Tap any paragraph to write a margin note. Your notes collect in the Desk below the text and file under cases with @. The side-by-side margin rail opens on a larger screen.

§
Marginalia
Code · REGISTER · 2008-07-17 · Fish and Wildlife Service, Interior · Notices

Notices. Notice of Availability

120,416 words·~547 min read·/register/2008/07/17/08-1448

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

BILLING CODE 7025-01-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service [FWS-R6-R-2008-N0059; 60138-1265-6CCP-S3] Final Comprehensive Conservation Plan for the Laramie Plains National Wildlife Refuges, Wyoming AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of Availability. SUMMARY: We, the U.S. Fish and Wildlife Service (Service) announce that our Final Comprehensive Conservation Plan
(Plan)and finding of no significant impact (FONSI) for the Laramie Plains National Wildlife Refuges is available. The Laramie Plains National Wildlife Refuges include Bamforth National Wildlife Refuge (NWR), Hutton Lake NWR, and Mortenson Lake NWR. This Final CCP/EA describes how the Service intends to manage these Refuges for the next 15 years. ADDRESSES: A copy of the Plan may be obtained by writing to U.S. Fish and Wildlife Service, Division of Refuge Planning, P.O. Box 25486, Denver Federal Center, Denver, Colorado 80225; or by download from *http://mountain-prairie.fws.gov/planning.* FOR FURTHER INFORMATION CONTACT: Toni Griffin, 303-236-4378 (phone); 303-236-4792 (fax); or *Toni_Griffin@fws.gov* (e-mail). SUPPLEMENTARY INFORMATION: The Laramie Plains National Wildlife Refuges include Bamforth National Wildlife Refuge (NWR), Hutton Lake NWR, and Mortenson Lake NWR and are managed by Service staff headquartered at the Arapaho NWR near Walden, Colorado. All three Refuges are located within 15 miles of the town of Laramie, Wyoming. The town of Laramie, Wyoming, is positioned in a high plains basin ecosystem known as the Laramie Plains Basin. Shallow depressions of the Basin, within the relatively flat topography of the region, support wetland complexes that are unique to the area. These wetland complexes provide resting, nesting, and breeding areas for migratory birds in the semi-arid environment. Bamforth NWR was established on January 29, 1932, by Executive Order 9321. Consisting of 1,166 acres, the Refuge is located approximately 6 miles northwest of Laramie, Wyoming. The purpose of the Refuge is to provide “a refuge and breeding ground for birds and wild animals.” The Refuge is closed to public use. Hutton Lake NWR was established on January 28, 1932, by Executive Order 5782. Consisting of 1,928 acres, the Refuge is located approximately 10 miles southwest of Laramie, Wyoming. The purpose of the Refuge is to provide “a refuge and breeding ground for birds and wild animals.” Current public use opportunities at the Refuge include wildlife observation, wildlife photography, environmental education, and interpretation. Mortenson Lake NWR was established in 1993 under the Endangered Species Act, to protect the Wyoming toad's last known population. The Wyoming toad was listed as an endangered species in 1984. The population at Mortenson Lake was found in 1987. The purpose of the Refuge is “to conserve fish or wildlife which are listed as endangered or threatened species.” The Refuge is closed to public use to prevent potential adverse impacts to the Wyoming toad. The draft Plan and environmental assessment
(EA)was made available to the public for review and comment following the announcement in the **Federal Register** on August 1, 2007 (72 FR 42103-42104). The draft Plan and EA identified and evaluated three alternatives for managing the Refuges for the next 15 years. Under Alternative A, the No Action alternative, the Service would manage habitats, wildlife, programs, and facilities at current levels as time, staff, and funds allow. Refuge habitats would continue to be managed on a minimal basis and opportunistic schedule that may maintain, or most likely would result in decline in, the diversity of vegetation and water quality and quantity in the wetlands. The Service would not develop any new management, restoration, or education programs at the Refuges. Alternative B, the Proposed Action, would increase management activities on the Refuges. Upland habitats would be evaluated and managed for the benefit of migratory bird species. Monitoring and management of invasive species on the Refuges would be increased. With additional staffing, the Service would collect in-depth baseline data for wildlife and habitats. Efforts would be increased in the operations and maintenance of natural resources on the Refuges and to maintain and develop partnerships that promote wildlife and habitat research and management. An emphasis on adaptive management, including monitoring the effects of habitat management practices and use of the research results to direct ongoing management, would be a priority. Under alternative C, Refuge staff would rely on partnerships to achieve Refuge goals and objectives. Refuge management activities would be increased and enhanced through the use of partnerships. Refuge staff would strive to accomplish Refuge work through partnerships with others. An emphasis on adaptive management, including monitoring the effects of habitat management practices and use of the research results to direct ongoing management, would be a priority. The Service is furnishing this Notice to advise other agencies and the public of the availability of the Final Plan, to provide information on the desired conditions for the Refuges, and to detail how the Service will implement management strategies. Based on the review and evaluation of the information contained in the EA, the Regional Director has determined that implementation of the Final Plan does not constitute a major Federal action that would significantly affect the quality of the human environment within the meaning of Section 102(2)(c) of the National Environmental Policy Act. Therefore, an Environmental Impact Statement will not be prepared. Dated: February 29, 2008. Gary Mowad, Acting Regional Director. Editorial Note: This document was received in the Office of the Federal Register on July 14, 2008. [FR Doc. E8-16352 Filed 7-16-08; 8:45 am] BILLING CODE 4310-55-P DEPARTMENT OF THE INTERIOR U.S. Geological Survey Scientific Earthquake Studies Advisory Committee AGENCY: U.S. Geological Survey. ACTION: Notice of Meeting. SUMMARY: Pursuant to Public Law 106-503, the Scientific Earthquake Studies Advisory Committee (SESAC) will hold its 18th meeting. The meeting location is the U.S. Geological Survey, 345 Middlefield Road, Menlo Park, California 94025. The Committee is comprised of members from academia, industry, and State government. The Committee shall advise the Director of the U.S. Geological Survey
(USGS)on matters relating to the USGS's participation in the National Earthquake Hazards Reduction Program. The Committee will receive updates and provide guidance on Earthquake Hazards Program activities and the status of teams supported by the Program. Meetings of the Scientific Earthquake Studies Advisory Committee are open to the public. DATES: July 31, 2008, commencing at 8:30 a.m. and adjourning at Noon on August 1, 2008. *Contact:* Dr. David Applegate, U.S. Geological Survey, MS 905, 12201 Sunrise Valley Drive, Reston, Virginia 20192,
(703)648-6714, *applegate@usgs.gov* . Dated: July 13, 2008. Suzette Kimball, Associate Director for Geology. [FR Doc. E8-16043 Filed 7-16-08; 8:45 am] BILLING CODE 4311-AM-M DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs Final Environmental Impact Statement for the Cowlitz Indian Tribe's Proposed 151.87-Acre Fee-to-Trust Transfer, Reservation Proclamation, and Casino-Resort Project, Clark County, WA AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice of extension of the date of issuance of the Record of Decision and reopening of the comment period; Republication and Correction. SUMMARY: The Bureau of Indian Affairs is republishing in its entirety a document it published in the July 10, 2008 **Federal Register** to correct a phone number. The document concerns an extension of the date of issuance of the Record of Decision and reopening the comment period originally announced on May 30, 2008 (73 FR 31143) for the Final Environmental Impact Statement
(FEIS)for the Cowlitz Indian Tribe's Proposed 151.87-acre fee-to-trust transfer, reservation proclamation, and casino-resort project, in Clark County, Washington. DATES: The Record of Decision on the proposed action will be issued on or after August 12, 2008. Any comments on the FEIS must arrive by August 11, 2008. ADDRESSES: You may mail or hand carry written comments to Mr. Stanley Speaks, Northwest Regional Director, Bureau of Indian Affairs, Northwest Region, 911 NE 11th Avenue, Portland, Oregon 97232. Please include your name, return address and the caption, “FEIS Comments, Cowlitz Indian Tribe Trust Acquisition and Casino Project,” on the first page of your written comments. The FEIS will be available for public review at the following Fort Vancouver Public Library branches: La Center Community Library, 1402 East Lockwood Creek Road, La Center, Washington 98629; Ridgefield Community Library, 210 North Main Avenue, Ridgefield, Washington 98642. General information for the Fort Vancouver Public Library system can be obtained by calling
(360)659-1561. The FEIS is also available on the following Web site: *http://www.cowlitzeis.org.* To obtain copies of the FEIS, please provide your name and address in writing or by voicemail to Dr. B.J. Howerton, Environmental Protection Specialist, at the BIA address above or at the telephone number provided below. FOR FURTHER INFORMATION CONTACT: B.J. Howerton,
(503)231-6749. SUPPLEMENTARY INFORMATION: This notice is a republication of a document BIA published in the **Federal Register** on July 10, 2008 at 73 FR 39715. This republication corrects the phone number contained in the FOR FURTHER INFORMATION CONTACT section. The correct phone number is
(503)231-6749. The BIA published its Notice of the Final Environmental Impact Statement for the Cowlitz Indian Tribe on May 30, 2008, in the **Federal Register** (73 FR 31143). Please refer to that notice for project details. Public Comment Availability Comments, including names and addresses of respondents, will be available for public review at the mailing addresses shown in the ADDRESSES section, during regular business hours, 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. Before including your address, phone number, e-mail address or other personal identifying information in your comments, you should be aware that your entire comments—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Authority: This notice is published in accordance with section 1503.1 of the Council on Environmental Quality Regulations (40 CFR Parts 1500 through 1508) implementing the procedural requirements of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4371 *et seq.* ), and the Department of the Interior Manual (516 DM 1-6), and is in the exercise of authority delegated to the Assistant Secretary—Indian Affairs by 209 DM 8. Dated: July 11, 2008. George T. Skibine, Acting Deputy Assistant Secretary for Policy and Economic Development—Indian Affairs. [FR Doc. E8-16398 Filed 7-16-08; 8:45 am] BILLING CODE 4310-02-P DEPARTMENT OF THE INTERIOR Bureau of Land Management [AA-6686-B; AA-6686-D, AA-6686-F, AA-6686-I, AA-6686-K, AA-6686-L, AA-6686-M, AA-6686-O, AA-6686-A2, AK-964-1410-KC-P] Alaska Native Claims Selection AGENCY: Bureau of Land Management, Interior. ACTION: Notice of decision approving lands for conveyance. SUMMARY: As required by 43 CFR 2650.7(d), notice is hereby given that an appealable decision approving lands for conveyance pursuant to the Alaska Native Claims Settlement Act will be issued to Kijik Corporation. The lands are in the vicinity of Nondalton, Alaska, and are located in: U.S. Survey No. 8995, Alaska. Containing 37.99 acres. T. 1 N., R. 30 W., Secs. 1 and 31. Containing 30.21 acres. T. 2 S., R. 30 W., Secs. 1, 2 and 3. Containing 1,919.13 acres. T. 2 S., R. 31 W., Sec. 18. Containing 551.01 acres. T. 1 N., R. 32 W., Secs. 29 and 30. Containing 1,277.48 acres. T. 1 S., R. 32 W., Secs. 8, 17, 20, and 23. Containing 1,930.49 acres. T. 3 S., R. 32 W., Secs. 5 and 8. Containing 1,181.29 acres. T. 1 N., R. 33 W., Sec. 36. Containing 640 acres. T. 1 S., 33 W., Secs. 4, 8 and 9; Secs. 16, 17 and 18. Containing 3,783.58 acres. T. 3 S., R. 33 W., Secs. 2 and 11. Containing 1,120 acres. T. 1 S., R. 34 W., Secs. 13 to 16, inclusive. Containing 2,392.12 acres. Aggregating 14,863.30 acres. The subsurface estate in these lands will be conveyed to Bristol Bay Native Corporation when the surface estate is conveyed to Kijik Corporation. Notice of the decision will also be published four times in the Bristol Bay Times. DATES: The time limits for filing an appeal are: 1. Any party claiming a property interest which is adversely affected by the decision shall have until August 18, 2008 to file an appeal. 2. Parties receiving service of the decision by certified mail shall have 30 days from the date of receipt to file an appeal. Parties who do not file an appeal in accordance with the requirements of 43 CFR part 4, subpart E, shall be deemed to have waived their rights. ADDRESSES: A copy of the decision may be obtained from: Bureau of Land Management, Alaska State Office, 222 West Seventh Avenue, #13, Anchorage, Alaska 99513-7504. FOR FURTHER INFORMATION, CONTACT: The Bureau of Land Management by phone at 907-271-5960, or by e-mail at *ak.blm.conveyance@ak.blm.gov.* Persons who use a telecommunication device
(TTD)may call the Federal Information Relay Service
(FIRS)at 1-800-877-8330, 24 hours a day, seven days a week, to contact the Bureau of Land Management. Barbara Walker, Land Law Examiner, Land Transfer Adjudication I (964). [FR Doc. E8-16347 Filed 7-16-08; 8:45 am] BILLING CODE 4310-JA-P DEPARTMENT OF THE INTERIOR Bureau of Land Management [NV-020-5105-NX-SF31; 08-08807; TAS: 14X5017] Notice of Temporary Closures and Prohibitions of Certain Activities on Public Lands in Pershing County, NV AGENCY: Bureau of Land Management, Interior. ACTION: Notice of Temporary Closure. SUMMARY: Certain lands located in northwestern Nevada partly within the Black Rock Desert-High Rock Canyon Emigrant Trails National Conservation Area will be temporarily closed or restricted and certain activities will be temporarily prohibited in and around the Burning Man event site administered by the Bureau of Land Management Winnemucca Field Office. These closures are authorized under the provisions of 43 CFR 8364.1. The specified closures, restrictions and prohibitions are made in the interest of public safety at and around the public lands location of an event known as the Burning Man Festival. This event is authorized on public lands under Special Recreation Permit #NV-025-06-01 and is expected to attract approximately 50,000 participants. DATES: August 8, 2008 to September 15, 2008. FOR FURTHER INFORMATION CONTACT: Dave Cooper, National Conservation Area Manager, Bureau of Land Management, Winnemucca Field Office, 5100 E. Winnemucca Blvd., Winnemucca, NV 89445-2921, *telephone:*
(775)623-1500. SUPPLEMENTARY INFORMATION: Two areas are proposed for temporary closures during portions of August and September 2008. The smaller of the two areas, the Event Closure Area, is described in Section I and includes about 4,085 acres that will be subject to additional restrictions. During the 38 day period from August 8 through September 15 this area will be closed to public camping, public use, possession of weapons, possession of fireworks, building of fires on the ground, waste water discharge and other restrictions. The second and larger area is the Public Closure Area as described in Section II and encompasses about 8,750 acres. This area will be closed to camping and discharge of weapons during the same 38 day period. Additional restrictions including public use and aircraft landing will apply during an 11 day period that corresponds to the actual event which is August 22 through September 1, 2008. I. Event Closure Area: Within the following legally described locations: Mount Diablo Meridian, Nevada Unsurveyed T. 33 N., R. 24 E. Secs. 3, 4, 5, and 9; portions within 50 yards of the Event Entrance Road. Unsurveyed T. 33 1/2 N., R. 24 E. Sec. 25; Sec. 26, portions within event perimeter fence and 50 yards outside the fence; Sec. 34, portions within 50 yards of the Event Entrance Road; Sec. 35, portions within event perimeter fence, 50 yards outside the fence and within 50 yards of the Event Entrance Road; Sec. 36, portions within event perimeter fence, 50 yards outside the fence and the Airport tie-down area. Unsurveyed T. 34 N., R. 24 E. Secs. 25, 26, 34, 35 and 36, portions within event perimeter fence and 50 yards outside the fence. Unsurveyed T. 34 N., R. 25 E. Secs. 21, 27, 28, 33 and 34, portions within event perimeter fence and 50 yards outside the fence. Between August 8, 2008 to September 15, 2008 inclusive: A. Aircraft Landing. Aircraft as defined in Title 18, United States Code, section 31(a)(1) and includes lighter-than-air craft, ultra-light craft, and remotely controlled powered craft are prohibited from landing, taking off, or taxiing. The following exceptions apply: 1. Aircraft operations conducted through the authorized event landing strip and such ultra-light and helicopter take-off and landing areas designated for Burning Man event staff and participants, law enforcement, and emergency medical services. 2. Helicopters providing emergency medical services may land in other locations when required for medical incidents. 3. Landings or take-offs of lighter-than-air craft previously approved by the BLM authorized officer. B. Alcohol. 1. Possession of an open container of an alcoholic beverage by the driver or operator of any motorized vehicle, whether or not the vehicle is in motion is prohibited. 2. Possession of alcohol by minors.
(a)The following are prohibited:
(1)Consumption or possession of any alcoholic beverage by a person under 21 years of age on public lands.
(2)Selling, offering to sell, or otherwise furnishing or supplying any alcoholic beverage to a person under 21 years of age on public lands.
(b)This section does not apply to the selling, handling, serving or transporting of alcoholic beverages by a person in the course of his lawful employment by a licensed manufacturer, wholesaler or retailer of alcoholic beverages. 3. Operation of a motor vehicle while under the influence.
(a)Title 43 CFR 8341.1(f)3 prohibits the operation of an off-road motor vehicle on public land while under the influence of alcohol, narcotics, or dangerous drugs.
(b)In addition to the prohibition found in 43 CFR 8341.1(f)3, it is prohibited for any person to operate or be in actual physical control of a motor vehicle while:
(1)The operator is under the combined influence of alcohol, a drug, or drugs to a degree that renders the operator incapable of safe operation of that vehicle; or
(2)The alcohol concentration in the operator's blood or breath is 0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 grams or more of alcohol per 210 liters of breath.
(c)Tests.
(1)At the request or direction of any law enforcement officer authorized by the Department of the Interior to enforce this regulation, who has probable cause to believe that an operator of a motor vehicle has violated a provision of paragraph
(a)or
(b)of this section the operator shall submit to one or more tests of the blood, breath, saliva, or urine for the purpose of determining blood alcohol and drug content.
(2)Refusal by an operator to submit to a test is prohibited and proof of refusal may be admissible in any related judicial proceeding.
(3)Any test or tests for the presence of alcohol and drugs shall be determined by and administered at the direction of an authorized person.
(4)Any test shall be conducted by using accepted scientific methods and equipment of proven accuracy and reliability operated by personnel certified in its use.
(d)Presumptive levels.
(1)The results of chemical or other quantitative tests are intended to supplement the elements of probable cause used as the basis for the arrest of an operator charged with a violation of paragraph
(a)of this section. If the alcohol concentration in the operator's blood or breath at the time of testing is less than alcohol concentrations specified in paragraph (b)(2) of this section, this fact does not give rise to any presumption that the operator is or is not under the influence of alcohol.
(2)The provisions of paragraph (d)(1) of this section are not intended to limit the introduction of any other competent evidence bearing upon the question of whether the operator, at the time of the alleged violation, was under the influence of alcohol, or a drug, or drugs, or any combination thereof. 4. Definitions:
(a)Open container: any bottle, can, or other container which contains an alcoholic beverage, if that container does not have a closed top or lid for which the seal has not been broken. If the container has been opened one or more times, and the lid or top has been replaced, that container is an open container.
(b)Possession of an open container: includes any open container which is physically possessed by the driver or operator, or which is adjacent to and reachable by, that driver or operator. This includes but is not limited to containers in a cup holder or rack adjacent to the driver or operator, containers on a vehicle floor next to the driver or operator, and containers on a seat or console area next to a driver or operator. C. Drug Paraphernalia. 1. The possession of drug paraphernalia is prohibited. 2. Definition: Drug paraphernalia means all equipment, products and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of any state or federal law, or regulation issued pursuant to law. D. Eviction of Persons. 1. The Event Closure Area is closed to any person who:
(a)Has been evicted from the event by the permit holder, Black Rock City LLC, (BRC LLC) whether or not such eviction was requested by BLM.
(b)Has been ordered by a BLM law enforcement officer to leave the area of the permitted event. 2. Any person evicted from the event forfeits any privileges to be present within the perimeter fence or anywhere else within the event area even if they possess a ticket to attend the event. E. Fires. The ignition of fires on the surface of the Black Rock Playa without a burn blanket or burn pan is prohibited. F. Fireworks. The use, sale or possession of personal fireworks is prohibited except for uses of fireworks approved by BRC LLC and used as part of a Burning Man sanctioned art burn event. G. Motor Vehicles. 1. Motor vehicle use is prohibited, except as provided below.
(a)Motor vehicles may be operated within the event area under these circumstances:
(1)Participant arrival and departure on designated routes;
(2)vehicles operated by BRC LLC staff and displaying appropriate current staff identification;
(3)BLM, medical, law enforcement, and firefighting vehicles;
(4)mutant vehicles, art cars, or other vehicles registered with the Burning Man event organizers and operated within the scope of that registration. Such vehicles must display evidence of registration at all times in such manner that it is visible to the rear of the vehicle while it is in motion;
(5)motorized skateboards or Go-Peds with or without handlebars. 2. Vehicle use that creates a dust plume higher than the top of the vehicle is prohibited. 3. Definitions:
(a)A motor vehicle is any device designed for and capable of travel over land and which is self-propelled by a motor, but does not include any vehicle operated on rails or any motorized wheelchair. Motorized wheelchair means a self-propelled wheeled device, designed solely for and used by a mobility-impaired person for locomotion. H. Public Camping. Public camping is prohibited. Burning Man event ticket holders who are camped in designated areas provided by BRC LLC and ticket holders who are camped in the authorized “pilot camp” and BLM-authorized event management-related camps are exempt from the camping closure. BRC LLC authorized staff, contractors, and other authorized participants are exempt from the camping closure. I. Public Use. No person shall be present within the event area unless that person: possesses a valid ticket to attend the event; is an employee or authorized volunteer with the BLM, a law enforcement agency, emergency medical service provider, fire protection provider, or another public agency working at the event and the employee is assigned to the event; or is a person working at or attending the event on behalf of the event organizers, BRC LLC. J. Waste Water Discharge. The dumping or discharge to the ground of grey water is prohibited. Grey water is water used for cooking, washing, dishwashing, or bathing and which contains soap, detergent, food scraps, or food residue. K. Weapons. 1. Weapons.
(a)The possession of any weapon is prohibited;
(b)The discharge of any weapon is prohibited;
(c)The prohibitions above shall not apply to county, state, tribal and federal law enforcement personnel, or any person authorized by federal law to possess a weapon. Additionally “art projects” that include weapons and are sanctioned by BRC LLC will be permitted after obtaining authorization from the BLM authorized officer. 2. Definitions:
(a)Weapon means a firearm, compressed gas or spring powered pistol or rifle, bow and arrow, cross bow, blowgun, spear gun, hand thrown spear, sling shot, irritant gas device, electric stunning or immobilization device, explosive device, or any implement designed to expel a projectile, and includes any weapon the possession of which is prohibited by state law.
(b)Firearm means any pistol, revolver, rifle, shotgun, or other device which is designed to, or may be readily converted to, expel a projectile by the ignition of a propellant.
(c)Discharge means the expelling of a projectile from a weapon. II. Public Closure Area: Within the following legally described locations: Mount Diablo Meridian, Nevada Unsurveyed T. 33 N., R. 24 E. Sec. 1, N 1/2 , portion west of the east playa road; Sec. 2, N 1/2 ; Sec. 3, N 1/2 , SW 1/4 , portions outside the Event Area; Sec. 4, portion east of Washoe Co. Rd. 34 and outside the Event Area; Sec. 5, E 1/2 , portion east of Washoe Co. Rd. 34 and outside the Event Area; Sec. 8, NE 1/4 ; Sec. 9, N 1/2 , portion outside the Event Area; Sec. 10, NW 1/4 . Unsurveyed T. 33 1/2 N., R. 24 E. Secs. 26, portion outside the Event Area; Sec. 27; Sec. 28, portion east of Washoe Co. Rd. 34; Sec. 33, portion east of Washoe Co. Rd. 34; Secs. 34, 35 and 36, portions outside the Event Area. Unsurveyed T. 34 N., R. 24 E. Sec. 23 & 24, S 1/2 ; Sec. 25 & 26; portions outside the Event Area; Sec. 27, SE 1/4 , E 1/2 NE 1/2 , E 1/2 SW 1/4 ; Sec. 33, SE 1/4 , S 1/2 NE 1/4 , NE 1/4 NE 1/4 ; Sec. 34 & 35, portions outside the Event Area; T. 33 N., R. 25 E. Sec. 4, Lots 2, 3, 4 and 5, portions west of the east playa road. Unsurveyed T. 34 N., R. 25 E. Sec. 15, SW 1/4 SW 1/4 ; Sec. 16, S 1/2 ; Sec. 21, portion outside the Event Area; Sec. 22, SW 1/4 , W 1/2 NW 1/4 ; Sec. 27, W 1/2 , portion outside the Event Area; Sec. 28, portion outside the Event Area; Sec. 33, portion west of the east playa road and outside the Event Area; Sec. 34; W 1/2 , portion west of the east playa road. A. Between August 8, 2008 and September 15, 2008 inclusive: 1. Public Camping. Public camping is prohibited. 2. Discharge of Weapons. Discharge of weapons as defined in paragraph (K)(2) of Section
(I)is prohibited. B. Between August 22, 2008 and September 1, 2008 inclusive: 1. Aircraft Landing. Aircraft are prohibited from landing, taking off, or taxiing except as described in paragraph
(A)of Section I. 2. Eviction of Persons. The Public Closure Area is closed to any person who:
(a)Has been evicted from the event by the permit holder, BRC LLC, whether or not such eviction was requested by BLM.
(b)Has been ordered by a BLM law enforcement officer to leave the area of the permitted event. Any person evicted from the event forfeits any privileges to be present within the public closure area even if they possess a ticket to attend the event. 3. Fireworks. The use, sale or possession of personal fireworks is prohibited. 4. Public Use. Public use is prohibited, except for:
(a)Passage through, without stopping, the Public Closure Area on the West or East Playa Roads;
(b)Pedestrians with Burning Man tickets outside the fence. 5. Motor Vehicles. Motor vehicle use is prohibited, except for passage through, without stopping, the Public Closure Area on the West or East Playa Roads. Vehicles passing through the closure area in this manner are limited to a speed that does not create a dust plume higher than the top of the vehicle. Motor vehicle is defined in paragraph (G)(3) of Section (I). 6. Waste Water Discharge. The dumping or discharge to the ground of grey water is prohibited. Grey water is water used for cooking, washing, dishwashing, or bathing and which contains soap, detergent, food scraps, or food residue. 7. Weapons. The possession of any weapon as defined in paragraph (K)(2) of Section
(I)is prohibited except weapons within motor vehicles passing through the closure area, without stopping on the West or East Playa Roads. *Penalty:* Any person failing to comply with the closure orders may be subject to imprisonment for not more than 12 months, or a fine in accordance with the applicable provisions of 18 U.S.C. 3571, or both. Authority: 43 CFR 8364.1. Dated: July 7, 2008. Gail G. Givens, Field Manager. [FR Doc. E8-16373 Filed 7-16-08; 8:45 am] BILLING CODE 4310-HC-P DEPARTMENT OF THE INTERIOR Minerals Management Service
(MMS)Outer Continental Shelf
(OCS)Western Planning Area
(WPA)Gulf of Mexico
(GOM)Oil and Gas Lease Sale 207 AGENCY: Minerals Management Service, Interior. ACTION: Final Notice of Sale
(FNOS)207. SUMMARY: On Wednesday, August 20, 2008, the MMS will open and publicly announce bids received for blocks offered in WPA Oil and Gas Lease Sale 207, pursuant to the OCS Lands Act (43 U.S.C. 1331-1356, as amended) and the regulations issued thereunder (30 CFR Part 256). The Final Notice of Sale 207 Package (FNOS 207 Package) contains information essential to bidders, and bidders are charged with the knowledge of the documents contained in the Package. DATES: Public bid reading for the WPA Oil and Gas Lease Sale 207 will begin at 9 a.m., Wednesday, August 20, 2008, at the Royal Sonesta Hotel in the Grand Ballroom, located at 300 Bourbon Street, New Orleans, Louisiana 70130. All times referred to in this document are local New Orleans times, unless otherwise specified. ADDRESSES: Bidders can obtain a FNOS 207 Package containing this Notice of Sale and several supporting and essential documents referenced herein from the MMS Gulf of Mexico Region Public Information Unit, 1201 Elmwood Park Boulevard, New Orleans, Louisiana 70123-2394,
(504)736-2519 or
(800)200-GULF or via the MMS GOM Homepage Address on the Internet: *http://www.gomr.mms.gov* . *Filing of Bids:* Bidders must submit sealed bids to the Regional Director (RD), MMS Gulf of Mexico Region, 1201 Elmwood Park Boulevard, New Orleans, Louisiana 70123-2394, between 8 a.m. and 4 p.m. on normal working days, and from 8 a.m. to the Bid Submission Deadline of 10 a.m. on Tuesday, August 19, 2008, the day before the lease sale. If bids are mailed, please address the envelope containing all of the sealed bids as follows: *Attention:* Supervisor, Sales and Support Unit (MS 5422), Leasing Activities Section, MMS Gulf of Mexico Region, 1201 Elmwood Park Boulevard, New Orleans, Louisiana 70123-2394, Contains Sealed Bids for Oil and Gas Lease Sale 207, Please Deliver to Ms. Nancy Kornrumpf 6th Floor, Immediately. Please note: Bidders mailing their bid(s) are advised to call Ms. Nancy Kornrumpf
(504)736-2726, immediately after putting their bid(s) in the mail. If the RD receives bids later than the time and date specified above, he will return those bids unopened to bidders. Should an unexpected event such as flooding or travel restrictions be significantly disruptive to bid submission, the MMS Gulf of Mexico Region may extend the Bid Submission Deadline. Bidders may call
(504)736-0557 or access our Web site at: *http://www.gomr.mms.gov* for information about the possible extension of the Bid Submission Deadline due to such an event. *Areas Offered for Leasing:* The MMS is offering for leasing in Western Planning Area OCS Oil and Gas Lease Sale 207, all blocks and partial blocks listed in the document “List of Blocks Available for Leasing” included in the FNOS 207 Package. All of these blocks are shown on the following leasing maps and Official Protraction Diagrams (OPD's): Outer Continental Shelf Leasing Maps—Texas Map Numbers 1 Through 8 (These 16 maps sell for $2.00 each.) TX1 South Padre Island Area (revised November 1, 2000) TX1A South Padre Island Area, East Addition (revised November 1, 2000) TX2 North Padre Island Area (revised November 1, 2000) TX2A North Padre Island Area, East Addition (revised November 1, 2000) TX3 Mustang Island Area (revised November 1, 2000) TX3A Mustang Island Area, East Addition (revised September 3, 2002) TX4 Matagorda Island Area (revised November 1, 2000) TX5 Brazos Area (revised November 1, 2000) TX5B Brazos Area, South Addition (revised November 1, 2000) TX6 Galveston Area (revised November 1, 2000) TX6A Galveston Area, South Addition (revised November 1, 2000) TX7 High Island Area (revised November 1, 2000) TX7A High Island Area, East Addition (revised November 1, 2000) TX7B High Island Area, South Addition (revised November 1, 2000) TX7C High Island Area, East Addition, South Extension (revised November 1, 2000) TX8 Sabine Pass Area (revised November 1, 2000) Outer Continental Shelf Leasing Maps—Louisiana Map Numbers 1A, 1B, and 12 (These 3 maps sell for $2.00 each.) LA1A West Cameron Area, West Addition (revised February 28, 2007) LA1B West Cameron Area, South Addition (revised February 28, 2007) LA12 Sabine Pass Area (revised February 28, 2007) Outer Continental Shelf Official Protraction Diagrams (OPD's) (These 7 diagrams sell for $2.00 each.) NG14-03 Corpus Christi (revised November 1, 2000) NG14-06 Port Isabel (revised November 1, 2000) NG15-01 East Breaks (revised November 1, 2000) NG15-02 Garden Banks (revised February 28, 2007) NG15-04 Alaminos Canyon (revised November 1, 2000) NG15-05 Keathley Canyon (revised February 28, 2007) NG15-08 Sigsbee Escarpment (revised February 28, 2007) Please note: A CD-ROM (in ARC/INFO and Acrobat (.pdf) format) containing all of the GOM leasing maps and OPD's, except for those not yet converted to digital format, is available from the MMS Gulf of Mexico Region Public Information Unit for a price of $15. These GOM leasing maps and OPD's are also available for free online in .pdf and .gra format at *http://www.gomr.mms.gov/homepg/lsesale/map_arc.html* . For the current status of all Western GOM leasing maps and OPD's, please refer to 66 FR 28002 (published May 21, 2001), 67 FR 60701 (published September 26, 2002), and 72 FR 27590 (published May 16, 2007). In addition, Supplemental Official OCS Block Diagrams (SOBDs) for these blocks are available for blocks which contain the U.S. 200 Nautical Mile Limit line and the U.S.-Mexico Maritime Boundary line. These SOBDs are also available from the MMS Gulf of Mexico Region Public Information Unit. For additional information, please call Ms. Tara Montgomery
(504)736-5722. All blocks are shown on these leasing maps and OPD's. The available Federal acreage of all whole and partial blocks in this lease sale is shown in the document “List of Blocks Available for Leasing” included in the FNOS 207 Package. Some of these blocks may be partially leased or deferred, or transected by administrative lines such as the Federal/State jurisdictional line. A bid on a block must include all of the available Federal acreage of that block. Also, information on the unleased portions of such blocks is found in the document “Western Planning Area, Lease Sale 207, August 20, 2008—Unleased Split Blocks and Available Unleased Acreage of Blocks with Aliquots and Irregular Portions Under Lease or Deferred” included in the FNOS 207 Package. *Areas Not Available for Leasing:* The following whole and partial blocks are not offered for lease in this sale: Whole blocks and portions of blocks which lie within the boundaries of the Flower Garden Banks National Marine Sanctuary at the East and West Flower Garden Banks and Stetson Bank (the following list includes all blocks affected by the Sanctuary boundaries): *High Island, East Addition, South Extension (Leasing Map TX7C)* Whole Blocks: A-375, A-398 Portions of Blocks: A-366, A-367, A-374, A-383, A-384, A-385, A-388, A-389, A-397, A-399, A-401 *High Island, South Addition (Leasing Map TX7B)* Portions of Blocks: A-502, A-513 *Garden Banks (OPD NG15-02)* Portions of Blocks: 134, 135 Whole blocks and portions which lie within the former Western Gap portion of the 1.4 nautical mile buffer zone north of the continental shelf boundary between the United States and Mexico: *Keathley Canyon (OPD NG15-05)* Portions of Blocks: 978 through 980 *Sigsbee Escarpment (OPD NG15-08)* Whole Blocks: 11, 57, 103, 148, 149, 194 Portions of Blocks: 12 through 14, 58 through 60, 104 through 106, 150 *Statutes and Regulations:* Each lease issued in this lease sale is subject to the OCS Lands Act of August 7, 1953; 43 U.S.C. 1331 *et seq.* , as amended, hereinafter called “the Act;” all regulations issued pursuant to the Act and in existence upon the Effective Date of the lease; all regulations issued pursuant to the statute in the future which provide for the prevention of waste and conservation of the natural resources of the OCS and the protection of correlative rights therein; and all other applicable statutes and regulations. *Lease Terms and Conditions:* Initial periods, extensions of initial periods, minimum bonus bid amounts, rental rates, escalating rental rates for leases with an approved extension of the initial 5-year period, royalty rate, minimum royalty, and royalty suspension provisions, if any, applicable to this sale are noted below. Depictions of related areas are shown on the map “Final, Western Planning Area, Lease Sale 207, August 20, 2008, Lease Terms and Economic Conditions” for leases resulting from this lease sale. *Initial Periods:* 5 years for blocks in water depths of less than 400 meters; 8 years for blocks in water depths of 400 to less than 800 meters (pursuant to 30 CFR 256.37, commencement of an exploratory well is required within the first 5 years of the initial 8-year term to avoid lease cancellation); and 10 years for blocks in water depths of 800 meters or deeper. *Extensions of Initial Periods:* The 5-year initial period for a lease in water depths of less than 400 meters and issued from this sale may be extended to 8 years if a well, targeting hydrocarbons below 25,000 feet true vertical depth subsea (TVD SS) is spudded within the initial period. The 3-year extension may be granted in cases where the well is drilled to a target below 25,000 TVD SS and also in cases where the well does not reach a depth below 25,000 TVD SS due to mechanical or safety reasons. In order for the 5-year initial period to be extended to 8 years, the lessee is required to submit to the Regional Supervisor for Production and Development within 30 days after completion of the drilling operation a letter providing the well number, spud date, information demonstrating the target below 25,000 feet TVD SS, and if applicable, safety or mechanical problems encountered that prevented the well from reaching a depth below 25,000 feet TVD SS. The Regional Supervisor must concur in writing that the conditions have been met to extend the lease term 3 years. The Regional Supervisor will provide written confirmation of any lease extension within 30 days of receipt of the letter provided. For any lease that has a well spudded in the first 5 years of the initial period with a hydrocarbon target below 25,000 feet TVD SS, the regulations found at 30 CFR 250.175(a), (b), and
(c)*will* not be applicable at the end of the 5th year. For any lease that does not have a well spudded in the first 5 years of the initial period which targets hydrocarbons below 25,000 feet TVD SS, the regulations found at 30 CFR 250.175(a), (b), and
(c)will be applicable, but the 3-year extension will not be available. At the end of the 8th year, the lessee is free to use all lease term extension provisions under the regulations. *Minimum Bonus Bid Amounts:* A bonus bid will not be considered for acceptance unless it provides for a cash bonus in the amount of $25 or more per acre or fraction thereof for blocks in water depths of less than 400 meters or $37.50 or more per acre or fraction thereof for blocks in water depths of 400 meters or deeper; to confirm the exact calculation of the minimum bonus bid amount for each block, see “List of Blocks Available for Leasing” contained in the FNOS 207 Package. Please note that bonus bids must be in whole dollar amounts (i.e., any cents will be disregarded by the MMS). *Rental Rates:* Subject to the one set of exceptions below, $6.25 per acre or fraction thereof for blocks in water depths of less than 200 meters, and $9.50 per acre or fraction thereof for blocks in water depths of 200 meters or deeper, to be paid on or before the 1st day of each lease year until determination of well producibility is made, then at the expiration of each lease year until the start of royalty-bearing production. An exception to the rental rate requirement for blocks in water depths up to 400 meters will be escalating rental rates in the 6th, 7th, and 8th year for leases with an approved extension of the 5-year initial period, as noted in the following paragraph of this document. *Escalating Rental Rates for leases with an approved extension of the 5-year initial period* : Any lease in water depths less than 400 meters and granted a 3-year extension beyond the 5-year initial period as provided above will pay an escalating rental rate as set out in the following table, to be paid on or before the 1st day of each lease year until determination of well producibility is made, then at the expiration of each lease year until the start of royalty-bearing production. However, the escalating rental rates after the 5th year for blocks in up to 400 meters will become fixed and no longer escalate if another well is spudded during the 3-year extended term of the lease that targets hydrocarbons below 25,000 feet TVD SS, and MMS concurs that this has occurred. In this case the rental rate will become fixed at the rental rate in effect during the lease year in which the additional well was spudded. Extended lease year No. Escalating annual rental rate for a lease in: Less than a 200-meter water depth Escalating annual rental rate for a lease in a: 200- to less than 400-meter water depth 6 $12.50 per acre or fraction thereof $19.00 per acre or fraction thereof. 7 $18.75 per acre or fraction thereof $28.50 per acre or fraction thereof. 8 $25.00 per acre or fraction thereof $38.00 per acre or fraction thereof. *Royalty Rate* : 18.75 percent royalty rate for blocks in all water depths, except during periods of royalty suspension, to be paid monthly on the last day of the month following the month during which the production is obtained. *Minimum Royalty* : $6.25 per acre or fraction thereof per year for blocks in water depths of less than 200 meters and $9.50 per acre or fraction thereof per year for blocks in water depths of 200 meters or deeper, to be paid at the expiration of each lease year beginning in the year in which royalty bearing production commences, and continuing thereafter regardless of either the lease year or whether any royalty suspension may apply. A credit will be applied for any actual royalty paid on the lease during the lease year in which minimum royalty is owed on the lease. If the actual royalty paid on the lease for a given lease year exceeds the minimum royalty otherwise owed, then no minimum royalty payment is due. *Royalty Suspension Provisions* : Leases with royalty suspension volumes
(RSV)are authorized under existing MMS rules at 30 CFR Part 260. There are no circumstances under which a single lease could receive a royalty suspension both for deep gas production and for deepwater production. Section 344 of the Energy Policy Act of 2005 (EPAct05) extends existing deep gas incentives in two ways. First, it mandates a RSV of at least 35 billion cubic feet of natural gas for certain wells completed in a drilling depth category (20,000 feet TVD SS or deeper) for leases in 0-400 meters of water. Second, section 344 directs that the same incentives prescribed in MMS's 2004 rule for wells completed between 15,000 feet and 20,000 feet TVD SS on leases in 0-200 meters of water be applied to leases in 200-400 meters of water. Section 345 of the EPAct05 directs continuation of the MMS deepwater incentive program utilized since 2001 in the Gulf of Mexico for leases issued between August 8, 2005, and August 8, 2010, and provides for an increase in RSV from 12 million barrels of oil equivalent (MMBOE) to 16 MMBOE for leases in water depths greater than 2,000 meters. Deep Gas Royalty Suspensions A lease issued as a result of this sale may be eligible for royalty relief. The MMS published a proposed rule on May 18, 2007, and will publish a final rule (Incentives for Natural Gas Production from Deep Wells in the Shallow Waters of the Gulf of Mexico) implementing Section 344 of EPAct05. If a lease is eligible, it will be subject to the provisions of that final rule, including any price threshold provisions. Please refer to the Royalty Suspension Provisions cited below. A. *The following Royalty Suspension Provisions apply to qualifying deep wells on leases at least partly in water depths up to 200 meters* : Such wells require a perforated interval the top of which is from 15,000 to less than 20,000 feet TVD SS. Suspension volumes, conditions, and requirements prescribed in 30 CFR 203.41 through 203.47 and any amendments or successor regulations apply to deep gas production from a lease in this water depth range issued as a result of this sale. Definitions that apply to this category of royalty relief are found in 30 CFR 203.0. To receive this category of royalty relief, production from a qualified well or drilling of a certified unsuccessful well must commence before May 3, 2009. B. *The following Royalty Suspension Provisions apply to qualifying deep wells on leases entirely in water depths more than 200 but less than 400 meters:* Such wells require a perforated interval, the top of which is from 15,000 to less than 20,000 feet TVD SS. The EPAct05 requires the Secretary to issue regulations granting RSV to leases entirely in water depths more than 200 but less than 400 meters that will be calculated using the same methodology as is currently employed for leases at least partly in water depth up to 200 meters. Deep wells on leases in the 200-400 meter water depth range issued in Sale 207 will be eligible for royalty relief prescribed in the final rule implementing Section 344 of the EPAct05. C. *The following Royalty Suspension Provisions apply to qualifying ultra deep wells on leases entirely in water depths less than 400 meters* : Ultra deep wells i.e., wells completed with a perforated interval, the top of which is 20,000 feet TVD SS or deeper) on leases entirely in water depths less than 400 meters issued in Sale 207 will be eligible for the royalty relief prescribed in a final rule implementing section 344 of the EPAct05. Deepwater Royalty Suspensions *The following Royalty Suspension Provisions apply to deepwater oil and gas production:* A lease issued as a result of this sale may be eligible for royalty relief. The following Royalty Suspension Provisions for deepwater oil and gas production apply to a lease issued as a result of this sale. These provisions are similar to, and mean the same as, the language used in recent sales except for some clarifying text and updated examples. In addition to these provisions, and the EPAct05, refer to 30 CFR 218.151 and applicable provisions of sections 260.120-260.124 for regulations on how royalty suspensions relate to field assignment, product types, rental obligations, and supplemental royalty relief. 1. A lease in water depths of 400 meters or more will receive a royalty suspension as follows, according to the water depth range in which the lease is located: 400 meters to less than 800 meters: 5 MMBOE; 800 meters to less than 1600 meters: 9 MMBOE; 1600 meters to 2000 meters: 12 MMBOE; Greater than 2000 meters: 16 MMBOE. 2. In any calendar year during which the arithmetic average of the daily closing prices for the nearby delivery month on the New York Mercantile Exchange (NYMEX) for the applicable product exceeds the adjusted product price threshold, the lessee must pay royalty on production that would otherwise receive royalty relief under 30 CFR Part 260 or supplemental relief under 30 CFR Part 203, and such production will count towards the royalty suspension volume.
(a)The base level price threshold for light sweet crude oil is $36.39 per barrel in 2007. The adjusted oil price threshold in any subsequent calendar year is computed by changing the price threshold applicable in the immediately preceding calendar year by the percentage by which the implicit price deflator for the gross domestic product has changed during the calendar year.
(b)The base level price threshold for natural gas is $4.55 per million British thermal units (MMBTU) in 2007. The adjusted gas price threshold in any subsequent calendar year is computed by changing the price threshold applicable in the immediately preceding calendar year by the percentage by which the implicit price deflator for the gross domestic product has changed during the calendar year.
(c)As an example, if the implicit price deflator indicates that inflation is 3 percent in 2008, then the price threshold in calendar year 2008 would become $37.48 per barrel for oil and $4.69 for gas. Therefore, royalty on oil production in calendar year 2008 would be due if the average of the daily closing prices for the nearby delivery month on the NYMEX in 2008 exceeds $37.48 per barrel and royalty on gas production in calendar year 2008 would be due if the average of the daily closing prices for the nearby delivery month on the NYMEX in 2008 exceeds $4.69 per MMBTU.
(d)The MMS provides notice in March of each year when adjusted price thresholds for the preceding year were exceeded. Once this determination is made, based on the then-most recent implicit price deflator information, it will not be revised regardless of any subsequent adjustments in the implicit price deflator published by the U.S. Government for the preceding year. Information on price thresholds is available at the MMS Web site *http://www.mms.gov/econ.*
(e)In cases where the actual average price for the product exceeds the adjusted price threshold in any calendar year, royalties must be paid no later than 90 days after the end of the year (see 30 CFR 260.122(b)(2) for more detail) and royalties must be paid provisionally in the following calendar year (See 30 CFR 260.122(c) for more detail).
(f)Full royalties are owed on all production from a lease after the RSV is exhausted, beginning on the first day of the month following the month in which the RSV is exhausted. *Lease Stipulations:* The map “Final, Western Planning Area, Lease Sale 207, August 20, 2008, Stipulations and Deferred Blocks” depicts those blocks on which one or more of five lease stipulations apply:
(1)Topographic Features;
(2)Military Areas;
(3)Operations in the Naval Mine and Anti-Submarine Warfare Area;
(4)Law of the Sea Convention Royalty Payment; and
(5)Protected Species. The texts of the stipulations are contained in the document “Lease Stipulations, Western Planning Area, Oil and Gas Lease Sale 207, Final Notice of Sale” included in the FNOS 207 Package. In addition, the “List of Blocks Available for Leasing,” contained in this FNOS 207 Package identifies for each block listed the lease stipulations applicable to that block. *Information to Lessees:* The FNOS 207 Package contains an “Information To Lessees” document that provides detailed information on certain specific issues pertaining to this proposed oil and gas lease sale. *Method of Bidding:* For each block bid upon, a bidder must submit a separate signed bid in a sealed envelope labeled “Sealed Bid for Oil and Gas Lease Sale 207, not to be opened until 9 a.m., Wednesday, August 20, 2008.” The submitting company's name, its company number, the map name/number, and block number should be clearly identified on the outside of the envelope. Please refer to the sample bid envelope included within the FNOS 207 Package. The total amount of the bid must be in a whole dollar amount; any cent amount above the whole dollar will be ignored by the MMS. Details of the information required on the bid(s) and the bid envelope(s) are specified in the document “Bid Form and Envelope” contained in the FNOS 207 Package. A blank bid form has been provided for your convenience which may be copied and filled in. Please also refer to the Telephone Numbers/Addresses of Bidders Form included within the FNOS 207 Package. We are requesting that you provide this information in the format suggested for each lease sale. Please provide this information prior to or at the time of bid submission. Do not enclose this form inside the sealed bid envelope. The MMS published in the **Federal Register** a list of restricted joint bidders, which applies to this lease sale, at 73 FR 36556, on June 27, 2008. Please also refer to joint bidding provisions at 30 CFR 256.41 for additional information. Bidders must execute all documents in conformance with signatory authorizations on file in the MMS Gulf of Mexico Region Adjudication Office. Signatories must be authorized to bind their respective legal business entities (e.g., a corporation, partnership, or LLC) and must have an incumbency certificate setting forth the authorized signatories on file with the MMS GOM Region Adjudication Office. Bidders submitting joint bids must include on the bid form the proportionate interest of each participating bidder, stated as a percentage, using a maximum of five decimal places (e.g., 33.33333 percent). The MMS may require bidders to submit other documents in accordance with 30 CFR 256.46. The MMS warns bidders against violation of 18 U.S.C. 1860 prohibiting unlawful combination or intimidation of bidders. Bidders are advised that the MMS considers the signed bid to be a legally binding obligation on the part of the bidder(s) to comply with all applicable regulations, including payment of the one-fifth bonus bid amount on all high bids. A statement to this effect must be included on each bid (see the document “Bid Form and Envelope” contained in the FNOS 207 Package). *Withdrawal of Bids:* Once submitted, bid(s) may not be withdrawn unless the RD receives a written request for withdrawal from the company who submitted the bid(s), prior to 10 a.m. on Tuesday, August 19, 2008. This request must be typed on company letterhead and must contain the submitting company's name, its company number, the map name/number and block number of the bid(s) to be withdrawn. The request must be in conformance with signatory authorizations on file in the MMS Gulf of Mexico Region Adjudication Office. Signatories must be authorized to bind their respective legal business entities (e.g., a corporation, partnership, or LLC) and must have an incumbency certificate setting forth the authorized signatories on file with the MMS GOM Region Adjudication Office. The name and title of said signatory must be typed under the signature block on the withdrawal letter. Upon the RD's, or his designee's, approval of such requests, he will indicate his approval by affixing his signature and date to the submitting company's request for withdrawal. *Rounding:* The following procedure must be used to calculate the minimum bonus bid, annual rental, and minimum royalty: Round up to the next whole acre if the block acreage contains a decimal figure prior to calculating the minimum bonus bid, annual rental, and minimum royalty amounts. The appropriate rate per acre is applied to the whole (rounded up) acreage. The bonus bid must be in whole dollar amounts (i.e., any cents will be disregarded by the MMS) and greater than or equal to the minimum bonus bid. The appropriate minimum bid per acre rate is applied to the whole (rounded up) acreage and the resultant calculation is rounded up to the next whole dollar amount if the calculation results in any cents. The minimum bonus bid calculation, including all rounding, is shown in the document “List of Blocks Available for Leasing” included in the FNOS 207 Package. *Bonus Bid Deposit:* Each bidder submitting an apparent high bid must submit a bonus bid deposit to the MMS equal to one-fifth of the bonus bid amount for each such bid. All payments must be electronically deposited into an interest-bearing account in the U.S. Treasury (account information provided in the Electronic Funds Transfer
(EFT)instructions) by 11 a.m. Eastern Time the day following bid reading. Under the authority granted by 30 CFR 256.46(b), the MMS requires bidders to use electronic funds transfer procedures for payment of one-fifth bonus bid deposits for Lease Sale 207, following the detailed instructions contained in the document “Instructions for Making EFT Bonus Payments,” which can be found on the MMS Web site at *http://www.gomr.mms.gov/homepg/lsesale/207/wgom207.html.* Such a deposit does not constitute and shall not be construed as acceptance of any bid on behalf of the United States. If a lease is awarded, however, MMS requests that only one transaction be used for payment of the four-fifths bonus bid amount and the first year's rental. Please note: Certain bid submitters (i.e., those that are NOT currently an OCS mineral lease record title holder or designated operator OR those that have ever defaulted on a one-fifth bonus bid payment (EFT or otherwise)) are required to guarantee (secure) their one-fifth bonus bid payment prior to the submission of bids. For those who must secure the EFT one-fifth bonus bid payment, one of the following options may be used:
(1)Provide a third-party guarantee;
(2)amend bond coverage;
(3)provide a letter of credit; or
(4)provide a lump sum payment in advance via EFT. The EFT instructions specify the requirements for each option. *Withdrawal of Blocks:* The United States reserves the right to withdraw any block from this lease sale prior to issuance of a written acceptance of a bid for the block. *Acceptance, Rejection, or Return of Bids:* The United States reserves the right to reject any and all bids. In any case, no bid will be accepted, and no lease for any block will be awarded to any bidder, unless the bidder has complied with all requirements of this Notice, including the documents contained in the associated FNOS 207 Package and applicable regulations; the bid is the highest valid bid; and the amount of the bid has been determined to be adequate by the authorized officer. Any bid submitted which does not conform to the requirements of this Notice, the Act, and other applicable regulations may be returned to the bidder submitting that bid by the RD and not considered for acceptance. The Attorney General may also review the results of the lease sale prior to the acceptance of bids and issuance of leases. To ensure that the Government receives a fair return for the conveyance of lease rights for this lease sale, high bids will be evaluated in accordance with MMS bid adequacy procedures. A copy of current procedures, “Modifications to the Bid Adequacy Procedures” at 64 FR 37560 on July 12, 1999, can be obtained from the MMS Gulf of Mexico Region Public Information Unit or via the MMS Gulf of Mexico Region Internet Web site at: *http://www.gomr.mms.gov/homepg/lsesale/bidadeq.html.* *Successful Bidders:* As required by the MMS, each company that has been awarded a lease must execute all copies of the lease (Form MMS-2005 (March 1986) as amended), pay by EFT the balance of the bonus bid amount and the first year's rental for each lease issued in accordance with the requirements of 30 CFR 218.155; and satisfy the bonding requirements of 30 CFR 256, subpart I, as amended. Also, in accordance with regulations at 2 CFR Parts 180 and 1400, the lessee shall comply with the U.S. Department of the Interior's nonprocurement debarment and suspension requirements, and agrees to communicate this requirement to comply with these regulations to persons with whom the lessee does business as it relates to this lease by including this term as a condition to enter into their contracts and other transactions. *Affirmative Action:* The MMS requests that, prior to bidding, Equal Opportunity Affirmative Action Representation Form MMS 2032 (June 1985) and Equal Opportunity Compliance Report Certification Form MMS 2033 (June 1985) be on file in the MMS Gulf of Mexico Region Adjudication Unit. This certification is required by 41 CFR Part 60 and Executive Order No. 11246 of September 24, 1965, as amended by Executive Order No. 11375 of October 13, 1967. In any event, prior to the execution of any lease contract, both forms are required to be on file in the MMS Gulf of Mexico Region Adjudication Unit. *Geophysical Data and Information Statement:* Pursuant to 30 CFR 251.12, the MMS has a right to access geophysical data and information collected under a permit in the OCS. Every bidder submitting a bid on a block in Sale 207, or participating as a joint bidder in such a bid, must submit a Geophysical Data and Information Statement
(GDIS)identifying any enhanced or reprocessed geophysical data and information generated or used as part of the decision to bid or participate in a bid on the block. The data identified in the GDIS should clearly identify whether the data or information are non-exclusive data sets available from geophysical contractors or exclusive data specially processed for or by bidders. In addition, the GDIS should clearly identify the data type (2-D or 3-D, pre-stack or post-stack and time or depth); data extent (i.e., number of line miles for 2D or number of blocks for 3D) and migration algorithm of the data and information. The statement must also include the name and phone number of a contact person, and an alternate, who are both knowledgeable about the information and data listed and available for 30 days post-sale, the processing company, date processing completed, owner of the original data, original data survey name and permit number. The MMS reserves the right to query about alternate data sets and to quality check and compare the listed and alternative data sets to determine which data set most closely meets the needs of the fair market value determination process. The statement must also identify each block upon which a bidder bid, or participated in a bid, but for which it did not use processed or reprocessed pre- or post-stack depth migrated geophysical data and information as part of the decision to bid or to participate in the bid. The GDIS must be submitted, even if no enhanced geophysical data and information were used for bid preparation of the tract. In the event your company supplies any type of data to the MMS, in order to get reimbursed, your company must be registered with the Central Contractor Registration
(CCR)at *http://www.ccr.gov.* This is a requirement that was implemented on October 1, 2003, and requires all entities doing business with the Government to complete a business profile in CCR and update it annually. Payments are made electronically based on the information contained in CCR. Therefore, if your company is not actively registered in CCR, the MMS will not be able to reimburse or pay your company for any data supplied. Please also refer to the FNOS 207 Package for more detail concerning submission of the GDIS, making the data available to the MMS following the lease sale, preferred format, reimbursement for costs, and confidentiality. *Force Majeure:* The RD of the MMS Gulf of Mexico Region has the discretion to change any date, time, and/or location specified in the Final Notice of Sale package in case of a force majeure which the RD deems may interfere with the carrying out of a fair and proper lease sale process. Such events may include, but are not limited to, natural disasters (earthquakes, hurricanes, floods), wars, riots, acts of terrorism, fire, strikes, civil disorder or other events of a similar nature. In case of such events, bidders should call
(504)736-0557 or access our Web site at *www.gomr.mms.gov* for information about any changes. Date: July 9, 2008. Randall B. Luthi, Director, Minerals Management Service. [FR Doc. E8-16324 Filed 7-16-08; 8:45 am] BILLING CODE 4310-MR-P INTERNATIONAL TRADE COMMISSION [Investigation Nos. 701-TA-417 and 731-TA-953, 954, 957-959, 961, and 962 (Review)] Carbon and Certain Alloy Steel Wire Rod From Brazil, Canada, Indonesia, Mexico, Moldova, Trinidad and Tobago, and Ukraine Determinations On the basis of the record 1 developed in the subject five-year reviews, the United States International Trade Commission (Commission) determines, pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)), that revocation of the countervailing duty order on carbon and certain alloy steel wire rod from Brazil, and the antidumping duty orders on carbon and certain alloy steel wire rod from Brazil, Indonesia, Mexico, 2 Moldova, Trinidad and Tobago, 3 and Ukraine would be likely to lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time. The Commission further determines that revocation of the antidumping duty order on carbon and certain alloy steel wire rod from Canada would not be likely to lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time. 4 1 The record is defined in sec. 207.2(f) of the Commission's Rules of Practice and Procedure (19 CFR 207.2(f)). 2 Chairman Daniel R. Pearson dissenting with respect to Mexico. 3 Chairman Daniel R. Pearson and Commissioner Deanna Tanner Okun dissenting with respect to Trinidad and Tobago. 4 Commissioners Charlotte R. Lane and Dean A. Pinkert dissenting with respect to Canada. Background The Commission instituted these reviews on September 4, 2007 (72 FR 50696) and determined on December 10, 2007, that it would conduct full reviews (72 FR 73880, December 28, 2007). Notice of the scheduling of the Commission's reviews and of a public hearing to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the **Federal Register** on January 14, 2008 (73 FR 2273). The hearing was held in Washington, DC, on April 17, 2008, and all persons who requested the opportunity were permitted to appear in person or by counsel. The Commission transmitted its determinations in these reviews to the Secretary of Commerce on June 17, 2008. The views of the Commission are contained in USITC Publication 4014 (June 2008), entitled *Carbon and Certain Alloy Steel Wire Rod from Brazil, Canada, Indonesia, Mexico, Moldova, Trinidad and Tobago, and Ukraine: Investigation Nos. 701-TA-417 and 731-TA-953, 954, 957-959, 961, and 962 (Review).* By order of the Commission. Issued: June 25, 2008. Marilyn R. Abbott, Secretary to the Commission. [FR Doc. E8-16287 Filed 7-16-08; 8:45 am] BILLING CODE 7020-02-P INTERNATIONAL TRADE COMMISSION [Investigation No. 337-TA-633] In the Matter of Certain Acetic Acid; Notice of Determination Not To Review an Initial Determination Granting Complainant's Motion To Terminate the Investigation Based on Withdrawal of the Complaint AGENCY: U.S. International Trade Commission. ACTION: Notice. SUMMARY: Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 6) issued by the presiding administrative law judge (“ALJ”) granting complainant's motion to terminate the investigation in its entirety based on withdrawal of the complaint. FOR FURTHER INFORMATION CONTACT: Michelle Walters, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone
(202)708-5468. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone
(202)205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at *http://www.usitc.gov.* The public record for this investigation may be viewed on the Commission's electronic docket
(EDIS)at *http://edis.usitc.gov.* Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on
(202)205-1810. SUPPLEMENTARY INFORMATION: The Commission instituted this investigation on March 5, 2008, based on a complaint filed by Celanese International Corporation (“Celanese”). The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain acetic acid that allegedly infringes certain claims of United States Patent No. 6,303,813. The complaint named Jiangsu Sopo Corporation (Group) Ltd., a/k/a Jiangsu Sopo (Group) Corp., a/k/a Jiangsu Sopo (Group) Co. Ltd. of Shanghai, China, and Jiangsu Sopo Group, Shanghai Limited Company of Shanghai, China as respondents. On May 23, 2008, Celanese filed a motion to terminate the investigation in its entirety based on withdrawal of the complaint. Respondents did not oppose complainant's motion, but requested that their pending motion to declassify portions of a deposition transcript (Motion No. 633-1) be ruled upon first. The Commission investigative attorney argued that complainant's motion to withdraw the complaint should be granted, without the imposition of any terms or conditions. On June 18, 2008, the ALJ issued the subject ID, granting complainant's motion to terminate the investigation. No petitions for review were filed. The Commission has determined not to review the ID. The investigation is terminated. The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in section 210.42 of the Commission's Rules of Practice and Procedure (19 CFR 210.42). By order of the Commission. Issued: July 11, 2008. Marilyn R. Abbott, Secretary to the Commission. [FR Doc. E8-16280 Filed 7-16-08; 8:45 am] BILLING CODE 7020-02-P INTERNATIONAL TRADE COMMISSION [Investigation No. 337-TA-647] In the Matter of Certain Hand-Held Meat Tenderizers; Notice of Decision Not To Review an Initial Determination Correcting the Name of a Respondent AGENCY: U.S. International Trade Commission. ACTION: Notice. SUMMARY: Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 4) issued by the presiding administrative law judge (“ALJ”) correcting the name of a respondent in this investigation. FOR FURTHER INFORMATION CONTACT: Mark B. Rees, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone
(202)205-3116. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone
(202)205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at *http://www.usitc.gov.* The public record for this investigation may be viewed on the Commission's electronic docket
(EDIS)at *http://edis.usitc.gov.* Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on
(202)205-1810. SUPPLEMENTARY INFORMATION: On May 8, 2008, the Commission instituted this investigation based on the complaint, as supplemented, of Jaccard Corporation of Orchard Park, New York, alleging violations of section 337 of the Tariff Act of 1930 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain hand-held meat tenderizers by reason of infringement of U.S. Trademark Registration No. 1,172,879 (the JACCARD® word mark) and also by reason of infringement of trade dress. 73 FR 27846 (May 14, 2008). The notice of investigation, tracking the complaint, named Keystone Manufacturing, Inc. of Buffalo, New York and Chefmaster/Mr. Bar-B-Q Inc. of Old Bethpage, New York as respondents. On May 22, 2008, the ALJ *sua sponte* issued the subject ID (Order No. 4) amending the notice of investigation so that “Chefmaster/Mr. Bar-B-Q Inc.” instead reads “Mr. Bar-B-Q-, Inc.”, which he found is this respondent's correct name. No petitions for review of this ID were filed. The Commission has determined not to review this ID. The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and section 210.42 of the Commission's Rules of Practice and Procedure (19 CFR 210.42). By order of the Commission. Issued: July 11, 2008. Marilyn R. Abbott, Secretary to the Commission. [FR Doc. E8-16281 Filed 7-15-08; 8:45 am] BILLING CODE 7020-02-P INTERNATIONAL TRADE COMMISSION [Investigation No. 337-TA-641] In the Matter of Certain Variable Speed Wind Turbines and Components Thereof; Notice of Commission Decision Not To Review an Initial Determination Granting Complainant's Unopposed Motion To Amend the Complaint and Notice of Investigation AGENCY: U.S. International Trade Commission. ACTION: Notice. SUMMARY: Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 7) issued by the presiding administrative law judge (“ALJ”) granting complainant's motion to amend the complaint and notice of investigation. FOR FURTHER INFORMATION CONTACT: Michelle Walters, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone
(202)708-5468. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone
(202)205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at *http://www.usitc.gov* . The public record for this investigation may be viewed on the Commission's electronic docket
(EDIS)at *http://edis.usitc.gov* . Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on
(202)205-1810. SUPPLEMENTARY INFORMATION: The Commission instituted this investigation on March 31, 2008, based on a complaint filed by General Electric Company (“GE”). The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain variable speed wind turbines and components thereof that allegedly infringe certain claims of United States Patent Nos. 5,083,039 and 6,921,985. The complaint named Mitsubishi Heavy Industries, Ltd. of Tokyo, Japan, Mitsubishi Heavy Industries of America, Inc. of New York, New York, and Mitsubishi Power Systems, Inc. of Lake Mary, Florida. On September 16, 2007, GE filed a motion to amend the complaint and notice of investigation to correct two clerical errors:
(1)An incorrect figure expressed in Confidential Exhibit 30, and
(2)a respondent identified by a former name rather than its current name. The motion was not opposed. On June 18, 2008, the ALJ granted GE's motion, finding that, it is in the best interest of the parties and the public interest for the complaint and notice of investigation to be corrected. No petitions for review of this ID were filed. The Commission has determined not to review the ALJ's ID. The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in section 210.42 of the Commission's Rules of Practice and Procedure (19 CFR 210.42). By order of the Commission. Issued: July 11, 2008. Marilyn R. Abbott, Secretary to the Commission. [FR Doc. E8-16279 Filed 7-16-08; 8:45 am] BILLING CODE 7020-02-P DEPARTMENT OF JUSTICE Notice of Lodging of Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability Act Notice is hereby given that on June 27, 2008, a proposed Consent Decree in *United States and State of Oklahoma* v. *Albert Investment, et al.* , Civil Action No. 5:08-cv-637, was lodged with the United States District Court for the Western District of Oklahoma. In this action the United States, on behalf of the United States Environmental Protection Agency (“EPA”), sought to recover from certain parties response costs that it incurred in response to releases and threatened releases of hazardous substances from the Double Eagle Refinery Superfund Site (the “Site”) located in Oklahoma City, Oklahoma. The proposed Consent Decree resolves claims alleged by the United States, on behalf of the United States Environmental Protection Agency (“EPA”), and the United States Department of the Interior (“DOI”), under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 9601 *et seq.* The proposed Consent Decree provides that the Settling Defendants, which sent waste oil containing hazardous substances to the Site for disposal, will pay the United States and the State of Oklahoma approximately $6.48 million in response costs and natural resource damages. The Department of Justice will receive for a period of thirty
(30)days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General for the Environment and Natural Resources Division, U.S. Department of Justice, and either e-mailed to *pubcomment-ees.enrd@usdoj.gov* or mailed to P.O. Box 7611, NW., Washington, DC 20044-7611, and should refer to *United States and State of Oklahoma* v. *Albert Investment, et al.* , DOJ. Ref. 90-11-2-857/2. The Consent Decree may be examined at the Office of the United States Attorney, Western District of Oklahoma, 210 Park Ave., Suite 400, Oklahoma City, OK 72102, and at the offices of EPA, Region 6, 1445 Ross Ave., Dallas, TX 75202-2733. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site, *http://www.usdoj.gov/enrd/Consent_Decrees.html* . A copy of the Consent Decree may also be obtained by mail from the Consent Decree Library, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611 or by faxing or e-mailing a request to Tonia Fleetwood ( *tonia.fleetwood@usdoj.gov* ), fax no.
