The actual dollar value share of world trade of the commodities being promoted by the applicant for the year 2007 compared to; • The applicant's past projected share of world trade of the commodities being promoted by the applicant for the year 2007, as specified in the 2004 Cooperator program application. The Commodity Branches' recommended funding levels for each applicant are converted to percentages of the total Cooperator program funds available then multiplied by each weight factor to determine the amount of funds allocated to each applicant. *2. Anticipated Announcement Date:* Announcements of funding decisions for the Cooperator program are anticipated during October 2008. VI. Award Administration Information *1. Award Notices:* The FAS will notify each applicant in writing of the final disposition of its application. The FAS will send an approval letter and project agreement to each approved applicant. The approval letter and agreement will specify the terms and conditions applicable to the project, including the levels of Cooperator program funding, and cost-share contribution requirements. *2. Administrative and National Policy Requirements:* Interested parties should review the Cooperator program regulations which are available at the following URL address: *http://www.fas.usda.gov/mos/programs/fmdprogram.asp* . Hard copies may be obtained by contacting Program Policy Staff at

(202)720-2379. *3. Reporting:* The FAS requires various reports and evaluations from Cooperators. Reporting requirements are detailed in the Cooperator program regulations in sections 1484.53, 1484.70, and 1484.72. VII. Agency Contact(s) For additional information and assistance, contact the Program Policy Staff, Foreign Agricultural Service, U.S. Department of Agriculture, Portals Office Building, Suite 400, 1250 Maryland Avenue, SW., Washington, DC 20024, phone:

(202)720-4327, fax:

(202)720-9361, e-mail: *ppsadmin@fas.usda.gov.* Signed at Washington, DC on the 2nd of July, 2008. Michael W. Yost, Administrator, Foreign Agricultural Service, and Vice President, Commodity Credit Corporation. [FR Doc. E8-16367 Filed 7-15-08; 8:45 am] BILLING CODE 3410-10-P DEPARTMENT OF AGRICULTURE Commodity Credit Corporation Notice of Funds Availability: Inviting Applications for the Market Access Program *Announcement Type:* New. *Catalog of Federal Domestic Assistance

(CFDA)Number:* 10.601. SUMMARY: The Commodity Credit Corporation

(CCC)announces that it is inviting proposals for the 2009 Market Access Program (MAP). The intended effect of this notice is to solicit applications from eligible applicants and award funds in October 2008. The MAP is administered by personnel of the Foreign Agricultural Service (FAS). DATES: All applications must be received by 5 p.m. Eastern Daylight Time, August 15, 2008. Applications received after this date will not be considered. FOR FURTHER INFORMATION CONTACT: Entities wishing to apply for funding assistance should contact the Program Policy Staff, Foreign Agricultural Service, Portals Office Building, Suite 400, 1250 Maryland Avenue, SW., Washington, DC 20024, phone:

(202)720-4327, fax:

(202)720-9361, e-mail: *ppsadmin@fas.usda.gov* . Information is also available on the Foreign Agricultural Service Web site at *http://www.fas.usda.gov/mos/programs/map.asp.* SUPPLEMENTARY INFORMATION: I. Funding Opportunity Description *Authority:* The MAP is authorized under Section 203 of the Agricultural Trade Act of 1978, as amended. MAP regulations appear at 7 CFR part 1485. *Purpose:* The MAP is designed to create, expand, and maintain foreign markets for the United States agricultural commodities and products through cost-share assistance. Financial assistance under the MAP will be made available on a competitive basis and applications will be reviewed against the evaluation criteria contained herein and the MAP regulations. All U.S. agricultural commodities, except tobacco, are eligible for consideration. The FAS allocates funds in a manner that effectively supports the strategic decision-making initiatives of the Government Performance and Results Act

(GPRA)of 1993 and the USDA's Food and Agricultural Policy (FAP). In deciding whether a proposed project will contribute to the effective creation, expansion, or maintenance of foreign markets, the FAS seeks to identify a clear, long-term agricultural trade strategy, and a program effectiveness time line against which results can be measured at specific intervals using quantifiable product or country goals. The FAS also considers the extent to which a proposed project targets markets with the greatest growth potential. These factors are part of the FAS resource allocation strategy to fund applicants who can demonstrate performance and address the objectives of the GPRA and FAP. II. Award Information Under the MAP, the CCC enters into agreements with eligible participants to share the costs of certain overseas marketing and promotion activities. MAP participants may receive assistance for generic or brand promotion activities. The program generally operates on a reimbursement basis. III. Eligibility Information *1. Eligible Applicants:* To participate in the MAP, an applicant must be a nonprofit U.S. agricultural trade organization, a nonprofit state regional trade group (SRTGs), a U.S. agricultural cooperative, or a State agency. A small-sized U.S. commercial entity (other than a cooperative or producer association) may participate through a MAP participant. *2. Cost Sharing:* To participate in the MAP, an applicant must agree to contribute resources to its proposed promotional activities. The MAP is intended to supplement, not supplant, the efforts of the U.S. private sector. In the case of generic promotion, the contribution must be stated in dollars, and be at least 10 percent of the value of resources provided by CCC for such generic promotion. In the case of brand promotion, the contribution must be stated in dollars, and be at least 50 percent of the total cost of such brand promotion. The degree of commitment of an applicant to the promotional strategies contained in its application, as represented by the agreed cost share contributions specified therein, is considered by the FAS when determining which applications will be approved for funding. Cost-share may be actual cash invested or in-kind contributions, such as professional staff time spent on design and execution of activities. The MAP regulations, in section 1485.13(c), provide detailed discussion of eligible and ineligible cost-share contributions. *3. Other:* Applications should include a justification for funding assistance from the program—an explanation as to what specifically could not be accomplished without federal funding assistance, and why participating organization(s) are unlikely to carry out the project without such assistance. IV. Application and Submission Information *1. Address to Request Application Package:* Organizations are encouraged to submit their MAP applications to FAS through the Unified Export Strategy

(UES)application Internet Web site. The UES allows interested entities to submit a consolidated and strategically coordinated single proposal that incorporates requests for funding and recommendations for virtually all the FAS marketing programs, financial assistance programs, and market access programs. The suggested UES format encourages applicants to examine the constraints or barriers to trade that they face, identify activities that would help overcome such impediments, consider the entire pool of complementary marketing tools and program resources, and establish realistic export goals. Applicants are not required, however, to use the UES format. Organizations can submit applications in the UES format by two methods. The first allows an applicant to submit information directly to the FAS through the UES application Internet Web site. The FAS highly recommends applying via the Internet, as this format virtually eliminates paperwork, and expedites the FAS processing and review cycle. Applicants also have the option of submitting electronic versions (along with two paper copies) of their applications to the FAS on compact disc. Applicants planning to use the Internet-based system must contact the FAS/Program Policy Staff on

(202)720-4327 to obtain site access information. The Internet-based application, including a help file containing step-by- step instructions for its use, may be found at the following URL address: *http://www.fas.usda.gov/cooperators.html.* Applicants who choose to submit applications on a compact disk can obtain an application format by contacting the Program Policy Staff on

(202)720-4327. *2. Content and Form of Application Submission:* To be considered for the MAP, an applicant must submit to the FAS information required by the MAP regulations in section 1485.13. In addition, in accordance with the Office of Management and Budget's issuance of a final policy (68 FR 38402 (June 27, 2003)) regarding the need to identify entities that are receiving government awards, all applicants must submit a Dun and Bradstreet Data Universal Numbering System

(DUNS)number. An applicant may request a DUNS number at no cost by calling the dedicated toll-free DUNS number request line at 1-866-705-5711. Incomplete applications and applications which do not otherwise conform to this announcement will not be accepted for review. The FAS administers various other agricultural export assistance programs including the Foreign Market Development Cooperator (Cooperator) program, Cochran Fellowships, the Emerging Markets Program, the Quality Samples Program, the Technical Assistance for Specialty Crops program, and several Export Credit Guarantee programs. Any organization that is not interested in applying for the MAP, but would like to request assistance through one of the other programs mentioned, should contact the Program Policy Staff on

(202)720-4327. *3. Submission Dates and Times:* All applications must be received by 5 p.m. Eastern Daylight Time, August 15, 2008. All MAP applicants, regardless of the method of submitting an application, must also submit by the application deadline, an original signed certification statement as specified in 7 CFR 1485.13(a)(2)(i)(G). Applications or certifications received after this date will not be considered. *4. Funding Restrictions:* Certain types of expenses are not eligible for reimbursement by the program, and there are limits on other categories of expenses. CCC also will not reimburse unreasonable expenditures or expenditures made prior to approval. Full details are available in the MAP regulations in section 1485.16. *5. Other Submission Requirements and Considerations:* All Internet-based applications must be properly submitted by 5 p.m. Eastern Daylight Time, August 15, 2008. Signed certification statements also must be received by that time at the address listed below. All applications on compact disc (with two accompanying paper copies and a signed certification statement) and any other form of application must be received by 5 p.m. Eastern Daylight Time, August 15, 2008, at the following address: Hand Delivery (including FedEx, DHL, UPS, etc.): U.S. Department of Agriculture, Foreign Agricultural Service, Program Policy Staff, Portals Office Building, Suite 400, 1250 Maryland Ave., SW., Washington, DC 20024. V. Application Review Information *1. Criteria and Review Process:* Following is a description of the FAS process for reviewing applications and the criteria for allocating available MAP funds.

(1)Phase 1—Sufficiency Review and FAS Divisional Review: Applications received by the closing date will be reviewed by the FAS to determine the eligibility of the applicants and the completeness of the applications. These requirements appear at sections 1485.12 and 1485.13 of the MAP regulations. Applications that meet the requirements then will be further evaluated by the proper Commodity Branch in FAS' Market Development and Grants Management Division. The Commodity Branch will review each application against the criteria listed in section 1485.14 of the MAP regulations. The purpose of this review is to identify meritorious proposals and to recommend an appropriate funding level for each application based upon these criteria.

(2)Phase 2—Competitive Review: Meritorious applications then will be passed on to the Office of the Deputy Administrator, Office of Trade Programs, for the purpose of allocating available funds among the applicants. Applications will compete for funds on the basis of the following allocation criteria (the number in parentheses represents a percentage weight factor):

(a)Applicant's Contribution Level

(40)• The applicant's 4-year average share (2005-2009) of all contributions (cash and goods and services provided by U.S. entities in support of overseas marketing and promotion activities) compared to; • The applicant's 4-year average share (2005-2009) of the funding level for all MAP participants.

(b)Past Performance

(30)• The 3-year average share (2005-2007) of the value of exports promoted by the applicant compared to; • The applicant's 2-year average share (2007-2008) of the funding level for all MAP applicants plus, for those groups participating in the Cooperator program and, the 2-year average share (2007-2008) of Cooperator marketing plan budgets.

(c)Projected Export Goals

(15)• The total dollar value of projected exports promoted by the applicant for 2009 compared to; • The applicant's requested funding level;

(d)Accuracy of Past Projections

(15)• Actual exports for 2007 as reported in the 2009 MAP application compared to; • Past projections of exports for 2007 as specified in the 2007 MAP application. The Commodity Branches' recommended funding levels for each applicant are converted to percentages of the total MAP funds available then multiplied by each weight factor as described above to determine the amount of funds allocated to each applicant. *2. Anticipated Announcement Date:* Announcements of funding decisions for the MAP are anticipated during October 2008. VI. Award Administration Information *1. Award Notices:* The FAS will notify each applicant in writing of the final disposition of its application. The FAS will send an approval letter and project agreement to each approved applicant. The approval letter and agreement will specify the terms and conditions applicable to the project, including the levels of MAP funding and cost-share contribution requirements. *2. Administrative and National Policy Requirements:* Interested parties should review the MAP regulations which are available at the following URL address: *http://www.fas.usda.gov/mos/programs/map.asp.* Hard copies may be obtained by contacting Program Policy Staff at

(202)720-4327. *3. Reporting:* The FAS requires various reports and evaluations from MAP participants. Reporting requirements are detailed in the MAP regulations in section 1485.20(b) and (c). VII. Agency Contact(s) For additional information and assistance, contact the Program Policy Staff, Foreign Agricultural Service, U.S. Department of Agriculture, Portals Office Building, Suite 400, 1250 Maryland Avenue, SW., Washington, DC 20024, phone:

(202)720-4327, fax:

(202)720-9361, e-mail: *ppsdmin@fas.usda.gov.* Signed at Washington, DC on the 2nd of July, 2008. Michael W. Yost, Administrator, Foreign Agricultural Service, and Vice President, Commodity Credit Corporation. [FR Doc. E8-16370 Filed 7-15-08; 8:45 am] BILLING CODE 3410-10-P DEPARTMENT OF AGRICULTURE Commodity Credit Corporation Notice of Funds Availability; Inviting Applications for the Quality Samples Program *Announcement Type:* New. *Catalog of Federal Domestic Assistance

(CFDA)Number:* 10.605 SUMMARY: The Commodity Credit Corporation

(CCC)announces it is inviting proposals for the 2009 Quality Samples Program (QSP). The intended effect of this notice is to solicit applications from eligible applicants and award funds in October 2008. QSP is administered by personnel of the Foreign Agricultural Service (FAS). DATES: All proposals must be received by 5 p.m. Eastern Daylight Time, August 15, 2008. Applications received after this date will be considered only if funds are still available. FOR FURTHER INFORMATION CONTACT: Entities wishing to apply for funding assistance should contact the Grants Management Branch, Foreign Agricultural Service, phone:

(202)690-4058, fax:

(202)690-0193, e-mail: *emo@fas.usda.gov.* Information is also available on the Foreign Agricultural Service Web site at *http://www.fas.usda.gov/mos/programs/QSP.asp.* SUPPLEMENTARY INFORMATION: I. Funding Opportunity Description *Authority:* QSP is authorized under Section 5(f) of the CCC Charter Act, 15 U.S.C. 714c(f). *Purpose:* QSP is designed to encourage the development and expansion of export markets for U.S. agricultural commodities by assisting U.S. entities in providing commodity samples to potential foreign importers to promote a better understanding and appreciation for the high quality of U.S. agricultural commodities. QSP participants will be responsible for procuring (or arranging for the procurement of) commodity samples, exporting the samples, and providing the technical assistance necessary to facilitate successful use of the samples by importers. Participants that are funded under this announcement may seek reimbursement for the sample purchase price, the cost of transporting the samples domestically to the port of export, and then to the foreign port or point of entry. Transportation costs from the foreign port or point of entry to the final destination will not be eligible for reimbursement. CCC will not reimburse the costs incidental to purchasing and transporting samples, for example, inspection or documentation fees. Although providing technical assistance is required for all projects, CCC will not reimburse the costs of providing technical assistance. A QSP participant will be reimbursed after CCC reviews its reimbursement claim and determines that the claim is complete. *General Scope of QSP Projects:* QSP projects are the activities undertaken by a QSP participant to provide an appropriate sample of a U.S. agricultural commodity to a foreign importer, or a group of foreign importers, in a given market. The purpose of the project is to provide information to an appropriate target audience regarding the attributes, characteristics, and proper use of the U.S. commodity. A QSP project addresses a single market/commodity combination. As a general matter, QSP projects should conform to the following guidelines: • Projects should benefit the represented U.S. industry and not a specific company or brand; • Projects should develop a new market for a U.S. product, promote a new U.S. product, or promote a new use for a U.S. product, rather than promote the substitution of one established U.S. product for another; • Sample commodities provided under a QSP project must be in sufficient supply and available on a commercial basis; • The QSP project must either subject the commodity sample to further processing or substantial transformation in the importing country, or the sample must be used in technical seminars designed to demonstrate to an appropriate target audience the proper preparation or use of the sample in the creation of an end product; • Samples provided in a QSP project shall not be directly used as part of a retail promotion or supplied directly to consumers. However, the end product, that is, the product resulting from further processing, substantial transformation, or a technical seminar, may be provided to end-use consumers to demonstrate to importers consumer preference for that end product; and • Samples shall be in quantities less than a typical commercial sale and limited to the amount sufficient to achieve the project goal (e.g., not more than a full commercial mill run in the destination country). QSP projects shall target foreign importers and audiences who: • Have not previously purchased the U.S. commodity which will be transported under QSP; • Are unfamiliar with the variety, quality attribute, or end-use characteristic of the U.S. commodity; • Have been unsuccessful in previous attempts to import, process, and market the U.S. commodity (e.g., because of improper specification, blending, formulation, sanitary, or phytosanitary issues); • Are interested in testing or demonstrating the benefits of the U.S. commodity; or • Need technical assistance in processing or using the U.S. commodity. II. Award Information Under this announcement, the number of projects per participant will not be limited. However, individual projects will be limited to $75,000 of QSP reimbursement. Projects comprised of technical preparation seminars, that is, projects that do not include further processing or substantial transformation, will be limited to $15,000 of QSP reimbursement as these projects require smaller samples. Financial assistance will be made available on a reimbursement basis only; and cash advances will not be made available to any QSP participant. All proposals will be reviewed against the evaluation criteria contained herein and funds will be awarded on a competitive basis. Funding for successful proposals will be provided through specific agreements. These agreements will incorporate the proposal as approved by FAS. FAS must approve in advance any subsequent changes to the project. III. Eligibility Information *1. Applicants:* Any United States private or Government entity with a demonstrated role or interest in exporting U.S. agricultural commodities may apply to the program. Government organizations consist of Federal, State, and local agencies. Private organizations include non-profit trade associations, universities, agricultural cooperatives, state regional trade groups (SRTGs), and profit-making entities. *2. Cost Sharing:* FAS considers the applicant's willingness to contribute resources, including cash, goods, and services of the U.S. industry and foreign third parties, when determining which proposals are approved for funding. IV. Application and Submission Information *1. Address to Request Application Package:* Organizations are encouraged to submit applications to FAS through the Unified Export Strategy

(UES)application Internet Web site. The UES allows interested entities to submit a consolidated and strategically coordinated single proposal, which incorporates requests for funding and recommendations, for virtually all the FAS marketing programs, financial assistance programs, and market access programs. Applicants are not required, however, to use the UES format. Organizations can submit applications in the UES format by two methods. The first allows an applicant to submit information directly to the FAS through the UES application Internet Web site. The FAS highly recommends applying via the Internet, as this format virtually eliminates paperwork, and expedites the FAS processing and review cycle. Applicants also have the option of submitting electronic versions (along with two paper copies) of their applications to the FAS on compact disc. Applicants planning to use the UES Internet-based system must contact the FAS Program Policy Staff at

(202)720-4327 to obtain site access information including a user ID and password. The UES Internet-based application, including a help file containing step-by-step instructions for its use, may be found at the following URL address: *http://www.fas.usda.gov/cooperators.html.* Applicants who choose to submit applications on compact disc can obtain an application format at the following URL address: *http://www.fas.usda.gov/mos/programs/qsp_appl.html* . *2. Content and Form of Application Submission:* To be considered for QSP, an applicant must submit to FAS information detailed in this notice. Additionally, in accordance with the Office of Management and Budget's policy directive regarding the need to identify entities that are receiving government awards, all applicants must submit a Dun and Bradstreet Data Universal Numbering System

(a)Organizational information, including: • Organization's name, address, Chief Executive Officer (or designee), Federal Tax Identification Number (TIN), and DUNS number; • Type of organization; • Name, telephone number, fax number, and e-mail address of the primary contact person; • A description of the organization and its membership; • A description of the organization's prior export promotion experience; and • A description of the organization's experience in implementing an appropriate trade/technical assistance component.