(202)514-0097, phone confirmation number
(202)514-1547. In requesting a copy from the Consent Decree Library, please enclose a check in the amount of $18.75 (25 cents per page reproduction cost) payable to the U.S. Treasury or, if by e-mail or fax, forward a check in that amount to the Consent Decree Library at the stated address. Thomas A. Mariani, Jr., Assistant Section Chief, Environmental Enforcement Section, Environment and Natural Resources Division. [FR Doc. E8-16392 Filed 7-16-08; 8:45 am] BILLING CODE 4410-15-P DEPARTMENT OF JUSTICE Antitrust Division United States of America v. Signature Flight Support Corporation and Hawker Beechcraft Services, Inc.; Proposed Final Judgment and Competitive Impact Statement Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 5 U.S.C. 16(b)-(h), that a proposed Final Judgment, Hold Separate and Preservation of Assets Stipulation and Order, and Competitive Impact Statement have been filed with the United States District Court for the District of Columbia in *United States of America* v. *Signature Flight Support Corporation and Hawker Beechcraft Services, Inc.,* Civil Action No. 1:08-cv-01164-RWR. On July 3, 2008, the United States filed a Complaint alleging that the proposed acquisition by Signature Flight Support Corporation (“Signature”) of the fixed base operations (“FB”) of Hawker Beechcraft Services, Inc. (“Hawker Beechcraft”) at the Indianapolis International Airport (“IND”) would violate Section 7 of the Clayton Act, 15 U.S.C. 18. The Complaint alleges that the acquisition would combine the only providers of FBO services at IND, resulting in higher prices and reduced services. The proposed Final Judgment requires the parties to divest either Signature's or Hawker Beechcraft's FBO assets at IND. Copies of the Complaint, proposed Final Judgment, Hold Separate and Preservation of Assets Stipulation and Order, and Competitive Impact Statement are available for inspection at the Department of Justice, Antitrust Division, Antitrust Documents Group, Room 1010, 450 5th Street, NW., Washington, DC 20530 (telephone: 202-514-2481), on the Department of Justice's Web site at *http://www.usdoj.gov/atr,* and at the Office of the Clerk of the United States District Court for the District of Columbia. Copies of these materials may be obtained from the Antitrust Division upon request and payment of the copying fee set by Department of Justice regulations. Public comment is invited within sixty
(60)days of the date of this notice. Such comments, and responses thereto, will be published in the **Federal Register** and filed with the Court. Comments should be directed to Donna N. Kooperstein, Chief, Transportation, Energy & Agriculture Section, Antitrust Division, Department of Justice, Suite 4100, 450 5th Street, NW., Washington, DC 20530 (telephone: 202-307-6410). Patricia A. Brink, Deputy Director of Operations, Antitrust Division. United States District Court for the District of Columbia United States of America, U.S. Department of Justice, Antitrust Division, 450 Fifth Street, NW., Suite 4100, Washington, DC 20530, Plaintiff, v. Signature Flight Support Corporation, Signature Plaza, 201 South Orange Avenue, Suite 1100, Orlando, Florida 32801, and Hawker Beechcraft Services, Inc., 10511 East Central, Wichita, Kansas 67206, Defendants Civil Action No.: Filed: Case: 1:08-cv-01164. Assigned To: Roberts, Richard W. Assign. Date: 7/3/2008. Description: Antitrust. Complaint The United States of America, acting under the direction of the Attorney General of the United States, brings this civil antitrust action to enjoin the proposed acquisition by Signature Flight Support Corporation (“Signature”) of fixed base operations of Hawker Beechcraft Services, Inc. (“Hawker Beechcraft”) and to obtain equitable and other relief. The United States alleges as follows: I. Nature of the Action 1. On February 21, 2008, Signature and Hawker Beechcraft signed a definitive agreement for Signature to acquire Hawker Beechcraft's United States' fixed base operations (“FBO”) for $128.5 million. FBOs provide flight support services—including fueling, hangar rentals, office space rentals, and other services—to general aviation customers. Signature is the largest fixed base operator in the world and operates FBOs at more than forty-five around the country. Hawker Beechcraft operates FBOs at seven airports in the United States. Both Signature and Hawker Beechcraft operate FBOs at the Indianapolis International Airport (“IND”). 2. Signature and Hawker Beechcraft are the only two FBOs operating at IND Airport. They compete directly on price and quality of FBO services to general aviation customers. The acquisition would eliminate this competition, creating an FBO monopoly at IND. The acquisition would give Signature the ability to raise prices and lower the quality services at IND for general aviation customers. Unless the transaction is enjoined, the proposed acquisition is likely to lessen competition substantially in the market for FBO services at IND in violation of Section 7 of the Clayton Act, 15 U.S.C. 18. II. Jurisdiction and Venue 3. The United States brings this action under Section 15 of the Clayton Act, as amended, 15 U.S.C. 25, to prevent and restrain Defendants from violating Section 7 of the Clayton Act, 15 U.S.C. 18. 4. The defendants are engaged in interstate commerce and in activities substantially affecting interstate commerce. Signature and Hawker Beechcraft provide FBO services to aircraft landing throughout the United States. This Court has subject matter jurisdiction over this action and jurisdiction over the parties pursuant to 15 U.S.C. 22 and 25, and 28 U.S.C. 1331, 1337(a), and 1345. 5. Venue is proper in this district as Signature and Hawker Beechcraft have consented to venue and personal jurisdiction in this judicial district. III. Defendants and the Proposed Transaction 6. Signature is a wholly owned subsidiary of BBA Aviation PLC, a supplier of aviation machinery, support, and repair. Signature is a Delaware corporation with its principal place of business in Orlando, Florida. Signature owns and operates more than sixty FBO facilities in the United States, including its FBO operation at IND. 7. Hawker Beechcraft is a Kansas corporation with its principal place of business in Wichita, Kansas. Hawker Beechcraft owns and operates seven FBO facilities in the United States, including its FBO operation at the IND Airport. 8. On February 21, 2008, Signature and Hawker Beechcraft executed a Sale of Line Service Business Asset Purchase Agreement under which Signature will acquire all of Hawker Beechcraft's FBO assets for approximately $128.5 million. IV. Trade and Commerce The Relevant Market 9. FBO services include the sale of jet aviation fuel (“Jet A fuel”) and aviation gasoline (“avgas”), as well as related support services, to general aviation customers. FBOs usually do not charge separately for services such as conference rooms, pilot lounges, flight planning, and transportation. Instead, they recover the cost of these ancillary services in the price that they charge for fuel. FBOs charge separately for hangar and office rentals, aircraft storage, tie-down and ground services, deicing, and catering. 10. The largest source of revenue for an FBO is fuel sales. FBOs sell Jet A fuel for jet aircraft, turboprops and helicopters, and avgas for smaller, piston-operated planes. At IND, Signature and Hawker Beechcraft sold approximately $17 million of fuel in 2007, and obtained additional revenues of approximately $3 million for other FBO-related services. 11. General aviation customers cannot obtain fuel, hangar, ramp and related services at IND except through the FBOs authorized to sell such products and services by the local airport authority, leaving general aviation customers landing at IND no alternatives to the Signature and Hawker Beechcraft FBOs for these services. Obtaining FBO services at another airport would not provide an economically practical alternative for general aviation customers who currently use IND. A small but significant post-acquisition increase in the prices for fuel, hangar space, and other FBO services would not cause general aviation customers to switch to other airports in sufficient quantities to make such a price increase unprofitable. 12. Thus, the provision of FBO services to general aviation customers is a relevant product market and IND is a relevant geographic market (i.e., a line of commerce and a section of the country) under Section 7 of the Clayton Act, 15 U.S.C. 18. Anticompetitive Effects 13. The market for FBO services at IND is highly concentrated, with only two providers—Signature and Hawker Beechcraft. If Signature acquires the Hawker Beechcraft FBO facility, it will have a monopoly in the market for FBO services at IND. Currently, based on fuel sales, Signature has 46 percent of the IND FBO market, and Hawker Beechcraft has 54 percent. 14. Competition between Signature's and Hawker Beechcraft's FBO facilities currently limits the ability of each to raise prices for FBO services. The proposed acquisition would eliminate the competitive constraint each imposes upon the other. This would to lead to a monopoly, resulting in higher prices for FBO services, as well as lower quality of service, at IND in violation of Section 7 of the Clayton Act. 15. Successful entry into the provision of FBO services at IND would not be timely, likely, or sufficient to deter the anticompetitive effects resulting from this transaction. Timely entry sufficient to replace the market impact of Hawker Beechcraft would be difficult for several reasons. The entrant would need to get the approval of the airport authority, obtain permits, and construct facilities, all of which require extensive lead time to complete. Successful entry would be unlikely to occur in response to a small but significant and non-transitory post-merger price increase. V. Violation Alleged 16. The United States hereby incorporates paragraphs 1 through 15. 17. Unless restrained, Signature's proposed acquisition of Hawker Beechcraft's FBO facility at IND is likely to tend to create a monopoly in the market for FBO services at IND in violation of Section 7 of the Clayton Act, 15 U.S.C. 18, in the following ways: a. Actual and potential competition between Signature and Hawker Beechcraft in the market for FBO services at IND will be eliminated; b. Competition in the provision of FBO services at IND will be eliminated; and c. Prices for FBO services to general aviation customers at IND will likely increase and quality of service will likely decrease. VI. Request for Relief 18. The United States requests that: a. Signature's proposed acquisition of Hawker Beechcraft's FBO facility at IND be adjudged and decreed to be unlawful and in violation of Section 7 of the Clayton Act, 15 U.S.C. 18; b. Defendants and all persons acting on their behalf be preliminarily and permanently enjoined and restrained from consummating the proposed transaction or from entering into or carrying out any contract, agreement, plan, or understanding, the effect of which would be to combine Signature's and Hawker Beechcraft's FBO operations at IND; c. The United States be awarded its costs for this action; and d. the United States receive such other and further relief as the Court deems just and proper. Respectfully submitted, /s/ James J. O'Connell, Jr. James J. O'Connell, Jr. *Acting Assistant Attorney General, DC Bar #464109* /s/ Patricia A. Brink Patricia A. Brink *Deputy Director, Office of Operations* /s/ Donna N. Kooperstein Donna N. Kooperstein *Chief, Transportation, Energy & Agriculture Section* /s/ William H. Stallings William H. Stallings *Assistant Chief, Transportation, Energy & Agriculture Section* /s/ Angela L. Hughes Angela L. Hughes *DC Bar #303420* Michelle Livingston *DC Bar #461268* *Trial Attorneys,* U.S. Department of Justice, Transportation, Energy & Antitrust Division, Transportation, Energy & Agriculture Section, 450 Fifth Street, NW, Room 4100, Washington, DC 20530, Telephone:
(202)307-6410, Facsimile:
(202)307-2784. Dated: July 3, 2008. United States District Court for the District Of Columbia United States of America, Plaintiff v. Signature Flight Support Corporation and Hawker Beechcraft Services, Inc., Defendants Civil Action No.: I :08-cv-O1164. Description: Antitrust. Judge: Roberts, Richard W. Date Stamp: 7/3/08. Proposed Final Judgment *Whereas,* plaintiff, the United States of America (“United States”), filed its complaint on July ___, 2008, the United States and defendants, Signature Flight Support Corporation (“Signature”) and Hawker Beechcraft Services, Inc. (“Hawker Beechcraft”), by their attorneys, have consented to the entry of this Final Judgment without trial or adjudication of any issue of fact or law, and without this Final Judgment constituting any evidence against or admission by any party regarding any issue of law or fact; *And whereas,* defendants agree to be bound by the provisions of this Final Judgment pending its approval by the Court; *And whereas,* the essence of this Final Judgment is prompt and certain divestiture of certain assets by the defendants to assure that competition is not substantially lessened; *And whereas,* the United States requires defendants to make certain divestitures for the purpose of remedying the loss of competition alleged in the Complaint; *And whereas,* defendants have represented to the United States that the divestitures required below can and will be made, and that defendants will later raise no claim of hardship or difficulty as grounds for asking the Court to modify any of the divestiture provisions contained below; *Now, therefore,* before any testimony is taken, without trial or adjudication of any issue of fact or law, and upon consent of the parties, it is hereby *ordered, adjudged, and decreed:* I. Jurisdiction This Court has jurisdiction over the subject matter of and each of the parties to this action. The Complaint states a claim upon which relief may be granted against the defendants under Section 7 of the Clayton Act, as amended (15 U.S.C. 18). II. Definitions As used in this Final Judgment: A. “Acquirer” means the entity to whom defendants divest the Divestiture Assets. B. “Signature” means defendant Signature Flight Support Corporation, a Delaware corporation with its headquarters in Orlando, Florida, its successors and assigns, and its parents, subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees. C. “Hawker Beechcraft” means defendant Hawker Beechcraft Services, Inc., a Kansas corporation headquartered in Wichita, Kansas, its successors and assigns, and its parents, subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees. D. “IND” means Indianapolis International Airport, located in the Indianapolis, Indiana metropolitan area. E. “IND FBO Services” means any or all services related to providing fixed base operator services to general aviation customers at IND, including, but not limited to, selling fuel, leasing hangar, ramp, and office space, providing flight support services, providing access to terminal facilities, or arranging for ancillary services such as rental cars or hotels. F. “FBO Facility” means any and all tangible and intangible assets that comprise the business of providing IND FBO Services, including, but not limited to, all personal property, inventory, office furniture, materials, supplies, terminal space, hangars, ramps, general aviation fuel tank farms for jet aviation fuel and aviation gas, and related fueling equipment, and other tangible property and all assets used in connection with the business of providing IND FBO Services; all licenses, permits, registrations, and authorizations issued by any governmental organization relating to the business of providing IND FBO Services subject to licensor's approval or consent; all contracts, teaming arrangements, agreements, leases, commitments, certifications, and understandings relating to the business of providing IND FBO Services, including supply agreements; all customer lists, contracts, accounts, and credit records; all other records relating to the business of providing IND FBO Services, all intangible assets used in the development, production, servicing, and sale of IND FBO Services, including, but not limited to, all licenses and sublicenses, technical information, computer software and related documentation, know-how, drawings, blueprints, designs, design protocols, specifications for materials, specifications for parts and devices, and safety procedures for the handling of materials and substances. G. “Divestiture Assets” means either of the following: 1. All rights, titles and interests, including all fee, leasehold and real property rights, in Hawker Beechcraft's existing and future FBO Facilities at IND that Signature acquires in the Proposed Transaction; or 2. All rights, titles and interests, including all fee, leasehold and real property rights, that Signature possesses in its FBO Facility at IND. H. “Proposed Transaction” means Signature's proposed acquisition of certain assets from Hawker Beechcraft pursuant to the Sale of Line Service Business By Hawker Beechcraft Services, Inc. to Signature Flight Support Corporation Asset Purchase Agreement Dated February 21, 2008 that is the subject of the Hart-Scott-Rodino Premerger Notification Filing 2008-0879. III. Applicability A. This Final Judgment applies to Signature and Hawker Beechcraft, as defined above, and all other persons in active concert or participation with any of them who receive actual notice of this Final Judgment by personal service or otherwise. B. If, prior to complying with Section IV or V of this Final Judgment, Defendants sell or otherwise dispose of all or substantially all of their assets or of lesser business units that include the Divestiture Assets, they shall require the purchaser to be bound by the provisions of this Final Judgment. Defendants need not obtain such an agreement from the acquirer of the assets divested pursuant to this Final Judgment. IV. Divestitures A. Defendants are ordered and directed, within ninety
(90)calendar days after the filing of the Complaint in this matter or after five
(5)calendar days after notice of entry of this Final Judgment by the Court, whichever is later, to divest the Divestiture Assets in a manner consistent with this Final Judgment to an Acquirer acceptable to the United States, in its sole discretion. The United States, in its sole discretion, may agree to one or more extensions of this time period, not to exceed sixty
(60)calendar days in total, and shall notify the Court in such circumstances. If pending state or local regulatory approval is the only remaining matter precluding a divestiture after the 90-day period, the United States will not withhold its agreement to an extension of the period. Defendants agree to use their best efforts to complete the required divestiture as expeditiously as possible. B. In accomplishing the divestiture ordered by this Final Judgment, defendants promptly shall make known, by usual and customary means, the availability of the Divestiture Assets. Defendants shall inform any person making inquiry regarding a possible purchase of Divestiture Assets that they are being divested pursuant to this Final Judgment and provide that person with a copy of this Final Judgment. Defendants shall offer to furnish to all prospective Acquirers, subject to customary confidentiality assurances, all information and documents regarding the Divestiture Assets customarily provided in a due diligence process, except such information or documents subject to the attorney-client privilege or work-product doctrine. The documents provided to prospective Acquirers shall include
(1)The Land and Special Facilities Lease Agreement By and Between Hawker Beechcraft Services, Inc. and The Indianapolis Airport Authority dated February 2008;
(2)the Sublease between Hawker Beechcraft Services, Inc. and Signature Flight Support Corporation and the Addendum thereto; and
(3)the agreement entitled Sale of Line Service Business By Hawker Beechcraft Services, Inc. to Signature Flight Support Corporation Asset Purchase Agreement Dated February 21, 2008 and all attachments and exhibits relating to IND. Defendants shall make available such information to the United States at the same time that such information is made available to any other person. C. Defendants shall provide the Acquirer and the United States information relating to the personnel involved in the operation, management, and sale of the Divestiture Assets to enable the Acquirer to make offers of employment. Defendants will not interfere with any negotiations by the Acquirer to employ any defendant employee whose primary responsibility is the operation, management, and sale of the Divestiture Assets. D. Defendants shall permit prospective Acquirers of the Divestiture Assets to have reasonable access to personnel and to make such inspection of the physical facilities of the Divestiture Assets and to examine the blueprints and other plans relating to any physical facilities of the Divestiture Assets under construction or proposed for construction; access to any and all environmental, zoning, and other permit documents and information; and access to any and all financial, operational, or other documents and information customarily provided as part of a due diligence process. E. Defendants shall warrant to the Acquirer of the Divestiture Assets that each asset will be operational on the date of sale. F. Defendants shall not take any action that will impede in any way the permitting, operation, or divestiture of the Divestiture Assets. G. Defendants shall warrant to the Acquirer of the Divestiture Assets that there are no material defects in the environmental, zoning, or other permits pertaining to the operation of each asset, and that following the sale of the Divestiture Assets, defendants will not undertake, directly or indirectly, any challenges to the environmental, zoning, or other permits relating to the operation of the Divestiture Assets. H. Unless the United States otherwise consents in writing, the divestiture pursuant to Section IV, or by a trustee appointed pursuant to Section V, of this Final Judgment, shall be accomplished in such a way as to satisfy the United States, in its sole discretion, that the Divestiture Assets can and will be used by the Acquirer as part of a viable, ongoing business engaged in providing IND FBO Services. The divestiture, whether pursuant to Section IV or Section V of this Final Judgment:
(I)shall be made to an Acquirer that in the United States's sole judgment has the intent and capability (including the necessary managerial, operational, technical, and financial capability) of competing effectively in the provision of IND FBO Services; and
(2)shall be accomplished so as to satisfy the United States, in its sole discretion, that none of the terms of any agreement between an Acquirer and defendants gives defendants the ability unreasonably to raise the Acquirer's costs, to lower the Acquirer's efficiency, or otherwise to interfere in the ability of the Acquirer to compete effectively. V. Appointment of Trustee A. If defendants have not divested the Divestiture Assets within the time period specified in Section IV(A) of this Final Judgment, defendants shall notify the United States of that fact in writing. Upon application of the United States, the Court shall appoint a trustee selected by the United States and approved by the Court to effect the divestiture of the Divestiture Assets. B. After the appointment of a trustee becomes effective, only that trustee shall have the right to sell the Divestiture Assets. The trustee shall have the power and authority to accomplish the divestiture to an Acquirer acceptable to the United States at such price and on such terms as are then obtainable upon reasonable effort by the trustee, subject to the provisions of Sections IV, V, and VI of this Final Judgment, and shall have such other powers as this Court deems appropriate. Subject to Section V(D) of this Final Judgment, the trustee may hire at the cost and expense of defendants any investment bankers, attorneys, or other agents, who shall be solely accountable to the trustee, reasonably necessary in the judgment of the trustee to assist in the divestiture. C. Defendants shall not object to a sale by the trustee on any ground other than the trustee's malfeasance. Any such objections by defendants must be conveyed in writing to the United States and the trustee within ten
(10)calendar days after the trustee has provided the notice required under Section VI. D. The trustee shall serve at the cost and expense of defendants, on such terms and conditions as the plaintiff approves, and shall account for all monies derived from the sale of the assets sold by the trustee and all costs and expenses so incurred. After approval by the Court of the trustee's accounting, including fees for its services and those of any professionals and agents retained by the trustee, all remaining money shall be paid to defendants and the trust shall then be terminated. The compensation of the trustee and any professionals and agents retained by the trustee shall be reasonable in light of the value of the Divestiture Assets and based on a fee arrangement providing the trustee with an incentive based on the price and terms of the divestiture and the speed with which it is accomplished, but timeliness is paramount. E. Defendants shall use their best efforts to assist the trustee in accomplishing the required divestiture. The trustee and any consultants, accountants, attorneys, and other persons retained by the trustee shall have full and complete access to the personnel, books, records, and facilities of the Divestiture Assets, including the blueprints and other plans relating to any physical facilities of the Divestiture Assets under construction or proposed for construction, and defendants shall develop financial or other information relevant to the Divestiture Assets as the trustee may reasonably request, subject to reasonable protection for trade secrets or other confidential research, development, or commercial information. Defendants shall take no action to interfere with or to impede the trustee's accomplishment of the divestiture. F. After its appointment, the trustee shall file monthly reports with the United States and the Court setting forth that trustee's efforts to accomplish the divestiture ordered under this Final Judgment. To the extent such reports contain information that the trustee deems confidential, such reports shall not be filed in the public docket of the Court. Such reports shall include the name, address and telephone number of each person who, during the preceding month, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Divestiture Assets, and shall describe in detail each contact with any such person. The trustee shall maintain full records of all efforts made to divest the Divestiture Assets. G. If the trustee has not accomplished the divestiture ordered under this Final Judgment within six
(6)months after its appointment, the trustee shall file promptly with the Court a report setting forth:
(1)The trustee's efforts to accomplish the required divestiture,
(2)the reasons, in the trustee's judgment, why the required divestiture has not been accomplished, and
(3)the trustee's recommendations. To the extent such reports contain information that the trustee deems confidential, such reports shall not be filed in the public docket of the Court. The trustee shall at the same time furnish such report to the United States, who shall have the right to make additional recommendations consistent with the purpose of the trust. The Court shall enter such orders as it shall deem appropriate to carry out the purpose of the Final Judgment, which may, if necessary, include extending the trust and the term of the trustee's appointment for a period requested by the United States. VI. Notice of Proposed Divestiture A. Within two
(2)business days following execution of a definitive divestiture agreement, defendants or the trustee, whichever is then responsible for effecting the divestiture required herein, shall notify the United States of any proposed divestiture required by Section IV or V of this Final Judgment. If a trustee is responsible, the trustee shall similarly notify defendants. The notice shall set forth the details of the proposed divestiture and list the name, address, and telephone number of each person not previously identified who offered. expressed an interest in or a desire to acquire any ownership interest in the Divestiture Assets together with full details of same. B. Within fifteen
(15)calendar days of receipt by the United States of such notice, the United States may request from defendants, the proposed Acquirer, any other third party, or the trustee if applicable, additional information concerning the proposed divestiture, the proposed Acquirer, and any other potential Acquirer. Defendants and the trustee shall furnish any additional information requested within fifteen
(15)calendar days of the receipt of the request, unless the parties shall otherwise agree. C. Within thirty
(30)calendar days after receipt of the notice or within twenty
(20)calendar days after the United States has been provided the additional information requested from defendants, the proposed Acquirer, any third party, and the trustee, whichever is later, the United States shall provide written notice to defendants and the trustee, if there is one, stating whether or not it objects to the proposed divestiture. If the United States provides written notice that it does not object, the divestiture may be consummated, subject only to defendant's limited right to object to the sales under Section V(C) of this Final Judgment. Absent written notice that the United States does not object to the proposed Acquirer or upon objection by the United States, the divestiture proposed under Section IV or V shall not be consummated. Upon objection by defendants under Section V(C), a divestiture proposed under Section V shall not be consummated unless approved by the Court. VII. Financing Defendants shall not finance all or any part of any purchase made pursuant to Section IV or V of this Final Judgment. VIII. Hold Separate Until the divestiture required by this Final Judgment has been accomplished, defendants shall take all steps necessary to comply with the Hold Separate Stipulation and Order entered by this Court. Defendants shall take no action that would jeopardize the divestiture ordered by this Court. IX. Affidavits A. Within twenty
(20)calendar days of the filing of the Complaint in this matter and every thirty
(30)calendar days thereafter until the divestiture has been completed under Section IV or V, defendants shall deliver to the United States an affidavit as to the fact and manner of compliance with Section IV or V of this Final Judgment. Each such affidavit shall include the name, address, and telephone number of each person who, during the preceding thirty
(30)days, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Divestiture Assets, and shall describe in detail each contact with any such person during that period. Each such affidavit shall also include a description of the efforts defendants have taken to solicit buyers for the Divestiture Assets and to provide required information to prospective purchasers, including the limitations, if any, on such information. Assuming the information set forth in the affidavit is true and complete, any objection by the United States to information provided by the defendants, including limitation on information, shall be made within fourteen
(14)days of receipt of such affidavit. B. Within twenty
(20)calendar days of the filing of the Complaint in this matter, defendants shall deliver to the United States an affidavit that describes in reasonable detail all actions defendants have taken and all steps defendants have implemented on an on going basis to comply with Section VIII of this Final Judgment. Defendants shall deliver to the United States an affidavit describing any changes to the efforts and actions outlined in defendants' earlier affidavits filed pursuant to this section within fifteen
(15)calendar days after the change is implemented. C. Defendants shall keep all records of all efforts made to preserve and divest the Divestiture Assets until one year after the divestiture has been completed. X. Compliance Inspection A. For the purposes of determining or securing compliance with this Final Judgment, or of determining whether the Final Judgment should be modified or vacated, and subject to any legally recognized privilege, from time to time authorized representatives of the United States Department of Justice Antitrust Division (“DOJ”), including consultants and other persons retained by the United States, shall upon written request of an authorized representative of the Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to defendants be permitted: 1. Access during defendants' office hours to inspect and copy, or at the option of the United States, to require defendants to provide hard copy or electronic copies of, all books, ledgers, accounts, records, data, and documents in the possession, custody, or control of defendants relating to any matters contained in this Final Judgment; and 2. To interview, either informally or on the record, defendants' officers, employees, or agents, who may have their individual counsel present, regarding such matters. The interviews shall be subject to the reasonable convenience of the interviewee and without restraint or interference by defendants. B. Upon the written request of an authorized representative of the Assistant Attorney General in charge of the Antitrust Division, defendants shall submit written reports or response to written interrogatories, under oath if requested, relating to any of the matters contained in this Final Judgment as may be requested. C. No information or documents obtained by the means provided in this Section shall be divulged by the United States to any person other than an authorized representative of the executive branch of the United States, except in the course of legal proceedings to which the United States is a party (including grand jury proceedings), or for the purpose of securing compliance with this Final Judgment, or as otherwise required by law. D. If at the time information or documents are furnished by defendants to the United States, defendants represent and identify in writing the material in any such information or documents for which a claim of protection may be asserted under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure, and defendants mark each pertinent page of such material, “Subject to claim of protection under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure,” then the United States shall give defendants ten
(10)calendar days prior to divulging such material in any legal proceeding (other than a grand jury proceeding). XI. No Reacquisition Defendant Signature may not reacquire any part of the Divestiture Assets during the term of this Final Judgment. XII. Retention of Jurisdiction This Court retains jurisdiction to enable any party to this Final Judgment to apply to this Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify any of its provisions, to enforce compliance, and to punish violations of its provisions. XIII. Expiration of Final Judgment Unless this Court grants an extension, this Final Judgment shall expire ten
(10)years from the date of its entry. XIV. Public Interest Determination Entry of this Final Judgment is in the public interest. The parties have complied with the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. 16, including making copies available to the public of this Final Judgment, the Competitive Impact Statement, and any comments thereon and the United States's responses to comments. Based upon the record before the Court, which includes the Competitive Impact Statement and any comments and response to comments filed with the Court, entry of this Final Judgment is in the public interest. Dated: Court approval subject to procedures of Antitrust Procedures and Penalties Act, 15 U.S.C. 16. *United States District Judge.* United States District Court for the District of Columbia United States of America, Plaintiff, v. Signature Flight Support Corporation and HAWKER BEECHCRAFT SERVICES, INC., Defendants. Civil Action No.: 1:08-cv-O1164. Description: Antitrust. Judge: Roberts, Richard W. Date Stamped: 7/3/08. Competitive Impact Statement Plaintiff United States of America (“United States”), pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act (“APPA” or “Tunney Act”), 15 U.S.C. 16(b)-(h), files this Competitive Impact Statement relating to the proposed Final Judgment submitted for entry in this civil antitrust proceeding. I. Nature and Purpose of the Proceeding Defendant Signature Flight Support Corporation (“Signature”) and Defendant Hawker Beechcraft Services, Inc. (“Hawker Beechcraft”) entered into an agreement, dated February 21, 2008, pursuant to which Signature would acquire the fixed base operations
(FBO)of Hawker Beechcraft. The United States filed a civil antitrust complaint on July _, 2008, seeking to enjoin the proposed acquisition. The Complaint alleges that the effect of this acquisition would be to combine the only providers of FBO services at Indianapolis International Airport (“IND”), creating a monopoly and violating Section 7 of the Clayton Act, 15 U.S.C. 18. At the same time the Complaint was filed, the United States also filed a Hold Separate and Preservation of Assets Stipulation and Order (“Stipulation and Order”) and a proposed Final Judgment, which are designed to eliminate the anticompetitive effects of the acquisition. Under the proposed Final Judgment, which is explained more fully below, the defendants are required to sell either the Signature or Hawker Beechcraft FBO assets at IND to a purchaser who has the capability to compete effectively in the provision of FBO services to general aviation customers at that airport. Until the divestiture of either the Signature or Hawker Beechcraft FBO assets at IND, the Stipulation and Order requires the defendants to take all steps necessary to preserve both companies' FBO assets at IND and ensure that Hawker Beechcraft's FBO business operates as an independent, ongoing, economically viable, competitive business at IND held entirely separate, distinct and apart from Signature's IND FBO business. Further, until the required divestiture is accomplished, the defendants must take all steps necessary to ensure that Hawker Beechcraft's FBO business at IND will be maintained and operated as an ongoing, economically viable and active line of business; that competition between Signature and Hawker Beechcraft in the provision of FBO services at IND is maintained during the pendency of the ordered divestiture; and that the defendants preserve and maintain their IND FBO assets. The Stipulation and Order thus ensures that competition is protected pending completion of the required divestitures and that the assets are preserved so that relief will be effective. The United States and the defendants have stipulated that the proposed Final Judgment may be entered after compliance with the APPA. Entry of the proposed Final Judgment would terminate this action, except that the Court would retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgment and to punish violations thereof. II. Description of the Events Giving Rise to the Alleged Violation A. The Defendants and the Proposed Transaction Signature is a wholly-owned subsidiary of BBA Aviation PLC, a supplier of aviation machinery, support, and repair. Signature is a Delaware corporation with its principal place of business in Orlando, Florida. Signature is the world's largest FBO operator and operates more than forty-five FBO facilities in the United States. Signature's 2007 revenues from its United States FBO operations were approximately $600 million. Hawker Beechcraft is a Kansas corporation with its principal place of business in Wichita, Kansas. Hawker Beechcraft is a manufacturer of business, special-mission, and trainer aircraft, and designs, markets and supports aviation products and services for businesses, governments, and individuals. The company also operates FBO facilities at seven airports in the United States including IND. Hawker Beechcraft's 2007 revenues from its FBO operations were approximately $73 million. By an agreement dated February 21, 2008, Signature proposes to acquire Hawker Beechcraft's FBO assets at seven airports in the United States for $128.5 million. IND is the only airport at which both companies compete in the provision of FBO services. B. The Competitive Effects of the Transaction on the FBO Services Market 1. The Relevant Market The Complaint alleges that the proposed transaction would eliminate competition in the provision of FBO services at IND in violation of Section 7 of the Clayton Act. FBOs are facilities located at airports that provide fuel and related support services to general aviation customers. General aviation customers include charter, private, and corporate aircraft operators, as distinguished from scheduled commercial airlines. Fuel sales are the largest source of FBO revenues. FBOs usually do not charge for services such as conference rooms, pilot lounges, flight planning, and transportation. Instead, they recover the cost of these services in the price that they charge for fuel. FBOs also derive income from hangar and office rentals, aircraft storage, tie-down and ground services, deicing, and catering services. General aviation customers cannot obtain fuel, hangar, ramp, and related services at IND except through an FBO authorized to sell such services by the local airport authority, leaving general aviation customers departing from or landing at IND no alternatives to Signature and Hawker Beechcraft FBOs for these services. Obtaining FBO services at other airports in the Indianapolis region would not provide an economically practical alternative for these general aviation customers. Many general aviation customers select IND over other airports in the area for the available hangar space, as well as the necessary safety features of a control tower and longer runway length and the airport's proximity to downtown Indianapolis. General aviation customers at IND would not switch to other airports in the Indianapolis region in sufficient numbers to prevent anticompetitive price increases for fuel and other FBO services at IND. 2. The Proposed Merger Would Produce Anticompetitive Effects Signature and Hawker Beechcraft are the only two competitors in the provision of FBO services at IND. Competition between them currently limits the ability of each to raise prices for FBO services. The proposed acquisition would eliminate the competitive constraint each imposes upon the other. This would lead to a monopoly at IND, resulting in higher prices for FBO services and lower quality of service in violation of Section 7 of the Clayton Act. Successful entry would not be timely, likely, or sufficient to deter the anticompetitive effects resulting from this transaction. Timely entry sufficient to replace the market impact of Hawker Beechcraft would be difficult for several reasons. The entrant would need to get the approval of the airport authority, obtain permits, and construct facilities, all of which require extensive lead time to complete. Successful entry would be unlikely to occur in response to a small but significant and non-transitory post-merger price increase. III. Explanation of the Proposed Final Judgment The divestiture requirement of the proposed Final Judgment will eliminate the anticompetitive effects of the acquisition in the market for FBO services provided to general aviation customers at IND by establishing a new, independent, and economically viable competitor. The proposed Final Judgment requires the Defendants to divest, as a viable ongoing business, either the Signature or the Hawker Beechcraft FBO assets at IND. Hawker Beechcraft currently has a long-term lease with the IND airport authority under which it has rights to use several buildings and other assets, including fuel storage facilities, to provide both FBO and non-FBO maintenance for planes manufactured by the company. Signature also operates its FBO business at IND under a long-term lease with the airport authority. Under the transaction agreement, Signature will obtain rights equivalent to Hawker Beechcraft's rights with respect to the FBO assets it uses to provide FBO services at IND. If Signature chooses to divest the Hawker Beechcraft FBO assets at IND, the acquiring company will acquire all interests and rights that Signature will acquire under its agreement with Hawker Beechcraft. This not only includes rights to use all buildings that Hawker Beechcraft currently uses to provide FBO services at IND, but also includes, when Hawker Beechcraft completes construction of a new facility at IND next year, the exclusive rights to use all the new buildings Hawker Beechcraft will build for the provision of FBO services at IND. Thus, a purchaser of either the Hawker Beechcraft Divestiture Assets or the Signature Divestiture Assets will have the same ability to compete in the IND FBO market as Hawker Beechcraft or Signature had prior to the acquisition. In antitrust cases involving acquisitions in which the United States seeks a divestiture remedy, the United States seeks to require completion of the divestiture within the shortest period of time reasonable under the circumstances. A quick divestiture has the benefits of restoring competition lost in the acquisition and reducing the possibility that the value of the assets will be diminished. Section IV(A) of the proposed Final Judgment requires the defendants to complete the divestiture within ninety
(90)calendar days after the filing of the Complaint in this matter, or five
(5)calendar days after notice of the entry of this Final Judgment by the Court, whichever is later. 1 1 The proposed Final Judgment also provides that this time period may be extended one or more times by the United States in its sole discretion for a period not to exceed sixty
(60)calendar days, and that the Court will receive notice of any such extension. The proposed Final Judgment provides that if pending state or local regulatory approval is the only remaining matter precluding a divestiture after the 90-day period, the United States will not withhold its agreement to an extension of the period. The assets must be divested so as to satisfy the United States, in its sole discretion, that the operations can compete effectively in the relevant market. Defendants must take all reasonable steps necessary to accomplish the divestiture quickly and shall cooperate with prospective purchasers. In the event that the Defendants do not accomplish the divestiture within the period prescribed in the proposed Final Judgment, the Final Judgment provides that the Court will appoint a trustee selected by the United States to effect the divestiture of either the Signature or Hawker Beechcraft Divestiture Assets. If a trustee is appointed, the proposed Final Judgment provides that Defendants will pay all costs and expenses of the trustee. The trustee's commission will be structured so as to provide an incentive for the trustee based on the price obtained and the speed with which the divestiture is accomplished. After his or her appointment becomes effective, the trustee will file monthly reports with the Court and the United States setting forth his or her efforts to accomplish the divestiture. At the end of six
(6)months, if the divestiture has not been accomplished, the trustee and the United States will make recommendations to the Court, which shall enter such orders as appropriate, in order to carry out the purpose of the trust, including extending the trust or the term of the trustee's appointment. The divestiture provisions of the proposed Final Judgment will eliminate the anticompetitive effects of the acquisition in the provision of FBO services at IND. IV. Remedies Available to Potential Private Litigants Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in federal court to recover three times the damages the person has suffered, as well as costs and reasonable attorneys' fees. Entry of the proposed Final Judgment will neither impair nor assist the bringing of any private antitrust damage action. Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 16(a), the proposed Final Judgment has no prima facie effect in any subsequent private lawsuit that may be brought against Defendants. V. Procedures Available for Modification of the Proposed Final Judgment The United States and the defendants have stipulated that the proposed Final Judgment may be entered by the Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry upon the Court's determination that the proposed Final Judgment is in the public interest. The APPA provides a period of at least sixty
(60)days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed Final Judgment. Any person who wishes to comment should do so within sixty
(60)days of the date of publication of this Competitive Impact Statement in the **Federal Register** , or the last date of publication in a newspaper of the summary of this Competitive Impact Statement, whichever is later. All comments received during this period will be considered by the United States Department of Justice, which remains free to withdraw its consent to the proposed Final Judgment at any time prior to the Court's entry of judgment. The comments and the response of the United States will be filed with the Court and published in the **Federal Register** . Written comments should be submitted to: Donna N. Kooperstein, Chief, Transportation, Energy & Agriculture Section, Antitrust Division, 450 5th Street, NW., Suite 4100, Washington, DC 20530. VI. Alternatives to the Proposed Final Judgment The United States considered, as an alternative to the proposed Final Judgment, a full trial on the merits against the defendants. The United States could have continued the litigation and sought preliminary and permanent injunctions against Signature's acquisition of Hawker Beechcraft's FBO assets. The United States is satisfied, however, that the divestiture of assets described in the proposed Final Judgment will preserve competition for the provision of FBO services at IND. Thus, the proposed Final Judgment would achieve all or substantially all of the relief the United States could have obtained through litigation, but avoids the time, expense, and uncertainty of a full trial on the merits of the Complaint. VII. Standard of Review Under the APPA for the Proposed Final Judgment The Clayton Act, as amended by the APPA, requires that proposed consent judgments in antitrust cases brought by the United States be subject to a sixty-day comment period, after which the court shall determine whether entry of the proposed Final Judgment “is in the public interest.” 15 U.S.C. 16(e)(1). In making that determination, the court, in accordance with the statute as amended in 2004, is required to consider:
(A)The competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest; and
(B)The impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial. 15 U.S.C. 16(e)(l)(A)&(B). In considering these statutory factors, the court's inquiry is necessarily a limited one as the government is entitled to “broad discretion to settle with the defendant within the reaches of the public interest.” *United States* v. *Microsoft Corp.,* 56 F.3d 1448, 1461 (D.C. Cir. 1995); *see generally United States* v. *SBC Commc'ns, Inc.,* 489 F.Supp. 2d 1 (D.D.C. 2007) (assessing public interest standard under the Tunney Act). 2 2 The 2004 amendments substituted “shall” for “may” in directing relevant factors for court to consider and amended the list of factors to focus on competitive considerations and to address potentially ambiguous judgment terms. *Compare* 15 U.S.C. 16(e)(2004), with 15 U.S.C. 16(e)(1) (2006); *see also SBC Commc'ns,* 489 F. Supp. 2d at 11 (concluding that the 2004 amendments “effected minimal changes” to Tunney Act review). As the United States Court of Appeals for the District of Columbia Circuit has held, under the APPA a court considers, among other things, the relationship between the remedy secured and the specific allegations set forth in the government's complaint, whether the decree is sufficiently clear, whether enforcement mechanisms are sufficient, and whether the decree may positively harm third parties. *See Microsoft,* 56 F.3d at 1458-62. With respect to the adequacy of the relief secured by the decree, a court may not “engage in an unrestricted evaluation of what relief would best serve the public.” *United States* v. *BNS, Inc.,* 858 F.2d 456, 462 (9th Cir. 1988) (citing *United States* v. *Bechtel Corp.,* 648 F.2d 660, 666 (9th Cir. 1981)); *see also Microsoft,* 56 F.3d at 1460-62; *United States* v. *Alcoa, Inc.,* 152 F. Supp. 2d 37, 40 (D.D.C. 2001). Courts have held that: [t]he balancing of competing social and political interests affected by a proposed antitrust consent decree must be left, in the first instance, to the discretion of the Attorney General. The court's role in protecting the public interest is one of insuring that the government has not breached its duty to the public in consenting to the decree. The court is required to determine not whether a particular decree is the one that will best serve society, but whether the settlement is “ *within the reaches of the public interest* .” More elaborate requirements might undermine the effectiveness of antitrust enforcement by consent decree. Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted). 3 In determining whether a proposed settlement is in the public interest, a district court “must accord deference to the government's predictions about the efficacy of its remedies, and may not require that the remedies perfectly match the alleged violations.” *SBC Commc'ns,* 489 F. Supp. 2d at 17; *see also Microsoft,* 56 F.3d at 1461 (noting the need for courts to be “deferential to the government's predictions as to the effect of the proposed remedies”); *United States* v. *Archer-Daniels-Midland Co.,* 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (noting that the court should grant due respect to the United States' prediction as to the effect of proposed remedies, its perception of the market structure, and its views of the nature of the case). 3 *Cf. BNS,* 858 F.2d at 464 (holding that the court's “ultimate authority under the [APPA] is limited to approving or disapproving the consent decree”); *United States* v. *Gillette Co.,* 406 F. Supp. 713, 716 (D. Mass. 1975) (noting that, in this way, the court is constrained to “look at the overall picture not hypercritically, nor with a microscope, but with an artist's reducing glass”). *See generally Microsoft,* 56 F.3d at 1461 (discussing whether “the remedies [obtained in the decree are] so inconsonant with the allegations charged as to fall outside of the ‘reaches of the public interest’ ”). Courts have greater flexibility in approving proposed consent decrees than in crafting their own decrees following a finding of liability in a litigated matter. “[A] proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability or is ‘within the reaches of public interest.’ ” *United States* v. *Am. Tel. & Tel. Co.,* 552 F. Supp. 131, 151 (D.D.C. 1982) (citations omitted) (quoting *United States* v. *Gillette Co.,* 406 F. Supp. 713, 716 (D. Mass. 1975)), *aff'd sub nom. Maryland* v. *United States,* 460 U.S. 1001 (1983); see also *United States* v. *Alcan Aluminum Ltd.,* 605 F. Supp. 619, 622 (W.D. Ky. 1985) (approving the consent decree even though the court would have imposed a greater remedy). To meet this standard, the United States “need only provide a factual basis for concluding that the settlements are reasonably adequate remedies for the alleged harms.” *SBC Commc'ns,* 489 F. Supp. 2d at 17. Moreover, the court's role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its Complaint, and does not authorize the court to “construct [its] own hypothetical case and then evaluate the decree against that case.” *Microsoft,* 56 F.3d at 1459. Because the “court's authority to review the decree depends entirely on the government's exercising its prosecutorial discretion by bringing a case in the first place,” it follows that “the court is only authorized to review the decree itself,” and not to “effectively redraft the complaint” to inquire into other matters that the United States did not pursue. *Id.* at 1459-60. As this Court recently confirmed in *SBC Communications,* courts “cannot look beyond the complaint in making the public interest determination unless the complaint is drafted so narrowly as to make a mockery of judicial power.” *SBC Commc'ns,* 489 F. Supp. 2d at 15. In its 2004 amendments, Congress made clear its intent to preserve the practical benefits of utilizing consent decrees in antitrust enforcement, adding the unambiguous instruction that “[n]othing in this section shall be construed to require the court to conduct an evidentiary hearing or to require the court to permit anyone to intervene.” 15 U.S.C. 16(e)(2). The language wrote into the statute what Congress intended when it enacted the Tunney Act in 1974, as Senator Tunney explained: “[t]he court is nowhere compelled to go to trial or to engage in extended proceedings which might have the effect of vitiating the benefits of prompt and less costly settlement through the consent decree process.” 119 Cong. Rec. 24,598
(1973)(statement of Senator Tunney). Rather, the procedure for the public interest determination is left to the discretion of the court, with the recognition that the court's “scope of review remains sharply proscribed by precedent and the nature of Tunney Act proceedings.” *SBC Commc'ns* , 489 F. Supp. 2d at 11. 4 4 See *United States* v. *Enova Corp.* , 107 F. Supp. 2d 10, 17 (D.D.C. 2000) (noting that the “Tunney Act expressly allows the court to make its public interest determination on the basis of the competitive impact statement and response to comments alone”); *United States* v. *Mid-Am. Dairymen, Inc.* , 1977-1 Trade Cas.
(CCH)61,508, at 71,980 (W.D. Mo. 1977) (“Absent a showing of corrupt failure of the government to discharge its duty, the Court, in making its public interest finding, should * * * carefully, consider the explanations of the government in the competitive impact statement and its responses to comments in order to determine whether those explanations are reasonable under the circumstances.”); S. Rep. No. 93-298, 93d Cong., 1st Sess., at 6
(1973)(“Where the public interest can be meaningfully evaluated simply on the basis of briefs and oral arguments, that is the approach that should be utilized.”). VIII. Determinative Documents There are no determinative materials or documents within the meaning of the APPA that were considered by the United States in formulating the proposed Final Judgment. Dated: July 3, 2008. Respectfully submitted, ____/s/____ Angela L. Hughes (DC Bar #30342 10), Michelle Livingston (DC Bar #461268), *Trial Attorneys* U.S. Department of Justice Antitrust Division Transportation, Energy, and Agriculture, 450 5th Street, NW., Suite 4100 Washington, DC 20530. [FR Doc. E8-16254 Filed 7-16-08; 8:45 am] BILLING CODE 4410-11-M DEPARTMENT OF LABOR Information Collection Request for Extension (Without Changes) of the Prisoner Reentry Initiative Reporting System; Comment Request AGENCY: Employment and Training Administration, Labor. ACTION: Notice. SUMMARY: The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden conducts a preclearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employment and Training Administration is soliciting comments concerning the extension of the currently approved reporting and recordkeeping system to support the Prisoner Reentry Initiative (PRI). A copy of the proposed information collection request
(ICR)can be obtained by contacting the office listed below in the addressee section of this notice or by accessing: *http://www.doleta.gov/OMBCN/OMBControlNumber.cfm* . DATES: Written comments must be submitted to the office listed in the addressee's section below on or before September 15, 2008. ADDRESSES: Submit written comments to the Employment and Training Administration, 200 Constitution Avenue, NW., Washington, DC 20210, Attention: Gregg Weltz, Telephone number: 202-693-3030 (this is not a toll-free number). Fax: 202-693-3861. E-mail: *weltz.greg@dol.gov.* SUPPLEMENTARY INFORMATION: I. Background In applying for the Prisoner Reentry Initiative grants, Faith-based and Community Organization grantees agree to submit participant data and quarterly aggregate reports for individuals who receive services through PRI programs and their partnerships with One-Stop Centers, local Workforce Investment Boards, employment providers, the criminal justice system, and local housing authorities. The reports include aggregate data on demographic characteristics, types of services received, placements, outcomes, and follow-up status. Specifically, they summarize data on participants who received employment and placement services, housing assistance, mentoring, and other services essential to reintegrating ex-offenders through PRI programs. This requests an extension of the currently approved information collection to meet the reporting and recordkeeping requirements of the Prisoner Reentry Initiative through an ETA-provided, web-based Management Information System (MIS). In addition to reporting participant information and performance-related outcomes, PRI grantees demonstrate their ability to establish effective partnerships with the criminal justice system, local Workforce Investment Boards, local housing authorities, and other partner agencies. They also document the cost effectiveness of their projects. The MIS reporting and recordkeeping system incorporates each of these aspects necessary for program evaluation. Five outcome measures are used to measure success in the PRI grants: Entered employment rate, employment retention rate, attainment of a degree or certificate, average six-month postprogram earnings, and recidivism rate. Several of these conform to the common performance measures implemented across federal job training programs as of July 1, 2005. By standardizing the reporting and performance requirements of different programs, the common measures give ETA the ability to compare across programs the core goals of the workforce system—how many people entered jobs; how many stayed employed; and how many successfully completed an educational program. Although the common measures are an integral part of ETA's performance accountability system, these measures provide only part of the information necessary to effectively oversee the workforce investment system. ETA also collects data from PRI grantees on program activities, participants, and outcomes that are necessary for program management and for conveying full and accurate information on the performance of PRI programs to policymakers and stakeholders. This information collection maintains a reporting and record-keeping system for a minimum level of information collection that is necessary to comply with Equal Opportunity requirements, to hold PRI grantees appropriately accountable for the Federal funds they receive, including common performance measures, and to allow the Department to fulfill its oversight and management responsibilities. II. Review Focus The Department of Labor is particularly interested in comments which: • Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; • Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; • Enhance the quality, utility, and clarity of the information to be collected; and • Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses. III. Current Actions *Type of Review:* Extension without revisions of a currently approved information collection. *Agency:* Employment and Training Administration. *Title:* Prisoner Reentry Initiative
(PRI)Reporting System. *OMB Number:* 1205-0455. *Affected Public:* Faith-Based and Community Organization grantees. *Total Respondents:* 74 grantees. *Frequency:* Quarterly. Estimated Total Burden Hours Form/activity Total respondents Frequency Total annual response Average time per response (hours) Total annual burden hours Participant Data Collection 74 Continual 6,610 1.8 11,898 Quarterly narrative progress report 74 Quarterly 296 16 4,736 Quarterly performance report 74 Quarterly 296 16 4,736 Totals 74 7,202 21,370 Comments submitted in response to this comment request will be summarized in the request for Office of Management and Budget approval of the information collection request and will become a matter of public record. Dated: July 10, 2008. Gay M. Gilbert, Administrator, Office of Workforce Investment, Employment and Training Administration. [FR Doc. E8-16318 Filed 7-16-08; 8:45 am] BILLING CODE 4510-FT-P DEPARTMENT OF LABOR Office of the Secretary Submission for OMB Review: Comment Request July 11, 2008. The Department of Labor
(DOL)hereby announces the submission of the following public information collection request
(ICR)to the Office of Management and Budget
(OMB)for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35). A copy of this ICR, with applicable supporting documentation; including among other things a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the *RegInfo.gov* Web site at *http://www.reginfo.gov/public/do/PRAMain* or by contacting Darrin King on 202-693-4129 (this is not a toll-free number)/ *e-mail: king.darrin@dol.gov.* Interested parties are encouraged to send comments to the Office of Information and Regulatory Affairs, *Attn:* OMB Desk Officer for the Mine Safety and Health Administration (MSHA), Office of Management and Budget, 725 17th Street, NW., Room 10235, Washington, DC 20503, Telephone: 202-395-4816/Fax: 202-395-6974 (these are not toll-free numbers), *E-mail: OIRA_submission@omb.eop.gov* within 30 days from the date of this publication in the **Federal Register** . In order to ensure the appropriate consideration, comments should reference the applicable OMB Control Number (see below). The OMB is particularly interested in comments which: • Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; • Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; • Enhance the quality, utility, and clarity of the information to be collected; and • Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, *e.g.* , permitting electronic submission of responses. *Agency:* Mine Safety and Health Administration. *Type of Review:* Extension without change of currently approved collection. *Title of Collection:* Permissible Equipment Testing. *OMB Control Number:* 1219-0066. *Form Number:* MSHA 2000-38. *Estimated Number of Respondents:* 262. *Estimated Total Annual Burden Hours:* 4,302. *Estimated Total Annual Cost Burden:* $1,671,381. *Affected Public:* Business or other for profits (Mines). *Description:* This OMB Control Number pertains to the information collection requirements associated with the procedures by which manufacturers may apply for, and have equipment approved as permissible for use in mines. For additional information, see related notice published on April 21, 2008 at 73 FR 21377. Darrin A. King, Acting Departmental Clearance Officer. [FR Doc. E8-16323 Filed 7-16-08; 8:45 am] BILLING CODE 4510-43-P MISSISSIPPI RIVER COMMISSION Sunshine Act Meetings Agency Holding the Meetings: Mississippi River Commission. Time and Date: 9 a.m., August 11, 2008. Place: On board MISSISSIPPI V at Levee Park, Red Wing, MN. Status: Open to the public. Matters to be Considered:
(1)Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries;
(2)District Commander's overview of current project issues within the St. Paul District; and
(3)Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or projects of the Commission and the Corps of Engineers. Time and Date: 9 am., August 13, 2008. Place: On board MISSISSIPPI V at Oneida Landing, Davenport, IA. Status: Open to the public. Matters to be Considered:
(1)Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries;
(2)District Commander's overview of current project issues within the Rock Island District; and
(3)Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or projects of the Commission and the Corps of Engineers. Time and Date: 1:30 p.m., August 14, 2008. Place: On board MISSISSIPPI V at City Front, Hannibal, MO. Status: Open to the public for observation but not for participation. Matters to be Considered: The Commission will consider the Upper Mississippi Illinois River Comprehensive Plan. Time and Date: 9 a.m., August 15, 2008. Place: On board MISSISSIPPI V at Melvin Price Lock & Dam, Alton, IL. Status: Open to the public. Matters to be Considered:
(1)Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries;
(2)District Commander's overview of current project issues within the St. Louis District and;
(3)Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or projects of the Commission and the Corps of Engineers. Time and Date: 9 a.m., August 18, 2008. Place: On board MISSISSIPPI V at City Front, New Madrid, MO. Status: Open to the public. Matters to be Considered:
(1)Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries;
(2)District Commander's overview of current project issues within the Memphis District; and
(3)Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or of the Commission and the Corps of Engineers. Time and Date: 9 a.m., August 19, 2008. Place: On board MISSISSIPPI V at Mud Island River Park, Memphis, TN. Status: Open to the public. Matters to be Considered:
(1)Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries;
(2)District Commander's overview of current project issues within the Memphis District; and
(3)Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or of the Commission and the Corps of Engineers. Time and Date: 9 a.m., August 20, 2008. Place: On board MISSISSIPPI V at City Front, Greenville, MS. Status: Open to the public. Matters to be Considered:
(1)Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries;
(2)District Commander's overview of current project issues within the Vicksburg District; and
(3)Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or of the Commission and the Corps of Engineers. Time and Date: 9 a.m., August 22, 2008. Place: On board MISSISSIPPI V at Cenac Towing Co. Dock, Houma, LA. Status: Open to the public. Matters to be Considered:
(1)Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries;
(2)District Commander's overview of current project issues within the New Orleans District; and
(3)Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or of the Commission and the Corps of Engineers. Contact Person for More Information: Mr. Stephen Gambrell, telephone 601-634-5766. Timothy S. Gambrell, Executive Director, Mississippi River Commission. [FR Doc. E8-15776 Filed 7-16-08; 8:45 am] BILLING CODE 3710-GX-M NATIONAL TRANSPORTATION SAFETY BOARD Sunshine Act Meeting; Agenda Time and Date: 1:30 p.m., July 22, 2008. Place: NTSB Conference Center, 429 L'Enfant Plaza, SW., Washington, DC 20594. Status: The one item is open to the public. Matter to be Considered: 7907B Marine Accident Report—Grounding of the U.S. Passenger Vessel Empress of the North, 20 miles Southwest of Juneau, Alaska, on May 14, 2007. News Media Contact: Telephone:
(202)314-6100. Individuals requesting specific accommodations should contact Rochelle Hall at
(202)314-6305 by Friday, July 18, 2008. The public may view the meeting via a live or archived Webcast by accessing a link under “News & Events” on the NTSB home page at *http://www.ntsb.gov.* For More Information Contact: Vicky D'Onofrio,
(202)314-6410. Dated: July 11, 2008. Vicky D'Onofrio, Federal Register Liason Officer. [FR Doc. E8-16322 Filed 7-16-08; 8:45 am] BILLING CODE 7533-01-M NUCLEAR REGULATORY COMMISSION Office of New Reactors; Notice of Availability of the Final Interim Staff Guidance DC/COL-ISG-05 on the Use of the GALE86 Code for Calculation of Routine Radioactive Releases in Gaseous and Liquid Effluents AGENCY: Nuclear Regulatory Commission (NRC). ACTION: Notice of availability. SUMMARY: The NRC is issuing its Final Interim Staff Guidance
(ISG)DC/COL-ISG-05 (ADAMS Accession No. ML081710264). This interim staff guidance supplements the guidance provided to the staff in Chapter 11, “Radioactive Waste Management,” of NUREG-0800, “Standard Review Plan for the Review of Safety Analysis Reports for Nuclear Power Plants,” concerning the review of radioactive releases in gaseous and liquid effluents
(GALE)to support design certification
(DC)and combined license
(COL)applications. This guidance provides a clarification on the use of a newer version of the boiling-water reactor and pressurized-water reactors GALE codes that is not referenced in the current NRC guidance. The NRC staff issues DC/COL-ISGs to facilitate timely implementation of the current staff guidance and to facilitate activities associated with review of applications for DC and COLs by the Office of New Reactors. The NRC staff will also incorporate the approved DC/COL-ISGs into the next revision to the review guidance documents for applications for new reactors, RG 1.206 and RG 1.112. *Disposition:* On March 19, 2008, the staff issued the proposed ISG “Use of the GALE86 Code for Calculation of Routine Radioactive Releases in Gaseous and Liquid Effluents to Support Design Certification and Combined License Applications,” (COL/DC-ISG-005) (ADAMS Accession No. ML080650651) to solicit public and industry comment. The staff did not receive any comments on the draft ISG. Therefore, the ISG is now being issued for use. ADDRESSES: The NRC maintains an Agencywide Documents Access and Management System (ADAMS), which provides text and image files of NRC's public documents. These documents may be accessed through the NRC's Public Electronic Reading Room on the Internet at *http://www.nrc.gov/reading-rm/adams.html.* Persons who do not have access to ADAMS or who encounter problems in accessing the documents located in ADAMS should contact the NRC Public Document Room reference staff at 1-800-397-4209, 301-415-4737, or by e-mail at *pdr@nrc.gov.* FOR FURTHER INFORMATION CONTACT: Mr. Timothy J. Frye, Chief, Health Physics Branch, Division of Construction, Inspection, & Operational Programs, Office of the New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone 301-415-3900 or e-mail at *timothy.frye@nrc.gov.* SUPPLEMENTARY INFORMATION: The agency posts its issued staff guidance on the agency external Web page ( *http://www.nrc.gov/reading-rm/doc-collections/isg/* ). Dated at Rockville, Maryland, this 10th day of July 2008. For the Nuclear Regulatory Commission, William D. Reckley, Branch Chief, Rulemaking, Guidance and Advanced Reactors Branch, Division of New Reactor Licensing Office of New Reactors. [FR Doc. E8-16364 Filed 7-16-08; 8:45 am] BILLING CODE 7590-01-P NUCLEAR REGULATORY COMMISSION [IA-07-069] In the Matter of Mr. Anthony Fortuna; Confirmatory Order (Effective Immediately) I Mr. Anthony Fortuna was formerly employed as a contract electrician by General Electric Company at Southern Nuclear Company's Hatch Nuclear Plant from February 16 though March 27, 2006. This Confirmatory Order is the result of an agreement reached during an Alternative Dispute Resolution
(ADR)session conducted on June 6, 2008. II An investigation was initiated by the NRC Office of Investigations
(OI)on September 27, 2006, to determine whether Mr. Fortuna willfully provided materially inaccurate information to the Hatch Nuclear Plant in order to gain unescorted access to the Plant. Based on the evidence developed during the investigation, the NRC staff concluded that on February 6, 2006, in his response to a Personal History Questionnaire, Mr. Fortuna deliberately failed to disclose that he had previously tested positive on an employer's drug test. As a result, he gained unescorted access to the protected area of the Hatch Nuclear Plant from February 16 through March 27, 2006. In a letter dated March 13, 2008, the NRC staff advised Mr. Fortuna that his actions, as described above, constituted an apparent violation of 10 CFR 50.5, “Deliberate misconduct.” This regulation states, in relevant part, that an employee of a contractor for a licensee who provides goods or services that relate to a licensee's activities conducted under 10 CFR part 50, may not deliberately submit to a licensee or a licensee's contractor, information that the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC. The failure to disclose the prior, positive drug test was material because it prevented the licensee (Southern Nuclear Company) from taking the information from this disclosure into consideration when determining Mr. Fortuna's trustworthiness and reliability prior to granting him access to the Hatch Nuclear Plant. The letter also informed Mr. Fortuna that he could address the apparent violation by requesting a predecisional enforcement conference, submitting a response in writing or by requesting Alternative Dispute Resolution
(ADR)with the NRC. Mr. Fortuna requested ADR. III On June 6, 2008, the NRC and Mr. Fortuna met in an ADR session mediated by a professional mediator, arranged through Cornell University's Institute on Conflict Resolution. ADR is a process in which a neutral mediator with no decision-making authority assists the parties in reaching an agreement or resolving any differences regarding their dispute. This confirmatory order is issued pursuant to the agreement reached during the ADR process. The elements of the agreement consist of the following: 1. Mr. Fortuna agrees that his actions, as described above, were in violation of 10 CFR 50.5, and he acknowledges the seriousness of this matter and the potential impact his actions had on the ability of NRC licensees to establish and maintain an effective access authorization program. 2. Should he become involved in licensed activities in the future, Mr. Fortuna agrees to comply with all licensee and regulatory requirements, including the requirement to accurately complete documentation associated with gaining access authorization to NRC licensed facilities. 3. Although Mr. Fortuna acknowledges that his failure to disclose the prior positive drug test was a deliberate act undertaken for the purpose of obtaining employment at the Hatch plant, he also agrees to seek all necessary assistance in gaining clarification of questions contained in access authorization and other licensee supplied documentation required to be completed for employment at the licensee's facility, should he become involved in licensed activities in the future. 4. The NRC and Mr. Fortuna agree that the above elements will be incorporated into a Confirmatory Order. 5. In consideration of the above, the NRC agrees to exercise enforcement discretion to forego issuance of a Notice of Violation to Mr. Fortuna (IA-07-069). On June 6, 2008, Mr. Fortuna consented to issuance of this Order with the commitments, as described in Section V below. Mr. Fortuna further agreed that this Order is to be effective upon issuance and that he has waived his right to a hearing. IV Since Mr. Fortuna has agreed to take actions to address NRC concerns, as set forth in Section III above, the NRC has concluded that its concerns can be resolved through issuance of this Order. I find that Mr. Fortuna's commitments as set forth in Section V are acceptable and necessary and conclude that with these commitments, the public health and safety are reasonably assured. In view of the foregoing, I have determined that public health and safety require that Mr. Fortuna's commitments be confirmed by this Order. Based on the above and Mr. Fortuna's consent, this Order is immediately effective upon issuance. V Accordingly, pursuant to Sections 104b, 161b, 161i, 161o, 182 and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202 and 10 CFR part 50, *it is hereby ordered, effective immediately:* a. Should he become involved in licensed activities in the future, Mr. Fortuna agrees to comply with all licensee and regulatory requirements, including the requirement to accurately complete documentation associated with gaining access authorization to NRC licensed facilities. b. Although Mr. Fortuna acknowledges that his failure to disclose the prior positive drug test was a deliberate act undertaken for the purpose of obtaining employment at the Hatch plant, he also agrees to seek all necessary assistance in gaining clarification of questions contained in access authorization and other licensee supplied documentation required to be completed for employment at the licensee's facility, should he become involved in licensed activities in the future. The Regional Administrator, NRC Region II, may relax or rescind, in writing, any of the above conditions upon a showing by Mr. Fortuna of good cause. VI Any person adversely affected by this Confirmatory Order, other than Mr. Fortuna, may request a hearing within 20 days of its issuance. Where good cause is shown, consideration will be given to extending the time to request a hearing. A request for extension of time must be directed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555- 0001, and include a statement of good cause for the extension. If a person other than Mr. Fortuna requests a hearing, that person shall set forth with particularity the manner in which his interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.309(d) and (f). If a hearing is requested by a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearing. If a hearing is held, the issue to be considered at such hearing shall be whether this Confirmatory Order should be sustained. Pursuant to 10 CFR 2.202(c)(2)(i), any person adversely affected by this Order may, within 20 days of the issuance of this order, in addition to requesting a hearing, move the presiding officer to set aside the immediate effectiveness of the Order on the ground that the Order, including the need for immediate effectiveness, is not based on adequate evidence but on mere suspicion, unfounded allegations or error. The motion must state with particularity the reasons why the Order is not based on adequate evidence and must be accompanied by affidavits or other evidence relied on. A request for a hearing or to set aside the immediate effectiveness of this Order must be filed in accordance with the NRC E-Filing rule, which became effective on October 15, 2007. The NRC E-filing Final Rule was issued on August 28, 2007 (72 FR 49139) and was codified in pertinent part at 10 CFR part 2, subpart B. The E-Filing process requires participants to submit and serve documents over the internet or, in some cases, to mail copies on electronic optical storage media. Participants may not submit paper copies of their filings unless they seek a waiver in accordance with the procedures described below. To comply with the procedural requirements associated with E-Filing, at least five
(5)days prior to the filing deadline the requestor must contact the Office of the Secretary by e-mail at *HEARINGDOCKET@NRC.GOV,* or by calling
(301)415-1677, to request
(1)a digital ID certificate, which allows the participant (or its counsel or representative) to digitally sign documents and access the E-Submittal server for any NRC proceeding in which it is participating; and/or
(2)creation of an electronic docket for the proceeding (even in instances when the requestor (or its counsel or representative) already holds an NRC-issued digital ID certificate). Each requestor will need to download the Workplace Forms Viewer TM to access the Electronic Information Exchange (EIE), a component of the E-Filing system. The Workplace Forms Viewer TM is free and is available at *http://www.nrc.gov/site-help/e-submittals/install-viewer.html.* Information about applying for a digital ID certificate also is available on NRC's public Web site at *http://www.nrc.gov/site-help/e-submittals/apply-certificates.html.* Once a requestor has obtained a digital ID certificate, had a docket created, and downloaded the EIE viewer, it can then submit a request for a hearing through EIE. Submissions should be in Portable Document Format
(PDF)in accordance with NRC guidance available on the NRC public Web site at *http://www.nrc.gov/site-help/e-submittals.html.* A filing is considered complete at the time the filer submits its document through EIE. To be timely, electronic filings must be submitted to the EIE system no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of a transmission, the E-Filing system time-stamps the document and sends the submitter an e-mail notice confirming receipt of the document. The EIE system also distributes an e-mail notice that provides access to the document to the NRC Office of the General Counsel and any others who have advised the Office of the Secretary that they wish to participate in the proceeding, so that the filer need not serve the document on those participants separately. Therefore, any others who wish to participate in the proceeding (or their counsel or representative) must apply for and receive a digital ID certificate before a hearing request is filed so that they may obtain access to the document via the E-Filing system. A person filing electronically may seek assistance through the “Contact Us” link located on the NRC Web site at *http://www.nrc.gov/site-help/e-submittals.html* or by calling the NRC technical help line, which is available between 8:30 a.m. and 4:15 p.m., Eastern Time, Monday through Friday. The help line number is
(800)397-4209 or locally,
(301)415-4737. Participants who believe that they have good cause for not submitting documents electronically must file a motion, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by
(1)first class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, *Attention:* Rulemaking and Adjudications Staff; or
(2)courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at *http://ehd.nrc.gov/EHD_Proceeding/home.asp* , unless excluded pursuant to an order of the Commission, an Atomic Safety and Licensing Board, or a Presiding Officer. Participants are requested not to include personal privacy information, such as social security numbers, home addresses, or home phone numbers in their filings. With respect to copyrighted works, except for limited excerpts that serve the purpose of the adjudicatory filings and would constitute a Fair Use application, Participants are requested not to include copyrighted materials in their works. VII In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions specified in Section V above shall be final 20 days from the date of this Order without further order or proceedings. If an extension of time for requesting a hearing has been approved, the provisions specified in Section V shall be final when the extension expires if a hearing request has not been received. A request for hearing shall not stay the immediate effectiveness of this order. Dated this 3rd day of July, 2008. For the Nuclear Regulatory Commission. Luis A. Reyes, Regional Administrator. [FR Doc. E8-16365 Filed 7-16-08; 8:45 am] BILLING CODE 7590-01-P NUCLEAR REGULATORY COMMISSION [Docket No. 52-017] Virginia Electric And Power Company, D/B/A Dominion Virginia Power, and Old Dominion Electric Cooperative North Anna Nuclear Station Unit 3 Combined License Application; Correction and Supplement to Notice of Intent To Prepare an Environmental Impact Statement and Conduct Scoping Process AGENCY: Nuclear Regulatory Commission. ACTION: Correction and Supplement. SUMMARY: This document corrects and supplements a Notice of Intent to Prepare an Environmental Impact Statement and Conduct Scoping Process (regarding an application for a combined license) published in the **Federal Register** on March 13, 2008 (73 FR 13589). This action is necessary:
(1)To correctly identify the document the Nuclear Regulatory Commission
(NRC)staff intends to prepare, the applicants for the combined license
(COL)and the matters that the scoping process is intended to accomplish,
(2)to inform the public and other scoping participants that alternative sites will not be considered in the review of the staff of the U.S. Nuclear Regulatory Commission (NRC or Commission) or in the environmental impact statement
(EIS)prepared in connection with the COL application, and
(3)to reopen the scoping comment period so as to provide the public with an opportunity to participate in the environmental scoping process, as described in 10 CFR 51.29, in regard to the correctly identified matters that the scoping process is intended to accomplish. With respect to item (3), this action provides thirty
(30)days from the date of this Notice for the submission of written comments on the scope of the North Anna Unit 3 COL application environmental review. Comments should be submitted in accordance with the procedures specified in the ADDRESSES section. DATES: The scoping comment period is reopened for thirty
(30)days and closes on August 15, 2008. SUPPLEMENTARY INFORMATION: This document corrects a notice published on March 13, 2008 (73 FR 13589). The Notice of Intent to Prepare an Environmental Impact Statement and Conduct Scoping Process is corrected as follows:
(1)On page 13589, second column, the heading is corrected to read, “Virginia Electric and Power Company d/b/a Dominion Virginia Power and Old Dominion Electric Cooperative; North Anna Power Station Combined License Application; Notice of Intent to Prepare a Supplement to the Early Site Permit Environmental Impact Statement.”
(2)On page 13589, second column, the first complete paragraph, the first two lines, replace “Dominion Nuclear Power, LLC (Dominion)” with “Virginia Electric and Power Company, doing business as Dominion Virginia Power (DVP or Dominion), and Old Dominion Electric Cooperative (ODEC).”
(3)On page 13590, in the first column, the second complete paragraph through paragraph i are removed, and replaced with the following: On November 27, 2007, the U.S. Nuclear Regulatory Commission
(NRC)issued ESP-003 to Dominion Nuclear North Anna, LLC, for the North Anna ESP Site (the site of proposed Unit 3), located in Louisa County, near Lake Anna, approximately 40 miles north northwest of Richmond, Virginia. An early site permit
(ESP)is an NRC approval of a site as suitable for construction and operation of one or more new nuclear units. The NRC's detailed review of the environmental impacts of constructing and operating the proposed North Anna Unit 3 is documented in NUREG-1811, “Environmental Impact Statement for an Early Site Permit at the North Anna ESP Site,” dated December 2006. Pursuant to NRC regulations in 10 CFR 51.50(c)(1), a COL applicant referencing an ESP need not submit information or analyses regarding environmental issues that were resolved in the ESP EIS, except to the extent the COL applicant has identified new and significant information regarding such issues. Pursuant to 10 CFR 52.39, matters resolved in the ESP proceedings are considered to be resolved in any subsequent proceedings, absent identification of new and significant information. The application dated November 27, 2007, for a COL for North Anna Unit 3 submitted by Virginia Electric and Power Company d/b/a Dominion Virginia Power and Old Dominion Electric Cooperative (Applicants) references the ESP for the North Anna ESP site, ESP-003. For a COL application that references an ESP, the NRC staff, pursuant to 10 CFR 51.75(c), prepares a supplement to the ESP EIS in accordance with 10 CFR 51.92(e). Accordingly, the purpose of this notice is to inform the public that the NRC staff will be preparing a supplement to NUREG-1811, the ESP Final EIS, in support of the review of the COL application for North Anna Unit 3 at the North Anna ESP site described in ESP-003 referenced in the COL application, and to provide the public an opportunity to participate in the environmental scoping process, as described in 10 CFR 51.29. In accordance with 10 CFR 51.45 and 10 CFR 51.50(c)(1), the Applicants submitted an environmental report
(ER)as part of the COL application, which need not contain information or analysis submitted in the ER for the ESP stage or resolved in the final EIS for the ESP stage. The ER for the COL stage, in addition to the environmental information and analyses otherwise required must provide: a. Information to demonstrate that the design of the facility falls within the site characteristics and design parameters specified in the ESP; b. Information to resolve any significant environmental issue that was not resolved in the ESP; c. New and significant information related to impacts of construction and operation that were resolved in the ESP; d. A description of the process used to identify new and significant information regarding the NRC's conclusions in the EIS for the ESP; and e. A demonstration that all environmental terms and conditions that have been included in the ESP will be satisfied by the date of issuance of the combined license. ADDRESSES: The COL ER is available for public inspection at the NRC Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, or from the Publicly Available Records component of the NRC's Agencywide Documents Access and Management System (ADAMS). ADAMS is accessible at *http://www.nrc.gov/reading-rm/adams.html* , which provides access through the NRC's Electronic Reading Room
(ERR)link. The accession number in ADAMS for the ER is ML073321238. Persons who do not have access to ADAMS or who encounter problems in accessing the documents located in ADAMS should contact the NRC's PDR Reference staff at
(800)397-4209 or
(301)415-4737, or by sending an e-mail to *pdr.resource@nrc.gov.* The application may also be viewed on the Internet at: *http://www.nrc.gov/reactors/new-licensing/col/north-anna.html.* In addition, the Jefferson-Madison Regional Library in Mineral, Virginia; Hanover Branch Library in Hanover, Virginia; Orange County Library in Orange, Virginia; Salem Church Library in Fredericksburg, Virginia; and C. Melvin Snow Memorial Branch Library in Spotsylvania, Virginia have agreed to make the ER available for public inspection. The following key reference documents related to the COL application and the NRC staff's review process are available through the NRC's Web site at *http://www.nrc.gov:* a. 10 CFR Part 51, Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions, b. 10 CFR Part 52, Licenses, Certifications, and Approvals for Nuclear Power Plants, c. NUREG-1555, Standard Review Plans for Environmental Reviews for Nuclear Power Plants, d. NUREG/BR-0298, Brochure on Nuclear Power Plant Licensing Process, e. Fact Sheet on Nuclear Power Plant Licensing Process, f. Regulatory Guide 4.2, Preparation of Environmental Reports for Nuclear Power Stations, g. Regulatory Guide 1.206, Combined License Applications for Nuclear Power Plants, h. NRR Office Instruction LIC-203, Procedural Guidance for Preparing Environmental Assessments and Considering Environmental Issues, and i. NUREG-1811, Environmental Impact Statement for an Early Site Permit
(ESP)at the North Anna ESP Site (Dec. 2006). The regulations, NUREG-series documents, regulatory guides, and fact sheet can be found under Document Collections in the Electronic Reading Room on the NRC Web page. Finally, Office Instruction LIC-203 can be found in ADAMS in two parts under accession numbers ML011710073 (main text) and ML011780314 (charts and figures). This notice advises the public that the NRC intends to gather the information necessary to prepare a supplement to the ESP EIS related to the review of the application for a COL at the North Anna COL site in accordance with 10 CFR 51.92(e). This notice is being published in accordance with the National Environmental Policy Act
(NEPA)and NRC regulations found in 10 CFR part 51. The NRC will first conduct a scoping process for the supplement to the ESP EIS and, as soon as practicable thereafter, will prepare a draft supplement for the ESP EIS for public comment. Participation in the scoping process by members of the public and local, State, Tribal, and Federal government agencies is encouraged. Pursuant to NRC regulations in 10 CFR 51.92(e), the scoping process for the supplemental EIS to the ESP Final EIS will be used to accomplish the following: a. Identification of the economic, technical, and other benefits and costs of the proposed action, to the extent that the EIS for the ESP did not include an assessment of these benefits and costs; b. Identification of other energy alternatives, to the extent that the EIS for the ESP did not include an assessment of energy alternatives; c. Identification of the issues related to the impacts of construction and operation of the facility that were not resolved in the ESP proceeding; and d. Identification of the issues related to the impacts of construction and operation that were resolved in the ESP proceeding but where new and significant information exists, including but not limited to, new and significant information demonstrating that the design of the facility falls outside the site characteristics and design parameters specified in the ESP. The NRC invites the following entities to participate in the scoping process: a. The applicant, Dominion; b. Any Federal agency that has jurisdiction by law or special expertise with respect to any environmental impact involved or that is authorized to develop and enforce relevant environmental standards; c. Affected State and local government agencies, including those authorized to develop and enforce relevant environmental standards; d. Any affected Indian tribe; e. Any person who requests or has requested an opportunity to participate in the scoping process; and f. Any person who has submitted a petition for leave to intervene. In light of the above information, the NRC staff has determined to reopen the scoping comment period for thirty
(30)days to enhance the ability of members of the public to participate in the scoping process. Members of the public may send written comments on the environmental scope of the North Anna COL application review to the Chief, Rulemaking, Directives and Editing Branch, Division of Administrative Services, Office of Administration, Mailstop T-6D59, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001 and should cite the publication date and page number of this **Federal Register** notice. Written comments should be postmarked by August 15, 2008. Comments may also be delivered to Room T-6D59, Two White Flint North, 11545 Rockville Pike, Rockville, Maryland from 7:30 a.m. to 4:15 p.m., during Federal workdays. Electronic comments may be sent via e-mail to *NORTHANNA.COLAEIS@nrc.gov.* To be considered in the scoping process, comments should be received by the end of the scoping comment period, which is August 15, 2008. The NRC staff is considering all comments submitted in response to the March 13, 2008, notice, and members of the public need not resubmit any comments previously submitted. In addition, participation in the scoping process for the supplement to the ESP EIS does not entitle participants to become parties to the proceeding to which the supplement to the EIS relates. The NRC staff will prepare and issue for comment the draft supplemental EIS, which will be the subject of separate notices and a public meeting. A copy of the draft supplement to the ESP EIS will be available for public inspection at the above-mentioned address, and one copy per request will be provided free of charge. After receipt and consideration of the comments, the NRC staff will prepare a final supplement to the ESP EIS, which will also be available for public inspection. Information about the scoping process and development of the supplement to ESP EIS may be obtained from Ms. Alicia Williamson, Environmental Project Manager, by phone at
(301)415-1878 or via e-mail at *Alicia.Williamson@nrc.gov.* Dated at Rockville, Maryland, this 14th day of July, 2008. For the U.S. Nuclear Regulatory Commission. Scott C. Flanders, Director, Division of Site and Environmental Reviews, Office of New Reactors. [FR Doc. E8-16444 Filed 7-16-08; 8:45 am] BILLING CODE 7590-01-P OFFICE OF PERSONNEL MANAGEMENT Submission for OMB Review; Comment Request for Review of an Existing Information Collection: Court Orders Affecting Retirement Benefits AGENCY: Office of Personnel Management. ACTION: Notice. SUMMARY: In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, May 22, 1995), this notice announces that the Office of Personnel Management
(OPM)has submitted to the Office of Management and Budget
(OMB)a request for review of an existing information collection. The regulations describe how former spouses give us written notice of a court order requiring us to pay benefits to the former spouse. Specific information is needed before OPM can make court-ordered benefit payments. Approximately 19,000 former spouses apply for benefits based on court orders annually. We estimate it takes approximately 30 minutes to collect the information. The annual burden is 9,500 hours. For copies of this proposal, contact Mary Beth Smith-Toomey on
(202)606-8358, FAX
(202)418-3251 or via e-mail to *MaryBeth.Smith-Toomey@opm.gov.* Please include a mailing address with your request. DATES: Comments on this proposal should be received within 30 calendar days from the date of this publication. ADDRESSES: Send or deliver comments to— Ronald W. Melton, Deputy Assistant Director, Retirement Services Program, Center for Retirement and Insurance Services, U.S. Office of Personnel Management, 1900 E Street, NW., Room 3305, Washington, DC 20415-3500; and Brenda Aguilar, OPM Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, NW., Room 10235, Washington, DC 20503. *For Information Regarding Administrative Coordination—Contact:* Cyrus S. Benson, Team Leader, Publications Team, RIS Support Services/Support Group,
(202)606-0623. U.S. Office of Personnel Management, Howard Weizmann, Deputy Director. [FR Doc. E8-16257 Filed 7-16-08; 8:45 am] BILLING CODE 6325-38-P POSTAL SERVICE Privacy Act of 1974; System of Records AGENCY: Postal Service TM . ACTION: Notice of modification to an existing system of records. SUMMARY: The Postal Service proposes to revise the existing system of records entitled “Emergency Management Records 500.300.” The modifications amend an existing routine use to further clarify how records relating to USPS employees and individuals responding to, or affected by, natural disasters or manmade hazards are disclosed to government agencies or disaster relief organizations. DATES: The revision will become effective without further notice on August 18, 2008 unless comments received on or before that date result in a contrary determination. ADDRESSES: Comments may be mailed or delivered to the Records Office, United States Postal Service, 475 L'Enfant Plaza, SW., Room 5821, Washington, DC 20260-2200. Copies of all written comments will be available at this address for public inspection and photocopying between 8 a.m. and 4 p.m., Monday through Friday. FOR FURTHER INFORMATION CONTACT: Jane Eyre, Manager, Records Office, 202-268-2608. SUPPLEMENTARY INFORMATION: This notice is in accordance with the Privacy Act requirement that agencies publish their amended systems of records in the **Federal Register** when there is a revision, change, or addition. The Postal Service has reviewed its systems of records and has determined that the Emergency Management Records system should be revised to modify existing routine uses of records maintained in the system, including categories of individuals, categories of records in the system, and the purposes of such uses. Routine use for categories of individuals covered by the system will be revised to provide clarification on how the information is disclosed during natural disasters and manmade hazards. The Postal Service does not expect this amended notice to have any adverse effect on individual privacy rights. “Privacy Act System of Records USPS 500.300” was originally published in the **Federal Register** on April 29, 2005 (70 FR 22518). The Postal Service proposes amending the system as shown below: USPS 500.300 Emergency Management Records CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM; CATEGORIES OF RECORDS IN THE SYSTEM; PURPOSES; ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND PURPOSES OF SUCH USES, RETENTION AND DISPOSAL, SYSTEM MANAGER(S) AND ADDRESS, NOTIFICATION PROCEDURE, AND RECORD SOURCE CATEGORIES: Categories of Individuals Covered by the System: *[Renumber existing item 2 as 3, add a new item 2 and 4 to read as follows:]* 2. Household member of USPS employees and other individuals having emergency management responsibilities officially designated by the Postal Service to mitigate, prepare for, respond to, or recover from any natural disaster or manmade hazard. 4. Individuals whose names have been provided to the Postal Service by government agencies or disaster relief organizations as a result of a disaster or manmade hazard. Categories of Records in the System: *[Revise items 2 and 4 to read as follows:]* 2. Medical fitness and surveillance information: Records related to medical documentation such as receipt of prophylaxis, tests, including determinations of fitness to wear protective equipment, and surveillance for exposure to hazards. 4. Evacuee information: Records of individuals who are impacted by natural disasters or manmade hazard, such as name; postal assignment information (if USPS employee); home, work, and emergency contact information; home and work address; location in facility and activities prior to evacuation; route of exit from facility; rallying point; and emergency medical treatment administered to evacuees. Purpose(s): *[Revise to read as follows:]* 1. To permit collaboration among officially designated individuals who are responsible for mitigation of, preparation for, response to, and recovery from any natural disaster or manmade hazard involving the Postal Service. 2. To satisfy federal requirements for the training, fitness testing, and medical surveillance of individuals in response to a natural disaster or manmade hazard involving the Postal Service. 3. To test for the exposure of individuals to hazards. 5. To assess the likelihood of an individual's exposure to a hazard and to contact the individual with important health-related information. *[Insert new item 6 as follows:]* 6. To provide information about disaster recovery programs and services to individuals affected by a natural disaster or manmade hazard. Routine Uses of Records Maintained in the System, Including Categories of Users and the Purposes of Such Uses: Standard routine uses 1 through 9 apply. *[Revise to read as follows:]* a. Medical records may be disclosed to an individual's private treating physician, to medical personnel retained by USPS, and to public health agencies to provide medical examinations, medications, or treatment to individuals covered by this system of records. Retention and Disposal: *[Revise to read as follows:]* 2. Medical documentation including fitness and medical surveillance information is retained 30 years from the date of collection. 3. Evacuee information is retained 5 years from the date of collection. The System Manager(s) and Address: *[Add the following entries:]* Chief Postal Inspector, United States Postal Inspection Service, United States Postal Service, 475 L'Enfant Plaza, SW., Washington, DC 20260. Senior Vice President, Intelligent Mail and Address Quality, United States Postal Service, 475 L'Enfant Plaza, SW., Washington, DC 20260. Manager, Safety, Security, Emergency Planning, United States Postal Service Office of Inspector General, 1735 N. Lynn Street, Arlington, VA 22209. *[Delete the following entry:]* The Vice President, Emergency Preparedness. Notification Procedure: *[Revise to read as follows:]* Current and former employees and contractors wanting to know if information about them is maintained in this system of records must address inquiries to the facility head where currently or last employed. Headquarters employees or contractors must submit inquiries to the chief postal inspector. Requests must include full name, Social Security Number or Employee Identification Number, and employment or contract dates. Individuals from whom evacuee information may have been collected must address inquiries to head of the facility from which they were evacuated. Household members of current or former field employees and other individuals having emergency management responsibilities officially designated by the Postal Service must address inquiries to the facility head where the postal employee in their household is currently or was last employed. Household members of current or former Headquarters employees and other individuals having emergency management responsibilities officially designated by the Postal Service must submit inquiries to the Chief Postal Inspector. The Record Source Categories: *[Revise to read as follows:]* Employees; contractors; medical staff of the Postal Service; designated contractors; public health agencies; emergency response agencies, providers, and first responders; individuals who are evacuated in the event of a natural disaster or manmade hazard; and household members of USPS employees and other individuals having emergency management responsibilities officially designated by the Postal Service. Neva R. Watson, Attorney, Government Relations, FOIA, and Privacy. [FR Doc. E8-16286 Filed 7-16-08; 8:45 am] BILLING CODE 7710-12-P POSTAL SERVICE Privacy Act of 1974; System of Records AGENCY: Postal Service TM . ACTION: Notice of modification to an existing system of records. SUMMARY: The Postal Service proposes to revise the existing system of records entitled, “Address Change, Mail Forwarding, and Related Services, 800.000.” The modification clarifies the existing routine use relating to disclosure of customers' temporary changes of address to mailers; disclosure of changes of address to the American Red Cross; obtaining and sharing lists of individuals affected by disasters from other government agencies; disclosure of changes of address for domestic violence shelters; and allowances for alternative methods of customer authentication for the submission of change-of-address
(COA)requests in times of emergencies as well as in the regular course of business. *Background:* The basic function of the United States Postal Service® at all times, and especially during an emergency, is to bind the nation together through the delivery of postal services to the American public. The severity and magnitude of past catastrophic events have led to an evaluation of our records management policies. After careful review, the Postal Service believes that revisions to certain policies regarding disclosure of temporary changes of address to mailers, as well as disclosure of address information to the American Red Cross and other government agencies would be helpful, promote clarity and improve the provision of services to persons displaced by catastrophic events. Modifications to the system of records will be reflected in Categories of Individuals Covered by the System; Categories of Records in the System; Purposes of Such Uses; and Storage, Retention, and Disposal. The record source(s) for this system has also been amended to include commercially available source(s) of customer dates of birth. Date of birth information may be collected and used for verification purposes in the event credit/debit card information is not available for electronically submitted changes of address, and only in the event of a natural or manmade disaster as determined by the Postal Service. As a form of verification, credit/debit card information is currently required for both Internet and telephone COA submissions. As a way to accommodate the customer in times of disaster, and to maintain a level of protection for Postal Service customers from fraudulent submission, an alternative method (providing date of birth) was developed as a form of identification and verification. In addition, the Postal Service continues to encourage the use of USPS.com® for secure and convenient online change-of-address submissions. The Postal Service currently requires a valid credit/debit card to authenticate a customer and to complete a change-of-address request online. We have found that many customers wish to use our online service; however, they are unable to because they do not possess the appropriate credit/debit card required for the authentication process. In order to accommodate those customers, the Postal Service plans to pilot test an alternative authentication option for online change-of-address submissions. The objective of the test is to determine, if given a choice, which types of identification customers prefer to provide as a method of authentication. For this test, customers will be offered a choice of authentication methods. They may continue to provide a credit/debit card OR as an alternative, they may choose to provide their driver's state and license number and their date of birth. If customers choose the latter, the customers' driver's state and license number and date of birth, along with their name and previous address, will be validated through the use of an authorized commercial database. The test will be conducted for a limited period of time and will include a small sample set of customers requesting to change their address on USPS.com. At the completion of the test period, results will be analyzed to determine if the objectives have been met. If the test is determined to be successful, this process may be implemented nationally. The privacy and security of the mail, including the change-of-address process is the core of the Postal Service brand. Over the course of its history, the Postal Service has built a trusted brand with the public. New technology and processes continue to be developed that bring added value and improved customer service to our networks. As always, the Postal Service will only use technology, or adapt technology, in a way that ensures that the privacy and security of the mail and its customers are maintained at the highest levels. The current proposal for change-of-address authentication is no exception. The USPS has carefully analyzed the need, usage, and benefits of an alternative authentication method, while establishing procedures that would properly address privacy and security needs. The Postal Service has considered and incorporated privacy and security features regarding use of commercial source(s) for the collection and verification of driver's license information and date of birth. The Postal Service has limited the type and amount of data provided to the commercial source(s) to only name, previous address, date of birth, driver's state and license number (for non-emergency) and telephone number. The commercial source(s) will purge all personal information once the transaction is completed and will limit the data returned. No personal information will be returned; output fields will only contain confirmation of authentication. In emergency situations, the Postal Service automated system will permit customers to enter their name and date of birth and will confirm this information. The customers' entry will be securely transmitted to the commercial database for verification. Strict limitations have also been placed around the use of the data by the Postal Service, as well as how data are provided to the commercial source(s). When customers enter their information online at USPS.com to request either an emergency change of address or for the alternative authentication test, which are both covered by the Privacy Act, they will be provided details on how their information is protected through the Privacy Act Statement. If customers do not have a credit/debit card number to use as a form of identification/verification, they will be asked for their date of birth as an alternative in an emergency, or both driver's state and license number and date of birth as an additional authentication method in non-emergency situations. Customers may decline to provide this information and submit their change-of-address request via hard copy mail. Two other revisions are also included in this notice. First, online user information for Internet change-of-address requests (to include Internet Protocol
(IP)address, domain name, operating system versions, browser version, date and time of connection, and geographic location) is listed as a new record category. This information may be disclosed to law enforcement personnel in order to aid the United States Postal Inspection Service to investigate cases of fraudulent online activity. Second, the Violent Crime Control and Law Enforcement Act of 1994, Public Law 103-322, 108 Stat. 1796, requires the Postal Service to “secure the confidentiality of domestic violence shelters and abused persons' addresses.” To further provide protection for address changes for domestic violence shelters and Court Ordered Protected Individuals (COPI), the Postal Service will revise routine uses “a” and “b” to clarify that domestic violence shelters may limit disclosure of their change-of-address information. DATES: The revision will become effective without further notice on August 18, 2008 unless comments received on or before that date result in a contrary determination. ADDRESSES: Comments may be mailed or delivered to the Records Office, United States Postal Service, 475 L'Enfant Plaza, SW., Room 5821, Washington, DC 20260-2200. Copies of all written comments will be available at this address for public inspection and photocopying between 8 a.m. and 4 p.m., Monday through Friday. FOR FURTHER INFORMATION CONTACT: Jane Eyre, Manager, Records Office, 202-268-2608. SUPPLEMENTARY INFORMATION: This notice is in accordance with the Privacy Act requirement that agencies publish their amended systems of records in the **Federal Register** when there is a revision, change, or addition. The Postal Service has reviewed its systems of records and has determined that the Address Change, Mail Forwarding, and Related Services system should be revised to modify existing routine uses of records maintained in the system, including system location; categories of individuals covered by the system; categories of records in the system; purposes of such uses; storage, retention, and disposal; system manager(s) and address; and record source categories. Routine use for categories of users and the purposes of such uses covered by the system will be revised to provide clarification on how the information is disclosed during natural disasters and manmade hazards. The Postal Service does not expect this amended notice to have any adverse effect on individual privacy rights. “Privacy Act System of Records USPS 800.000” was originally published in the **Federal Register** on April 29, 2005 (70 FR 22517). The Postal Service proposes amending the system as shown below: USPS 800.000, Address Change, Mail Forwarding and Related Services SYSTEM LOCATION: Categories Of Individuals Covered By The System; Categories of Records In The System; Purposes; Routine Uses Of Records Maintained In The System, Including Categories Of Users And Purposes Of Such Uses; Storage, Retention And Disposal; System Manager(S); And Address And Record Source Categories: System Location: [Revise to read as follows:] USPS National Customer Support Center (NCSC), Computerized Forwarding System
(CFS)sites, Post Offices, USPS Processing and Distribution Centers, USPS IT Eagan Host Computing Services Center, and contractor sites. Categories of Individuals Covered by the System: [Revise to read as follows:] Customers requesting change of address, mail forwarding, or other related services either electronically, in writing, or via telephone. Customers who are victims of a natural disaster who request mail forwarding services through the Postal Service or the American Red Cross. Categories of Records in the System: Item 2 [Revise item 2 to read as follows, renumber existing item 8 as item 9, and add new item number 8 as follows:] 2. Verification and payment information: Credit and/or debit card number, type, and expiration date; or date of birth and driver's state and license number; information for identity verification; and billing information. Customers who are victims of a natural disaster who request mail forwarding service electronically may be required to provide date of birth for verification if credit and/or debit card information is unavailable. 8. Online user information: Internet Protocol
(IP)address, domain name, operating system versions, browser version, date and time of connection, and geographic location. 9. Protective Orders. Purpose(s): [Revise item 3 to read as follows:] 3. To provide address information to the American Red Cross or other disaster relief organization about a customer who has been relocated because of disaster. [Add item 5 to read as follows:] 5. To support investigations related to law enforcement for fraudulent transactions. Routine Uses of Records in the System, Including Categories of Users and the Purposes of Such Uses: [Revise to read as follows:] Standard routine uses 1 through 7, 10, and 11 apply. In addition: a. Disclosure upon request. The new address of a specific business or organization that has filed a permanent change-of-address order may be furnished to any individual on request. ( **Note:** The new address of an individual or family will not be furnished pursuant to this routine use, unless authorized by one of the standard routine uses listed above or one of the specific routine uses listed below.) If a domestic violence shelter has filed a letter on official letterhead from a domestic violence coalition stating
(i)that such domestic violence coalition meets the requirements of 42 U.S.C. 10410 and
(ii)that the organization filing the change of address is a domestic violence shelter, the new address shall not be released except pursuant to routine use d, e, or f pursuant to the order of a court of competent jurisdiction. b. Disclosure for Address Correction. Disclosure of any customer's new permanent address may be made to a mailer, only if the mailer is in possession of the name and old address: From the National Change-of-Address Linkage (NCOA Link® ) file if the mailer is seeking corrected addresses for a mailing list; from the Computerized Forwarding System (CFS), from the Postal Automated Redirection System
(PARS)if a mailpiece is undeliverable as addressed, or from the Locatable Address Conversion System if an address designation has been changed or assigned. Copies of change-of-address orders may not be furnished. In the event of a disaster or manmade hazard, temporary address changes may be disclosed to a mailer when, in the sole determination of the Postal Service, such disclosure serves the primary interest of the customer, for example, to enable a mailer to send medicines directly to the customer's temporary address, and only if the mailer is in possession of the customer's name and permanent address. If a domestic violence shelter has filed a letter on official letterhead from a domestic violence coalition stating
(i)that such domestic violence coalition meets the requirements of 42 U.S.C. 10410 and
(ii)that the organization filing the change of address is a domestic violence shelter, the new address shall not be released except pursuant to routine use d, e, or f pursuant to the order of a court of competent jurisdiction. [Add item i as follows:] i. Disclosure to a disaster relief organization. Any customer's permanent or temporary change of address may be disclosed to the American Red Cross or other disaster relief organizations, if that address has been impacted by disaster or manmade hazard. Storage: [Revise to read as follows:] Records generated from the source document are recorded on the Forwarding Control System file server and on tapes at CFS units. Electronic change-of-address records and related service records are also stored on disk and/or magnetic tape in a secured environment. Change-of-address records are consolidated in a national change-of-address
(NCOA)file at the USPS IT Eagan Host Computing Services Center. Selected extracts of NCOA are provided in the secure data format represented by the NCOA Link product to a limited number of firms under contract or license agreement with USPS. Records pertaining to move-related services are also transmitted to specific service providers, including government agencies and private companies under contract to USPS. Retention and Disposal: [Revise to read as follows:] 1. National change of address and mail forwarding records are retained 4 years from the effective date. 2. Delivery units access COA records from the change-of-address Reporting System database, which retains 2 years of information from the COA effective date. The physical change-of-address order is retained in the CFS unit for 30 days if it was scanned, or 18 months if it was manually entered into the national database. 3. Online user information may be retained for 12 months. Records existing on paper are destroyed by shredding. Records existing on computer storage media are destroyed according to the applicable USPS media sanitization practice. System Manager(s) and Address: [Revise to read as follows:] Vice President, Retail Operations, United States Postal Service, 475 L'Enfant Plaza, SW., Washington DC 20260. Record Source Categories: [Revise to read as follows:] Customers, personnel, service providers, and, for call center operations, commercially available sources of names, addresses, telephone numbers. For emergency change-of-addresses only, commercially available sources of names, previous addresses, and dates of birth. For alternative authentication sources of names, previous and new addresses, dates of birth, and driver's state and license number. Neva R. Watson, Attorney, Government Relations, FOIA and Privacy. [FR Doc. E8-16343 Filed 7-16-08; 8:45 am] BILLING CODE 7710-12-P RAILROAD RETIREMENT BOARD Correction to Agency Forms Submitted for OMB Review, Request for Comments SUMMARY: In the document appearing on pages 734059 & 734060, FR Doc. E8-13431, Agency Forms Submitted for OMB Review, Request for Comments dated June 16, 2008, the Railroad Retirement Board is making a correction to add omitted language to the SUMMARY section that states the respondents' obligation to respond to RRB Form(s) UI-38, UI Claimant's Report of Efforts to Find Work, UI-38s, School Attendance and Availability Questionnaire, and ID-8k, Letter to Union Representative. *Correction of Publication:* The RRB adds the following language to the end of the SUMMARY section, “Completion of Form(s) UI-38, UI Claimant's Report of Efforts to Find Work and UI-38s, School Attendance and Availability Questionnaire is required to obtain or retain benefits. Completion of Form ID-8k, Letter to Union Representative, is voluntary”. Charles Mierzwa, Clearance Officer. [FR Doc. E8-16335 Filed 7-16-08; 8:45 am] BILLING CODE 7905-01-P SECURITIES AND EXCHANGE COMMISSION [Release Nos. 33-8942; 34-58146; File No. 265-24] Advisory Committee on Improvements to Financial Reporting AGENCY: Securities and Exchange Commission. ACTION: Notice of Meeting of SEC Advisory Committee on Improvements to Financial Reporting. SUMMARY: The Securities and Exchange Commission Advisory Committee on Improvements to Financial Reporting is providing notice that it will hold a public telephone conference meeting on Thursday, July 31, 2008 beginning at 1 p.m. Members of the public may take part in the meeting by listening to the Webcast accessible on the Commission's Web site at *http://www.sec.gov* or by calling telephone number
(888)285-4585 and using code number 578070. Persons needing special accommodations to take part because of a disability should notify a contact person listed below. The agenda for the meeting includes adoption of the Committee's final report to the Commission. The Committee may also discuss written statements received and other matters of concern. The public is invited to submit written statements for the meeting, including any comments on the draft final report discussed at the Committee's July 11, 2008 open meeting available at *http://www.sec.gov/about/offices/oca/acifr.shtml.* DATES: Written statements should be received on or before July 22, 2008. ADDRESSES: Written statements may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet submission form *(http://www.sec.gov/rules/other.shtml);* or • Send an e-mail to *rule-comments@sec.gov.* Please include File Number 265-24 on the subject line. Paper Comments • Send paper statements in triplicate to Florence E. Harmon, Acting Federal Advisory Committee Management Officer, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File No. 265-24. This file number should be included on the subject line if e-mail is used. To help us process and review your statements more efficiently, please use only one method. The Commission staff will post all statements on the Advisory Committee's Web site ( *http://www.sec.gov/about/offices/oca/acifr.shtml* ). Statements and comments also will be available for public inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. All statements received will be posted without change; we do not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. FOR FURTHER INFORMATION CONTACT: James L. Kroeker, Deputy Chief Accountant, or Shelly C. Luisi, Senior Associate Chief Accountant, at
(202)551-5300, Office of the Chief Accountant, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-6561. SUPPLEMENTARY INFORMATION: In accordance with Section 10(a) of the Federal Advisory Committee Act, 5 U.S.C. App. 1, § 10(a), James L. Kroeker, Designated Federal Officer of the Committee, has approved publication of this notice. Dated: July 11, 2008. Florence E. Harmon, Acting Committee Management Officer. [FR Doc. E8-16351 Filed 7-16-08; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-58131; File No. SR-BSE-2008-37] Self-Regulatory Organizations; Boston Stock Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Extend the Current Pilot Program for Quarterly Options Series on the Boston Options Exchange Facility July 9, 2008. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on July 8, 2008, the Boston Stock Exchange, Inc. (“BSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I and II below, which Items have been prepared by the Exchange. The Exchange has designated this proposal as non-controversial under Section 19(b)(3)(A)(iii) of the Act 3 and Rule 19b-4(f)(6) thereunder, 4 which renders the proposed rule change effective upon filing with the Commission. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 15 U.S.C. 78s(b)(3)(A)(iii). 4 17 CFR 240.19b-4(f)(6). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange is proposing to extend until July 10, 2009, the current pilot program applicable to the Quarterly Options Series (“Pilot Program”) on the Boston Options Exchange (“BOX”) facility. The text of the proposed rule change is available on the Exchange's Web site ( *http://www.bostonstock.com* ), at the Exchange's principal office, and at the Commission's Public Reference Room. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The Exchange is proposing to extend through July 10, 2009, the Pilot Program on BOX to list options series that expire at the close of business on the last business day of a calendar quarter (“Quarterly Options Series”). 5 The Pilot Program is currently set to expire on July 10, 2008. Under the Pilot Program, BOX may open Quarterly Options Series on up to five
(5)currently listed options classes that are either index options or options on exchange traded funds (or “Exchange-Traded Fund Shares”). 6 BOX also may list Quarterly Options Series on any options classes that are selected by other securities exchanges that employ a similar pilot program under their respective rules. 5 *See* Securities Exchange Act Release No. 56086 (July 17, 2007), 72 FR 40182 (July 23, 2007) (SR-BSE-2007-36). 6 *See* Section 3 of Chapter IV of the BOX Rules pertaining to Exchange-Traded Fund Shares. The Exchange has selected the following five options classes to participate in the Pilot Program: the Standard & Poor's Depositary Receipts® (SPY); Powershares® QQQ Trust Series 1 (QQQQ); Diamonds® Trust Series 1 (DIA); iShares Russell 2000® Index Fund (IWM); and Select Sector SPDR®—Energy (XLE). The Exchange believes the Pilot Program has been successful and well received by its Participants and the investing public. Thus, the Exchange proposes to extend the Pilot Program through July 10, 2009. In support of this proposed rule change, and as stipulated in the original Pilot Program proposal, the Exchange submitted to the Commission a report (“BOX Pilot Report”) under separate cover, along with a request for confidential treatment under the Freedom of Information Act, detailing the Exchange's experience with the Pilot Program. 7 The Exchange also submitted, in an addendum to its Report (“Addendum”), data required by the recent amendment to the Pilot Program permitting the listing of additional ETF Quarterly Option Series. 8 Specifically, the BOX Pilot Report contains data and written analysis regarding the five options classes included in the Pilot Program. 7 As set forth in SR-BSE-2007-36, if the Exchange were to propose an extension, an expansion, or permanent approval of the Pilot Program, it would submit, along with any filing proposing such amendments to the Pilot Program, a report providing an analysis of the Pilot Program covering the entire period during which the Pilot Program was in effect, and would include, at a minimum:
(1)Data and written analysis on the open interest and trading volume in the classes for which Quarterly Option Series were opened;
(2)an assessment of the appropriateness of the option classes selected for the Pilot Program;
(3)an assessment of the impact of the Pilot Program on the capacity of BOX, OPRA, and market data vendors (to the extent data from market data vendors is available);
(4)any capacity problems or other problems that arose during the operation of the Pilot Program and how BOX addressed such problems;
(5)any complaints that the Exchange received during the operation of the Pilot Program and how BOX addressed them; and
(6)any additional information that would assist in assessing the operation of the Pilot Program. The report must be submitted to the Commission at least sixty
(60)days prior to the expiration date of the Pilot Program. 8 *See* Securities Exchange Act Release No. 57598 (April 1, 2008), 73 FR 18828 (April 7, 2008) (SR-BSE-2008-17) (notice of filing and immediate effectiveness of proposed rule change to amend Quarterly Options Series pilot program to permit the listing of additional series). In connection with any renewal or permanent approval of the Pilot Program, the Commission required the Exchange to include in its report an analysis of
(1)the impact of the additional series on the Exchange's market and quote capacity, and
(2)the implementation and effects of the delisting policy, including the number of series eligible for delisting during the period covered by the report, the number of series actually delisted during that period (pursuant to the delisting policy or otherwise), and documentation of any customer requests to maintain Quarterly Options Series strikes that were otherwise eligible for delisting. The Exchange represents that the Report and Addendum clearly demonstrate the extension of the Pilot Program for one year, through July 10, 2009, is warranted. The Exchange believes that there is sufficient investor interest and demand as reflected by strong trading volume. The Report and Addendum establish that the Pilot Program has provided investors with a flexible and valuable tool to manage risk exposure, minimize capital outlays, and the ability to more closely tailor their investment strategies and decisions to the movement of the underlying security. Furthermore, the Exchange has not detected any material proliferation of illiquid options series resulting from the introduction of the Pilot Program. Finally, the Report and Addendum establish that the Pilot Program has not created capacity problems, nor should the proposed extension have an adverse impact on capacity. 2. Statutory Basis The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act, 9 in general, and Section 6(b)(5) of the Act, 10 in particular, in that it is designed to promote just and equitable principles of trade, to prevent fraudulent and manipulative acts, to remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, to protect investors and the public interest. The Exchange believes that an extension of the Pilot Program will result in a continuing benefit to investors, by allowing them to more closely tailor their investment decisions, and will allow the Exchange to further study investor interest in quarterly options. 9 15 U.S.C. 78f(b). 10 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others The Exchange has neither solicited nor received comments on the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The Exchange has designated the proposed rule change as one that:
(1)Does not significantly affect the protection of investors or the public interest;
(2)does not impose any significant burden on competition; and
(3)does not become operative for 30 days from the date of filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest. Therefore, the foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act 11 and subparagraph (f)(6) of Rule 19b-4 thereunder. 12 11 15 U.S.C. 78s(b)(3)(A). 12 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii) requires a self-regulatory organization to provide the Commission with written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission. The Exchange has fulfilled this requirement. The Exchange has asked the Commission to waive the operative delay to permit the proposed rule change to become operative prior to the 30th day after filing. The Commission has determined that waiving the 30-day operative delay of the Exchange's proposal is consistent with the protection of investors and the public interest and will promote competition because such waiver will allow the Exchange to continue the existing Pilot Program without interruption. 13 Therefore, the Commission designates the proposal operative upon filing. 13 For purposes only of waiving the 30-day operative delay, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate the rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov.* Please include File No. SR-BSE-2008-37 on the subject line. Paper Comments • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-BSE-2008-37. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File No. SR-BSE-2008-37 and should be submitted on or before August 7, 2008. 14 17 CFR 200.30-3(a)(12). For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 14 Florence E. Harmon, Acting Secretary. [FR Doc. E8-16348 Filed 7-16-08; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-58127; File No. SR-CBOE-2008-68] Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the CBOE Fees Schedule July 9, 2008. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on June 30, 2008, the Chicago Board Options Exchange, Incorporated (“CBOE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the Exchange. CBOE has designated this proposal as one establishing or changing a due, fee, or other charge imposed by CBOE under Section 19(b)(3)(A)(ii) of the Act 3 and Rule 19b-4(f)(2) thereunder, 4 which renders the proposal effective upon filing with the Commission. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 15 U.S.C. 78s(b)(3)(A)(ii). 4 17 CFR 240.19b-4(f)(2). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change CBOE proposes to amend its Fees Schedule to establish fees for transactions in binary options on broad-based indexes and to amend its marketing fee program. The Exchange also proposes to make a technical amendment by deleting all references to the obsolete term “RMM” from its Fees Schedule. The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and *http://www.cboe.com* . II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change, and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. CBOE has substantially prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose *Establish Transaction Fees for Binary Options* The Exchange recently received approval to list and trade binary options on broad-based indexes, and the purpose of this rule change is to establish transaction fees for binary options on broad-based indexes. 5 The Exchange proposes to extend the existing fees for transactions in traditional index options to binary options on broad-based indexes. To affect the current proposal, the Exchange proposes to add a reference to “binary options” in Footnotes 1 and 6 in the CBOE Fees Schedule. 5 *See* Securities Exchange Act Release No. 57850 (May 22, 2008), 73 FR 31169 (May 30, 2008) (SR-CBOE-2006-105). The amount of the transactions fees for binary options on broad-based indexes would be as follows: • $0.20 per contract for Market-Maker, Designated Primary Market-Maker and Remote Market-Maker transactions; • $0.20 per contract for member firm proprietary transactions; The fees for broker-dealer transactions are as follows: • $0.25 per contract for manually executed transactions other than OEX, XEO and SPX; • $0.30 per contract for OEX or XEO; • $0.40 per contract for SPX; • $0.45 per contract for electronically executed transactions other than OEX, XEO and SPX ( *i.e.* , broker-dealer orders that are automatically executed on the CBOE Hybrid Trading System); 6 6 Broker-dealer manual and electronic transaction fees would apply to broker-dealer orders (orders with “B” origin code), non-member market-maker orders (orders with “N” origin code) and orders from specialists in the underlying security (orders with “Y” origin code). The fees for customer transactions shall be as follows: • $0.18 per contract for transactions other than OEX, XEO, SPX, DXL and Volatility Indexes; • $0.30 per contract for OEX or XEO; • $0.35 per contract for SPX, premium < $1; • $0.40 per contract for DXL and Volatility Indexes; • $0.45 per contract for SPX, premium > or = $1; • $0.30 per contract for Linkage Orders; and • $0.10 per contract CFLEX surcharge fee. In addition, a surcharge fee of $0.06 would apply to non-public customer transactions in binary options on OEX, XEO, SPX, and Volatility Indexes, and a surcharge fee of $0.10 would apply to non-public customer transactions in binary options on DJX, DXL, MNX, NDX, and RUT. These surcharge fees help the Exchange recoup license fees the Exchange pays to the different reporting authorities in order to list options on the respective broad-based indexes. The Exchange's Liquidity Provider Sliding Scale 7 would apply to transaction fees in binary options, but the Exchange's marketing fee 8 would not apply. The Exchange believes the rule change would further the Exchange's goal of introducing new products to the marketplace that are competitively priced. In order to promote the launch of binary options on broad-based indexes, the Exchange proposes to waive the applicable transactions fees beginning with the launch of trading on July 1, 2008 through October 1, 2008. 7 *See* Footnote 10 of the CBOE Fees Schedule. 8 *See* Footnote 6 of the CBOE Fees Schedule. Amend Exchange's Marketing Fee Program CBOE also proposes to amend its marketing fee program to assess the fee in XSP options at the rate of $0.10 per contract. XSP options are options based on the S&P 500® Index and have 1/10th the value of the S&P 500 index options. CBOE currently assesses its marketing fee at the rate of $0.10 per contract in SPY options, which are options on the SPDR exchange-traded fund
(ETF)which is designed to track the performance of the S&P 500® Index. CBOE believes that assessing the marketing fee in XSP will allow CBOE Market-Makers, e-DPMs, or DPMs to compete better for order flow in XSP options class if it assessed the marketing fee in it, just as it assesses the fee in SPY options. CBOE proposes to implement this change to the marketing fee program beginning on July 1, 2008. CBOE is not amending its marketing fee program in any other respects. Technical Change—Delete All References to “RMM” CBOE also proposes to make a technical amendment throughout its Fees Schedule. Specifically, CBOE proposes to delete all references to “RMM,” in light of the recent approval of SR-CBOE-2007-120, which filing deleted reference to RMM in CBOE's rules among other changes. 9 9 *See* Securities Exchange Act Release No. 57615 (April 3, 2008), 73 FR 19537 (April 10, 2008) (SR-CBOE-2007-120). 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act 10 in general, and furthers the objectives of Section 6(b)(4) of the Act 11 in particular, in that it is designed to provide for the equitable allocation of reasonable dues, fees, and other charges among CBOE members and other persons using its facilities. 10 15 U.S.C. 78f(b). 11 15 U.S.C. 78f(b)(4). B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were solicited or received with respect to the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing proposed rule change has been designated as a fee change pursuant to Section 19(b)(3)(A)(ii) of the Act 12 and Rule 19b-4(f)(2) 13 thereunder, because it establishes or changes a due, fee, or other charge imposed by the Exchange. Accordingly, the proposal will take effect upon filing with the Commission. At any time within 60 days of the filing of such proposed rule change the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. 12 15 U.S.C. 78s(b)(3)(A)(ii). 13 17 CFR 240.19b-4(f)(2). IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@gov.* Please include File Number SR-CBOE-2008-68 on the subject line. Paper Comments • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-CBOE-2008-68. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml)* . Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of CBOE. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-CBOE-2008-68 and should be submitted on or before August 7, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 14 14 17 CFR 200.30-3(a)(12). Florence E. Harmon, Acting Secretary. [FR Doc. E8-16345 Filed 7-16-08; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-58139; File No. SR-ISE-2008-54] Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change and Amendment No. 2 Thereto Relating to Changes to the Fee Schedule July 10, 2008. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”), 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on June 30, 2008, the International Securities Exchange, LLC (the “Exchange” or the “ISE”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II, and III below, which items have been prepared by the self-regulatory organization. On July 9, 2008, the ISE filed Amendment No. 1 to the proposed rule change. On July 9, 2008, the ISE withdrew Amendment No. 1 and filed Amendment No. 2 to the proposed rule change. The Commission is publishing this notice to solicit comments on the proposed rule change, as amended, from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The ISE is proposing to amend its Schedule of Fees to extend two fee waivers and to remove reference to two expiring fee pilots. The amendment also simplifies the fee schedule by imbedding the “comparison” fee into the “execution” fee. The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and *http://www.ise.com.* II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change *Purpose* —The purpose of this proposed rule change is to extend the pilot fee waivers for Premium Products and Second Market options, adopt a new pilot fee waiver related to FX options, and remove reference to expiring pilot fee discounts. The Exchange also proposes to simplify the way in which certain current fees are stated in the fee schedule. These changes will be operative on July 1, 2008. 1. Pilot Extensions First, ISE currently waives most customer transaction fees, with such waiver scheduled to expire on June 30, 2008. 3 In order to remain competitive in the market place, we propose to extend this waiver through June 30, 2009. 3 *See* Securities Exchange Act Release No. 56055 (June 12, 2007), 72 FR 39648 (June 19, 2007) (SR-ISE-2007-52). Second, pursuant to a pilot program, ISE offers a fee discount for certain orders of 7,500 contracts or more that are executed in the Exchange's Facilitation Mechanism. 4 Specifically, ISE waives
(1)the execution and comparison fee on incremental volume above 7,500 contracts for Firm Proprietary orders, Non-ISE Market Maker orders, and Customer orders in Premium Products, and
(2)the execution fee on incremental volume above 7,500 contracts for Customer orders in Second Market options. 5 The number of contracts at or under the threshold are charged as per the Exchange's Schedule of Fees. ISE believes that extending a fee cap for large-sized orders executed in its Facilitation Mechanism will help strengthen its competitive position and encourage members to use the Exchange's Facilitation Mechanism. 4 *See* Securities Exchange Act Release No. 57129 (January 10, 2008), 73 FR 2963 (January 16, 2008) (SR-ISE-2008-1). 5 The Exchange notes that there is no comparison fee for orders in Second Market options. The current pilot program is set to expire on June 30, 2008. The Exchange proposes to extend the fee cap for another year, until June 30, 2009. With regards to the two fee pilots that are being extended, the Exchange notes that it is making no substantive changes to the way the two fee pilots currently operate, other than to extend the date of operation through June 30, 2009. 2. New Pilot Fee Waiver for FX Options The Exchange proposes to adopt a fee cap for large-size foreign currency (“FX”) options orders. Specifically, the Exchange proposes, for a one-year pilot expiring on June 30, 2009, to waive the transaction fee on incremental volume above 5,000 for single-sized FX options orders of at least 5,000 contracts. The number of contracts at or under the threshold are charged the constituent's prescribed execution fee. This waiver is for both Public Customer orders and Firm Proprietary orders. The ISE believes that that this fee cap for large-sized orders in FX options will encourage members to execute large-sized orders on the Exchange. 3. Pilot Expirations The Exchange also proposes to amend its Schedule of Fees to remove from that schedule references to two pilot programs that will terminate on June 30, 2008 and that the Exchange is not extending. Pursuant to those pilots, the Exchange
(1)capped and waived fees when a firm reached certain volume thresholds in options on the NASDAQ-100 Index Tracking Stock® (“QQQQ®”) and the iShares Russell 2000® Index Fund (“IWM”), and
(2)capped and waived fees for members that achieved certain threshold levels in the Exchange's Facilitation Mechanism. In light of the Exchange's increase market share in QQQQ and IWM and the level of trading in its Facilitation Mechanism, achieved in large part due to these fee pilot programs, ISE does not believe there is a need to continue to provide a fee discount as an incentive to members. 4. Consolidation of Execution and Comparison Fees Currently on the fee schedule, the Exchange separately itemizes execution fees and a comparison fee. The Exchange proposes to eliminate the comparison fee as a separate line item and instead imbed the fee into the execution fee. Historically, the Exchange has waived comparison fees in parallel with execution fees. Therefore, this change will not change the actual amount being charged to any members, but will simplify the fee schedule so that total transaction costs are more easily understood. *Statutory Basis* —The basis under the Act for this proposed rule change is the requirement under Section 6(b)(4) that an exchange have an equitable allocation of reasonable dues, fees and other charges among its members and other persons using its facilities. The Exchange believes the fee changes proposed by this filing are reasonable in that, with regards to the fee waivers, the proposed rule change waives most fees for customer transactions and for certain trades in FX Options; with regards to the fee pilot terminations, the Exchange believes there is no longer a need to provide an incentive to trade in those products or in the Exchange's Facilitation Mechanism; with regards to the fee consolidation, the proposed rule change will simplify the fee schedule. The Exchange notes that the fee changes are also equitably allocated in that they equally apply to all members of the Exchange. B. Self-Regulatory Organization's Statement on Burden on Competition The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing rule change has become effective pursuant to Section 19(b)(3) of the Act 6 and Rule 19b-4(f)(2) 7 thereunder because it establishes or changes a due, fee, or other charge imposed on members by ISE. At any time within 60 days of the filing of such proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. 8 6 15 U.S.C. 78s(b)(3)(A). 7 17 CFR 19b-4(f)(2). 8 For purposes of calculating the 60-day period within which the Commission may summarily abrogate the proposed rule change under Section 19(b)(3)(C) of the Act, the Commission considers the period to commence on July 9, 2008, the date on which the ISE submitted Amendment No. 2. *See* 15 U.S.C. 78s(b)(3)(C). IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov.* Please include File Number SR-ISE-2008-54 on the subject line. Paper Comments • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-ISE-2008-54. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make publicly available. All submissions should refer to File Number SR-ISE-2008-54 and should be submitted on or before August 7, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 9 9 17 CFR 200.30-3(a)(12). Florence E. Harmon, Acting Secretary. [FR Doc. E8-16363 Filed 7-16-08; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-58145; File No. SR-NASDAQ-2008-016] Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing of Proposed Rule Change To Establish Fees for Nasdaq Market Pathfinders Service July 11, 2008. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”), 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on June 27, 2008, The NASDAQ Stock Market LLC (“Nasdaq” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been prepared substantially by Nasdaq. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change Nasdaq is filing with the Commission a proposed rule change to establish fees to make Nasdaq Market Pathfinders service available via either a Web-based data product or via a data feed that will provide aggregated market activity of certain market participants referred to as “Pathfinders.” The text of the proposed rule change is below. All text is new. 7044. Nasdaq Market Pathfinders Service
(a)The Nasdaq Market Pathfinders Service will allow participating subscribers to view a real time data product that tracks the aggregated market activity of certain market participants who are aggressively buying and/or selling.
(b)Standard Charge.
(1)30-Day Free-Trial Offer. Nasdaq shall offer all new and potential new Nasdaq Market Pathfinders subscribers a 30-day waiver of the user fees for the service. This waiver may be provided only once to a specific new subscriber or potential subscriber.
(2)The following charges shall apply to Nasdaq Market Pathfinders subscribers and to new subscribers after the conclusion of the 30-day waiver period:
(A)Professional subscriber access to view and print the Web reports shall be available for a fee of $50/month;
(B)Non-professional subscriber access to view and print the Web reports shall be available for a fee of $10/month; and
(C)Access to the data feed shall be available to any subscriber for a fee of $2,500/month. Subsequent subscriber licenses will cost the fees set forth in (b)(1) and (2), above. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, Nasdaq included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose Nasdaq proposes to establish fees for a new data service that tracks the aggregated buying and selling patterns of market participants, or “Pathfinders,” that are aggressively buying or selling stocks traded on Nasdaq transaction systems. Nasdaq has created the new product to address what it perceives to be a demand for a Nasdaq product that provides a real time indication of how aggressively thse market participants are buying or selling a particular stock. To determine Pathfinders, Nasdaq identifies market participants that are taking a position (bullishly lengthening their position or bearishly shortening their position) over an extended period of time. The Nasdaq Market Pathfinders product will capture the aggregate sentiment of this well informed group by indicating the number of Pathfinders bullish versus bearish in a particular stock and the ratio of shares bought versus sold by Pathfinders. The Nasdaq Market Pathfinders information will be updated periodically for every issue traded by Nasdaq. At each update, Nasdaq will identify Pathfinders over several time periods such as: the past five minutes, the past one hour, and the past two hours. Net trading activity is calculated for all market participants over such time periods and those that have been consistently lengthening or shortening their position in a stock over that time period are identified as Pathfinders. Pathfinders are kept anonymous and the aggregation of their buy versus sell shares is used to determine whether this group is bullish or bearish on a particular security. Pathfinder information will be used in an aggregate manner that does not directly or indirectly identify a particular Pathfinder as the source of the information. To calculate the Pathfinder statistics, Nasdaq begins by determining which market participants to designate as Pathfinders. To do this Nasdaq calculates the total shares bought and sold by each market participant in each security. Nasdaq then compares the number bought and sold, for example 9,000 shares bought and 1,000 shares sold (a buy-sell ratio of 9:1). A Pathfinder is a market participant that has an extreme buy-sell ratio, for example having a buy-sell ratio of 9:1 or 1:9. Any market participant meeting that standard will be considered to be a Pathfinder. In the second stage, Nasdaq will calculate the aggregate buy-sell ratio for all the Pathfinders as a group. There must be a minimum of three Pathfinders identified in a stock for a time period. If fewer than three are identified, then Nasdaq will not distribute Pathfinders data because it could compromise the identity and buying and selling behavior of an individual market participant. The aggregate buy-sell ratio for Pathfinders is expressed in two ways. The first is the ratio of the number of Pathfinders predominantly buying compared to Pathfinders predominantly selling. The second is the ratio of shares bought to shares sold by Pathfinders as a group. For example, if only one Pathfinder is buying and five are selling then the buy-sell ratio is 1:5 in the count of Pathfinders buying to selling. If the one Pathfinder buying has bought 100,000 shares while the five selling have sold only 10,000 shares total, then the ratio is 10:1 in the volume of Pathfinder buying to selling. The Nasdaq Market Pathfinders service will provide subscribers with the ability to detect changes in market sentiment in stocks traded on Nasdaq transaction systems, and thereby to gauge market sentiment based on those buying and selling patterns. The information will be disseminated in a data feed that provides the current Pathfinders' situation for each stock over multiple time periods. In some stocks and time periods there will not be any market participants that qualify as Pathfinders. In those cases, the Nasdaq Market Pathfinders product will indicate a neutral situation. There will be two main areas in which this service will be deployed. The first level of service will enable users to access the product through the web with a graphical user interface linked to the data. A single subscriber will be able to construct a variety of custom queries and view and print this data. The second level of service will allow a subscriber to gain direct access to the raw data via the Nasdaq Market Pathfinders data feed. Given the purely voluntary nature of this service, Nasdaq anticipates that this filing will not be contentious in that no firm or individual will be forced to purchase the product or pay a fee to which they object. Further, the 30-day free-trial period will allow the subscriber community to assess the business use and value of the new service prior to making a decision whether or not to purchase the product for a longer period. 2. Statutory Basis Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act, 3 in general, and with Section 6(b)(4) of the Act, 4 in particular, in that the proposal provides for the equitable allocation of reasonable dues, fees, and other charges among members and issuers and other persons using any facility or system which Nasdaq operates or controls, and it does not unfairly discriminate between customers, issuers, brokers or dealers. Use of Pathfinders service is voluntary and the subscription fees will be imposed on all purchasers equally based on the professional/non-professional status of issuers and/or the level of service selected. The proposed fees will cover the costs associated with establishing the service, responding to customer requests, configuring Nasdaq's systems, programming to user specifications, and administering the service, among other things. 3 15 U.S.C. 78f. 4 15 U.S.C. 78f(b)(4). B. Self-Regulatory Organization's Statement on Burden on Competition Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others Written comments were neither solicited nor received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the date of publication of this notice in the **Federal Register** or within such longer period
(i)as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or
(ii)as to which the self-regulatory organization consents, the Commission will: A. By order approve such proposed rule change, or B. Institute proceedings to determine whether the proposed rule change should be disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov.* Please include File No. SR-NASDAQ-2008-016 on the subject line. Paper Comments • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-NASDAQ-2008-016. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NASDAQ-2008-016 and should be submitted on or before August 7, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 5 5 17 CFR 200.30-3(a)(12). Florence E. Harmon, Acting Secretary. [FR Doc. E8-16346 Filed 7-16-08; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-58137; File No. SR-NYSE-2008-55] Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Amending Rule 17 To Address Issues Related to Vendor Liability July 10, 2008. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on July 7, 2008, New York Stock Exchange LLC (“NYSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I and II below, which Items have been prepared by the Exchange. The Exchange filed the proposal as a “non-controversial” proposed rule change pursuant to Section 19(b)(3)(A) 3 of the Act and Rule 19b-4(f)(6) thereunder, 4 which renders the proposal effective upon filing with the Commission. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 15 U.S.C. 78s(b)(3)(A). 4 17 CFR 240.19b-4(f)(6). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend NYSE 17 to address issues related to vendor liability. The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and *http://www.nyse.com* . II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change, and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. NYSE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The Exchange proposes to amend NYSE Rule 17 to address issues related to vendor liability. Background Currently, NYSE Rule 17(a) provides: The Exchange shall not be liable for any damages sustained by a member, allied member or member organization growing out of the use or enjoyment by such member, allied member or member organization of the facilities afforded by the Exchange, except as provided in the rules. 5 5 *See* NYSE Rule 18 (Compensation in Relation to Exchange System Failure), which provides for compensation by the Exchange to members and member organizations for a loss sustained as a result of an NYSE systems failure, as defined by the Rule. NYSE Rule 17 does not specifically address liability for any loss sustained by a member or member organization arising from use of any systems, services or facilities provided by a vendor to the Exchange. Due to the highly diversified nature of the Exchange business and trading operations, the Exchange retains the services of various vendors in its regular course of business. Through this amendment, the Exchange proposes to amend NYSE Rule 17 to permit the Exchange to expressly provide in the contract with any vendor that it and/or its subcontractors of electronic systems, services or facilities are not liable for any loss sustained by a member or member organization arising from use of the vendor and/or subcontractor systems, services or facilities. The proposed amendment to NYSE Rule 17 would further require members and member organizations to indemnify the Exchange and its vendors and/or subcontractors. Proposed Amendment to NYSE Rule 17 In recent years, especially since the adoption of Regulation National Market System (“Reg. NMS”), 6 customers have demanded, and thus exchanges have prioritized, the delivery of faster and increasingly more innovative products for order entry and execution and the dissemination of market information. In order to provide this service, exchanges have made significant investments in technology, including an increase in the use of third-party facilities and services. Exchanges have increasingly come to rely on third-party vendors to provide additional facilities or services. Third-party vendors often provide similar facilities or services directly to broker-dealers and other customers under contracts that limit or indemnify the vendor's liability for use of its facilities or services. The use of vendors enables exchanges to increase their capacity to deliver faster and more efficient trading tools to market, with the ultimate beneficiaries being the investing public. In order for exchanges to remain competitive and provide a marketplace that removes impediments to, and perfects the mechanism of, a free and open market, it is imperative to have the ability to use third-party vendor services. 6 Securities Exchange Act Release No. 51808 (June 9, 2005), 70 FR 37496 (June 29, 2005) (File No. S7-10-04). The Exchange believes that, where vendors provide the facilities and services directly to an exchange and not directly to the actual users, *i.e.* , the exchange members, vendors may find themselves exposed to a greater risk of liability from exchange members. The possibility of liability to end-users with whom they have no contractual relationship could result in vendors being unwilling to enter into agreements to provide their services to exchanges. The Exchange therefore proposes to amend NYSE Rule 17 to incorporate as paragraph
(b)of the Rule the provisions of American Stock Exchange (“Amex”) Rule 60—AEMI 7 (“Vendor Liability Disclaimer”), which provides as follows: 7 Amex Rule 60, Commentary.03 sets forth the original Vendor Liability Disclaimer language that has been incorporated into Amex Rule 60—AEMI. AEMI (“Auction & Electronic Market Integration”) is Amex's Hybrid Market Structure for equities and exchange-traded funds. The Exchange notes that on January 17, 2008, it announced that it had entered into a definitive agreement to acquire the Amex. On June 17, 2008, the Exchange and the Amex announced that members of the Amex Membership Corporation / (“AMC”) approved the adoption of the merger agreement between AMC and NYSE Euronext and certain of their subsidiaries. *See* NYSE News Release, January 17, 2008; *see also* NYSE News Release, June 17, 2008. In connection with member or member organization use of any electronic system, service, or facility provided by the Exchange to members for the conduct of their business on the Exchange
(i)the Exchange may expressly provide in the contract with any vendor providing all or part of such electronic system, service, or facility to the Exchange, that such vendor and its subcontractors shall not be liable to the member or member organization for any damages sustained by a member or member organization growing out of the use or enjoyment thereof by the member or member organization, and
(ii)members and member organizations shall indemnify the Exchange and any vendor and subcontractor covered by subsection
(i)above (and their directors, officers, employees and agents) with regard to any and all judgments, damages, costs, or losses of any kind (including reasonable attorneys' fees and expenses), as a result of any claim, action, or proceeding that arises out of or relates to the member or member organization's use of such electronic system, service, or facility. 8 8 Amex Rule 60-AEMI. The Exchange believes that the proposed amendment to NYSE Rule 17 will allow the Exchange to continue to improve its services to its investors by allowing the Exchange to contract the services of premiere third-party vendors. The Exchange also proposes to make a stylistic change to paragraph
(a)of NYSE Rule 17 dealing with Exchange Liability. Specifically, the Exchange seeks to replace the reference to “the rules” with “NYSE Rule 18,” which directly addresses the issue of Exchange Liability. 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act, 9 in general, and furthers the objectives of Section 6(b)(5) of the Act, 10 in particular, in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. The Exchange believes the proposed rule promotes just and equitable principles of trade and protects investors and the public interest. Furthermore, the proposed vendor liability rule removes impediments to and perfects the mechanism of a free and open market by providing disclaimer liability to vendors that assist the Exchange in providing faster delivery and increasingly more innovative facilities and services to Exchange customers. The Exchange believes that the provision of liability protection to third-party vendors and subcontractors of electronic systems, services, or facilities from liability for any damages sustained by a member or member organization arising from use of their systems will allow the Exchange to provide faster delivery and increasingly more innovative facilities and services to Exchange customers. 9 U.S.C. 78f(b). 10 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were solicited or received with respect to the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Because the proposed rule change does not:
(i)Significantly affect the protection of investors or the public interest;
(ii)impose any significant burden on competition; and
(iii)become operative for 30 days after the date of filing (or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest), the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act 11 and subparagraph (f)(6) of Rule 19b-4 thereunder. 12 11 15 U.S.C. 78s(b)(3)(A). 12 17 CFR 240.19b-4(f)(6). A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative prior to 30 days after the date of filing. 13 However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has requested that the Commission waive the 30-day operative delay and designate the proposed rule change operative upon filing. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest. Because this filing proposes vendor liability provisions substantively identical to an Amex rule that has previously been approved by the Commission, 14 the proposal does not appear to present any novel regulatory issues. Therefore, the Commission designates the proposal operative upon filing. 15 13 17 CFR 240.19b-4(f)(6)(iii). The Exchange has satisfied the five-day pre-filing requirement of Rule 19b-4(f)(6)(iii). 14 *See supra,* note 8. 15 For purposes only of waiving the operative delay of this proposal, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in the furtherance of the purposes of the Act. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov.* Please include File Number SR-NYSE-2008-55 on the subject line. Paper Comments • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-NYSE-2008-55. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NYSE-2008-55 and should be submitted on or before August 7, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 16 16 17 CFR 200.30-3(a)(12). Florence E. Harmon, Acting Secretary. [FR Doc. E8-16349 Filed 7-16-08; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-58142; File No. SR-NYSEArca-2008-70] Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Amending NYSE Arca Equities Rule 5.2(j)(6)(B)(I), the Generic Listing Standard for Equity Index-Linked Securities July 11, 2008. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on June 27, 2008, NYSE Arca, Inc. (“NYSE Arca” or “Exchange”), through its wholly owned subsidiary, NYSE Arca Equities, Inc. (“NYSE Arca Equities”), filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend NYSE Arca Equities Rule 5.2(j)(6)(B)(I), the Exchange's generic listing standard for equity index-linked securities (“Equity Index-Linked Securities”) to:
(1)Eliminate initial and continued listing capitalization weighted and modified capitalization weighted index requirements; and
(2)to adjust certain equity index weighting criteria and adopt notional volume traded per month to both initial listing standards and continued listing standards. The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and *http://www.nyse.com* . II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose NYSE Arca proposes to amend NYSE Arca Equities Rule 5.2(j)(6)(B)(I), the Exchange's generic listing standard for Equity Index-Linked Securities. Specifically, the Exchange proposes to:
(1)Eliminate initial and continued listing capitalization weighted and modified capitalization weighted index requirements; and
(2)to adjust certain equity index weighting criteria and adopt notional volume traded per month to both the initial listing standards and continued listing standards. For Equity Index-Linked Securities, the Exchange proposes to eliminate NYSE Arca Equities Rule 5.2(j)(6)(B)(I)(1)(b)(iii), the current initial listing requirement that, in the case of a capitalization weighted index or modified capitalization weighted index, the lesser of the five highest dollar weighted component securities in the index or the highest dollar weighted component securities in the index that in the aggregate represent at least 30% of the total number of component securities in the index, must have an average monthly trading volume of at least 2,000,000 shares over the previous six months. The Exchange also proposes to eliminate NYSE Arca Equities Rule 5.2(j)(6)(B)(I)(2)(a)(iii), 3 the current continued listing requirement, that in the case of a capitalization weighted index or modified capitalization weighted index, the lesser of the five highest dollar weighted component securities in the index or the highest dollar weighted component securities in the index that in the aggregate represent at least 30% of the total number of stocks in the index have an average monthly trading volume of at least 1,000,000 shares over the previous six months. 3 E-mail from Timothy J. Malinowski, Director, NYSE Euornext, to Michou H.M. Nguyen, Special Counsel, and Steve Varholik, Attorney-Advisor, Division of Trading and Markets, Commission, on July 10, 2008 (correcting the citations to NYSE Arca Equities Rules 5.2(j)(6)(B)(I)(2)(a)(iii) and 5.2(j)(6)(B)(I)(2)(a)(ii), respectively.) (“July 10 e-mail”). The Exchange does not believe that it is consistent or justified to impose specific trading volume requirements applicable only to capitalization weighted or modified capitalization weighted indexes, since both of these index methodologies do not raise any unique characteristics that merit the application of the current initial and continued listing standard. Rather, the Exchange proposes that capitalization weighted index or modified capitalization weighted indexes comply with the initial and continued listing requirements currently applicable to all other equity indexes under NYSE Arca Equities Rule 5.2(j)(6)(B)(I) regardless of the index methodology. The Exchange notes that the Exchange's exchange-traded fund (“ETF”) listing standard 4 does not impose equity index requirements on capitalization weighted and modified capitalization weighted indexes. 4 *See* NYSE Arca Equities Rule 5.2(j)(3) Commentary .01. Currently for initial listing, Rule 5.2(j)(6)(B)(I)(1)(b)(ii) provides that each component security of an equity index shall have trading volume in each of the last six months of not less than 1,000,000 shares per month, except that for each of the lowest weighted component securities in the index that in the aggregate account for no more than 10% of the weight of the index, the trading volume will be at least 500,000 shares per month in each of the last six months. The Exchange is proposing to:
(i)Remove the requirement that each of the lowest weighted component securities in the index that in the aggregate account for 10% of the weight of the index have trading volume of at least 500,000 shares per month for each of the last six months; and
(ii)adopt minimum global notional volume (“Global Notional Volume”) 5 traded per month of $25,000,000 averaged over of the last six months as an option for meeting the listing requirements. Proposed Rule 5.2(j)(6)(B)(I)(1)(b)(ii) sets forth: 5 Global Notional Volume is defined as the total shares traded globally times the price per share. Component stocks that in the aggregate account for at least 90% of the weight of the index each shall have a minimum global monthly trading volume of 1,000,000 shares, or minimum Global Notional Volume traded per month of $25,000,000, averaged over the last six months. With respect to the continued listing criteria, Rule 5.2(j)(6)(B)(I)(2)(a)(ii) 6 currently sets forth that the trading volume of each component security in the index must be at least 500,000 shares for each of the last six months, except that for each of the lowest weighted components in the index that in the aggregate account for no more than 10% of the weight of the index, trading volume must be at least 400,000 shares for each of the last six months. 6 *See* July 10 e-mail *supra* note 3. The Exchange is proposing to:
(i)Remove the requirement that the lowest weighted component securities in the index that in the aggregate accounting for no more than 10% of the weight of the index have trading volume of at least 400,000 shares for each of the last six months; and
(ii)adopt minimum Global Notional Volume traded per month of $12,500,000 averaged over the last six months as an option for satisfying the continued listing requirements. Proposed Rule 5.2(j)(6)(B)(I)(2)(ii) sets forth: Component stocks that in the aggregate account for at least 90% of the weight of the index each shall have a minimum global monthly trading volume of 500,000 shares, or minimum Global Notional Volume traded per month of $12,500,000, averaged over the last six months. With respect to both the initial listing and continued listing standards, the Exchange believes that considering the weighting of the bottom 10% component securities is insignificant for determining the liquidity of the index. Rather, the Exchange proposes that focusing on 90% of the top weighted index component securities is a better indication as to whether the index or indexes has sufficient liquidity for listing and trading of the related Equity Index-Linked Security. With respect to adopting, as an alternative to monthly trading volume, the minimum Global Notional Volume traded averaged over the last six months to both the initial and continued listing standards, the Exchange believes that averaged notional volume traded per month is a better measure of the liquidity of component stocks of the underlying index or indexes. Specifically, notional volume nullifies the volume discrepancies that generally occur between low-priced and high-priced stocks. 7 In addition, adopting an average of the trading volume and notional volume over six months eliminates seasonal volume fluctuations that may occur in the trading volume of a particular underlying security represented in the index or indexes. 8 7 For example, a stock priced at $10 per share that trades 2,500,000 shares in a month has a notional volume of $25,000,000. Conversely, a stock priced at $100 per share that trades 250,000 shares in a month has a notional volume of $25,000,000. 8 *See* July 10 e-mail *supra* note 3 (clarifying that the adoption of six month average applies to both trading volume and Global Notional Volume traded). Further, investors, Equity Index-Linked Securities issuers, and third-party index sponsors would also benefit from NYSE Arca's ability to list—without the delay associated with a stand-alone rule filing—Equity Index-Linked Securities based on a broader group of indexes, promoting competition. 2. Statutory Basis The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act, 9 in general, and furthers the objectives of Section 6(b)(5) of the Act, 10 in particular, in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments to and perfect the mechanisms of a free and open market and a national market system, and, in general, to protect investors and the public interest. The Exchange believes that the proposed rules applicable to trading pursuant to generic listing and trading criteria, together with the Exchange's surveillance procedures applicable to trading in the securities covered by the proposed rules, serve to foster investor protection. 9 15 U.S.C. 78f. 10 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others No written comments were solicited or received with respect to the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the date of publication of this notice in the **Federal Register** or within such longer period
(i)as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reason for so finding or
(ii)as to which the Exchange consents, the Commission will: A. By order approve such proposed rule change; or B. Institute proceedings to determine whether the proposed rule change should be disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov.* Please include File Number SR-NYSEArca-2008-70 on the subject line. Paper Comments • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090. All submissions should refer to File Number SR-NYSEArca-2008-70. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NYSEArca-2008-70 and should be submitted on or before August 7, 2008. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 11 Florence E. Harmon, Acting Secretary. 11 17 CFR 200.30-3(a)(12). [FR Doc. E8-16350 Filed 7-16-08; 8:45 am] BILLING CODE 8010-01-P DEPARTMENT OF STATE [Public Notice 6299] Bureau of Educational and Cultural Affairs
(ECA)Request for Grant Proposals: Study of the United States Institute on U.S. National Security Policymaking in a Post 9/11 World *Announcement Type:* New Cooperative Agreement. *Funding Opportunity Number:* ECA/A/E/USS-09-01. *Catalog of Federal Domestic Assistance Number:* 19.418. *Key Dates:* *Application Deadline:* September 17, 2008. *Executive Summary:* The Branch for the Study of the U.S., Office of Academic Exchange Programs, Bureau of Educational and Cultural Affairs (ECA/A/E/USS), invites proposal submissions for the design and implementation of the Study of the United States Institute on U.S. National Security Policymaking in a Post 9/11 World. This institute will provide a multinational group of up to 18 experienced foreign university educators and other professionals with a deeper understanding of U.S. approaches to national security policymaking, past and present, in order to strengthen curricula and to improve the quality of teaching about the United States at universities and other institutions abroad. The institute should be an intensive, academically rigorous program for scholars and other professionals from outside the United States, and should have a central theme and a strong contemporary component. It is anticipated that this grant will be awarded on or about October 15, 2008, pending the availability of funds. This six-week program, to be conducted during the winter of 2009, must include a four-week academic residency segment at a U.S. college or university campus (or other appropriate U.S. location) and a two-week study tour segment that complements the academic residency segment. The study tour segment must include a visit to Washington, D.C. that involves substantive briefings by national security policy professionals from the Department of State, other relevant U.S. government agencies, and private institutions. I. Funding Opportunity Description Authority Overall grant making authority for this program is contained in the Mutual Educational and Cultural Exchange Act of 1961, Pub. L. 87-256, as amended, also known as the Fulbright-Hays Act. The purpose of the Act is “to enable the Government of the United States to increase mutual understanding between the people of the United States and the people of other countries * * *; to strengthen the ties which unite us with other nations by demonstrating the educational and cultural interests, developments, and achievements of the people of the United States and other nations * * * and thus to assist in the development of friendly, sympathetic and peaceful relations between the United States and the other countries of the world.” The funding authority for the program above is provided through legislation. *Purpose:* The Bureau is seeking a detailed proposal for a Study of the United States (U.S.) Institute on U.S. National Security issues from colleges, universities, consortia of colleges and universities, and other not-for-profit academic organizations that have an established reputation in one or more of the following fields: Political science, international relations, law, military science, and/or other disciplines or sub-disciplines related to the program themes. The institute should be organized around a central theme or themes in U.S. national security policy planning and formulation and should illuminate contemporary political, social, and economic debates in American society. The institute is intended to offer up to 18 foreign scholars and other professionals, whose professional work focuses in whole or in substantial part on the United States, the opportunity to deepen their understanding of American society, culture and institutions. The ultimate goal is to strengthen curricula, to improve the quality of teaching, and to broaden understanding of U.S. national security policymaking in universities and other institutions of influence abroad. *This Study of the United States Institute program should:* 1. Provide participants with a survey of contemporary scholarship within the institute's governing academic discipline. The proposal should describe how current scholarly debates within the field will be presented; 2. Give participants a multi-dimensional examination of U.S. society and institutions that reflects a broad and balanced range of perspectives and responsible views from scholars and other professionals, such as government officials, and private practitioners; and, 3. Ensure access to library and material resources that will enable grantees to continue their research, study and curriculum development upon returning to their home institutions. Program Description 1. Study of the U.S. Institute on U.S. National Security: U.S. National Security Policymaking in a Post 9/11 World This Institute should provide participants an opportunity to increase their understanding of the foundations and formulation of U.S. national security policy, U.S. views on basic U.S. national security and defense requirements, and how those views have evolved in the post-Cold War era and in the ongoing global fight against terrorism. This multi-disciplinary program should examine historical, political, geographic, and economic factors involved in U.S. national security policymaking. This intensive, academically rigorous program should integrate lectures, readings, seminar discussions, regional travel and site visits. The institute also should include opportunities for limited but well-directed independent research. Proposals should describe a thematically coherent program that maximizes institutional strengths, faculty, and resources, as well as recognized scholars and experts from throughout the United States. The program must conform with Bureau requirements and guidelines outlined in the Solicitation Package. Bureau programs are subject to the availability of funds. *Participants:* Participants will be diverse in age, professional position, and travel experience abroad. While participants may not have in-depth knowledge of the particular institute program theme, they will likely have had exposure to the relevant discipline and some experience teaching about the United States. Participants will be drawn from all regions of the world and will be fluent or proficient in the English language. Fulbright Commissions and U.S. Embassies abroad will nominate candidates, and final selections will be made by the Bureau. A final list of participants will be sent to the grantee institution. *Program Dates:* The anticipated award date for this cooperative agreement will be on or about October 15, 2008. Program activities should begin shortly thereafter. The institute should be approximately 44 days in length (including participant arrival and departure days), should begin in early January, and end in late February or early March 2009. *Program Guidelines:* Proposals provide a comprehensive narrative describing the objectives of the institute; the title, scope and content of each session; and how each session relates to the overall institute theme. A syllabus must indicate the subject matter for each lecture or panel discussion, identify proposed lecturers and discussants, and demonstrate how assigned readings support each session. A calendar of all activities for the program must also be included. Proposals will be reviewed for the completeness and clarity with which they respond to the individual review criteria referenced in Section V.1. Note: In a cooperative agreement, ECA/A/E/USS is substantially involved in program activities above and beyond routine grant monitoring. *ECA/A/E/USS activities and responsibilities for this program are as follows:* Completing the final selection of participants; Exercising oversight with one or more site visits; Coordinating and arranging briefings by officials from the Department of State; and, Debriefing participants. ECA/A/E/USS may also require changes in the content of the program as well as the activities proposed either before or after the grant is awarded. II. Award Information *Type of Award:* Cooperative Agreement. ECA's level of involvement in this program is listed under number I above. *Fiscal Year Funds:* FY-09. *Approximate Total Funding:* $290,000. *Approximate Number of Awards:* 1. *Approximate Average Award:* $290,000. *Anticipated Award Date:* Pending availability of funds, October 15, 2009. *Anticipated Project Completion Date:* March 30, 2009. *Additional Information:* Pending successful implementation of this program and the availability of funds in subsequent fiscal years, it is ECA's intent to renew this grant for two additional fiscal years, before openly competing it again. III. Eligibility Information *III.1. Eligible applicants:* Applications may be submitted by colleges, universities, consortia of colleges and universities, and other not-for-profit academic organizations that meet the provisions described in Internal Revenue Code section 26 U.S.C. 501(c)(3). *III.2. Cost Sharing or Matching Funds:* There is no minimum or maximum percentage required for this competition. However, the Bureau encourages applicants to provide maximum levels of cost sharing and funding in support of its programs. When cost sharing is offered, it is understood and agreed that the applicant must provide the amount of cost sharing as stipulated in its proposal and later included in an approved grant agreement. Cost sharing may be in the form of allowable direct or indirect costs. For accountability, you must maintain written records to support all costs which are claimed as your contribution, as well as costs to be paid by the Federal government. Such records are subject to audit. The basis for determining the value of cash and in-kind contributions must be in accordance with OMB Circular A-110 (Revised), Subpart C.23—Cost Sharing and Matching. In the event you do not provide the minimum amount of cost sharing as stipulated in the approved budget, ECA's contribution will be reduced in like proportion. *III.3. Other Eligibility Requirements:*
(a)Bureau grant guidelines require that organizations with less than four years experience in conducting international exchanges be limited to $60,000 in Bureau funding. ECA anticipates awarding one grant, in an amount up to $290,000 to support program and administrative costs required to implement this exchange program. Therefore, organizations with less than four years experience in conducting international exchanges are ineligible to apply under this competition. The Bureau encourages applicants to provide maximum levels of cost sharing and funding in support of its programs.