(b)Market information, including: • An assessment of the market; • A long-term strategy in the market; and • U.S. export value/volume and market share (historic and goals) for 2002-2008;

(c)Project information, including: • A brief project title; • Amount of funding requested; • A brief description of the specific market development trade constraint or opportunity to be addressed by the project, performance measures for the years 2009-2011, which will be used to measure the effectiveness of the project, a benchmark performance measure for 2007, the viability of long-term sales to this market, the goals of the project, and the expected benefits to the represented industry; • A description of the activities planned to address the constraint or opportunity, including how the sample will be used in the end-use performance trial, the attributes of the sample to be demonstrated and its end-use benefit, and details of the trade/technical servicing component (including who will provide and who will fund this component); • A sample description (i.e. , commodity, quantity, quality, type, and grade), including a justification for selecting a sample with such characteristics (this justification should explain in detail why the project could not be effective with a smaller sample); • An itemized list of all estimated costs associated with the project for which reimbursement will be sought; • Beginning and end dates for the proposed project; and • The importer's role in the project regarding handling and processing the commodity sample;

(d)Information indicating all funding sources and amounts to be contributed by each entity that will supplement implementation of the proposed project. This may include the organization that submitted the proposal, private industry entities, host governments, foreign third parties, CCC, FAS, or other Federal agencies. Contributed resources may include cash and goods and services. *3. Submission Dates and Times:* All applications must be received by 5 p.m. Eastern Daylight Time, August 15, 2008. Applications received after this date will be considered only if funds are still available. *4. Funding Restrictions:* Proposals which request more than $75,000 of CCC funding for individual projects will not be considered. Projects comprised of technical preparation seminars will be limited to $15,000 in QSP funding. CCC will not reimburse expenditures made prior to approval of a proposal or unreasonable expenditures. *5. Other Submission Requirements:* All Internet-based applications must be properly submitted by 5 p.m. Eastern Daylight Time, August 15, 2008. All applications on compact disc (with two accompanying paper copies) and any other form of application must be received by 5 p.m. Eastern Daylight Time, August 15, 2008, at the following address: Hand Delivery (including FedEx, UPS, etc.): U.S. Department of Agriculture, Foreign Agricultural Service, Program Policy Staff, Portals Office Building, Suite 400, 1250 Maryland Avenue, SW., Washington, DC 20024. V. Application Review Information *1. Criteria and Review Process:* Following is a description of the FAS process for reviewing applications and the criteria for allocating available QSP funds. FAS will use the following criteria in evaluating proposals: • The ability of the organization to provide an experienced staff with the requisite technical and trade experience to execute the proposal; • The extent to which the proposal is targeted to a market in which the United States is generally competitive; • The potential for expanding commercial sales in the proposed market; • The nature of the specific market constraint or opportunity involved and how well it is addressed by the proposal; • The extent to which the importer's contribution in terms of handling and processing enhances the potential outcome of the project; • The amount of reimbursement requested and the organization's willingness to contribute resources, including cash and goods and services of the U.S. industry, and foreign third parties; and • How well the proposed technical assistance component assures that performance trials will effectively demonstrate the intended end-use benefit. Highest priority for funding under this announcement will be given to meritorious proposals that target countries meeting either of the following criteria: • Per capita income less than $11,115 (the ceiling on upper middle income economies as determined by the World Bank [World Development Indicators, July 2007]); and population greater than 1 million. Proposals may address suitable regional groupings, for example, the islands of the Caribbean Basin; or • U.S. market share of imports of the commodity identified in the proposal of 10 percent or less. Proposals will be evaluated by the applicable FAS Commodity Branches in the Market Development and Grants Management Division. The Commodity Branches will review each proposal against the factors described above. The purpose of this review is to identify meritorious proposals, recommend an appropriate funding level for each proposal based upon these factors, and submit proposals and funding recommendations to the Deputy Administrator, Office of Trade Programs. *2. Anticipated Announcement Date:* Announcements of funding decisions for QSP are anticipated during October 2008. VI. Award Administration Information *1. Award Notices:* FAS will notify each applicant in writing of the final disposition of its application. FAS will send an approval letter and agreement to each approved applicant. The approval letter and agreement will specify the terms and conditions applicable to the project, including the levels of QSP funding, and any cost-share contribution requirements. *2. Administrative and National Policy Requirements:* The agreements will incorporate the details of each project as approved by FAS. Each agreement will identify terms and conditions pursuant to which CCC will reimburse certain costs of each project. Agreements will also outline the responsibilities of the participant, including, but not limited to, procurement (or arranging for procurement) of the commodity sample at a fair market price, arranging for transportation of the commodity sample within the time limit specified in the agreement (organizations should endeavor to ship commodities within 6 months of the effective date of agreement), compliance with cargo preference requirements (shipment on United States flag vessels, as required), compliance with the Fly America Act requirements (shipment on United States air carriers, as required), timely and effective implementation of technical assistance, and submission of a written evaluation report within 90 days of expiration of the agreement. QSP agreements are subject to review and verification by the FAS Compliance, Security and Emergency Planning Division. Upon request, a QSP participant shall provide to CCC the original documents which support the participant's reimbursement claims. CCC may deny a claim for reimbursement if the claim is not supported by adequate documentation. *3. Reporting:* A written evaluation report must be submitted within 90 days of the expiration of each participant's QSP agreement. Evaluation reports should address all performance measures that were presented in the proposal. VII. Agency Contact(s) For additional information and assistance, contact the Grants Management Branch, Foreign Agricultural Service, phone:

(202)690-4058, fax:

(202)690-0193, e-mail: *emo@fas.usda.gov* . Signed at Washington, DC on the 2nd of July, 2008. Michael W. Yost, Administrator, Foreign Agricultural Service, and Vice President, Commodity Credit Corporation. [FR Doc. E8-16368 Filed 7-15-08; 8:45 am] BILLING CODE 3410-10-P DEPARTMENT OF AGRICULTURE Commodity Credit Corporation Notice of Funds Availability; Inviting Applications for the Technical Assistance for Specialty Crops Program *Announcement Type:* New. *Catalog of Federal Domestic Assistance

(CFDA)Number:* 10.604. SUMMARY: The Commodity Credit Corporation

(CCC)announces that it is inviting proposals for the 2009 Technical Assistance for Specialty Crops

(TASC)program. The intended effect of this notice is to solicit applications from the private sector and from government agencies for FY 2009 and award funds in October 2008. The TASC program is administered by personnel of the Foreign Agricultural Service (FAS). DATES: See paragraph IV.4 below for a detailed description of relevant dates. FOR FURTHER INFORMATION CONTACT: Entities wishing to apply for funding assistance should contact the Grants Management Branch, Foreign Agricultural Service, U.S. Department of Agriculture, phone:

(202)720-0866, fax:

(202)690-0193, e-mail: *emo@fas.usda.gov.* Information is also available on the Foreign Agricultural Service Web site at *http://www.fas.usda.gov/mos/tasc/tasc.asp.* SUPPLEMENTARY INFORMATION: I. Funding Opportunity Description *Authority:* The TASC program is authorized by section 3205 of Pub. L. 107-171. TASC regulations appear at 7 CFR part 1487. *Purpose:* The TASC program is designed to assist U.S. organizations by providing funding for projects that address sanitary, phytosanitary, or related technical barriers that prohibit or threaten the export of U.S. specialty crops. U.S. specialty crops, for the purpose of the TASC program, are defined to include all cultivated plants, or the products thereof, produced in the United States, except wheat, feed grains, oilseeds, cotton, rice, peanuts, sugar, and tobacco. As a general matter, TASC program projects should be designed to address the following criteria: • Projects should address a sanitary, phytosanitary, or related technical barrier that prohibits or threatens the export of U.S. specialty crops; • Projects should demonstrably benefit the represented industry rather than a specific company or brand; and • Projects must address barriers to exports of commercially-available U.S. specialty crops for which barrier removal would predominantly benefit U.S. exports. Examples of expenses that CCC may agree to reimburse under the TASC program include, but are not limited to: Initial pre-clearance programs, export protocol and work plan support, seminars and workshops, study tours, field surveys, development of pest lists, pest and disease research, database development, reasonable logistical and administrative support, and travel and per diem expenses. II. Award Information In general, all qualified proposals received before the specified application deadlines will compete for funding. The limited funds and the range of barriers affecting the exports of U.S. specialty crops worldwide preclude CCC from approving large budgets for individual projects. Applicants may submit multiple proposals, and applicants with previously approved TASC proposals may apply for additional funding. Please see 7 CFR part 1487 for additional restrictions. FAS will consider providing either grant funds as direct assistance to U.S. organizations or technical assistance on behalf of U.S. organizations, provided that the organization submits timely and qualified proposals. FAS will review all proposals against the evaluation criteria contained in the program regulations. Funding for successful proposals will be provided through specific agreements. These agreements will incorporate the proposal as approved by FAS. FAS must approve in advance any subsequent changes to the project. FAS or another Federal agency may be involved in the implementation of approved projects. III. Eligibility Information *1. Eligible Applicants:* Any United States organization, private or government, with a demonstrated role or interest in exporting U.S. agricultural commodities may apply to the program. Government organizations consist of Federal, State, and local agencies. Private organizations include non-profit trade associations, universities, agricultural cooperatives, state regional trade groups, and private companies. Foreign organizations, whether government or private, may participate as third parties in activities carried out by U.S. organizations, but are not eligible for funding assistance from the program. *2. Cost Sharing or Matching:* FAS considers the applicant's willingness to contribute resources, including cash, goods, and services of the U.S. industry and foreign third parties, when determining which proposals are approved for funding. IV. Application and Submission Information *1. Application through the Unified Export Strategy (UES):* Organizations are encouraged to submit their applications to FAS through the UES application Internet Web site. Using the UES application process reduces paperwork and expedites FAS' processing and review cycle. Applicants planning to use the UES Internet-based system must contact FAS Program Policy Staff on

(202)720-4327 to obtain site access information including a user ID and password. The UES Internet-based application, including a help file containing step-by-step instructions for its use, may be found at the following URL address: *http://www.fas.usda.gov/cooperators.html.* *2. Application through electronic and hard copies:* Applicants also have the option of submitting electronic versions in the UES format (along with two paper copies) of their applications to FAS by e-mail or on compact disc. The application format is available on the Internet at: * http://www.fas.usda.gov/mos/tasc/proposals.html.* *3. Content and Form of Application Submission:* All TASC proposals must contain complete information about the proposed projects as described in § 1487.5(b) of the TASC program regulations. In addition, in accordance with the Office of Management and Budget's policy directive (68 FR 38402 (June 27, 2003)) regarding the need to identify entities that are receiving government awards, all applicants must submit a Dun and Bradstreet Data Universal Numbering System

(DUNS)number. An applicant may request a DUNS number at no cost by calling the dedicated toll-free DUNS number request line on 1-866-705-5711. Incomplete applications and applications which do not otherwise conform to this announcement will not be accepted for review. *4. Submission Dates and Times:* TASC funding is limited, and in order to assure sufficient resources are available to meet unanticipated needs during the fiscal year, TASC proposals will, generally, only be evaluated on a semi-annual basis. That is: • Proposals received prior to, but not later than, 5 p.m. Eastern Daylight Time, August 15, 2008, will be considered for funding with other proposals received by that date; • Proposals not approved for funding during the review period will be reconsidered for funding after the review period only if the applicant specifically requests such reconsideration in writing, and only if funding remains available; • Proposals received after 5 p.m. Eastern Daylight Time, August 15, 2008, will be considered for funding only if funding remains available. Notwithstanding the foregoing, a proposal may be submitted for expedited consideration under the TASC Quick Response process if, in addition to meeting all requirements of the TASC program, a proposal clearly identifies a time-sensitive activity. In these cases, a proposal may be submitted at any time for an expedited evaluation. FAS will track the time and date of receipt of all proposals. *5. Funding Restrictions:* Although funded projects may take place in the United States, all eligible projects must specifically address sanitary, phytosanitary, or technical barriers to the export of U.S. specialty crops. Certain types of expenses are not eligible for reimbursement by the program, such as the costs of market research, advertising, or other promotional expenses. CCC will also not reimburse unreasonable expenditures or any expenditure made prior to approval of a proposal. *6. Other Submission Requirements:* All Internet-based applications must be properly submitted by 5 p.m., Eastern Daylight Time, on August 15, 2008, to be considered. All applications on diskette (with two accompanying paper copies) and any other applications must be received by 5 p.m. Eastern Daylight Time, on August 15, 2008, at the following address: Hand Delivery (including FedEx, DHL, UPS, etc.): U.S. Department of Agriculture, Foreign Agricultural Service, Grants Management Branch, Portals Office Building, Suite 400, 1250 Maryland Avenue, SW., Washington, DC 20024. V. Application Review Information *1. Criteria:* FAS follows the evaluation criteria set forth in § 1487.6 of the TASC regulations. *2. Review and Selection Process:* FAS will review proposals for eligibility and will evaluate each proposal against the factors referred to above. The purpose of this review is to identify meritorious proposals, recommend an appropriate funding level for each proposal based upon these factors, and submit the proposals and funding recommendations to the Deputy Administrator, Office of Trade Programs and the Administrator, FAS. FAS may, when appropriate, request the assistance of other U.S. government subject area experts in evaluating the merits of a proposal. VI. Award Administration Information *1. Award Notices:* FAS will notify each applicant in writing of the final disposition of its application. FAS will send an approval letter and agreement to each approved applicant. The approval letter and agreement will specify the terms and conditions applicable to the project, including levels of funding, timelines for implementation, and written evaluation requirements. *2. Administrative and National Policy Requirements:* The agreements will incorporate the details of each project as approved by FAS. Each agreement will identify terms and conditions pursuant to which CCC will reimburse certain costs of each project. Agreements will also outline the responsibilities of the participant. Interested parties should review the TASC program regulations found at 7 CFR part 1487 in addition to this announcement. *3. Reporting:* TASC participants are required to submit a written report(s), on no less than an annual basis, and a final report, each of which evaluates their TASC project using the performance measures presented in the approved proposal. VII. Agency Contact For additional information or assistance, contact the Grants Management Branch, Foreign Agricultural Service, U.S. Department of Agriculture, phone:

(202)720-0866, fax:

(202)690-0193, e-mail: *emo@fas.usda.gov.* Signed at Washington, DC, on the 2nd of July, 2008. Michael W. Yost, Administrator, Foreign Agricultural Service, and Vice President, Commodity Credit Corporation. [FR Doc. E8-16369 Filed 7-15-08; 8:45 am] BILLING CODE 3410-10-P DEPARTMENT OF AGRICULTURE Forest Service Kalispell Line Valve 5 to 6 Loop Natural Gas Pipeline Project, Flathead National Forest, Flathead County, MT AGENCY: Forest Service, USDA. ACTION: Notice: Intent to prepare an Environmental Impact Statement. SUMMARY: The Forest Service will prepare an Environmental Impact Statement

(EIS)for a proposal by NorthWestern Energy

(NWE)to construct and operate a loop natural gas pipeline on the Hungry Horse Ranger District of the Flathead National Forest. The new loop pipeline would be installed underground and generally parallel Highway 2 and an existing natural gas transmission line currently authorized to NWE under a Forest Service special use permit (SUP). NWE proposes to construct approximately 12 miles of 12-inch diameter steel pipe from an existing natural gas valve station near Marias Pass on the Continental Divide westward to another existing valve station near the junction of Bear Creek and the Middle Fork Flathead River. The SUP would be amended to include the new loop pipeline. The project area is approximately 25 miles SW of Browning, Montana and approximately 50 highway miles SE of Columbia Falls, Montana. DATES: Substantive comments regarding the proposal and the scope of the analysis should be received in writing on or before July 31, 2008. The draft EIS

(DEIS)is expected to be filed with the Environmental Protection Agency and made available for public review in October 2008. When the DEIS is available a Notice of Availability

(NOA)will be published in the **Federal Register** . The final EIS

(FEIS)is expected to be published in February 2009. ADDRESSES: Send written comments to Jimmy DeHerrera, District Ranger. The mailing address is Hungry Horse Ranger District, P.O. Box 190340, Hungry Horse, Montana 59919. Electronic comments may be e-mailed to *comments-northern-flathead-hungry-horse-glacier-view@fs.fed.us* with “Kalispell Line Valve 5 to 6 Loop Natural Gas Pipeline Project” in the subject line and must be submitted in MS Word (*.doc), rich text format (*.rtf), or portable document format (*.pdf). Comments received in response to this request will be available for public inspection and will be released in their entirety if requested, pursuant to the Freedom of Information Act. FOR FURTHER INFORMATION CONTACT: David Ondov, Project Manager, Flathead National Forest, 650 Wolfack Way, Kalispell, MT 59901,

(406)758-5364. SUPPLEMENTARY INFORMATION: Purpose and Need for Action The purpose and need for this project is to increase capacity and supply and to maintain reliable natural gas service to the Kalispell and Flathead Valley area of northwestern Montana. The integrity of the existing 10-inch diameter pipeline, constructed in 1962, is good, but NWE projects that its capacity will be reached within two years due to the continuing strong population growth in the Flathead Valley area. The existing pipeline is the Flathead Valley's only source of natural gas. During the past several years, the demand for natural gas has increased in western Montana as a result of steady population and economic growth. Kalispell, the largest town to be serviced by the proposed pipeline, grew from a population of 11,917 in 1990 to 19,432 in 2006. Proposed Action The proposed action includes construction and the long-term operation and maintenance of approximately 12 miles of 12-inch diameter steel pipe from an existing natural gas valve station near Marias Pass on the Continental Divide westward to another existing valve station near the junction of Bear Creek and the Middle Fork Flathead River. Approximately 11 miles of the new pipeline would be on National Forest System land and one mile would be on private lands in the central portion of the project area. The project area lies within the Hungry Horse Ranger District of the Flathead National Forest. The new loop pipeline would be installed underground and generally parallel the existing natural gas pipeline that is currently authorized under a SUP to NWE. NWE would attempt to build the new pipeline as close as feasibly and technically possible to the existing line, but may have to diverge in some locations due to terrain, BNSF railroad tracks, highway right-of-way (ROW), environmental concerns, other utilities, engineering needs, or other technical factors. A portion of the new pipeline may need to be constructed in an inventoried roadless area due to a combination of these factors. The authorized ROW for the existing pipeline in this area is 50 feet wide. The proposed action would require up to an additional temporary 50-foot wide working ROW to construct the new pipeline, with a final 50-80 foot total long-term operational ROW. The proposed action would, wherever possible, utilize the existing cleared, authorized 50 foot ROW to minimize the amount of new vegetation clearing and to combine maintenance access points. Pipeline operations require that the ROW remain free of heavy tree cover. Within the ROW, native forbs and shrubs would be maintained for the lifespan of the pipeline. Noxious weeds would be monitored and abated throughout the lifespan of the authorized use. The total new area affected for the 11 miles of ROW on National Forest land would be less than approximately 70 acres. Underground installation would be conducted to comply with Department of Transportation (49 CFR 192.327) and NWE standards. Pipeline burial depths would allow for 42 inches of soil cover in normal soil, 60 inches at stream crossings, and 48 inches near public roads and railroads. Bedrock installations would be covered to a depth of 30 inches. Areas of temporary disturbance would include temporary use areas for equipment and materials staging and construction access routes. Some of these would be on private lands. Native grasses and herbaceous plants would be restored in all areas where ground disturbance or vegetation removal occurs. Revegetation progress would be monitored for two growing seasons or until 80% native cover is achieved. Two shed-sized structures and three above-ground pipe assemblies would be constructed at the valve station at the west end of the proposed project area. Federal pipeline inspection rules would require long-term motorized and non-motorized maintenance access at selected points along the pipeline route. Construction of the loop pipeline would take approximately 90 to 120 days, depending on fire restrictions and other unforeseen delays. After construction, NWE would utilize both the new 12-inch diameter pipeline and the existing 10-inch diameter pipeline, with the pipelines interconnecting at the valve stations to create a “loop system.” Looping pipelines has been shown to be a cost-effective method for increasing system capacity. A temporary special use construction permit would be issued to NWE following completion of the EIS and a Record of Decision approving the pipeline. Following construction planned for summer 2009, the existing SUP would be amended to include the new loop pipeline. More detailed scoping information and maps can be accessed on the Flathead National Forest Internet site at *http://www.fs.fed.us/r1/flathead/.* Possible Alternatives Alternative 1 is the no-action alternative. Alternative 2, the proposed action described above, was developed by NWE to respond to the purpose and need and may be modified for the draft EIS upon consideration of field engineering studies during the summer of 2008. A route that does not enter inventoried roadless areas may also be included in another alternative. Other viable alternatives may be developed by modifying the proposed action to respond to significant issues identified during the public involvement and scoping process. Responsible Official The Responsible Official is the Forest Supervisor of the Flathead National Forest, 650 Wolfpack Way, Kalispell, Montana 59901. The Forest Supervisor will make a decision regarding this proposal considering the comments and responses, environmental consequences discussed in the final EIS, and applicable laws, regulations, and policies. The decision and rationale for the decision will be documented in a Record of Decision (ROD). Nature of Decision To Be Made The scope of this project is limited to decisions concerning activities related to the construction and operation of a new natural gas loop pipeline, as described earlier. The Forest Supervisor will decide whether to authorize the construction and long-term operation of the new loop pipeline with additional ROW. Related decisions may address ancillary activities such as weed control and vegetation monitoring on the pipeline ROW, access to the pipeline ROW, etc. The Forest Supervisor will make decisions regarding this proposed project only for National Forest System lands. Her decision will determine whether a construction SUP is issued and the existing permit is amended. This EIS will tier to the Flathead National Forest Land and Resource Management Plan and EIS of January 1986, and its subsequent amendments, which provide overall guidance for land management activities on the Flathead National Forest. Scoping Process The Forest Service is seeking input concerning comments and concerns about this proposal from Federal, State, and local agencies, Native American tribes, and other individuals and organizations that may be interested in or affected by the proposed action. This input will be used to identify issues and develop alternatives during preparation of the EIS. Comments should be as specific as possible to assist the Forest Service in this manner. In addition to the ongoing public participation process, formal opportunities for public participation will be provided upon publication of the DEIS. Preliminary Issues Preliminary issues and concerns that will likely be evaluated in the EIS include potential effects of the proposed action related to the following: Threatened or endangered species such as the grizzly bear, lynx, and bull trout; inventoried roadless areas; motorized access; noxious weeds; wetlands; scenic qualities; and sensitive plant and animal species. Permits or Licenses Required The Forest Supervisor would authorize NWE to construct, maintain, and use the new natural gas loop pipeline through the issuance of a temporary construction SUP and amendment of the existing SUP. NWE may need to obtain additional permits and approvals to construct the pipeline. These could include: Section 404 Permit by the U.S. Army Corps of Engineers; Section 106 National Historic Preservation Act Concurrence issued by the State Historical Preservation Office; National Pollutant Discharge Elimination System General Construction Permit issued by Montana's Department of Environmental Quality; Montana Joint Application for Proposed Work in Streams, Lakes and Wetlands issued by the Montana Department of Natural Resources and Conservation; and a Utility Crossing Permit issued by the Montana Department of Transportation. A complete list of required permits and authorizations will be included in the EIS. Comment Requested The Forest Service is seeking public and agency comment on the proposed action in order to identify major issues to be analyzed in depth and assistance in identifying potential alternatives to be evaluated. Comments received on this notice, including the names and addresses of those who comment, will be considered as part of the public record on this proposed action and will be available for public inspection. Comments submitted anonymously will be accepted and considered; however, those who submit anonymous comments will not have standing to appeal the subsequent decision under 36 CFR part 215. Additionally, pursuant to 7 CFR 1.27(d), any person may request the agency to withhold a submission from the public record by showing how the Freedom of Information Act

(FOIA)permits such confidentiality. Persons requesting such confidentiality should be aware that, under the FOIA, confidentiality may be granted in only very limited circumstances, such as to protect trade secrets. The Forest Service will inform the requester of the decision regarding the request for confidentiality. Where the request is denied, the agency will return the submission and notify the requester that the comments may be resubmitted, without names and addresses, within a specified number of days. The comment period on the DEIS will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the **Federal Register** . The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of DEIS must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions. *Vermont Yankee Nuclear Power Corp.* v. *NRDC,* 435 U.S. 519, 553 (1978). Also, environmental objections that could be raised at the DEIS stage but that are not raised until after completion of the FEIS may be waived or dismissed by the courts. *City of Angoon* v. *Hodel,* 803 F2.d 1016, 1022 (9th Circ. 1986) and *Wisconsin Heritages, Inc* v. *Harris,* 490 F. Supp. 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, it is very important that those interested in this proposed action participate by the close of the 45 day comment period so that substantive comments and objections are made available to the Forest Service at a time when they can meaningfully consider them and respond to them in the FEIS. To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the DEIS should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the DEIS. Comments may also address the adequacy of the DEIS or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points. Dated: June 27, 2008. Cathy Barbouletos, Forest Supervisor—Flathead National Forest. [FR Doc. E8-15828 Filed 7-15-08; 8:45 am] BILLING CODE 3410-11-M DEPARTMENT OF AGRICULTURE Forest Service Status of Travel Management Planning and Providing Access for Subsistence Purposes Within the USDA Forest Service, Alaska Region AGENCY: Forest Service, USDA. ACTION: Notice to inform. SUMMARY: The USDA Forest Service, Alaska Region, is notifying the public of the process for making travel management decisions on National Forest System

(NFS)lands in Alaska, consistent with both Subpart B of the Travel Management Rule (36 CFR 212) and the Alaska National Interest Lands Conservation Act (ANILCA) Title VIII, Sections 810 and 811. The Tongass National Forest initiated travel management analyses, and will be completing National Environmental Policy Act

(NEPA)and producing Motor Vehicle Use Maps (MVUMs) over the next 18 months, pursuant to 36 CFR 212 Subpart B. The analysis and associated NEPA will evaluate the effects on subsistence uses (Section 810 of ANILCA) and subsistence access (Section 811 of ANILCA); the public involvement requirements of ANILCA 810 and 811 will run concurrent with the NEPA public comment period, including notice and hearings; the NEPA documentation (for example, environmental assessment) and decision document (for example, Decision Notice and Finding of No Significant Impact) will be prepared to document the travel management route and area designation decisions. The prohibition on motor vehicle use off the designated system (36 CFR 261.13) and the closures or restrictions to access for subsistence purposes (Section 811(b) of ANILCA) will go into effect and are enforceable when each MVUM is completed, published, and made available to the public. The Chugach National Forest and Sitka Ranger District, Tongass National Forest, completed their NEPA process and associated MVUM's pursuant 36 CFR 212 Subpart B. The Wrangell Ranger District, Tongass National Forest, completed their travel management NEPA, and is scheduled to publish their MVUM in 2009. The prohibition on motor vehicle use off the designated system (36 CFR 261.13) and closures or restrictions to access for subsistence purposes (Section 811(b) of ANILCA) go into effect and are enforceable when the MVUMs are published and made available to the public. DATES: The Alaska Region is scheduled to complete all MVUMs by December 2009. ADDRESSES: Chugach National Forest, Supervisor's Office, 3301 C Street, Suite 300, Anchorage, AK 99503-3993: Tongass National Forest, Supervisor's Office, Federal Building, Ketchikan, AK 99901-6591. FOR FURTHER INFORMATION CONTACT: For questions and to obtain information on the completed MVUM for the Chugach National Forest, contact Steve Hennig

(907)743-9509 or visit the Web site at *http://www.fs.fed.us/r10/chugach/recreation/mvum.html* . For questions and to obtain information on the schedule for completing travel management and MVUMs for the Tongass National Forest, contact Hans von Rekowsi

(907)747-4217, or visit the Web site at: *http://www.fs.fed.us/r10/tongass/projects/projects.shtml.* Individuals who use telecommunication devices for the deaf

(TDD)may call the Federal Information Relay Service

(FIRS)at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday. SUPPLEMENTARY INFORMATION: In November 2005, the Forest Service published a rule at 36 CFR 212 (Travel Management Rule). Subpart B of the rule addresses designation of roads, trails, and areas for motor vehicle use. The rule requires responsible officials on each administrative unit or ranger district to designate those roads, trails, and areas open to motor vehicle use. Designated routes and areas will be identified on a MVUM. Once the MVUM is published, motor vehicle use that is inconsistent with the designations will be prohibited. If any routes are identified for closure, they will not be closed until after completion of the NEPA planning process and publishing of the MVUM. The following are exempted from designations: Fire, military, emergency and law enforcement vehicles for emergency purposes, limited administrative use by the Forest Service, and use authorized under written authorization from the Forest Service. Motor vehicle access for subsistence purposes will be identified through travel management NEPA analysis being conducted on each ranger district. NEPA documents will clearly display and analyze subsistence uses and access, and the effects of route and area designations (and associated closures if applicable) on these uses and access. ANILCA 811(a) requires the Forest Service to ensure rural residents reasonable access to subsistence resources on NFS lands. ANILCA 811(b) requires the Forest Service to permit on NFS lands in Alaska the appropriate use for subsistence purposes of snowmobiles, motorboats, and other means of surface transportation traditionally employed for such purposes by local residents, subject to reasonable regulation. Decisions about closures and restrictions will be made by the responsible official. Dated: June 30, 2008. Paul K. Brewster, Deputy Regional Forester, Alaska Region. [FR Doc. E8-15873 Filed 7-15-08; 8:45 am] BILLING CODE 3410-11-M DEPARTMENT OF AGRICULTURE National Agricultural Statistics Service Notice of Invitation for Nominations to the Advisory Committee on Agriculture Statistics AGENCY: National Agricultural Statistics Service (NASS), USDA. ACTION: Solicitation of Nominations for Advisory Committee on Agriculture Statistics Membership. SUMMARY: In accordance with the Federal Advisory Committee Act, 5 U.S.C. App. 2, this notice announces an invitation from the Office of the Secretary of Agriculture for nominations to the Advisory Committee on Agriculture Statistics. On April 3, 2007, the Secretary of Agriculture re-established the Advisory Committee charter for another 2 years. The purpose of the Committee is to advise the Secretary of Agriculture on the scope, timing, content, etc., of the periodic censuses and surveys of agriculture, other related surveys, and the types of information to obtain from respondents concerning agriculture. The Committee also prepares recommendations regarding the content of agriculture reports and presents the views and needs for data of major suppliers and users of agriculture statistics. DATES: Nominations must be received by August 8, 2008 to be assured of consideration. ADDRESSES: Nominations should be mailed to Joe Reilly, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, 1400 Independence Avenue, SW., Room 5041A South Building, Washington, DC 20250-2000. In addition, nominations may be mailed electronically to *hq_aa@nass.usda.gov.* In addition to mailed correspondence to the addresses listed above, nominations may also be faxed to

(202)720-9013. FOR FURTHER INFORMATION CONTACT: Joe Reilly, Associate Administrator, National Agricultural Statistics Service,

(202)720-4333. SUPPLEMENTARY INFORMATION: Nominations should include the following information: name, title, organization, address, telephone number, and e-mail address. Each person nominated is required to complete an Advisory Committee Membership Background Information form. This form may be requested by telephone, fax, or e-mail using the information above. Forms will also be available from the NASS home page *http://www.nass.usda.gov* by selecting “About NASS,” “Advisory Committee on Agriculture Statistics.” The “Advisory Committee for Agriculture Statistics” button is in the right column. Completed forms may be faxed to the number above, mailed, or completed and e-mailed directly from the Internet site. The Committee draws on the experience and expertise of its members to form a collective judgment concerning agriculture data collected and the statistics issued by NASS. This input is vital to keep current with shifting data needs in the rapidly changing agricultural environment and keeps NASS informed of emerging issues in the agriculture community that can affect agriculture statistics activities. The Committee, appointed by the Secretary of Agriculture, consists of 25 members representing a broad range of disciplines and interests, including, but not limited to, producers, representatives of national farm organizations, agricultural economists, rural sociologists, farm policy analysts, educators, State agriculture representatives, and agriculture-related business and marketing experts. Members serve staggered 2-year terms, with terms for half of the Committee members expiring in any given year. Nominations are being sought for 10 open Committee seats. Members can serve up to 3 terms for a total of 6 consecutive years. The Chairperson of the Committee shall be elected by members to serve a 1-year term. Equal opportunity practices, in line with USDA policies, will be followed in all membership appointments to the Committee. To ensure that the recommendations of the Committee have taken into account the needs of the diverse groups served by USDA, membership shall include, to the extent practicable, individuals with demonstrated ability to represent minorities, women, and persons with disabilities. The duties of the Committee are solely advisory. The Committee will make recommendations to the Secretary of Agriculture with regards to the agricultural statistics program of NASS, and such other matters as it may deem advisable, or which the Secretary of Agriculture; Under Secretary for Research, Education, and Economics; or the Administrator of NASS may request. The Committee will meet at least annually. All meetings are open to the public. Committee members are reimbursed for official travel expenses only. Send questions, comments, and requests for additional information to the e-mail address, fax number, or address listed above. Signed at Washington, DC, June 27, 2008. Joseph T. Reilly, Associate Administrator, National Agricultural Statistics Service. [FR Doc. E8-16190 Filed 7-15-08; 8:45 am] BILLING CODE 3410-20-P DEPARTMENT OF COMMERCE International Trade Administration Mission Statement; Aerospace Supplier Development Mission to China; October 26-November 4, 2008 AGENCY: Department of Commerce. ACTION: Notice. Mission Description The Aerospace Supplier Development Mission to China was developed in response to requests from many small and medium-sized enterprises

(SMEs)supplying the aviation industry, and is intended to include representatives from a variety of U.S. aerospace industry manufacturers and service providers. The mission will introduce these suppliers to end-users and prospective partners whose needs and capabilities are targeted to each U.S. participant's strengths. Participating in an official U.S. industry delegation will enhance the companies' ability to secure meetings in China. The mission will include appointments and briefings in Beijing, Shanghai, Suzhou, and Guangzhou, some of China's major aerospace industry hubs, as well as participation in Airshow China in Zhuhai to conclude the mission. The mission participants will also have opportunities to interact extensively with CS China aviation specialists. Commercial Setting The Chinese aerospace sector ranks among the world's most dynamic, going far beyond the country's massive investment in aircraft (mainland carriers anticipate doubling the size of their fleets to 1,500 by 2010, reaching 4,000 by 2025). Chinese aerospace companies have rapidly developed into serious players in the industry's global value chain. Chinese aerospace firms, including those linked to U.S. and European “primes,” now frequently make their own sourcing decisions, participate as “risk sharing partners” in new airframe and engine development programs, or take on the role of first-tier suppliers on Chinese programs. The evolution of China's aerospace industry is part of a broader industry trend toward supply chain consolidation and the embrace of lean manufacturing. Many traditional Tier 1 supplier responsibilities are being pushed down the supply chain to second- and third-tier suppliers. As the larger firms move into aerospace system integration, the lower-tier suppliers have little choice but to globalize themselves. This involves supplying China with products and services that might historically have been provided to U.S. and European suppliers that have since shifted production. In many cases, once established in China, the first-tier firms require their supply chain partners to begin dealing directly with Chinese members of the supply chain. While extremely challenging for SME suppliers, these new relationships bring an added benefit—the opportunity for additional sales with other aerospace companies doing business in China. China Aviation Industry Corporation I and II (AVIC I and II), conglomerates of hundreds of companies, control the country's aerospace industry. Over the years, the main AVIC companies have formed joint-venture companies with key Western aerospace partners. The larger AVIC companies also have so-called “foreign divisions” engaged in manufacturing, design and engineering for Western customers on a semi-autonomous basis. Mission Goals *The goals of the Aerospace Supply Chain Development Mission to China are threefold:*

(1)To introduce U.S. companies to Chinese joint-venture groups and Western original equipment manufacturers (OEMs);

(2)to explore supplier opportunities under other aerospace programs (including Chinese programs and Western programs with Chinese firms “risk sharing”); and

(3)to facilitate an effective U.S. presence at Airshow China. Mission Scenario The mission's first stop is Beijing, home to AVIC's headquarters and the China National Aero-Technology Import and Export Corporation (CATIC), AVIC's trading and purchasing division. The second and third stops are Shanghai and nearby Suzhou, home to many AVIC companies (including the former MD-88 assembly site), AVIC joint-ventures, and autonomous Western OEMs. The fourth stop, Guangzhou, provides the opportunity to focus on Guangzhou Aircraft Maintenance Engineering Company Limited (GAMECO) as an example of a maintenance/repair/overhaul operation and a meeting with China Southern Airlines. The mission will conclude in nearby Zhuhai, at the China International Aviation and Aerospace Exhibition (known as Airshow China), the only Chinese aerospace exhibition endorsed by the Chinese central government. The last Airshow China, in 2006, showcased 52 aircraft and attracted some 550 exhibitors from more than 33 countries, as well as 90,000 trade visitors and 1,500 journalists. CS Guangzhou will provide entry to the trade show, manage a booth, and organize one half day of meetings with business and industry contacts for each of the mission participants. Matchmaking efforts will involve coordination with the American Chamber of Commerce in China's U.S.-China Aviation Cooperation Program (ACP), a public/private partnership promoting technical, policy and commercial cooperation between the two countries' aviation sectors, and with other relevant groups, such as the Suzhou Economic Development Zone. Also, through an exclusive arrangement with Airshow China exhibition organizers, the mission participants will gain access to VIP receptions and additional assistance with matchmaking appointments at the show. U.S. participants will be counseled before, during, and after the mission by U.S. Export Assistance Center trade specialists, primarily by members of the Aerospace and Defense Technology Team. Participation in the Aerospace Supply Chain Development Mission to China will include the following: • Pre-travel briefings/webinar on subjects ranging from Chinese business practices to security; • Pre-scheduled meetings with potential partners, distributors, end users, or local industry contacts in Beijing, Shanghai, Suzhou, Guangzhou, and at Airshow China in Zhuhai; • Transportation to airports in Beijing and Shanghai; • Coach class airline ticket between Beijing and Shanghai; • Bus transportation between Shanghai and Suzhou; • Coach class airline ticket between Shanghai and Guangzhou; • One Airshow China entry pass per company representative; • Participation in industry receptions at Airshow China; • Meetings with CS China aviation industry specialists in Beijing, Shanghai and Guangzhou. Proposed Timetable Sunday, October 26, 2008 Participants arrive in Beijing on their own schedule. Afternoon briefing at Kerry Centre Hotel. Monday, October 27, Tuesday, October 28 Pre-scheduled matchmaking appointments, focusing on contacts at AVIC 1 and CATIC. Briefing on Civil Aviation Administration of China

(CAAC)standards and regulations. Roundtable with the ACP. Networking reception. Wednesday, October 29 Flight to Shanghai. Single Company Promotion/U.S. Aerospace Suppliers' Technical Sales Forum. Half day of one-on-one meetings. Thursday, October 30 One-on-one appointments, visits to major Shanghai Aerospace firms ( *e.g.,* SAIC). Afternoon bus travel to nearby Suzhou. Appointments, coordinated with the Suzhou Economic Development Zone. Friday, October 31 Appointments continue. Saturday, November 1 Follow-up appointments, as needed, and optional sightseeing. Sunday, November 2 Flight to Guangzhou. Monday, November 3 Networking breakfast with the American Chamber of Commerce. Meeting with GAMECO's Procurement Department and China Southern Airlines' Procurement Department, with technical tour of the facilities. Afternoon bus trip to Zhuhai (approximately 1 hour). Attend Airshow China's official opening (early evening). Tuesday, November 4 Pre-scheduled appointments at Airshow China. VIP reception (by special invitation). Mission concludes in evening. Participants free to depart Zhuhai via the ferry to Hong Kong. Participation Requirements All parties interested in participating in the Aerospace Supplier Development Mission to China must complete and submit an application for consideration by the Department of Commerce. All applicants will be evaluated on their ability to meet certain conditions and best satisfy the selection criteria as outlined below. The mission will open on a first come first served basis to 10 qualified U.S. companies. Fees and Expenses After a company has been selected to participate on the mission, a payment to the Department of Commerce in the form of a participation fee is required. The participation fee will be $5,000 for large firms and $4,150 for a small or medium-sized enterprise (SME), which includes one principal representative. * The fee for each additional firm representative (large firm or SME) is $600. Expenses for lodging, some meals, incidentals, and travel (except for in-country arrangements previously noted) will be the responsibility of each mission participant. * An SME is defined as a firm with 500 or fewer employees or that otherwise qualifies as a small business under SBA regulations ( *see http://www.sba.gov/services/contracting opportunities/sizestandardstopics/index.html* ). Parent companies, affiliates, and subsidiaries will be considered when determining business size. The dual pricing schedule reflects the Commercial Service's user fee schedule that became effective May 1, 2008 (for additional information see *http://www.export.gov/newsletter/march2008/initiatives.html* ). Conditions for Participation • An applicant must submit a completed and signed mission application and supplemental application materials, including adequate information on the company's products and/or services, primary market objectives, and goals for participation. • Each applicant must also certify that the products and services it seeks to export through the mission are either produced in the United States, or, if not, marketed under the name of a U.S. firm and have at least fifty-one percent U.S. content. Selection Criteria for Participation Selection will be based on the following criteria: • Suitability of a company's products or services to the mission's goals • Consistency of the company's goals and objectives with the stated scope of the trade mission • Timeliness of company's signed application and participation agreement • Timely and adequate provision of information on company's products/services and market objectives, in order to facilitate appropriate matching with potential business partners Any partisan political activities (including political contributions) of an applicant are entirely irrelevant to the selection process. Timeframe for Recruitment and Applications Mission recruitment will be conducted in an open and public manner, including publication in the **Federal Register** , posting on the Commerce Department trade mission calendar *(http://www.ita.doc.gov/doctm/tmcal.html)* and other Internet Web sites, press releases to general and trade media, direct mail, broadcast fax, notices by industry trade associations and other multiplier groups, and publicity at industry meetings, symposia, conferences, and trade shows. Recruitment for the mission will begin immediately and conclude no later than August 29, 2008. Applications received after that date will be considered only if space and scheduling constraints permit. Contacts Mr. Eric Nielsen, ITA Aerospace and Defense Technology Team, Arizona U.S. Export Assistance Center, Tel:

(520)670-5808, E-mail: *eric.nielsen@mail.doc.gov;* Mr. William Lawton, ITA Aerospace and Defense Technology Team, Miami U.S. Export Assistance Center, Tel:

(305)526-7425, ext. 26, E-mail: *William.lawton@mail.doc.gov.* Eric Nielsen, Director, Arizona U.S. Export Assistance Center. [FR Doc. E8-15838 Filed 7-15-08; 8:45 am] BILLING CODE 3510-DS-P DEPARTMENT OF COMMERCE International Trade Administration [A-821-817] Silicon Metal from the Russian Federation: Continuation of Antidumping Duty Order AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: As a result of the determinations by the Department of Commerce (the Department) and the International Trade Commission

(ITC)that revocation of the antidumping duty order on silicon metal from the Russian Federation (Russia), would likely lead to a continuation or recurrence of dumping and material injury to an industry in the United States, the Department is publishing a notice of continuation for this antidumping duty order. EFFECTIVE DATE: July 16, 2008. FOR FURTHER INFORMATION CONTACT: Gene Calvert or Paul Matino, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230; telephone:

(202)482-3586 or

(202)482-4146, respectively. SUPPLEMENTARY INFORMATION: Background The Department initiated and the ITC instituted sunset reviews of the antidumping duty order on silicon metal from Russia, pursuant to Section 751(c) of the Tariff Act of 1930, as amended (the Act). *See Initiation of Five-year (“Sunset”) Reviews* , 73 FR 6128 (February 1, 2008) ( *Notice of Initiation* ). As a result of its review, the Department found that revocation of the antidumping duty order would likely lead to a continuation or recurrence of dumping, and therefore notified the ITC of the magnitude of the margins likely to prevail were the order to be revoked. *See Silicon Metal from the Russian Federation: Final Results of Expedited Sunset Review of Antidumping Order* , 73 FR 31064 (May 30, 2008). On June 30, 2008, the ITC determined, pursuant to section 751(c) of the Act, that revocation of the antidumping duty order on silicon metal from Russia would likely lead to a continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time. *See Silicon Metal from Russia* , USITC Pub. 4018, Inv. No. 731-TA-991 (Review), June 2008; *see also* Silicon Metal from Russia, 73 FR 38467 (July 7, 2008). Scope of the Order The product covered by this order is silicon metal, which generally contains at least 96.00 percent but less than 99.99 percent silicon by weight. The merchandise covered by this order also includes silicon metal from Russia containing between 89.00 and 96.00 percent silicon by weight, but containing more aluminum than the silicon metal which contains at least 96.00 percent but less than 99.99 percent silicon by weight. Silicon metal currently is classifiable under subheadings 2804.69.10 and 2804.69.50 of the Harmonized Tariff Schedule of the United States (HTSUS). This order covers all silicon metal meeting the above specification, regardless of tariff classification. Continuation of the Order As a result of these determinations by the Department and the ITC that revocation of this antidumping duty order would likely lead to a continuation or recurrence of dumping and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act, the Department hereby orders the continuation of the antidumping duty order on silicon metal from the Russian Federation. U.S. Customs and Border Protection will continue to collect antidumping duty cash deposits at the rates in effect at the time of entry for all imports of subject merchandise. The effective date of the continuation of this order will be the date of publication in the **Federal Register** of this notice of continuation. Pursuant to section 751(c)(2) of the Act, the Department intends to initiate the next five-year review of this order not later than 30 days prior to the fifth anniversary of the effective date of continuation, in July 2013. This five-year (sunset) review and this notice are in accordance with section 751(c) of the Act and published pursuant to section 777(i)(1) of the Act. Dated: July 9, 2008. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. E8-16316 Filed 7-15-08; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration Mission Statement; Manufacturing and Technology Trade Mission to Australia; November 17-21, 2008 AGENCY: Department of Commerce, ITA. ACTION: Notice. Mission Description The United States Department of Commerce, International Trade Administration, U.S. and Foreign Commercial Service is organizing a Manufacturing and Technology Trade Mission to Sydney and Melbourne, Australia, November 17-21, 2008, to be led by the Assistant Secretary for Trade Promotion or another U.S. Department of Commerce senior official. The mission will help participating firms gain market information, make business and government contacts, solidify business strategies, and advance specific projects, towards the goal of increasing U.S. exports to Australia. The mission will include business-to-business matchmaking appointments with local companies, as well as meetings with key government officials, and American and local chambers of commerce. The delegation will be comprised of U.S. firms representing a cross section of U.S. industries with growing potential in Australia, including, but not limited to, automotive parts; building and construction, including green building; energy production, including renewable energy, coal production, and mineral extraction; transportation, including intelligent transportation systems; and water resources. Commercial Setting Macro measures of opportunity in the Australian market include high per capita income, rising terms of trade, and substantial purchasing power, in addition to the favorable foreign exchange rate, which gives a strong boost to U.S. exports. Australia ranks as the United States' 15th largest export market, and the Australia-U.S. Free Trade Agreement (AUSFTA) has enhanced our long and successful trading relationship by eliminating tariffs on nearly all manufactured and agricultural goods. U.S. goods and services exports to Australia reached $29 billion in 2007, an increase of 10 percent over 2006, and first-quarter figures for 2008 (provided by the Bureau of Economic Analysis) show continued growth. The following sectors hold considerable promise for U.S. firms: *Automotive:* Australia's $12 billion automotive aftermarket provides excellent opportunities for U.S. suppliers of specialty products, accessories, and necessary parts such as tires, carburetors, engine parts, piston rings, fuel injection products, transmission and ignition products, lubricants and fuel pumps, and body repair tools. *Construction:* Imports dominate Australia's $1.3 billion market for construction machinery, of which U.S. imports account for $578.3 million. AUSFTA's elimination of import duty on construction machinery from the United States, together with a favorable exchange rate, puts U.S. imports in a stronger competitive position, as the import duty rate from other countries is five percent. The Australian government allocated $18.6 billion in the 2007 budget to improve the country's inland transport system over the next five years. Australia's expanding “green” building market also offers opportunities for U.S. suppliers of innovative technologies. *Energy:* Power generation is an important sector in Australia, including around 81 billion in generation, transmission and distribution assets. Coal-fired generators account for the bulk of electricity generated. In 2000, the Australian government provided a stimulus by requiring electricity retailers to source an additional two percent of their supply from renewable or specified waste sources. In December 2007, the new Australian government ratified the Kyoto Protocol and has set a target to reduce greenhouse gas emissions by 60 percent on 2000 levels by 2050. Australia's federal government is expected to develop grants and policy initiatives to help increase the number of renewable energy projects substantially. *Mining:* Australia is among the world's leading exporters of black coal, diamonds, iron ore, lead, rutile, zinc and zirconium, gold; aluminum, and bauxite. The United States is Australia's major supplier of mining equipment, claiming 35 percent of the import market share. Continuing high mineral prices throughout 2007 have led to further exploration across the country. In 2006-2007 private enterprises spent 55 percent more ($3.1 billion) on mineral exploration than in the previous fiscal year. *Oil and gas:* Australia continues to be a good market for U.S. oil and gas equipment and service suppliers. Increasing demand for petroleum products (particularly liquefied natural gas) is fueling the exploration, development and production of both existing and new fields across Australia. The United States is the major supplier of pumps, valves, gauges, and other types of oil and gas equipment demanded by Australia's $2.5 billion market for technology for upstream and downstream projects. *Water resources:* Australia spends an estimated $4.2 billion on water and wastewater treatment annually, 70 percent on water collection and distribution and 30 percent on product quality and treatment. Imports supply approximately 60 percent of the market, for which the United States is the third largest supplier. Water storage levels remain critically low in many areas, and all levels of government are grappling with strategies aimed at securing future water supply. Mission Goals The Manufacturing and Technology Trade Mission to Australia will help U.S. firms initiate or expand their exports to Australia's leading industry sectors by providing business-to-business introductions, market access information, and information on U.S. Government trade financing programs. Mission Scenario The mission will include stops in Sydney and Melbourne. In each city, participants will meet with government officials, potential buyers, agents/distributors, and partners. They will also attend market briefings by Embassy officials, as well as networking events offering further opportunities to speak with local business and government representatives. Proposed Mission Timetable Monday, November 17, 2008 Mission begins in Sydney; Market briefing; Business matchmaking; Networking reception. Tuesday, November 18, 2008 Business matchmaking. Wednesday, November 19, 2008 Travel to Melbourne. Evening reception. Thursday, November 20, 2008 Briefing; Business matchmaking. Friday, November 21, 2008 Business matchmaking. Criteria for Participation and Selection All parties interested in participating in the Manufacturing and Technology Trade Mission must complete and submit an application package for consideration by the Department of Commerce. All applicants will be evaluated on their ability to meet certain conditions and best satisfy the selection criteria as outlined below. A maximum of 22 companies will be selected to participate in the mission from the interested applicants. U.S. companies already doing business with Australia as well as U.S. companies seeking to enter Australia for the first time may apply. Fees and Expenses After a company has been selected to participate on the mission, a payment to the Department of Commerce in the form of a participation fee is required. The participation fee will be $5,580 for large firms and $3,500 for a small or medium-sized enterprise (SME).* The fee for each additional firm representative (large firm or SME) is $850. Expenses for travel, lodging, most meals, and any incidentals will be the responsibility of each mission participant. The option to participate in the mission is also being offered to U.S.-based firms with an established presence in Australia or neighboring countries; the same fee structure applies. * An SME is defined as a firm with 500 or fewer employees or that otherwise qualifies as a small business under SBA regulations (see *http://www.sba.gov/services/contracting opportunities/sizestandardstopics/index.html* ). Parent companies, affiliates, and subsidiaries will be considered when determining business size. The dual pricing reflects the Commercial Service's user fee schedule that became effective May 1, 2008 (see *http://www.export.gov/newsletter/march2008/initiatives.html* for additional information). Conditions for Participation • An applicant must submit a completed and signed mission application and supplemental application materials, including adequate information on the company's products and/or services, primary market objectives, and goals for participation. If the Department of Commerce receives an incomplete application, the Department may reject the application, or request additional information. • Each applicant must also certify that the products and services it seeks to export through the mission are either produced in the United States, or, if not, marketed under the name of a U.S. firm and have at least 51 percent U.S. content of the value of the finished product or service. *Selection Criteria:* Selection will be based on the following criteria: • Suitability of the company's products or services in Australia. • Applicant's potential for business in Australia, including likelihood of exports resulting from the mission • Consistency of the applicant's goals and objectives with the stated scope of the trade mission. Referrals from political organizations and any documents containing references to partisan political activities (including political contributions) will be removed from an applicant's submission and not considered during the selection process. Timeframe for Recruitment and Applications Mission recruitment will be conducted in an open and public manner. Outreach will include publication in the **Federal Register** , posting on the Commerce Department trade mission calendar ( *http://www.ita.doc.gov/doctm/tmcal.html* ) and other Internet web sites, press releases to general and trade media, direct mail, broadcast fax, notices by industry trade associations and other multiplier groups, and publicity at industry meetings, symposia, conferences, and trade shows. Recruitment for the mission will begin immediately and close September 26, 2008. Applications are available on-line on the Australia Trade Mission Web site at *http://www.export.gov/australiamission.* They can also be obtained by contacting the Mission Project Officers listed below. Applications received after September 26, 2008, will be considered only if space and scheduling permit. Contacts Mr. Louis Quay, Global Trade Programs, Commercial Service Trade Missions Program, Tel: 202-482-3973, E-mail: *australia.mission@mail.doc.gov.* Jessica Arnold, International Trade Specialist, Commercial Service Trade Missions Program. [FR Doc. E8-15837 Filed 7-15-08; 8:45 am] BILLING CODE 3510-DS-P DEPARTMENT OF COMMERCE International Trade Administration North American Free Trade Agreement (NAFTA), Article 1904 Binational Panel Reviews: Notice of Motion To Terminate Panel Review AGENCY: NAFTA Secretariat, United States Section, International Trade Administration, Department of Commerce. ACTION: Notice of Motion to Terminate Panel Review of the final results of the eleventh countervailing duty administrative review respecting Pure and Alloy Magnesium from Canada (Secretariat File No.: USA-CDA-2004-1904-01). SUMMARY: Pursuant to the Notice of Motion to Terminate the Panel Review by the case participants, the panel review is terminated as of July 9, 2008. A panel was appointed to this panel review and has been dismissed pursuant to Rule 71(2) of the *Rules of Procedure for Article 1904 Binational Panel Review,* effective July 9, 2008. FOR FURTHER INFORMATION CONTACT: Valerie Dees, United States Secretary, NAFTA Secretariat, Suite 2061, 14th and Constitution Avenue, Washington, DC 20230,

(202)482-5438. SUPPLEMENTARY INFORMATION: Chapter 19 of the North American Free Trade Agreement (“Agreement”) establishes a mechanism to replace domestic judicial review of final determinations in antidumping and countervailing duty cases involving imports from a NAFTA country with review by independent binational panels. When a Request for Panel Review is filed, a panel is established to act in place of national courts to review expeditiously the final determination to determine whether it conforms with the antidumping or countervailing duty law of the country that made the determination. Under Article 1904 of the Agreement, which came into force on January 1, 1994, the Government of the United States, the Government of Canada and the Government of Mexico established *Rules of Procedure for Article 1904 Binational Panel Reviews* (“Rules”). These Rules were published in the **Federal Register** on February 23, 1994 (59 FR 8686). The panel review in this matter was requested and terminated pursuant to these Rules. Dated: July 10, 2008. Valerie Dees, United States Secretary, NAFTA Secretariat. [FR Doc. E8-16186 Filed 7-15-08; 8:45 am] BILLING CODE 3510-GT-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XJ08 Gulf of Mexico Fishery Management Council; Public Meetings AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of a public meeting. SUMMARY: The Gulf of Mexico Fishery Management Council (Council) will convene its Law Enforcement Advisory Panel (LEAP). DATES: The meeting will be held on August 6 & 7, 2008. ADDRESSES: The meeting will be held at the Gulf Hills Hotel & Conference Center, 13701 Paso Road, Ocean Springs, MS 39564. *Council address* : Gulf of Mexico Fishery Management Council, 2203 North Lois Avenue, Suite 1100, Tampa, FL 33607. FOR FURTHER INFORMATION CONTACT: Dr. Richard Leard, Deputy Executive Director, Gulf of Mexico Fishery Management Council; telephone:

(813)348-1630. SUPPLEMENTARY INFORMATION: The Gulf of Mexico Fishery Management Council (Council) will convene the Law Enforcement Advisory Panel

(LEAP)to develop the 2009-2010 Operations Plan to their Strategic Plan and discuss the status of each states' Joint Enforcement Agreements. The LEAP consists of principal law enforcement officers in each of the Gulf States, as well as the NMFS, U.S. Fish and Wildlife Service (FWS), the U.S. Coast Guard, and NOAA's General Counsel. A copy of the agenda and related materials can be obtained by calling the Council office at

(813)348-1630. Although other non-emergency issues not on the agendas may come before the LEAP for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal action during this meeting. Actions of the LEAP will be restricted to those issues specifically identified in the agendas and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take action to address the emergency. Special Accommodations This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Tina O'Hern at the Council (see ADDRESSES ) 5 working days prior to the meeting. Dated: July 11, 2008. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E8-16213 Filed 7-15-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XJ05 South Atlantic Fishery Management Council; Public Hearings AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration, Commerce. ACTION: Notice of public hearings. SUMMARY: The South Atlantic Fishery Management Council (Council) will hold public hearings regarding Amendment 7 to the Shrimp Fishery Management Plan

(FMP)for the South Atlantic Region and Amendment 16 to the Snapper Grouper FMP for the South Atlantic Region. Amendment 7 to the Shrimp FMP addresses requirements for South Atlantic rock shrimp endorsements, Vessel Monitoring System

(VMS)verification for the rock shrimp fishery, and economic reporting for the shrimp fishery. Amendment 16 to the Snapper Grouper FMP ends overfishing of gag and vermilion snapper and proposes interim allocations for commercial and recreational sectors. A series of public hearings for Amendment 16 were held from May 7 - 15, 2008. Since that time, additional management alternatives have been included in the amendment. DATES: The series of 3 public hearings will be held August 7th, 8th, and 12th, 2008. All public hearings will be open from 3 p.m. - 7 p.m. Written comments must be received in the South Atlantic Council's office by 5 p.m. on August 15, 2008. ADDRESSES: Written comments should be sent to Bob Mahood, Executive Director, South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405. Email comments on Shrimp Amendment 7 to *ShrimpAmend7@safmc.net* . Email comments for Snapper Grouper Amendment 16 to *SGAmend16SecondPH@safmc.net* . Copies of the Public Hearing Documents are available at the Council's web site at *www.safmc.net* or from Kim Iverson, South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; telephone:

(843)571-4366 or toll free at

(866)SAFMC-10. FOR FURTHER INFORMATION CONTACT: Kim Iverson, South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; telephone:

(843)571-4366; fax:

(843)769-4520; email address: *kim.iverson@safmc.net* . SUPPLEMENTARY INFORMATION: Proposed actions in Amendment 7 to the Shrimp FMP address:

(1)the current 15,000-pound landing requirement for rock shrimp;

(2)loss of limited access rock shrimp endorsements due to not meeting the landing requirement by December 31, 2007;

(3)loss of limited access rock shrimp endorsements due to failing to renew within the specified timeframe;

(4)renaming the rock shrimp permit and endorsement to minimize confusion,

(5)requirements for Vessel Monitoring System verification; and

(6)requirements for the provision of economic data by shrimp permit holders. A series of public hearings were held May 7-15, 2008 on management alternatives in Amendment 16 to the Snapper Grouper FMP. The amendment updates management reference points for gag grouper and vermilion snapper, including Maximum Sustainable Yield (MSY), Optimum Yield (OY), Maximum Fishing Mortality Threshold

(MFMT)and Minimum Stock Size Threshold (MSST), which reflect current scientific information as provided by stock assessments and approved by the Scientific and Statistical Committee. In addition, the amendment would either alter current management measures or implement new management measures that would reduce current harvest levels to yields associated with the optimum yield and end overfishing of both stocks in the South Atlantic. The Council will also specify interim allocations between the commercial and recreational sectors. As a response to public input and recommendations from its Snapper Grouper Advisory Panel, in June 2008, the Council agreed to add four additional management alternatives for consideration and analysis in Amendment 16. The new alternatives include:

(1)a commercial trip limit of 1,000 pounds for gag with a fishing year start date of May 1. In addition, during March and April, no fishing for and/or possession of the following species would be allowed: gag, black grouper, red grouper, scamp, red hind, rock hind, yellowmouth grouper, tiger grouper, yellowfin grouper, graysby, and coney;

(2)a commercial trip limit of 1,000 pounds for gag with a fishing year start date of January 1. In addition, during February, March, and April no fishing for and/or possession of the following species would be allowed: gag, black grouper, red grouper, scamp, red hind, rock hind, yellowmouth grouper, tiger grouper, yellowfin grouper, graysby, and coney;

(3)implement a May 1 fishing year start date for the commercial vermilion snapper fishery and a 1,000 pound trip limit for the commercial vermilion snapper fishery; and 4) South of the Miami-Dade/Monroe County line, no fishing for and/or possession of the following species would be allowed during June 1 - December 31: gag, black grouper, red grouper, scamp, red hind, rock hind, yellowmouth grouper, tiger grouper, yellowfin grouper, graysby, and coney. No fishing for and/or possession of gag would be allowed year- round south of the Miami-Dade/Monroe County line. Fishing for black grouper, red grouper, scamp, red hind, rock hind, yellowmouth grouper, tiger grouper, yellowfin grouper, graysby, and coney would be allowed January 1 through May 31 for Monroe County (Southern region). Alternative 4 would apply to both commercial and recreational fisheries. Council staff and area Council members will be available for presentations, informal discussions, and to answer questions. Members of the public will have an opportunity to go on record at any time during the meeting hours to record their comments on the public hearing issues for Council consideration. Hearing Dates and Locations The public hearings will be held at the following locations: 1. *August 7, 2008* - Hyatt Regency Jacksonville Riverfront, 225 Coast Line Drive East, Jacksonville, FL 32202, telephone:

(904)588-1234; 2. *August 8, 2008* - Radisson Resort at the Port, 8701 Astronaut Boulevard, Cape Canaveral, FL 32920, telephone:

(321)784-0000; 3. *August 12, 2008* - Hilton Garden Inn Charleston Airport, 5265 International Blvd., North Charleston, SC 29418, telephone:

(843)308-9330. Special Accommodations These hearings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see ADDRESSES ) by August 5, 2008. Dated: July 11, 2008. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E8-16242 Filed 7-15-08; 8:45 am] BILLING CODE 3510-22-S COMMITTEE FOR THE IMPLEMENTATION OF TEXTILE AGREEMENTS Determination under the Textile and Apparel Commercial Availability Provision of the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA-DR Agreement) July 11, 2008. AGENCY: The Committee for the Implementation of Textile Agreements. ACTION: Determination to add a product in unrestricted quantities to Annex 3.25 of the CAFTA-DR Agreement EFFECTIVE DATE: July 16, 2008. SUMMARY: The Committee for the Implementation of Textile Agreements

(CITA)has determined that certain polyester/nylon corduroy fabrics, as specified below, are not available in commercial quantities in a timely manner in the CAFTA-DR countries. The product will be added to the list in Annex 3.25 of the CAFTA-DR Agreement in unrestricted quantities. FOR FURTHER INFORMATION CONTACT: Laurie Mease, Office of Textiles and Apparel, U.S. Department of Commerce,

(202)482-2043. **FOR FURTHER INFORMATION ON-LINE:** http://web.ita.doc.gov/tacgi/CaftaReqTrack.nsf.Reference number: 69.2008.06.12.Fabric.SharrettsPaley forFishman&Tobin. SUPPLEMENTARY INFORMATION: Authority: Section 203(o)(4) of the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act (CAFTA-DR Act); the Statement of Administrative Action (SAA), accompanying the CAFTA-DR Act; Presidential Proclamations 7987 (February 28, 2006) and 7996 (March 31, 2006). BACKGROUND: The CAFTA-DR Agreement provides a list in Annex 3.25 for fabrics, yarns, and fibers that the Parties to the CAFTA-DR Agreement have determined are not available in commercial quantities in a timely manner in the territory of any Party. The CAFTA-DR Agreement provides that this list may be modified pursuant to Article 3.25(4)-(5), when the President of the United States determines that a fabric, yarn, or fiber is not available in commercial quantities in a timely manner in the territory of any Party. See Annex 3.25, Note; see also section 203(o)(4)(C) of the CAFTA-DR Act. The CAFTA-DR Act requires the President to establish procedures governing the submission of a request and providing opportunity for interested entities to submit comments and supporting evidence before a commercial availability determination is made. In Presidential Proclamations 7987 and 7996, the President delegated to CITA the authority under section 203(o)(4) of CAFTA-DR Act for modifying the Annex 3.25 list. On March 21, 2007, CITA published final procedures it would follow in considering requests to modify the Annex 3.25 list (72 FR 13256). On June 12, 2008, the Chairman of CITA received a commercial availability request from Sharretts, Paley, Carter & Blauvelt, P.C., on behalf of Fishman & Tobin, for certain polyester/nylon corduroy fabrics, of the specifications detailed below. On June 16, 2008, CITA notified interested parties of, and posted on its website, the accepted request and requested that interested entities provide, by June 26, 2008, a response advising of its objection to the commercial availability request or its ability to supply the subject product. CITA also explained that rebuttals to responses were due to CITA by July 2, 2008. No interested entity filed a response advising of its objection to the request or its ability to supply the subject product. In accordance with section 203(o)(4)(C) of the CAFTA-DR Act, and its procedures, as no interested entity submitted a response objecting to the request or expressing an ability to supply the subject product, CITA has determined to add the specified fabrics to the list in Annex 3.25 of the CAFTA-DR Agreement. The subject fabrics are added to the list in Annex 3.25 of the CAFTA-DR Agreement in unrestricted quantities. A revised list has been published on-line. Corduroy fabric specifications: Polyester/Nylon Corduroy Fabric HTS: 5801.32.00 Fiber Content: 60 to 90% polyester/40 to 10% nylon Yarn: Warp - Polyester filament between 100-200 Denier (111-222 decitex), dispersed dyed Fill - Polyester filament between 100-200 Denier (111-222 decitex), dispersed, and nylon filament between 120-220 Denier (133-244 decitex), acid dyed Construction: 65 to 85 warp ends x 150 to 170 fill picks per inch (25 to 34 warp ends x 59 to 67 fill picks per cm). Number of Wales: 4 to 6 wales per cm (10 to 16 wales per inch) Weight: 240 to 280 g/m2 (7.08 to 8.26 oz./sq.yd.) Width: 56 to 64 inches (142 to 162 cm) Finish: Dyed R. Matthew Priest, Chairman, Committee for the Implementation of Textile Agreements. [FR Doc. E8-16313 Filed 7-15-08; 8:45 am] BILLING CODE 3510-DS COMMITTEE FOR THE IMPLEMENTATION OF TEXTILE AGREEMENTS Determination under the Textile and Apparel Commercial Availability Provision of the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA-DR Agreement) July 11, 2008. AGENCY: The Committee for the Implementation of Textile Agreements. ACTION: Determination to add a product in unrestricted quantities to Annex 3.25 of the CAFTA-DR Agreement. EFFECTIVE DATE: July 16, 2008. SUMMARY: The Committee for the Implementation of Textile Agreements