(b)*Technical Eligibility:* All proposals must comply with the following or they will result in your proposal being declared technically ineligible and given no further consideration in the review process: The project director or one of the key program staff responsible for the academic program must have an advanced degree in political science, international relations, law, military science, and/or other disciplines or sub-disciplines related to the program themes, and; Staff escorts traveling under the cooperative agreement must have demonstrated qualifications to perform this service. IV. Application and Submission Information Note: Please read the complete announcement before sending inquiries or submitting proposals. Once the RFGP deadline has passed, Bureau staff may not discuss this competition with applicants until the proposal review process has been completed. IV.1 Contact Information to Request an Application Package: Please contact the Branch for the Study of the United States, ECA/A/E/USS, Room 664, U.S. Department of State, SA-44, 301 4th Street, SW., Washington, DC 20547, tel.
(202)453-8532; fax
(202)453-8533 to request a Solicitation Package. Please refer to the Funding Opportunity Number (ECA/A/E/USS-09-01) located at the top of this announcement when making your request. Alternatively, an electronic application package may be obtained from grants.gov. Please see section IV.3f for further information. The Solicitation Package contains the Proposal Submission Instruction
(PSI)document which consists of required application forms, and standard guidelines for proposal preparation. It also contains the Project Objectives, Goals and Implementation
(POGI)document, which provides specific information, award criteria and budget instructions tailored to this competition. Please specify Program Officer Brendan M. Walsh, *WalshBm@state.gov* , and refer to the Funding Opportunity Number (ECA/A/E/USS-09-01) located at the top of this announcement on all other inquiries and correspondence. *IV.2. To Download a Solicitation Package Via Internet:* The entire Solicitation Package may be downloaded from the Bureau's Web site at *http://exchanges.state.gov/education/rfgps/menu.htm* , or from the Grants.gov Web site at *http://www.grants.gov* . Please read all information before downloading. *IV.3. Content and Form of Submission:* Applicants must follow all instructions in the Solicitation Package. The application should be submitted per the instructions under IV.3f. “Application Deadline and Methods of Submission” section below. *IV.3a* . You are required to have a Dun and Bradstreet Data Universal Numbering System
(DUNS)number to apply for a grant or cooperative agreement from the U.S. Government. This number is a nine-digit identification number, which uniquely identifies business entities. Obtaining a DUNS number is easy and there is no charge. To obtain a DUNS number, access *http://www.dunandbradstreet.com* or call 1-866-705-5711. Please ensure that your DUNS number is included in the appropriate box of the SF-424 which is part of the formal application package. *IV.3b* . All proposals must contain an executive summary, proposal narrative and budget. Please Refer to the Solicitation Package. It contains the mandatory Proposal Submission Instructions
(PSI)document and the Project Objectives, Goals and Implementation
(POGI)document” for additional formatting and technical requirements. *IV.3c* . You must have nonprofit status with the IRS at the time of application. **Please note:** Effective March 14, 2008, all applicants for ECA federal assistance awards must include with their application, a copy of page 5, Part V-A, “Current Officers, Directors, Trustees, and Key Employees” of their most recent Internal Revenue Service
(IRS)Form 990, “Return of Organization Exempt From Income Tax.” If an applicant does not file an IRS Form 990, but instead files Schedule A (Form 990 or 990-EZ)—“Organization Exempt Under Section 501(c)(3),” applicants must include with their application a copy of Page 1, Part 1, “Compensation of the Five Highest Paid Employees Other Than Officers, Directors and Trustees,” of their most recent Internal Revenue Service
(IRS)Form—Schedule A (Form 990 or 990-EZ). If your organization is a private nonprofit which has not received a grant or cooperative agreement from ECA in the past three years, or if your organization received nonprofit status from the IRS within the past four years, you must submit the necessary documentation to verify nonprofit status as directed in the PSI document. Failure to do so will cause your proposal to be declared technically ineligible. *IV.3d* . Please consider the following information when preparing your proposal narrative: IV.3d.1 Adherence to All Regulations Governing the J Visa The Bureau of Educational and Cultural Affairs places critically important emphases on the security and proper administration of the Exchange Visitor (J visa) Programs and adherence by grantees and sponsors to all regulations governing the J visa. Therefore, proposals should demonstrate the applicant's capacity to meet all requirements governing the administration of the Exchange Visitor Programs as set forth in 22 CFR 62, including the oversight of Responsible Officers and Alternate Responsible Officers, screening and selection of program participants, provision of pre-arrival information and orientation to participants, monitoring of participants, proper maintenance and security of forms, recordkeeping, reporting and other requirements. ECA will be responsible for issuing DS-2019 forms to participants in this program. A copy of the complete regulations governing the administration of Exchange Visitor
(J)programs is available at *http://exchanges.state.gov* or from: United States Department of State, Office of Exchange Coordination and Designation, ECA/EC/ECD—SA-44, Room 734, 301 4th Street, SW., Washington, DC 20547, *Telephone:*
(202)203-5029, *FAX:*
(202)453-8640. Please refer to Solicitation Package for further information. IV.3d.2 Diversity, Freedom and Democracy Guidelines Pursuant to the Bureau's authorizing legislation, programs must maintain a non-political character and should be balanced and representative of the diversity of American political, social, and cultural life. “Diversity” should be interpreted in the broadest sense and encompass differences including, but not limited to ethnicity, race, gender, religion, geographic location, socio-economic status, and disabilities. Applicants are strongly encouraged to adhere to the advancement of this principle both in program administration and in program content. Please refer to the review criteria under the ‘Support for Diversity’ section for specific suggestions on incorporating diversity into your proposal. Public Law 104-319 provides that “in carrying out programs of educational and cultural exchange in countries whose people do not fully enjoy freedom and democracy,” the Bureau “shall take appropriate steps to provide opportunities for participation in such programs to human rights and democracy leaders of such countries.” Public Law 106-113 requires that the governments of the countries described above do not have inappropriate influence in the selection process. Proposals should reflect advancement of these goals in their program contents, to the full extent deemed feasible. IV.3d.3. Program Monitoring and Evaluation Proposals must include a plan to monitor and evaluate the project's success, both as the activities unfold and at the end of the program. The Bureau recommends that your proposal include a draft survey questionnaire or other technique plus a description of a methodology to use to link outcomes to original project objectives. The Bureau expects that the grantee will track participants or partners and be able to respond to key evaluation questions, including satisfaction with the program, learning as a result of the program, changes in behavior as a result of the program, and effects of the program on institutions (institutions in which participants work or partner institutions). The evaluation plan should include indicators that measure gains in mutual understanding as well as substantive knowledge. Successful monitoring and evaluation depend heavily on setting clear goals and outcomes at the outset of a program. Your evaluation plan should include a description of your project's objectives, your anticipated project outcomes, and how and when you intend to measure these outcomes (performance indicators). The more that outcomes are “smart” (specific, measurable, attainable, results-oriented, and placed in a reasonable time frame), the easier it will be to conduct the evaluation. You should also show how your project objectives link to the goals of the program described in this RFGP. Your monitoring and evaluation plan should clearly distinguish between program *outputs* and *outcomes.* *Outputs* are products and services delivered, often stated as an amount. Output information is important to show the scope or size of project activities, but it cannot substitute for information about progress towards outcomes or the results achieved. Examples of outputs include the number of people trained or the number of seminars conducted. *Outcomes,* in contrast, represent specific results a project is intended to achieve and is usually measured as an extent of change. Findings on outputs and outcomes should both be reported, but the focus should be on outcomes. We encourage you to assess the following four levels of outcomes, as they relate to the program goals set out in the RFGP (listed here in increasing order of importance): 1. Participant satisfaction with the program and exchange experience. 2. Participant learning, such as increased knowledge, aptitude, skills, and changed understanding and attitude. Learning includes both substantive (subject-specific) learning and mutual understanding. 3. Participant behavior, concrete actions to apply knowledge in work or community; greater participation and responsibility in civic organizations; interpretation and explanation of experiences and new knowledge gained; continued contacts between participants, community members, and others. 4. Institutional changes, such as increased collaboration and partnerships, policy reforms, new programming, and organizational improvements. Please note: Consideration should be given to the appropriate timing of data collection for each level of outcome. For example, satisfaction is usually captured as a short-term outcome, whereas behavior and institutional changes are normally considered longer-term outcomes. Overall, the quality of your monitoring and evaluation plan will be judged on how well it
(1)specifies intended outcomes;
(2)gives clear descriptions of how each outcome will be measured;
(3)identifies when particular outcomes will be measured; and
(4)provides a clear description of the data collection strategies for each outcome ( *i.e.* , surveys, interviews, or focus groups). (Please note that evaluation plans that deal only with the first level of outcomes [satisfaction] will be deemed less competitive under the present evaluation criteria.) Grantees will be required to provide reports analyzing their evaluation findings to the Bureau in their regular program reports. All data collected, including survey responses and contact information, must be maintained for a minimum of three years and provided to the Bureau upon request. IV.3d.4. Describe your plans for overall program management, staffing, and coordination with ECA/A/E/USS ECA/A/E/USS considers program management, staffing and coordination with the Department of State essential elements of your program. Please be sure to give sufficient attention to these elements in your proposal. Please refer to the Technical Eligibility Requirements and the POGI in the Solicitation package for specific guidelines. *IV.3e. Please take the following information into consideration when preparing your budget:* *IV.3e.1.* Applicants must submit a comprehensive budget for the entire program. Awards for the institute on National Security may not exceed $290,000. While there is no rigid ratio of administrative to program costs, the Bureau urges applicant organizations to keep administrative costs as low and reasonable as possible. There must be a summary budget as well as breakdowns reflecting both administrative and program budgets. Applicants may provide separate sub-budgets for each program component, phase, location, or activity to provide clarification. IV.3e.2. Allowable costs for the program include the following:
(1)Institute staff salary and benefits.
(2)Participant housing and meals.
(3)Participant travel and per diem.
(4)Textbooks, educational materials and admissions fees.
(5)Honoraria for guest speakers. Please refer to the Solicitation Package for complete budget guidelines and formatting instructions. IV.3F. Application Deadline and Methods of Submission *Application Deadline Date:* September 17, 2008. *Reference Number:* ECA/A/E/USS-09-01. *Methods of Submission:* *Applications may be submitted in one of two ways:*
(1)In hard-copy, via a nationally recognized overnight delivery service ( *i.e.* , DHL, Federal Express, UPS, Airborne Express, or U.S. Postal Service Express Overnight Mail, etc.), or
(2)Electronically through *http://www.grants.gov.* Along with the Project Title, all applicants must enter the above Reference Number in Box 11 on the SF-424 contained in the mandatory Proposal Submission Instructions
(PSI)of the solicitation document. IV.3f.1 Submitting Printed Applications Applications must be shipped no later than the above deadline. Delivery services used by applicants must have in-place, centralized shipping identification and tracking systems that may be accessed via the Internet and delivery people who are identifiable by commonly recognized uniforms and delivery vehicles. Proposals shipped on or before the above deadline but received at ECA more than seven days after the deadline will be ineligible for further consideration under this competition. Proposals shipped after the established deadlines are ineligible for consideration under this competition. ECA will *not* notify you upon receipt of application. It is each applicant's responsibility to ensure that each package is marked with a legible tracking number and to monitor/confirm delivery to ECA via the Internet. Delivery of proposal packages *may not* be made via local courier service or in person for this competition. Faxed documents will not be accepted at any time. Only proposals submitted as stated above will be considered. Important note: When preparing your submission please make sure to include one extra copy of the completed SF-424 form and place it in an envelope addressed to “ECA/EX/PM”. *The original and eight
(8)copies of the application should be sent to:* U.S. Department of State, SA-44, Bureau of Educational and Cultural Affairs, Ref.: ECA/A/E/USS-09-01, Program Management, ECA/EX/PM, Room 534, 301 4th Street, SW., Washington, DC 20547. IV.3f.2—Submitting Electronic Applications Applicants have the option of submitting proposals electronically through *Grants.gov* ( *http://www.grants.gov* ). Complete solicitation packages are available at Grants.gov in the “Find” portion of the system. Please follow the instructions available in the ‘Get Started’ portion of the site ( *http://www.grants.gov/GetStarted* . Several of the steps in the Grants.gov registration process could take several weeks. Therefore, applicants should check with appropriate staff within their organizations immediately after reviewing this RFGP to confirm or determine their registration status with *Grants.gov.* Once registered, the amount of time it can take to upload an application will vary depending on a variety of factors including the size of the application and the speed of your Internet connection. In addition, validation of an electronic submission via Grants.gov can take up to two business days. *Therefore, we strongly recommend that you not wait until the application deadline to begin the submission process through Grants.gov.* The Grants.gov Web site includes extensive information on all phases/aspects of the Grants.gov process, including an extensive section on frequently asked questions, located under the “For Applicants” section of the Web site. ECA strongly recommends that all potential applicants review throughly the Grants.gov Web site, well in advance of submitting a proposal through the Grants.gov system. ECA bears no responsibility for data errors resulting from transmission or conversion processes. *Direct all questions regarding Grants.gov registration and submission to:* *Grants.gov* Customer Support: *Contact Center Phone:* 800-518-4726; *Business Hours:* Monday-Friday, 7 a.m.-9 p.m. Eastern Time; E-mail: *support@grants.gov.* Applicants have until midnight (12 a.m.), Washington, DC time of the closing date to ensure that their entire application has been uploaded to the Grants.gov site. *There are no exceptions to the above deadline. Applications uploaded to the site after midnight of the application deadline date will be automatically rejected by the grants.gov system, and will be technically ineligible.* Please refer to the Grants.gov Web site, for definitions of various “application statuses” and the difference between a submission receipt and a submission validation. Applicants will receive a validation e-mail from grants.gov upon the successful submission of an application. Again, validation of an electronic submission via Grants.gov can take up to two business days. *Therefore, we strongly recommend that you not wait until the application deadline to begin the submission process through Grants.gov* . ECA will *not* notify you upon receipt of electronic applications. It is the responsibility of all applicants submitting proposals via the Grants.gov web portal to ensure that proposals have been received by Grants.gov in their entirety, and ECA bears no responsibility for data errors resulting from transmission or conversion processes. *IV.3g. Intergovernmental Review of Applications:* Executive Order 12372 does not apply to this program. V. Application Review Information V.1. Review Process The Bureau will review all proposals for technical eligibility. Proposals will be deemed ineligible if they do not fully adhere to the guidelines stated herein and in the Solicitation Package. All eligible proposals will be reviewed by the program office, as well as the Public Diplomacy section overseas, where appropriate. Eligible proposals will be subject to compliance with Federal and Bureau regulations and guidelines and forwarded to Bureau grant panels for advisory review. Proposals may also be reviewed by the Office of the Legal Adviser or by other Department elements. Final funding decisions are at the discretion of the Department of State's Assistant Secretary for Educational and Cultural Affairs. Final technical authority for assistance awards for cooperative agreements resides with the Bureau's Grants Officer. V.2. Review Criteria Technically eligible applications will be competitively reviewed according to the criteria stated below. These criteria are not rank ordered and all carry equal weight in the proposal evaluation: 1. *Quality of Program Plan and Ability to Achieve Program Objectives:* Your proposal should exhibit originality, substance, precision, and relevance to the Bureau's mission. Detailed agenda and relevant work plan should demonstrate substantive undertakings and logistical. Objectives should be reasonable, feasible, and flexible. Your proposal should clearly demonstrate how the institution will meet the program's objectives and plan. 2. *Support for Diversity:* Your proposal should demonstrate substantive support of the Bureau's policy on diversity. Achievable and relevant features should be cited in both program administration (program venue and program evaluation) and program content (orientation and wrap-up sessions, program meetings, presenters, and resource materials). 3. *Evaluation and Follow-Up:* Your proposal should include a plan to evaluate the activity's success, both as the activities unfold and at the end of the program. A draft survey questionnaire or other technique plus description of a methodology to use to link outcomes to original project objectives is strongly recommended. Your proposal should also discuss provisions made for follow-up with returned participants as a means of establishing longer-term individual and institutional linkages. 4. *Cost-effectiveness/Cost-sharing:* The overhead and administrative components of the proposal, including salaries and honoraria, should be kept as low as possible. All other items should be necessary and appropriate. Your proposal should maximize cost-sharing through other private sector support, as well as institutional direct funding contributions. 5. *Institutional Track Record/Ability:* Your proposal should demonstrate an institutional record of successful exchange programs, including responsible fiscal management and full compliance with all reporting requirements for past Bureau grants as determined by Bureau Grants Staff. The Bureau will consider the past performance of prior recipients and the demonstrated potential of new applicants. Proposed personnel and institutional resources should be fully qualified to achieve the project's goals. VI. Award Administration Information VI.1a. Award Notices Final awards cannot be made until funds have been appropriated by Congress, allocated and committed through internal Bureau procedures. Successful applicants will receive a Federal Assistance Award
(FAA)from the Bureau's Grants Office. The FAA and the original grant proposal with subsequent modifications (if applicable) shall be the only binding authorizing document between the recipient and the U.S. Government. The FAA will be signed by an authorized Grants Officer, and mailed to the recipient's responsible officer identified in the application. Unsuccessful applicants will receive notification of the results of the application review from the ECA program office coordinating this competition. VI.2. Administrative and National Policy Requirements *Terms and Conditions for the Administration of ECA agreements include the following:* Office of Management and Budget Circular A-122, “Cost Principles for Nonprofit Organizations.” Office of Management and Budget Circular A-21, “Cost Principles for Educational Institutions.” OMB Circular A-87, “Cost Principles for State, Local and Indian Governments.” OMB Circular No. A-110 (Revised), Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and other Nonprofit Organizations. OMB Circular No. A-102, Uniform Administrative Requirements for Grants-in-Aid to State and Local Governments. OMB Circular No. A-133, Audits of States, Local Government, and Non-profit Organizations *Please reference the following Web sites for additional information: http://www.whitehouse.gov/omb/grants* , or *http://fa.statebuy.state.gov* . VI.3. Reporting Requirements You must provide ECA with a hard copy original plus one
(1)copy of the following reports:
(1)A final program and financial report no more than 90 days after the expiration of the award;
(2)A concise, one-page final program report summarizing program outcomes no more than 90 days after the expiration of the award. This one-page report will be transmitted to OMB, and be made available to the public via OMB's USAspending.gov Web site, as part of ECA's Federal Funding Accountability and Transparency Act (FFATA) reporting requirements. Grantees will be required to provide reports analyzing their evaluation findings to the Bureau in their regular program reports. (Please refer to IV. Application and Submission Instructions (IV.3.d.3) above for Program Monitoring and Evaluation information. All data collected, including survey responses and contact information, must be maintained for a minimum of three years and provided to the Bureau upon request. All reports must be sent to the ECA Grants Officer and ECA Program Officer listed in the final assistance award document. VII. Agency Contacts For questions about this announcement, contact: Brendan M. Walsh, Branch for the Study of the United States, ECA/A/E/USS, Room 664, U.S. Department of State, SA-44, 301 4th Street, SW., Washington, DC 20547, tel.
(202)453-8532, fax
(202)453-8533, e-mail *WalshBM@state.gov* . All correspondence with the Bureau concerning this RFGP should reference the above title and number (ECA/A/E/USS-09-01). Please read the complete announcement before sending inquiries or submitting proposals. Once the RFGP deadline has passed, Bureau staff may not discuss this competition with applicants until the proposal review process has been completed. VIII. Other Information Notice The terms and conditions published in this RFGP are binding and may not be modified by any Bureau representative. Explanatory information provided by the Bureau that contradicts published language will not be binding. Issuance of the RFGP does not constitute an award commitment on the part of the Government. The Bureau reserves the right to reduce, revise, or increase proposal budgets in accordance with the needs of the program and the availability of funds. Awards made will be subject to periodic reporting and evaluation requirements per section VI.3 above. Dated: July 8, 2008. C. Miller Crouch, Principal Deputy Assistant Secretary, Bureau of Educational and Cultural Affairs, Department of State. [FR Doc. E8-16379 Filed 7-16-08; 8:45 am] BILLING CODE 4710-05-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration Approval of Noise Compatibility Program; Ocala International Airport; Ocala, FL AGENCY: Federal Aviation Administration, DOT. ACTION: Notice. SUMMARY: The Federal Aviation Administration
(FAA)announces its findings on the Noise Compatibility Program submitted by the City of Ocala under the provisions of 49 U.S.C. (the Aviation Safety and Noise Abatement Act, hereinafter referred to as “the Act”) and 14 CFR part 150. These findings are made in recognition of the description of Federal and nonfederal responsibilities in Senate Report No. 96-52 (1980). On December 28, 2008, the FAA determined that the noise exposure maps submitted by the City of Ocala under part 150 were in compliance with applicable requirements. On June 23, 2008, the FAA approved the Ocala International Airport noise compatibility program. All of the recommendations of the program were approved. No program elements relating to new or revised flight procedures for noise abatement were proposed by the airport operator. DATES: *Effective Date:* The effective date of the FAA's approval of the Ocala International Airport Noise Compatibility Program is June 23, 2008. FOR FURTHER INFORMATION CONTACT: Ms. Lindy McDowell, Federal Aviation Administration, Orlando Airports District Office, 5950 Hazeltine National Drive, Suite 400, Orlando, Florida 32822, *phone number:* 407-812-6331. Documents reflecting this FAA action may be reviewed at this same location. SUPPLEMENTARY INFORMATION: This notice announces that the FAA has given its overall approval to the Noise Compatibility Program for Ocala International Airport, effective June 23, 2008. Under Section 47504 of the Act, an airport operator who has previously submitted a Noise Exposure Map may submit to the FAA a Noise Compatibility Program which sets forth the measures taken or proposed by the airport operator for the reduction of existing non-compatible land uses and prevention of additional non-compatible land uses within the area covered by the Noise Exposure Maps. The Act requires such programs to be developed in consultation with interested and affected parties including local communities, government agencies, airport users, and FAA personnel. Each airport noise compatibility program developed in accordance with Federal Aviation Regulations
(FAR)part 150 is a local program, not a Federal Program. The FAA does not substitute its judgment for that of the airport operator with respect to which measure should be recommended for action. The FAA's approval or disapproval of FAR part 150 program recommendations is measured according to the standards expressed in FAR part 150 and the Act, and is limited to the following determinations: a. The Noise Compatibility Program was developed in accordance with the provisions and procedures of FAR Part 150; b. Program measures are reasonably consistent with achieving the goals of reducing existing non-compatible land uses around the airport and preventing the introduction of additional non-compatible land uses; c. Program measures would not create an undue burden on interstate or foreign commerce, unjustly discriminate against types or classes of aeronautical uses, violate the terms of airport grant agreements, or intrude into areas preempted by the Federal government; and d. Program measures relating to the use of flight procedures can be implemented within the period covered by the program without derogating safety, adversely affecting the efficient use and management of the navigable airspace and air traffic control systems, or adversely affecting other powers and responsibilities of the Administrator prescribed by law. Specific limitations with respect to FAA's approval of an airport Noise Compatibility Program are delineated in FAR Part 150, Section 1505. Approval is not a determination concerning the acceptability of land uses under Federal, state, or local law. Approval does not by itself constitute an FAA implementing action. A request for Federal action or approval to implement specific noise compatibility measures may be required, and an FAA decision on the request may require an environmental assessment of the proposed action. Approval does not constitute a commitment by the FAA to financially assist in the implementation of the program nor a determination that all measures covered by the program are eligible for grant-in-aid funding from the FAA. Where Federal funding is sought, requests for project grants must be submitted to the FAA Airports District Office in Orlando, Florida. City of Ocala submitted to the FAA on October 2, 2007, the Noise Exposure Maps, descriptions, and other documentation produced during the noise compatibility planning study conducted from August, 2004, through October, 2005. The Ocala International Airport Noise Exposure Maps were determined by FAA to be in compliance with applicable requirements on December 28, 2007. Notice of this determination was published in the **Federal Register** on December 28, 2007. The Ocala International Airport study contains a proposed Noise Compatibility Program comprised of actions designed for phased implementation by airport management and adjacent jurisdictions from the year 2007 to the year 2012. It was requested that FAA evaluate and approve this material as a Noise Compatibility Program as described in Section 47504 of the Act. The FAA began its review of the Program on December 28, 2007, and was required by a provisions of the Act to approve or disapprove the program within 180-days (other than the use of new or modified flight procedures for noise control). Failure to approve or disapprove such program within the 180-day period shall be deemed to be an approval of such program. The submitted program contained seven
(7)proposed actions for noise mitigation on and off the airport. The FAA completed its review and determined that the procedural and substantive requirements of the Act and FAR part 150 have been satisfied. The overall program, therefore, was approved by the FAA effective June 23, 2008. Outright approval was granted for all of the specific program elements. Mitigation measures approved include: Land Use Measures 1. Update City of Ocala Land Development Regulations Prevent future development of noise sensitive uses within the 60 DNL and greater noise contours. (NCP, pages ES-4, 96, 97; and Table ES-1.) *FAA Action: Approved.* This is within the authority of the local land use jurisdictions; the Federal government does not control local land use. Outside the DNL 65 dB noise contour, FAA as a matter of policy encourages local efforts to prevent new noncompatible development immediately abutting the DNL 65 dB contour and to provide a buffer for possible growth in noise contours beyond the forecast period. 2. Land Use Mitigation Program Purchase developed and undeveloped land within the DNL 65dB and greater noise contours. (NCP, pages ES-4, 65, 66, 97; Figures 11.4, 11.5; and Tables ES-1, 9.2, 9.3, 11.4.) *FAA Action: Approved.* Acquisitions are limited to existing non-compatible land uses located with in the 65 DNL noise contour of the approved NEMs, and are consistent with FAA's 1998 remedial mitigation policy (63 FR 16409). The specific identification of structures recommended for inclusion in the program and specific definition of the scope of the program will be required prior to approval for Federal funding. Approval of this measure does not commit the FAA to future Federal funding assistance. 3. Redevelopment Program Redevelop land purchases as part of the Land Use Mitigation Program. (NCP, pages ES-4, 101, 107; and Table ES-1.) Ensures that any re-development or re-use of land purchased as part of the Land Use Mitigation Program will be compatible with airport operations. *FAA Action: Approved.* Eligibility for Federal funding of any re-use/re-development program will be determined at the time of application. 4. Public Notification Advertise noise exposure contours and availability of Part 150 documents local newspapers 3 times each year. (NCP, pages ES-4, 101, 102; and Table ES-1.) *FAA Action: Approved.* Program Management Measures 1. Pilot Education Program Development, publication and distribution of informational materials for pilots outlining noise abatement policies. (NCP, pages ES-4, 104; and Table ES-1.) *FAA Action: Approved.* Inserts or other information must not be construed as mandatory air traffic procedures. Prior to release, language in the brochure shall be reviewed for wording and content by the appropriate FAA office. The content of the brochure is subject to specific approval by appropriate FAA officials outside of the FAR Part 150 process and is not approved in advance by this determination. 2. Community Information Program Development, publication and distribution of informational materials for residents and businesses outlining airport noise abatement efforts. (NCP, pages ES-4, 104, 105; and Table ES-1.) *FAA Action: Approved.* 3. Periodic NCP Review Review of operational activity and NCP implementation to assist in determining future NEM/NCP update timing. (NCP, pages ES-4, 105; and Table ES-1.) *FAA Action: Approved.* If made necessary by NEM changes, an update to the NCP would address requirements of 150.23(e)(9). Section 150.21(d), as amended, states that the NEM should be updated if there is either a substantial new noncompatible use within the DNL 65 dB contour, or if there is a significant reduction in noise over existing noncompatible land uses [69 FR 57622, dated 9/24/04]. These determinations are set forth in detail in a Record of Approval signed by the FAA on June 23, 2008. The Record of Approval, as well as other evaluation materials and the documents comprising the submittal, are available for review at the FAA office listed above and at the administrative office of the City of Ocala. The Record of Approval also will be available on-line at: *http://www.faa.qov/airports_airtraffic/airports/environmental/airport_noise/part_150/states/* . Issued in Orlando, Florida on June 27, 2008. W. Dean Stringer, Manager, Orlando Airports District Office. [FR Doc. E8-15954 Filed 7-16-08; 8:45 am] BILLING CODE 4910-13-M DEPARTMENT OF TRANSPORTATION Federal Aviation Administration [Docket No. FAA-2008-0629] Operating Limitations for Unscheduled Operations at John F. Kennedy International Airport and Newark Liberty International Airport AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of Proposed Order Limiting Unscheduled Operations at John F. Kennedy International Airport and Newark Liberty International Airport; Request for comments. SUMMARY: The FAA tentatively has determined that it is necessary to temporarily limit unscheduled aircraft operations at John F. Kennedy International Airport
(JFK)and Newark Liberty International Airport (EWR). By Orders dated January 15 and May 15, 2008, the FAA restricted the number of scheduled operations respectively at JFK and EWR. These orders were a result of persistent congestion and delays at JFK and EWR during the peak operating hours, as well as a dramatic projected increase in fight delays at both airports during the summer of 2008 if proposed schedules were implemented as requested by carriers. The FAA recently published a notice of proposed rulemaking that addresses the operating limits of scheduled and unscheduled operations at both airports for the longer term. The FAA believes that in the interim it is necessary to limit unscheduled operations, as even the addition of a few operations in the critical peak hours can result in added congestion and delay. The intended effect of this action would be consistent with the previously issued Orders governing scheduled operations. This final Order would take effect at 6 a.m., Eastern Time, on August 28, 2008, and would expire at 11:59 p.m., Eastern Time, on October 24, 2009. This proposed Order would implement a reservation system to limit unscheduled operations at the airports and includes special provisions for public charter operations. A final Order would be enforceable under the FAA's civil penalty authority. DATES: Send your comments on or before July 28, 2008. ADDRESSES: You may send comments identified by Docket Number FAA-2008-0629 using any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* and follow the online instructions for sending your comments electronically. • *Mail:* Send comments to Docket Operations, M-30, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Room W12-140, West Building Ground Floor, Washington, DC 20590-0001. • *Hand Delivery or Courier:* Bring comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Fax:* Fax comments to Docket Operations at 202-493-2251. *Privacy:* We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information that you provide. Using the search function of the *http://www.regulations.gov* Web site, anyone can find and read the electronic form of all comments received into any of our dockets, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). The electronic form of all comments posted to *http://www.regulations.gov* can be searched by the submitter's name. You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78). For information about the privacy aspects of the Federal eRulemaking Portal, please see the Privacy and Use notice at *http://www.regulations.gov.* *Docket:* To read background documents or comments received, go to *http://www.regulations.gov* at any time and follow the online instructions for accessing the docket. Alternatively, go to the Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: For technical questions concerning this proposed rule contact: Gerry Shakley, System Operations Services, Air Traffic Organization; telephone
(202)267-9424; facsimile
(202)267-7277; e-mail *gerry.shakley@faa.gov.* For legal questions concerning this proposed rule contact: Rebecca B. MacPherson, Office of the Chief Counsel, Federal Aviation Administration; telephone
(202)267-7240; facsimile
(202)267-7971; e-mail: *rebecca.macpherson@faa.gov.* SUPPLEMENTARY INFORMATION: Background The U.S. Government has exclusive sovereignty over the airspace of the United States. 1 Under this broad authority, Congress has delegated to the Administrator extensive and plenary authority to ensure the safety of aircraft and the efficient use of the nation's navigable airspace. In this regard, the Administrator is required to assign the use of navigable airspace by regulation or order under such terms, conditions and limitations as he or she may deem necessary to ensure its efficient use. 2 The Administrator may modify or revoke an assignment when required in the public interest. 3 The FAA interprets its statutory directive to act in the public interest as implicitly applying to any decision by the FAA to assign the efficient use of the navigable airspace. Furthermore, in carrying out the Administrator's safety responsibilities under the statute, the Administrator must consider controlling the use of the navigable airspace and regulating civil operations in that airspace in the interest of the safety and efficiency of those operations. 4 1 49 U.S.C. 40103(a). 2 49 U.S.C. 40103(b)(1), as previously codified in 49 U.S.C. App. § 307(a). Title 49 was recodified by Public Law No. 103-222, 108 Stat. 745 (1994). The textual revisions were not intended to result in substantive changes to the law. The recodification stated that the words in § 307(a) “under such terms, conditions, and limitations as he may deem” were omitted as surplus. H. Rpt. 103-180 (103d Cong., 1st Sess. 1993) at 262. 3 Id. 4 49 U.S.C. 40101(d)(4). The FAA interprets its broad statutory authority to manage “the efficient use of airspace” to encompass its management of the nationwide system of air commerce and air traffic control. On a daily basis, that system regularly transports millions of passengers, thousands of tons of cargo, and millions of pieces of mail. The FAA believes that ensuring the efficient use of the airspace means that it must take all necessary steps to prevent extreme congestion at an airport from disrupting or adversely affecting the overall air traffic system for which the FAA is responsible. Delays at a single key airport of the sort experienced at JFK and EWR can have a crippling effect on other parts of the system, causing untold losses in time and money for individuals and businesses, as well as the operators at JFK and EWR and beyond. John F. Kennedy International Airport
(JFK)In 1968, the FAA issued the High Density Rule (HDR), designating JFK a high density traffic airport and limiting the number of takeoffs and landings at the airport, effective April 27, 1969. 5 Under the HDR, the FAA required carriers to hold a reservation, which came to be known as a “slot,” for each takeoff or landing under instrument flight rules at the high density traffic airports. The HDR remained in effect at JFK for nearly four decades, during which aircraft operations at JFK were limited for the five hours of peak demand—3 p.m. through 7:59 p.m., Eastern Time. 5 33 FR 17896 (1968). The FAA codified the rules for operating at high density traffic airports in 14 CFR part 93, subpart K. In April 2000, Congress began phasing out the HDR at certain airports, including JFK, which was no longer subject to the HDR after January 1, 2007. 6 The elimination of the HDR at JFK allowed increased scheduling during the peak hours, continuing a trend of increased operations at JFK in recent years. However, capacity has not increased commensurate with the flight increases. In addition, JFK has evolved from an airport that historically served primarily international markets and the associated domestic feeder service into an airport that now also provides significantly more domestic service. There has been more recently an increased emphasis on connecting traffic that is typical of hub airports, as well as an increased focus on origin and destination traffic. 6 49 U.S.C. 41715(a). As a result of these changes at JFK, carriers increased their scheduled operations throughout the day to the point that by summer 2007, demand exceeded the airport's capacity during some periods. For example, from February through July 2007, JFK's average actual airport capacity was 83 total operations per hour, including scheduled and nonscheduled flights. The scheduled demand during the busiest hour, 4 p.m., was over 110 arrivals and departures during summer 2007. Adjacent hours had fewer scheduled flights, but they were still above the average hourly runway capacity which resulted in increased delays. Although air traffic control procedural and runway use plans adopted in early 2007 have increased JFK's aircraft throughput, especially for departures, they do not provide a capacity increase that would have accommodated the proposed summer 2008 demand. The increase in scheduled operations at JFK has had a profound effect on the delays that travelers have experienced. During fiscal year 2007, the average daily operations at JFK increased 21% over fiscal year 2006. Corresponding to the increased operations, on-time performance and other delay metrics have declined year over year. The on-time arrival performance at JFK, which is defined as arrival at the gate within 15 minutes of the scheduled time, declined from 68.5% in fiscal year 2006 to 62.19% in fiscal year 2007. On-time arrivals during the peak travel months of June, July and August declined from 63.37% in 2006 to 58.53% in 2007 while on-time departures declined from 67.49% to 59.89%. For the entire fiscal year, the average daily arrival delays exceeding one hour increased by 87% over fiscal year 2006 levels. Taxi out delay, which measures the time that aircraft wait prior to departing the runway, increased by 15%. Taxi out delays in the evening departure periods frequently exceeded an hour in duration. At the same time, U.S. and foreign air carriers continued to announce new flights for JFK throughout the day, including during the most oversubscribed hours. Unscheduled flights during the peak periods contributed to cumulative demand and shared in the resulting delays. Using the authority conferred under § 41722 to address congested airports, 7 the Secretary of Transportation and the Acting Administrator of the FAA concluded that a meeting with U.S. air carriers was necessary to discuss flight reductions at JFK to reduce overscheduling and flight delays. 8 7 49 U.S.C. 41722(a) 8 Through a notice issued October 16, 2007, and published in the **Federal Register,** the FAA invited all U.S. scheduled air carriers and the Port Authority of New York and New Jersey (PANYNJ) to attend the scheduling reduction meeting, commencing October 23, 2007. The FAA also invited all interested persons to submit information on the subject of overscheduling at JFK, including any data and their views, to a public docket for the FAA's consideration in issuing its Order. The Docket ID is FAA-2007-29320, and it can be examined online at *www.regulations.gov* or in person at the docket Operations address listed in the ADDRESSES section of this NPRM. The FAA convened the scheduling reduction meeting with the U.S. air carrier participants and representatives of the airport operator on October 23 and 24. The FAA issued an Order on January 15, 2008, that limited scheduled operations of U.S. air carriers and foreign air carriers at JFK to a maximum of 81 per hour, except as provided in the appendix to the Order. The Order was effective at 6 a.m., Eastern Time on March 30, 2008, and expires at 11:59 p.m., Eastern Time on October 24, 2009. This order will reduce the substantial inconvenience to the traveling public caused by excessive congestion-related flight delays at the airport that magnify as they spread through the National Airspace System. This action also is expected to reduce the average length of delays by about 15 percent over summer 2007 levels and provide for a more efficient use of the nation's airspace by more closely tying demand to capacity. In order to ensure the effectiveness of the carrier scheduling adjustments and limitations in the JFK Order, it is necessary to restrict unscheduled operations at JFK, as further explained later in this Proposed Order. Otherwise, even a few additional operations during peak hours would result in additional delay and could erode the gains achieved through schedule reductions. Newark Liberty International Airport
(EWR)On May 15, 2008, the Acting Administrator of the FAA issued an Order limiting scheduled operations at EWR in order to ensure that delays did not increase significantly as a result of proposed summer 2008 scheduled operations that included about 100 new operations, many during the already busy afternoon and evening hours. Newark routinely experiences delays and there is limited capacity for additional flights during the busiest hours of the day. Additionally, flight limitations recently adopted by the FAA for JFK may otherwise encourage carriers to operate to Newark if they are unable to obtain timely Operating Authorizations for JFK. The EWR limitations are necessary to ensure that operations do not significantly exceed the airports capacity and applies to all U.S. and foreign air carriers' scheduled operations, excluding helicopters, from 6 a.m.: Eastern Time, through 10:59 p.m., Eastern Time. The Order is effective at 6 a.m., Eastern Time on June 20, 2008, and expires at 11:59 p.m. on October 24, 2009. Although EWR has historically experienced a significant number of congestion related delays, often ranking as the most delayed airport in the system, the proportion of delayed operations was relatively stable for many years and had declined compared to several years ago. More recently, however, the airport's on-time performance has diminished, and the modeled delays for the proposed summer 2008 schedules would have increased significantly. Initial Scheduling Information Requests Based on JFK and EWR's summer 2007 operational and on-time performance, demand that exceeded capacity during certain hours, and limited runway capacity to accommodate additional flights, the FAA designated both airports as Level 2 Schedules Facilitated Airports for the summer 2008 scheduling season, in accordance with the International Air Transport Association
(IATA)Worldwide Scheduling Guidelines. 9 In designating the airports as Level 2 airports, the FAA required all U.S. and foreign air carriers to report to the FAA their proposed summer 2008 scheduled operations at the airports during designated hours. 9 72 FR 54,317 (Sept. 24, 2007). In response to the U.S. and foreign air carriers' proposed summer 2008 schedules and discussions with carriers that indicated a purely voluntary solution to adjust schedules was unlikely to resolve expected congestion, the FAA elected to modify EWR's IATA designation to a Level 3 Coordinated Airport for summer 2008. 10 This designation permitted the FAA to approve new operations at the airports in hours during which airport capacity is available and to deny proposed new operations during peak hours. The results of the FAA's discussions with U.S. and foreign air carriers with respect to their summer 2008 schedules are captured in the appendix to the JFK and the EWR Orders. 10 In connection with its January 15 order, the FAA also designated JFK an IATA Level 3 Coordinated Airport. 73 FR 3,510 (Jan. 18, 2008)(order limiting scheduled operations); 72 FR 60,710 (Oct. 25, 2007)(notice of airport level designation); 72 FR 73,418 (Dec. 27, 2007). The limitations on scheduled operations are based on the FAA's capacity review over a two year period from September 2006 through August 2007. That review indicated the airport average available runway capacity was 83 total operations per hour. This included scheduled and unscheduled operations. The Proposed Order Unscheduled operations, including general aviation, charter, cargo, ferry. and other ad hoc operations, are typically a small percentage of the overall traffic at JFK and EWR. When the airport operations at JFK were limited by the HDR, a total of 8 reservations were set aside for unscheduled operations during the five slot controlled hours. From 5 p.m. until 6 p.m., no unscheduled reservations were available. which permitted additional scheduled operations. As part of the analyses conducted for developing appropriate scheduling targets at JFK and EWR, we reviewed both scheduled and unscheduled traffic levels. For calendar year 2007, unscheduled operations at both airports averaged about two operations (arrival and departures combined) per hour. We used this historical information at both airports as the baseline for unscheduled operations at JFK and EWR and reviewed alternatives to vary the number of authorized reservations in this proposal. The greatest delay reduction benefits would come from limiting unscheduled operations during peak hours, except when capacity exists to accommodate additional operations without delay. This additional capacity would primarily be days when the airport's optimal capacity could be achieved. Unscheduled operators are in a position to take advantage of this capacity whereas scheduled operators are not. The FAA is not proposing to completely eliminate unscheduled operations from any hour at either JFK or EWR. However, the number of reservations will be limited and an individual operator may be unable to obtain a reservation at the preferred time and may need to operate during other hours, or possibly at another airport. The FAA proposes to implement a reservation system for unscheduled operations at JFK and EWR from 6 a.m. through 10:59 p.m. (Eastern Time), Sunday through Saturday. The limits would begin on August 14, 2008 and continue through October 24, 2009, consistent with ending dates for scheduled carrier limits. Reservations would be available on July 7 beginning 72 hours in advance of the proposed operation times at EWR or JFK. At JFK, the FAA proposes that during the controlled hours, unless otherwise authorized, the number of reservations for unscheduled operations would be limited to two per hour from 6 a.m. through 1:59 p.m.; one per hour from 2 p.m. through 9:59 p.m.; and two per hour from 10 p.m. through 10:59 p.m. At EWR, the FAA proposes that during the controlled hours, unless otherwise authorized, the number of reservations for unscheduled operations would be limited to two per hour from 6 a.m. through 11:59 a.m.; one per hour from 12 p.m. through 9:59 p.m.; and two per hour from 10 p.m. to 10:59 p.m. This rule would apply to operations under instrument flight rules
(IFR)and visual flight rules (VFR). The hours that permit only one unscheduled operation per hour represent the most concentrated peak operating hours at the airports when the demand is highest and delays, especially under adverse operating conditions, are also routinely at their highest levels. In these hours, scheduled operations have been curtailed and reduced under the applicable Orders. While the FAA prefers increasing the capability of the system to accommodate demand, rather than limiting access, in the case of both JFK and EWR, all operations have to be restricted to reduce delays and recognize capacity constraints. Many unscheduled operations have flexibility because of the nature of the operation and the New York City area has other airports that can be used for some unscheduled flights including Westchester, Islip, Republic, Stewart, Morristown, and Teterboro. Unscheduled operators, including air carriers conducting unscheduled operations at JFK and EWR, would need to review and possibly modify their plans based on the available reservations since the FAA cannot guarantee access to all operators without unduly increasing congestion. Unscheduled operators will need to consider the proposed reservation system at JFK and EWR, along with weight restrictions, noise abatement rules, and other limitations at other airports in the New York City area when planning their flights. Under certain weather conditions and runway configurations, JFK and EWR have capacity to accommodate additional operations without causing significant additional delay. Scheduled operators cannot readily adjust the number or timing of arrivals and departures to take advantage of temporary fluctuations in the airports capacity during optimal weather. Unscheduled operators may have flexibility to make such adjustments and often conduct flights with short lead times. Therefore, when operating conditions permit, the FAA would make additional reservations available. The added capacity for unscheduled operations typically will not be determined more than eight hours in advance. There may also be times when the FAA has unallocated Operating Authorizations (under the Orders) for scheduled operations. The FAA would assess whether additional reservations could be made available for unscheduled flights. All reservations for unscheduled flights would be allocated using the procedures described below. Each reservation would be allocated on a 60-minute basis during the restricted hours. Although a 30-minute reservation may provide some additional delay reduction benefits by potentially avoiding peaks, the FAA has determined that greater latitude in timing should be permitted given the limited number of proposed reservations. The FAA's Airport Reservation Office
(ARO)would receive and process all reservations requests. The reservations would be allocated on a first-come, first-served basis, determined by the time the request is received by the ARO. Operators would primarily obtain reservations through the ARO's interactive computer system accessed via the internet or touch-tone telephone. This system is known as the Enhanced Computer Voice Reservation System (e-CVRS). Operators would provide the date/time of the proposed operation and other identifying information concerning the aircraft and the intended flight. The ARO would allocate through e-CVRS the added reservations that may be accommodated during periods of favorable weather and capacity conditions. The allocation mechanism for unscheduled operations proposed in this Order is similar to the procedures used to allocate slots for the “Other” category under the HDR, and for unscheduled arrivals at Chicago's O'Hare International Airport (ORD). The proposed procedures are also similar to those used by unscheduled aircraft operators during Special Traffic Management Programs implemented by the Air Traffic Organization during periods of abnormally high traffic demand due to special events such as major conventions, sporting events, fly-ins, and other circumstances that cause temporary increases in airport demand. Consequently, many aircraft operators are familiar with the procedures that the FAA now proposes to adopt. Allocation of a reservation does not constitute an air traffic control
(ATC)clearance nor does it obviate the need to file an IFR flight plan. Reservations would be required for both IFR and VFR operations. Although capacity typically increases in visual meteorological conditions, unscheduled VFR flights could still impact operations if concentrated in peak periods. The FAA would accommodate declared emergencies without regard to reservations. The filing of JFK or EWR as an alternate airport in flight plans, or an aircraft diversion absent a declared emergency, does not constitute a reservation. Non-emergency flights in support of national security, law enforcement, or similar requirements may be accommodated above the reservation limits with the prior approval of the FAA. The proposed text of the Order contains detailed instructions for requesting reservations via the Internet, telephone, or alternatively, by contacting the ARO. Reservations for regularly scheduled operations are authorized separately under the terms of the JFK and EWR Orders. The procedures described in this proposed Order would not be used for scheduled flights. The provisions of this proposal would apply to unscheduled operations at JFK and EWR conducted by foreign or domestic operators, regardless of whether the operation is domestic or foreign. We propose special provisions necessary to support flight operation for national security and similar purposes. In the case of the airports serving the New York City area, which is the headquarters of the United Nations, this may include diplomatic or other flights in direct support of foreign governments. The FAA would permit additional reservations, if necessary, to accommodate these flights but may approve an operation at a time other than the one initially requested. The FAA does not intend to categorically exclude these types of flights from the requirement to obtain a reservation prior to operation at JFK or EWR. In order to address the needs of public charter operators for advance planning and compliance with 14 CFR part 380, the FAA proposes to allow public charter operators to obtain a reservation up to six months in advance of a planned operation. Due to the limited number of reservations in the afternoon and evening periods, no more than one advance reservation would be allocated in any hour and no more than two advance reservations would be allocated in the 2 p.m. through 9:59 p.m. period. Public charter operators may need to consider operating at other times when capacity is available and may also obtain reservations within the 72 hour window. Carriers conducting charter operations or other unscheduled flights may use assigned Operating Authorizations under the JFK and EWR orders. Carriers could also lease Operating Authorizations from other carriers. The proposed provisions regarding reservations for public charter operations that are not regularly conducted are similar to the provisions applicable to public charter arrivals at Chicago's O'Hare International Airport under SFAR 105. 11 Under the proposed provisions for public charter operations, the reservation is requested by and allocated to the public charter operator, regardless of whether the charter is operated by a U.S. or foreign air carrier. The public charter operator retains the discretion to select the direct air carrier. Thus, this proposed Order does not provide any incentive for a public charter operator to select a U.S. certificated carrier or a foreign air carrier. 11 70 FR 39610 (July 8, 2005). FAA considers regularly conducted public charter operations to be similar to scheduled operations, even if they are not listed in the Official Airline Guide or other computer reservation systems. Thus, regularly public charter operations are covered by the JFK and EWR Orders, not this proposal. Public charter operations that seek a reservation more than 72 hours and up to 6 months in advance of the planned operation, would submit their request to the FAA's Slot Administration Office. A public charter operator would be required to provide the Slot Administration Office with a certification that any required prospectus has been accepted by the DOT in accordance with 14 CFR part 380 for the flight requiring a reservation; the call sign/flight number to be used for ATC communication by the direct air carrier conducting the operation; the date and time of the proposed arrival(s) or departure(s); origin airport immediately prior to JFK or EWR, or destination airport immediately following JFK or EWR; and aircraft type. A public charter operator also would be required to notify the Slot Administration Office of any changes to the above information once a reservation has been allocated. If each of the reservations reserved for public charters has been allocated, a public charter operator may request a reservation through the ARO beginning 72 hours in advance in accordance with the same procedures as unscheduled operators. Historically under the HDR, military operations and public use aircraft operations were subject to the reservation requirement. Military and public aircraft would be subject to this proposed rule and would need reservations. As provided for in proposed paragraph 7(c) of the Proposed Order, the FAA will accommodate non-emergency flights in support of national security, law enforcement, or similar requirements above the administrative limit with prior approval by the FAA. Approvals for these reservations above the limits would be obtained from the ARO. We anticipate these exceptions to be limited. Since the operations must be approved in advance by the ARO, changes to proposed arrival times may be necessary to minimize impacts at the airport. We do not support a blanket exception for flights of this nature. The incremental addition of just a few flights during peak hours cumulatively affects the airport. Carriers conducting scheduled operations have had to either reduce operations or limit growth to reach the manageable level that exists today and most of the unscheduled arrivals at JFK and EWR will be covered by this proposed Order. While the FAA does not expect or intend for military and public aircraft operators at these airports to be unfairly burdened, we do not propose to categorically exclude all military and public aircraft flights from the coverage of this proposed Order while limiting others with similar time or operational constraints. The public interest is served by permitting access for these mission-critical flights but they still remain subject to the Order. We have also received comments in related rulemaking proceedings that some carriers operate under contracts to government agencies such as the Department of Defense to carry military troops or supplies, or the United States Postal Service to carry mail. These flights would require reservations but the FAA may treat qualified flights in a similar fashion to military or public aircraft. However, to the extent possible, military, public aircraft, and supporting flights should be conducted outside peak periods or possibly at other airports with less congestion than JFK and EWR. The proposed Order may affect the use of JFK and EWR as an alternate airport for flight planning purposes for unscheduled IFR flights. There are various factors affecting use that may be applicable to a particular airport. Due to runway configuration, certain aircraft may not be able to operate at an airport. There may be noise abatement rules, departure procedures, and other operational procedures that must be factored into the flight planning process and the selection process of an alternate airport. The proposed reservation system at JFK and EWR would be another such factor. It is a traffic management tool, and if an unscheduled IFR operation intended to use JFK or EWR as an alternate, that operator would have to be prepared to meet all the requirements necessary to operate at the airport, including a reservation. While JFK or EWR might be preferable as an alternate airport from the operator's point of view, it is not operationally expedient to permit unpredictable increases in demand by allowing the unrestricted use of JFK and EWR as alternate airports. The FAA recognizes that there may be circumstances when safety or other considerations lead an operator to arrive at JFK or EWR without a reservation and current regulations and enforcement procedures provide for those cases. Enforcement of This Order The FAA may enforce the final Order through an enforcement action seeking a civil penalty under 49 U.S.C. 4630 1(a). Under that provision, a carrier that is not a small business as defined in the Small Business Act, 15 U.S.C. 632, is liable for a civil penalty of up to $25,000 for every day that it violates the limits set forth in the order. An individual or small business, as defined in the Small Business Act, is liable for a civil penalty of up to $10,000 for every day that it violates the limits set forth in the Order. The FAA may also file a civil action in U.S. District Court, under 49 U.S.C. 46106, 46107, seeking to enjoin any entity from violating the terms of the Order. Environmental Impact The agency order stating FAA policies and procedures with respect to the environmental impact of FAA activities, FAA order 1015.1E, identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined that this Order qualifies for the categorical exclusion identified in paragraph 312d “Issuance of regulatory documents ( *e.g.* , Notice of Proposed Rulemaking and issuance of Final Rules) covering administrative or procedures requirements (Does not include Air Traffic procedures; specific Air Traffic procedures that are categorically excluded are identified under paragraph 311 of this Order.)” This Order, which proposes a reservation system to temporarily limit unscheduled operations pending a future rulemaking, is in the nature of a rule. No extraordinary circumstance exists that may cause a significant impact and therefore no further environmental review is required. *Accordingly, with respect to unscheduled flight operations at JFK and EWR, the FAA proposes the following ordering language:* 1. This Order applies to persons conducting unscheduled operations to and from John F. Kennedy International Airport
(JFK)and Newark Liberty International Airport
(EWR)from August 28, 2008, through October 24, 2009, during the hours of 6 a.m., Eastern Time, through 10:59 p.m., Eastern Time, Sunday through Saturday. This Order does not apply to helicopter operations. 2. *For purposes of this Order:* “Additional Reservation” is an approved reservation above the operational limit in section 3. Additional Reservations are available for unscheduled operations only, and are allocated in accordance with the procedures described in paragraph 7 of this Order. “Airport Reservation Office (ARO)” is an operational unit of the FAA's David J. Hurley Air Traffic Control System Command Center. It is responsible for the administration of reservations for the “other” category of operations, *i.e.* unscheduled flights at High Density Traffic Airports (14 CFR, part 93, subpart k); unscheduled flights under Special Traffic Management Programs; unscheduled flights at LaGuardia Airport; the O'Hare Arrival Reservation Program (excluding reservations for certain public charter flights allocated in accordance with section 6 of Special Federal Aviation Regulation No. 105); and unscheduled flights at JFK and EWR (excluding reservations for certain public charter flights allocated in accordance with paragraph 6 of this proposed Order). “Enhanced Computer Voice Reservation System (e-CVRS)” is the system used by the FAA to make arrival and/or departure reservations at designated airports requiring reservations. Reservations are made through a touch-tone telephone interface, an Internet Web interface, or directly through the ARO. “Public Charter” is defined in 14 CFR 380.2 as a one-way or roundtrip charter flight to be performed by one or more direct air carriers that is arranged and sponsored by a charter operator. “Public Charter Operator” is defined in 14 CFR 380.2 as a U.S. or foreign public charter operator. “Reservation” is an authorization received in compliance with applicable Notices to Airmen (NOTAMs) and procedures established by the FAA to operate an unscheduled flight to or from JFK or EWR during the restricted hours specified in paragraph 1. “Unscheduled Operation” is an operation other than one regularly conducted and scheduled by an air carrier or other operator between JFK or EWR and another service point. Certain types of air carrier operations are considered unscheduled operations for the purposes of this rule, including but not limited to: Public, on-demand, and other charter flights; hired aircraft service; ferry flights; and other non-passenger flights. 3. *Except as provided for in paragraph 7 below, Unscheduled operations:* a. To and from JFK are limited to two reservations per hour from 6 a.m. through 1:59 p.m., one reservation per hour from 2 p.m. through 9:59 p.m.; and two reservations per hour from 10 p.m. through 10:59 p.m. b. To and from EWR are limited to two reservations per hour from 6 a.m. through 11:59 a.m., one reservation per hour from 12 p.m. through 9:59 p.m.; and two reservations from 10 p.m. through 10:59 p.m. 4. Each person conducting an unscheduled flight to or from JFK or EWR during the peak hours described in paragraph 1 must obtain, for such flight operation, a Reservation allocated by the ARO or, in the case of public charters, in accordance with the procedures in paragraph 6. A Reservation is not an air traffic control clearance. Additionally, it is the separate and sole responsibility of the pilot/operator to comply with all NOTAMs, security or other regulatory requirements to operate at JFK or EWR. 5. *The reservation procedures are as follows:* a. The FAA's ARO will receive and process all Reservation requests for Unscheduled Operations at JFK and EWR during the effective period, except for requests for public charter flights made more than 72 hours and up to 6 months in advance of the planned operation. Requests for Reservations for such public charter flights are addressed in paragraph 6. Reservations are assigned on a “first-come, first-served” basis determined by the time the request is received at the ARO. b. The filing of a request for a Reservation does not constitute the filing of an IFR flight plan as required by regulation. The IFR flight plan must be filed only after the Reservation is obtained, and must be filed in accordance with FAA regulations and procedures. Reservation numbers should be included in the remarks section of the flight plan. The ARO does not accept or process flight plans. c. Operators may obtain Reservations by
(1)accessing the Internet;
(2)calling the ARO's interactive computer system via touch-tone telephone; or
(3)calling the ARO directly. The telephone number for the e-CVRS computer is 1-800-875-9694. This toll free number is valid for calls originating within the United States, Canada, and the Caribbean. “Operators outside those areas may access e-CVRS by calling the toll number of
(703)707-0568. The Internet Web address for accessing e-CVRS is *http://www.fly.faa.gov/ecvrs.* Operators may contact the ARO at
(703)904-4452 if they have a technical problem making a Reservation using the automated interfaces, if they have a question concerning the procedures, or if they wish to” make a telephone Reservation from outside the United States, Canada, or the Caribbean. 6. *The following provisions apply to Public Charter operations:* a. No more than one Reservation in any hour will be available for assignment to Public Charters in advance of 72 hours prior to the operation. b. During the hours of 2 p.m. through 9:59 p.m., no more than two reservations total will be available for assignment to Public Charter operations in advance of 72 hours prior to operation. c. The Public Charter Operator may request a Reservation up to six months from the date of the flight operation. Reservations should be submitted to Federal Aviation Administration, Slot Administration Office, AGC-200, 800 Independence Avenue, SW., Washington, DC 20591. Submissions may be made by facsimile to
(202)267-7277 or by e-mail to *7-AWA-slotadmin@faa.gov.* d. The Public Charter Operator must certify that its prospectus has been accepted by the Department of Transportation in accordance with 14 CFR part 380. e. The Public Charter Operator must identify the call sign/flight number or aircraft registration number of the direct air carrier, the date and time of the proposed operations, and aircraft type. For arrivals, the Public Charter Operator must also identify the origin airport immediately prior to JFK or EWR, and, for departures, the Public Charter Operator must also identify the destination airport immediately following JFK or EWR. Any changes to an approved Reservation must be approved in advance by the Slot Administration Office. f. If Reservations under paragraph
(a)above have been assigned and are unavailable, the Public Charter Operator may request Reservations under paragraph 5. 7. *Notwithstanding the restrictions in paragraph 1:* a. If the Air Traffic Organization determines that ATC weather and capacity conditions are favorable and significant delay is not likely, the FAA may determine that Additional Reservations may be accommodated for a specific time period. Generally, the availability of Additional Reservations will not be determined more than 8 hours in advance. Unused Operating Authorizations allocated for scheduled operations may also be made available as Additional Reservations for Unscheduled Operations. If available, Additional Reservations will be added to e-CVRS and granted on a first-come, first served basis using the procedures described in paragraph 5 of this Order. Reservations for additional unscheduled operations are not granted by the local ATC facility and must be obtained through e-CVRS or the ARO. b. An operator that has been unable to obtain a Reservation at the beginning of the 72-hour window may find that a Reservation may be available on the scheduled date of operation due to Additional Reservations or cancellations. c. ATC will accommodate declared emergencies without regard to Reservations. Non-emergency flights in support of national security, law enforcement, military aircraft operations, public-use aircraft operations, or similar mission-critical flights may be accommodated above the Reservation limits with the prior approval of the Vice President, System Operations Services, Air Traffic Organization. Procedures for obtaining the appropriate waiver are available on the Internet at the e-CVRS Web site at *http://www.fly.faa.gov/ecvrs* . d. Reservations may not be bought, sold or leased. 8. The FAA will enforce this Order through an enforcement action seeking a civil penalty under 49 U.S.C. 46301(a). A carrier that is not a small business as defined in the Small Business Act, 15 U.S.C. 632, will be liable for a civil penalty of up to $25,000 for every day that it violates the limits set forth in this Order. An individual or small business, as defined in the Small Business Act, will be liable for a civil penalty of up to $10.000 for every day that it violates the limits set forth in this Order. The FAA also could file a civil action in U.S. District Court, under 49 U.S.C. 46106, 46107, seeking to enjoin any entity from violating the terms of this Order. 9. The FAA may modify or withdraw any provision in this Order on its own or on application by any operator for good cause shown. Issued in Washington, DC on July 8, 2008. Rebecca B. MacPherson, Assistant Chief Counsel for Regulation. [FR Doc. E8-15961 Filed 7-16-08; 8:45 am] BILLING CODE 4910-13-M DEPARTMENT OF TRANSPORTATION Federal Aviation Administration Notice of Passenger Facility Charge
(PFC)Approvals and Disapprovals AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Monthly Notice of PFC Approvals and Disapprovals. In June 2008, there were seven applications approved. Additionally, 32 approved amendments to previously approved applications are listed. SUMMARY: The FAA publishes a monthly notice, as appropriate, of PFC approvals and disapprovals under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Pub. L. 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR Part 158). This notice is published pursuant to paragraph
(d)of § 158.29. PFC Applications Approved *Public Agency:* City of Des Moines, Iowa. *Application Number:* 08-11-C-00-DSM. *Application Type:* Impose and use a PFC. *PFC Level:* $4.50. *Total PFC Revenue Approved in This Decision:* $2,525,646. *Earliest Charge Effective Date:* August 1, 2017. *Estimated Charge Experiation Date:* January 1, 2018. *Class of Air Carriers not Required to Collect PFC's:* Part 135 air taxi/commercial operators. *Determination:* Approved. Based on information submitted in the public agency's application, the FAA has determined that the proposed class accounts for less than 1 percent of the total annual enplanements at Des Moines International Airport. *Brief Description of Projects Approved for Collection and Use:* Concourses A and C enhancements. East cargo pavement reconstruction. Taxiway P reconstruction. Snow blower head rebuild/replacement. *Decision Date:* June 5, 2008. FOR FURTHER INFORMATION CONTACT: Jan Monroe, Central Region Airports Division,
(816)329-2635. *Public Agency:* City of Worland, Wyoming. *Application Number:* 08-02-C-00-WRL. *Application Type:* Impose and use a PFC. *PFC Level:* $4.50. *Total PFC Revenue Approved in This Decision:* $193,038. *Earliest Charge Effective Date:* August 1, 2008. *Estimated Charge Experiation Date:* July 1, 2022. *Class of Air Carriers Not Required To Collect PFC's:* None. *Brief Description of Projects Approved for Collection and Use:* Road and trail relocation, construct spray operations area, extend and widen taxilane. Reconstruct taxiway A south, grade safety area runway 16/34, Hanover Canal siphon. Reconstruct taxiway A south, grade extended safety area runway 16/34, extend and widen taxilane. Reconstruct runway 16/34 south. Appraisal and hangar purchase costs (schedules I, II, III, and IV). Relocate obstructions—Highland Hanover Canal and Country Road, phase 2. *Decision Date:* June 5, 2008. FOR FURTHER INFORMATION CONTACT: Chris Schaffer, Denver Airports District Office,
(303)342-1258. *Public Agency:* City of Modesto, California. *Application Number:* 08-07-C-00-MOD. *Application Type:* Impose and use a PFC. *PFC Level:* $4.50. *Total PFC Revenue Approved in This Decision:* $395,134. *Earliest Charge Effective Date:* August 1, 2008. *Estimated Charge Experiation Date:* December 1, 2015. *Class of Air Carriers not Required to Collect PFC's:* None. *Brief Description of Projects Approved for Collection and Use:* Rehabilitate taxilanes. Install/upgrade airfield guidance signs. Improve airport drainage. Expand/construct parking lot. Rehabilitate apron. Conduct Part 150 noise compatibility study. Miscellaneous planning study. Procure aircraft rescue and firefighting vehicle. PFC administrative costs. *Brief Description of Projects Approved for Collection:* General aviation apron rehabilitation. Enhance runway safety area. *Decision Date:* June 6, 2008. FOR FURTHER INFORMATION CONTACT: Ron Biaoco, San Francisco Airports District Office,
(650)876-2778, extension 626. *Public Agency:* County of Okaloosa, Valparaiso, Florida. *Application Number:* 08-04-C-00-VPS. *Application Type:* Impose and use a PFC. *PFC Level:* $4.50. *Total PFC Revenue Approved in This Decision:* $1,485,650. *Earliest Charge Effective Date:* July 1, 2020. *Estimated Charge Experiation Date:* April 1, 2021. *Class of Air Carriers not Required to Collect PFC's:* None. *Brief Description of Projects Approved for Collection and Use:* Terminal expansion program. Acquire interactive training system. PFC program and administrative costs. *Decision Date:* June 6, 2008. FOR FURTHER INFORMATION CONTACT: Susan Moore, Orlando Airports District Office,
(407)812-6331, extension 120. *Public Agency:* Meridian Airport Authority, Meridian, Mississippi. *Application Number:* 08-10-C-00-MEI. *Application Type:* Impose and use a PFC. PFC Level: $4.50. *Total PFC Revenue Approved in This Decision:* $502,500. *Earliest Charge Effective Date:* June 1, 2012. *Estimated Charge Experiation Date:* August 1, 2017. *Class of Air Carriers not Required to Collect PFC's:* None. *Brief Description of Projects Approved for Collection and Use:* Rehabilitate general aviation apron. Relocate taxiway A. Acquire security vehicle. Construct hangar access roads. Rehabilitate security fencing. *Decision Date:* June 6, 2008. FOR FURTHER INFORMATION CONTACT: Keafur Grimes, Jackson Airports District Office,
(601)664-9886. *Public Agency:* County of Marquette, Marquette, Michigan. *Application Number:* 08-09-C-00VSAW. *Application Type:* Impose and use a PFC. *PFC Level:* $4.50. *Total PFC Revenue Approved in This Decision:* $852,250. *Earliest Charge Effective Date:* August 1, 2008. *Estimated Charge Experiation Date:* August 1, 2011. *Class of Air Carriers not Required to Collect PFC's:* None. *Brief Description of Projects Approved for Collection and Use:* Runway and taxiway concrete joint repair and slab replacement. Runway 1, approach rehabilitation, very high frequency omnidirectional range and glideslope access roads. Aircraft rescue and firefighting/snow removal equipment building alarm system construction and installation. Snow removal equipment (snow blower). Airfield lighting—phase 2 (construction). Pavement maintenance and repairs—runway, taxiways, and aprons. Airfield lighting (navigation aids utility power study). Terminal renovation and expansion—phase 1 (design only). Fencing, security, vehicle access, wildlife control and Transportation Security Administration compliance. Interactive employee training system. Terminal building renovation and expansion. Snow removal anti-icing and deicing equipment. PFC package application and administration. *Decision Date:* June 18, 2009. FOR FURTHER INFORMATION CONTACT: Matthew Thys, Detroit Airports District Office,
(734)229-2901. *Public Agency:* County of Broome, Binghamton, New York. *Application Number:* 08-11-C-00-BGM. *Application Type:* Impose and use a PFC. *PFC Level:* $4.50. *Total PFC Revenue Approved in this Decision:* $149,796. *Earliest Charge Effective Date:* November 1, 2010. *Estimated Charge Experiation Date:* March 1, 2011. *Class of Air Carriers not Required to Collect PFC's:* Non-scheduled/on-demand air carriers filing FAA Form 1900-31. *Determination:* Approved. Based on information submitted in the public agency's application, the FAA has determined that the proposed class accounts for less than 1 percent of the total annual enplanements at Greater Binghamton Airport. *Brief Description of Projects Approved for Collection and Use:* Replace runway 16/34 precision approach path indicators. Storm water management plan. Snow removal equipment replacement. *Brief Description of Project Aprpoved for Use:* Taxiway rehabilitation! extension construction. *Decision Date:* June 18, 2008. FOR FURTHER INFORMATION CONTACT: Robert Levine, New York Airports District Office,
(516)227-3807. Amendments to PFC Approvals Amendment No. city, state Amendment approved date Original approved net PFC revenue Amended approved net PFC revenue Original estimated charge exp. date Amended estimated charge exp. date 05-04-C-01-LYH, Lynchburg, VA 05/27/08 $1,810,000 $1,610,000 06/01/15 06/01/15 98-03-C-03-SJT, San Angelo, TX 06/03/08 830,830 437,726 08/01/04 08/01/04 04-05-C-01-SJT, San Angelo, TX 06/03/08 335,042 259,336 01/01/06 01/01/06 05-06-C-01-SJT, San Angelo, TX 06/03/08 200,000 217,044 11/01/06 11/01/06 06-07-C-01-SJT, San Angelo, TX 06/03/08 1,568,947 1,477,361 09/01/12 09/01/12 99-05-C-01-MOD, Modesto, CA 06/06/08 154,750 107,637 09/01/01 09/01/01 01-06-C-01-MOD, Modesto, CA 06/06/08 124,180 65,871 03/01/05 03/01/05 04-11-C-02-BNA, Nashville, TN 06/06/08 79,614,555 75,873,967 12/01/09 08/01/09 06-12-0-01-BNA, Nashville, TN 06/06/08 21,671,262 21,671,262 02/01/11 02/01/11 97-06-l-03-BDL, Windsor Locks, CT 06/09/08 15,019,913 15,038,863 02/01/99 02/01/99 99-08-U-02-BDL, Windsor Locks, CT 06/09/08 NA NA 02/01/99 02/01/99 99-09-l-01-BDL, Windsor Locks, CT 06/09/08 4,400,000 4,557,854 07/01/00 07/01/00 01-13-U-01-BDL, Windsor Locks, CT 06/09/08 NA NA 07/01/00 07/01/00 06-05-C-02-RDM, Redmond, OR 06/12/08 1,229,416 1,148,690 05/01/08 07/01/08 *97-01-C-04-SDF, Louisville, KY 06/16/08 90,600,000 90,600,000 09/01/14 03/01/14 06-04-C-02-SDF, Louisville, KY 06/16/08 1,267,315 1,267,315 05/01/18 10/01/17 97-01-C-01-AHN, Athens, GA 06/18/08 187,628 165,615 01/01/02 01/01/02 98-08-C-01-MHT, Manchester, NH 06/18/08 3,088,148 3,033,074 2/01/16 02/01/16 01-09-C-01-MHT, Manchester, NH 06/18/08 700,000 678,332 04/01/16 03/01/16 99-04-C-04-ILE, Killeen, TX 06/18/08 3,157,544 3,104,371 12/01/05 12/01/05 01-05-C-02-ILE, Killeen, TX 06/18/08 30,000 26,839 01/01/06 01/01/06 97-05-l-01-PLN, Pellston, MI 06/19/08 16,250 19,361 09/01/97 09/01/97 99-08-U-02-PLN, Pellston, MI 06/19/08 NA NA 09/01/97 09/01/97 98-07-l-03-PLN, Pellston, MI 06/19/08 97,089 79,747 08/01/02 06/01/02 01-09-C-02-PLN, Pellston, MI 06/19/08 708,506 708,506 08/01/02 06/01/02 01-09-C-03-PLN, Pellston, MI 06/19/08 708,506 799,792 07/01/11 07/01/11 95-02-C-03-EWR, New York, NY 06/20/08 329,343,000 335,401,500 11/01/01 11/01/01 96-03-U-02-EWR, New York, NY 06/20/08 NA NA 11/01/01 11/01/01 95-02-C-03-JFK, New York, NY 06/20/08 307,600,500 314,523,500 11/01/01 11/01/01 96-03-U-02-JFK, New York, NY 06/20/08 NA NA 11/01/01 11/01/01 95-02-C-03-LGA, New York, NY 06/20/08 248,056,500 252,575,000 11/01/01 11/01/01 96-03-U-02-LGA, New York, NY 06/20/08 NA NA 11/01/01 11/01/01 Note: The amendment denoted by an asterisk (*) includes a change to the PFC level charged from $3.00 per enplaned passenger to $4.50 per enplaned passenger. For Louisville, KY, this change is effective on September 1, 2008. Issued in Washington, DC on July 3, 2008. Joe Hebert, Manager, Financial Analysis and Passenger Facility Charge Branch. [FR Doc. E8-15958 Filed 7-16-08; 8:45 am] BILLING CODE 4910-13-M DEPARTMENT OF TRANSPORTATION Federal Aviation Administration [Summary Notice No. PE-2008-28] Petition for Exemption; Summary of Petition Received AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of petition for exemption received. SUMMARY: This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition. DATES: Comments on this petition must identify the petition docket number involved and must be received on or before August 6, 2008. ADDRESSES: You may send comments identified by Docket Number FAA-2008-0762 using any of the following methods: • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Send comments to the Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590. • *Fax:* Fax comments to the Docket Management Facility at 202-493-2251. • *Hand Delivery:* Bring comments to the Docket Management Facility in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. *Privacy:* We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. Using the search function of our docket Web site, anyone can find and read the comments received into any of our dockets, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78). *Docket:* To read background documents or comments received, go to *http://www.regulations.gov* at any time or to the Docket Management Facility in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Jan Thor, ANM-113,
(425)227-2127, Federal Aviation Administration, 1601 Lind Avenue, SW., Renton, WA 98057-3356, or Frances Shaver,
(202)267-9681, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591. This notice is published pursuant to 14 CFR 11.85. Issued in Washington, DC, on July 11, 2008. Pamela Hamilton-Powell, Director, Office of Rulemaking. Petition for Exemption *Docket No.:* FAA-2008-0762. *Petitioner:* Viking Air Limited. *Section of 14 CFR Affected:* Section 26.11. *Description of Relief Sought:* Viking Air Limited seeks exemption of the DHC-7-1 from the requirements of § 26.11 on the basis that these airplanes are not currently operated commercially within the United States, nor are they expected to be in the future. Therefore, the operational rules that necessitate the enhancement of instructions for continued airworthiness are not applicable. [FR Doc. E8-16248 Filed 7-16-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration [Summary Notice No. PE-2008-26] Petition for Exemption; Summary of Petition Received AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of petition for exemption received. SUMMARY: This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition. DATES: Comments on this petition must identify the petition docket number involved and must be received on or before August 6, 2008. ADDRESSES: You may send comments identified by Docket Number FAA-2002-12590 using any of the following methods: • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Send comments to the Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590. • *Fax:* Fax comments to the Docket Management Facility at 202-493-2251. • *Hand Delivery:* Bring comments to the Docket Management Facility in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. *Privacy:* We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. Using the search function of our docket Web site, anyone can find and read the comments received into any of our dockets, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78). *Docket:* To read background documents or comments received, go to *http://www.regulations.gov* at any time or to the Docket Management Facility in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Laverne Brunache
(202)267-3133 or Tyneka Thomas
(202)267-7626, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591. This notice is published pursuant to 14 CFR 11.85. Issued in Washington, DC, on July 11, 2008. Pamela Hamilton-Powell, Director, Office of Rulemaking. Petition for Exemption *Docket No.:* FAA-2002-12590. *Petitioner:* United States Hang Gliding and Paragliding Association. *Section of 14 CFR Affected:* 14 CFR 91.309 and 103.1(b). *Description of Relief Sought:* To amend United States Hang Gliding and Paragliding Association (USHPA) current Exemption No. 4144, which allows USHPA members to tow unpowered ultralight vehicles (hang gliders) using powered ultralight vehicles. The requested amendment would allow USHPA members who are licensed sport pilots, with light sport aircraft, to tow aloft unpowered ultralight vehicles (hang gliders) for recreational and/or instructional purposes, as well. [FR Doc. E8-16249 Filed 7-16-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Highway Administration Environmental Impact Statement; St. Lucie County, FL AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Notice of Intent. SUMMARY: The FHWA is issuing this notice to advise the public that an Environmental Impact Statement
(EIS)will be prepared for a proposed new river crossing project in the City of Port St. Lucie, St. Lucie County, Florida. FOR FURTHER INFORMATION CONTACT: Mr. George Hadley, Federal Highway Administration, 545 John Knox Road, Suite 200, Tallahassee, Florida 32303, Telephone:
(850)942-9650 ext. 3011. SUPPLEMENTARY INFORMATION: The FHWA, in cooperation with the Florida Department of Transportation, will prepare an EIS for a third east-west bridge crossing over the North Fork of the St. Lucie River in the City of Port St. Lucie, in St. Lucie County, Florida. The proposed improvement would link the Crosstown Parkway on the west to U.S. 1 (SR 5) on the east. The proposed action is known as the Crosstown Parkway Corridor Extension Study and was formerly known as the Third East-West River Crossing Study. The proposed action would provide needed relief to the two existing river crossings which are over capacity. Alternatives under consideration include a No Build Alternative and multiple alternatives that provide a river crossing on a new alignment. Expansion of the two existing river crossings was previously considered and determined to be infeasible. Coordination with appropriate Federal, State, and local agencies, and private organizations and citizens who have expressed interest in this proposal has been ongoing and will continue. A series of public meetings and workshops have been held in Port St. Lucie as part of the planning efforts for this project and will continue throughout the EIS process. A formal scoping meeting is planned for this project and is anticipated to occur in August of 2008. In addition, public workshops and a public hearing will be held. Public notice will be given of the time and place of the hearing and for future meetings. The Draft EIS will be made available for public and agency review and comment before the public hearing date. To ensure that the full range of issues related to the proposed action is addressed and all significant issues identified, comments and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the EIS should be directed to the FHWA at the address provided above. (Catalog of Federal Domestic Assistance Program Number 20.205, Highway Research, Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation of Federal programs and activities apply to this program.) Issued on: July 10, 2008. George B. Hadley, Environmental Programs Coordinator, Tallahassee, Florida. [FR Doc. E8-16342 Filed 7-16-08; 8:45 am] BILLING CODE 4910-22-M DEPARTMENT OF TRANSPORTATION Federal Highway Administration [Project Number STP-0022-01 (059)] Environmental Impact Statement: Stone, Perry, George, and Greene Counties, MS AGENCY: Federal Highway Administration (FHWA), Department of Transportation (DOT). ACTION: Notice of Intent. SUMMARY: The Federal Highway Administration is issuing this notice to advise the public that an Environmental Impact Statement will be prepared to study improvements to State Route 15 to provide a four-lane facility beginning in the vicinity of Ramsey Springs, Mississippi and terminating on U.S. Highway 98 near Beaumont, Mississippi, a distance of approximately 35 miles. FOR FURTHER INFORMATION CONTACT: Mr. Cecil Vick, Project Development Team Leader, Federal Highway Administration, 666 North Street, Suite 105, Jackson, MS 39202-3199, *Telephone:*
(601)965-4217. Contacts at the State and local level, respectively are: Mr. Claiborne Barnwell, Environmental/Location Division Engineer, Mississippi Department of Transportation, P.O. Box 1850, Jackson, MS 39215-1850, telephone:
(601)359-7920; and Mr. Steven Twedt, District 6 Engineer, Mississippi Department of Transportation, 6356 Highway 49 North, Hattiesburg, MS 39403-0551, telephone
(601)544-6511. SUPPLEMENTARY INFORMATION: The FHWA, Mississippi Division Office will serve as the lead Federal agency for this project while the Mississippi Department of Transportation
(MDOT)will serve as joint lead agency. The FHWA, in cooperation with MDOT, will prepare an Environmental Impact Statement
(EIS)to study potential improvements to State Route 15 (SR 15) in order to provide a four-lane facility. This approximately 35-mile long corridor has logical termini near Ramsey Springs in Stone County and on U. S. Highway 98 near Beaumont, MS in Perry County. The purpose of the EIS is to address the transportation, environmental, and safety issues of such a transportation corridor. The Transportation facility will greatly enhance Hurricane evacuation from the Mississippi Gulf, provide a new four-lane facility, and meet legislative intent. Alternatives under consideration include
(1)taking no action and
(2)build alternatives. The FHWA and MDOT are seeking input as a part of the scoping process to assist in determining and clarifying issues relative to this project. Letters describing the proposed action and soliciting comments will be sent to appropriate federal, state, and local agencies, Native American tribes, private organizations and citizens who have previously expressed or are known to have interest in this proposal. A formal scoping meeting with federal, state, and local agencies, and other interested parties will be held in the near future. Public involvement meetings will be held during the EIS process. The draft EIS will be available for public and agency review and comment prior to the official public hearing. To ensure that the full range of issues related to this proposed action are addressed and all significant issues identified, comments and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the EIS should be directed to the FHWA at the address provided above. Andrew H. Hughes, Federal Highway Administration, Division Administrator, Mississippi Division, Jackson, Mississippi. [FR Doc. E8-16371 Filed 7-16-08; 8:45 am] BILLING CODE 4910-22-P DEPARTMENT OF TRANSPORTATION Federal Highway Administration Notice of Final Federal Agency Actions on Proposed Highway in Idaho AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Notice of Limitation on Claims for Judicial Review of Actions by FHWA. SUMMARY: This notice announces actions taken by the FHWA that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to a proposed highway project, 1-84 Orchard Interchange to Gowen Interchange Study, in Boise, Ada County in the State of Idaho [Idaho Transportation Department
(ITD)Key Number 6492]. DATES: By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before January 13, 2009. If the Federal law that authorizes judicial review of a claim provides a time period of less than 180 days for filing such claim, then that shorter time period still applies. FOR FURTHER INFORMATION CONTACT: For FHWA: Mr. Peter Hartman, Division Administrator, Federal Highway Administration, 3050 Lake Harbor Lane, Suite 126, Boise, Idaho 83703; telephone:
(208)334-1843; e-mail: *Peter.Hartman@fhwa.dot.gov* . The FHWA Idaho Division Office's normal business hours are 8 a.m. to 5 p.m. (Mountain Standard Time). For lID: Ms. Sue Sullivan, Project Manager, Idaho Transportation Department, District 3 Office, 8150 Chinden Blvd., Boise, Idaho 83724, telephone:
(208)334-8300. Normal business hours are 8 a.m. to 5 p.m. (Mountain Standard Time). SUPPLEMENTARY INFORMATION: Notice is hereby given that the FHWA has taken final agency actions subject to 23 U.S.C. 139(I)(1) by issuing approvals for the following highway project in the State of Idaho: 1-84 Orchard Interchange to Gowen Interchange Study in Boise, Ada County. The project will be 9.2 miles long, and expand the existing four-lane freeway to an eight-lane freeway with auxiliary lanes from approximately one half mile west of the Orchard interchange to Broadway interchange. An existing four-lane freeway will be expanded to a six-lane freeway from Broadway interchange to Gowen interchange and from Gowen interchange to just east of Issacs Canyon the existing four-lane freeway will be reconstructed. The project also includes the reconstruction of the Vista, Orchard, Broadway and Gowen interchanges. The actions by the FHWA, and the laws under which such actions were taken, are described in the Environmental Assessment
(EA)for the project approved on July 13, 2007. A Finding of No Significant Impact (FONSI) issued on November 5, 2007. The EA, FONSI and other project records are available by contacting the FHWA or the Idaho Transportation Department at the addresses provided above. The EA and FONSI can be viewed and downloaded from the project Web site at *http://www.itd.idaho.gov/Projects/D3/I84Orchard To Gowen/* or viewed at the Idaho Transportation Department. This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to: 1. General: National Environmental Policy Act
(NEPA)[42 U.S.C. 4321-4351]; Federal-Aid Highway Act [23 U.S.C. 109 and 23 U.S.C. 128]; Public Hearing [23 U.S.C. 128]. 2. Air and Noise: Clean Air Act [42 U.S.C. 7401-7671(q)]; Intermodal Surface Transportation Efficiency Act of 1991, Congestion Mitigation and Air Quality Improvement Program (Sec 1008 U.S.C. 149); Noise Standards: 23 U.S.C. 109(i) (P.L. 91-605) (P.L. 93-87). 3. Wildlife: Endangered Species Act [16 U.S.C. 1531-1544 and Section 1536]; Fish and Wildlife Coordination Act [16 U.S.C. 661-667(d)]; Migratory Bird Treaty Act [16 U.S.C. 703-712]. 4. Historic and Cultural Resources: Section 106 of the National Historic Preservation Act of 1966, as amended [16 U.S.C. 470(f) *et seq.* ]; Archeological Resources Protection Act of 1977 [16 U.S.C. 470(aa)-470(II)]; Archeological and Historic Preservation Act [16 U.S.C. 469-469(c)]. 5. Land: Section 4(f) of The Department of Transportation Act: 23 U.S.C. 138,49 U.S.C. 303 (P.L. 100-17), (P.L. 7-449), (P.L. 86-670); Farmland Protection Policy Act
(FPPA)[7 U.S.C. 4201-4209]; Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901, *et seq.* ). 6. Social and Economic: Civil Rights Act of 1964 (42 U.S.C. 2000(d)-2000(d)(1)]; Uniform Relocation Assistance and Real Property Acquisition Act of 1970 (42 U.S.C. 4601 *et seq.* , P.L. 91-646) as amended by the Uniform Relocation Act Amendments of 1987 (P.L. 100-17). 7. Wetlands and Water Resources: Clean Water Act [33 U.S.C.]; Wetlands Mitigation [23 U.S.C. 103(b)(6)(M) and 133(b)(11)]. 8. Executive Orders: E.O. 11990 Protection of Wetlands; E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations; E.O. 13175 Consultation and Coordination with Indian Tribal Governments; E.O. 11514 Protection and Enhancement of Environmental Quality; E.O. 13112 Invasive Species. (Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.) Authority: 23 U.S.C. § 139(l)(1). Issued on: July 8, 2008. Peter J. Hartman, Division Administrator, FHWA—Idaho Division. [FR Doc. E8-16052 Filed 7-16-08; 8:45 am] BILLING CODE 4910-RY-M DEPARTMENT OF TRANSPORTATION Federal Highway Administration Notice To Rescind a Notice of Intent To Prepare an Environmental Impact Statement (EIS), Ada and Canyon Counties, ID AGENCY: Federal Highway Administration. ACTION: Rescind Notice of Intent to Prepare an Environmental Impact Statement (EIS). SUMMARY: The FHWA is issuing this notice to advise the public that the Notice of Intent
(NOI)published on July 17, 2007 to prepare an Environmental Impact Statement
(EIS)for a proposed highway project in Ada County, Idaho is being rescinded. FOR FURTHER INFORMATION CONTACT: Mr. Peter Hartman Division Administrator, Federal Highway Administration, 3050 Lakeharbor Lane, Suite 126, Boise, Idaho 83703, Telephone:
(208)334 9180, ext. 116, or Ms. Amy Schroeder, GARVEE Program Engineer, Idaho Transportation Department, P.O. Box 7129, Boise, Idaho 83703-1129, Telephone:
(208)334-8772. SUPPLEMENTARY INFORMATION: Background The Idaho Transportation Department
(ITD)and the Federal Highway Administration
(FHWA)are rescinding the Notice of Intent
(NOI)to prepare an EIS for a project that has been proposed to evaluate existing transportation improvement needs along approximately 16 miles of Interstate 84 (1-84) in Ada and Canyon Counties, Idaho. The project is officially known as the 1-84 Karcher Interchange to Five Mile Environmental Study (Project No. A010 (002); Key No. 10002). The NOI is being rescinded because the current project development and NEPA process are yielding minimal potential for significant impacts and an EIS is not necessary or appropriate for the environmental evaluation. The I-84 Environmental Study is identified in the COMPASS Communities in Motion: Regional Long-Range Transportation Plan 2030
(CIM)as one of several potential transportation needs in the Treasure Valley. The project was initiated with several conceptual alternatives from the previous planning efforts. The initially developed wide range of concept alternatives identified for evaluation in the I-84 Karcher to Five Mile Environmental Study had unknown and much greater potential for impacts. In response, it was thought that an EIS would be the best method to discuss impacts from the broad range of alternatives. This class of action was determined before the purpose and need statement was crafted. Consequently, a Letter of Project Initiation and NOl was published on July 17, 2007 to prepare an EIS. Public input, agency and stakeholder coordination was conducted under the SAFETEA-LU Environmental Review process. Public meetings were held on May 15, May 17, and November 6, 2007 to solicit comments from the public on the purpose and need, alternatives being considered and the alternative screening process. The Participating Agency group convened on August 9 and October 25, 2007. Input from the public and agency meetings assisted in the establishment of the purpose and need for the project, and yielded the project range of alternatives to be considered. Some of the concept alternatives initially considered for the action, such as the development of a new corridor to the south and improvement of local streets, did not meet the established purpose and need and were therefore dismissed from further consideration. In addition, environmental scans and screening did not reveal potential for significant impacts from the remaining build alternatives. Subsequently added screening criteria effectively dismissed additional concept alternatives based on their reasonability, practicability, and constructability. Alternatives were developed and advanced into further screening where actual footprints are evaluated for impacts within the project limits. The screened alternatives to be advanced were presented to the public on March 19, 2008 and to participating agencies on April 2, 2008. At this point in the project development process, no significant human or natural environmental impacts are evident in the 1-84 Karcher Interchange to Five Mile Road Environmental Study project that would require an ElS. If, at any point in the environmental process, it is determined that the action is likely to have a significant impact on the environment, the preparation of an EIS will be required. To ensure that the full range of issues related to this proposed action and all significant issues are identified, comments and suggestions are invited from all interested parties regarding this action to rescind the NOl published July 17, 2007 for the highway project in Ada and Canyon County, Idaho. Comments or questions concerning this proposed action should be directed to the FHWA or lTD at the addresses provided above. Peter J. Hartman, Division Administrator, FHWA—Idaho Division. [FR Doc. E8-16053 Filed 7-16-08; 8:45 am] BILLING CODE 4910-RY-M DEPARTMENT OF THE TREASURY Fiscal Service Rate for Use in Federal Debt Collection and Discount and Rebate Evaluation AGENCY: Financial Management Service, Fiscal Service, Treasury. ACTION: Notice of rate for use in Federal debt collection and discount and rebate evaluation. SUMMARY: Pursuant to Section 11 of the Debt Collection Act of 1982, as amended, (31 U.S.C. 3717), the Secretary of the Treasury is responsible for computing and publishing the percentage rate to be used in assessing interest charges for outstanding debts owed to the Government. Treasury's Cash Management Requirements (1 TFM 6-8000) prescribe use of this rate by agencies as a comparison point in evaluating the cost-effectiveness of a cash discount. In addition, 5 CFR 1315.8 of the Prompt Payment rule on “Rebates” requires that this rate be used in determining when agencies should pay purchase card invoices when the card issuer offers a rebate. Notice is hereby given that the applicable rate is 3.00 percent for the remainder of the calendar year. DATES: The rate will be in effect for the period beginning on July 1, 2008, and ending on December 31, 2008. FOR FURTHER INFORMATION CONTACT: Inquiries should be directed to the Agency Enterprise Solutions Division, Financial Management Service, Department of the Treasury, 401 14th Street, SW., Washington, DC 20227 ( *Telephone:* 202-874-6650). SUPPLEMENTARY INFORMATION: The rate reflects the current value of funds to the Treasury for use in connection with Federal Cash Management systems and is based on investment rates set for purposes of Public Law 95-147, 91 Stat. 1227. The rate is computed each year by averaging Treasury Tax and Loan (TT&L) investment rates for the 12-month period ending every September 30, rounded to the nearest whole percentage, for applicability effective each January 1. The rate is subject to quarterly revisions if the annual average, on a moving basis, changes by 2 percentage points, which is the case for the quarter ending June 30, 2008. Therefore, the rate in effect for the period July 1, 2008 through December 31, 2008 reflects the average investment rates for the 12-month period that ended June 30, 2008. Dated: July 8, 2008. Sheryl Morrow, Assistant Commissioner, Federal Finance. [FR Doc. E8-16250 Filed 7-16-08; 8:45 am] BILLING CODE 4810-35-M DEPARTMENT OF THE TREASURY United States Mint Notification of Citizens Coinage Advisory Committee August 2008 Public Meeting ACTION: Notification of Citizens Coinage Advisory Committee August 2008 Public Meeting. SUMMARY: Pursuant to United States Code, Title 31, section 5135(b)(8)(C), the United States Mint announces the Citizens Coinage Advisory Committee
(CCAC)public meeting and public forum scheduled for August 1, 2008, at the American Numismatic Association's World's Fair of Money®. *Date:* August 1, 2008. *Time:* 9 a.m. to 12 p.m. (public meeting followed by public forum). *Location:* Room 316, Baltimore Convention Center, One West Pratt Street, Baltimore, MD 21201. *Subject:* Review candidate reverse designs for the 2009 American Eagle Platinum Coin Program, candidate privy mark designs for the American Eagle Platinum Coin series, and other business. Interested persons should call 202-354-7502 for the latest update on meeting time and room location. In accordance with 31 U.S.C. 5135, the CCAC: • Advises the Secretary of the Treasury on any theme or design proposals relating to circulating coinage, bullion coinage, Congressional Gold Medals, and national and other medals. • Advises the Secretary of the Treasury with regard to the events, persons, or places to be commemorated by the issuance of commemorative coins in each of the five calendar years succeeding the year in which a commemorative coin designation is made. • Makes recommendations with respect to the mintage level for any commemorative coin recommended. FOR FURTHER INFORMATION CONTACT: Cliff Northup, United States Mint Liaison to the CCAC; 801 9th Street, NW., Washington, DC 20220; or call 202-354-7200. Any member of the public interested in submitting matters for the CCAC's consideration is invited to submit them by fax to the following number: 202-756-6830. Authority: 31 U.S.C. 5135(b)(8)(C). Dated: July 11, 2008. Edmund C. Moy, Director, United States Mint. [FR Doc. E8-16341 Filed 7-16-08; 8:45 am] BILLING CODE 4810-02-P UNITED STATES INSTITUTE OF PEACE Announcement of a Formal Evaluation of the Annual Grant Competition (Formerly Known as the Unsolicited Grant Initiative); Effective Immediately AGENCY: United States Institute of Peace (USIP). ACTION: Notice. SUMMARY: Conduct an evaluation to assess the contribution and impact of the work of its Annual Grant Competition Program (formerly unsolicited grant program) from 1996-2006. USIP seeks an assessment of the program's effectiveness in advancing the Institute's mission to “prevent and resolve violent international conflicts, promote post-conflict stability and development, and increase conflict management capacity, tools, and intellectual capital worldwide.” The evaluation seeks to address the following concerns:
(1)Demographic data of organizations and individuals funded by USIP (670 grantees);
(2)Accountability of grantees;
(3)Impact of USIP grants on the grantees and the professional field;
(4)Perception of Annual Grant Competition Program at home and abroad. The fixed-price contract of $50,000 will be awarded to a not-for-profit organization. *Deadline:* Received by July 28, 2008, 5 p.m. Proposal must include: Letter of Intent; Proof of non-profit status; Demonstrated knowledge of the conflict management field; Summary of proposed evaluation methodologies and techniques; Two examples of completed evaluation efforts; CVs of lead investigator and team members. DATES: Notification Date: August 11, 2008. Completion Date: January 30, 2009. ADDRESSES: United States Institute of Peace, Grant Program, 1200 17th Street, NW., Suite 200, Washington, DC 20036-3011,
(202)429-3842 (phone),
(202)833-1018 (fax),
(202)457-1719 (TTY), E-mail: *grants@usip.org.* FOR FURTHER INFORMATION CONTACT: The Grant Program Annual Grant Competition, Phone
(202)429-3842, e-mail: *grants@usip.org.* Dated: July 7, 2008. Michael Graham, Vice President for Administration. [FR Doc. E8-15767 Filed 7-16-08; 8:45 am] BILLING CODE 6820-AR-M DEPARTMENT OF VETERANS AFFAIRS Veterans' Advisory Committee on Environmental Hazards; Notice of Meeting The Department of Veterans Affairs
(VA)gives notice under Public Law 92-463 (Federal Advisory Committee Act) that a meeting of the Veterans' Advisory Committee on Environmental Hazards will be held on July 17-18, 2008, at 810 Vermont Avenue, NW., Washington, DC, from 8 a.m. to 4:30 p.m. each day. The July 17 session will be in room 630, and the July 18 session will be in room 530. The meeting is open to the public. The purpose of the Committee is to provide advice to the Secretary of Veterans Affairs on adverse health effects that may be associated with exposure to ionizing radiation, and to make recommendations on proposed standards and guidelines regarding VA benefit claims based upon exposure to ionizing radiation. The major items on the agenda for both days will be discussions of medical and scientific papers concerning the health effects of exposure to ionizing radiation. On the basis of the discussions, the Committee may make recommendations to the Secretary concerning the relationship of certain diseases to exposure to ionizing radiation. The July 18 session will include planning for future Committee activities and assignment of tasks among members. An open forum for oral statements from the public will be available for 30 minutes in the afternoon each day. People wishing to make oral statements before the Committee will be accommodated on a first-come, first-served basis and will be provided three minutes per statement. Members of the public wishing to attend should contact Ms. Bernice Green at the Department of Veterans Affairs, Compensation and Pension Service, 810 Vermont Avenue, NW., Washington, DC 20420, by phone at
(202)461-9723, or by fax at
(202)275-1728. Individuals should submit written questions or prepared statements for the Committee's review to Ms. Green at least five days prior to the meeting. Those who submit material may be asked for clarification prior to its consideration by the Committee. Dated: June 20, 2008. By Direction of the Secretary. E. Philip Riggin, Committee Management Officer. [FR Doc. E8-15775 Filed 7-16-08; 8:45 am] BILLING CODE 8320-01-M 73 138 Thursday, July 17, 2008 Rules and Regulations Part II Federal Deposit Insurance Corporation 12 CFR Part 360 Processing of Deposit Accounts in the Event of an Insured Depository Institution Failure; Large Bank Deposit Insurance Determination Modernization; Interim and Final Rules FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Part 360 RIN 3064-AD26 Processing of Deposit Accounts in the Event of an Insured Depository Institution Failure AGENCY: Federal Deposit Insurance Corporation (FDIC). ACTION: Interim rule with request for comments. SUMMARY: The FDIC is adopting an interim rule establishing the FDIC's practices for determining deposit and other liability account balances at a failed insured depository institution. Except as noted, the FDIC practices defined in the interim rule represent a continuation of long-standing FDIC procedures in processing such balances at a failed depository institution. The FDIC is adopting the interim rule concurrently with its adoption of a related final rule requiring the largest insured depository institutions to adopt mechanisms that would, in the event of the institution's failure: Provide the FDIC with standard deposit account and other customer information; and allow the placement and release of holds on liability accounts, including deposits. This interim rule applies to all insured depository institutions. DATES: This interim rule is effective August 18, 2008, except for § 360.8(e), which will be effective July 1, 2009. Written comments must be received by the FDIC on or before September 15, 2008. ADDRESSES: You may submit comments by any of the following methods: • *Agency Web Site: http://www.fdic.gov/regulations/laws/federal* . Follow instructions for submitting comments on the Agency Web Site. • *E-mail: Comments@FDIC.gov* . Include “Processing of Deposit Accounts” in the subject line of the message. • *Mail:* Robert E. Feldman, Executive Secretary, Attention: Comments, Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429. • *Hand Delivery/Courier:* Guard station at the rear of the 550 17th Street Building (located on F Street) on business days between 7 a.m. and 5 p.m. (EST). • *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the instructions for submitting comments. *Public Inspection:* All comments received will be posted without change to *http://www.fdic.gov/regulations/laws/federal* including any personal information provided. Comments may be inspected and photocopied in the FDIC Public Information Center, 3501 North Fairfax Drive, Room E-1002, Arlington, VA 22226, between 9 a.m. and 5 p.m.
(EST)on business days. Paper copies of public comments may be ordered from the Public Information Center by telephone at
(877)275-3342 or
(703)562-2200. FOR FURTHER INFORMATION CONTACT: James Marino, Project Manager, Division of Resolutions and Receiverships,
(202)898-7151 or *jmarino@fdic.gov* ; Joseph A. DiNuzzo, Counsel, Legal Division,
(202)898-7349 or *jdinuzzo@fdic.gov* ; or Christopher L. Hencke, Counsel, Legal Division,
(202)898-8839 or *chencke@fdic.gov* . SUPPLEMENTARY INFORMATION: I. Introduction In January of this year the FDIC published a proposed rule composed of two parts (“proposed rule”). 1 The first part proposed FDIC practices for determining deposit and other liability account balances at a failed insured depository institution. The second part proposed requirements for the largest insured depository institutions to adopt mechanisms that would, in the event of the institution's failure:
(1)Provide the FDIC with standard deposit account and other customer information; and
(2)allow the placement and release of holds on liability accounts, including deposits. 1 73 FR 2364 (Jan. 14, 2008). The comment period for the proposed rule ended on April 14, 2008. The FDIC received twenty-one comment letters, all of which may be viewed on the FDIC's Web site at *http://www.fdic.gov/regulations/laws/federal/2008/08comAD26.html* . Based in part on the comments received on the proposed rule, the FDIC has decided to finalize the proposed rule by issuing two separate rulemakings—(1) the interim rule, covering part one of the proposed rule and
(2)a separate final rule, covering part two of the proposed rule (“Large Bank Modernization Final Rule”). Throughout this preamble the terms “deposit” (or “domestic deposit”), “foreign deposit” and “international banking facility deposit” identify liabilities having different meanings for deposit insurance purposes. A “deposit” is used as defined in section 3(l) of the Federal Deposit Insurance Act (12 U.S.C. 1813(l)) (“Section 3(l)”). A deposit includes only deposit liabilities payable in the United States, typically those deposits maintained in a domestic office of an insured depository institution. Only deposits meeting these criteria are eligible for insurance coverage. Insured depository institutions may maintain deposit liabilities in a foreign branch (“foreign deposits”), but these liabilities are not deposits in the statutory sense (for insurance or depositor preference purposes) for the time that they are payable solely at a foreign branch or branches. Insured depository institutions also may maintain liabilities in an international banking facility (“IBF”). An “international banking facility deposit,” as defined by the Board of Governors of the Federal Reserve System in Regulation D (12 CFR 204.8(a)(2)), also is excluded from the definition of “deposit” in Section 3(l) and the depositor preference statute (12 U.S.C. 1821(d)(11)). II. Background Upon the failure of an FDIC-insured depository institution, the FDIC must determine the total insured amount for each depositor. 12 U.S.C. 1821(f). To make this determination, the FDIC must ascertain the balances of all deposit accounts owned by the same depositor in the same ownership capacity at a failed institution as of the day of failure. The Large Bank Modernization Final Rule, among other things, requires certain large depository institutions to adopt mechanisms that will allow the FDIC, as receiver, to place holds on liability accounts, including deposits, in the event of failure. The amount held would vary depending on the account balance, the nature of the liability (whether or not it is a deposit for insurance purposes) and the expected losses resulting from the failure. In order to calculate these hold amounts, the rules used by the FDIC to determine account balances as of the day of failure must be clearly established. A deposit account balance can be affected by transactions 2 presented during the day. A customer, a third party or the depository institution can initiate a deposit account transaction. All depository institutions process and post these deposit account transactions according to a predetermined set of rules to determine whether to include a deposit account transaction either in that day's end-of-day ledger balances or in a subsequent day's balances. These rules establish cutoff times that vary by institution and by type of deposit account transaction—for example, check clearing, Fedwire, ATM, and teller transactions. Institutions post transactions initiated before the respective cutoff time as part of that day's business and generally post transactions initiated after the cutoff time the following business day. Further, institutions automatically execute prearranged “sweep” instructions affecting deposit and other liability balances at various points throughout the day. The cutoff rules for posting deposit account transactions and the prearranged automated instructions define the end-of-day balance for each deposit account on any given business day. 3 2 A deposit account transaction, such as deposits, withdrawals, transfers and payments, causes funds to be debited from or credited to the account. 3 Some depository institutions operate “real-time” deposit systems in which some deposit account transactions are posted throughout the business day. Most depository institutions, however, process at least some deposit account transactions in a “batch mode,” where deposit account transactions presented before the cutoff time are posted that evening or in the early morning hours of the following day. With either system—batch or real-time—the institution calculates a close-of-business deposit balance for each deposit account on each business day. In the past, the FDIC usually took over an institution as receiver after it had closed on a Friday. For institutions with a few branches in one state, deposit account transactions for the day were completed and determining account balances on that day was relatively straightforward. The growth of interstate banking and branching over the past two decades and the increasing complexity of bank products and practices (such as sweep accounts) has made the determination of end-of-day account balances on the day of closing much more complicated. III. The Proposed Rule Overview The proposed rule defined the deposit account balance used for deposit insurance determination purposes as the end-of-day *ledger* balance of the deposit account on the day of failure. Except as noted, the FDIC would use the cutoff times previously applied by the failed insured depository institution in establishing the end-of-day ledger balance for deposit insurance determination purposes. The use of end-of-day ledger balances and the institution's normal cutoff times for insurance determination purposes continues long-standing FDIC procedures in processing such balances at a failed depository institution. Whether a deposit account transaction would be included in the end-of-day ledger balance on the day of failure would depend generally upon how it normally would be treated using the institution's ordinary cutoff time on that day. Many institutions have different cutoff times for different kinds of transactions, such as check clearing, Fedwire, ATM and teller transactions. The FDIC proposed establishing an FDIC Cutoff Point, defined as a point in time after it takes control of the failed institution as receiver, to allow the FDIC to make a final determination of the ledger balances of the deposit accounts if the institution's normal cutoff times for the accounts would impair the efficient winding up of the institution. If the institution's ordinary cutoff time on the day of failure *for any particular kind of transaction* preceded the FDIC Cutoff Point, the institution's ordinary cutoff time would be used. Otherwise, the institution's ordinary cutoff time for an individual kind of transaction would be replaced by the FDIC Cutoff Point. The “Applicable Cutoff Time” used for any kind of transaction thus would be the earlier of the institution's ordinary cutoff time or the FDIC Cutoff Point. In practice, there might be several Applicable Cutoff Times for a given failed institution, since different kinds of transactions could have different cutoff times. No Applicable Cutoff Time would be later than the FDIC Cutoff Point established by the FDIC, though some could be earlier. Under the proposed rule, transactions occurring after the Applicable Cutoff Time would have been posted to the next day's business, if the operations of the failed institution were carried on by a successor institution. In a depository institution failure where deposit operations were not continued by a successor institution, account transactions on the day of failure would have been posted to the applicable deposit accounts until the FDIC Cutoff Point. This practice would have been consistent with the FDIC's current practice in handling deposit account transactions in deposit insurance *payout* situations. 4 4 This is when the FDIC handles the resolution of a failed depository institution by making payments to insured depositors. More commonly, the FDIC handles a failed institution by arranging a purchase-and-assumption transaction with a healthy depository institution. In those cases, insured depositors' funds are transferred to the assuming institution and available at that institution to depositors. Upon taking control of a failed institution as receiver, as proposed, the FDIC would take steps necessary to limit additional transactions to ensure, to the extent practicable, that funds would not be received by or removed from the failed institution. These steps might include the suspension of wire activities and new deposit account transactions. For example, wire transactions not yet executed by the FDIC Cutoff Point would not be allowed to occur on the day of closing. For a failed institution operating in several time zones, the FDIC Cutoff Point, which would have set the latest possible time for any particular transaction's Applicable Cutoff Time, would have been translated into local time. For example, a 6 p.m. Eastern Time FDIC Cutoff Point on the day an institution was closed would have meant a 5 p.m. FDIC Cutoff Point in the Central Time zone. As receiver, the FDIC would have attempted, as it has customarily done in the past, to close all offices of the failed institution as soon as practicable after taking over as receiver. Treatment of Uncollected Deposited Checks Under the proposed rule, in determining end-of-day deposit account balances at a failed insured depository institution, the FDIC would have deemed all checks deposited into and posted to a deposit account by the Applicable Cutoff Time as part of the end-of-day deposit account balance for insurance purposes. This approach means that the FDIC would have used the end-of-day ledger balance of the account for purposes of its deposit insurance determination, in contrast to using either end-of-day available or collected funds balances. The proposed rule differed from the FDIC's practices in an important way. In the past, for a check that was posted to an account but not yet collected at the time of failure—including a check already forwarded by the failed institution for collection but not yet collected—the FDIC acted as agent for the depositor and remitted or credited payments received on these checks to the depositor in full. These checks were not included in deposits on the day of failure for insurance purposes and were not subject to deposit insurance limits. 5 In contrast, under the proposed rule, when a check is posted to an account at the failed institution by the Applicable Cutoff Time, the check would have been included in the end-of-day balance and would have been subject to deposit insurance limits, even if uncollected. 5 FDIC Adv. Op. 95-2 (Jan. 23, 1995). Prearranged Instructions To “Sweep” Funds The proposed rule attempted to distinguish between internal and external sweep accounts. Internal sweep arrangements—such as those applying to *zero balance accounts* 6 or where the investment vehicle is a deposit in a foreign branch of the institution or its international banking facility—were characterized as arrangements that sweep funds only within the institution itself by accounting or bookkeeping entries. External sweep arrangements—such as those connected to investments in money market mutual funds—were characterized as arrangements that move funds (usually by wire transfer) outside the institution and, hence, off its books altogether. 6 In the case of a zero balance account ordinarily a customer has a master account tied to one or more subsidiary accounts. The institution's agreement with the customer calls for the subsidiary account to have a zero balance at the end of each day. For example, if funds need to be transferred from the master account to cover checks presented against the subsidiary account, this will be done during the nightly processing cycle. Alternatively, if there are excess funds in the subsidiary account they will be transferred to the master account prior to the end of the day. Under the proposed rule, any automated internal sweep transaction from one account at the failed institution to another account at the failed institution would have been completed on the day of failure. The FDIC as receiver, in effect, would have recognized the transfer, pursuant to the account agreement, in determining the end-of-day balance for deposit insurance and depositor preference purposes. Under the proposed rule the FDIC as receiver would not, however, complete an external sweep—a sweep in which funds leave the institution and another entity assumes liability to the customer—if funds have not already left the failed institution by the FDIC Cutoff Point. An external sweep included, for example, an account where funds are swept from a deposit account at the institution and wired to a third party money market mutual fund every day. External sweeps also would have included an arrangement where funds are swept from a deposit account at a depository institution to an account or product at an affiliate of the institution, even if the transfer is accomplished through a book-entry at the depository institution. In some cases it would not be practicable to stop an external sweep from occurring after the FDIC general cutoff time. In these cases the FDIC proposed using the pre-sweep deposit balance for insurance purposes. The proposed rule would have applied differently to sweep accounts involving the transfer of funds outside the depository institution. In those situations, the status of the funds as of the institution's day of failure would depend on whether the funds left the institution (via wire transfer or otherwise) before the FDIC Cutoff Point. Where funds subject to a prearranged, automated external sweep have been temporarily transferred to an intermediate deposit account (or omnibus account) at the failed institution awaiting transfer to an external source, but have not actually been transferred to the external source (for example, the mutual fund) by the FDIC Cutoff Point, those funds would still have been considered part of the customer's deposit account balance for deposit insurance and receivership purposes. The completion of prearranged internal sweep transactions results in the calculation of end-of-day deposit balances for insurance proposes consistent with how such funds currently are reported on Call and Thrift Financial Reports and are treated for assessment purposes. As detailed in the proposed rule, the need for the FDIC to clarify the treatment of internal sweep arrangements was motivated, in part, by the decision in *Adagio Investment Holding Ltd.* v. *FDIC* , 338 F. Supp. 2d 71 (D.D.C. 2004) (“Adagio”). In that case the FDIC had been appointed receiver of the failed Connecticut Bank of Commerce. On the night of the bank's failure, in accordance with its customary practice, the FDIC “completed the day's business” which involved processing pending transactions, including approximately $20.2 million which had been authorized to be swept from a demand deposit account in the bank to an account in the bank's IBF. Because an IBF account is not a deposit for purposes of section 3(l) of the FDI Act, the FDIC issued the holders of the IBF accounts receivership certificates as general creditors rather than according them priority status as depositors (pursuant to the national deposit preference statute, described below). The creditors, claiming that the receiver did not have authority to permit the sweeps, sued the FDIC. In the *Adagio* case, the court concluded that the sweep should not have been performed in light of the lack of “any provision in either the statute or regulations that would permit the sweep that occurred. * * *” 338 F. Supp. 2d at 81. Post-Closing Adjustments Under the proposed rule, the FDIC, as receiver, would have been able to correct errors and omissions after the day of failure and reflect them in the day-of-closing deposit account balances. No New Requirements Would Have Been Imposed on Open and Operating Institutions The proposed rule would not have required insured institutions to have in place computer systems capable of applying the FDIC Cutoff Point to determine deposit account balances upon an institution's day of failure. The FDIC, however, requested comments on whether such a requirement should be imposed for either all institutions or, alternatively, for “Covered Institutions”—defined in the second part of the proposed rule as institutions having at least $2 billion in domestic deposits and either: More than 250,000 deposit accounts; or total assets over $20 billion, regardless of the number of deposit accounts. Repo Sweep Arrangements The preamble to the proposed rule noted that some repurchase sweep agreements provide for an actual sale of securities by the depository institution to a customer (followed by the institution's repurchase of the securities from the customer). Accordingly, when the customer uses funds in a deposit account to make the purchase, the bank's deposit liability to the customer is extinguished. There may be other so-called repurchase agreements that do not provide for the actual sale and repurchase of securities, but simply provide for the transfer of the customer's claim from a deposit account at the depository institution to another liability account, collateralized by either specific securities or a pool of securities, at the same institution. In the proposed rule, the FDIC posed the following questions: • Do some or all repurchase arrangements as actually executed:
(1)Pass title to the customer in a transaction that is enforceable against the FDIC? or
(2)create perfected security interests that are enforceable against the FDIC? • Does the nature of some or all repurchase sweep arrangements satisfy the definition of “deposit” in section 3(l) of the FDI Act? • What arguments may be made that repurchase arrangements in which the institution collateralizes its liability are permissible, given restrictions on collateralizing private deposits? *See Texas & Pacific Railway Company* v. *Pottorff* , 291 U.S. 245 (1934). Sweeps Alternative Under the proposed rule, funds subject to an internal sweep that is to take place before end-of-day balances are calculated would not be accorded treatment as deposits if they were to be swept, within the depository institution, by prearrangement, before the institution's end-of-day balances are determined, from a deposit to a liability not recognized as a deposit for insurance purposes. The discussion noted that under such an arrangement, no deposit insurance premiums would have been assessed against these funds since they would not have been reported as deposits by the institution. The FDIC asked whether, if the swept funds in such arrangements were to be assessed insurance premiums, they also should be eligible to be treated as deposits for purposes of FDIC deposit insurance and depositor preference. The FDIC also asked whether or to what extent such an option would involve any operational or regulatory burden or other adverse regulatory consequences. IV. Comments on the Proposed Rule As noted, the FDIC received twenty-one comments on the proposed rule, the bulk of which addressed both parts of the proposed rule. Four of the comments were from banking industry trade associations (including one joint letter), two from bank regulatory authorities, ten from large insured depository institutions, one from a law firm representing broker-dealers who place brokered funds in insured depository institutions, one from a member-owned electronic funds transfer network and three from individuals. The following is a summary of the comments we received on part one of the proposed rule—determining deposit and other liability account balances at a failed insured depository institution. Use of End-of-Day Ledger Balances All of the bank trade association commenters and many of the large-bank commenters agreed with the FDIC's proposal to define the deposit account balance on the day of failure as the end-of-day ledger balance. Further, these commenters stated that, upon an institution's failure, the FDIC should use the end-of-day ledger balances normally calculated by the institution; thus, such balances should not be affected by the FDIC Cutoff Point. FDIC Cutoff Point The bank trade associations and large-bank commenters opposed the use of an FDIC Cutoff Point, proposing alternatively that the FDIC should always use the cutoff times normally established by the insured depository institution. They argued that introducing a new cutoff scheme would be unfair to customers. Many commenters expressed a belief that FDIC practices should not impinge upon the contractual arrangements or other understandings established between the insured depository institution and its customers. Further, it was argued that altering the customer's understanding of how deposit transactions will be posted would create uncertainty and may result in depositor flight. Additionally, the implementation of an FDIC Cutoff Point was largely viewed as technically infeasible. It was noted that deposit systems are preprogrammed to implement cutoff times as established by the policies of the particular insured depository institution. Adapting these systems to accommodate an FDIC Cutoff Point would be costly, especially since the FDIC Cutoff Point would not be known until the day of failure. Treatment of Sweep Account Arrangements *In general* . Commenters supported at a very general level the establishment of a regulation intended to resolve the legal confusion brought about by the decision in *Adagio* . Commenters recommended that the FDIC limit any regulation to addressing only the legal confusion raised in *Adagio* . One banking trade group suggested this could be done by language to “explicitly provide that all automated sweep arrangements that are codified in contract will be recognized as part of the day's business and reflected in end-of-day ledger balances, regardless of when the transactions are processed.” Another banking trade association noted its “greatest concerns relate to the FDIC's extensive new proposals relating to the treatment of sweep products. Sweep transactions have been an extensively used business practice for decades, enabling banks to secure substantial funding at reasonable costs and their customers to achieve their financial objectives. Any proposal that disrupts the existing treatment and expectations of institutions and their customers *vis-à-vis* sweeps would potentially impair the viability of sweeps with very serious and unpredictable consequences.” Generally, commenters felt the FDIC should delay a final rule that would go beyond narrowly addressing the *Adagio* concerns. One large bank stated “the issues raised and the potential impact to financial markets that could result from these proposals are very substantial. All of the proposals relating to sweeps warrant further study and consideration by the FDIC and should be removed from this rulemaking and should not be part of any final rule. The FDIC should consult further with other banking and financial regulatory agencies and with financial institutions that are key players in this market before finalizing a rule on sweeps.” This commenter further stated “the proposed regulation could have major ripple effects on other laws and regulations that ultimately rely upon the same legal definitions of a deposit as the Federal Deposit Insurance Act, including Regulation D, Regulation Q, deposit insurance assessments and the nationwide 10% deposit cap.” *Repo sweep arrangements* . The FDIC's questions regarding the nature of funds swept through arrangements identified as repurchase agreement sweeps generally were not addressed, other than through the overall comment that the FDIC should only narrowly address *Adagio* in any final rule. One large bank stated that it “believes the current sweep structures commonly used in the industry (including the structures of securities repos) are appropriately characterized as not being deposits under the FDIA. [The bank] further believes that any proposal to charge FDIC insurance premiums on the amounts swept would dramatically increase costs to banks relating to that product and could result in the product no longer being economically viable or able to be offered on terms that are competitive with other products offered by non-bank market participants.” *Sweeps alternative* . In the proposed rule, the FDIC asked whether, if the funds involved in certain sweep arrangements were to be assessed insurance premiums, they also should be eligible to be treated as deposits for purposes of FDIC deposit insurance and depositor preference. No commenters addressed this question directly, although the tenor of the comments from the large banks and bank trade associations was that issues such as this should not be considered as part of this rulemaking. *Consistent treatment across sweep transactions* . Several commenters argued that, if the FDIC proceeds with the rulemaking, it should treat each sweep transaction the same for claims purposes. One banking trade association argued that “all these products have one common element—once swept from a deposit account, and until returned to the deposit account, none of the bank's obligations meets the definition of a ‘deposit' under the Federal Deposit Insurance Act and are therefore not covered by deposit insurance in the event of the bank's insolvency. This characterization of sweeps is consistent with the long-standing practices of virtually every financial institution and has been the widely accepted practice by banking regulators for decades.” In this regard, the commenter noted that, should the FDIC afford different treatment across sweep products, it “would therefore result in different (and, to a certain degree, arbitrary) treatment under the Proposal. Our members have great concern as to these potential disparities that could result, in some cases from nothing more than differences in the mechanisms used to execute and arrange sweep transactions.” To provide consistent treatment among the various sweep products, several commenters suggested the FDIC should do away with the internal versus external distinction between sweep transactions as well as the Class A versus Class B distinction. “We urge the FDIC to eliminate these unnecessary distinctions, to the extent that the FDIC proceeds with rulemaking around sweeps at all, and treat similar sweep products the same, despite different methods used by banks for processing the necessary transfers and posting the relevant accounts.” V. Rationale for Interim Rulemaking As noted above, the practices being adopted in the interim rule were proposed in part one of the proposed rule. Hence, the FDIC is adopting those practices through the usual public notice-and-comment procedures pursuant to requirements in the Administrative Procedure Act, 5 U.S.C. 553. Before adopting the interim rule as a permanent rule, however, the FDIC invites comment on all aspects of the interim rule, including an aspect of the proposed rule on which the FDIC had not requested specific comment. The interim rule addresses how the FDIC will treat sweep accounts upon an insured institution failure. The result is that, in many cases, the swept funds will not be treated by the FDIC as deposit obligations of the failed institutions. As explained above, that means the swept funds will not be eligible for deposit insurance coverage and will not be afforded status as a deposit under the depositor preference statute. Commenters on the proposed rule indicated that sweep account customers are aware of this potential consequence if the institution were to fail. In order to ensure that sweep account customers are aware that their funds will not be treated as deposits if the insured institution fails, however, the FDIC will require institutions to prominently disclose to customers whether the swept funds are deposits and the status of the swept funds if the institution failed. The effective date of this requirement will be deferred until July 1, 2009 to allow the FDIC to consider specific comments on the disclosure requirement. (Further explanation of the disclosure requirement is provided below under “Request for Comments.”) VI. The Interim Rule After fully considering the comments on the proposed rule, FDIC has adopted the interim rule substantially as proposed, with some modifications in connection with the treatment of “internal and external” sweep transactions, and in other limited areas. As noted, the interim rule requires institutions to disclose to customers whether the swept funds are deposits and the status of the swept funds if the institution failed, but the effective date of this requirement is deferred to allow for public comment. In addition, the FDIC will entertain comments on all other aspects of the interim rule. Underlying Principles The interim rule describes the method for determining the value and nature of claims against a failed insured depository institution to be used in the event of failure. Upon taking control of a failed insured depository institution it is the receiver's responsibility to construct an ending balance sheet for the depository institution (which becomes the beginning balance sheet for the receivership) and determine the value and nature of the claims against the failed institution, including claims to be made by depositors, general creditors, subordinated creditors, and shareholders. Such claims determinations will be made consistent with the principles described below, which for the most part reflect existing practices and procedures used to determine account balances in the event of failure. • In making deposit insurance determinations and in determining the value and nature of claims against the receivership on the institution's date of failure the FDIC, as insurer and receiver, will treat deposits and other liabilities of the failed institution according to the ownership and nature of the underlying obligations based on end-of-day ledger balances for each account using, except as expressly provided otherwise in the interim rule, the depository institution's normal posting procedures. • In its role as receiver of a failed insured depository institution, in order to ensure the proper distribution of the failed institution's assets under the FDI Act (12 U.S.C. 1821(d)(11)) as of the FDIC Cutoff Point, the FDIC will use its best efforts to take all steps necessary to stop the generation, via transactions or transfers coming from or going outside the institution, of new liabilities or extinguishing existing liabilities for the depository institution. 7 7 This principle draws a sharp distinction between transactions involving the transfer of funds into or out of the failed institution and transactions intended to move funds between accounts or otherwise on the books and records of the failed institution. The receiver will act to stop the inflow and outflow of cash/assets at the point at which it takes control of the failed institution; thus transactions involving the transfer of assets into or out of the failed institution may be blocked or suspended. Transactions internal to the failed institution's operations initiated prior to the FDIC Cutoff Point—including those initiated through prearranged automated instructions—will still be conducted after the point of failure as part of a necessary process to arrive at the end-of-day ledger balances and to establish the nature of the claim recognized by the receiver. • End-of-day ledger balances are subject to corrections for posted transactions that are inconsistent with the above principles. End-of-Day Ledger Balances and Cutoff Points As proposed, in the interim rule the deposit or liability account balance used for deposit insurance determination purposes is defined as the end-of-day *ledger* balance of the deposit or other liability on the day of failure. Except as noted, the FDIC will use the cutoff rules previously applied by the failed insured depository institution in establishing the end-of-day ledger balance for deposit insurance determination purposes. However, the interim rule allows the FDIC to establish an FDIC Cutoff Point, coinciding with the point in time at which the receiver acts to stop deposit transactions which might result in creating new liabilities or extinguishing existing liabilities. The FDIC Cutoff Point will facilitate the orderly winding up of the institution and the FDIC's final determination of the ledger balances of the deposit accounts in those cases where the institution's normal cutoff rules prevent or impair the FDIC's ability to promptly determine the end-of-day ledger balance of the deposit or other liability. The intention is to complete internal postings of transactions presented or authorized prior to the institution's normal cutoff rules or the FDIC Cutoff Point, as applicable, according to the depository institution's normal procedures—thus, as explained below, the nature of the liability may change after the FDIC Cutoff Point. Any transaction—including sweep arrangements—would be completed for that day according to normal procedures if it involves only the movement of funds between accounts within the confines of the depository institution. Some sweep arrangements shift funds within the depository institution from a deposit account to ownership in a sweep investment vehicle. The value and nature of these claims will be determined as they rest on the books and records of the depository institution as reflected in its end-of-day ledger balances. If the institution's ordinary cutoff time for the day's business on the day of failure *for any particular kind of transaction* precedes the FDIC Cutoff Point, the institution's ordinary cutoff time will be used. Where the institution's ordinary cutoff time for an individual kind of transaction is later than the FDIC Cutoff Point, the institution's cutoff time will be replaced by the FDIC Cutoff Point. The “Applicable Cutoff Time” used for any kind of transaction thus will be the earlier of the institution's ordinary cutoff time or the FDIC Cutoff Point. Different kinds of transactions may have different Applicable Cutoff Times. Transactions occurring after the Applicable Cutoff Time will be posted a subsequent day's business, if the operations of the failed institution are carried on by a successor institution or by the FDIC as receiver or insurer. The interim rule differs from the proposed rule in cases where deposit operations are not continued after failure in order to provide consistency in the determination of deposit balances regardless of whether the deposit operations were continued. In a depository institution failure where deposit operations are not continued by a successor institution, account transactions on the day of failure also will be posted to the applicable accounts as described above. Since there is no next business day in this case, rather than posting transactions occurring after the Applicable Cutoff Time as the next day's business, such transactions will be handled depending on the nature of the transaction. In the case of a cash or other deposit occurring after the Applicable Cutoff Time, such funds—which would not be included in the end-of-day ledger balance used for claims purposes—would be disbursed to the account owner. If a cash or other withdrawal is made after the Applicable Cutoff Time, such funds—again which would not be included in the end-of-day ledger balance used for claims purposes—could be used by the receiver to satisfy a claim against the receivership. 8 8 A deposit account withdrawal in the form of an official check drawn on the failed depository institution would not be used by the receiver to satisfy the insured deposit claim. Official items are considered to be deposits for deposit insurance purposes; therefore, such official withdrawals would be treated differently from cash withdrawals. The interim rule does not establish any new operational requirements for insured institutions relative to the FDIC Cutoff Point. Also, the interim rule explicitly authorizes the FDIC, as receiver, to correct errors and omissions after the day of failure and reflect them in the end-of-day ledger balances. Several commenters argued against the establishment of an FDIC Cutoff Point and recommended that the FDIC use end-of-day balances as normally calculated by the insured depository institution. As noted above, the FDIC will apply the institution's normal cutoff times in most cases, but establishing an FDIC Cutoff Point is essential to the efficient finalization of end-of-day ledger balances in some situations. Strictly applying a depository institution's pre-established cutoff times in all circumstances is inconsistent with the duties and responsibilities of the receiver—as articulated in the principle indicated above. In the event of failure the receiver will take control of the failed institutions and simultaneously will act to stop deposit or other transactions involving creating new liabilities or extinguishing existing liabilities. In many cases, this can be done consistent with the institution's normal cutoff times, but in others it cannot and the FDIC will establish an FDIC Cutoff Point. If the receiver is successful in stopping these external transactions after it takes control there will be no new transactions to be posted affected by an FDIC Cutoff Point. In this case, the end-of-day ledger balances on the day of failure will be calculated using the failed institution's pre-established cutoff points. If the receiver is unsuccessful in stopping the external transactions, the FDIC Cutoff Point establishes a basis for posting these inadvertent transactions the following day, if that is the course of action selected by the receiver. Treatment of Uncollected Deposited Checks As proposed, in determining deposit account balances at a failed insured depository institution, the FDIC will deem all checks deposited into and posted to a deposit account by the Applicable Cutoff Time as part of the end-of-day ledger balance for insurance purposes. As detailed in the proposed rule, this treatment of uncollected deposited checks is warranted because: Depository institutions use and calculate the ledger balance in a more consistent way than other balances; it is consistent with the way that depository institutions report deposits on Call Reports and Thrift Financial Reports; it is the balance the FDIC uses to determine an institution's assessment base for calculating the institution's deposit insurance assessments; 9 it is the easiest balance for depositors to understand; and it is the most frequently used balance on financial statements provided to customers. Using ledger balances also is consistent with the definition of a deposit in the Federal Deposit Insurance Act (“FDI Act”), which includes balances both “conditionally” or “unconditionally” credited to a deposit account. 12 U.S.C. 1813(l). 9 The FDIC's recent revisions to the FDIC's risk-based assessment system have made an institution's assessment base, which is used to determine its deposit insurance assessment, virtually identical with an institution's deposits as defined in the Federal Deposit Insurance Act. The revisions eliminated the “float” deductions previously used to compute an institution's assessment base; hence, deposits posted to a deposit account but not yet collected are now part of the assessment base. The stated rationale for eliminating the float deduction from the calculation of an institution's assessment base was that such deductions were small and decreasing as a result of legal, technological and system payment changes. 71 Fed. Reg. 69720 (Nov. 30, 2006). Further, especially in a large depository institution failure, using end-of-day ledger balances may be the only operationally feasible means for the FDIC to make deposit insurance determinations timely and expeditiously. As discussed in more detail in the Large Bank Modernization Final Rule, the FDIC is statutorily obligated to pay insured deposits “as soon as possible” after an insured depository institution fails. 12 U.S.C. 1821(f)(1). The FDIC places a high priority on providing access to insured deposits promptly and, in the past, has usually been able to allow most depositors access to their deposits on the business day following closing. The largest insured institutions today are much bigger than any institution has been in the past and are growing increasingly complex. Providing prompt access to depositors if one of these institutions were to fail would prove difficult if adjustments for uncollected funds were necessary. This treatment of uncollected deposited checks, however, will differ from the FDIC's past practice in an important way. In the past, for a check that was posted to an account but not yet collected at the time of failure—including a check already forwarded by the failed institution for collection but not yet collected—the FDIC acted as agent for the depositor and remitted or credited payments received on these checks to the depositor in full. These checks were not included in deposits on the day of failure for insurance purposes and were not subject to deposit insurance limits. 10 In contrast, under the interim rule, when a check is posted to an account at the failed institution as provided by the Applicable Cutoff Time, the check will be included in the end-of-day ledger balance and will be subject to deposit insurance limits, even if uncollected. 11 10 FDIC Adv. Op. 95-2 (Jan. 23, 1995). 11 The FDIC's treatment of uncollected checks is subject to the FDIC's rights and obligations under the FDI Act. *See, e.g.* , 12 U.S.C. 1822(d); *FDIC* v. *McKnight* , 769 F.2d 658 (10th Cir. 1985); *cert. denied sub nom., All Souls Episcopal Church* v. *FDIC* , 475 U.S. 1010 (1986). Although the FDIC will immediately honor uncollected checks through the payment of deposit insurance and the issuance of receivership certificates, if a check is ultimately uncollectible, the ledger balance of the depositor will be adjusted accordingly, and the FDIC will seek reimbursement from the depositor and adjust the depositor's receivership claim (if any) as necessary. Some depositors may receive less favorable treatment under the interim rule than if the FDIC were to continue to use its past approach to handling uncollected deposited checks. The increasing speed with which checks are processed as a result of electronic check processing, the use of checking account debit cards and other developments, however, should limit the effect of the final rule in this regard. Moreover, the past approach would not be feasible in a larger bank failure, and the FDIC must plan for all contingencies. Prearranged Instructions To “Sweep” Funds The proposed rule distinguished between internal and external sweep accounts. This distinction was created to recognize the receiver's responsibility, upon taking control of the failed institution, to stop the generation of new deposit or other transactions which might result in creating new liabilities or extinguishing existing liabilities for the depository institution or its customers to protect the appropriate distribution to claimants. Under the interim rule, any automated sweep transaction transferring funds internally from one deposit account at the failed institution to a sweep investment vehicle at the failed institution will be completed on the day of failure. In the case of sweeps out of the failed institution into external investment vehicles, the swept funds will be treated consistent with their status in the end-of-day ledger balances. If an expected transfer to the external sweep investment vehicle is not completed prior to the FDIC Cutoff Point, the external investment will not be purchased and the funds will remain in the account identified on the end-of-day ledger balance. Where funds are swept internally to an investment vehicle at the failed institution, the FDIC will recognize the transfer, pursuant to the account agreement, in determining the end-of-day ledger balance for deposit insurance and depositor preference purposes. This approach is consistent with the principle articulated in the interim rule that the FDIC will treat deposits and other liabilities of the failed institution on the date of failure based on the ownership and the nature of the underlying obligations as reflected in the end-of-day ledger balance. The completion of prearranged internal sweep transactions in the calculation of end-of-day deposit and other balances for insurance proposes also is consistent with how such funds currently are reported on Call and Thrift Financial Reports and are treated for assessment purposes. Eurodollar and IBF accounts are two examples of internal sweep investment vehicles. Accounts that include a Eurodollar or IBF sweep arrangement typically begin each business day with balances only in a domestic deposit account. At the end of the business day, the customer's end-of-day ledger balance is reported as a Eurodollar account (typically associated with the bank's branch in the Cayman Islands or Bahamas) or an IBF account. At the start of the next business day, the depository institution will report the balance as being back in the domestic deposit account. The cycle typically repeats itself daily. Usually the underlying contract for a Eurodollar sweep specifies that the obligation at the foreign branch is not payable in the United States and, hence, is not a *deposit* , 12 for deposit insurance and depositor preference purposes. Upon an institution's failure, amounts in a Eurodollar account in a foreign branch of the failed institution are treated as unsecured, non-deposit liabilities and are not eligible for insurance or depositor preference status. The same treatment will apply to sweeps to IBFs, which by statutory definition are not deposits. Eurodollar and IBF accountholders will thus be accorded general creditor status in the receivership estate. 12 The definition of “deposit” in the FDI Act expressly excludes: “Any obligation of a depository institution which is carried on the books and records of an office of such bank or savings association located outside of any State, unless