(CITA)has determined that certain uncut polyester/nylon corduroy fabrics, as specified below, are not available in commercial quantities in a timely manner in the CAFTA-DR countries. The product will be added to the list in Annex 3.25 of the CAFTA-DR Agreement in unrestricted quantities. FOR FURTHER INFORMATION CONTACT: Laurie Mease, Office of Textiles and Apparel, U.S. Department of Commerce,

(202)482-2043. **FOR FURTHER INFORMATION ON-LINE:** http://web.ita.doc.gov/tacgi/CaftaReqTrack.nsf.Reference number: 68.2008.06.12.Fabric.SharrettsPaley forFishman&Tobin. SUPPLEMENTARY INFORMATION: Authority: Section 203(o)(4) of the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act (CAFTA-DR Act); the Statement of Administrative Action (SAA), accompanying the CAFTA-DR Act; Presidential Proclamations 7987 (February 28, 2006) and 7996 (March 31, 2006). BACKGROUND: The CAFTA-DR Agreement provides a list in Annex 3.25 for fabrics, yarns, and fibers that the Parties to the CAFTA-DR Agreement have determined are not available in commercial quantities in a timely manner in the territory of any Party. The CAFTA-DR Agreement provides that this list may be modified pursuant to Article 3.25(4)-(5), when the President of the United States determines that a fabric, yarn, or fiber is not available in commercial quantities in a timely manner in the territory of any Party. See Annex 3.25, Note; see also section 203(o)(4)(C) of the CAFTA-DR Act. The CAFTA-DR Act requires the President to establish procedures governing the submission of a request and providing opportunity for interested entities to submit comments and supporting evidence before a commercial availability determination is made. In Presidential Proclamations 7987 and 7996, the President delegated to CITA the authority under section 203(o)(4) of CAFTA-DR Act for modifying the Annex 3.25 list. On March 21, 2007, CITA published final procedures it would follow in considering requests to modify the Annex 3.25 list (72 FR 13256). On June 12, 2008, the Chairman of CITA received a commercial availability request from Sharretts, Paley, Carter & Blauvelt, P.C., on behalf of Fishman & Tobin, for certain uncut polyester/nylon corduroy fabrics, of the specifications detailed below. On June 16, 2008, CITA notified interested parties of, and posted on its website, the accepted request and requested that interested entities provide, by June 26, 2008, a response advising of its objection to the commercial availability request or its ability to supply the subject product. CITA also explained that rebuttals to responses were due to CITA by July 2, 2008. No interested entity filed a response advising of its objection to the request or its ability to supply the subject product. In accordance with section 203(o)(4)(C) of the CAFTA-DR Act, and its procedures, as no interested entity submitted a response objecting to the request or expressing an ability to supply the subject product, CITA has determined to add the specified fabrics to the list in Annex 3.25 of the CAFTA-DR Agreement. The subject fabrics are added to the list in Annex 3.25 of the CAFTA-DR Agreement in unrestricted quantities. A revised list has been published on-line. Corduroy fabric specifications: Polyester/Nylon Uncut Corduroy Fabric HTS: 5801.31.00 Fiber Content: 60 to 90% polyester/40 to 10% nylon Yarn: Warp - Polyester filament between 100-200 Denier (111-222 decitex) dispersed dyed; Fill - Polyester filament between 100-200 Denier (111-222 decitex), dispersed, and nylon filament between 120-220 Denier (133-244 decitex), acid dyed Construction: 55 to 75 warp ends x 145 to 165 fill picks per inch (21 to 30 warp ends x 57 to 65 fill picks per cm) Weight: 210 to 235 g/m2 (6.19 to 6.93 oz/sq. yd.) Width: 56 to 64 inches (142 to 162 cm) Finish: Dyed R. Matthew Priest, Chairman, Committee for the Implementation of Textile Agreements. [FR Doc. E8-16315 Filed 7-15-08; 8:45 am] BILLING CODE 3510-DS DEPARTMENT OF EDUCATION Notice of Proposed Information Collection Requests AGENCY: Department of Education. ACTION: Notice of Proposed Information Collection Requests. SUMMARY: The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995. DATES: An emergency review has been requested in accordance with the Act (44 U.S.C. Chapter 3507 (j)), since public harm is reasonably likely to result if normal clearance procedures are followed. Approval by the Office of Management and Budget

(OMB)has been requested by July 17, 2008. A regular clearance process is also beginning. Interested persons are invited to submit comments on or before September 15, 2008. ADDRESSES: Written comments regarding the emergency review should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget; 725 17th Street, NW., Room 10222, New Executive Office Building, Washington, DC 20503. Commenters are encouraged to submit responses electronically by e-mail to *oira_submission@omb.eop.gov* or via fax to

(202)395-6974. SUPPLEMENTARY INFORMATION: Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Director of OMB provide interested Federal agencies and the public an early opportunity to comment on information collection requests. The Office of Management and Budget

(OMB)may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. Each proposed information collection, grouped by office, contains the following:

(1)Type of review requested, e.g., new, revision, extension, existing or reinstatement;

(2)Title;

(3)Summary of the collection;

(4)Description of the need for, and proposed use of, the information;

(5)Respondents and frequency of collection; and

(6)Reporting and/or Recordkeeping burden. ED invites public comment. The Department of Education is especially interested in public comment addressing the following issues:

(1)Is this collection necessary to the proper functions of the Department;

(2)will this information be processed and used in a timely manner;

(3)is the estimate of burden accurate;

(4)how might the Department enhance the quality, utility, and clarity of the information to be collected; and

(5)how might the Department minimize the burden of this collection on respondents, including through the use of information technology. Dated: July 10, 2008. Angela C. Arrington, IC Clearance Official, Regulatory Information Management Services, Office of Management. Office of the Under Secretary *Type of Review:* New. *Title:* Study of Pell Grant Recipients Who Transfer Among Eligible Institutions. *Abstract:* This is a request for clearance for a survey of Pell Grant recipients who transferred from one institution to another. The general purpose of the survey is to determine the satisfaction of Pell Grant recipients with the financial aid process, while a more specific purpose is to identify and describe problems that Pell Grant recipients may encounter when attempting to transfer credits/courses from one institution to another. Additional Information: The U.S. Department of Education (the Department) requests that OMB grant an emergency clearance of the Study of Pell Grant Recipients Who Transfer Among Eligible Institutions. This study is designed to determine the satisfaction of Pell Grant recipients with the financial aid process and to identify and describe problems that they may encounter when attempting to transfer credits/courses from one institution to another. This study is particularly relevant, given the timing of the following factors: First, the Congress is currently working on reauthorization for the Higher Education Act/reauthorization will likely include new requirements for disclosing institutions' transfer of credit policies. Implementation of these requirements by the Department would be best informed by the results of this study. Second, the Department of Education currently has the best sample with the most recent contact information for the population of interest. Given that this population is particularly difficult to reach, there is significant risk that our sample may degrade if we delay data collection further. Finally the information obtained from this study will assist in improving the Department's customer service functions for students who receive federal student aid for the 2009-10 school year. Data from this study will inform messaging to federal student aid applicants who appear to transfer to ensure that the credits that they have earned are considered by their receiving institution. Delays in conducting this study would prevent the Department from providing this service to federal student aid applicants. We respectfully request OMB approval by July 17, 2008. *Frequency:* On occasion. *Affected Public:* Individuals or households. *Reporting and Recordkeeping Hour Burden:* *Responses:* 1,500. *Burden Hours:* 375. Requests for copies of the proposed information collection request may be accessed from *http://edicsweb.ed.gov,* by selecting the “Browse Pending Collections” link and by clicking on link number 3758. When you access the information collection, click on “Download Attachments” to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., Potomac Center, 9th Floor, Washington, DC 20202-4700. Requests may also be electronically mailed to the Internet address *ICDocketMgr@ed.gov* or faxed to 202-245-6623. Please specify the complete title of the information collection when making your request. Comments regarding burden and/or the collection activity requirements should be electronically mailed to *ICDocketMgr@ed.gov.* Individuals who use a telecommunications device for the deaf

(TDD)may call the Federal Information Relay Service

(FIRS)at 1-800-877-8339. [FR Doc. E8-16151 Filed 7-15-08; 8:45 am] BILLING CODE 4000-01-P DEPARTMENT OF EDUCATION Notice of Proposed Information Collection Requests AGENCY: Department of Education. SUMMARY: The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995. DATES: Interested persons are invited to submit comments on or before September 15, 2008. SUPPLEMENTARY INFORMATION: Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget

(OMB)provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following:

(1)Type of review requested, *e.g.* new, revision, extension, existing or reinstatement;

(2)Title;

(3)Summary of the collection;

(4)Description of the need for, and proposed use of, the information;

(5)Respondents and frequency of collection; and

(6)Reporting and/or Recordkeeping burden. OMB invites public comment. The Department of Education is especially interested in public comment addressing the following issues:

(1)Is this collection necessary to the proper functions of the Department;

(2)will this information be processed and used in a timely manner;

(3)is the estimate of burden accurate;

(4)how might the Department enhance the quality, utility, and clarity of the information to be collected; and

(5)how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Dated: July 10, 2008. Angela C. Arrington, IC Clearance Official, Regulatory Information Management Services, Office of Management. Office of Innovation and Improvement *Type of Review:* Extension. *Title:* Application for Grants Under the State Charter School Facilities Incentive Grants Program. *Frequency:* Semi-annually. *Affected Public:* State, Local, or Tribal Gov't, SEAs or LEAs. *Reporting and Recordkeeping Hour Burden:* Responses: 12. Burden Hours: 4,800. *Abstract:* The Department of Education will use the application to award grants under the State Charter School Facilities Incentive grants program. These grants are made to States to provide them with an incentive to create new or enhance existing per-pupil facilities for charter schools. Requests for copies of the proposed information collection request may be accessed from *http: //edicsweb.ed.gov* , by selecting the “Browse Pending Collections” link and by clicking on link number 3715. When you access the information collection, click on “Download Attachments” to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., LBJ, Washington, DC 20202-4537. Requests may also be electronically mailed to *ICDocketMgr@ed.gov* or faxed to 202-401-0920. Please specify the complete title of the information collection when making your request. Comments regarding burden and/or the collection activity requirements should be electronically mailed to *ICDocketMgr@ed.gov* . Individuals who use a telecommunications device for the deaf

(TDD)may call the Federal Information Relay Service

(FIRS)at 1-800-877-8339. [FR Doc. E8-16157 Filed 7-15-08; 8:45 am] BILLING CODE 4000-01-P DEPARTMENT OF EDUCATION Notice of Proposed Information Collection Requests AGENCY: Department of Education. SUMMARY: The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995. DATES: Interested persons are invited to submit comments on or before September 15, 2008. SUPPLEMENTARY INFORMATION: Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget

(1)Type of review requested, *e.g.* new, revision, extension, existing or reinstatement;

(2)Title;

(3)Summary of the collection;

(4)Description of the need for, and proposed use of, the information;

(5)Respondents and frequency of collection; and

(6)Reporting and/or Recordkeeping burden. OMB invites public comment. The Department of Education is especially interested in public comment addressing the following issues:

(1)Is this collection necessary to the proper functions of the Department;

(2)will this information be processed and used in a timely manner;

(3)is the estimate of burden accurate;

(4)how might the Department enhance the quality, utility, and clarity of the information to be collected; and

(RLIS)Program. *Frequency:* Annually. *Affected Public:* State, Local, or Tribal Gov't, SEAs or LEAs. *Reporting and Recordkeeping Hour Burden:* Responses: 666. Burden Hours: 250. *Abstract:* This OMB package requests clearance for data collection instruments to be used in the Evaluation of the Implementation of the Rural and Low-Income Schools

(RLIS)Program which will be administered by Berkeley Policy Associates (BPA). The purpose of the study is to obtain information useful for the management and improvement of the RLIS program. In particular, the study will obtain information that will be used for preparing the Biennial Report to Congress on the RLIS program (mandated by Section 6224(c) of Title VI, Part B of the Elementary and Secondary Education Act), providing information for the next Office of Management and Budget

(OMB)Program Assessment Rating Tool (PART), and providing context and greater depth of understanding when reporting on Government Performance and Results Act

(GPRA)measures. Requests for copies of the proposed information collection request may be accessed from *http://edicsweb.ed.gov,* by selecting the “Browse Pending Collections” link and by clicking on link number 3760. When you access the information collection, click on “Download Attachments” to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., LBJ, Washington, DC 20202-4537. Requests may also be electronically mailed to *ICDocketMgr@ed.gov* or faxed to 202-401-0920. Please specify the complete title of the information collection when making your request. Comments regarding burden and/or the collection activity requirements should be electronically mailed to *ICDocketMgr@ed.gov.* Individuals who use a telecommunications device for the deaf

(TDD)may call the Federal Information Relay Service

(FIRS)at 1-800-877-8339. [FR Doc. E8-16158 Filed 7-15-08; 8:45 am] BILLING CODE 4000-01-P DEPARTMENT OF EDUCATION Submission for OMB Review; Comment Request AGENCY: Department of Education. ACTION: Correction notice. SUMMARY: On July 9, 2008, the Department of Education published a comment period notice in the **Federal Register** (Page 39286, Column 1) for the information collection, “FRSS Educational Technology in Public Schools.” This notice hereby corrects the title to “FRSS 96—District Survey of Alternative Schools and Programs: 2007-2008.” The IC Clearance Official, Regulatory Information Management Services, Office of Management, hereby issues a correction notice as required by the Paperwork Reduction Act of 1995. Dated: July 10, 2008. Angela C. Arrington, IC Clearance Official, Regulatory Information Management Services, Office of Management. [FR Doc. E8-16172 Filed 7-15-08; 8:45 am] BILLING CODE 4000-01-P DEPARTMENT OF EDUCATION Submission for OMB Review; Comment Request AGENCY: Department of Education. ACTION: Correction notice. SUMMARY: On July 9, 2008, the Department of Education published a comment period notice in the **Federal Register** (Page 39286, Column 3) for the information collection, “Application for Grants under the Student Support Services Program.” This notice hereby corrects the Responses to 1,500 and the Burden Hours to 66,000. The IC Clearance Official, Regulatory Information Management Services, Office of Management, hereby issues a correction notice as required by the Paperwork Reduction Act of 1995. Dated: July 10, 2008. Angela C. Arrington, IC Clearance Official, Regulatory Information Management Services, Office of Management. [FR Doc. E8-16173 Filed 7-15-08; 8:45 am] BILLING CODE 4000-01-P DEPARTMENT OF EDUCATION Submission for OMB Review; Comment Request AGENCY: Department of Education. SUMMARY: The IC Clearance Official, Regulatory Information Management Services, Office of Management invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995. DATES: Interested persons are invited to submit comments on or before August 15, 2008. ADDRESSES: Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, Washington, DC 20503. Commenters are encouraged to submit responses electronically by e-mail to *oira_submission@omb.eop.gov* or via fax to

(202)395-6974. Commenters should include the following subject line in their response “Comment: [insert OMB number], [insert abbreviated collection name, *e.g.* , `Upward Bound Evaluation']”. Persons submitting comments electronically should not submit paper copies. SUPPLEMENTARY INFORMATION: Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget

(1)Type of review requested, *e.g.* new, revision, extension, existing or reinstatement;

(2)Title;

(3)Summary of the collection;

(4)Description of the need for, and proposed use of, the information;

(5)Respondents and frequency of collection; and

(6)Reporting and/or Recordkeeping burden. OMB invites public comment. Dated: July 10, 2008. Angela C. Arrington, IC Clearance Official, Regulatory Information Management Services, Office of Management. Institute of Education Sciences *Type of Review:* New. *Title:* Teachers' Use of Educational Technology in U.S. Public Schools. *Frequency:* One time. *Affected Public:* Individuals or household; State, Local, or Tribal Gov't, SEAs or LEAs. *Reporting and Recordkeeping Hour Burden:* Responses: 5,400; Burden Hours: 2,100. *Abstract:* This survey will collect information from a sample of 4,000 public elementary and secondary school teachers about their use of education technology. The survey will ask about teachers' use of technology in their teaching; their preparation to use these technologies; and how well prepared they feel to use these technologies. *Requests for copies of the information collection submission for OMB review may be accessed from http:* // edicsweb.ed.gov, by selecting the “Browse Pending Collections” link and by clicking on link number 3677. When you access the information collection, click on “Download Attachments ” to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., LBJ, Washington, DC 20202-4537. Requests may also be electronically mailed to *ICDocketMgr@ed.gov* or faxed to 202-401-0920. Please specify the complete title of the information collection when making your request. Comments regarding burden and/or the collection activity requirements should be electronically mailed to *ICDocketMgr@ed.gov* . Individuals who use a telecommunications device for the deaf

(TDD)may call the Federal Information Relay Service

(FIRS)at 1-800-877-8339. [FR Doc. E8-16217 Filed 7-15-08; 8:45 am] BILLING CODE 4000-01-P DEPARTMENT OF EDUCATION Notice of Proposed Information Collection Requests AGENCY: Department of Education. ACTION: Correction Notice. SUMMARY: On June 12, 2008, the Department of Education published a comment period notice in the **Federal Register** (Page 33414, Column 3) for the information collection, “Consolidated State Performance Report (Part I and II).” This notice hereby corrects the Focused Question for Public Comment to read: *Focused Question for Public Comment:* EDF *acts* Data Linkages for Prepopulation of CSPR. The SY 2006-07 CSPR contained questions that were “Initially Pre-populated from ED *Facts* .” The “ *Initial Prepopulation* ” strategy allowed CSPR coordinators the flexibility to use either the data submitted through ED *Facts* or an alternative data source to respond to questions on the CSPR. It is ED's intention and desire to move as many of those questions, which were “Initially prepopulated” in 2006-07 to full utilization of ED *Facts* Submissions for 2007-08. As a result, CSPR coordinators will only be able to amend responses to those questions on the CSPR by working with their ED *Facts* coordinator to resubmit a file through ED *Facts* . The Department plans to move cautiously towards this new strategy by carefully reviewing each state's ED *Facts* transition agreement to ensure that all states will continue to have the capacity to submit their CSPR to the Department in a timely manner and with complete and accurate information. The Department is soliciting public comment from the states on the viability of moving any or all of the following questions, which were initially pre-populated in 2006-07 to exclusive pre-population for 2007-08 or 2008-09. Questions on the 2007-08 CSPR which were “Initially Prepopulated from ED *Facts* ” in 2006-07 are listed below: Question No. Descriptor 1.3.1 Student Achievement in Mathematics. 1.3.2 Student Achievement in Reading Language Arts. 1.4.3 Accountability of Districts That Received Title I Funds. 1.4.9.1.2 Public School Choice—Students. 1.4.9.1.3 Funds Spent on Public School Choice. 1.4.9.2.2 Supplemental Educational Services—Students. 1.4.9.2.3 Funds Spent on Supplemental Educational Services. 1.6.5.1 Immigrant Students. 1.8.1 Graduation Rates. 1.9.2.1 Homeless Children and Youths Served by McKinney-Vento Subgrants. 1.9.2.2 Subpopulations of Homeless Students Served. 1.9.2.5.1 Reading Assessment. 1.9.2.5.2 Mathematics Assessment. 1.10.1 Category 1 Child Count. 1.10.2 Category 2 Child Count. 2.3.1.1 Eligible Migrant Children. 2.3.1.2 Priority for Services. 2.3.1.3 Limited English Proficient. 2.3.1.4 Children with Disabilities (IDEA). 2.3.2.1 Dropouts. 2.3.2.3.1 Reading/Language Arts Participation. 2.3.3.1.1 MEP Students Served During the Regular School Year. 2.3.3.1.2 Priority for Services—During the Regular School Year. 2.3.3.3 MEP Participation—Program Year. 2.3.4.1 Schools and Enrollment. 2.3.4.2 Schools Where MEP Funds Were Consolidated in Schoolwide Programs. 2.3.6.1.2 MEP Staff. 2.4.1.2 Students Served—Subpart 1. 2.4.1.6.1 Academic Performance in Reading—Subpart 1. 2.4.1.6.2 Academic Performance in Mathematics—Subpart 1. 2.4.2.6.1 Academic Performance in Reading—Subpart 2. 2.4.2.6.2 Academic Performance in Mathematics—Subpart 2. 2.7.2.1 State Definitions. 2.7.2.2.1 Out-of-School Suspensions for Violent Incident Without Physical Injury. 2.7.2.2.2 Out-of-School Expulsions for Violent Incident Without Physical Injury. 2.7.2.3.1 Out-of-School Suspensions for Violent Incident with Physical Injury. 2.7.2.3.2 Out-of-School Expulsions for Violent Incident with Physical Injury. 2.7.2.4.1 Out-of-School Suspensions for Weapons Possession. 2.7.2.4.2 Out-of-School Expulsions for Weapons Possession. 2.7.2.5.1 Out-of-School Suspensions for Alcohol-Related Incidents. 2.7.2.5.2 Out-of-School Expulsions for Alcohol-Related Incidents. 2.7.2.6.1 Out-of-School Suspensions for Illicit Drug-Related Incidents. 2.7.2.6.2 Out-of-School Expulsions for Illicit Drug-Related Incidents. The IC Clearance Official, Regulatory Information Management Services, Office of Management, hereby issues a correction notice as required by the Paperwork Reduction Act of 1995. Dated: July 10, 2008. Angela C. Arrington, IC Clearance Official, Regulatory Information Management Services, Office of Management. [FR Doc. E8-16160 Filed 7-15-08; 8:45 am] BILLING CODE 4000-01-P DEPARTMENT OF EDUCATION National Assessment Governing Board; Meeting AGENCY: Department of Education, National Assessment Governing Board. ACTION: Notice of open meeting and partially closed meetings. SUMMARY: The notice sets forth the schedule and proposed agenda of a forthcoming meeting of the National Assessment Governing Board. This notice also describes the functions of the Board. Notice of this meeting is required under Section 10(a)(2) of the Federal Advisory Committee Act. This document is intended to notify members of the general public of their opportunity to attend. Individuals who will need special accommodations in order to attend the meeting ( *i.e.* , interpreting services, assistive listening devices, materials in alternative format) should notify Munira Mwalimu at 202-357-6938 or at *Munira.Mwalimu@ed.gov* no later than July 21, 2008. We will attempt to meet requests after this date, but cannot guarantee availability of the requested accommodation. The meeting site is accessible to individuals with disabilities. DATES: July 31-August 2, 2008. *Times:* *July 31:* *Committee Meetings:* *Assessment Development Committee:* Closed Session—8:30 a.m. to 1:45 p.m. *Ad Hoc Committee on NAEP Testing and Reporting:* Open Session—2:15 p.m. to 4:15 p.m. *Executive Committee:* Open Session—4:30 p.m. to 5 p.m.; Closed Session—5 p.m. to 6 p.m. *August 1:* *Full Board:* Open Session—8:30 a.m. to 9 a.m.; 12:30 p.m. to 4 p.m. *Committee Meetings:* *Assessment Development Committee:* Closed Session—9:15 a.m. to 12:15 p.m. *Committee on Standards, Design and Methodology:* Open Session—9:15 a.m. to 10:30 a.m.; Closed Session—10:30 a.m. to 12:15 p.m. *Reporting and Dissemination Committee:* Open Session—9:15 a.m. to 12:15 p.m. *August 2:* *Nominations Committee:* Closed Session—8:15 a.m. to 8:45 a.m. *Full Board:* Open Session—9 a.m. to 12 p.m. *Location:* Mandarin Oriental Washington DC, 1330 Maryland Avenue, SW., Washington DC 20024. FOR FURTHER INFORMATION CONTACT: Munira Mwalimu, Operations Officer, National Assessment Governing Board, 800 North Capitol Street, NW., Suite 825, Washington, DC 20002-4233, Telephone:

(202)357-6938. SUPPLEMENTARY INFORMATION: The National Assessment Governing Board is established under section 412 of the National Education Statistics Act of 1994, as amended. The Board is established to formulate policy guidelines for the National Assessment of Educational Progress (NAEP). The Board's responsibilities include selecting subject areas to be assessed, developing assessment specifications and frameworks, developing appropriate student achievement levels for each grade and subject tested, developing standards and procedures for interstate and national comparisons, developing guidelines for reporting and disseminating results, and releasing initial NAEP results to the public. On July 31 from 8:30 a.m. to 1:45 p.m. the Assessment Development Committee will meet in closed session to review secure test items for grades 4, 8, and 12 for the 2009 National Assessment of Educational Progress

(NAEP)science assessments and for the 2010 NAEP pilot assessments in civics and geography at grades 4, 8, and 12. The meeting must be conducted in closed session as disclosure of proposed test items for the assessments would significantly impede implementation of the NAEP program, and is therefore protected by exemption 9(B) of section 552b(c) of Title 5 U.S.C. On July 31, the Ad Hoc Committee on NAEP Testing and Reporting on Students with Disabilities and English Language Learners will meet in open session from 2:15 p.m. to 4:15 p.m. The Executive Committee will meet in open session from 4:30 p.m. to 5 p.m. on July 31 and in closed session from 5 p.m. to 6 p.m. During the closed session the Executive Committee will receive a briefing from the National Center for Education Statistics

(NCES)on options for NAEP contracts covering the 2008-2012 assessment years, based on funding for Fiscal Year 2010. The discussion of contract options and costs will address the implications for congressionally mandated goals and adherence to Board policies on NAEP assessments. This part of the meeting must be conducted in closed session because public discussion of this information would disclose independent government cost estimates and contracting options, adversely impacting the confidentiality of the contracting process. Public disclosure of information discussed would significantly impede implementation of the NAEP contract awards, and is therefore protected by exemption 9(B) of section 552b(c) of Title 5 U.S.C. The second item of discussion during the Executive Committee's closed session is a discussion of personnel matters and the nomination of the Board Vice Chair for the one-year term beginning October 1, 2008. These discussions pertain solely to internal personnel rules and practices of an agency and will disclose information of a personal nature where disclosure would constitute an unwarranted invasion of personal privacy. As such, the discussions are protected by exemptions 2 and 6 of section 552b(c) of Title 5 U.S.C. On August 1, the full Board will meet in open session from 8:30 a.m. to 9:00 a.m. The Board will approve the agenda and the May 2008 Board minutes. Thereafter, the Governing Board will receive a report from the Executive Director of the Governing Board, and hear an update on the work of the National Center for Education Statistics (NCES). On August 1, the Board's standing committees—the Assessment Development Committee; the Committee on Standards, Design and Methodology; and the Reporting and Dissemination Committee will meet from 9:15 a.m. to 12:15 p.m. The Assessment Development Committee will meet in closed session from 9:15 a.m. to 12:15 a.m. on August 1 to review secure hands-on tasks and computer based tasks for the 2009 NAEP science assessment in grades 4, 8, and 12. The meeting must be conducted in closed session as disclosure of proposed test items for the science assessment would significantly impede implementation of the NAEP program, and is therefore protected by exemption 9(B) of section 552b(c) of Title 5 U.S.C. On Friday, August 1, the Committee on Standards, Design and Methodology will meet in open session from 9:15 a.m. to 10:30 a.m. and in closed session from 10:30 a.m. to 12:15 p.m. During the closed session, the Committee will first receive results of a study conducted by NCES on test items for the NAEP 2009 reading and math assessments to demonstrate the effectiveness of new item development strategies. The second portion of the closed session briefing from NCES is to receive preliminary results of NAEP studies to maintain trend lines for the 2009 NAEP reading and mathematics assessments. The meeting must therefore be conducted in closed session in order to allow the Committee to receive and discuss confidential test items and results of NAEP studies that have not been publicly released. This would significantly impede implementation of the NAEP program, and is therefore protected by exemption 9(B) of section 552b(c) of Title 5 U.S.C. The Reporting and Dissemination Committee will meet in open session on August 1 from 9:15 a.m. to 12:15 p.m. On August 1, from 12:30 p.m. to 1:30 p.m. the full Board will meet in open session to hear a presentation from the Virginia Superintendent of Public Instruction and the Chair of the Governing Board's Policy Task Force that works with the Council of Chief State School Officers. From 1:30 p.m. to 2:30 p.m. the Board will receive a briefing from the Chair of the Board's 12th Grade Technical Panel on Preparedness Research. From 2:45 p.m. to 4 p.m., the Board will hear a presentation from the Executive Director of the Council of the Great City Schools on how Trial Urban Districts make use of NAEP data. The August 1 session of the Board meeting is scheduled to adjourn at 4 p.m. On August 2, the Nominations Committee will meet in closed session from 8:15 a.m. to 8:45 a.m. to receive an update on the status of the 2008 Board nominations and to review and discuss confidential information regarding nominees for Board vacancies for terms beginning on October 1, 2009. These discussions pertain solely to internal personnel rules and practices of an agency and will disclose information of a personal nature where disclosure would constitute an unwarranted invasion of personal privacy. As such, the discussions are protected by exemptions 2 and 6 of section 552b(c) of Title 5 U.S.C. The full Board will meet in open session on August 2 from 8:15 a.m. to 12 p.m. to hear a presentation on “Inside NAEP: Background Variables.” From 10:15 a.m. to 12 p.m. the Board will receive and take action on Committee reports and elect the Board Vice Chair. The August 2, 2008 session of the Board meeting is scheduled to adjourn at 12 p.m. Detailed minutes of the meeting, including summaries of the activities of the closed sessions and related matters that are informative to the public and consistent with the policy of section 5 U.S.C. 552b(c) will be available to the public within 14 days of the meeting. Records are kept of all Board proceedings and are available for public inspection at the U.S. Department of Education, National Assessment Governing Board, Suite #825, 800 North Capitol Street, NW., Washington, DC, from 9 a.m. to 5 p.m. Eastern Standard Time, Monday through Friday. *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/index.html* . To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free at 1-888-293-6498; or in the Washington, DC, area at

(202)512-1530. Note: The official version of this document is the document published in the **Federal Register** . Free Internet access to the official edition of the **Federal Register** and the Code of Federal Regulations is available on GPO Access at: *http://www.gpoaccess.gov/nara/index.html* . Dated: July 11, 2008. Mary Crovo Clark, Deputy Executive Director, National Assessment Governing Board, U.S. Department of Education. [FR Doc. E8-16223 Filed 7-15-08; 8:45 am] BILLING CODE 4000-01-P DEPARTMENT OF ENERGY Electric Transmission Congestion Study AGENCY: Office of Electricity Delivery and Energy Reliability, Department of Energy (DOE). ACTION: Notice of date and time Changes for technical workshops. SUMMARY: On June 4, 2008, DOE published a notice that DOE was initiating preparations for the 2009 National Electric Transmission Congestion Study pursuant to section 216(a)(1) of the Federal Power Act (73 FR 31846). In the June 4 notice, DOE stated that it would be hosting six regional technical workshops to receive and discuss input concerning electric transmission-level congestion. The date for the workshop in Atlanta and the starting time of the workshop in Chicago have been changed. The locations of the workshops remain the same. DATES: See SUPPLEMENTARY INFORMATION section for workshop date and time changes. FOR FURTHER INFORMATION CONTACT: David Meyer, DOE Office of Electricity Delivery and Energy Reliability,

(202)586-1411, *david.meyer@hq.doe.gov* . SUPPLEMENTARY INFORMATION: I. Date and Time Changes for Technical Workshops *Workshops dates and times:* The date for the Atlanta and the starting and ending time for the Chicago technical workshops are: 1. July 29, 2008, 9 a.m. to 12:30 p.m., Atlanta, GA. 2. September 17, 2008, 8:30 a.m. to 12 p.m., Chicago, IL. Issued in Washington, DC on July 10, 2008. Marshall E. Whitenton, Deputy Assistant Secretary, Permitting, Siting and Analysis, Office of Electricity Delivery and Energy Reliability. [FR Doc. E8-16222 Filed 7-15-08; 8:45 am] BILLING CODE 6450-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 9988-015] Augusta Canal Authority; Notice of Application Ready for Environmental Analysis and Soliciting Comments, Recommendations, Terms and Conditions, and Prescriptions July 9, 2008. Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection. a. *Type of Application:* New Major License. b. *Project No.:* P-9988-015. c. *Date filed:* May 31, 2007. d. *Applicant:* Augusta Canal Authority. e. *Name of Project:* King Mill Hydroelectric Project. f. *Location* : The King Mill Project is located on the Augusta Canal about 6 miles downstream of the Augusta Diversion Dam, adjacent to the Savannah River, Richmond County, Augusta, GA. The project does not affect federal lands. g. *Filed Pursuant to:* Federal Power Act 16 U.S.C. 791(a)-825(r) h. *Applicant Contact:* Mr. Dayton Sherrouse, Executive Director, Augusta Canal Authority, 1450 Green Street, Suite 400, Augusta, GA 30901; Telephone

(706)823-0440, Ext. 1. i. *FERC Contact:* Sarah Florentino, Telephone

(202)502-6863, or e-mail *sarah.florentino@ferc.gov* . Additional information on Federal Energy Regulatory Commission

(FERC)hydroelectric projects is available on FERC's Web site: *http://www.ferc.gov/industries/hydropower.asp* j. The deadline for filing comments, recommendations, terms and conditions, and prescriptions is 60 days from the issuance of this notice (September 8, 2008) and reply comments are due 105 days from the issuance date of this notice (October 21, 2008). All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on 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. Comments, recommendations, terms and conditions, and prescriptions may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. *See* 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site ( *http://www.ferc.gov* ) under the “e-Filing” link. k. This application has been accepted and is ready for environmental analysis at this time. l. *Project description:* The existing King Mill Hydroelectric Project consists of:

(1)Intake works consisting of a 50-foot-long, 15-foot-high headgate and intake structure;

(2)primary and secondary steel trash racks;

(3)a 200-foot-long, 40-foot-wide, concrete-lined, open flume head race;

(4)a 435-foot-long, 30-foot-wide brick and masonry powerhouse;

(5)two vertical shaft turbine/generator units with an installed capacity of 2.25 megawatts;

(6)a 435-foot-long, 30-foot-wide, concrete-lined, open tailrace section which returns flows to the Augusta Canal; and

(7)appurtenant facilities. There is no dam or impoundment, as approximately 881 cfs of water is withdrawn from the Augusta Canal when operating at full capacity. Developed head is approximately 32 feet. The estimated generation is 14,366 MWh annually. Nearly all generated power is utilized by the Standard Textile Plant, located within the King Mill building, for textile production. No new facilities or changes in project operation are proposed. m. A copy of the application 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 toll-free at 1-866-208-3676, or for TTY,

(202)502-8659. A copy is also available for inspection and reproduction at the address in item h above. *All filings must:*

(1)Bear in all capital letters the title “COMMENTS”, “REPLY COMMENTS,” “RECOMMENDATIONS,” “TERMS AND CONDITIONS,” or “PRESCRIPTIONS;”

(2)set forth in the heading the name of the applicant and the project number of the application to which the filing responds;

(3)furnish the name, address, and telephone number of the person submitting the filing; and

(4)otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions, or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Each filing must be accompanied by proof of service on all persons listed on the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b), and 385.2010. You may also register online at *http://www.ferc.gov/docs-filing/esubscription.asp* to be notified via e-mail of new filings and issuances related to this or other pending projects. For assistance, contact FERC Online Support. n. A license applicant must file no later than 60 days following the date of issuance of this notice:

(1)A copy of the water quality certification;

(2)a copy of the request for certification, including proof of the date on which the certifying agency received the request; or

(3)evidence of waiver of water quality certification. Kimberly D. Bose, Secretary. [FR Doc. E8-16201 Filed 7-15-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Projects Nos. 13103-000 and 13104-000] Birch Power Company; BPUS Generation Development LLC; Notice of Competing Preliminary Permit Applications Accepted for Filing and Soliciting Comment, Motions To Intervene, and Competing Applications July 9, 2008. On February 1, 2008, at 8:32 a.m. and 8:39 a.m. respectively, Birch Power Company (Birch Power) and BPUS Generation Development LLC (BPUS Generation) filed applications, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility of the Coffeeville Lock and Dam Hydroelectric Project, to be located at the existing U.S. Army Corp of Engineers (Corps) Coffeeville Lock and Dam on the Tombigbee River in Choctaw and Clarke Counties, Alabama. The proposed projects would use the existing Corps Coffeeville Lock and Dam and would respectively consist of, for Birch Power and BPUS Generation:

(1)A proposed powerhouse containing several generating units having total installed capacities of 9.55 and 24 megawatts,

(2)a proposed intake and tailrace,

(3)a proposed transmission line, and

(4)appurtenant facilities. The projects would, respectively, have an annual generation of 62 and 48 gigawatt-hours that would be sold to a local utility. *Applicant Contact:* for Birch Power—Mr. Ted Sorenson, Sorenson Engineering, 5203 South 11th East, Idaho Falls, ID 83404; phone: 208-522-8069; for BPUS Generation—Mr. Jeffrey M. Auser, BPUS Generation Development LLC, 225 Greenfield Parkway, Suite 201, Liverpool, NY 13088; phone: 315-413-2700. FERC Contact: Tom Papsidero, 202-502-6002. Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. If unable to be filed electronically, documents may be paper-filed. To paper-file, an original and eight copies should be mailed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. For more information on how to submit these types of filings please go to the Commission's Web site located at *http://www.ferc.gov/filing-comments.asp* . More information about this project can be viewed or printed on the “eLibrary” link of the Commission's Web site at *http://www.ferc.gov/docs-filing/elibrary.asp* . Enter the docket number (P-13103-000 or P-13104-000) in the docket number field to access the document. For assistance, call toll-free 1-866-208-3372. Kimberly D. Bose, Secretary. [FR Doc. E8-16203 Filed 7-15-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 309-062] Brookfield Power Piney & Deep Creek, LLC; Notice of Application Accepted for Filing, Soliciting Motions To Intervene and Protests, Ready for Environmental Analysis, and Soliciting Comments, Recommendations, Terms and Conditions, and Fishway Prescriptions July 9, 2008. Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection: a. *Type of Application:* Amendment of License. b. *Project No.:* 309-062. c. *Date Filed:* January 22, 2008. d. *Applicant:* Brookfield Power Piney & Deep Creek, LLC. e. *Name of Project:* Piney Hydroelectric Project. f. *Location:* The project is located on the Clarion River, in Clarion County, Pennsylvania. The project does not occupy any federal lands. g. *Filed Pursuant to:* Federal Power Act, 16 U.S.C. 791(a)-825(r). h. *Applicant Contacts:* Mr. David Barnhart, West Virginia Production Center, P.O. Box 849, Gauley Bridge, WV 25085,

(304)981-6504, and Mr. Glen Neiport, Brookfield Power Piney & Deep Creek, LLC, Piney Station, 2000 River Road, Clarion, PA 16214,

(814)226-8630. i. *FERC Contact:* Kelly Houff,

(202)502-6393, and e-mail *Kelly.Houff@ferc.gov* . j. Deadline for filing comments, protests, motions to intervene, recommendations, preliminary terms and conditions, and fishway prescriptions is due 60 days from the issuance date of this notice; reply comments are due 105 days from the issuance date of this notice. All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Please include the project number (P-309-062) 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 Request:* The existing licensed project consists of

(1)A 784-foot-long and 125-foot-high concrete arch dam;

(2)an 800-surface-acre reservoir, which operates at a minimum water surface elevation of 1,090 feet msl from June 21 through October 31, 1,085 feet msl from November 1 through March 31, and 1092.5 ± 0.5 feet msl from April 1 through June 20;

(3)three 14-foot-diameter penstocks between 232 and 300 feet long; and

(4)a powerhouse with three generating units totaling 29.08 megawatts installed capacity. The licensee proposes to amend the license to implement the following:

(1)To operate the reservoir on non-holiday weekdays from June 21 through October 31, between water surface elevations of 1,089 and 1,093 feet msl, a change from the current reservoir range of 1,090 and 1,093 feet msl. However, the licensee will maintain a minimum water surface elevation in the reservoir no lower than 1,090 feet msl, on weekends, where the weekend is defined as between 2400 hours on Friday through 2400 hours on Sunday. Additionally, the minimum reservoir surface elevation for the July 4 and Labor Day holidays shall be 1,090 feet msl, where the minimum reservoir level shall start at 1800 hours the day before the holiday and end on the holiday at 2400 hours;

(2)repair, replace or extend the Mill Creek boat launch ramp as necessary so it can function at 1,089 feet; and

(3)on the fifth anniversary date of the license, contribute $100,000 to an interest-bearing account (recreational account), whose funds shall be used by the licensee to pay for recreational and boating access enhancements that are agreed upon as necessary by the Piney Lake Advisory Council. The additional one-foot drawdown will increase the average annual generation at the project by approximately 675 megawatt hours per year. 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 1-866-208-3372 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. *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. Comments, protests, interventions, recommendations, terms and conditions, and fishway prescriptions 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 “e-filing” link. The Commission strongly encourages electronic filing. o. *Filing and Service of Responsive Documents:* All filings must

(1)Bear in all capital letters the title “PROTEST,” “MOTION TO INTERVENE,” “COMMENTS,” “REPLY COMMENTS,” “RECOMMENDATIONS,” “ TERMS AND CONDITIONS,” or “ FISHWAY PRESCRIPTIONS;”

(2)set forth in the heading the name of the applicant and the project number of the application to which the filing responds;

(3)furnish the name, address, and telephone number of the person protesting or intervening; and

(4)otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). All comments, recommendations, terms and conditions or prescriptions should relate to project works which are the subject of the license amendment. Agencies may obtain copies of the application directly from the applicant. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010. Kimberly D. Bose, Secretary. [FR Doc. E8-16209 Filed 7-15-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP08-433-000] Canyon Creek Compression Company; Notice of Application July 9, 2008. Take notice that on June 30, 2008, Canyon Creek Compression Company (Canyon), 3250 Lacey Road, 7th Floor, Downers Grove, Illinois 60515, filed in the above referenced docket an application pursuant to section 7(b) of the Natural Gas Act (NGA), and Sections 157.7 and 157.18 of the Commission's regulations for an order granting a certificate of public convenience to abandon:

(1)Its 22,000 horsepower

(HP)compressor station and other appurtenant facilities located in Uinta County, Wyoming (CS 730) as authorized in Docket No. CP80-547, as amended;

(2)its blanket certificate issued in Docket No. 89-1497-000 which authorized Canyon to compress/transport natural gas in interstate commerce for interstate pipelines and others pursuant to Subpart G of Part 284 of the Commission's regulations;

(3)its blanket certificate issued in Docket No. CP92-18-000 which authorized Canyon to engage in certain routine jurisdictional activities and for permission and approval to abandon certain services and facilities, as specified in Subpart F of Part 157 of the Commission's regulations; and

(4)its 10-inch tap located in Uinta County, Wyoming constructed under Canyon's blanket certificate in Docket No. CP92-18-000 used to deliver gas to Kern River Gas Transmission Company (Kern River). Canyon is also seeking authorization to be granted a three year period in which to determine the ultimate disposition of its facilities, whether it is by sale or physical removal of all or a portion of the facilities, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the web 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, please contact FERC Online Support at *FERCOnlineSupport@ferc.gov* or toll free at