(i)such obligation would be a deposit if it were carried on the books and records of the depository institution, and would be payable at an office located in any State; and
(ii)the contract evidencing the obligation provides by express terms, and not by implication, for payment at an office of the depository institution located in any State.” 12 U.S.C. 1813(l)(5)(A). Also, the FDI Act defines IBF obligations as non-deposits, which are not eligible for deposit insurance or deposit preference status. 12 U.S.C. 1813(l)(5)(B). It is important for customers to be aware that whether an account has deposit status—versus general creditor status—can be far more important for large depositors than the question of whether the account is fully insured. To illustrate, assume that $5.1 million is swept from a customer's checking account into a Eurodollar account. Further, assume that the failed institution's assets would be worth approximately eighty percent of its total deposit liabilities. In this illustration, if the funds had remained deposits the customer would have received approximately $4.1 million ($100,000 in deposit insurance plus an eighty percent dividend on the uninsured portion of the deposit), thus losing $1 million. However, since Eurodollar accounts are not deposits for purposes of either FDIC insurance or depositor preference, in this situation the customer would lose the entire $5.1 million upon the institution's failure. Institutions do not pay deposit insurance assessments on liabilities denominated, as of an institution's end-of-day ledger balance, as foreign deposits or IBF deposits. Some of the commenters who addressed sweep account issues raised in the proposed rule acknowledged that sweep products (particularly those involving the transfer of funds from deposit accounts to non-U.S. deposits, securities repos, fed funds and money market mutual funds) result in obligations of the insured institution that would not be eligible for insurance and do not have deposit preference status. One commenter stated that, “[m]ost of these products are designed for and used by corporate and institutional customers who are sophisticated enough to understand the business terms,” thus suggesting that such customers are aware of the potential consequences in the event of failure of the institution. Under the interim rule, the sweep to an IBF (for example, as described in the *Adagio* decision) will be completed for that day by the receiver on the day of failure and the account holders, who hold end-of-day ledger IBF accounts after the sweep, will be deemed to be general creditors of the receivership, rather than depositors, under the deposit preference statute. 13 13 Rights are fixed as reflected in the depository institution's end-of-day ledger balances. Those rights would not be changed if, for example, it was impractical to reprogram the bank's computers before a liability swept to a foreign branch of an insured institution as of the day of the institution's failure and was treated by the computer as having been swept back to a deposit account at a bridge bank or assuming bank serving as the successor to the failed institution. Repo sweep arrangements are another example of sweep arrangements that are generally conducted via internal transfers on the institution's books. Repo sweeps can differ considerably in documentation, actual execution, and timing. The FDIC, to the extent consistent with the principles articulated in the interim rule, will carry out repo sweeps in reaching end-of-day ledger balances. If as of the end-of-day ledger balance the repo sweep customer is the legal owner of identified securities subject to a repurchase agreement, the FDIC will acknowledge that ownership interest. Based on industry information, as reflected in some comment letters, money market mutual fund sweeps may be structured in a variety of ways. In some cases the money market mutual funds shares are held directly in the name of the sweep account holder, but in other cases the money market mutual fund account is either in the name of the depository institution or in the name of the transfer agent for the mutual fund. Shares are sold or allocated to the individual sweep customer depending on the particulars of the sweep arrangement. Further, some money market mutual fund sweep arrangements result in a “same-day” purchase of fund shares while “next-day” sweeps delay the purchase of fund shares by the customer until the day following the investment decision. Regardless of the internal mechanics of the money market mutual fund sweep arrangement, under the interim rule the FDIC will treat funds swept in connection with a money market mutual fund sweep arrangement consistent with the account where the funds are reported as reflected in the end-of-day ledger balances. The results of this determination may be affected by whether the sweep arrangement contemplated the movement of funds outside the institution. If an expected transfer is not completed on the day of failure due to the application of the second principle discussed above (that the receiver will stop the generation of new deposit or other transactions which might result in creating new liabilities or extinguishing existing liabilities for the depository institution or its customers), the account holder's rights will be fixed based on where the funds actually reside as of the end-of-day ledger balance. As with the treatment of other sweep products, this treatment is consistent with the principle that the FDIC will treat deposits and other liabilities of the failed institution on the date of failure based on the ownership and the nature of the underlying obligations as reflected in the end-of-day ledger balance. Money market mutual fund sweeps are the most prevalent case involving a sweep investment vehicle designed to move outside of the depository institution, and have them come to rest in a separate legal entity. Another example is where funds are swept from a deposit account at a depository institution to an account or product at an affiliate of the institution, even if the transfer is accomplished through a book-entry at the depository institution. When the sweep investment vehicle rests outside the depository institution, under the interim rule the status of the funds as of the institution's day of failure will depend on whether the funds have been used to purchase the sweep investment vehicle prior to the FDIC Cutoff Point. For some sweep arrangements the purchase may not be completed for that day prior to the FDIC Cutoff Point. For example, an institution could have an arrangement to transfer funds from a customer's demand deposit account into an account at an affiliated depository institution, to be conducted each day late in the evening. In this case, under the interim rule if the funds had not been transferred to the sweep investment vehicle as of the FDIC Cutoff Point, they still will be considered to be a deposit for insurance purposes. This treatment is in furtherance of the FDIC's obligation as receiver to stop the generation of new deposit or other transactions that might result in creating new liabilities or extinguishing existing liabilities for the depository institution after the institution has failed. In some cases it will not be practicable to stop automatically generated sweeps from occurring after the FDIC Cutoff Point, requiring the necessary adjustments post closing. Sweeps Alternative Under the interim rule, the receiver will establish the value and nature of claims based on the end-of-day ledger balance for each account. In the proposed rule the FDIC asked whether certain swept funds, if assessed insurance premiums, also should be eligible to be treated as deposits for purposes of FDIC deposit insurance and depositor preference. Based in part on the comments received on this issue, the FDIC has decided not to change current practices. VII. Request for Comments The FDIC invites interested parties to submit comments during a 60-day comment period on all aspects of the interim rule, including whether insured depository institutions should be required to disclose to sweep account customers that swept funds will not be treated as deposits if the institution were to fail. More specifically, comments are requested on § 360.8(e) of the interim rule which, as indicated above, is subject to an extended delayed effective date: In all sweep account contracts and account statements reflecting sweep account balances, institutions must prominently disclose whether swept funds are deposits within the meaning of 12 U.S.C. 1813(l). If the funds are not deposits, the institution must further disclose the status such funds would have if the institution failed—for example, general creditor status or secured creditor status. Such disclosures must be consistent with how the institution reports such funds on its Call Reports or Thrift Financial Reports. As noted above, several commenters stated that sweep customers generally are aware of how the swept funds would be treated in the event of failure. Over the past year, FDIC staff held meetings with groups of corporate treasurers to discuss the potential implications of the proposed rule. During these meetings, corporate treasurers stated that many institutions provided some disclosure to sweep customers about the potential consequences of these transactions. However, it was evident those disclosures did not result in a consistent understanding of how these funds would be treated in the event of failure. This interim rule clearly states the FDIC's intent to use for claims purposes end-of-day ledger balances as normally reflected on the books and records of the insured depository institution. Prior to this end-of-day ledger balance calculation, funds could have been swept from a deposit account into a sweep investment vehicle. The movement of funds from a deposit account into a sweep investment vehicle not considered to be a deposit for insurance purposes can have significant implications for the sweep customers. In the case of a Eurodollar sweep, for example, the swept funds would have general creditor standing with a considerably higher loss exposure relative to an uninsured deposit claim. The FDIC is concerned that the treatment of swept funds in the event of failure is not clearly understood by sweep customers. A better understanding of this treatment by sweep customers is important to avoid misconceptions which may arise in the event of failure. While many institutions currently provide some disclosures to sweep customers, the FDIC believes the significance of the consequences to depositors of some sweep transactions necessitates consistent disclosures by institutions providing sweep services. In this context, it is particularly important for institutions to disclose to sweep customers that the completion of some sweep transactions may result in their funds being subject to treatment as general creditor claims. In the Large Bank Modernization Final Rule—the companion to this interim rule—the FDIC discusses several important objectives including:
(1)Providing liquidity to depositors,
(2)enhancement of market discipline,
(3)equity in the treatment of depositors of insured institutions and
(4)preservation of franchise value in the event of failure. These objectives can be undermined if sweep customers do not have a clear understanding of the treatment of swept funds in the event of failure. *Specifically the FDIC is interested in responses to the following questions:* • What disclosures are currently being made in connection with sweep account arrangements which allow the sweep customer to ascertain the treatment of such funds in the event of failure? • What form do these disclosures take, when are they provided, and what is their frequency? • Are the disclosures consistent with how such funds are reported on Call or Thrift Financial Reports? VIII. Plain Language Section 722 of the Gramm-Leach-Bliley Act, Public Law 106-102, 113 Stat. 1338, 1471 (Nov. 12, 1999), requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. No commenters suggested that the proposed rule was unclear, and the interim rule is substantively similar to the proposed rule. IX. Paperwork Reduction Act *OMB Number:* New Collection. *Frequency of Response:* On occasion. *Affected Public:* Insured depository institutions offering sweep account products. *Estimated Number of Respondents:* 1,170 to 1,970. *Estimated Time per Response:* 25-49 hours per respondent. *Estimated Total Annual Burden:* 28,870-84,400 hours. *Background/General Description of Collection:* The interim rule contains collections of information pursuant to the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ) (“PRA”). In particular, the interim rule requires, subject to an extended delayed effective date, depository institutions offering sweep products to disclose whether the swept funds are deposits for insurance purposes and, if not, how these funds would be treated in the event of failure. The collections of information contained in this section of the interim rule have been submitted to OMB for review. *Estimated costs:* Compliance with the disclosure requirement will require insured depository institutions offering sweep products, which do not currently provide adequate disclosures, to modify their sweep account documentation, including customer account statements, to include new language indicating whether swept funds are a deposit for insurance purposes and, if not, how such funds would be treated in the event of failure. Further, additional documentation may be provided to sweep customers as part of a statement mailing on a one-time basis. Implementation cost will be mitigated by the delayed effective date of this requirement. Sweep account documents must be reprinted periodically in any case, and the cost of including the disclosure requirement should be minimal. Further, most insured depository institutions already make certain disclosures to customers, and the new requirements would simply replace these disclosures. After implementation, on-going cost should be negligible. Future printings of sweep account documentation will have to be conducted in any case to replenish stock, and the disclosure requirement should not add to the cost of such printings given its brief nature. Customer account statements would continue to be provided according to normal business practices. Further, staff training must be conducted periodically, and the disclosure requirement should not materially add to the length or complexity of this training. The exact number of insured depository institutions offering sweep products is unknown. It is the FDIC's experience that the vast majority of large institutions offer some sweep arrangement as part of their cash management services. The prevalence of sweep offerings among smaller community banks is far less prevalent. This analysis assumes that all insured depository institutions with total assets of at least $2 billion offer at least one sweep product (370 institutions). It is further assumed that between 10 and 20 percent of the remaining 8,000 insured institutions also offer a sweep product (800 to 1,600 institutions). The total number of respondents is estimated to be between 1,170 and 1,970. Implementation costs will vary based on the size, nature and scope of the depository institutions sweep programs. It is estimated that compliance costs for the very largest and super-regional banking organizations are between $25,000 and $50,000 while smaller regional organizations were placed at $10,000 to $20,000. Other large organizations (those with at least $2 billion in total assets) were assigned a cost estimate of $1,500 to $3,000. Costs for community banks were estimated to be between $1,000 and $2,000. Under these assumptions, the overall disclosure costs are estimated to be between $1.73 million and $3.46 million at the lower end of the number of institutions believed to be engaging in sweep operations (1,170). If as many as 1,970 depository institutions maintain sweep operations the total costs are estimated to range between $2.53 million and $5.06 million. Based on the above cost estimates the number of hours needed to meet the disclosure requirements per institution is calculated as follows. $1.73 million ÷ 1,170 institutions = $1,480 per institution. Assuming an hourly cost of $60 for employee time generates the minimum time estimate of 25 hours per institution. The upper range of the cost estimate is $2,960 which is equivalent to 49 hours ($3.46 million ÷ 1,170 institutions ÷ $60 hourly employee cost = 49 hours). Total hours are estimated at a minimum as: ($1.73 million ÷ $60 hourly employee cost = 28,870 hours) and at the upper range as: ($5.06 million ÷ $60 hourly employee cost = 84,400 hours). *Comments:* In addition to the questions raised elsewhere in this Preamble, comment is solicited on:
(1)Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2)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;
(3)the quality, utility, and clarity of the information to be collected;
(4)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses; and
(5)estimates of capital or start-up costs and costs of operation, maintenance, and purchases of services to provide information. *Addresses:* Interested parties are invited to submit written comments to the FDIC concerning the Paperwork Reduction Act implications of this proposal. Such comments should refer to “Processing of Deposit Accounts, 3064-AD26.” Comments may be submitted by any of the following methods: • *Agency Web Site: http://www.FDIC.gov/regulations/laws/federal* . Follow instructions for submitting comments on the Agency Web Site. • *E-mail: comments@FDIC.gov* . Include “Processing of Deposit Accounts, 3064-AD26” in the subject line of the message. • *Mail:* Executive Secretary, Attention: Comments, FDIC, 550 17th St., NW., Room F-1066, Washington, DC 20429. • *Hand Delivery/Courier:* Comments may be hand-delivered to the guard station at the rear of the 550 17th Street Building (located on F Street), on business days between 7 a.m. and 5 p.m. (EST). • A copy of the comments may also be submitted to the OMB desk officer for the FDIC, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 3208, Washington, DC 20503. *Public Inspection:* All comments received will be posted without change to *http://www.fdic.gov/regulations/laws/federal* including any personal information provided. In accordance with the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ) the FDIC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget
(OMB)control number. X. Regulatory Flexibility Act The Regulatory Flexibility Act (“RFA”) requires a federal agency publishing a notice of proposed rulemaking to prepare and make available for public comment an initial regulatory flexibility analysis that describes the impact of the proposed rule on small entities. 5 U.S.C. 603(a). As defined in regulations issued by the Small Business Administration (13 CFR 121.201), a “small entity” includes a bank holding company, commercial bank or savings association with assets of $165 million or less (collectively, small banking organizations). The RFA provides that an agency is not required to prepare and publish a regulatory flexibility analysis if the agency certifies that the proposed rule would not have a significant impact on a substantial number of small entities. 5 U.S.C. 605(b). In publishing the proposed rule the FDIC certified that the proposed rule would not have a significant economic impact on a substantial number of small entities. The rationale for this certification was that the proposed rule would establish the FDIC's practice for determining deposit account balances at a failed insured depository institution and would impose no requirements on insured depository institutions. The interim rule imposes a disclosure requirement on all insured depository institutions offering one or more sweep account products. This requirement is subject to an extended delayed effective date to allow the FDIC to consider specific comments on the disclosure requirement before insured depository institutions must comply with it. Preliminarily, the FDIC believes the disclosure requirement in the interim rule will not have a substantial impact on a substantial number of small banking organizations, mainly because such entities are much less likely than larger insured depository institutions to offer sweep-account products. Such products are typically offered by insured depository institutions serving large commercial and institutional customers. The FDIC welcomes comments on whether and, if so, to what extent small banking organizations will be affected by the disclosure requirement in the interim rule. XI. The Treasury and General Government Appropriations Act, 1999—Assessment of Federal Regulations and Policies on Families The FDIC has determined that the interim rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 2681). List of Subjects in 12 CFR Part 360 Banks, Banking, Savings associations. For the reasons stated above, the Board of Directors of the Federal Deposit Insurance Corporation hereby amends part 360 of title 12 of the Code of Federal Regulations as follows: PART 360—RESOLUTION AND RECEIVERSHIP RULES 1. The authority citation for part 360 continues to read as follows: Authority: 12 U.S.C. 1819(a) Tenth, 1821(d)(1), 1821(d)(10)(c), 1821(d)(11), 1821(e)(1), 1821(e)(8)(D)(i), 1823(c)(4), 1823(e)(2); Sec. 401(h), Pub. L. 101-73, 103 Stat. 357. 2. Add new § 360.8 to read as follows: § 360.8. Method for determining deposit and other liability account balances at a failed insured depository institution.
(a)*Purpose.* The purpose of this section is to describe the process the FDIC will use to determine deposit and other liability account balances for insurance coverage and receivership purposes at a failed insured depository institution.
(b)*Definitions.* —(1) The *FDIC cutoff point* means the point in time established by the FDIC after it has been appointed receiver of a failed insured depository institution and takes control of the failed institution.
(2)The *applicable cutoff time* for a specific type of deposit account transaction means the earlier of either the failed institution's normal cutoff time for that specific type of transaction or the FDIC cutoff point.
(3)*Close-of-business account balance* means the closing end-of-day ledger balance of a deposit or other liability account on the day of failure of an insured depository institution determined by using the applicable cutoff times. This balance may be adjusted to reflect steps taken by the receiver to ensure that funds are not received by or removed from the institution after the FDIC cutoff point.
(c)*Principles.* —(1) In making deposit insurance determinations and in determining the value and nature of claims against the receivership on the institution's date of failure the FDIC, as insurer and receiver, will treat deposits and other liabilities of the failed institution according to the ownership and nature of the underlying obligations based on end-of-day ledger balances for each account using, except as expressly provided otherwise in this section, the depository institution's normal posting procedures.
(2)In its role as receiver of a failed insured depository institution, in order to ensure the proper distribution of the failed institution's assets under the FDI Act (12 U.S.C. 1821(d)(11)) as of the FDIC Cutoff Point, the FDIC will use its best efforts to take all steps necessary to stop the generation, via transactions or transfers coming from or going outside the institution, of new liabilities or extinguishing existing liabilities for the depository institution.
(3)End-of-day ledger balances are subject to corrections for posted transactions that are inconsistent with the above principles.
(d)*Determining closing day balances.* —(1) In determining account balances for insurance coverage and receivership purposes at a failed insured depository institution, the FDIC will use close-of-business account balances as may be adjusted for funds that are received by or removed from the institution after the FDIC cutoff point.
(2)A check posted to the close-of-business account balance but not collected by the depository institution will be included as part of the balance, subject to the correction of errors and omissions and adjustments for uncollectible items that the FDIC may make in its role as receiver of the failed depository institution.
(3)In determining close-of-business account balances, the FDIC will recognize contractual, automated transfers (or sweeps) of funds from a deposit account to a non-deposit account or investment vehicle at the institution scheduled to take place before the final calculation of the institution's end-of-day ledger balances for that day.
(4)For deposit insurance and receivership purposes in connection with the failure of an insured depository institution, a depositor's and other liability-holder's rights will be determined as of the point the close-of-business account balance is calculated. These rights may be adjusted as necessary to account for funds that are received by or removed from the institution after the FDIC cutoff point.
(e)Effective July 1, 2009, in all sweep account contracts and account statements reflecting sweep account balances, institutions must prominently disclose whether swept funds are deposits within the meaning of 12 U.S.C. 1813(l). If the funds are not deposits, the institution must further disclose the status such funds would have if the institution failed—for example, general creditor status or secured creditor status. Such disclosures must be consistent with how the institution reports such funds on its Call Reports or Thrift Financial Reports. By order of the Board of Directors. Dated at Washington, DC, this 17th day of June, 2008. Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary. [FR Doc. E8-15493 Filed 7-16-08; 8:45 am] BILLING CODE 6714-01-P FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Part 360 RIN 3064-AD26 Large-Bank Deposit Insurance Determination Modernization AGENCY: Federal Deposit Insurance Corporation (“FDIC”). ACTION: Final rule. SUMMARY: The FDIC is adopting a final rule requiring the largest insured depository institutions to adopt mechanisms that would, in the event of the institution's failure: provide the FDIC with standard deposit account and other customer information; and allow the placement and release of holds on liability accounts, including deposits. The final rule applies only to insured depository institutions having at least $2 billion in domestic deposits and either: more than 250,000 deposit accounts (currently estimated to be 152 institutions); or total assets over $20 billion, regardless of the number of deposit accounts (currently estimated to be 7 institutions). The FDIC is adopting the final rule concurrently with its adoption of an interim rule establishing practices for determining deposit and other liability account balances at a failed insured depository institution. With exceptions indicated in the final rule, institutions subject to this final rule will have eighteen months from the effective date of the final rule to implement its requirements. EFFECTIVE DATE: August 18, 2008. FOR FURTHER INFORMATION CONTACT: James Marino, Project Manager, Division of Resolutions and Receiverships,
(202)898-7151 or *jmarino@fdic.gov,* Joseph A. DiNuzzo, Counsel, Legal Division,
(202)898-7349 or *jdinuzzo@fdic.gov;* or Christopher L. Hencke, Counsel, Legal Division,
(202)898-8839 or *chencke@fdic.gov.* SUPPLEMENTARY INFORMATION: I. Introduction The final rule requires the largest insured depository institutions to adopt mechanisms that would, in the event of the institution's failure:
(1)Provide the FDIC with standard deposit account and other customer information; and
(2)allow the placement and release of holds on liability accounts, including deposits. These requirements were addressed in two advance notices of proposed rulemaking issued in 2005 and 2006, respectively the “2005 ANPR” and the “2006 ANPR”. 1 Also, in January of this year the FDIC published a proposed rule composed of two parts, addressing in part two the issues involved in the final rule and addressing in part one issues involving the FDIC's practices for determining deposit and other liability account balances at a failed insured depository institution (“proposed rule”). 2 1 70 FR 73652 (Dec. 13, 2005) and 71 FR 74857 (Dec. 13, 2006). 2 73 FR 2364 (January 14, 2008). The FDIC received twenty-one comments on the proposed rule. (The comment letters may be viewed on the FDIC's Web site at *http://www.fdic.gov/regulations/laws/federal/2008/08comAD26.html.* ) Based in part on those comments, the FDIC has decided to finalize the proposed rule by issuing two separate rulemakings—(1) the final rule, covering part two of the proposed rule and
(2)a separate interim rule, covering part one of the proposed rule (“Interim Rule on Processing Deposit Accounts”). Throughout the preamble the terms “deposit” (or “domestic deposit”), “foreign deposit” and “international banking facility deposit” identify liabilities having different meanings for deposit insurance purposes. A “deposit” is used as defined in section 3(l) of the Federal Deposit Insurance Act (12 U.S.C. 1813(l)) (“Section 3(l)”). A deposit includes only deposit liabilities payable in the United States, typically those deposits maintained in a domestic office of an insured depository institution. Only deposits meeting these criteria are eligible for insurance coverage. Insured depository institutions may maintain deposit liabilities in a foreign branch (“foreign deposits”), but these liabilities are not deposits in the statutory sense (for insurance or depositor preference purposes) for the time that they are payable solely at a foreign branch or branches. Insured depository institutions also may maintain liabilities in an international banking facility (IBF). An “international banking facility deposit,” as defined by the Board of Governors of the Federal Reserve System in Regulation D (12 CFR 204.8(a)(2)), also is excluded from the definition of “deposit” in Section 3(l) and the depositor preference statute (12 U.S.C. 1821(d)(11)). The FDIC anticipates questions regarding implementation of the functionality required by this rule. Questions and requests for telephonic meetings may be submitted via e-mail to *depositclaims@fdic.gov.* II. Overview The final rule applies to large FDIC-insured institutions, defined as “Covered Institutions.” The definition includes insured depository institutions having at least $2 billion in domestic deposits and at least either:
(1)250,000 deposit accounts; or
(2)$20 billion in total assets, regardless of the number of deposit accounts. In summary, *Covered Institutions* are required to adopt mechanisms that would, in the event of the institution's failure: • Allow automatic posting of provisional holds on large liability accounts in any percentage specified by the FDIC on the day of failure. • Provide the FDIC with deposit and customer account data in a standard format. • Allow automatic removal of the provisional holds and posting of the results of insurance determinations as specified by the FDIC. III. The Proposed Rule Definition of Institutions Covered Under the proposed rule a *Covered Institution* was defined as any insured depository institution having at least $2 billion in domestic deposits and at least either:
(1)250,000 deposit accounts; or
(2)$20 billion in total assets, regardless of the number of deposit accounts. 3 All other insured depository institutions were designated as *Non-Covered Institutions* and, thus, were not subject to this part of the proposed rule. 4 3 For the purposes of the criteria in the text, an “insured depository institution” includes all institutions defined as such in the FDI Act. 12 U.S.C. 1813(c)(2). Other applicable terms would be as defined in the Reports of Condition and Income (Call Report) instructions (for insured banks) and Thrift Financial Reports
(TFR)instructions (for insured savings associations): “deposit accounts” mean the total number of deposit accounts (including retirement accounts), “domestic deposits” mean total deposits held in domestic offices (for insured banks) or deposits (for insured savings associations), and “total assets” means the reported amount of total assets. 4 The criteria for a Covered Institution apply to separately chartered insured depository institutions. Commonly owned depository institutions are not aggregated for the purposes of these criteria. Furthermore, a holding company may own insured depository institutions that are both Covered and Non-Covered. Continuation of Business Operations As discussed in the proposed rule, in the event of failure a *Covered Institution's* legal entity status will terminate. In most cases, however, it is expected that a new entity will carry on the *Covered Institution's* business operations. 5 The new legal entity under which business operations will be continued is the *Successor Institution,* which could include an established or new insured depository institution or a bridge bank operated by the FDIC. Through the proposed rule the FDIC intended to provide a means to facilitate access to deposit funds and maintain the franchise value of the failed *Covered Institution* or a *Successor Institution.* Thus, in most cases, core business operations would continue post failure, although some operations might be suspended temporarily. 5 The provisional hold functionality and other requirements of the proposed rule were to be developed in this context. It is possible a *Covered Institution* may be liquidated in the event of failure. The decision to liquidate or continue the deposit operations of a *Covered Institution* would be made on a case-by-case basis depending on the individual circumstances at the time. Process Overview As discussed in part one of the proposed rule, in the event of failure, the FDIC would complete daily account processing to generate the end-of-day deposit ledger balances used by the FDIC for insurance purposes. Under part two of the proposed rule, after completion of the failed *Covered Institution's* final daily processing, the *Successor Institution* would place provisional holds on selected 6 deposit accounts, foreign deposit accounts and certain other liability accounts subject to a sweep arrangement. Provisional holds, once posted, would allow depositors access to the remaining balance in their accounts the day following failure, yet guard against the possibility of an uninsured depositor or unsecured general creditor receiving more than allowed under deposit insurance rules or the depositor preference statute. 7 The FDIC would use a standard set of depositor and customer data to make deposit insurance determinations. These determinations would be provided to the *Successor Institution,* probably several days after failure. The *Successor Institution* would then remove the provisional holds as specified by the FDIC and, if necessary, replace them with additional holds or debits based upon the deposit insurance determinations. The FDIC would continue to notify the *Successor Institution* to remove additional holds as information is received from depositors to complete the insurance determination. 6 The FDIC will supply the business rules upon which a provisional hold will be placed. These business rules will be based upon current balance and account product types. 7 Uninsured depositors are entitled to a pro rata distribution of the receivership proceeds with respect to their claim. The FDIC—at its discretion-may immediately distribute receivership proceeds in the form of advance dividends at failure. Advance dividends are based on the expected recovery to uninsured depositors. Provisional Holds *General description.* The proposed rule would have required *Covered Institutions* to have in place an automated process for implementing provisional holds concurrent with or immediately following the daily deposit account processing on the day of failure. After the placement of provisional holds, all other holds previously placed by the institution would still remain in effect. 8 The proposal did not require development of mechanisms to stop or alter interest accrual for the affected accounts. 8 Provisional holds could overlap preexisting holds if the entire account is held or the unheld account balance before posting the provisional hold is less than the amount of the provisional hold. In such cases posting the provisional hold would have to be constructed so that it did not cause the account to become “overdrawn” and trigger service fees against the account. *Account-by-account application.* Provisional holds would be applied to individual accounts in an automated fashion. Commonly owned accounts would not have been aggregated by ownership for the purposes of calculating or placing provisional holds. Provisional holds would extend to all non-closed deposit accounts held in domestic and foreign offices, as well as certain sweep account arrangements. 9 9 Non-closed deposit accounts include those that are open, dormant, inactive, abandoned, restricted, frozen or blocked, in the process of closing or subject to escheatment. *The nature of a provisional hold.* As explained in the proposed rule, the provisional hold is intended to bar access to some or all of a customer's account pending the results of the insurance determination. The proposed rule offered for comment the following three options for implementing provisional holds. • *Persistent hold.* A “persistent” provisional hold would be applied once (on or immediately after the day of failure) and stay on the deposit account until it is removed at the order of the FDIC. Once applied, the persistent hold would reduce the customer's available balance. • *Memo hold.* A memo-type provisional hold remains effective only intra-day and does not affect the batch deposit posting process. The memo type provisional hold amount is calculated immediately after end-of-day balances are available on the day of failure and the same amount is applied on a daily basis until changed or removed at the instruction of the FDIC. Once applied, a memo-type provisional hold would reduce the customer's available intra-day balance. • *Holding balances in an alternate account.* Rather than placing an account hold, balances could be removed from the account to which a provisional hold is to be applied and otherwise “held” in a work in progress
(WIP)or suspense account. Since balances are removed from the affected account, they would not be available to the customer until the provisional hold was removed and the balance restored to the original account. *Provisional holds for deposit accounts.* Under the proposed rule, on the day of failure the FDIC would specify a deposit account balance (the “account balance threshold”) that would determine whether a provisional hold would be placed on a particular deposit account. 10 No provisional hold would be placed on a deposit account with a balance less than or equal to the account balance threshold. For a deposit account above the account balance threshold, the FDIC would specify, again on the day of failure, a percentage (the “provisional hold percentage”) that would be multiplied by the account balance *in excess* of the account balance threshold. 11 The product of this multiplication would equal the dollar amount of the provisional hold. The proposed rule would have required a *Covered Institution* to adopt systems allowing the hold to be calculated and placed. The account balance threshold as well as the provisional hold percentage could vary for the following four categories, as the *Covered Institution* customarily defines them: 10 The account balance threshold could be any dollar amount specified by the FDIC, including zero. 11 The provisional hold percentage could be any percentage specified by the FDIC, from 0 to 100 percent. 1. Consumer demand deposit, negotiable order of withdrawal (“NOW”) and money market deposit accounts (“MMDA”). 2. Other consumer deposit accounts (time deposit and savings accounts, excluding NOW accounts and MMDAs). 3. Non-consumer demand deposit, NOW accounts and MMDAs. 4. Other non-consumer deposit accounts (time deposit and savings accounts, excluding NOW accounts and MMDAs). *Provisional holds for foreign deposits.* For foreign deposits the provisional hold methodology was proposed to be the same as for deposit accounts, except that the account balance thresholds and the provisional hold percentages could have varied based on the country in which the account is located. *Provisional holds for IBF deposits.* For IBF deposits the provisional hold methodology was proposed to be the same as for deposit accounts, except that the account balance thresholds and the provisional hold percentages could have been different. *Provisional holds for deposit accounts with prearranged, automated sweep features.* As discussed in part one of the proposed rule, certain deposit accounts have a feature to “sweep” funds periodically according to predefined rules into another deposit account, a foreign deposit or an alternative investment vehicle. 12 The deposit account through which the customer has primary access to deposited funds—usually a demand deposit account—is the “base sweep account.” The investable or excess account balance is swept periodically into a “sweep investment vehicle.” Sweep investment vehicles may include, but are not limited to:
(1)A deposit account at the same institution or an affiliated insured depository institution,
(2)a foreign or IBF deposit,
(3)repurchase agreements,
(4)federal funds,
(5)commercial paper and
(6)a proprietary or third-party money market mutual fund. 12 Sweep accounts as described here do not include zero balance account
(ZBA)arrangements that move funds to and from a master (or concentration) deposit account and one or more subsidiary deposit accounts at the same bank. Such deposit account arrangements are not intended to provide a yield on excess deposit balances nor do they change the customer's insurance status. ZBAs would be subject to the provisional hold methodology for deposit accounts described above. The proposed rule would have subjected some sweep accounts to the same provisional hold requirements as a deposit account. These were defined as “Class A” sweep accounts and included: • Base sweep accounts where the sweep investment vehicle is another deposit account in an office of the same institution. Both the base sweep account and the sweep investment vehicle are deposits that would have been subject to the provisional hold requirements of a deposit account. • Base sweep accounts where funds are wired from the *Covered Institution* to a separate legal entity other than the *Covered Institution* (e.g., a proprietary or third-party money market mutual fund). In this case, funds residing in the base sweep account (if any) would have been subject to a provisional hold as any other deposit account held in a domestic office. No provisional hold would have been required for funds residing outside the *Covered Institution* in the sweep investment vehicle. The proposed rule defined all other sweep accounts as “Class B” sweep accounts requiring a dual provisional hold methodology. For the fund balance remaining in the base sweep account as of the institution's customary end-of-day on the day of failure, the provisional hold methodology would have been the same as applied to other deposit accounts. For the funds residing in the sweep investment vehicle as of the institution's customary end-of-day, the provisional hold methodology would have had a separate account balance threshold and provisional hold percentage. 13 The proposed rule would have required the balance threshold as well as the provisional hold percentage to vary for different types of sweep investment vehicles. 14 13 Some Covered Institutions may allow a single base sweep account to be associated with multiple investment vehicles. In this case a separate provisional hold methodology would have been developed for each investment vehicle. 14 Some alternative investment vehicles are deposits held in foreign offices. These foreign deposits would be subject only to the provisional hold methodology for the sweep alternative investment. Such foreign deposits would be excluded from the provisional hold methodology designed for non-sweep deposits held in the same foreign office. The proposed rule would not have required mechanisms to stop the processing of any prearranged deposit account sweep transactions in the event of failure. The provisional holds process described above would have allowed for the transfer of balances from a deposit account to a sweep investment vehicle. The provisional holds would have applied to liability accounts as they were designated on the books and records of the institution at its customary end-of-day. *Provisional holds for deposit accounts which accept automated credits from funds invested within the Covered Institution.* Certain customers may provide the depository institution with instructions each day or periodically to invest funds in a non-deposit investment vehicle within the institution (e.g., an overnight time account at the Cayman Island branch), whereby such funds are automatically credited to the customer's deposit account the following day (“automated credit account”). The proposed rule would have required a dual provisional hold methodology for automated credit accounts. For the fund balance remaining in the automated credit account as of the institution's customary end-of-day the provisional hold methodology would have been the same as applied to other deposit accounts. For the funds residing in the investment vehicle as of the institution's customary end-of-day, the provisional hold methodology would have had the capability of a separate account balance threshold and provisional hold percentage. 15 The account balance threshold, as well as the provisional hold percentage, would have been required to vary for different types of investment vehicles. These account balance thresholds and provisional hold percentages could be different from those applied to:
(1)Funds automatically swept into a similar or identical investment vehicle or
(2)funds held in a similar or identical investment vehicle that does not provide for an automated crediting of funds. 16 15 Some automated credit accounts may also be a base sweep account. In this case a separate provisional hold methodology must be developed for each investment vehicle. It is possible, for example, for a customer to each day provide the institution with instructions to invest a certain amount of funds in a Cayman Island branch time account where the funds would be returned to the customer's demand deposit account the following morning. Further, the customer may also have provided prearranged instructions to have excess balances residing in the same demand deposit account swept to a Cayman Island branch account where such funds also are returned to the demand account the following morning. In this case the Covered Institution must have a provisional hold methodology that:
(1)Treats funds residing in the demand deposit account as of the institution's end-of-day consistent with other deposit accounts,
(2)treats funds residing in the Cayman Island branch account as a result of the prearranged sweep consistent with other Cayman Island sweep investment vehicles and
(3)treats funds residing in the Cayman Island branch account as a result of the daily investment instructions using a separate account balance threshold and provisional hold percentage. 16 Some investment vehicles are foreign deposits. These funds would be subject only to the provisional hold methodology for the automated credit account. Such accounts would be excluded from the provisional hold methodology designed for non-sweep foreign deposits held in the same office. *Account balance used for provisional hold calculation.* The proposed rule would have required the account balance threshold and provisional hold percentage to be applied against the end-of-day ledger balance as calculated by the institution, in the event of failure. *Provisional hold duration.* Under the proposed rule, the methodology for implementing a provisional hold process was required to hold funds until removed by the *Successor Institution* as instructed by the FDIC. Provisional holds would have been removed when the results of the deposit insurance determination are available, generally anticipated being several days after failure, depending on the size and complexity of the failed institution's deposit base. *Provisional hold designation.* The proposed rule would have required provisional holds to be labeled “FDIC PHold”. *Provisional hold customer disclosure.* The proposed rule requested comment on whether the FDIC should require the provisional hold, once placed, to be apparent if the customer views account information on-line or through other means. *Security level and mechanism for manual removal of provisional holds.* The proposed rule would have required the *Covered Institution* to create policies, procedures and systems reasonably capable of preventing the alteration of FDIC provisional holds or other FDIC hold amounts except under the specific written direction of the FDIC. *Timeliness of the provisional holds process.* The proposed rule would have required a *Covered Institution* to have the capability of placing provisional holds on the applicable accounts prior to the *Successor Institution* opening for business the following day, but in no case later than 9 a.m. local time the day following the day of the depository institution failure. *Exception for systems with a small number of accounts.* The proposed rule requested comment on whether a *Covered Institution* having multiple account systems through which provisional holds will be placed may apply them manually in certain cases. Some account systems may service a relatively small number of accounts making the manual application of provisional holds feasible. If used, the proposed rule would have required approval by the FDIC in response to a written request, including a justification for the manual process and its relative effectiveness for posting provisional holds in the event of failure. *Institutional contacts.* The proposed rule would have required a *Covered Institution* to notify the FDIC of the person(s) responsible for producing the standard deposit data download and administering provisional holds, both while this functionality is being constructed and on an on-going basis. The *Covered Institution* would have been responsible for ensuring such contact information is current. Removal of Provisional Holds *General process.* As specified in the proposed rule, the FDIC would begin forwarding insurance determination results to the *Successor Institution* once a substantial number of the insurance determinations have been made, which should be within a few days after failure. These results would have been required to be incorporated into the institution's deposit systems as soon as practicable, perhaps as quickly as the day following the receipt of the standard depositor and customer data sets. The results would contain instructions for the removal of provisional holds as well as replacement transactions, which could include the placement of new holds or account debits and credits. *Removal of provisional holds.* As proposed, the *Successor Institution* would be required to remove provisional holds in batch as specified by the FDIC. On the day(s) provisional holds are to be removed, the FDIC would provide the *Successor Institution* with a file listing the accounts subject to removal of the provisional hold. A file format was specified and would be provided to the *Successor Institution* through FDIC *connect* or Direct Connect, depending on the size of the file. The file would be encrypted using an FDIC-supplied algorithm. Provisional Hold Replacement Transactions *Debiting and crediting accounts after provisional holds are removed.* As specified in the proposed rule, on the day a provisional hold removal file is provided to the *Successor Institution,* the FDIC also would provide a file or set of files either in ACH format or in a tab- or pipe-delimited format listing the accounts subject to debit or credit transactions, which reflect the results of the insurance determination process. A file format was specified and would be provided to the *Successor Institution* through FDIC *connect* or Direct Connect, depending on the size of the file. The file would be encrypted using an FDIC-supplied algorithm to secure data during the transport process. *Posting of additional FDIC holds.* As specified in the proposed rule, on the day provisional holds are to be removed the FDIC also would provide the *Successor Institution* with a file listing the accounts subject to a new hold to be placed after the removal of the provisional hold. A file format was specified and would be provided to the *Successor Institution* through FDIC *connect* or Direct Connect, depending on the size of the file. The file would be encrypted using an FDIC-supplied algorithm. Removal of Additional FDIC Holds Under the proposed approach, in some cases provisional holds would be replaced by a second FDIC hold. These holds would be removed over time as further information is gathered from depositors needed to complete the insurance determination. A file format was specified. The Generation of Deposit Account and Customer Data in a Standard Structure The proposed rule would have required a *Covered Institution* to have in place practices and procedures to provide the FDIC with required depositor and customer data in a standard format following the close of any day's business. *Covered Institutions* would not have been required to collect or generate new depositor or customer information. The standard data files would have been created through a mapping of pre-existing data elements and internal institution codes into standard data formats. Data was to be provided on all non-closed deposit or foreign deposit accounts as well as Class B and automated credit accounts. *Files.* The proposed rule would have required these data to be provided in the following five separate files: 1. *Deposit file* . Data fields for each non-closed deposit or foreign deposit account, except those deposit or foreign deposit accounts serving as an investment vehicle reported in the Class B Sweep/Automated Credit file. 2. *Class B Sweep/Automated Credit file.* Data fields capturing information on funds residing in investment vehicles linked to each non-closed deposit account:
(1)Involved in Class B sweep activity or
(2)which accept automated credits. 3. *Hold file.* 17 Deposit hold data fields for each non-closed deposit account. 17 The Hold file contains information on holds against each deposit account, including FDIC provisional holds. Since provisional holds may be generated after the completion of an institution's nightly deposit processing cycle, they may not be reflected fully in the Hold file generated as of the day of closing. The FDIC may require a second Hold file to be generated the day following closing to fully capture provisional holds that may not have been posted until the next deposit processing cycle. 4. *Customer file.* Data fields for each customer. 5. *Deposit-customer join file.* Data necessary to link each deposit and foreign deposit with the customers who have an interest in the account. *Possible file combinations* . The proposed rule provided that data could be submitted using one of each deposit, Class B sweep/automated credit, hold, customer, customer address and deposit-customer join files. Alternatively, data could be supplied using multiple files for each type. The number of files could correspond to the number of institutional systems of record, for example. *File format.* Under the proposed rule depositor and customer data files would have been provided in tab- or pipe-delimited format. Further, each file name would contain the institution's FDIC Certificate Number, the file type (deposit, sweep hold, customer, customer address, join or other) and the date of the extract. The FDIC would support both ASCII and EBCDIC delimited files. All EBCDIC fields must be provided in Pic(X) format. Binary, packed or signed numeric formats would not be allowed. *File transmission mechanism* . Under the proposed rule the data files would be provided to the FDIC in the most expeditious manner. Data which can be compressed and encrypted could be transmitted to FDIC using existing telecommunication services. Should the volume be too great to transmit in the most expeditious manner then a portable hard drive should be used and physically transported by FDIC personnel to the FDIC's data processing facilities. Reporting Requirements The proposed rule noted that the criteria defining a *Covered Institution* include the number of its deposit accounts, total domestic deposits and total assets. Total domestic deposits and total assets are reported quarterly on the Consolidated Reports of Condition and Income (insured bank) and the Thrift Financial Report (insured savings association). Savings associations report the number of deposit accounts quarterly, but banks report on the total number of deposit accounts only annually, as part of the June reporting cycle. The FDIC recommended quarterly reporting of the number of deposit accounts for all insured institutions with total assets over $1 billion. Testing Requirements The proposed rule indicated the FDIC would conduct an initial test at each *Covered Institution* sometime after the initial implementation period ends. 18 All testing would be coordinated with the financial institution and conducted at the site of their choosing if multiple sites are available. Once the initial test is completed successfully, the FDIC anticipated that it would conduct additional tests infrequently at institutions that do not make major changes to their deposit systems 19 —perhaps only once every three-to-five years. It was noted that more frequent testing may be necessary for institutions that make major acquisitions, experience financial distress (even if the distress is unlikely to result in failure) or undertake major system conversions. 18 In addition to testing, the FDIC expects to require that information contact points be validated (and updated as needed) every three-to-six months. 19 A major change to a deposit system means a change made to a Covered Institution's data environment affecting one or more of the data elements described in attached Appendices. Changes could be the result of a merger or the streamlining of a financial institution's systems of record. The proposed rule would have required *Covered Institutions* to establish a series of test accounts on their deposit account systems that could be used for verification purposes. These accounts would be used to verify the processing of holds, debits and credits. The FDIC also contemplated development of a XML validation service which would be provided to each *Covered Institution* for the purpose of establishing compliance with the standard data requirements for depositor and customer records. The XML schema would read a file (which has been created in the standard format), validate the accuracy and integrity of the file content and provide a report that establishes the institution's compliance with the criteria. In addition to the XML service, the FDIC also proposed providing a more readable description of the validation process to help facilitate institutional testing. The proposed rule provided that a *Covered Institution* would be responsible for ensuring that a representative sample of data has been passed through the XML validation service. At a minimum the sampling strategy should cover a cross-section of different insurance categories and a cross section of account ledger balances maintained by the institution. The *Covered Institution* would have been required to provide the FDIC its sampling strategy along with the validation results as a part of the periodic verification process. To reduce the frequency of FDIC testing and ensure ongoing compliance, the FDIC proposed requiring *Covered Institutions* to conduct tests in-house on a regular basis (perhaps every year) and provide the FDIC with evidence that the test was conducted and a summary of the test results. In addition, the proposed rule would allow the FDIC to test certain other requirements inside the institution, including but not limited to the ability to place and remove provisional holds, place new holds and implement debits and credits using a data set that meets the FDIC standards. Implementation Requirements *Institutions meeting the criteria of a Covered Institution upon the effective date of the regulation.* The proposed rule would have required a *Covered Institution* to fully implement the respective requirements 18 months from the regulation's effective date. *Institutions meeting the criteria of a Covered Institution after the effective date of the regulation.* The proposed rule would have required that any insured institution meeting the criteria of a *Covered Institution* for at least two consecutive quarters would have 18 months following the end of the two consecutive quarters in which to fully implement the respective requirements. *Merger involving two Covered Institutions.* Under the proposed rule, the requirements were to be fully implemented within 18 months following the completion of an acquisition, although an acquisition does not delay any implementation requirements which may already have been in place for the individual institutions involved in the merger. *Merger involving a Covered and Non-Covered Institution.* Under the proposed rule, the requirements were to be fully implemented within 18 months following the completion of an acquisition, although a merger does not delay any implementation requirements which may already have been in place for the individual institutions involved in the merger. *Exception for troubled institutions.* Under the proposed rule, on a case-by-case basis, the FDIC could accelerate the implementation timeframe of all or part of the proposed rule for a *Covered Institution* that either:
(1)Has a composite rating of 3, 4 or 5 under the Uniform Financial Institutions Rating System (commonly referred to as CAMELS) 20 or
(2)is undercapitalized as defined for purposes of the prompt corrective action (“PCA”) rules. 21 In determining the accelerated implementation timeframe for such institutions, the FDIC would have been required to consider such factors as the:
(1)Complexity of the institution's deposit systems and operations;
(2)extent of asset quality difficulties;
(3)volatility of funding sources;
(4)expected near-term changes in capital levels; and
(5)other relevant factors appropriate for the FDIC to consider in its roles as insurer and possible receiver of the institution. The proposed rule would have required the FDIC to consult with the *Covered Institution's* primary federal regulator in determining whether to implement this provision of the proposed rule. 20 CAMELS is an acronym drawn from the first letters of the individual components of the rating system: Capital adequacy, Asset quality, Management, Earnings, Liquidity, and Sensitivity to market risk. 21 12 CFR Part 325. *Applications for extension of implementation requirements.* The proposed rule provided that a *Covered Institution* could request an extension of the 18-month deadline for implementing the requirements. An application for such an extension would be subject to the FDIC's rules of general applicability, 12 CFR 303.251. For good cause shown, the FDIC could grant the application for an extension. New Deposit Accounts The proposed rule would not have required a unique depositor ID for customer accounts, rather the FDIC would rely upon customer information already maintained by the *Covered Institution* to link commonly owned accounts. Nevertheless, the FDIC asked whether a unique depositor ID should be assigned by *Covered Institutions* when a new account is opened and the relative costs of such a requirement. IV. Comments on the Proposed Rule The FDIC received twenty-one comments on the proposed rule, the bulk of which addressed both parts of the proposed rule. Four of the comments were from banking industry trade associations (including one joint letter), two from bank regulatory authorities, ten from large insured depository institutions, one from a law firm representing broker-dealers who place brokered funds in insured depository institutions, one from a member-owned electronic funds transfer network and three from individuals. The following is a summary of the comments we received on part two of the proposed rule—Large-Bank Deposit Insurance Determination Modernization. General Comments The FDIC received a joint comment letter from three banking industry trade associations. This letter summarized their sense of the second part of the proposed rule as follows: “The Associations support the intent of the NPR to provide in a bank failure for timely deposit insurance determination, prompt release of depositor funds, and least cost resolution. Nonetheless many of the NPR's proposals would be very costly for banks to implement. We recommend adoption of elements from the NPR only where demonstrated benefits justify the cost, and request that the FDIC make every effort to limit the burdens on banks and provide flexibility to accommodate the variety of bank systems.” Cost and Benefits Many of the large-bank and all of the bank trade association commenters expressed concern over the potential costs of implementing the provisions of the second part of the proposed rule. Several commenters also noted that the expected benefits to the FDIC are not likely to outweigh the costs, especially given the perceived extremely low likelihood of failure of any particular large bank. Commenters emphasized that the potential implementation costs are not small. “Indeed, even small changes to information systems require hundreds of person hours both in programming and testing to ensure proper functionality and avoid disruption with ongoing operations. Several of our member banks estimate that the cost per institution of the initial implementation and testing of the Proposal's requirements is likely to exceed $10 million and involve thousands of hours of labor. As institutions begin the implementation process, based on prior experience, these costs could increase beyond these initial estimates, perhaps substantially. Moreover, significant additional costs will be incurred to maintain and test these processes in the future.” Several large banks provided estimates of implementation costs in their comments. These cost estimates are shown in Table 1 along with their deposit assessment base and a comparison of the estimated cost with a 1 basis point deposit insurance assessment. Several commenters also cited the extremely low likelihood of the failure of a *Covered Institution* and that the FDIC typically is aware of financial difficulties well in advance of failure. It was noted this early warning should allow the FDIC ample time for preparation. Table 1.—Estimated Implementation Costs Responder Estimated implementation cost Assessable deposits ($ millions) 1-Basis point annual FDIC assessment ($ millions) Estimated cost as a % of 1 BP assessment Bank A $8-10 million 630,000 63.0 13-16 Bank B “total costs in the millions of dollars” 230,000 23.0 NA Bank C “in excess of $2 million” 29,000 2.9 70 Bank D $2-4 million 17,000 1.7 120-235 One banking trade association noted that the proposed requirements are likely to provide no financial benefit to the FDIC. “The proposed rule offers no financial benefit to the FDIC because the FDIC does not pay out the full amount of an uninsured deposit's recovery from a failed institution until several years after the failed institution is closed. Hence, the FDIC has ample time *after* an institution is closed to properly aggregate deposit accounts to ensure that no uninsured depositor obtains an excess recovery from the FDIC. Since the deposit-account aggregation process under the proposed rule will not be foolproof, the FDIC must still conduct a post-failure review of all deposit accounts in a failed institution to ensure that they have been properly aggregated for deposit-insurance purposes. The only way the FDIC will pay out too much to an uninsured depositor is if its initial dividend payment to uninsured depositors cannot be recovered through
(1)an offset against future dividend payments or
(2)if offsets against subsequent dividend payments do not fully recover the overpayment, court actions or other collection procedures.” Meeting the FDIC's Objectives A letter from a bank regulatory agency cited the importance of advance preparation in the event of a large-bank failure. The commenter noted that the proposal “reduces the chance that policymakers will invoke the systemic risk exception of the Federal Deposit Insurance Corporation Improvement Act of 1991 (FDICIA) 22 for technical reasons rather than true concern over spillovers. This outcome has the benefit of reducing potential resource misallocations arising from implied guarantees of large-bank creditors. I further argued [in a previous comment letter] that policymakers will not achieve this desired outcome by implementing a new determination regime only at the time when banks are in trouble.” This commenter also provided the following five observations regarding recent financial events: 22 Pub. L.102-242 (1991). 1. “Several very large financial institutions
(FIs)moved from reasonably strong financial positions to what observers characterized as near failure in short periods of time.” 2. “The market turmoil reinforced the benefits of an *ex ante* system that provide creditors of failed banks with *ex post* rapid access to their available funds.” 3. “Responses during the recent tumult reinforce the need for bank policymakers to actively manage the implied safety net.” 4. “Recent events reaffirm the need for policymakers to act before bad outcomes occur.” 5. “Large financial institutions have been at the epicenter of recent events, and some of their creditors benefited most directly from the policy response.” One large-bank commenter “supports the FDIC's continued work on this important project. The current environment reminds us that bank failures are not necessarily a phenomenon of only the past.” Covered Institution Exemptions Several commenters recommended exemptions from the definition of a *Covered Institution.* Three potential exemptions were discussed. *Strong financial condition.* Several commenters—including a state banking agency—suggested that a *Covered Institution* with strong financial characteristics should be exempt from the proposed requirements. The state banking agency noted that the proposed requirements would apply to only one depository institution in its state, but that this institution has consistently demonstrated strong financial characteristics. As such, commenters recommended that the FDIC consider an exemption based on such things as CAMELS ratings, debt ratings, capital levels or other financial characteristics. *Specialty institutions.* Several commenters proposed an exemption for specialty institutions, specifically those primarily involved in credit card operations and bankers' banks. With regard to credit card banks, it was noted that the deposits of these banks consist largely of credit card overpayments and balances used to secure cards. In that these are typically low balances, the commenters argued the deposits attributed to credit card operations should be exempt from the criteria of a *Covered Institution.* *Fewer than 250,000 deposit accounts.* Several commenters requested that the definition for a *Covered Institution* should include only those depository institutions with at least 250,000 deposit accounts. One large-bank commenter with fewer than 250,000 deposit accounts (that would be a *Covered Institution* under the criteria proposed) argued that the bank's “insurance determination profile is no more complex than that of a small to mid-sized bank.” It was further argued “due to the large balances of our typical deposit accounts, the ratio of our deposit insurance coverage to our domestic assessed deposit base is substantially lower than nearly all other U.S. banks. [Our] potential exposure to the insurance fund is therefore at best modest and creates few of the complex challenges which the NPR seeks to address.” Implementation Time Most large-banks and all bank trade association commenters argued for an extension in implementation time from the proposed 18 months to 24-to-36 months. Commenters contend the proposed requirements of the proposed rule are significantly more complex than those of the past advance notices of proposed rulemaking; particularly with regard to the provisional hold requirements on sweep accounts and foreign deposits. Several commenters also recommended an extension in implementation time for institutions recently involved in merger and assumption activities. Provisional Hold Exemptions *Sunsetting deposit systems.* One large bank suggested providing an exemption from requirements for deposit systems expected to be retired in the near future, as long as the replacement system is compliant. *Small systems.* Several commenters requested that—for a *Covered Institution* with multiple deposit systems—the FDIC should provide an exemption for systems handling a small percent of overall deposit accounts at the *Covered Institution.* As an example, the commenters proposed that a deposit system handling five percent or fewer of the *Covered Institution's* deposit accounts should be exempt from the provisional holds requirements. Foreign Deposit Provisional Holds Several large-bank and all banking trade association commenters recommended changing the provisional hold requirement on foreign deposits to be uniform across all countries in which the *Covered Institution* has deposit accounts. Commenters noted that for individual institutions all foreign deposits frequently reside on a single deposit system and that mandating different provisional hold percentages by country would be burdensome. Provisional Hold Flexibility All banking trade association and many large bank commenters approved of the flexibility to implement provisional holds using the options of a persistent hold, a memo hold or a WIP account. The commenters noted that this flexibility could reduce significantly implementation costs. Generally the commenters believed they understood what the FDIC intended to accomplish through provisional holds and requested they be provided the flexibility to implement the holds in a manner least costly for their institution. Several commenters also requested additional flexibility regarding the placement of provisional holds on funds swept out of a deposit account into a sweep investment vehicle. It was noted that—in some cases—funds are swept into a system within the institution that does not have the capability of posting holds. In these cases commenters requested the option of placing the hold on these funds as they return to the deposit account rather than when they reside in the alternative investment vehicle. Again, the commenters argued that they understood the FDIC's intent and asked that they be allowed to implement the hold in a manner least costly for their institution. Provisional Hold Disclosure Most banking trade associations and several large-bank commenters argued it was unnecessary and unduly burdensome to require on-line or other disclosure of provisional holds. Commenters noted the FDIC has other mechanisms for distributing information to customers in the event of a bank failure that would be equally effective. Deposit Broker Requirements One commenter requested confirmation that the proposed rule would not require changes to brokered deposit recordkeeping or require brokers to develop systems to comply with the rule. The commenter noted that in addition to the more traditional brokered CD programs many brokers offer brokered money market deposit and NOW accounts. Unique Depositor ID All commenters addressing the proposal to require a unique depositor ID for newly opened accounts recommend against it. One commenter noted “the compliance and training costs would be excessive while offsetting benefits are not apparent.” V. The Final Rule After considering the comments on the second part of the proposed rule, the FDIC has adopted a final rule in a form similar to that proposed. While there are a number of limited changes from the proposed rule, the main changes are that the final rule will: • Permit application to the FDIC for an exemption from the requirements of the final rule if an institution has a high concentration of deposits incidental to credit card operations. • Expand the circumstances under which a *Covered Institution* may be required to accelerate implementation of the final rule requirements to include materially deteriorating financial conditions, as discussed below. • Provide for a uniform provisional hold strategy for foreign deposits. • Allow application to use alternatives to persistent provisional holds. Costs and Benefits Many commenters cited the potentially high implementation costs of the final rule and noted that the expected benefits might be low, especially given the low likelihood of a *Covered Institution* failure. One banking trade association commenter suggested there would be no benefits to the FDIC. In the proposed rule the FDIC noted that even if the likelihood of a failure among *Covered Institutions* is perceived to be low, it is not zero. Recent events have placed stress on the banking industry as a whole. The FDIC must have in place a credible plan for resolving the failure of an institution of any size at the least possible cost. The ability to provide depositors prompt access to funds and determine the insurance status of depositors in a failed institution in a timely manner is a critical element for ensuring a least-costly resolution and maintaining public confidence. *Meeting the FDIC's legal mandates.* FDICIA was one of the most important pieces of legislation affecting the FDIC's failure resolution process. Its least-cost requirement effectively requires uninsured depositors to be exposed to losses. 23 Also, FDICIA's legislative history and the nature of the systemic risk exception provide a clear message that uninsured depositors of large institutions are to be treated on par with uninsured depositors of other institutions. The requirements being imposed in this rulemaking provide essential support for the FDIC to meet these statutory mandates—particularly given the current size and complexity of some insured depository institutions. 23 12 U.S.C. 1823(c)(4). *Providing liquidity to depositors.* The provisional hold functionality creates a mechanism for the FDIC to provide customer access to deposit accounts immediately after failure, albeit with some FDIC hold for large accounts. The ability to continue uninterrupted the deposit operations of a *Covered Institution* in the event of failure has significant benefits for depositors and also helps preserve the institution's franchise value. *Enhancement of market discipline.* The FDIC's legal mandates have direct implications for Too-Big-to-Fail and market discipline. If financial markets perceive that uninsured depositors in large institutions will be made whole in the event of failure, uninsured deposits will be directed toward these larger depository institutions, which could result in a significant misallocation of economic resources. Many market observers believe there are substantial benefits of improved market discipline that accrue even without serious industry distress or bank failures. Effective market discipline also limits the size of troubled institutions and results in a more rapid course toward failure. Both serve to mitigate overall resolution losses. Lower resolution losses benefit insured institutions through lower insurance assessments. *Equity in the treatment of depositors of insured institutions.* Without the provisions of the final rule, the FDIC is concerned that the resolution of a *Covered Institution* could be accomplished only through a significant departure from the FDIC's normal claims procedures. This departure could leave the bank closed until an insurance determination is made or require the use of shortcuts to speed the opening of the bridge institution. The use of shortcuts or other mechanisms to facilitate depositor access to funds could result in disparate treatment among depositors within the failed institution and certainly different treatment relative to the closure of a *Non-Covered Institution.* *Preservation of franchise value in the event of failure.* The sale of the franchise of a failed institution can provide significant value to mitigate failure costs and is likely to be part of a least-cost resolution. Superior Bank, FSB, one of the largest failures over the past 10 years, generated a franchise premium of $52 million, or 17 percent of current estimated FDIC losses in the failure. An ineffective claims process—especially one deviating significantly from the FDIC's normal policies and procedures—risks reducing or destroying an important asset of the receivership. Preservation of franchise value in the event of failure of a *Covered Institution* will be an important benefit of the final rule. A banking trade association commenter suggested the FDIC delay implementation of the final rule “until the FDIC evaluates how to relieve such cost and burden on the industry.” The FDIC first proposed the elements of the final rule in its 2005 ANPR. A second ANPR was issued in 2006, roughly a year in advance of the January 2008 proposed rule leading to this final rule. As indicated in the proposed rule, based on the respective comments on the 2005 and 2006 ANPRs, the FDIC reduced the potential for industry burden relative to the requirements in the proposed rule. Several of the commenters on the proposed rule acknowledged this reduction in industry burden. Likewise, as a result of the comments on the proposed rule, the FDIC has further reduced the potential for industry burden as to the requirements of the final rule. In both ANPRs and in the proposed rule the FDIC requested comment on alternative approaches that could meet the FDIC's objectives with a lower industry burden. None of these three requests for comment yielded suggestions for a different overall approach meeting the FDIC's objectives. In consideration of the extensive public comment process covering the second part of the proposed rule, the FDIC believes no further examination of costs and benefits is necessary prior to the adoption of the final rule. Definition of Institutions Covered The final rule applies to a *Covered Institution* , defined as any insured depository institution having at least $2 billion in domestic deposits and at least either:
(1)250,000 deposit accounts; or
(2)$20 billion in total assets, regardless of the number of deposit accounts. 24 All other insured depository institutions are designated *Non-Covered Institutions* and, thus, are not subject to the final rule. 25 24 For the purposes of the criteria in the text, an “insured depository institution” includes all institutions defined as such in the FDI Act. 12 U.S.C. 1813(c)(2). Other applicable terms would be as defined in the Reports of Condition and Income (Call Report) instructions (for insured banks) and Thrift Financial Reports
(TFR)instructions (for insured savings associations): “deposit accounts” mean the total number of deposit accounts (including retirement accounts), “domestic deposits” mean total deposits held in domestic offices (for insured banks) or deposits (for insured savings associations), and “total assets” means the reported amount of total assets. 25 As discussed previously, the criteria for a Covered Institution apply to separately chartered insured depository institutions. Commenters suggested exemptions for institutions:
(1)With strong financial characteristics,
(2)specializing in credit card operations or services to depository institutions (bankers' banks) and
(3)with fewer than 250,000 deposit accounts. As discussed below, based on the comments, the final rule provides (through an application process) for an exemption from the final rule for institutions with a high concentration of deposits incidental to credit card operations. *Strong financial characteristics.* The financial characteristics of *Covered Institutions* vary considerably, as reflected in differing CAMELS ratings, capital levels and debt ratings. The recent difficulties experienced by the financial markets demonstrate the degree to which rapid financial deterioration is possible, even for some institutions only recently considered to be in strong health. The FDIC is concerned that the possible pace of financial deterioration-even among those historically showing strong financial characteristics-could expose the FDIC to undue risk, especially given the potential implementation times cited by commenters. Thus, the final rule provides no exception to the criteria of a *Covered Institution* based on financial characteristics. *Credit card specialists and bankers' banks.* Some depository institutions specialize in credit card operations. As such, the preponderance of their deposits relate to overpayments on credit cards or balances held to secure a credit card. Some credit card specialists have in excess of 250,000 deposit accounts and could also have more than $2 billion in domestic deposits. Such institutions rarely hold large deposit balances in a significant number of accounts. As discussed below, under the final rule, the FDIC will permit application for an exemption from the final rule requirements if an institution has a high concentration of deposits incidental to credit card operations. A bankers' bank specializes primarily in services to other depository institutions. Deposit balances can be large and such organizations typically have high levels of uninsured deposits. A large bankers' bank raises concerns similar to other depository institutions, perhaps to a greater extent given its stronger link to those institutions. For a bankers' bank the FDIC would be concerned about rapidly restoring deposit operations in the event of failure so that depositors can have access to their funds. Consequently, the final rule provides no exception to the criteria of a *Covered Institution* for a bankers' bank. *Fewer than 250,000 deposit accounts.* Under the proposed rule a Covered Institution could include a depository institution with fewer than 250,000 deposit accounts, as long as it has total assets in excess of $20 billion and domestic deposits over $2 billion. These criteria expand the list of *Covered Institutions* by roughly seven compared to a more narrow definition including depository institutions with at least 250,000 deposit accounts and over $2 billion in domestic deposits. Some large depository institutions with fewer than 250,000 deposit accounts play a significant role in the financial system, some having total assets in excess of $100 billion. In the event of failure, the FDIC would be concerned about rapidly restoring deposit operations so that depositors can have access to their funds. Hence, the final rule provides no exception to the criteria of a *Covered Institution* based on the number of deposit accounts. Provisional Holds *General description.* The final rule requires *Covered Institutions* to have in place an automated process for implementing *provisional holds* concurrent with or immediately following the daily deposit account processing on the day of failure. After the placement of *provisional holds,* all other holds previously placed by the institution would still remain in effect. 26 The final rule does not require development of mechanisms to stop or alter interest accrual for the affected accounts. 26 Provisional holds could overlap preexisting holds if the entire account is held or the unheld account balance before posting the provisional hold is less than the amount of the provisional hold. In such cases posting the provisional hold would have to be constructed so that it did not cause the account to become “overdrawn” and trigger service fees against the account. *Account-by-account application. Provisional holds* must be applied to individual accounts in an automated fashion. Commonly owned accounts need not be aggregated by ownership for the purposes of calculating or placing provisional holds. *Provisional holds* will extend to all non-closed deposit accounts held in domestic and foreign offices, as well as certain sweep account arrangements. 27 For these purposes a deposit account also includes omnibus accounts reflected on the books and records of the *Covered Institution* used to temporarily house customer funds, such as those used in connection with sweep transactions. 27 As noted above, non-closed deposit accounts include those that are open, dormant, inactive, abandoned, restricted, frozen or blocked, in the process of closing or subject to escheatment. *The nature of a provisional hold.* The final rule requires a persistent *provisional hold* to be applied once (on or immediately after the day of failure) and stay on the deposit account until it is removed at the order of the FDIC. Once applied, the persistent hold would reduce the customer's available balance. The proposed rule discussed the use of memo holds and holding balances in an alternate account, such as a work in progress or suspense account. The use of these alternatives could reduce implementation costs. Under the final rule, a *Covered Institution* may apply to the FDIC to develop a *provisional holds* process involving memo holds or alternative account mechanisms. If used, the *Covered Institution* is required to obtain prior approval from the FDIC in response to a written request, including a justification for the process and its relative effectiveness for posting *provisional holds* in the event of failure. *Provisional holds for deposit accounts.* Under the final rule, a *Covered Institution* is required to develop and implement a process whereby a *provisional hold* could be placed on each deposit account in excess of the “account balance threshold” specified by the FDIC on the day of failure. 28 No *provisional hold* would be placed on a deposit account with a balance less than or equal to the account balance threshold. For a deposit account above the account balance threshold, the FDIC would specify, again on the day of failure, a percentage (the “ *provisional hold percentage* ”) that would be multiplied by the account balance in excess of the account balance threshold. 29 The product of this multiplication would equal the dollar amount of the *provisional hold.* The final rule requires a *Covered Institution* to adopt systems allowing the hold to be calculated and placed. The account balance threshold as well as the *provisional hold* percentage could vary for the following four categories, as the *Covered Institution* customarily defines them: 28 The account balance threshold could be any dollar amount specified by the FDIC, including zero. 29 The provisional hold percentage could be any percentage specified by the FDIC, from 0 to 100 percent. 1. Consumer demand deposit, negotiable order of withdrawal (“NOW”) and money market deposit accounts (“MMDA”). 2. Other consumer deposit accounts (time deposit and savings accounts, excluding NOW accounts and MMDAs). 3. Non-consumer demand deposit, NOW accounts and MMDAs. 4. Other non-consumer deposit accounts (time deposit and savings accounts, excluding NOW accounts and MMDAs). One commenter requested confirmation that the proposed rule would not require changes to brokered deposit recordkeeping or require brokers to develop systems to comply with the rule. The final rule does not impose any such requirements, although deposit brokers may be affected in the event of the failure of a *Covered Institution.* Under the final rule a brokered deposit would be treated as any other deposit account for *provisional hold* purposes. The implications for deposit brokers may vary depending on the ability of the underlying owners to access funds in the account or otherwise change their ownership interests. Some brokered deposit accounts may be structured as money market deposit accounts, for example, thus allowing the underlying owners check-writing access to funds in the account. If an underlying owner with an uninsured interest removes funds from the account subsequent to failure, the result might be a shortfall to other underlying owners. Responsibility for this shortfall will rest with the broker or agent in whose name the account is titled, and not the FDIC as insurer. *Provisional holds for foreign deposits.* Under the final rule, a *Covered Institution* is required to develop and implement a process whereby a *provisional hold* could be placed on each foreign deposit account on the day of failure applying a *provisional hold* percentage to the entire account balance. For foreign deposits the *provisional hold* percentage may differ from that applied to deposit accounts. Also, the *provisional hold* percentage would not vary by account category (i.e., consumer versus non-consumer and transaction versus non-transaction) as is the case with deposit accounts. The proposed rule would have required the *provisional hold* percentage on foreign deposits to vary by country. Several commenters noted that foreign deposits frequently are housed on a single deposit system within the institution. It was argued that the application of different *provisional hold* mechanisms based on a country would be burdensome. After considering these comments, the FDIC believes an effective *provisional hold* strategy could be implemented without the need for country-by-country distinctions. *Provisional holds for IBF deposits.* Under the final rule, a *Covered Institution* is required to develop and implement a process whereby a *provisional hold* could be placed on each IBF deposit account on the day of failure applying a *provisional hold* percentage to the entire account balance. For IBF deposits the *provisional hold* percentage may differ from that applied to deposit or foreign deposit accounts. Also, the *provisional hold* percentage would not vary by account category (i.e., consumer versus non-consumer, and transaction versus non-transaction) as is the case with deposit accounts. *Provisional holds for deposit accounts with prearranged, automated sweep features.* For sweep accounts 30 under the final rule the FDIC will consider a deposit account through which the customer has primary access to deposited funds—usually a demand deposit account—as the “base sweep account.” The investable or excess account balance is swept periodically into a “sweep investment vehicle.” 30 Sweep accounts as described here do not include zero balance account
(ZBA)arrangements that move funds to and from a master (or concentration) deposit account and one or more subsidiary deposit accounts at the same bank. Such deposit account arrangements are not intended to provide a yield on excess deposit balances nor do they change the customer's insurance status. ZBAs would be subject to the provisional hold methodology for deposit accounts described above. In the case where the sweep investment vehicle is another deposit account in the same institution, both the base sweep account and the sweep investment vehicle are deposits subject to the *provisional hold* requirements of a deposit account. Some sweep arrangements channel funds through an omnibus account as an intermediate step prior to their transfer to the sweep investment vehicle. In some cases, such as with “next-day” money market mutual fund sweeps, customer funds will reside in the omnibus deposit account as reflected in the *Covered Institution's* end-of-day ledger balances. Under the final rule the omnibus account is subject to the *provisional hold* requirements of a deposit account. In the case where the sweep investment vehicle is housed in a separate legal entity other than the *Covered Institution* (e.g., a proprietary or third-party money market mutual fund), funds residing in the base sweep account (if any) are subject to a *provisional hold* as any other deposit account. No *provisional hold* is required for funds residing outside the *Covered Institution* in the sweep investment vehicle. All other sweep accounts, those where the sweep investment vehicle is not a deposit and is reflected on the books and records of the *Covered Institution* , are required by the final rule to have a dual *provisional hold* methodology. This means that, for the fund balance remaining in the base sweep account as of the institution's customary end-of-day on the day of failure, the *provisional hold* methodology will be the same as applied to other deposit accounts. But, for the funds residing in the sweep investment vehicle as of the institution's customary end-of-day, the *provisional hold* methodology will have a separate account balance threshold and *provisional hold* percentage. 31 Under the final rule the balance threshold as well as the *provisional hold* percentage may vary for different types of sweep investment vehicles. 32 31 Some Covered Institutions may allow a single base sweep account to be associated with multiple investment vehicles. In this case a separate provisional hold methodology must be developed for each investment vehicle. 32 Some alternative investment vehicles are deposits held in foreign offices. These foreign deposits would be subject only to the provisional hold methodology for the sweep alternative investment. Such foreign deposits would be excluded from the provisional hold methodology designed for non-sweep deposits held in the same foreign office. The proposed rule distinguished between Class A and Class B sweep account arrangements, where Class A sweep arrangements were those where the sweep investment vehicle is either a deposit or a money market mutual fund account while Class B covered all other sweep arrangements. In response to comments and for better clarity this distinction is not used in the final rule. The final rule does not require mechanisms to stop the processing of any prearranged deposit account sweep transactions in the event of failure. The *provisional holds* described above would allow for the transfer of balances from a deposit account to a sweep investment vehicle. The *provisional holds* would apply to liability accounts as they are designated on the books and records of the institution at its customary end-of-day. One commenter noted that frequently “systems or processes for booking swept products (like securities repos, money market mutual funds or fed funds) are not like a deposit system that would have functionality for holds. In many cases, there are not ‘accounts' in a sense equivalent to a deposit account. * * * Due to the structure, timing and automated processes of sweeps, there is no practical ability of a customer to access and remove such funds until the incoming side of that sweep transaction is processed and the funds are placed back into the U.S. deposit account. Bank deposit systems could utilize existing capabilities to either place holds on the domestic deposit account upon return of the funds or a bank could trap such funds prior to their being returned by routing such funds into an alternative suspense account. This method would allow the FDIC to control such funds until it releases them to the customer and would reduce the burden and cost of process and technology development.” The final rule would allow a *Covered Institution* to apply to the FDIC to use such approaches. If used, the *Covered Institution* is required to obtain prior approval from the FDIC in response to a written request, including a justification for the process and its relative effectiveness for posting *provisional holds* in the event of failure. *Provisional holds for deposit accounts which accept automated credits from funds invested within the Covered Institution.* The final rule requires a dual *provisional hold* methodology for automated credit accounts. For the fund balance remaining in the automated credit account as of the institution's customary end-of-day the *provisional hold* methodology would be the same as applied to other deposit accounts. For the funds residing in the investment vehicle as of the institution's customary end-of-day, the *provisional hold* methodology must have the capability of a separate account balance threshold and *provisional hold* percentage. 33 The account balance threshold as well as the *provisional hold* percentage are required to vary for different types of investment vehicles. These account balance thresholds and *provisional hold* percentages could be different from those applied to:
(1)Funds automatically swept into a similar or identical investment vehicle or
(2)funds held in a similar or identical investment vehicle that does not provide for an automated crediting of funds. 34 33 Some automated credit accounts may also be a base sweep account. In this case a separate provisional hold methodology must be developed for each investment vehicle. It is possible, for example, for a customer to each day provide the institution with instructions to invest a certain amount of funds in a Cayman Island branch time account where the funds would be returned to the customer's demand deposit account the following morning. Further, the customer may also have provided prearranged instructions to have excess balances residing in the same demand deposit account swept to a Cayman Island branch account where such funds also are returned to the demand account the following morning. In this case the Covered Institution must have a provisional hold methodology that:
(1)Treats funds residing in the demand deposit account as of the institution's end-of-day consistent with other deposit accounts,
(2)treats funds residing in the Cayman Island branch account as a result of the prearranged sweep consistent with other Cayman Island sweep investment vehicles and
(3)treats funds residing in the Cayman Island branch account as a result of the daily investment instructions using a separate account balance threshold and provisional hold percentage. 34 Some investment vehicles are foreign deposits. These funds would be subject only to the provisional hold methodology for the automated credit account. Such accounts would be excluded from the provisional hold methodology designed for non-sweep foreign deposits held in the same office. *Account balance used for provisional hold calculation.* The final rule requires the account balance threshold and *provisional hold* percentage to be applied against the end-of-day ledger balance calculated by the institution as of the date of failure. *Provisional hold duration.* Under the final rule, the methodology for implementing a *provisional hold* process will be required to hold funds until removed by the *Successor Institution* as instructed by the FDIC. *Provisional holds* will be removed when the results of the deposit insurance determination are available, generally anticipated being several days after failure, depending on the size and complexity of the failed institution's deposit base. *Provisional hold designation.* The final rule requires provisional holds to be labeled “FDIC Hold.” *Provisional hold customer disclosure.* The majority of the commenters addressing the issue of *provisional hold* disclosure indicated it would be burdensome and unnecessary. They indicated the FDIC has other means at its disposal to notify customers the *provisional hold* s are in place. Once placed, the *provisional hold* will be reflected in the account's available balance, which can be viewed and accessed through normal channels. The final rule does not require the development of new mechanisms so that *provisional holds* , once placed, would be apparent if the customer views account information on-line or through other means. *Security level and mechanism for manual removal of provisional holds* . The final rule requires the *Covered Institution* to create policies, procedures and systems reasonably capable of preventing the alteration of FDIC *provisional holds* or other FDIC hold amounts except under the specific written direction of the FDIC. *Timeliness of the provisional holds process.* The final rule requires a *Covered Institution* to have the capability of placing *provisional holds* on the applicable accounts prior to the *Successor Institution* opening for business the following day, but in no case later than 9 a.m. local time the day following the day of the depository institution failure. *Exception for systems with a small number of accounts.* The final rule allows an exception for account systems servicing a relatively small number of accounts making the manual application of *provisional holds* feasible. If used, the *Covered Institution* is required to obtain prior approval from the FDIC in response to a written request, including a justification for the manual process and its relative effectiveness for posting *provisional holds* in the event of failure. *Institutional contacts.* The final rule requires a *Covered Institution* to notify the FDIC of the person(s) responsible for producing the standard deposit data download and administering *provisional holds* , both while this functionality is being constructed and on an on-going basis. The *Covered Institution* is responsible for ensuring such contact information is current. Removal of Provisional Holds *Removal of provisional holds.* Under the final rule, the *Successor Institution* is required to remove *provisional holds* in batch as specified by the FDIC. On the day(s) *provisional holds* are to be removed, the FDIC would provide the *Successor Institution* with a file listing the accounts subject to removal of the *provisional hold.* The file format is shown in Appendix A. The file will be in a tab-or pipe-delimited ASCII format and provided to the *Successor Institution* through FDIC *connect* or Direct Connect, depending on the size of the file. The file will be encrypted using an FDIC-supplied algorithm. The FDIC will provide the *Successor Institution* with the necessary software algorithms needed to decrypt the data files. In addition to the batch process used to remove *provisional holds* , the *Covered Institution* is required to have in place a mechanism for manual removal of *provisional holds* on a case-by-case basis. The FDIC expects that virtually all *provisional holds* will be removed via the batch process described above; however, the removal of *provisional holds* on a case-by-case basis during the business day, which could include the day following failure, may also be necessary to provide an individual depositor access to funds. Provisional Hold Replacement Transactions *Debiting and crediting accounts after provisional holds are removed.* Under the final rule, on the day a *provisional hold* removal file is provided to the Successor Institution, the FDIC also will provide a file or set of files in a tab-or pipe-delimited ASCII format listing the accounts subject to debit or credit transactions, which reflect the results of the insurance determination process. Appendix B provides details on the debit/credit data file structure. The debit and credit transaction file will be transmitted to the *Successor Institution* through FDIC *connect* or Direct Connect, depending on the size of the file. The file will be encrypted using an FDIC-supplied algorithm. *Posting of additional FDIC holds.* Under the final rule, on the day *provisional holds* are to be removed, the FDIC also will provide the *Successor Institution* with a file listing the accounts subject to a new hold to be placed after the removal of the provisional hold. The file format is shown in Appendix A. The file will be in a tab-or pipe-delimited ASCII format and provided to the *Successor Institution* through FDIC *connect* or Direct Connect, depending on the size of the file. The file will be encrypted using an FDIC-supplied algorithm. Removal of Additional FDIC Holds Under the final rule, in some cases *provisional holds* will be replaced by a second FDIC hold. These holds will be removed over time as further information is gathered from depositors needed to complete the insurance determination. These additional FDIC holds will be removed using the same file format described in Appendix A. The Generation of Deposit Account and Customer Data in a Standard Structure The final rule requires a *Covered Institution* to have in place practices and procedures to provide the FDIC with required depositor and customer data in a standard format following the close of any day's business. The depositor and customer data would be provided as soon as practicable, but in no case later than by the following calendar day, and must reflect the end-of-day ledger balances as customarily shown on the books and records of the *Covered Institution* as of the day data are requested. Furthermore, all other deposit account and customer data provided must be current as of the close of business on that day. *Covered Institution* s are not required to collect or generate new depositor or customer information. The standard data files would be created through a mapping of pre-existing data elements and internal institution codes into standard data formats. Data will be provided on all non-closed deposit or foreign deposit accounts as well as sweep and automated credit accounts. *Files.* The final rule requires these data to be provided in the following five separate files: 1. *Deposit file.* Data fields for each non-closed deposit or foreign deposit account, 35 except those accounts serving as an investment vehicle reported in the Sweep/Automated Credit file. See Appendix C for more detail. 35 For these purposes a deposit account also includes omnibus accounts reflected on the books and records of the *Covered Institution* used to temporarily house customer funds, such as those used in connection with sweep transactions. 2. *Sweep/Automated Credit file.* Data fields capturing information on funds residing in investment vehicles linked to each non-closed deposit account:
(1)Involved in sweep activity where the sweep investment vehicle is not a deposit and is reflected on the books and records of the *Covered Institution* or
(2)which accept automated credits. See Appendix D for more detail. 3. *Hold file.* 36 Deposit hold data fields for each non-closed deposit account. See Appendix E for more detail. 36 The Hold file contains information on holds against each deposit account, including FDIC provisional holds. Since provisional holds may be generated after the completion of an institution's nightly deposit processing cycle, they may not be reflected fully in the Hold file generated as of the day of closing. In this case the FDIC would require a second Hold file to be generated the day following closing to fully capture provisional holds that may not have been posted until the next deposit processing cycle. 4. *Customer file.* Data fields for each customer. See Appendix F for more detail. 5. *Deposit-customer join file.* Data necessary to link each deposit and foreign deposit with the customers who have an interest in the account. See Appendix G for more detail. *Possible file combinations.* The final rule provides that data could be submitted using one of each deposit, sweep/automated credit, hold, customer, and deposit-customer join files. Alternatively, data could be supplied using multiple files for each type. The number of files could correspond to the number of institutional systems of record, for example. When an institution provides multiple data files for a single deposit application, all of the files must sum to the institution's subsidiary system control totals. In addition, either a set of customer files or a single customer file must accompany the deposit file(s). See Appendix H for rules governing the possible file combinations for depositor and customer data. *File format.* Under the final rule depositor and customer data files must be provided in tab- or pipe-delimited ASCII format. Each file name would contain the institution's FDIC Certificate Number, the file type (deposit, sweep, hold, customer, join or other) and the date of the extract. Additional data could be provided, not required by the regulation, that may be helpful to the FDIC's deposit insurance determination process. For these additional files, the names should describe the file content such as “lookup table” or “product codes”. All files will be compressed and encrypted using an FDIC-supplied or specified algorithm. The FDIC would transmit the encryption algorithm over FDIC *connect.* The FDIC will support an ASCII file format. *File transmission mechanism.* Under the final rule, the data files must be provided to the FDIC in the most expeditious manner. Data which are compressed and encrypted could be transmitted to the FDIC using FDIC *connect* or a secure FTP site which the FDIC has established for this purpose. Should the volume be too great to be transmitted electronically, then a portable hard drive should be used and physically transported by FDIC personnel to the FDIC's data processing facilities. Testing Requirements The FDIC will conduct an initial test at each *Covered Institution* sometime after the initial implementation period ends. 37 All testing will be coordinated with the financial institution and conducted at the site of their choosing if multiple sites are available. Once the initial test is completed successfully, the FDIC anticipates conducting additional tests infrequently at institutions that do not make major changes to their deposit systems 38 —perhaps only once every three-to-five years. More frequent testing may be necessary for institutions that make major acquisitions, experience financial distress (even if the distress is unlikely to result in failure) or undertake major system conversions. 37 In addition to testing, the FDIC expects to require that information contact points be validated (and updated as needed). 38 A major change to a deposit system means a change made to a Covered Institution's data environment affecting one or more of the data elements described in attached Appendices. Changes could be the result of a merger or the streamlining of a financial institution's systems of record. *Covered Institutions* will be asked to establish a series of test accounts on their deposit account systems that could be used for verification purposes. These accounts will be used to verify the processing of holds, debits and credits. The FDIC also contemplates development of a XML validation service to be provided to each *Covered Institution* for the purpose of establishing compliance with the standard data requirements for depositor and customer records. The XML schema will read a file (which has been created in the standard format), validate the accuracy and integrity of the file content and provide a report that establishes the institution's compliance with the criteria. In addition to the XML service, the FDIC also will provide a description of the validation process to help facilitate institutional testing. *Covered Institutions* will be responsible for ensuring that a representative sample of data has been passed through the XML validation service. At a minimum the sampling strategy should cover a cross-section of different insurance categories and of account ledger balances maintained by the institution. The *Covered Institution* will be required to provide the FDIC its sampling strategy along with the validation results as a part of the periodic verification process. To reduce the frequency of FDIC testing and ensure ongoing compliance, the FDIC will require *Covered Institutions* to conduct tests in-house every year and provide the FDIC with verification that the test was conducted, a summary of the test results and certification that the functionality can be successfully implemented. In addition, the FDIC will test certain other requirements inside the institution, including but not limited to the ability to place and remove provisional holds, place new holds and implement debits and credits using a data set that meets the FDIC standards. Implementation Requirements *Institutions meeting the criteria* of a *Covered Institution upon the effective date of the regulation.* The final rule requires a *Covered Institution* to fully implement the respective requirements no later than 18 months from the regulation's effective date. *Institutions meeting the criteria of a Covered Institution after the effective date of the regulation.* The final rule requires that any insured institution meeting the criteria of a *Covered Institution* for at least two consecutive quarters will have 18 months following the end of the two consecutive quarters in which to fully implement the respective requirements. *Merger involving two Covered Institutions.* Under the final rule, the requirements are to be fully implemented within 18 months following the completion of an acquisition, although an acquisition does not delay any implementation requirements which may already have been in place for the individual institutions involved in the merger. *Merger involving a Covered and Non-Covered Institution.* Under the final rule, the requirements are to be fully implemented within 18 months following the completion of an acquisition, although a merger does not delay any implementation requirements which may already have been in place for the individual institutions involved in the merger. *Exception for certain institutions.* Under the final rule, on a case-by-case basis, the FDIC could accelerate the implementation timeframe of all or part of the final rule for a *Covered Institution that:*
(1)Has a composite rating of 3, 4 or 5 under the Uniform Financial Institutions Rating System (commonly referred to as CAMELS), 39 or in the case of an insured branch of a foreign bank, an equivalent rating,
(2)is undercapitalized as defined for purposes of the prompt corrective action (“PCA”) rules 40 or
(3)is determined by the appropriate Federal banking agency or the FDIC in consultation with the appropriate Federal banking agency to be experiencing a significant deterioration of capital or significant funding difficulties or liquidity stress, notwithstanding the composite rating of the institution by its appropriate Federal banking agency in its most recent report of examination. In determining the accelerated implementation timeframe for such institutions, the FDIC will consider such factors as the:
(1)Complexity of the institution's deposit systems and operations;
(2)extent of asset quality difficulties;
(3)volatility of funding sources;
(4)expected near-term changes in capital levels; and
(5)other relevant factors appropriate for the FDIC to consider in its roles as insurer and possible receiver of the institution. The final rule requires the FDIC to consult with the *Covered Institution's* primary federal regulator in determining whether to implement this provision. 39 CAMELS is an acronym drawn from the first letters of the individual components of the rating system: Capital adequacy, Asset quality, Management, Earnings, Liquidity, and Sensitivity to market risk. 40 12 CFR Part 325. *Applications for extension of implementation requirements.* The final rule provides that a Covered Institution could request an extension of the 18-month deadline for implementing the requirements. An application for such an extension would be subject to the FDIC's rules of general applicability, 12 CFR 303.251. For good cause shown, the FDIC could grant the application for an extension. One commenter requested that the FDIC provide an exemption from the proposed requirements for deposit systems which may be retired in the near future, as long as the replacement system is intended to be compliant. Such a request could be addressed as an application for extension of implementation requirements. New Deposit Accounts The proposed rule asked whether a unique depositor ID should be assigned by *Covered Institutions* when a new account is opened and to indicate the relative costs of such a requirement. Commenters generally indicated the assignment of a unique depositor ID was burdensome and unnecessary to meet the FDIC's objectives. The final rule does not include a requirement to assign a unique depositor ID when a new account is opened. FDIC Contact Applications for an exemption from the criteria of a *Covered Institution,* a request for flexibility in the use *of provisional holds,* an extension of implementation requirements or the submission of point-of-contact information should be submitted in writing to: Office of the Director, Division of Resolutions and Receiverships, Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429-0002. VI. Plain language Section 722 of the Gramm-Leach-Bliley Act, Public Law 106-102, 113 Stat. 1338, 1471 (Nov. 12, 1999), requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. No commenters suggested that the proposed rule was unclear, and the final rule is substantively similar to the proposed rule. VII. Paperwork Reduction Act In accordance with the requirements of the Paperwork Reduction Act of 1995, the FDIC may not conduct or sponsor, and respondents are not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget
(OMB)control number. The FDIC submitted the information collections (as more fully described below) contained in this rule to OMB for review. No collections of information will be made until OMB approval has been obtained. *Background/General Description of Collection:* Section 360.9 contains collections of information pursuant to the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) (“PRA”). In particular, the following requirements of this proposed rule constitute collections of information as defined by the PRA:
(A)All notices that *Covered Institutions* must provide the FDIC of persons responsible for producing the standard data download and administering provisional holds, both while the functionality is being constructed and on an on-going basis (360.9(c)(3));
(B)written practices and procedures for providing the FDIC with required deposit account and customer data, as to all accounts held in domestic and foreign offices, in a standard format upon the close of any day's business, to be created through a mapping of pre-existing data elements into standard data formats in six separate files, as indicated in the appendices to this Part 360 (360.9(d)
(1)and (2);
(C)all data provided to the FDIC pursuant to 360.9(d)(3); and
(D)the dollar costs and time burdens associated with information systems acquisition, modification and maintenance that respondents will need in order to respond to the information requirements. Items A, B, C, and D are reflected, to some extent, as on-going burdens and costs; Item D represents primarily implementation or “start-up” burdens and costs. As discussed below, the FDIC has clarified its burden estimates in order to distinguish on-going costs and burdens from implementation or start-up costs and to provide additional detail concerning the FDIC's calculations. *Costs estimated in the proposed rule:* Compliance with the requirements of the proposed rule would have required *Covered Institutions* to implement functionality to post provisional holds, remove provisional holds, post debit and credit transactions, post additional holds and provide customer data in a standard format reconciled to supporting subsidiary systems. These requirements also were required to be supported by policies and procedures as well as notification of individuals responsible for the systems. Further, the requirements involved on-going costs for testing and general maintenance and upkeep of the functionality. Estimates of both initial implementation and on-going costs were provided. In the proposed rule implementation costs were estimated to vary widely among the *Covered Institutions* due to considerable differences in the complexity and scope of the deposit operations across *Covered Institutions.* Some *Covered Institutions* only slightly exceeded the 250,000 deposit account threshold while several institutions had over 20 million deposit accounts. In addition, some *Covered Institutions* —most notably the largest-have proprietary deposits systems likely requiring an in-house, custom solution for the proposed requirements while most—generally the small-to-mid-sized ones—purchase deposit software from a vendor or use a servicer for deposit processing. Deposit software vendors and servicers were expected to incorporate the proposed requirements into their products or services to be available for their clients. In these cases estimated implementation costs were greatly reduced. The analysis assumed 100 of the 159 *Covered Institutions,* or 63 percent, would have reduced implementation costs due to the use of software or services from a vendor. The cost estimates used in the proposed rule were based on comments from the 2005 and 2006 ANPRs that provided some indication of implementation and on-going costs. Further, during November 2007 the FDIC had conversations with several *Covered Institutions* and deposit software vendors, which also assisted in formulating these cost estimates. For *Covered Institutions* with proprietary deposit systems implementation costs were estimated to vary considerably. The costs for the least complex of these institutions were estimated to range between $250,000 and $350,000. 41 For super-regional organizations implementation costs were estimated to be between $2 million and $4 million. 42 The costs for the largest, most complex *Covered Institutions* were estimated to be several times that of the super-regional organizations. For *Covered Institutions* using software or servicing provided by a vendor implementation costs were estimated to be $13,000 to $20,000 per institution. These costs primarily were due to installation of software received from the vendor. 41 Compliance with the proposed requirements would require staff time. The analysis assumed an hourly cost of $160 for Covered Institutions. 42 The comment letter provided by the American Bankers Association dated March 13, 2007 in response to the 2006 ANPR indicated cost estimates provided by members ranged from $2 million to $6 million per institution for implementation (page 3). Using this methodology overall industry implementation costs were estimated to range between $50 million and $100 million. The best estimate of implementation costs is the mid-point of this range, or $75 million. In reviewing implementation costs as part of the comments received from previous ANPRs the FDIC viewed them relative to a one basis point assessment against deposits. In this context the estimated implementation costs ranged between 11 and 21 percent of a one basis point assessment against deposits of *Covered Institutions.* The mid-point cost estimate would have been 16 percent. On-going costs for testing, maintenance and other periodic items were estimated to range between $6,000 and $13,000 for those *Covered Institutions* using software or servicing provided by a vendor. For super-regional organizations on-going costs were estimated to be between $150,000 and $250,000. The largest, most complex *Covered Institution* was estimated to have on-going costs as high as $500,000 per year. Overall, on-going industry cost estimates ranged from $4 million to $6.5 million, or 0.8 to 1.4 percent of a one basis point assessment against the deposits of *Covered Institutions.* *Comments:* Several commenters provided estimates for implementation. These cost estimates are discussed in the preamble to the final rule. In general, the implementation cost estimates provided by commenters were consistent with the assumptions used in the proposed rule. The largest, most complex depository institution estimated implementation costs to be $8 million to $10 million, within the range of the estimate for this institution used in the calculations for the proposed rule. *Updated cost estimates:* The requirements of the final rule effectively are identical to the proposed rule. Further, there was considerable consistency between the cost comments provided from the proposed rule and the assumptions used by the FDIC to estimate the costs of the proposed rule. Therefore, the FDIC has not changed its estimates regarding implementation or on-going costs. When the proposed rule was issued 159 depository institutions were estimated to meet the criteria of a *Covered Institution.* This estimate was based on Call and Thrift Financial Report data as of June 2007. Since this reporting date eight institutions included in these 159 no longer exist due to a merger or acquisition. For commercial banks the number of deposit accounts is reported only once a year in June. Based on analysis from prior years, the number of institutions potentially covered by the criteria has been about 160. While the number of potentially covered institutions is reduced each year due to merger and acquisition activity, it also has increased as new institutions grow in size to meet the criteria. In this regard, for the purposes of this cost analysis, the FDIC is assuming that since June 2007 an additional eight depository institutions (which it is unable to identify at this point) have met the requirements of a *Covered Institution.* Therefore, the FDIC is still basing its cost estimate on 159 *Covered Institutions.* *OMB Number:* New collection. *Frequency of Response:* On Occasion. *Affected Public:* Insured depository institutions having at least $2 billion in domestic deposits and either at least:
(i)250,000 deposit accounts; or
(ii)$20 billion in total assets. *Estimated Number of Respondents:* 159. *On-Going Burden Hours and Costs:* *Estimated Time per Response:* 157 hours to 255.5 hours. These hours are calculated as follows: $4 million low-end, annualized, over-all industry estimated costs for on-going burden ÷ $160 per hour salary ÷ 159 respondents = 157 hours; and $6.5 million high-end, annualized, over-all industry estimated costs for on-going burden ÷ $160 per hour salary ÷ 159 respondents = 255.5 hours. *Estimated Total Annual Burden:* 25,000 hours to 40,625 hours. These hours are calculated as follows: 157 hours × 159 respondents = 25,000 hours at a minimum; and 255.5 hours × 159 respondents = 40,624.5 hours at a maximum. On-going costs for testing, maintenance and other periodic items are estimated to range between $6,000 and $13,000 for those *Covered Institutions* using software or servicing provided by a vendor. For super-regional organizations on-going costs are estimated to be between $150,000 and $250,000. The largest, most complex *Covered Institution* was estimated to have on-going costs as high as $500,000 per year. Overall, on-going industry cost estimates ranged from $4 million to $6.5 million. Placed in context, this is 0.8 to 1.4 percent of a one basis point assessment against the deposits of *Covered Institutions.* This analysis assumes a cost of $160 per hour for *Covered Institutions,* as suggested by *Covered Institutions* and vendors. Implementation Burden Hours and Costs—Capital Start-Up Costs *Estimated Time per Individual Response:* 80 hours to 75,000 hours per respondent. With regard to the one-time burden of adopting mechanisms required to facilitate provisional holds and standard data sets, the FDIC estimates a range from 80 hours for the smallest *Covered Institutions* with the least expensive systems, to 75,000 hours for the largest *Covered Institutions* with the most expensive systems. As discussed elsewhere, there is a broad range in the complexity and size among *Covered Institutions,* with the smallest having $2.5 billion in total assets and the largest having over $1.3 trillion in total assets. The FDIC estimated the range of hours per institution as follows: $13,000 overall implementation cost for the smallest, least expensive programs using vendor-provided software ÷ $160 per hour salary = 80 hours; and $12,000,000 overall implementation for the most complex, expensive programs using proprietary software ÷ $160 per hour salary = 75,000 hours. The FDIC considered this range of hours in estimating the average response time shown below. *Estimated Time per Average Response:* 1,965 hours to 3,931 hours. The FDIC calculated the average, start-up cost of acquiring software/hardware for the industry as a whole (i.e., all *Covered Institutions* ) based upon the cost estimates provided by *Covered Institutions* , vendors and servicers with a low end of $50,000,000 and a high-end of $100,000,000. The calculations are as follows: $50,000,000 ÷ $160 per hour salary ÷ 159 Covered Institutions = 1,965 hours; and $100,000,000 ÷ $160 per hour salary ÷ 159 Covered Institutions = 3,931 hours. *Estimated Total Annual Burden:* 312,500 hours to 625,000 hours. Minimum hours calculated as: 1,965 hours × 159 respondents = 312,435 hours; maximum hours calculated as: 3,931 hours × 159 respondents = 625,029 hours. *Estimated Total Annual Burden—Annualized:* 104,200 hours to 208,350 hours. The FDIC averaged over the three-year collection period the burden of start-up costs associated with the cost of acquiring software/hardware for the industry as a whole (i.e., all *Covered Institutions* ). The calculations are as follows: 312,500 hours ÷ 3 = 104,167 hours; and 625,000 hours ÷ 3 = 208,333 hours. *Comment Request:* The FDIC has an ongoing interest in public comments on its collections of information, including comments on:
(a)Whether the collection of information is necessary for the proper performance of the Agencies' functions, including whether the information has practical utility;
(b)the accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility, and clarity of the information to be collected;
(d)ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e)estimates of capital or start up costs and costs of operation, maintenance, and purchase of services to provide information. Comments may be submitted to the FDIC by any of the following methods: By mail to the Executive Secretary, Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429; by FAX at
(202)898-8788; or by e-mail to *comments@fdic.gov.* All comments should refer to “Large Bank Deposit Insurance Modernization.” Copies of comments may also be submitted to the OMB desk officer for the FDIC, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503. VIII. Regulatory Flexibility Act Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), the FDIC certifies that the final rule will not have a significant economic impact on a substantial number of small entities, within the meaning of those terms as used in the RFA. The final rule requires the largest insured depository institutions to adopt mechanisms that would, in the event of the institution's failure:
(1)Provide the FDIC with standard deposit account and customer information; and
(2)allow the placement and release of holds on liability accounts, including deposits. The final rule applies only to *Covered Institutions* —defined in the final rule as insured depository institutions having at least $2 billion in domestic deposits and either:
(1)More than 250,000 deposit accounts; or
(2)total assets over $20 billion, regardless of the number of deposit accounts. There are no small banking organizations that come within the definition of a *Covered Institution.* IX. The Treasury and General Government Appropriations Act, 1999—Assessment of Federal Regulations and Policies on Families The FDIC has determined that the final rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 2681). List of Subjects in 12 CFR Part 360 Banks, banking, savings associations. For the reasons stated above, the Board of Directors of the Federal Deposit Insurance Corporation hereby amends part 360 of title 12 of the Code of Federal Regulations as follows: PART 360—RESOLUTION AND RECEIVERSHIP RULES 1. The authority citation for part 360 continues to read as follows: Authority: 12 U.S.C. 1819(a) Tenth, 1821(d)(1), 1821(d)(10)(c), 1821(d)(11), 1821(e)(1), 1821(e)(8)(D)(i), 1823(c)(4), 1823(e)(2); Sec. 401(h), Pub. L. 101-73, 103 Stat. 357. 2. Add new § 360.9 to read as follows: § 360.9. Large-bank deposit insurance determination modernization.
(a)*Purpose and scope.* This section is intended to allow the deposit and other operations of a large insured depository institution (defined as a “Covered Institution”) to continue functioning on the day following failure. It also is intended to permit the FDIC to fulfill its legal mandates regarding the resolution of failed insured institutions to provide liquidity to depositors promptly, enhance market discipline, ensure equitable treatment of depositors at different institutions and reduce the FDIC's costs by preserving the franchise value of a failed institution.
(b)*Definitions.* —(1) A *covered Institution* means an insured depository institution which, based on items as defined in Reports of Income and Condition or Thrift Financial Reports filed with the applicable federal regulator, has at least $2 billion in deposits and at least either:
(i)250,000 deposit accounts; or
(ii)$20 billion in total assets, regardless of the number of deposit accounts.
(2)*Deposits, number of deposit accounts and total assets* are as defined in the instructions for the filing of Reports of Income and Condition and Thrift Financial Reports, as applicable to the insured depository institution for determining whether it qualifies as a covered institution. A foreign deposit means an uninsured deposit liability maintained in a foreign branch of an insured depository institution. An *international banking facility deposit* is as defined by the Board of Governors of the Federal Reserve System in Regulation D (12 CFR § 204.8(a)(2)). A *demand deposit account, NOW account, money market deposit account, savings deposit account and time deposit account* are as defined in the instructions for the filing of Reports of Income and Condition and Thrift Financial Reports.
(3)*Sweep account arrangements* consist of a deposit account linked to an interest-bearing investment vehicle whereby funds are swept to and from the deposit account according to prearranged rules, usually on a daily basis, where the sweep investment vehicle is not a deposit and is reflected on the books and records of the *Covered Institution.*
(4)*Automated credit account arrangements* consist of a deposit account into which funds are automatically credited from an interest-bearing investment vehicle where the funds in the interest-bearing investment vehicle were not invested by prearranged rules.
(5)*Non-covered institution* means an insured depository institution that does not meet the definition of a covered institution.
(6)*Provisional hold* means an effective restriction on access to some or all of a deposit or other liability account after the failure of an insured depository institution.
(c)*Posting and removing provisional holds.* —(1) A covered institution shall have in place an automated process for implementing a provisional hold on deposit accounts, foreign deposit accounts and sweep and automated credit account arrangements immediately following the determination of the close-of-business account balances, as defined in § 360.8(b)(3), at the failed covered institution.
(2)The system requirements under paragraph (c)(1) must have the capability of placing the provisional holds prescribed under that provision no later than 9 a.m. local time the day following the FDIC cutoff point, as defined in § 360.8(b)(1).
(3)Pursuant to instructions to be provided by the FDIC, a covered institution must notify the FDIC of the person(s) responsible for producing the standard data download and administering provisional holds, both while the functionality is being constructed and on an on-going basis.
(4)For deposit accounts held in domestic offices of an insured depository institution, the provisional hold algorithm must be designed to exempt accounts below a specific account balance threshold, as determined by the FDIC. The account balance threshold could be any amount, including zero. For accounts above the account balance threshold determined by the FDIC, the algorithm must be designed to calculate and place a hold equal to the dollar amount of funds in excess of the account balance threshold multiplied by the provisional hold percentage determined by the FDIC. The provisional hold percentage could be any amount, from zero to one hundred percent. The account balance threshold as well as the provisional hold percentage could vary for the following four categories, as the covered institution customarily defines consumer accounts:
(i)Consumer demand deposit, NOW and money market deposit accounts;
(ii)Other consumer deposit accounts (time deposit and savings accounts, excluding NOW and money market deposit accounts);
(iii)Non-consumer demand deposit, NOW and money market deposit accounts; and
(iv)Other non-consumer deposit accounts (time deposit and savings accounts, excluding NOW and money market deposit accounts).
(5)For deposit accounts held in foreign offices of an insured depository institution, other than those connected to a sweep or automated credit arrangement, the provisional hold algorithm will apply a provisional hold percentage to the entire account balance. For deposit accounts held in foreign offices the provisional hold percentage may differ from that applied to deposit accounts. Also, the provisional hold percentage would not vary by account category (i.e., consumer versus non-consumer and transaction versus non-transaction) as is the case with deposit accounts.
(6)For international banking facility deposits, other than those connected to a sweep or automated credit arrangements, the provisional hold algorithm will apply a provisional hold percentage to the entire account balance. For IBF deposits the provisional hold percentage may differ from that applied to deposit or foreign deposit accounts. Also, the provisional hold percentage would not vary by account category (i.e., consumer versus non-consumer, and transaction versus non-transaction) as is the case with deposit accounts.
(7)For the interest-bearing investment vehicle of a sweep arrangement, the provisional hold algorithm must be designed with the capability to place a provisional hold on the interest-bearing investment vehicle with possibly a different account balance threshold and a different hold percentage according to the type of interest-bearing investment vehicle.
(8)For the interest-bearing investment vehicle of an automated credit account arrangement, the provisional hold algorithm must be designed with the capability to place a provisional hold on the interest-bearing investment vehicle with possibly a different account balance threshold and a different hold percentage according to the type of interest-bearing investment vehicle.
(9)A covered institution may submit a request to the FDIC, using the address indicated in § 360.9(g): to develop a provisional hold process involving memo holds or alternative account mechanisms; or to exempt from the provisional hold requirements of this section those account systems servicing a relatively small number of accounts where the manual application of provisional holds is feasible. Such requests may be in the form of a letter and must include a justification for the request and address the relative effectiveness of the alternative for posting provisional holds in the event of failure. The FDIC will consider such requests on a case-by-case basis in light of the objectives of this section.
(10)The automated process for provisional holds required by paragraph (c)(1) of this section must include the capability of removing provisional holds in batch mode and, during the same processing cycle, applying debits, credits or additional holds on the deposit or other accounts from which the provisional holds were removed, as determined by the FDIC. The FDIC will provide files listing the accounts subject to: removal of provisional holds or additional holds (file format as specified in Appendix A); application of debits or credits (file format as specified in Appendix B); and application of additional holds (file format as specified in Appendix A). In addition to the batch process used to remove provisional holds, the Covered Institution is required to have in place a mechanism for manual removal of provisional holds on a case-by-case basis.
(d)*Providing a standard data format for generating deposit account and customer data.* —(1) A covered institution must have in place practices and procedures for providing the FDIC in a standard format upon the close of any day's business with required depositor and customer data for all deposit accounts held in domestic and foreign offices and interest-bearing investment accounts connected with sweep and automated credit arrangements. Such standard data files are to be created through a mapping of pre-existing data elements and internal institution codes into standard data formats. Deposit account and customer data provided must be current as of the close of business for that day.
(2)The requirements of paragraph (d)(1) of this section shall be provided in five separate files, as indicated in the Appendices C through G to this Part 360.
(3)Upon request by the FDIC, a covered institution must submit the data required by paragraph (d)(1) of this section to the FDIC, in a manner prescribed by the FDIC.
(4)In providing the data required under paragraph (d)(1) of this section to the FDIC, the *Covered Institution* must be able to reconcile the total deposit balances and the number of deposit accounts to the institution's subsidiary system control totals.
(e)*Implementation requirements.* —(1) A covered institution must comply with the requirements of this section no later than February 18, 2010.
(2)An insured depository institution not within the definition of a covered institution on the effective date of this section must comply with the requirements of this section no later than eighteen months following the end of the second calendar quarter for which it meets the criteria for a covered institution.
(3)Upon the merger of two or more non-covered institutions, if the resulting institution meets the criteria for a covered institution, that covered institution must comply with the requirements of this section no later than eighteen months after the effective date of the merger.
(4)Upon the merger of two or more covered institutions, the merged institution must comply with the requirements of this section within eighteen months following the effective date of the merger. This provision, however, does not supplant any preexisting implementation date requirement, in place prior to the date of the merger, for the individual covered institution(s) involved in the merger.
(5)Upon the merger of one or more covered institutions with one or more non-covered institutions, the merged institution(s) must comply with the requirements of this section within eighteen months following the effective date of the merger. This provision, however, does not supplant any preexisting implementation date requirement for the individual covered institution(s) involved in the merger.
(6)Notwithstanding the general requirements of this paragraph (e), on a case-by-case basis, the FDIC may accelerate, upon notice, the implementation timeframe of all or part of the requirements of this section for a covered institution that: Has a composite rating of 3, 4, or 5 under the Uniform Financial Institution's Rating System, or in the case of an insured branch of a foreign bank, an equivalent rating; is undercapitalized, as defined under the prompt corrective action provisions of 12 CFR part 325; or is determined by the appropriate Federal banking agency or the FDIC in consultation with the appropriate Federal banking agency to be experiencing a significant deterioration of capital or significant funding difficulties or liquidity stress, notwithstanding the composite rating of the institution by its appropriate Federal banking agency in its most recent report of examination. In implementing this paragraph (e)(6), the FDIC must consult with the covered institution's primary federal regulator and consider the: Complexity of the institution's deposit systems and operations, extent of the institution's asset quality difficulties, volatility of the institution's funding sources, expected near-term changes in the institution's capital levels, and other relevant factors appropriate for the FDIC to consider in its roles as insurer and possible receiver of the institution.
(7)Notwithstanding the general requirements of this paragraph (e), a covered institution may request, by letter, that the FDIC extend the deadline for complying with the requirements of this section. A request for such an extension is subject to the FDIC's rules of general applicability under 12 CFR. 303.251.
(f)A covered institution may apply to the FDIC for an exemption from the requirements of this § 360.9 if it has a high concentration of deposits incidental to credit card operations. The FDIC will consider such applications on a case-by-case basis in light of the objectives of this section.
(g)Requests for exemptions from the requirements of this section, for flexibility in the use of provisional holds or for extensions of the implementation requirements of this section and the submission of point-of-contact information should be submitted in writing to: Office of the Director, Division of Resolutions and Receiverships, Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429-0002.