(866)208-3676, or TTY, contact

(202)502-8659. Any questions concerning this application may be directed to Bruce H. Newsome, Vice President, Canyon Creek Compression Company, 3250 Lacey Road, Downers Grove, Illinois 60515-7918, or

(630)725-3070, or *bruce_newsome@kindermorgan.com* . There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding. However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest. The Commission strongly encourages electronic filings of comments, 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: July 30, 2008. Kimberly D. Bose, Secretary. [FR Doc. E8-16212 Filed 7-15-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 2004-249] City of Holyoke Gas and Electric; Notice of Application for Amendment of License and Soliciting Comments, Motions To Intervene, and Protests July 9, 2008. Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection: a. *Application Type:* Non-Project Use of Project Lands and Waters and Amendment of Project Boundary. b. *Project No:* 2004-249. c. *Date Filed:* May 28, 2008. d. *Applicant:* City of Holyoke Gas and Electric. e. *Name of Project:* Holyoke Hydroelectric Project. f. *Location:* The proposal would be located on the Connecticut River, in Hampden County, Massachusetts. g. *Filed Pursuant to:* Federal Power Act, 16 U.S.C. 791a-825r. h. *Applicant Contact:* Paul Ducheney, 99 Suffolk Street, Holyoke, MA 01040;

(413)536-9340. i. *FERC Contact:* Gina Krump, Telephone

(202)502-6704, and *e-mail: Gina.Krump@ferc.gov* . j. *Deadline for filing comments, motions to intervene, and protest:* August 11, 2008. All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. 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 whose name appears on 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. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application. k. *Description of Request:* The City Holyoke Gas and Electric

(City)is requesting approval to amend the project boundary to add 17.37 acres of land in the Bachelor Brook natural area and to remove 4.62 acres of project lands owned by Mount Holyoke College (College), giving a net increase of 12.75 acres of project lands. Additionally, the City is seeking Commission approval to issue a permit to the College to construct a seasonal gangway and floating dock on project property. No fill, excavation or other ground disturbing activities are proposed. The proposed facilities would serve the students and members of the College. l. *Locations of the Application:* A copy of the application is available for inspection and reproduction at the Commission's 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. You may also register online at *http://www.ferc.gov/docs-filing/esubscription.asp* to be notified via e-mail of new filings and issuances related to this or other pending projects. For assistance, call

(866)208-3372 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. *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. Any filings must bear in all capital letters the title “COMMENTS”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. 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. q. 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 at *http://www.ferc.gov* under the “e-Filing” link. Kimberly D. Bose, Secretary. [FR Doc. E8-16208 Filed 7-15-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 12879-000] Hydro Green Energy, LLC; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comment, Motions To Intervene, and Competing Applications July 9, 2008. On July 24, 2007, Hydro Green Energy, LLC filed an application, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility of the “Alaska 31” Project, located in the Kuskokwim River, in Bethel Borough, Alaska. *The proposed project would consist of:*

(1)5 arrays, each consisting of ten 100 kilowatt hydrokinetic turbine units, for a total installed capacity of 5 megawatts,

(2)a proposed 2000-foot-long, 13.6-kilovolt transmission line, and

(3)appurtenant facilities. The project is estimated to have an annual generation of 32.872 gigawatthours, which would be sold to a local utility. *Applicant Contact:* Wayne Krouse, Hydro Green Energy LLC, 5090 Richmond Avenue #390, Houston, TX 77056; *phone:* 877-556-6566. *FERC Contact:* Kelly Houff, 202-502-6393. Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. If unable to be filed electronically, documents may be paper-filed. To paper-file, an original and eight copies should be mailed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. For more information on how to submit these types of filings please go to the Commission's Web site located at *http://www.ferc.gov/filing-comments.asp* . More information about this project can be viewed or printed on the “eLibrary” link of Commission's Web site at *http://www.ferc.gov/docs-filing/elibrary.asp* . Enter the docket number (P-12879) in the docket number field to access the document. For assistance, call toll-free 1-866-208-3372. Kimberly D. Bose, Secretary. [FR Doc. E8-16202 Filed 7-15-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 13161-000] Hydrodynamics, Inc.; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comment, Motions To Intervene, and Competing Applications July 9, 2008. On April 1, 2008, Hydrodynamics, Inc. filed an application, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility of the Sun River Diversion Dam Project, to be located on an existing dam owned by the U.S. Bureau of Reclamation (USBR), on the Sun River in Teton and Lewis and Clark Counties, Montana, on lands administered by the USBR. The proposed project would consist of:

(1)A proposed 900-foot-long, 10-foot-wide penstock,

(2)a proposed powerhouse containing two generating units having a total installed capacity of 12 megawatts,

(3)a proposed one-quarter-mile-long, 15-kV transmission line, and

(4)appurtenant facilities. The project would have an annual generation of 50 gigawatt-hours that would be sold to a local utility. *Applicant Contact:* Mr. Roger Kirk, Hydrodynamics, Inc., P.O. Box 1136, Bozeman, MT 59771; phone: 406-587-5086. FERC Contact: Tom Papsidero, 202-502-6002. Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. If unable to be filed electronically, documents may be paper-filed. To paper-file, an original and eight copies should be mailed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. For more information on how to submit these types of filings please go to the Commission's Web site located at *http://www.ferc.gov/filing-comments.asp* . More information about this project can be viewed or printed on the “eLibrary” link of the Commission's Web site at *http://www.ferc.gov/docs-filing/elibrary.asp* . Enter the docket number (P-13146) in the docket number field to access the document. For assistance, call toll-free 1-866-208-3372. Kimberly D. Bose, Secretary. [FR Doc. E8-16205 Filed 7-15-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. P-503-048] Idaho Power Company; Notice of Application Tendered for Filing With the Commission, Soliciting Additional Study Requests, and Establishing Procedural Schedule for Relicensing and a Deadline for Submission of Final Amendments July 9, 2008. Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection. a. *Type of Application:* New Major License. b. *Project No.:* P-503-048. c. *Date Filed:* June 26, 2008. d. *Applicant:* Idaho Power Company. e. *Name of Project:* Swan Falls Hydroelectric Project. f. *Location:* The Swan Falls Hydroelectric Project is located on the Snake River at river mile

(RM)457.7 in Ada and Owyhee counties of southwestern Idaho and lies about 35 miles southwest of Boise. Access to the Swan Falls Project is by road from Kuna, located about 19 miles north of the project. The application states that the project occupies 528.84 acres of lands of the United States within the Snake River Birds of Prey National Conservation Area, including 30.66 acres of federally administered lands set aside in the early 1900's for power production development. g. *Filed Pursuant to:* Federal Power Act 16 U.S.C. 791(a)-825(r). h. *Applicant Contact:* Mr. Tom Saldin, Senior Vice President and General Counsel, Idaho Power Company, P.O. Box 70, Boise, Idaho 83707,

(208)388-2550. i. *FERC Contact:* Jim Puglisi

(202)502-6241 or *james.puglisi@ferc.gov* . j. *Cooperating Agencies:* We are asking Federal, state, local, and tribal agencies with jurisdiction and/or special expertise with respect to environmental issues to cooperate with us in the preparation of the environmental document. Agencies who would like to request cooperating status should follow the instructions for filing such requests described in item l below. Cooperating agencies should note the Commission's policy that agencies that cooperate in the preparation of the environmental document cannot also intervene. *See* , 94 FERC ¶ 61,076 (2001). k. Pursuant to Section 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Indian Tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the application on its merit, the resource agency, Indian Tribe, or person must file a request for a study with the Commission not later than 60 days from the date of filing of the application, and serve a copy of the request on the applicant. l. *Deadline for filing additional study requests and requests for cooperating agency status:* August 26, 2008. All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Additional study requests and requests for cooperating agency status may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. *See* 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site ( *http://www.ferc.gov* ) under the “e-Filing” link. m. This application is not ready for environmental analysis at this time. n. The Swan Falls Project consists of:

(1)A 1,218-foot-long concrete gravity and rock-fill dam composed of an abutment embankment, a spillway section, a center island, the old powerhouse section, the intermediate dam, and the new powerhouse;

(2)a 12-mile-long, 1,525-acre reservoir with a normal maximum water surface elevation of 2,314 feet mean sea level (msl);

(3)twelve equal-width, concrete spillways with a capacity of 105,112 cubic feet per second

(cfs)at reservoir elevation 2,318 msl, divided into two sections (western and eastern)—the western section, contiguous with the abutment embankment, is a gated, concrete ogee section with eight radial gates, and the eastern section, which is adjacent to the island, contains four radial gates;

(4)two concrete flow channels (instead of penstocks);

(5)two pit-bulb turbine generators with a nameplate rating of 25 megawatts;

(6)a powerhouse completed in 1994;

(7)a 1,400-foot-long, 120-foot-wide excavated tailrace channel;

(8)a 33,600-kilovolt ampere main power transformer;

(9)a 1.2-mile-long, 138-kilovolt transmission line; and

(10)appurtenant equipment. o. A copy of the application 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 toll-free at 1-866-208-3676, or for TTY,

(202)502-8659. A copy is also available for inspection and reproduction at the address in item h above. You may also register online at *http://www.ferc.gov/docs-filing/esubscription.asp* to be notified via e-mail of new filings and issuances related to this or other pending projects. For assistance, contact FERC Online Support. p. With this notice, we are initiating consultation with the Idaho State Historic Preservation Officer (SHPO), as required by § 106, National Historic Preservation Act, and the regulations of the Advisory Council on Historic Preservation, 36 CFR, at 800.4. q. *Procedural schedule and final amendments:* The application will be processed according to the following Hydro Licensing Schedule. Revisions to the schedule will be made as appropriate. Issue Deficiency/Additional Information Request Letter (if needed) September 2008 Issue Acceptance Letter November 2008. Issue Scoping Document 1 for comments December 2008. Issue Scoping Document 2 (if needed) February 2009. Notice of application ready for environmental analysis April 2009. Notice of the availability of the draft EIS December 2009. Notice of the availability of the final EIS March 2010. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis. Kimberly D. Bose, Secretary. [FR Doc. E8-16211 Filed 7-15-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 13146-000] Utah Independent Power; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comment, Motions To Intervene, and Competing Applications July 9, 2008. On March 24, 2008, Utah Independent Power filed an application, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility of the Long Canyon Pumped Storage Project, to be located in the Long Canyon and the Little Valley in Grand County, Utah. The proposed project would consist of:

(1)Proposed earth and rock-filled dams, 130-foot-high and 3,470-foot-long and 200-foot-high and 790-foot-long, respectively, for the upper and lower reservoirs which would have water surface elevations of 6,010 and 2,400 feet, MSL, respectively,

(2)a proposed powerhouse containing three generating units having a total installed capacity of 800 megawatts,

(3)a proposed 22,400-foot-long concrete/steel penstock,

(4)a proposed 40-mile-long, 250-kV transmission line, and

(5)appurtenant facilities. The project would have an annual generation of 1,077 gigawatt-hours that would be sold to a local utility. *Applicant Contact:* Mr. Frank L. Mazzone, President, Utah Independent Power, 957 Fairway Drive, Sonoma, CA 95476; phone: 707-996-2573. FERC Contact: Tom Papsidero, 202-502-6002. Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. If unable to be filed electronically, documents may be paper-filed. To paper-file, an original and eight copies should be mailed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. For more information on how to submit these types of filings please go to the Commission's Web site located at *http://www.ferc.gov/filing-comments.asp* . More information about this project can be viewed or printed on the “eLibrary” link of the Commission's Web site at *http://www.ferc.gov/docs-filing/elibrary.asp* . Enter the docket number (P-13146) in the docket number field to access the document. For assistance, call toll-free 1-866-208-3372. Kimberly D. Bose, Secretary. [FR Doc. E8-16204 Filed 7-15-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 13227-000] Utah Independent Power; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comment, Motions To Intervene, and Competing Applications July 9, 2008. On May 9, 2008, Utah Independent Power filed an application, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility of the Bull Canyon Pumped Storage Project, to be located in the Bull Canyon area in Grand County, Utah. The proposed project would consist of:

(1)Proposed earth and rock-filled dams, 100-foot-high and 4070-foot-long and 300-foot-high and 730-foot-long, respectively, for the upper and lower reservoirs which would have water surface elevations of 6,020 and 4490 feet, MSL, respectively,

(2)a proposed powerhouse containing three generating units having a total installed capacity of 800 megawatts,

(3)a proposed 18890-foot-long penstock,

(4)two proposed 40-mile-long, 250-kV transmission lines, and

(5)appurtenant facilities. The project would have an annual generation of 1,077 gigawatt-hours that would be sold to a local utility. *Applicant Contact:* Mr. Frank L. Mazzone, President, Utah Independent Power, 957 Fairway Drive, Sonoma, CA 95476; phone: 707-996-2573. FERC Contact: Alyssa Dorval, 202-502-6735. Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. If unable to be filed electronically, documents may be paper-filed. To paper-file, an original and eight copies should be mailed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. For more information on how to submit these types of filings please go to the Commission's Web site located at *http://www.ferc.gov/filing-comments.asp* . More information about this project can be viewed or printed on the “eLibrary” link of the Commission's Web site at *http://www.ferc.gov/docs-filing/elibrary.asp* . Enter the docket number (P-13227) in the docket number field to access the document. For assistance, call toll-free 1-866-208-3372. Kimberly D. Bose, Secretary. [FR Doc. E8-16206 Filed 7-15-08; 8:45 am] BILLING CODE 6717-01-P ENVIRONMENTAL PROTECTION AGENCY [FRL-8693-6] Office of Research and Development; Ambient Air Monitoring Reference and Equivalent Methods: Designation of a New Reference Method AGENCY: Environmental Protection Agency. ACTION: Notice of the designation of a new reference method for monitoring ambient air quality. SUMMARY: Notice is hereby given that the Environmental Protection Agency

(EPA)has designated, in accordance with 40 CFR part 53, a new reference method for measuring concentrations of carbon monoxide

(CO)in the ambient air. FOR FURTHER INFORMATION CONTACT: Surender Kaushik, Human Exposure and Atmospheric Sciences Division (MD-D205-03), National Exposure Research Laboratory, U.S. EPA, Research Triangle Park, North Carolina 27711. Phone:

(919)541-5691, e-mail: *Kaushik.Surender@epa.gov.* SUPPLEMENTARY INFORMATION: In accordance with regulations at 40 CFR part 53, the EPA evaluates various methods for monitoring the concentrations of those ambient air pollutants for which EPA has established National Ambient Air Quality Standards (NAAQSs) as set forth in 40 CFR part 50. Monitoring methods that are determined to meet specific requirements for adequacy are designated by the EPA as either reference methods or equivalent methods (as applicable), thereby permitting their use under 40 CFR part 58 by States and other agencies for determining attainment of the NAAQSs. The EPA hereby announces the designation of a new reference method for measuring concentrations of CO in the ambient air. This designation is made under the provisions of 40 CFR part 53, as amended on December 18, 2006 (71 FR 61271). The new reference method for CO is an automated method that utilizes the measurement principle based on non-dispersive infrared adsorption photometry (combined with gas filter correlation) and the calibration procedure specified in Appendix C of 40 CFR part 50. The newly designated reference method is identified as follows: RFCA-0708-172, “SIR, S.A. Model S-5006 Ambient CO Analyzer,” operated with full scale fixed measurement ranges 0-50 ppm at any environment temperature in the range of 20 °C to 30 °C. An application for a reference method determination for the candidate method was received by the EPA on April 29, 2008. The sampler is commercially available from the applicant, SIR, S.A., Avenida de la Industria, 3, 28760 Tres Cantos, Madrid, Spain. A test analyzer representative of this method has been tested in accordance with the applicable test procedures specified in 40 CFR part 53 (as amended on December 18, 2006). After reviewing the results of those tests and other information submitted by the applicant in the application, EPA has determined, in accordance with part 53, that this method should be designated as a reference method. The information submitted by the applicant in the application will be kept on file, either at EPA's National Exposure Research Laboratory, Research Triangle Park, North Carolina 27711 or in an approved archive storage facility, and will be available for inspection (with advance notice) to the extent consistent with 40 CFR part 2 (EPA's regulations implementing the Freedom of Information Act). As a designated reference method, this method is acceptable for use by states and other air monitoring agencies under the requirements of 40 CFR part 58, Ambient Air Quality Surveillance. For such purposes, the method must be used in strict accordance with the operation or instruction manual associated with the method and subject to any specifications and limitations ( *e.g.* , configuration or operational settings) specified in the applicable designation method description (see the identifications of the method above). Use of the method should also be in general accordance with the guidance and recommendations of applicable sections of the “Quality Assurance Handbook for Air Pollution Measurement Systems, Volume I,” EPA/600/R-94/038a and “Quality Assurance Handbook for Air Pollution Measurement Systems, Volume II, Part 1,” EPA-454/R-98-004 (available at *http://www.epa.gov/ttn/amtic/qabook.html* ). Vendor modifications of a designated reference method used for purposes of part 58 are permitted only with prior approval of the EPA, as provided in part 53. Provisions concerning modification of such methods by users are specified under Section 2.8 (Modifications of Methods by Users) of Appendix C to 40 CFR part 58. In general, a method designation applies to any sampler or analyzer which is identical to the sampler or analyzer described in the application for designation. In some cases, similar samplers or analyzers manufactured prior to the designation may be upgraded or converted ( *e.g.* , by minor modification or by substitution of the approved operation or instruction manual) so as to be identical to the designated method and thus achieve designated status. The manufacturer should be consulted to determine the feasibility of such upgrading or conversion. Part 53 requires that sellers of designated reference or equivalent method analyzers or samplers comply with certain conditions. These conditions are specified in 40 CFR 53.9 and are summarized below:

(a)A copy of the approved operation or instruction manual must accompany the sampler or analyzer when it is delivered to the ultimate purchaser.

(b)The sampler or analyzer must not generate any unreasonable hazard to operators or to the environment.

(c)The sampler or analyzer must function within the limits of the applicable performance specifications given in 40 CFR parts 50 and 53 for at least one year after delivery when maintained and operated in accordance with the operation or instruction manual.

(d)Any sampler or analyzer offered for sale as part of a reference or equivalent method must bear a label or sticker indicating that it has been designated as part of a reference or equivalent method in accordance with part 53 and showing its designated method identification number.

(e)If such an analyzer has two or more selectable ranges, the label or sticker must be placed in close proximity to the range selector and indicate which range or ranges have been included in the reference or equivalent method designation.

(f)An applicant who offers samplers or analyzers for sale as part of a reference or equivalent method is required to maintain a list of ultimate purchasers of such samplers or analyzers and to notify them within 30 days if a reference or equivalent method designation applicable to the method has been canceled or if adjustment of the sampler or analyzer is necessary under 40 CFR 53.11(b) to avoid a cancellation.

(g)An applicant who modifies a sampler or analyzer previously designated as part of a reference or equivalent method is not permitted to sell the sampler or analyzer (as modified) as part of a reference or equivalent method (although it may be sold without such representation), nor to attach a designation label or sticker to the sampler or analyzer (as modified) under the provisions described above, until the applicant has received notice under 40 CFR part 53.14(c) that the original designation or a new designation applies to the method as modified, or until the applicant has applied for and received notice under 40 CFR 53.8(b) of a new reference or equivalent method determination for the sampler or analyzer as modified. Aside from occasional breakdowns or malfunctions, consistent or repeated noncompliance with any of these conditions should be reported to: Director, Human Exposure and Atmospheric Sciences Division (MD-E205-01), National Exposure Research Laboratory, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711. Designation of this new equivalent method is intended to assist the States in establishing and operating their air quality surveillance systems under 40 CFR part 58. Questions concerning the commercial availability or technical aspects of the method should be directed to the applicant. Jewel F. Morris, Acting Director, National Exposure Research Laboratory. [FR Doc. E8-16267 Filed 7-15-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OPPT-2008-0534; FRL-8373-7] Certain New Chemicals; Receipt and Status Information AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: Section 5 of the Toxic Substances Control Act

(TSCA)requires any person who intends to manufacture (defined by statute to include import) a new chemical (i.e., a chemical not on the TSCA Inventory) to notify EPA and comply with the statutory provisions pertaining to the manufacture of new chemicals. Under sections 5(d)(2) and 5(d)(3) of TSCA, EPA is required to publish a notice of receipt of a premanufacture notice

(PMN)or an application for a test marketing exemption (TME), and to publish periodic status reports on the chemicals under review and the receipt of notices of commencement to manufacture those chemicals. This status report, which covers the period from June 1, 2008 through June 20, 2008, consists of the PMNs pending or expired, and the notices of commencement to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period. DATES: Comments identified by the specific PMN number or TME number, must be received on or before August 15, 2008. ADDRESSES: Submit your comments, identified by docket identification

(ID)number EPA-HQ-OPPT-2008-0534, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Hand Delivery* : OPPT Document Control Office (DCO), EPA East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. Attention: Docket ID Number EPA-HQ-OPPT-2008-0534. The DCO is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the DCO is

(202)564-8930. Such deliveries are only accepted during the DCO's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions* : Direct your comments to docket ID number EPA-HQ-OPPT-2008-0534. EPA's policy is that all comments received will be included in the docket without change and may be made available on-line 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 regulations.gov or e-mail. The regulations.gov website 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 regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm* . *Docket* : All documents in the docket are listed in the docket index available in regulations.gov. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available electronically at *http://www.regulations.gov* , or, if only available in hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. The telephone number of the EPA/DC Public Reading Room is

(202)566-1744, and the telephone number for the OPPT Docket is

(202)566-0280. Docket visitors are required to show photographic identification, pass through a metal detector, and sign the EPA visitor log. All visitor bags are processed through an X-ray machine and subject to search. Visitors will be provided an EPA/DC badge that must be visible at all times in the building and returned upon departure. FOR FURTHER INFORMATION CONTACT: Colby Lintner, Regulatory Coordinator, Environmental Assistance Division, Office of Pollution Prevention and Toxics (7408M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:

(202)554-1404; e-mail address: *TSCA-Hotline@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitter of the premanufacture notices addressed in the action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI* . Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. *Tips for preparing your comments* . When submitting comments, remember to: i. Identify the document by docket ID number and other identifying information (subject heading, **Federal Register** date and page number). ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations

(CFR)part or section number. iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. iv. Describe any assumptions and provide any technical information and/or data that you used. v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. vi. Provide specific examples to illustrate your concerns and suggest alternatives. vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. viii. Make sure to submit your comments by the comment period deadline identified. II. Why is EPA Taking this Action? Section 5 of TSCA requires any person who intends to manufacture (defined by statute to include import) a new chemical (i.e., a chemical not on the TSCA Inventory to notify EPA and comply with the statutory provisions pertaining to the manufacture of new chemicals. Under sections 5(d)(2) and 5(d)(3) of TSCA, EPA is required to publish a notice of receipt of a PMN or an application for a TME and to publish periodic status reports on the chemicals under review and the receipt of notices of commencement to manufacture those chemicals. This status report, which covers the period from June 1, 2008 through June 20, 2008, consists of the PMNs pending or expired, and the notices of commencement to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period. III. Receipt and Status Report for PMNs This status report identifies the PMNs pending or expired, and the notices of commencement to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period. If you are interested in information that is not included in the following tables, you may contact EPA as described in Unit II. to access additional non-CBI information that may be available. In Table I of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the PMNs received by EPA during this period: the EPA case number assigned to the PMN; the date the PMN was received by EPA; the projected end date for EPA's review of the PMN; the submitting manufacturer; the potential uses identified by the manufacturer in the PMN; and the chemical identity. **I. 29 Premanufacture Notices Received From: 06/01/08 to 06/20/08** Case No. Received Date Projected Notice End Date Manufacturer/Importer Use Chemical P-08-0456 05/30/08 08/27/08 CBI

(G)Polyester resin

(G)Polyester P-08-0457 05/30/08 08/27/08 CBI

(G)Flame retardant for plastics

(G)Polyglycidyl ether P-08-0458 06/02/08 08/30/08 CBI

(G)Thermal paper technology

(G)Bisphenol derivative P-08-0459 06/02/08 08/30/08 CBI

(G)Manufacture of polymeric materials

(G)Soybean oil, modified, epoxidized, hydrolyzed, alkyl ether P-08-0460 06/02/08 08/30/08 CBI

(G)Intermediate for biobased products

(G)Soybean oil, modified, epoxidized P-08-0461 06/02/08 08/30/08 Henkel Corporation

(S)Polyurethane adhesive for lamination and assembly

(G)Isocyanate terminated polyurethane P-08-0462 06/03/08 08/31/08 CBI

(G)Flexible foam

(G)Polyester polyol P-08-0463 06/04/08 09/01/08 Mane, USA

(G)Perfumery ingredient

(S)2 *H* pyran-2-one, tetrahydro-5-propyl P-08-0464 06/05/08 09/02/08 Millennium Inorganic Chemicals, Inc.

(S)A pigment dispersant for use in latex paints

(G)Diethanolamine salt of polymeric acid P-08-0465 06/05/08 09/02/08 Huntsman International, LLC

(S)Exhaust dyeing of cotton

(G)Reaction product of substituted dioxazine compound and substituted alkyl sulfonyl compound P-08-0466 06/05/08 09/02/08 CBI

(G)Integrated circuit chips manufacture

(G)Phenolic resin P-08-0467 06/06/08 09/03/08 CBI

(S)Adhesive for metal to substrate bonds

(G)1,3-butadiene, homopolymer, modified with a cyanoalkylacrylate and aromatic carbamate P-08-0468 06/06/08 09/03/08 CBI

(G)Polyester substrate application auxiliary

(G)5-[disubstituted phenylazo]-trisubstituted phthalimide P-08-0469 06/06/08 09/03/08 Marchem Corporation

(G)Adhesion promoter

(G)Isocyanate terminated hydroxypolyalkyl polyurethane prepolymer P-08-0470 06/09/08 09/06/08 CBI

(G)Colored coatings and related vehicles

(G)Reaction products of fatty acids and hydroxy acids P-08-0471 06/12/08 09/09/08 CBI

(G)Chemical intermediate

(G)Tricyclo amine salt P-08-0472 06/13/08 09/10/08 Wacker Chemical Corporation

(S)Crosslinker of adhesives/sealants

(S)Morpholine, 4-[(triethoxysilyl)methyl]- P-08-0473 06/16/08 09/13/08 CBI

(S)Intermediate product used as a component of multipurpose additive in gasoline

(G)Fatty acids, reaction products with alkanolamine P-08-0474 06/16/08 09/13/08 CBI

(S)Resin solution used as a coating component for automobile finishing

(G)Polyester P-08-0475 06/13/08 09/10/08 CBI

(G)Vinyl acrylic pressure sensitive adhesive

(G)Vinyl acetate - acrylic copolymer P-08-0476 06/17/08 09/14/08 CBI

(G)Component of industrial use coating

(G)Amine functional acrylic polymer P-08-0477 06/17/08 09/14/08 CBI

(G)Component of coating formulation

(G)Hexyl carbamate P-08-0478 06/13/08 09/10/08 CBI

(G)Component of detergent

(G)Acrylic polymer, polymers with acrylates and polyethylene glycol acrylate ethers P-08-0479 06/16/08 09/13/08 CBI

(S)Component of multipurpose additive in gasoline

(G)Fatty acid, reaction products with alkanolamine alkyloxide P-08-0480 06/16/08 09/13/08 CBI

(S)Component of multipurpose additive in gasoline

(G)Fatty acids, reaction products with alkanolamine and alkyloxide P-08-0481 06/18/08 09/15/08 Colonial Chemical, Inc.

(S)Detergent for hard surface cleaners

(S)Amides, coco, *N* , *N* -bis (2-hydroxypropyl) P-08-0482 06/18/08 09/15/08 Colonial Chemical, Inc.

(S)Detergent for hard surface cleaners

(S)Amides, sesame-oil, *N* , *N* -bis (2-hydroxypropyl) P-08-0483 06/18/08 09/15/08 Colonial Chemical, Inc.

(S)Detergent for hard surface cleaners

(S)Amides, avocado-oil, *N* , *N* -bis (2-hydroxypropyl) P-08-0484 06/18/08 09/15/08 Colonial Chemical, Inc.

(S)Detergent for hard surface cleaners

(S)Amides, corn-oil, *N* , *N* -bis (2-hydroxypropyl) In Table II of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the Notices of Commencement to manufacture received: **II. 15 Notices of Commencement From: 06/01/08 to 06/20/08** Case No. Received Date Commencement Notice End Date Chemical P-02-0370 06/04/08 01/24/08

(S)1,3-benzenedicarboxylic acid

(9ci)polymer with 1,4-benzenedicarboxylic acid, 2,5-furandione, 2,2′-oxybis(ethanol) and 1,2-propanediol P-06-0146 06/02/08 05/09/08

(G)Phenol, polymer with substituted benzenre, glycidyl ether P-06-0472 06/18/08 06/09/08

(G)Fluoroalkyl methacrylate copolymer P-07-0157 06/16/08 05/10/08

(G)Vinylamine copolymer P-07-0476 06/09/08 05/14/08

(S)Dodecanoic acid, methyl-2-sulfoethyl ester, sodium salt (1:1) P-07-0484 06/05/08 04/25/08

(G)Mixed glycol adipate polyester polyol P-07-0605 06/05/08 04/26/08

(G)Mdi modified polyester mixture P-07-0608 05/30/08 04/04/08

(G)Aliphatic polyurethane acrylate P-08-0038 06/11/08 05/06/08

(G)Tertiary amine acrylate P-08-0045 06/18/08 04/07/08

(G)Aliphatic urethane acrylate oligomer P-08-0065 06/06/08 05/27/08

(G)Urethane-urea P-08-0066 06/06/08 05/27/08

(G)Urethane-urea P-08-0190 06/16/08 05/14/08

(S)D-glucopyranose, oligomeric, C 10-16 -alkyl decyl octyl glycosides, 2-hydroxy-3-(trimethylammonio)propyl ethers, chlorides P-08-0204 06/04/08 05/20/08

(G)Methacrylate copolymer P-08-0240 06/04/08 05/14/08

(G)Organic silicone intermediate List of Subjects Environmental protection, Chemicals, Premanufacturer notices. Dated: July 2, 2008. Vanessa Williams, Acting Director, Information Management Division, Office of Pollution Prevention and Toxics. [FR Doc. E8-16121 Filed 7-15-08; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY [FRL-8693-7] Notice of Open Meeting of the Environmental Financial Advisory Board

(EFAB)AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: The United States Environmental Protection Agency's

(EPA)Environmental Financial Advisory Board

(EFAB)will hold an open meeting on August 4-5, 2008. EFAB is an EPA advisory committee chartered under the Federal Advisory Committee Act

(FACA)to provide advice and recommendations to EPA on creative approaches to funding environmental programs, projects, and activities. A meeting of the full board will be held to discuss progress with work products under EFAB's current Strategic Action Agenda and develop an action agenda to direct the Board's ongoing and new activities through FY 2009. Topics of discussion include financial assurance mechanisms; financing ecosystem services; leveraging the state revolving funds; and use of assessments and special districts in air pollution. The meeting is open to the public; however, seating is limited. All members of the public who wish to attend the meeting must register in advance, no later than Monday, July 21, 2008. DATES: August 4, 2008 from 1 p.m.-5 p.m. and August 5, 2008 from 8:30 a.m.-5 p.m. ADDRESS: Hyatt at Fisherman's Wharf, 555 North Point St., San Francisco, CA 94133. REGISTRATION AND INFORMATION CONTACT: For information on access or services for individuals with disabilities, please contact Alecia Crichlow at

(202)564-5188 or *crichlow.alecia@epa.gov* . To request accommodations of a disability, please contact Alecia Crichlow at least ten days prior to the meeting date. Dated: June 27, 2008. Charles Young, Acting Director, Office of Enterprise, Technology and Innovation. [FR Doc. E8-16265 Filed 7-15-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OPP-2008-0014; FRL-8373-1] Tetramethrin; Reregistration Eligibility Decision AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: This notice announces the availability of EPA's Reregistration Eligibility Decision

(RED)for the pesticide tetramethrin. The Agency's risk assessments and other related documents also are available in the Tetramethrin Docket. Tetramethrin is a broad spectrum, synthetic pyrethroid insecticide used to control flying and crawling insects in a number of commercial, horticultural, and residential areas. EPA has reviewed tetramethrin through the public participation process that the Agency uses to involve the public in developing pesticide reregistration and tolerance reassessment decisions. Through these programs, EPA is ensuring that all pesticides meet current health and safety standards. FOR FURTHER INFORMATION CONTACT: Jacqueline Guerry, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:

(215)814-2184; fax number:

(215)814-3113; e-mail address: *guerry.jacqueline@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Get Copies of this Document and Other Related Information? 1. *Docket* . EPA has established a docket for this action under docket identification

(ID)number EPA-HQ-OPP-2008-0014. Publicly available docket materials are available either in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the Office of Pesticide Programs

(OPP)Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is

(703)305-5805. 2. * Electronic access* . You may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr.* II. Background A. What Action is the Agency Taking? Under section 4 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is reevaluating existing pesticides to ensure that they meet current scientific and regulatory standards. On June 23, 2008, EPA completed a RED for the pesticide, tetramethrin under section 4(g)(2)(A) of FIFRA. Tetramethrin is a broad-spectrum, first-generation pyrethroid insecticide used as a rapid knockdown agent against flying and crawling insects. Tetramethrin is used for both indoor and outdoor residential (including pets and clothes), institutional, industrial, and horticultural sites. There are no registered food sites. Tetramethrin is applied by aerosol can, handheld sprayers, foggers, and mechanical sprayers. EPA has determined that the database to support reregistration is substantially complete and that products containing tetramethrin are eligible for reregistration, provided the labels are amended in the manner described in the RED. Upon submission of any required product specific data under section 4(g)(2)(B) of FIFRA and any necessary changes to the registration and labeling (either to address concerns identified in the RED or as a result of product specific data), EPA will make a final reregistration decision under section 4(g)(2)(C) of FIFRA for products containing tetramethrin. EPA is applying the principles of public participation to all pesticides undergoing reregistration and tolerance reassessment. The Agency's Pesticide Tolerance Reassessment and Reregistration; Public Participation Process, published in the **Federal Register** on May 14, 2004, (69 FR 26819) (FRL-7357-9) explains that in conducting these programs, EPA is tailoring its public participation process to be commensurate with the level of risk, extent of use, complexity of issues, and degree of public concern associated with each pesticide. Due to its uses, risks, and other factors, tetramethrin was reviewed through the modified 4-Phase public participation process. Through this process, EPA worked extensively with stakeholders and the public to reach the regulatory decisions for tetramethrin. The reregistration program is being conducted under congressionally mandated time frames, and EPA recognizes the need both to make timely decisions and to involve the public. A public comment period for the Tetramethrin RED is not needed because all comments received during the risk assessment public comment period were addressed in the Agency's response to public comment documents, which are available in the public docket, and because there are no risks of concern for the registered use patterns. The Agency therefore is issuing the Tetramethrin RED without a comment period. B. What is the Agency's Authority for Taking this Action? Section 4(g)(2) of FIFRA, as amended, directs that, after submission of all data concerning a pesticide active ingredient, “the Administrator shall determine whether pesticides containing such active ingredient are eligible for reregistration,” before calling in product specific data on individual end-use products and either reregistering products or taking other “appropriate regulatory action.” List of Subjects Environmental protection, Pesticides and pests. Dated: July 7, 2008. Steven Bradbury Director, Special Review and Reregistration Division, Office of Pesticide Programs. [FR Doc. E8-16016 Filed 7-15-08; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OPP-2008-0518; FRL-8372-3] Chloropicrin, Dazomet, Metam Sodium/Potassium, and Methyl Bromide Reregistration Eligibility Decisions; Notice of Availability AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: This notice announces the availability of EPA's Reregistration Eligibility Decisions

(REDs)for the soil fumigant pesticides chloropicrin, dazomet, metam sodium/potassium, and methyl bromide, and opens a public comment period on these documents. The Agency's risk assessments and other related documents also are available in the Dockets for these pesticides, listed in the Table in Unit II. Soil fumigants are used to kill soil-borne pests in producing many crops, including primarily potatoes, tomatoes, strawberries carrots, and peppers. EPA has reviewed chloropicrin, dazomet, metam sodium/potassium, and methyl bromide through the public participation process that the Agency uses to involve the public in developing pesticide reregistration and tolerance reassessment decisions. Through these programs, EPA is ensuring that all pesticides meet current health and safety standards. DATES: Comments must be received on or before September 15, 2008. ADDRESSES: Submit your comments, identified by the docket identification

(ID)number(s) for the specific pesticide(s) of interest provided in the Table in Unit II., by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs

(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is

(703)305-5805. *Instructions* : Direct your comments to the Docket ID number(s) listed in the Table in Unit II. for the pesticide(s) you are commenting on. EPA's policy is that all comments received will be included in the docket without change and may be made available on-line 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 regulations.gov or e-mail. The regulations.gov website 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 regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the 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 docket are listed in the docket index available in regulations.gov. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. Although, listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is

(703)305-5805. FOR FURTHER INFORMATION CONTACT: For pesticide-specific information contact the Chemical Review Manger identified in the Table in Unit II. for the pesticide of interest. For general information contact: John Leahy, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:

(703)305-6703; fax number:

(703)308-8090; e-mail address: *leahy.john @epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT. B. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI* . Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. *Tips for preparing your comments* . When submitting comments, remember to: i. Identify the document by docket ID number and other identifying information (subject heading, **Federal Register** date and page number). ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations

(CFR)part or section number. iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. iv. Describe any assumptions and provide any technical information and/or data that you used. v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. vi. Provide specific examples to illustrate your concerns and suggest alternatives. vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. viii. Make sure to submit your comments by the comment period deadline identified. II. Background A. What Action is the Agency Taking? Under section 4 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is reevaluating existing pesticides to ensure that they meet current scientific and regulatory standards. EPA has completed REDs for the soil fumigant pesticides, chloropicrin, dazomet, metam sodium/potassium, and methyl bromide under section 4(g)(2)(A) of FIFRA. Soil fumigants are used to kill soil-borne pests in producing many crops, including primarily potatoes, tomatoes, strawberries, carrots, and peppers. EPA has determined that the data base to support reregistration is substantially complete and that products containing these pesticides are eligible for reregistration, provided the risks are mitigated either in the manner described in the RED or by another means that achieves equivalent risk reduction. Upon submission of any required product specific data under section 4(g)(2)(B) of FIFRA and any necessary changes to the registration and labeling (either to address concerns identified in the RED or as a result of product specific data), EPA will make a final reregistration decision under section 4(g)(2)(C) of FIFRA for products containing chloropicrin, dazomet, metam sodium/potassium, and methyl bromide. **Table 1.—Reregistration Eligibility Decision Dockets Opening** Reregistration Case Name and Number Docket ID Number Chemical Review Manager, Telephone Number, E-mail Address Chloropicrin, 0040 EPA-HQ-OPP-2007-0350 Andrea Carone

(703)308-0122 *carone.andrea@epa.gov* Dazomet, 2135 EPA-HQ-OPP-2005-0128 Cathryn O'Connell

(703)308-0136 *o'connell.cathryn@epa.gov* Metam sodium/potassium, 2390 EPA-HQ-OPP-2005-0125 Dirk Helder

(703)305-4610 *helder.dirk@epa.gov* Methyl bromide, 0335 EPA-HQ-OPP-2005-0123 Steven Weiss

(703)308-8293 *weiss.steven@epa.gov* EPA is applying the principles of public participation to all pesticides undergoing reregistration . The Agency's Pesticide Tolerance Reassessment and Reregistration; Public Participation Process, published in the **Federal Register** on May 14, 2004, (69 FR 26819) (FRL-7357-9) explains that in conducting these programs, EPA is tailoring its public participation process to be commensurate with the level of risk, extent of use, complexity of issues, and degree of public concern associated with each pesticide. Due to their uses, risks, and other factors, chloropicrin, dazomet, metam sodium/potassium, and methyl bromide were reviewed through the full 6-Phase process. Through this process, EPA worked extensively with stakeholders and the public to reach the regulatory decisions for these pesticides. The reregistration program is being conducted under congressionally mandated time frames, and EPA recognizes the need both to make timely decisions and to involve the public. The Agency is issuing the chloropicrin, dazomet, metam sodium/potassium, and methyl bromide REDs for public comment. This comment period is intended to provide an additional opportunity for public input in particular with regard to implementation of risk mitigation measures, and a mechanism for initiating any necessary amendments to the REDs. To assist readers in providing information that would be most useful to the Agency, EPA is providing a Commenter's Guide to the Soil Fumigant REDs. This document is available in the individual dockets listed in the Table in this Unit, and on EPA's soil fumigants Web page, http://www.epa.gov/oppsrrd1/reregistration/soil_fumigants/ . All comments should be submitted using the methods in ADDRESSES and the Docket ID numbers in the Table in this Unit, and must be received by EPA on or before the closing date. These comments will become part of the Agency Dockets for these pesticides. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. For each pesticide, the Agency will carefully consider all comments received by the closing date and will provide a Response to Comments Memorandum in the Docket and regulations.gov. If any comment significantly affects the document, EPA also will publish an amendment to the RED in the **Federal Register** . In the absence of substantive comments requiring changes, the chloropicrin, dazomet, metam sodium/metam potassium, and methyl bromide REDs will be implemented as now presented. B. What is the Agency's Authority for Taking this Action? Section 4(g)(2) of FIFRA, as amended, directs that, after submission of all data concerning a pesticide active ingredient, the Administrator shall determine whether pesticides containing such active ingredient are eligible for reregistration, before calling in product specific data on individual end-use products and either reregistering products or taking other “appropriate regulatory action.” List of Subjects Environmental protection, Pesticides and pests. Dated: July 8, 2008. Steven Bradbury, Director, Special Review and Reregistration Division, Office of Pesticide Programs. [FR Doc. E8-16266 Filed 7-15-08; 8:45 a.m.] BILLING CODE 6560-50-S EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Meetings; Sunshine Act Agency Holding the Meeting: Equal Employment Opportunity Commission. Date and Time: Tuesday, July 22, 2008, 10 a.m. Eastern Time. Place: Clarence M. Mitchell, Jr. Conference Room on the Ninth Floor of the EEOC Office Building, 1801 “L” Street, NW., Washington, DC 20507. Status: The meeting will be open to the public. Matters to be Considered Open Session 1. Announcement of Notation Votes, 2. Issues Facing Asian Americans and Pacific Islanders in the Federal Workplace—Invited Panelists, 3. Compliance Manual Section on Religious Discrimination, and 4. Resolution Honoring Commission Employee on Her Retirement. Note: In accordance with the Sunshine Act, the meeting will be open to public observation of the Commission's deliberations and voting. (In addition to publishing notices on EEOC Commission meetings in the **Federal Register** , the Commission also provides a recorded announcement a full week in advance on future Commission sessions.) Please telephone

(202)663-7100 (voice) and

(202)663-4074

(TTY)at any time for information on these meetings. The EEOC provides sign language interpretation at Commission meetings for the hearing impaired. Requests for other reasonable accommodations may be made by using the voice and TTY numbers listed above. *Contact Person for More Information:* Stephen Llewellyn, Executive Officer at

(202)663-4070. Dated: July 14, 2008. Stephen Llewellyn, Executive Officer, Executive Secretariat. [FR Doc. 08-1441 Filed 7-14-08; 4:04 pm]

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