(h)*Testing requirements.* Covered institutions must provide appropriate assistance to the FDIC in its testing of the systems required by this section. The FDIC will provide testing details to covered institutions through the issuance of subsequent procedures and/or guidelines. 3. Add new Appendices A through H to Part 360 to read as follows: Appendix A to Part 360—Non-Monetary Transaction File Structure This is the structure of the data file the FDIC will provide to remove or add a FDIC hold for an individual account or sub-account. The file will be in a tab- or pipe-delimited ASCII format and provided through FDICconnect or Direct Connect. The file will be encrypted using an FDIC-supplied algorithm. Field name Field description Comments Format 1. DP_Acct_Identifier Account Identifier The primary field used to identify the account. This field may be the Account Number. The Account Identifier may be composed of more than one physical data element. If multiple fields are required to identify the account, data should be placed in separate fields and the FDIC instructed how these fields are combined to uniquely identify the account Character (25). 2. DP_Acct_Identifier—2 Account Identifier—2 Character (25). If necessary, the second element used to identify the account 3. DP_Acct_Identifier—3 Account Identifier—3 Character (25). If necessary, the third element used to identify the account 4. DP_Acct_Identifier—4 Account Identifier—4 Character (25). If necessary, the fourth element used to identify the account 5. DP _Acct_Identifier—5 Account Identifier—5 Character (25). If necessary, the fifth element used to identify the account 6. DP_Sub_Acct_Identifier Sub-Account Identifier If available, the Sub-Account identifier for the account. The Sub-Account Identifier may identify separate deposits tied to this account where there are different processing parameters such as interest rates or maturity dates, but all owners are the same Character (25). 7. PH_Hold_Action Hold Action The requested hold action to be taken for this account or sub-account. Character (1). Possible values are: • R = Remove • A = Add 8. PH_Hold_Amt Hold Amount Decimal (14,2). Dollar amount of the FDIC hold to be removed or added 9. PH_Hold_Desc Hold Description Character (225). FDIC hold to be removed or added Appendix B to Part 360—Debit/Credit File Structure This is the structure of the data file the FDIC will provide to apply debits and credits to an individual account or sub-account after the removal of FDIC holds. The file will be in a tab- or pipe-delimited ASCII format and provided through FDICconnect or Direct Connect. The file will be encrypted using an FDIC-supplied algorithm. Field name Field description Comments Format 1. DP_Acct_Identifier Account Identifier The primary field used to identify the account. This field may the Account Number. The Account Identifier may be composed of more than one physical data element. If multiple fields are required to identify the account, data should be placed in separate fields and the FDIC instructed how these fields are combined to uniquely identify the account Character (25). 2. DP _Acct_Identifier—2 Account Identifier—2 Character (25). If necessary, the second element used to identify the account 3. DP_Acct_Identifier—3 Account Identifier—3 Character (25). If necessary, the third element used to identify the account 4. DP _Acct_Identifier—4 Account Identifier—4 Character (25). If necessary, the fourth element used to identify the account 5. DP _Acct_Identifier—5 Account Identifier—5 Character (25). If necessary, the fifth element used to identify the account 6. DP_Sub_Acct_Identifier Sub-Account Identifier If available, the sub-account identifier for the account. The Sub-Account Identifier may identify separate deposits tied to this account where there are different processing parameters such as interest rates or maturity dates, but all owners are the same Character (25). 7. DC _Debit_Amt Debit Amount Decimal (14,2). Dollar amount of the debit to be applied to the account or sub-account 8. DC_Credit_Amt Credit Amount Decimal (14,2). Dollar amount of the credit to be applied to the account or sub-account 9. DC_Transaction_Desc Debit/Credit Description Character (225). FDIC message associated with the debit or credit transaction Appendix C to Part 360—Deposit File Structure This is the structure for the data file to provide deposit data to the FDIC. If data or information are not maintained or do not apply, a null value in the appropriate field should be indicated. The file will be in a tab-or pipe-delimited ASCII format. Each file name will contain the institution's FDIC Certificate Number, an indication that it is a deposit file type and the date of the extract. The files will be encrypted using an FDIC-supplied algorithm. The FDIC will transmit to the covered institution the encryption algorithm over FDIC *connect.* The total deposit balances and the number of deposit accounts in each deposit file must be reconciled to the subsidiary system control totals. The FDIC intends to fully utilize a covered institution's understanding of its customers and the data maintained around deposit accounts. Should additional information be available to the covered institution to help the FDIC more quickly complete its insurance determination process, it may add this information to the end of this data file. Should additional data elements be provided, a complete data dictionary for these elements must be supplied along with a description of how this information could be best used to establish account ownership or insurance category. The deposit data elements provide information specific to deposit account balances and account data. The sequencing of these elements, their physical data structures and the field data format and field length must be provided to the FDIC along with the data structures identified below. A header record will also be required at the beginning of this file. This record will contain the number of accounts to be included in this file, the maximum number of characters contained in largest account title field maintained within the deposit file and the maximum number of characters contained in largest address field maintained within the deposit file. Note: Each record must contain the account title/name and current account statement mailing address. Fields 17-33 relate to the account name and address information. Some systems provide for separate fields for account title/name, street address, city, state, ZIP, and country, all of which are parsed out. Others systems may simply provide multiple lines for name, street address, city, state, ZIP, with no distinction. Populate fields that best fit the system's data, either fields 17-27 or fields 28-33. Field name Field description Comments Format 1. DP_Acct_Identifier Account Identifier The primary field used to identify the account. This field may be the Account Number. The Account Identifier may be composed of more than one physical data element. If multiple fields are required to identify the account, data should be placed in separate fields and the FDIC instructed how these fields are combined to uniquely identify the account. Character (25). 2. DP_Acct_Identifier—2 Account Identifier—2 If necessary, the second element used to identify the account. Character (25). 3. DP_Acct_Identifier—3 Account Identifier—3 If necessary, the third element used to identify the account. Character (25). 4. DP_Acct_Identifier—4 Account Identifier—4 If necessary, the fourth element used to identify the account. Character (25). 5. DP_Acct_Identifier—5 Account Identifier—5 If necessary, the fifth element used to identify the account. Character (25). 6. DP_Sub_Acct_Identifier Sub-Account Identifier If available, the sub-account identifier for the account. The Sub-Account Identifier may identify separate deposits tied to this account where there are different processing parameters such as interest rates or maturity dates, but all owners are the same. Character (25). 7. DP_Bank_No Bank Number The bank number assigned to the deposit account. Character (15). 8. DP_Tax_ID Tax ID The tax identification number maintained on the account. For consumer accounts, typically, this would be the primary account holder's social security number (“SSN”). For business accounts it would be the federal tax identification number (“TIN”). Hyphens are optional in this field. Character (15). 9. DP_Tax_Code Tax ID Code The type of the tax identification number. Possible values are: • S = Social Security Number. • T = Federal Tax Identification Number. • O = Other. Generally deposit systems have flags or indicators set to indicate whether the number is an SSN or TIN. Character (1). 10. DP_Branch Branch Number The branch or office associated with the account. In lieu of a branch number this field may represent a specialty department or division. Character (15). 11. DP_Cost_Center Cost Center or G/L Code The identifier used for organization reporting or ownership of the account. Insert null value if the cost center is not carried in the deposit record. This field ties to the general ledger accounts. Character (20). 12. DP_Dep_Type Deposit Type Indicator The type of deposit by office location. Possible values are: • D = Deposit (Domestic). • F = Foreign Deposit. A deposit—also called a “domestic deposit”—includes only deposit liabilities payable in the United States, typically those deposits maintained in a domestic office of an insured depository institution, as defined in section 3(l) of the Federal Deposit Insurance Act (12 U.S.C. 1813(l)). A foreign deposit is a deposit liability in a foreign branch payable solely at a foreign branch or branches. Character (1). 13. DP_Currency_Type Currency Type The ISO 4217 currency code. Character (3). 14. DP_Ownership_Ind Customer Ownership Indicator The type of ownership at the account level. Possible values are: • S = Single. • J = Joint Account. • P = Partnership account. • C = Corporation. • B = Brokered Deposits. • I = IRA Accounts. • U = Unincorporated Association. • R = Revocable Trust. • IR = Irrevocable Trust. • G = Government Accounts. • E = Employee Benefit Plan Accounts. • O = Other. *Single:* Accounts owned by an individual and those accounts held as Minor Accounts, Estate Accounts, Non-Minor Custodian/Guardian Accounts, Attorney in Fact Accounts and Sole Proprietorships *Joint Account:* Accounts owned by two or more individuals, but does not include the ownership of a Payable on Death Account or Trust Account. *Partnership Account:* Accounts owned by a Partnership *Corporation:* Accounts owned by a Corporation (e.g. Inc., L.L.C., or P.C.). *Brokered Deposits:* Accounts placed by a deposit broker who acts as an intermediary for the actual owner or sub-broker. *IRA Accounts:* Accounts for which the owner has the right to direct how the funds are invested including Keoghs and other Self-Directed Retirement Accounts. Character (2). *Unincorporated Association:* An account owned by an association of two or more persons formed for some religious, educational, charitable, social or other non-commercial purpose. *Revocable Trusts:* Including PODs and formal revocable trusts (e.g. Living Trusts, Intervivos Trusts or Family Trusts) . *Irrevocable Trusts:* Accounts held by a trust established by statute or written trust in which the grantor relinquishes all power to revoke the trust . *Government Accounts:* Accounts owned by a government entity (e.g. City, State, County or Federal government entities and their sub-divisions) . *Employee Benefit Plan:* Accounts established by the administrator of an Employee Benefit Plan including defined contribution, defined benefit and employee welfare plans . *Other Accounts:* Accounts owned by an entity not described above . 15. DP_Prod_Cat Product Category The product classification. Possible values are: Product Category is sometimes referred to as “application type” or “system type”. Character (3). • DDA = Non-Interest Bearing Checking accounts. • NOW = Interest Bearing Checking accounts. • MMA = Money Market Deposit Accounts. • SAV = Other savings accounts. • CDS = Time Deposit accounts and Certificate of Deposit accounts, including any accounts with specified maturity dates that may or may not be renewable. 16. DP_Stat_Code Status Code Status or condition of the account. Possible values are: Character (1). • O = Open. • D = Dormant. • I = Inactive. • E = Escheatment. • A = Abandoned. • C = Closing. • R = Restricted/Frozen/Blocked. 17. DP_Acct_Title_1 Account Title Line 1 Account styling or titling of the account. These data will be used to identify the owners and beneficiaries of the account. Character (100). 18. DP_Acct_Title_2 Account Title Line 2 If available, the second account title line. Character (100). 19. DP_Acct_Title_3 Account Title Line 3 If available, the third account title line. Character (100). 20. DP_Acct_Title_4 Account Title Line 4 If available, the fourth account title line. Character (100). 21. DP_Street_Add_Ln_1 Street Address Line 1 The current account statement mailing address of record. Character (100). 22. DP_Street_Add_Ln_2 Street Address Line 2 If available, the second mailing address line. Character (100). 23. DP_Street_Add_Ln_3 Street Address Line 3 If available, the third mailing address line. Character (100). 24. DP_City City The city associated with the mailing address. Character (50). 25. DP_State State The state abbreviation associated with the mailing address. Use a two-character state code (official U.S. Postal Service abbreviations). Character (2). 26. DP_ZIP ZIP The ZIP + 4 code associated with the mailing address. If the “+4” code is not available provide only the 5-digit ZIP code. Hyphens are optional in this field. Character (10). 27. DP_Country Country The country associated with the mailing address. Provide the country name or the standard IRS country code. Character (10). 28. DP_NA_Line_1 Name/Address Line 1 Alternate name/address format for the current account statement mailing address of record, first line. Fields 28-33 are to be used if address data are not parsed to populate Fields 17-27. Character (100). 29. DP_NA_Line_2 Name/Address Line 2 Alternate name/address format, second line. Character (100). 30. DP_NA_Line_3 Name/Address Line 3 Alternate name/address format, third line. Character (100). 31. DP_NA_Line_4 Name/Address Line 4 Alternate name/address format, fourth line. Character (100). 32. DP_NA_Line_5 Name/Address Line 5 Alternate name/address format, fifth line. Character (100). 33. DP_NA_Line_6 Name/Address Line 6 Alternate name/address format, sixth line. Character (100). 34. DP_Cur_Bal Current Balance The current balance in the account at the end of business on the effective date of this file. This balance should not be reduced by float or holds. For CDs and time deposits, the balance should reflect the principal balance plus any interest paid and available for withdrawal not already included in the principal (do not include accrued interest). The total of all current balances in this file should reconcile to the total deposit trial balance totals or other summary reconciliation of deposits performed by the institution. Decimal (14,2). 35. DP_Int_Rate Interest Rate The current interest rate in effect for interest bearing accounts. Interest rate should be expressed in decimal format, i.e., 2.0% should be represented as 0.020000000. Decimal (10,9). 36. DP_Acc_Int Accrued Interest The amount of interest that has been earned but not yet paid to the account as of the date of the file. Decimal (14,2). 37. DP_Lst_Int_Pd Date Last Interest Paid The date through which interest was last paid to the account. Date (YYYYMMDD). 38. DP_Lst_Deposit Date Last Deposit The date of the last deposit transaction posted to the account. For example, a deposit that included checks and/or cash. Date (YYYYMMDD). 39. DP_Int_Term_No Interest Term Number The number of months in the current interest term. Decimal (3,0). 40. DP_Nxt_Mat Date of Next Maturity For CD and time deposit accounts, the next date the account is to mature. For non-renewing CDs that have matured and are waiting to be redeemed this date may be in the past. Date (YYYYMMDD). 41. DP_Open_DT Account Open Date The date the account was opened. If the account had previously been closed and re-opened, this should reflect the most recent re-opened date. Date (YYYYMMDD). 42. DP_Sweep_Code Sweep Code Character (1). Indicates if the account is a sweep account. Possible values are: • Y = Yes. • N = No. 43. DP_Hold_To_Post Full Hold on the account: Indicator if all postings to this account are restricted. Possible values are: Character (1). • Y = Yes. • N = No. 44. DP_Issue_Val_Amt Issued Value Amount The value of the current CD when issued. For CDs only. Decimal (14,2). 45. DP_Int_CD_Cde Type of Interest for CD For CDs only. Character (1). Possible values are: • C = Rate Change Allowed. • N = Rate Change Not Allowed. • R = Change Rate to Default at Renewal. • T = Rate Change Allowed Only During the Term. 46. DP_IRA_Cde IRA Code The type of IRA. Possible values are: • C = Corporate Retirement • E = Educational IRA. • I = IRA Account. • K = Keogh Account. • R = Roth IRA Account. • S = SEP Account. • T = Transitional Roth IRA. • V = Versa Account. • H = Health Savings Account. Optional code field to be used if available to help further identify the types of IRA accounts. Character (1). 47. DP_Deposit_Class_Type Deposit Class Type The deposit class. Possible values are: The institution may also use more or fewer class types. Character (10). • RTL = Retail. • FED = Federal government. • STATE = State government. • COMM = Commercial. • CORP = Corporate. • BANK = Bank Owned. • DUE TO = Other Banks. 48. DP_Product_Class_Cde Deposit Class Codes The deposit class codes. Possible values are: RTL • 1 = Payable on Death. • 2 = Individual. • 3 = Living Trust—Intervivos or Family. • 4 = Irrevocable Trust (includes Educational IRAs). • 5 = Estate. • 6 = Attorney in Fact. • 7 = Minor—(includes all variations of Uniform Gifts to Minor Accounts). • 8 = Bankruptcy Personal. • 9 = Pre-Need Burial. • 10 = Escrow. • 11 = Representative Payee/Beneficiary. • 12 = Sole Proprietorship. • 13 = Joint. • 14 = Non-Minor Custodian/Guardian. • 15 = Other Retail. These Product Class codes are used in conjunction with the Deposit Class Types in field 51. This field is to be used in concert with fields 12 and 13 identified above to enable the financial institution to capture more detailed information concerning account types. It is the intent of the FDIC to have the financial institution map its detailed account types to the codes identified in this field. The institution may also use additional codes, but in this event the institution must supply the detailed description and code value for each additional code used. If no additional account product type detail is available then this field should be left blank. Character (2). FED • 16 = FHA. • 17 = Federal Government. STATE • 18 = City. • 19 = State. • 20 = County, Clerk of Court. • 21 = Other State. COMMERCIAL • 22 = Business Escrow. • 23 = Bankruptcy. • 24 = Club. • 25 = Church. • 26 = Unincorporated Association. • 27 = Unincorporated Non-Profit. • • 28 = Other Commercial. CORPORATION • 29 = Business Trust. • 30 = Business Agent. • 31 = Business Guardian. • 32 = Incorporated Association. • 33 = Incorporated Non-Profit. • 33 = Incorporated Non-Profit. • 34 = Corporation. • 35 = Corporate Partnership. • 36 = Corporate Partnership Trust. • 37 = Corporate Agent. • 38 = Corporate Guardian. • 39 = Pre-Need Funeral Trust. • 40 = Limited Liability Incorporation. • 41 = LLC partnership. • 42 = Lawyer Trust. • 43 = Realtor Trust. • 44 = Other Corporation. BANK • 45 = Certified & Official Checks, Money Orders, Loan Disbursements Checks, and Expense Checks. • 46 = ATM Settlement. • 47 = Other Bank Owned Accounts. DUE TO (Other Banks) • 48 = Due to U.S. Banks. • 49 = Due to U.S. Branches of Foreign Banks. • 50 = Due to Other Depository Institutions. • 51 = Due to Foreign Banks. • 52 = Due to Foreign Branches of U.S. banks. • 53 = Due to Foreign Governments and Official Institutions. Appendix D to Part 360—Sweep/Automated Credit Account File Structure This is the structure of the data file to provide information to the FDIC on funds residing in investment vehicles linked to each non-closed deposit account or sub-account:
(1)Involved in sweep activity where the sweep investment vehicle is not a deposit and is reflected on the books and records of the covered institution or
(2)which accepts automated credits. A single record should be used for each instance where funds affiliated with the deposit account are held in an alternative investment vehicle. For any alternative investment vehicle, a separate account may or may not exist. If an account exists for the investment vehicle, it should be noted in the record. If no account exists, then a null value for the Sweep/Automated Credit Account Identifiers should be provided, but the remainder of the data fields defined below should be populated. For data provided in the Sweep/Automated Credit Account File, the total account balances and the number of accounts must be reconciled to subsidiary system control totals. The file will be in a tab- or pipe-delimited ASCII format. The files will be encrypted using an FDIC-supplied algorithm. The FDIC will transmit the encryption algorithm over FDIC *connect.* Field name Field description Comments Format 1. DP_Acct_Identifier Account Identifier The primary field used to identify the account from which funds are swept or debited. The field may be the Account number. The Account Identifier may be composed of more than one physical data element. If multiple fields are required to identify the account, data should be placed in separate fields and the FDIC instructed how these fields are combined to uniquely identify the account Character (25). 2. DP_Acct_Identifier—2 Account Identifier—2 If necessary, the second element used to identify the account from which funds are swept or debited. Character (25). 3. DP_Acct_Identifier—3 Account Identifier—3 If necessary, the third element used to identify the account from which funds are swept or debited. Character (25). 4. DP_Acct_Identifier—4 Account Identifier—4 If necessary, the fourth element used to identify the account from which funds are swept or debited. Character (25). 5. DP _Acct_Identifier—5 Account Identifier—5 If necessary, the fifth element used to identify the account from which funds are swept or debited. Character (25). 6. DP_Sub_Acct_Identifier Sub-Account Identifier If available, the sub-account identifier for the account. The Sub-Account Identifier may identify separate deposits tied to this account where there are different processing parameters such as interest rates or maturity dates, but all owners are the same Character (25). 7. SW_Acct_Identifier Sweep/Automated Credit Account Identifier The primary field used to identify the account into which funds are swept or credited. This field may be the Account Number. Funds may be swept into an investment vehicle not represented as an account. In this case this field should be a null value The Sweep/Automated Credit Account Identifier may be composed of more than one physical data element. If multiple fields are required to identify the account, data should be placed in separate fields and the FDIC instructed how these fields are combined to uniquely identify the account. Character (25). 8. SW_Acct_Identifier—2 Sweep/Automated Credit Account Identifier—2 If necessary, the second element of the account identifier used to identify the account into which funds are swept or credited. Character (25). 9. SW_Acct_Identifier—3 Sweep/Automated Credit Account Identifier—3 If necessary, the third element of the account identifier used to identify the account into which funds are swept or credited. Character (25). 10. SW_Acct_Identifier—4 Sweep/Automated Credit Account Identifier—4 If necessary, the fourth element of the account identifier used to identify the account into which funds are swept or credited. Character (25). 11. SW _Acct_Identifier—5 Sweep/Automated Credit Account Identifier-5 If necessary, the fifth element of the account identifier used to identify the account into which funds are swept or credited. Character (25). 12. SW_Sub_Acct_Identifier Sweep/Automated Credit Sub-Account Identifier If available, the sub-account identifier for the account Character (25). 13. SW_Type Sweep/Automated Credit Type The investment vehicle. Possible values are: • RE = Repurchase Agreement. • DD = Deposit Held in a Domestic Office. • DF = Deposit Held in a Foreign Office. • IBF = Deposit Held in an International Banking Facility. • AI = Deposit Held in an affiliated depository institution. • FF = Federal Funds. • CP = Commercial Paper. • OT = Other. Character (3). 14. SW_Inv_Amount Fund Balance in Sweep/Automated Credit Investment Vehicle. Dollar amount residing in the investment vehicle. Decimal (14,2). 15. SW_Currency_Type Currency Type The ISO 4217 currency code. Character (3). 16. SW_Hold_Amount FDIC Hold Amount Amount of FDIC hold on funds residing in the investment vehicle. Decimal (14,2). 17. SW_Sweep_Interval Sweep/Investment Frequency The frequency with which the sweep or investment occurs. Possible values are: • D = Daily. • W = Weekly. • BW = Bi-Weekly. • M = Monthly. • BM = Bi-Monthly. • Q = Quarterly. • O = Other. Character (2). Appendix E to Part 360—Hold File Structure This is the structure of the data file to provide information to the FDIC for each legal or collateral hold placed on a deposit account or sub-account. If data or information are not maintained or do not apply, a null value in the appropriate field should be indicated. The file will be in a tab-or pipe-delimited ASCII format. Each file name will contain the institution's FDIC Certificate Number, an indication that it is a hold data file type and the date of the extract. The files will be encrypted using an FDIC-supplied algorithm. The FDIC will transmit the encryption algorithm over FDIC *connect.* Field name Field description Comments Format 1. DP_Acct_Identifier Account Identifier The primary field used to identify the account. This field may be the Account Number. The Account Identifier may be composed of more than one physical data element. If multiple fields are required to identify the account, data should be placed in separate fields and the FDIC instructed how these fields are combined to uniquely identify the account Character (25). 2. DP_Acct_Identifier—2 Account Identifier—2 Character (25). If necessary, the second element used to identify the account 3. DP_Acct_Identifier—3 Account Identifier—3 Character (25). If necessary, the third element used to identify the account 4. DP_Acct_Identifier—4 Account Identifier—4 Character (25). If necessary, the fourth element used to identify the account 5. DP _Acct_Identifier—5 Account Identifier—5 Character (25). If necessary, the fifth element used to identify the account 6. DP_Sub_Acct_Identifier Sub-Account Identifier If available, the sub-account identifier for the account. The Sub-Account Identifier may identify separate deposits tied to this account where there are different processing parameters such as interest rates or maturity dates, but all owners are the same. Character (25). 7. HD_Hold_Amt Hold Amount Decimal (14,2). Dollar amount of the hold 8. HD_Hold_Reason Hold Reason Reason for the hold. Possible values are: Character (2). • LN = Loan Collateral Hold • LG = Court Order Hold • FD = FDIC hold • OT = Other (do not include daily operational type holds) 9. HD_Hold_Desc Hold Description Character (255). Description of the hold available on the system 10. HD_Hold_Start_Dt Hold Start Date The date the hold was initiated. Date (YYYYMMDD). 11. HD_Hold_Exp_Dt Hold Expiration Date The date the hold is to expire. Date (YYYYMMDD) Appendix F to Part 360—Customer File Structure This is the structure of the data file to provide to the FDIC information related to each customer who has an account or sub-account reported in the deposit data or sweep/automated credit account file. If data or information are not maintained or do not apply, a null value in the appropriate field should be indicated. The file will be in a tab-or pipe-delimited ASCII format. Each file name will contain the institution's FDIC Certificate Number, an indication that it is a customer file type and the date of the extract. The files will be encrypted using an FDIC-supplied algorithm. The FDIC will transmit the encryption algorithm over FDIC *connect.* Note: Each record must contain the customer's name and permanent legal address. Fields 4-12 relate to the customer name for individuals only. Fields 13-14 relate to the customer name for entities other than individuals. Some systems provide for separate fields for name, street address, city, state, ZIP, and country, all of which are parsed out. Others systems may simply provide multiple lines for name, street address, city, state, ZIP, with no distinction. In this case, certain name and address data elements must be parsed and provided in the appropriate fields. Field name Field description Comments Format 1. CS_Cust_Identifier Customer Identifier Character (25). The unique field used by the institution to identify the customer 2. CS_Tax_ID Customer Tax ID Number Hyphens are optional in this field Character (11). The tax identification number on record for the customer 3. CS_Tax_Code Customer Tax ID Code Character (1). The type of the tax identification number of the customer. Possible values are: • S = Social Security Number • T = Federal Tax Identification Number • O = Other 4. CS_Name_Line_1 Individual Customer Name Line 1 Character (100). If available, the free-form name narrative of the customer, first line 5. CS_Name_Line_2 Individual Customer Name Line 2 Character (100). If available, the free-form name narrative of the customer, second line. 6. CS_Last_Name Individual Customer Last Name For individuals, the customer's last name. This field is required if the data element is in the institution's records. If necessary, data should be parsed from fields 4 or 5 to obtain this element Character (50). 7. CS_First_Name Individual Customer First Name For individuals, the customer's first name. This field is required if the data element is in the institution's records. If necessary, data should be parsed from fields 4 or 5 to obtain this element Character (50). 8. CS_Middle_Name Individual Customer Middle Name For individuals, the customer's middle name. This field is required if the data element is in the institution's records. If necessary, data should be parsed from fields 4 or 5 to obtain this element Character (50). 9. CS_Suffix Individual Professional Suffix For individuals, the suffix designating customer's academic, professional or honorary status, such as Esq., Ph.D., M.D., and D.D.S. This field is required if the data element is in the institution's records. If necessary, data should be parsed from fields 4 or 5 to obtain this element Character (20). 10. CS_Generation Individual Generational Suffix For individuals, the suffix designating the customer's generational status, such as Jr., Sr. or III. This field is required if the data element is in the institution's records. If necessary, data should be parsed from fields 4 or 5 to obtain this element Character (10). 11. CS_Prefix Individual Customer Prefix For individuals, the prefix of the customer, such as Rev., Dr., Mrs., Mr. or Ms. This field is required if the data element is in the institution's records. If necessary, data should be parsed from fields 4 or 5 to obtain this element Character (10). 12. CS_Birth_Dt Individual Customer Birth Date Date (YYYYMMDD). For individuals, the customer's birth date 13. CS_Ent_Name_Line_1 Entity Name Line 1 Character (100). For entities other than individuals, the free-form name narrative of the customer, first line 14. CS_Ent_Name_Line_2 Entity Name Line 2 Character (100). If available for entities other than individuals, the free-form name narrative of the customer, second line 15. CS_Nar_Addr_Line_1 Customer Address Line 1 Character (100). If available, the free-form permanent legal address narrative for the customer, line one 16. CS_Nar_Addr_Line_2 Customer Address Line 2 Character (100). If available, the free-form permanent legal address narrative of the customer, line two 17. CS_Nar_Addr_Line_3 Customer Address Line 3 Character (100). If available, the free-form permanent legal address narrative of the customer, line three 18. CS_Street_Address_1 Street Address Line 1 The permanent legal address of the customer, line one. This field is required. If necessary, data should be parsed from fields 16 or 17 to obtain this element Character (100). 19. CS_Street_Address_2 Street Address Line 2 The permanent legal address of the customer, line two. This field is required. If necessary, data should be parsed from fields 16 or 17 to obtain this element Character (100). 20. CS_City City The city associated with the permanent legal address. This field is required. If necessary, data should be parsed from fields 16 or 17 to obtain this element Character (25). 21. CS_State State The state abbreviation associated with the permanent legal address. This field is required. If necessary, data should be parsed from fields 16 or 17 to obtain this element. Use a two-character state code (official U.S. Postal Service abbreviations) Character (2). 22. CS_ZIP ZIP The ZIP + 4 code associated with the permanent legal address. This field is required. If necessary, data should be parsed from fields 16 or 17 to obtain this element. If the “+4” code is not available, provide only the 5-digit ZIP code. Hyphens are optional in this field Character (10). 23. CS_Country Country The country associated with the permanent legal address. This field is required. If necessary, data should be parsed from fields 16 or 17 to obtain this element. Provide the name of the country or the standard IRS country code Character (10). 24. CS_Telephone Customer Telephone Number Character (20). The telephone number on record for the customer 25. CS_Email Customer Email Address Character (150). The e-mail address on record for the customer Appendix G to Part 360—Deposit-Customer Join File Structure This is the structure of the data file to provide to the FDIC information necessary to link the records in the deposit and customer files. If data or information are not maintained or do not apply, a null value in the appropriate field should be indicated. The file will be in a tab- or pipe-delimited ASCII format. Each file name will contain the institution's FDIC Certificate Number, an indication that it is a join file type and the date of the extract. The files will be encrypted using an FDIC-supplied algorithm. The FDIC will transmit the encryption algorithm over FDIC *connect.* The deposit-customer join file will have one or more records for each deposit account, depending on the number of relationships to each account. A simple individual account, for example, will be associated with only one record in the deposit-customer join file indicating the owner of the account. A joint account with two owners will be associated with two records in the deposit-customer join file, one for each owner. The deposit-customer join file will contain other records associated with a deposit account to designate, among other things, beneficiaries, custodians, trustees and agents. This methodology allows the FDIC to know all of the possible relationships for an individual account and also whether a single customer is involved in many accounts. Field name FDIC field description Comments Format 1. CS_Cust_Identifier Customer Identifier Character (25). The unique field used by the institution to identify the customer 2. DP_Acct_Identifier Account Identifier The primary field used to identify the account. This field may be the Account Number. The Account Identifier may be composed of more than one physical data element. If multiple fields are required to identify the account, the data should be placed in separate fields and the FDIC instructed how these fields are combined to uniquely identify the account Character (25). 3. DP_Acct_Identifier—2 Account Identifier—2 Character (25). If necessary, the second element used to identify the account 4. DP_Acct_Identifier—3 Account Identifier—3 Character (25). If necessary, the third element used to identify the account 5. DP_Acct_Identifier—4 Account Identifier—4 Character (25). If necessary, the fourth element used to identify the account 6. DP_Acct_Identifier—5 Account Identifier—5 Character (25). If necessary, the fifth element used to identify the account 7. DP_Sub_Acct_Identifier Sub-Account Identifier If available, the sub-account identifier for the account. The Sub-Account Identifier may identify separate deposits tied to this account where there are different processing parameters such as interest rates or maturity dates, but all owners are the same Character (25). 8. CS_Rel_Code Relationship Code The code indicating how the customer is related to the account. Possible values are: • ADM = Administrator. • AGT = Agent/Representative. • ATF = Attorney For. • AUT = Authorized Signer. Institutions must map their relationship codes to the codes in the list to the left. If the institution maintains more relationships they must supply the additional relationship codes being utilized along with the code definition Character (5). • BNF = Beneficiary • CSV = Conservator • CUS = Custodian • DBA = Doing Business As • EXC = Executor • GDN = Guardian • MIN = Minor • PRI = Primary Owner • SEC = Secondary Owner(s) • TTE = Trustee 9. CS_Bene_Code Beneficiary Type Code If the customer is considered a beneficiary, the type of account associated with this customer. Possible values are: This includes beneficiaries on retirement accounts, trust accounts, minor accounts, and payable-on-death accounts Character (1). • I = IRA • T = Trust—Irrevocable • R = Trust—Revocable • M = Uniform Gift to Minor • P = Payable on Death • O = Other Appendix H to Part 360—Possible File Combinations for Deposit Data A covered institution must provide deposit data using separate deposit, sweep/automated credit, hold, customer, and deposit-customer join files. The simplest file structure involves providing one of each file. This basic file format is shown in Figure 1. ER17JY08.000 Multiple combinations of deposit, sweep/automated credit, hold, customer, and deposit-customer join files are permissible, but only in the following circumstances: 1. Each separate deposit file must have companion sweep/automated credit and hold files covering the same deposit accounts. 2. A single customer file may be submitted covering customers affiliated with deposit accounts in one or more deposit files as long as the customer file contains information on all of the customers affiliated with the deposit files. 3. Several customer files may be submitted as long as each separate customer file contains information on all of the customers affiliated with the associated deposit files. Figure 2 shows a permissible file configuration using a single Customer File affiliated with Deposit File A and Deposit File B. As required, Deposit File A has a companion Sweep/Automated Credit File A and Hold File A. The same is true for Deposit File B. Another permissible combination of files is shown in Figure 3, which is a variation of the basic data file structure shown in Figure 1. BILLING CODE 6714-01-P ER17JY08.001 ER17JY08.002 By order of the Board of Directors. Dated at Washington, DC, this 17th day of June, 2008. Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary. [FR Doc. E8-15492 Filed 7-16-08; 8:45 am] BILLING CODE 6714-01-C 73 138 Thursday, July 17, 2008 Proposed Rules Part III Department of Transportation Federal Railroad Administration 49 CFR Part 214 Railroad Workplace Safety; Adjacent-Track On-Track Safety for Roadway Workers; Proposed Rule DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 214 [Docket No. FRA-2008-0059, Notice No. 1] RIN 2130-AB93 Railroad Workplace Safety; Adjacent-Track On-Track Safety for Roadway Workers AGENCY: Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: FRA proposes to amend its regulations on railroad workplace safety to reduce further the risk of serious injury or death to roadway workers. In particular, FRA proposes to require that railroads adopt specified on-track safety procedures to protect certain roadway work groups from the movement of trains or other on-track equipment on “adjacent track.” FRA proposes to define “adjacent track” as “any controlled track whose track center is 19 feet or less from the track center of the occupied track.” These on-track safety procedures would be required for each adjacent track when a roadway work group with at least one of the roadway workers on the ground, is engaged in a common task with an on-track roadway maintenance machine or coupled equipment on an occupied track. FRA also proposes to require that railroads, contractors to railroads, and roadway workers comply with these procedures. DATES: Written comments must be received no later than August 18, 2008. Comments received after that date will be considered to the extent possible without incurring additional expense or delay. FRA anticipates being able to resolve this rulemaking without a public, oral hearing. However, if FRA receives a specific request for a public, oral hearing prior to August 18, 2008, one will be scheduled and FRA will publish a supplemental notice in the **Federal Register** to inform interested parties of the date, time, and location of any such hearing. ADDRESSES: *Comments:* You may submit comments on this NPRM, identified by Docket No. FRA-2008-0059, Notice No. 1, by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the online instructions for submitting comments. • *Mail:* Docket Management Facility, U.S. Department of Transportation, West Building, Ground Floor, M-33, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery or Courier:* Docket Management Facility, U.S. Department of Transportation, West Building, Ground Floor, M-33, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays. • *Fax:* 202-493-2251. *Instructions:* For detailed instructions on submitting comments, and additional information on the rulemaking process, see the “Public Participation” heading of the SUPPLEMENTARY INFORMATION section of this preamble. Note that all comments received will be posted without change to *http://www.regulations.gov* , including any personal information provided. Please see the “Privacy Act” subheading under the “Regulatory Impact and Notices” heading, below, in section VIII.I. of this preamble. *Docket:* For access to the docket to read background documents or comments received, go to *http://www.regulations.gov* anytime, or to the Docket Management Facility, U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays. Follow the online instructions for accessing the docket. FOR FURTHER INFORMATION CONTACT: Kenneth Rusk, Staff Director, Track Division, Office of Safety Assurance and Compliance, FRA, 1200 New Jersey Avenue, SE., RRS-15, Mail Stop 25, Washington, DC 20590 (telephone 202-493-6236); or Anna Winkle, Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., RCC-12, Mail Stop 10, Washington, DC 20590 (telephone 202-493-6166 or 202-493-6052). SUPPLEMENTARY INFORMATION: Table of Contents for Supplementary Information I. Public Participation II. Overview of the Existing Roadway Worker Protection
(RWP)Rule A. Applicability and Basic Definitions B. Authorized Methods of Establishing On-Track Safety C. Existing On-Track Safety Requirements for Roadway Work Groups with Respect to Adjacent Tracks III. Notice of Safety Advisory 2004-01 IV. Recent Roadway Worker Accidents (1997-2008) V. Joint Petition to FRA for an Emergency Order VI. Current Rulemaking to Revise the RWP Rule A. Overview of the RSAC [Railroad Safety Advisory Committee] B. Proceedings in this Rulemaking to Date Generally C. Proceedings concerning On-Track Safety Procedures for Adjacent Tracks VII. Section-by-Section Analysis VIII. Regulatory Impact and Notices A. Executive Order 12866 and DOT Regulatory Policies and Procedures B. Regulatory Flexibility Act and Executive Order 13272 C. Paperwork Reduction Act D. Federalism Implications E. Environmental Impact F. Unfunded Mandates Reform Act of 1995 G. Energy Impact H. Trade Impact I. Privacy Act IX. List of Subjects in 49 CFR Part 214 I. Public Participation The Administrative Procedure Act (5 U.S.C. 551-559) permits an agency to dispense with notice of rulemaking when it is otherwise not required by statute and the agency “for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). FRA finds that the typically long periods for notice and public participation are, in this case, unnecessary and contrary to the public interest for the reasons set forth below; thus, an abbreviated comment period of 30 days is appropriate for this NPRM. As will be detailed in this NPRM, the recent increase in roadway worker fatalities that have occurred on an adjacent track ( *i.e.* , under the existing rule, any track within 25 feet of the centerline of the track to which the roadway work group was assigned to perform one or more roadway worker duties) has caused considerable concern at FRA and throughout the industry, even prompting the filing of a joint petition for emergency order under 49 U.S.C. 20104 on April 11, 2008. *See* 49 CFR part 214, subpart C (“Roadway Worker Protection Rule” or “RWP Rule”). FRA issued a notice of safety advisory to address the issue in May of 2004; however, it appears that the salutary effects of the safety advisory, which produced a period of 16 months with no fatalities on an adjacent track, were not long-lasting, as four fatalities have since occurred on an adjacent track where a roadway work group, with at least one of the roadway workers on the ground, was engaged in a common task with an on-track roadway maintenance machine or coupled equipment on an occupied track. FRA believes that these proposed amendments to the Roadway Worker Protection Rule are non-controversial in nature because they are based on and substantively the same as the consensus language developed through the Roadway Worker Protection
(RWP)Working Group of FRA's Railroad Safety Advisory Committee (RSAC), which is comprised of various representatives of the groups that are affected by this rule (including railroad management, railroad labor organizations, and contractors). Moreover, FRA finds that, based on the data available, any further delay in issuance of this NPRM 1 and a subsequent final rule would fail to reduce the risk of additional fatalities on adjacent track that are likely to occur late this year or early next year in the absence of further regulatory action. 1 While the consensus language relating to adjacent track issues that was developed through the RSAC was originally intended to be published as part of a larger NPRM, FRA has decided to propose these adjacent-track-related provisions in this separate NPRM so that an appropriate provision will be in effect in a more timely fashion than if the provision were one of many in the larger rulemaking that would need to undergo internal review and approval and public notice and comment. The remaining provisions not related to adjacent track will be proposed in a separate NPRM at a later date, as part of the larger RWP rulemaking. In summary, FRA believes that the identification of a serious and escalating safety concern which FRA's actions to date have not been sufficient to remedy and the non-controversial nature of the proposed amendments justify a comment period of 30 days, rather than the normal 60 days, in this NPRM. FRA will consider, however, any comments received after that date to the extent possible without incurring additional expense or delay. II. Overview of the Existing RWP Rule A. Applicability and Basic Definitions The RWP Rule requires each railroad that operates rolling equipment on track that is part of the general railroad system of transportation to “adopt and implement a program that will afford on-track safety to all roadway workers whose duties are performed on that railroad.” *See* 49 CFR 214.3, 214.303(a). 2 “On-track safety” is defined as “a state of freedom from the danger of being struck by a moving railroad train or other railroad equipment, provided by operating and safety rules that govern track occupancy by personnel, trains and on-track equipment.” *See* § 214.7. The roadway workers that must be afforded on-track safety are any employees of a railroad, or of a contractor to a railroad, whose duties include “inspection, construction, maintenance or repair of railroad track, bridges, roadway, signal and communication systems, electric traction systems, roadway facilities or roadway maintenance machinery on or near track or with the potential of fouling a track, and flagmen and watchmen/lookouts * * *.” *See* § 214.7, “Roadway worker.” 2 All references in this preamble to a section or other provision of a regulation are to a section, part or, other provision in title 49, Code of Federal Regulations unless otherwise specified. B. Authorized Methods of Establishing On-Track Safety Several methods are authorized to be used to provide on-track safety for roadway workers, and many of those methods involve establishing “working limits,” which is defined in part as “a segment of track with definite boundaries established in accordance with [part 214] upon which trains and engines may move only as authorized by the roadway worker having control over that defined segment of track.” *See* §§ 214.7 and 214.319. Working limits may be established on controlled track ( *i.e.* , “track upon which the railroad's operating rules require that all movements of trains must be authorized by a train dispatcher or a control operator”) through exclusive track occupancy (§ 214.321), foul time (§ 214.323), or train coordination (§ 214.325). *See* §§ 214.7 and 214.319. Regardless of which method is chosen, the working limits are only permitted to be under the control of a qualified roadway worker in charge, and all affected roadway workers must be notified and either clear of the track or provided on-track safety through train approach warning (in accordance with § 214.329) before the working limits are released to permit the operation of trains or other on-track equipment through the working limits. *See id* . Train approach warning is another common method of establishing on-track safety in which a trained and qualified watchman/lookout provides warning to roadway worker(s) of the approach of a train or on-track equipment in sufficient time to enable each roadway worker to move to and occupy a previously arranged place of safety not less than 15 seconds before a train moving at the maximum speed authorized on that track would arrive at the location of the roadway worker. *See* §§ 214.329 and 214.7 “Watchman/lookout.” Train approach warning is sometimes used as a temporary form of on-track safety when a roadway worker in charge needs to nullify the on-track safety previously established by working limits in order to permit a train or piece of on-track equipment to enter the roadway work group's working limits. Train approach warning permits the roadway workers to continue working for longer if the working limits span several miles and the train or equipment will not be passing by the work area for some time due to a speed restriction, the distance away, or the train or equipment halting its movement. It should be noted that switching temporarily to “train approach warning” is permissible only if the change was previously discussed in detail with the roadway work group either in the on-track safety job briefing prior to beginning work or in an updated on-track safety job briefing pursuant to § 214.315(d). *See* § 214.315. C. Existing On-Track Safety Requirements for Roadway Work Groups with Respect to Adjacent Tracks Section 214.335(c) of the RWP Rule currently requires that roadway work groups engaged in “large-scale maintenance or construction” be provided with on-track safety in the form of “train approach warning” for train or equipment movements on adjacent tracks if the adjacent tracks are not already included within the working limits. Under the current definition of “adjacent tracks,” on-track safety as discussed above is required for any tracks with track centers spaced less than 25 feet apart from the track to which a roadway work group is assigned to perform large-scale maintenance or construction. *See* §§ 214.7, 214.335(c). The track to which the roadway work group is assigned to perform the large-scale maintenance or construction is commonly referred to as the “occupied track.” Thus, in triple-main track territory, if a roadway work group is occupying the middle track ( *e.g.* , Main Track No. 2) in order to perform large-scale maintenance or construction, and the track centers of the tracks on either side of the occupied track are within 25 feet of the occupied track, then on-track safety is required to be established on both adjacent tracks ( *e.g.* , Main Track Nos. 1 and 3). In some yards or territories, where track centers may be spaced only 12 feet apart, an occupied track ( *e.g.* , Yard Track No. 3) may have up to four adjacent tracks ( *e.g.* , Yard Track Nos. 1, 2, 4, and 5). In such cases, the current rule requires on-track safety to be established on all four adjacent tracks, in addition, of course, to the on-track safety required for the occupied track itself. *See* §§ 214.335(c) and 214.337(a). Although the term “large-scale maintenance or construction” is not specifically defined in the regulation, FRA noted in the preamble to the 1996 final rule establishing the RWP Rule that the principle behind the reference to large-scale maintenance or construction “is the potential for distraction, or the possibility that a roadway worker or roadway maintenance machine might foul the adjacent track and be struck by an approaching or passing train,” and further stated that “conditions in which the risk of distraction is significant” require measures to provide on-track safety on adjacent tracks. *See* 61 FR 65959, 65971 (December 16, 1996). To further clarify what was meant by the term “large-scale maintenance or construction,” FRA adopted the recommendation of the Roadway Worker Safety Advisory Committee, which described large-scale track maintenance and/or renovations, such as but not limited to, “rail and tie gangs, production in-track welding, ballast distribution, and undercutting.” *See id.* Under such guidance, many railroads were not providing on-track safety on adjacent tracks for surfacing operations, small tie renewal operations, or similar maintenance operations that, while smaller in scale, still included one or more on-track roadway maintenance machines or coupled equipment. Fatalities occurred on the adjacent track during such operations when on-track safety was not established on the adjacent track or had been temporarily or permanently nullified or suspended to permit the passage of a train or other on-track equipment. III. Notice of Safety Advisory 2004-01 After the occurrence of five roadway worker fatalities in one calendar year (2003), including one on an adjacent track, FRA responded on April 27, 2004, by issuing Notice of Safety Advisory 2004-01, which was later published in the **Federal Register** on May 3, 2004. *See* 69 FR 24220. FRA issued this safety advisory to recommend certain safety practices, to review existing requirements for the protection of roadway workers from traffic on adjacent tracks, and to heighten awareness to prevent roadway workers from inadvertently fouling a track when on-track safety is not provided. *See id.* The safety advisory explained that the requirements of the RWP Rule, including the requirement to provide adjacent track on-track safety for large-scale maintenance or construction in § 214.335(c), are only minimum standards; railroads and railroad contractors are free to prescribe additional or more-stringent standards consistent with the rule. *See id.* at 24222 and § 214.301(b). FRA recommended that railroads and contractors to railroads develop and implement basic risk assessment procedures for use by roadway workers to determine the likelihood that a roadway worker or equipment would foul an adjacent track prior to initiating work activities, regardless of whether those activities were “large-scale” or “small-scale.” The safety advisory provided examples of relevant factors to consider in making such an assessment, including whether the work could be conducted by individuals positioned between the rails of a track on which on-track safety has been established, as opposed to being on the field side of such a track toward an adjacent track; whether there was a structure between the tracks to prevent intrusion (such as a fence between the tracks at a passenger train station and the tall beam of a through-plate girder bridge); the track-center distance, to ensure that the adjacent track would not be fouled if a worker were to inadvertently trip and fall; the nature of the work (inspection or repair); the sight distances; and the speed of trains on the adjacent track. *See* 69 FR 24222. FRA further noted that, upon completion of an on-site risk assessment, the on-track safety briefing required by § 214.315(a) would be the ideal instrument to implement preventive measures concerning adjacent tracks. *See id.* In addition to the above recommendation concerning basic risk assessment, FRA recommended that railroads and contractors to railroads consider taking the following actions: • Use of [sic] working limits for activities where equipment could foul adjacent track (whether large-scale or small-scale activities); • Use rotation stops to mitigate the dangers associated with on-track equipment and trains passing on adjacent tracks; • Review procedures for directing trains through adjacent track working limits, and enhance such procedures when necessary; • Install adjacent track warning signs/devices in the operating cab of on-track machines to remind roadway maintenance machine operators to not inadvertently depart the equipment onto a track where there may be trains and other on-track equipment passing; • Provide additional training and monitoring to [their] employees, emphasizing the need to cross tracks in a safe manner (i.e., single file and after looking in both directions); • Reinforce to individual roadway workers that it is critical not to foul a track except in the performance of duty and only when on-track safety has been established. This training could be accomplished through training sessions, as well as daily job briefings; and • Institute peer-intervention measures by which workers are encouraged to intervene when observing another roadway worker engaging in potentially non-compliant and unsafe activity. *See id.* IV. Recent Roadway Worker Accidents (1997-2008) Since the RWP Rule went into effect on January 15, 1997, there have been nine roadway worker fatalities on an adjacent track. Seven of those fatalities have occurred on a controlled track that was adjacent to the track on which a roadway work group, with at least one of the roadway workers on the ground, was engaged in a common task with an on-track roadway maintenance machine or coupled equipment. FRA notes that there has been only one adjacent-track fatality where a roadway work group had been engaged in a common task with a lone hi-rail vehicle, defined in § 214.7 as “a roadway maintenance machine that is manufactured to meet Federal Motor Vehicle Safety Standards and is equipped with retractable flanged wheels so that the vehicle may travel over the highway or on railroad tracks.” 3 In addition, there have been no adjacent-track fatalities where a roadway work group had been engaged in a common task with a catenary maintenance tower car on the occupied track. This is likely because the duties normally performed by an employee operating a hi-rail or a catenary maintenance tower car tend to be less distracting to on-ground roadway workers and produce less dust and noise than a typical on-track roadway maintenance machine. Given the above, FRA proposes that adjacent-track on-track safety not be required for roadway work groups engaged in a common task with a hi-rail or a catenary maintenance tower car, as discussed in the section-by-section analysis of paragraphs (b)(2) and (b)(3), respectively, in new proposed § 214.336. 3 In that case, the roadway workers were under the impression that adjacent-track on-track safety was in effect, but it was not, due to a miscommunications. Of the seven fatalities that occurred under the circumstances described above and which this rule proposes to address, three occurred during the period after the effective date of the rule and before the publication of the safety advisory on May 3, 2004, and four have occurred since that period. In the four-year period prior to May of 2004 (May 1, 2000-April 30, 2004), there has been one adjacent-track fatality known to have occurred under such circumstances, for a rate of .25 per year. In the four-year period since (May 1, 2004-April 30, 2008), there have been four adjacent-track fatalities, for a rate of one per year, which is four times the rate of the previous four-year period. While FRA recognizes that even one death can make rates change dramatically when the total number of deaths is small, the increase in the rate of these deaths despite the safety advisory leads FRA to conclude that prompt regulatory action is needed to avert an escalating number of deaths. Moreover, given the extensive participation in developing these consensus regulatory provisions by representatives of all of the key interests involved in this issue, it is contrary to the public interest to wait for all of the other issues in the larger RWP rulemaking to be resolved or to engage in lengthy periods for notice and public comment before acting to prevent more deaths. The following is a brief summary of the results of FRA's investigations of the four most recent incidents that resulted in these unfortunate fatalities: • *October 5, 2005:* A roadway surfacing gang tamper operator, with 28 years of service, was walking up to the front of the tamper to put away the light buggies as his surfacing gang, having just completed its work, was getting ready to travel to clear the number two main track. The operator was walking east on the side of the tamper between the two main tracks when he was struck by a westbound train on the adjacent track. The track centers were spaced approximately 13 feet apart, and the train was traveling at an estimated speed of 40 miles per hour (mph). • *March 12, 2007:* A surfacing gang was occupying the number one main track in a double-main territory. The surfacing gang foreman (the roadway worker in charge), who earlier had notified the other members of the gang of pending movement on the adjacent track, was standing in the gage of the same adjacent track when he was struck by a train. It remains unclear why he was fouling the adjacent track at the time of the incident. The track centers were spaced approximately 13 feet, 6 inches apart, and the maximum authorized speed on the adjacent track was 50 mph. • *February 10, 2008:* A train struck a roadway worker inside an interlocking on a triple-main track territory. The worker was part of a gang that consisted of approximately 10 workers that were engaged in the repair of a crossover on the middle main track with a tamper. Foul time was being used as adjacent-track on-track protection, but this protection was removed by the roadway worker in charge, who gave permission to the dispatcher to permit a train to operate on the adjacent track through the roadway work group working limits. As the train entered the interlocking on a limited clear signal indication for a crossover move past the work area, one of the roadway workers attempted to cross the track in front of the train and was struck. The track centers were spaced approximately 13 feet apart, and the maximum authorized speed for the train on the adjacent track was 45 mph. • *March 27, 2008:* Information at this time is preliminary, but it is understood that a surfacing gang was working on multiple-track territory. The surfacing gang foreman was standing in the foul of the adjacent track while his surfacing crew worked on the number two main track. A train operating on the same adjacent track struck the foreman. No on-track safety was in effect on the adjacent track involved at the time of the incident. The track centers were spaced approximately 14 feet, 7 inches apart, and the maximum authorized speed on the adjacent track was 70 mph. While the above discussion focuses on those fatalities that have occurred on an adjacent track where a roadway work group, with at least one of the roadway workers on the ground, was engaged in a common task with an on-track roadway maintenance machine or coupled equipment on an occupied track, it is important to discuss some of the common circumstances in all nine of the fatalities that have occurred on an adjacent track since the rule went into effect, as these circumstances were considered by FRA in its decision to issue this NPRM. The first common circumstance is the type of track. All nine of the fatalities occurred on “controlled” track, rather than “non-controlled” track. This was taken into consideration in writing FRA's proposed definition of “adjacent track,” which would be included as part of proposed new § 214.336(a), would essentially replace the term “adjacent tracks” in § 214.7, and would be limited to controlled tracks whose track centers are spaced 19 feet or less from the track center of the occupied track. Second, all nine of the fatalities occurred on an adjacent track that was quite closely-spaced to the track that the roadway work group was occupying. Six of the adjacent tracks had track centers that were spaced approximately 14 feet or less from the respective track centers of the tracks that the roadway work groups were occupying, and all nine of the adjacent tracks were spaced 15 feet or less from the track centers of the respective occupied tracks. This common circumstance was also taken into consideration in FRA's proposed definition of “adjacent track,” which would no longer include tracks with track centers that were spaced more than 19 feet (but less than 25 feet) away from the track center of the occupied track. The third common circumstance of the nine fatalities on adjacent track is the time of year. Four of the fatalities occurred during the first quarter (January-March), none of the fatalities occurred in the second and third quarters of the year (April-June and July-September, respectively), and the other five fatalities occurred during the fourth quarter (October-December). As noted earlier in Section I., above, if this pattern continues, any further delay in issuance of this rule would fail to reduce the risk of additional fatalities on adjacent track that are likely to occur late this year or early next year in the absence of further regulatory action. Thus, FRA has decided to proceed with an NPRM with an abbreviated comment period. V. Joint Petition to FRA for an Emergency Order On April 11, 2008, the Brotherhood of Maintenance of Way Employes Division (BMWED) and the Brotherhood of Railroad Signalmen
(BRS)filed a joint petition requesting that FRA issue an emergency order requiring adjacent-track protection for roadway work groups. The petition notes that similar requests, which were filed on October 7, 2005, November 7, 2003, and December 21, 1999, were denied by FRA. The petitioners expressed their belief that, under the existing provisions of the rule, roadway workers will continue to suffer preventable serious injuries and death. The petitioners assert that FRA should require railroads and their contractors to establish on-track safety on adjacent tracks (“adjacent-track on-track safety”) for a wider range of work activities. In FRA's January 5, 2006 denial of the October 2005 petition, FRA noted that the RSAC working group to review and revise the RWP Rule (“RWP Working Group”) was “committed to presenting comprehensive draft language * * * that would more closely tailor the solution to the problem.” And while the RWP Working Group did in fact draft this language, and both the Working Group and the full RSAC were able to reach consensus on such language, BMWED and BRS are concerned that the language, which has not been published as an NPRM, would not become a final rule for a considerable period of time, leaving the possibility for further preventable fatalities. BMWED and BRS urge FRA to issue an emergency order that would adopt the adjacent-track consensus language of the RWP RSAC. On April 18, 2008, the American Train Dispatchers Association
(ATDA)filed a letter in support of the BMWED and BRS joint petition. In the letter, ATDA agreed that preventable injuries and deaths continue to occur because of a lack of positive regulation mandating adjacent-track on-track safety and urged FRA to issue an emergency order based upon the RSAC-approved and consensus-based replacement language for § 214.235(c), as indicated in the joint petition. VI. Current Rulemaking To Revise the RWP Rule A. Overview of the RSAC In March 1996, FRA established RSAC, which provides a forum for developing consensus recommendations to FRA's Administrator on rulemakings and other safety program issues. The Committee includes representation from all of the agency's major customer groups, including railroads, labor organizations, suppliers and manufacturers, and other interested parties. A list of member groups follows: • American Association of Private Railroad Car Owners (AAPRCO); • American Association of State Highway and Transportation Officials (AASHTO); • American Chemistry Council; • American Petroleum Institute; • American Public Transportation Association (APTA); • American Short Line and Regional Railroad Association (ASLRRA); • American Train Dispatchers Association (ATDA); • Association of American Railroads (AAR); • Association of Railway Museums; • Association of State Rail Safety Managers (ASRSM); • Brotherhood of Locomotive Engineers and Trainmen (BLET); • BMWED; • BRS; • Chlorine Institute; • Federal Transit Administration (FTA)*; • Fertilizer Institute; • High Speed Ground Transportation Association (HSGTA); • Institute of Makers of Explosives; • International Association of Machinists and Aerospace Workers; • International Brotherhood of Electrical Workers (IBEW); • Labor Council for Latin American Advancement*; • League of Railway Industry Women*; • National Association of Railroad Passengers (NARP); • National Association of Railway Business Women*; • National Conference of Firemen & Oilers; • National Railroad Construction and Maintenance Association (NRC); • National Railroad Passenger Corporation (Amtrak); • National Transportation Safety Board (NTSB)*; • Railway Supply Institute (RSI); • Safe Travel America (STA); • Secretaria de Comunicaciones y Transporte*; • Sheet Metal Workers International Association (SMWIA); • Tourist Railway Association, Inc.; • Transport Canada*; • Transport Workers Union of America (TWU); • Transportation Communications International Union/BRC (TCIU/BRC); • Transportation Security Administration (TSA)*; and • United Transportation Union (UTU). *Indicates associate, non-voting membership. When appropriate, FRA assigns a task to RSAC, and after consideration and debate, RSAC may accept or reject the task. If the task is accepted, RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task. These recommendations are developed by consensus. A working group may establish one or more task forces to develop facts and options on a particular aspect of a given task. The individual task force then provides that information to the working group for consideration. If a working group comes to unanimous consensus on recommendations for action, the package is presented to the full RSAC for a vote. If the proposal is accepted by a simple majority of RSAC, the proposal is formally recommended to FRA. FRA then determines what action to take on the recommendation. Because FRA staff play an active role at the working group level in discussing the issues and options and in drafting the language of the consensus proposal, FRA is often favorably inclined toward the RSAC recommendation. However, FRA is in no way bound to follow the recommendation, and the agency exercises its independent judgment on whether the recommended rule achieves the agency's regulatory goal, is soundly supported, and is in accordance with policy and legal requirements. Often, FRA varies in some respects from the RSAC recommendation in developing the actual regulatory proposal or final rule. Any such variations would be noted and explained in the rulemaking document issued by FRA. If the working group or RSAC is unable to reach consensus on a recommendation for action, FRA moves ahead to resolve the issue through traditional rulemaking proceedings. B. Proceedings in This Rulemaking to Date Generally On January 26, 2005, the RSAC formed the RWP Working Group (“Working Group”) to consider specific actions to advance the on-track safety of employees of covered railroads and their contractors engaged in maintenance-of-way activities throughout the general system of railroad transportation, including clarification of existing requirements. The assigned task was to review the existing rule, technical bulletins, and a safety advisory dealing with on-track safety. The Working Group was to consider implications and, as appropriate, consider enhancements to the existing rule. The Working Group would report to the RSAC any specific actions identified as appropriate, and would report planned activity to the full Committee at each scheduled Committee meeting, including milestones for completion of projects and progress toward completion. The Working Group is comprised of members from the following organizations: • Amtrak; • APTA; • ASLRRA; • ATDA; • AAR, including members from BNSF Railway Company (BNSF), Canadian National Railway Company (CN), Canadian Pacific Railway, Limited (CP), Consolidated Rail Corporation (Conrail), CSX Transportation, Inc. (CSXT), Kansas City Southern (KCS), Norfolk Southern Corporation (NS), and Union Pacific Railroad Company (UP); • Belt Railroad of Chicago; • BLET; • BMWED; • BRS; • Federal Railroad Administration (FRA); • Indiana Harbor Belt Railroad (IHB); • Long Island Rail Road (LIRR); • Metro-North Commuter Railroad Company (Metro-North); • Montana Rail Link; • NRC; • Northeast Illinois Regional Commuter Railroad Corporation (Metra); • RailAmerica, Inc.; • Southeastern Pennsylvania Transportation Authority (SEPTA); • United Transportation Union (UTU); and • Western New York and Pennsylvania Railroad (WNY&P). The Working Group held 12 multi-day meetings. The group worked diligently and was able to reach consensus on 32 separate items. C. Proceedings Concerning On-Track Safety Procedures for Adjacent Tracks One of the items on which the Working Group was able to reach consensus dealt specifically with the adjacent-track on-track safety issue in § 214.335. The consensus language developed by the Working Group for this topic, which was approved by the full RSAC and formally recommended to FRA, is as follows: § 214.335 On-track safety procedures for roadway work groups.
(c)On-track safety is required for adjacent controlled track within 19 feet of the centerline of the occupied track when roadway work group(s) consisting of roadway workers on the ground and on-track self-propelled or coupled equipment are engaged in a common task on an occupied track.
(1)Except as provided by paragraph (c)(3) of this section, when trains are cleared through working limits on an adjacent controlled track, or when watchman/lookout warning in accordance with § 214.329 is the form of adjacent on-track safety, roadway workers shall occupy a predetermined place of safety and all on-ground work and equipment movement activity within the fouling space of the occupied track shall cease upon notification of pending adjacent track movement (working limits) or upon receiving the watchman/lookout warning.
(2)When single or multiple movements are cleared through adjacent controlled track working limits, on-ground work and equipment movement on the occupied track may resume only after all such movements on adjacent track have passed each component of the Roadway Work Group(s). If the train stops before passing all roadway workers, the employee in charge shall communicate with the engineer prior to allowing the work to resume.
(3)When single or multiple movements are cleared through adjacent controlled track working limits at a speed no greater than 25 mph, work performed exclusively between the rails of the occupied track, or to the field side of the occupied track with no adjacent track, may continue upon notification of each roadway worker of movement on adjacent track. On-ground work shall not be performed within 25 feet to the front or 25 feet to the rear of roadway maintenance machine(s) on the occupied track during such adjacent track movement.
(d)Equipment may not foul an adjacent controlled track unless protected by working limits and there are no movements authorized through the working limits by the roadway worker in charge.
(e)The mandatory provisions for adjacent controlled track protection under this subpart are not applicable to work activities involving—
(1)A hi-rail vehicle as defined in § 214.7, provided such hi-rail vehicle is not coupled to railroad cars. Where multiple hi-rail vehicles are engaged in a common task, the on-track safety briefing shall include discussion of the nature of the work to be performed to determine if adjacent controlled track protection is necessary. Nothing in this subpart prohibits the roadway worker in charge of the hi-rail vehicle from establishing adjacent controlled track protection, as he/she deems necessary.
(2)On-ground roadway workers exclusively performing work on the field side of the occupied track.
(3)Catenary maintenance tower cars with roadway workers positioned on the ground within the gage of the occupied track for the sole purpose of applying or removing grounds. Nothing in this subpart prohibits the roadway worker in charge of the catenary maintenance tower car from establishing adjacent track protection, as he/she deems necessary. Upon reviewing the joint petition of the BRS and BMWED for an emergency order, the consensus language of the Working Group quoted above, and the relevant accident data concerning roadway workers fouling adjacent track, FRA has decided to issue this NPRM to lower the safety risk associated with roadway workers fouling adjacent track. Although FRA's safety advisory may have had an initial effect and have raised awareness enough to help keep the number of all categories of roadway worker fatalities in 2004 and through almost six months in 2005 at zero, the effect was not sustained enough to combat the rise of roadway worker fatality incidents since late June of 2005, when the first roadway worker fatality occurred after the issuance of the safety advisory, or since October of 2005, when the first adjacent track roadway worker fatality occurred. In light of recent roadway worker fatality trends, FRA has determined that the agency must propose a more prescriptive approach to prevent further fatalities. The need to mandate adjacent-track on-track safety was recognized by FRA, members of the Working Group, and members of the full RSAC. The consensus language developed by the Working Group and recommended by the full RSAC is expected to reduce the risk of roadway worker fatalities due to fouling an adjacent track while working in conjunction with on-track equipment on an occupied track. As part of the process in drafting the NPRM in the larger RWP rulemaking, 4 FRA circulated the consensus rule text concerning adjacent track and other items for errata review. Both AAR and BMWED submitted comments on this provision. To address these issues, and other potential ambiguities discovered upon a closer review of the rule text, FRA has reorganized and modified the consensus text in issuing this NPRM, as discussed below in the section-by-section analysis. 4 As noted in Section I. of this document, the provisions related to adjacent track were originally intended to be published as part of a larger NPRM concerning Part 214, but have been proposed here as a separate NPRM to expedite the effective date of such provisions. VII. Section-by-Section Analysis Amendments to 49 CFR Part 214, Railroad Workplace Safety Subpart A—General Section 214.7 Definitions FRA proposes to modify this section by removing the definition of “adjacent tracks.” As also discussed under § 214.336, FRA proposes to convert the term “adjacent tracks” to the singular, then move the definition of “adjacent track” from § 214.7 to the only section where the term would actually be used, and finally define the new term more narrowly by limiting it to a controlled track whose track center is located 19 feet or less from the track center of the occupied track. The current definition of “adjacent tracks” includes any tracks, controlled *or non-controlled* , whose track centers are spaced *less than 25 feet apart.* As discussed above in “IV. Recent Roadway Worker Accidents (1997-2008),” in all nine of the fatal accidents that occurred on “adjacent tracks” as currently defined, the adjacent track was a controlled track with a track center that was spaced 15 feet or less from the track center of the occupied track. Six of the adjacent tracks had track centers that were spaced approximately 14 feet or less from the respective track centers of the tracks that the roadway work groups were occupying. In examining whether to expand the types of work activities requiring adjacent-track on-track safety in § 214.335(c), the Working Group also considered whether the recommended amendments to the section would be over-inclusive when applied in conjunction with the existing definition of “adjacent tracks.” After examining the accident data, the Working Group agreed that 19 feet would be a reasonable and safe threshold to trigger the requirement to establish adjacent-track on-track safety and that it would be reasonable to cover controlled tracks within that 19-foot zone but to exclude non-controlled tracks. FRA notes that the lack of fatalities on non-controlled adjacent tracks may be attributable to the reduced operating speeds on non-controlled tracks, where railroad operating rules generally require that movements must stop short of obstructions within half the range of vision. The Working Group discussed and the full RSAC recommended for inclusion in § 214.335(c) that on-track safety be required for “adjacent controlled track within 19 feet of the centerline of the occupied track” for certain work activities. FRA agrees with this analysis and has reflected it in the proposed definition of “adjacent track.” Subpart C—Roadway Worker Protection Section 214.315 Supervision and Communication Given the importance of an on-track safety job briefing in roadway workers' understanding of the nature of the work they will be conducting and the conditions under which they will conduct it, FRA also thinks that the existing requirements in § 214.315 for a job briefing “when an employer assigns duties to a roadway worker that call for that employee to foul a track” should be expanded to cover the new proposed procedures for adjacent-track on-track safety in § 214.336 if such procedures are required for that assignment. With a few minor changes, the text concerning the additional components of an on-track safety job briefing that is proposed in this NPRM was also consensus language developed by the Working Group and recommended by the full RSAC. The consensus language relating to adjacent-tracks was proposed as a new paragraph (a)(2) in § 214.315, to read as follows:
(2)Information about any tracks adjacent to the track to be occupied, on-track safety for such tracks, and identification of roadway maintenance machines that will foul any adjacent track. In such cases, the briefing shall include procedural instructions addressing the nature of the work to be performed and the characteristics of the work location to ensure compliance with this part. On December 18, 2007, FRA e-mailed the Working Group members and requested an errata review of a document in which FRA had compiled all of the consensus items. In its errata review comments, AAR requested that FRA clarify that the provision is not intended to require a discussion on the on-track safety of an adjacent track unless on-track safety was required on that track by part 214. FRA agrees that this is not the intent of the proposed requirement, and has added the language “if required by this subpart” to the consensus rule text, which has been proposed as new paragraph (a)(3). This proposed section would still require the on-track safety job briefing to include information concerning any “tracks adjacent” (in the general sense of the word “adjacent”) to the track to be fouled, so as to serve as a warning to each roadway worker of the potential danger in fouling such a track, even if no on-track safety is required for that particular track because it does not meet the definition of “adjacent track.” FRA has further clarified in a proposed revision to introductory paragraph
(a)that this section lists only the minimum items that must be discussed in an on-track safety briefing. The words “at a minimum” were added, and the rest of existing paragraph
(a)has been moved to proposed paragraphs (a)(1) and (a)(2). Section 214.335 On-Track Safety Procedures for Roadway Work Groups, General FRA proposes to amend this section by deleting paragraph
(c)and replacing it with a new section to address adjacent-track on-track safety for roadway work groups, § 214.336, for the reasons discussed below. Existing paragraph
(c)reads as follows:
(c)Roadway work groups engaged in large-scale maintenance or construction shall be provided with train approach warning in accordance with § 214.327 for movements on adjacent tracks that are not included within working limits. The proposal would also amend the heading of § 214.335 to reflect the general nature of the remaining requirements in that section. Section 214.336 Adjacent-Track On-Track Safety for Roadway Work Groups; Procedures, Training, and Recordkeeping Paragraphs (a), Procedures; general; and (b), Exceptions to the requirement for adjacent-track on-track safety As discussed in section II.C., above, § 214.335(c) currently requires adjacent-track on-track safety for a roadway work group only if such a work group is engaged in “large-scale maintenance or construction.” Under this criterion and the limited guidance provided in the preamble to the final rule, many railroads have not been providing on-track safety on adjacent tracks for surfacing operations, small tie-renewal operations, or similar maintenance operations that, while smaller in scale, still include on-track, self-propelled equipment. This proposed new section seeks to eliminate this interpretive issue by establishing new, more objective criteria for determining whether adjacent-track on-track safety is required for a roadway work group. Fatalities have occurred in connection with such operations, which many believe the existing language should be interpreted to cover. In developing language to address the increasing number of roadway worker fatalities on an adjacent track, the Working Group considered that most of the fatalities on an adjacent track occurred when a roadway work group with at least one of the roadway workers on the ground, was engaged in a common task with on-track, self-propelled equipment on an occupied track. In those circumstances, the potential for a roadway worker in the group to be distracted from the danger of an oncoming train was great due to the noise and dust generated by operation of the roadway maintenance machines, the need to avoid entanglement in the operation of those machines, and the need to monitor the quality of the work being performed. This set of factual circumstances became the basis for the proposed new criteria for triggering the requirement to establish adjacent-track on-track safety in introductory paragraph (c)(1) of the consensus language, and in paragraph
(a)of proposed new § 214.336, which, as a general rule, would require that on-track safety be established for each adjacent track when a roadway work group with at least one of the roadway workers on the ground, is engaged in a common task with an on-track roadway maintenance machine or coupled equipment on an occupied track. In particular, the on-track safety would have to be provided in accordance with § 214.319 (Working limits, generally); § 214.321 (Exclusive track occupancy); § 214.323 (Foul time); § 214.325 (Train coordination); or § 214.329 (Train approach warning provided by watchmen/lookouts). The general rule in paragraph
(a)would have three exceptions described in proposed paragraph (b). Paragraph
(a)would also add definitions of two terms used in § 214.336: “adjacent track” and “occupied track.” For purposes of this section (the only section where the term is used), “adjacent track” would mean “a controlled track whose track center is spaced 19 feet or less from the track center of the occupied track.” The current definition of “adjacent tracks” (in § 214.7) includes any tracks, controlled *or non-controlled* , whose track centers are spaced *less than 25 feet apart* . As the term “adjacent track” was used several times in the recommended consensus language of § 214.335(c), and to avoid any confusion of terms, FRA proposes to remove the definition of “adjacent tracks” from § 214.7, to convert the term to the singular, and to adopt this new, narrower definition of “adjacent track” based on the roadway worker fatality data discussed above under the section-by-section analysis of § 214.7, which show that the adjacent tracks on which the roadway worker fatalities occurred were all controlled tracks and the track centers of these controlled tracks were within 15 feet of the track centers of the occupied track. The second proposed definition to be used for purposes of § 214.336 is “occupied track.” FRA proposes to define the term “occupied track” to mean the track on which a roadway maintenance machine or coupled equipment is located while engaged in a common task with a roadway work group. FRA replaced the consensus language of “on-track, self-propelled or coupled equipment” with “on-track roadway maintenance machine or coupled equipment” so as to use a term that is already defined in part 214. It should be noted that while the language that would trigger the requirement to establish adjacent-track on-track safety contains the term “on-track roadway maintenance machine” (which excludes hi-rails), the proposed definition of “occupied track” contains the broader term “roadway maintenance machine” (which includes hi-rails), since a roadway work group that is engaged in a common task with a hi-rail would still be “occupying” the track, regardless of whether adjacent-track on-track safety would be required during that task. The language in RSAC-recommended paragraph
(a)was also modified in light of the proposed new definition of “adjacent track,” namely by moving references to “controlled track” and the 19-foot track center distance and placing them in the definition. The Working Group also considered whether it is safe to permit work to continue under certain limited circumstances, and proposed some exceptions in paragraphs (c)(2)-(c)(3) and (e)(1)-(e)(3) of the consensus language, which the full RSAC later recommended to FRA. FRA has adopted all of the exceptions recommended by the full RSAC in this proposal and has reorganized and modified the text for clarity, in response to comments received from the AAR and the BMWED in their errata review of the consensus language, and to address other potential ambiguities discovered upon a closer review of the rule text. In an effort to make the section easier to understand, FRA has reorganized the section into proposed paragraph (a)(1), which lists the procedures to follow for adjacent-track movements over 25 mph ( *i.e.* , if a train or other on-track equipment is authorized to move on an adjacent track at a speed greater than 25 mph), and proposed paragraph (a)(2), which lists the procedures to follow when adjacent-track movements are authorized at a speed of 25 mph or less. 5 Proposed paragraph (a)(1) would require that each roadway worker in the roadway work group stop any work on the ground and stop the movement of any roadway maintenance machine or coupled equipment in the fouling space of the occupied track and the adjacent track, and occupy a predetermined place of safety. If on-track safety has been established on the adjacent track through train approach warning in accordance with § 214.329, all work would have to cease upon receiving a watchman/lookout warning. On the other hand, if working limits have been established on the adjacent track and the roadway work group has not been assigned a watchman/lookout, all work would have to cease upon receiving notification that the roadway worker in charge intends to authorize one or more train movements or other on-track equipment movements through the working limits on an adjacent track. This notification would have to occur before the roadway worker in charge releases the working limits, in order to comply with existing § 214.319(c). 5 If a roadway worker in charge, in his discretion, authorizes a train through working limits on an adjacent track at 30 mph, but the train is actually traveling at a speed of only 20 mph, the procedures in proposed paragraph (a)(1), regarding adjacent-track movements over 25 mph, would still apply. Where exclusive track occupancy is the method of on-track safety established on the adjacent track, FRA notes that existing § 214.321(d) provides that movements of trains and roadway maintenance machines within working limits shall be made only under the direction of the roadway worker having control over the working limits, and further notes that such movements shall be at restricted speed unless a higher speed has been specifically authorized by the roadway worker in charge of the working limits. In its errata review comments on the FRA document compiling all of the Working Group consensus language, AAR requested that FRA clarify whether work would be permitted to resume at a particular location after the head-end of the movement had passed or after the entire train had passed, under the RSAC-recommended § 214.335(c)(2). A review of the available accident data shows that none of the fatalities that occurred on the adjacent track were due to an employee walking into the side of the train; rather, the employees walked in front of the train's path. Thus, it is reasonable to permit work to resume after the head-end of the movement has passed the location of each component of the roadway work group (provided that the roadway workers do not later advance to a position ahead of the head-end), and the relevant language in consensus text in paragraph (c)(2) has been modified accordingly by FRA in its proposed paragraph (a)(1)(ii). In modifying the language in consensus paragraph (c)(2) for inclusion in its proposal, FRA realized that this same paragraph did not address whether such work would be permitted to continue if a train or other on-track equipment, due to the maximum timetable speed of 25 mph, were operating at speeds no greater than 25 mph on an adjacent track, where train approach warning was the established method of adjacent-track on-track safety. As the roadway workers are presented with similar safety risks and would still receive notification of the train or other on-track equipment movements, regardless of the method of adjacent-track on-track safety established, FRA has decided to adopt clarifying language and has combined consensus paragraphs (c)(1) and (c)(2) into a new paragraph (a)(1)(ii) in this NPRM. Under the proposal, a component of a roadway work group may resume on-ground work and movement of any roadway maintenance machine or coupled equipment on the occupied track only after the head-end of all trains or other on-track equipment moving on the adjacent track (either authorized through the working limits by the roadway worker in charge or for which a watchman/lookout has provided a warning) has passed and remains ahead of that component of the roadway work group. This provision may be best explained through examples showing how the proposed requirements would apply under various factual scenarios. For example, if a roadway worker in charge were to authorize three trains through the working limits, and only working limits were in effect, the work would not be permitted to continue until all three movements had passed the roadway work group component's location. If train approach warning procedures were also in effect under the same circumstances, the roadway work group component would be allowed to continue all work after the head-end of the first train passed, (so long as the work remained behind the head-end and would not foul the adjacent track) until receiving the warning for the second train, and so on. On the other hand, if the train or other on-track equipment were to stop before its head-end passed all of the roadway workers in the roadway work group (or if a roadway worker in the roadway work group moved to a position on or fouling the occupied track in advance of the head-end of the adjacent-track movement), the work to be performed on or while fouling the occupied track ahead of the train or other on-track equipment on the adjacent track would be permitted to resume only if adjacent- track on-track safety is currently in effect or re-established. In most cases, this would likely mean that on-track safety through train approach warning (§ 214.329) is still in effect or has been re-established on the adjacent track. In the remaining cases, this would mean that the roadway worker in charge has communicated with the train engineer or equipment operator and obtained or regained control of such train or other on-track equipment. Of course, any work that would foul the *adjacent* track on which the movement is occurring would not be permitted to resume immediately upon the head-end of the movement passing by the roadway work group component, as adjacent track on-track safety cannot be re-established for that adjacent track at least until the entire train or other on-track equipment movement has passed (and remains past) the roadway work group component's location, unless the train or other on-track equipment were stopped and under the control of the roadway worker in charge. The proposed procedures to be followed for adjacent-track movements of 25 mph or less are the same as those procedures for adjacent-track movements over 25 mph, except that work would be permitted to continue in certain circumstances without regard to when the head-end passed the roadway work group's location, due to the low speed of the movements. In proposed paragraph (a), FRA makes clear that if an occupied track has two adjacent tracks, and one of the tracks has one or more adjacent-track movements authorized at 25 mph or less, and the other has one or more concurrent adjacent-track movements authorized at over 25 mph, the more restrictive procedures in paragraph (a)(1) would apply. The circumstances under which work may continue during low-speed movements on adjacent tracks have been included in proposed paragraphs (a)(2)(i)-(a)(2)(ii). In both sets of circumstances, any work that would be permitted to continue after notification of an adjacent-track movement would have to be performed more than 25 feet away from the front or rear of any roadway maintenance machine that is on or fouling the occupied track. While existing § 214.341(a)(5) requires each employer to include in its on-track safety program specific provisions addressing spacing “between machines and roadway workers to prevent personal injury,” the rule does not prescribe a specific distance, as certain work activities may require a roadway worker to work closer to a machine than others. Many railroads that subscribe to the General Code of Operating Rules (“GCOR”), for example, have adopted a 15-foot work zone in which roadway workers are not permitted to enter without first communicating with the operator of the equipment and establishing safe work procedures. *See* GCOR Rule 136.7.3. The Working Group proposed a larger work zone of 25 feet to help lessen the distraction and danger posed by a roadway maintenance machine working on or fouling an occupied track, as both an on-ground roadway worker and an operator of a roadway maintenance machine will be performing work with the additional distraction of one or more adjacent-track movements. FRA proposes to adopt this recommendation as one of the circumstances for permitting work to continue as described in proposed paragraphs (a)(2)(i) and (a)(2)(ii). The first set of circumstances is when work is performed exclusively while positioned between the rails of the occupied track, provided that any on-ground work is performed more than 25 feet away from the front or rear of any roadway maintenance machine that is on or fouling the occupied track during such an adjacent-track movement. The rationale for permitting work to continue between the rails is that a roadway worker who is positioned between the rails of the occupied track is in little danger of fouling the adjacent track. This proposed condition is similar to an existing provision in § 214.103(d) that permits bridge workers to perform minor repair work exclusively between the rails without any fall protection. As this condition has worked well in the bridge worker area, FRA proposes to adopt the RSAC-recommended condition in the roadway worker area. The first set of circumstances is when work is performed exclusively while positioned between the rails of the occupied track, provided that any on-ground work is performed more than 25 feet away from the front or rear of any roadway maintenance machine that is on or fouling the occupied track during such an adjacent-track movement. The rationale for permitting work to continue between the rails is that a roadway worker who is positioned between the rails of the occupied track is in little danger of fouling the adjacent track. This proposed condition is similar to an existing provision in § 214.103(d) that permits bridge workers to perform minor repair work exclusively between the rails without any fall protection. As this condition has worked well in the bridge worker area, FRA proposes to adopt the RSAC-recommended condition in the roadway worker area. It should be noted that paragraph (a)(2) only directly addresses the types of work that a component of a roadway work group may continue performing while waiting for the head-end of an adjacent-track movement to pass by that component's location. It does not directly address when all other work ( *i.e.* , work that paragraph (a)(2) does *not* cover) may resume. Thus, roadway workers who are assigned to perform work not covered by paragraph (a)(2) must look to the procedures in paragraph (a)(1) for guidance. For example, since on-ground work that would be performed near a roadway maintenance machine ( *i.e.* , within 25 feet of the front or rear of a machine that is on or fouling the occupied track) is not covered by paragraph (a)(2), such work would not be permitted to resume until the conditions in paragraph
(a)had been fulfilled. That is to say, such work (as well as all other work not covered by paragraph (a)(2) that would not foul the adjacent track) would be permitted to resume only after the head-end of all movements (authorized through the working limits by the roadway worker in charge or for which a watchman/lookout has provided a warning) have passed by (and remain ahead of) the roadway work group component's location. The second set of circumstances for permitting work to continue when a movement on the adjacent track is authorized at 25 mph or less is when work is performed to the field side of the occupied track furthest from the adjacent track where the movement is occurring, provided that there is no danger posed by an adjacent track on that side ( *i.e.* , either no adjacent track is on that side or else on-track safety has been established on any adjacent track on that side), and provided that any on-ground work is performed more than 25 feet away from the front or rear of any roadway maintenance machine on or fouling the occupied track during such adjacent track-movement. Both the Working Group and FRA recognize that if there is little danger of a roadway worker fouling an adjacent track ( *e.g.* , Main Track No. 1) while positioned between the rails of the occupied track ( *e.g.* , Main Track No. 2), a roadway worker is in even less danger of fouling that adjacent track if he or she is positioned on the field side of the occupied track furthest from the adjacent track. If, however, there is another adjacent track present ( *e.g.* , Main Track No. 3) on the field side farthest from the adjacent track on which a train or other on-track equipment movement has been authorized ( *e.g.* , Main Track No. 1), then the roadway worker would potentially be in danger for fouling the other adjacent track ( *e.g.* , Main Track No. 3). FRA makes clear that even if adjacent-track on-track safety in the form of working limits had been established on the other adjacent track, the roadway worker would still be in potential danger if he or she were to foul the other adjacent track if the protection had in effect been nullified by the roadway worker in charge authorizing a train or other on-track equipment movement through the working limits on that other adjacent track. Given the potential danger posed by concurrent movements on two adjacent tracks, it is important to note that while the proposed § 214.336 would apply to each adjacent track individually, the impact on the type of work that would be permitted to continue on the occupied track must be examined as a whole. Thus, where a roadway worker receives notification of adjacent-track movements authorized at 25 mph or less that are occurring concurrently on both adjacent tracks, FRA proposes that the roadway worker would not be permitted to work to either field side of the occupied track, as the movement on one adjacent track would not permit any work to the field side closest to it, and the movement on the other adjacent track would not permit any work to the field side closest to it. *See* proposed paragraph (a)(2)(ii). On-ground work closer than 25 feet, and all other work (including work to the field side) that would not foul *either* adjacent track, would be permitted to continue once the head-end of all movements (authorized through by the roadway worker in charge or for which a watchman/lookout has provided a warning) has passed by (and remains ahead of) the roadway work group component's location. Field-side work that would foul the closest adjacent track would not be permitted to resume until on-track safety has been re-established on the closest adjacent track; thus, work would not be permitted to resume until the entire length ( *i.e.* , not just the head-end) of all movements on the closest adjacent track (authorized through the working limits by the roadway worker in charge or for which a watchman/lookout has provided a warning) has passed by (and remains ahead of) the roadway work group component's location. The Working Group also discussed, and the RSAC recommended, three exceptions when adjacent-track on-track safety would not have to be established at all. *See* consensus paragraphs (e)(1)-(e)(3). FRA proposes to adopt all three exceptions in this NPRM. *See* proposed § 214.336(b). The first proposed exception to the requirement for adjacent-track on-track safety would be for an on-ground roadway worker performing work while exclusively positioned on the field side of the occupied track, provided that there should essentially be no danger posed by any other adjacent track. In particular, there would be no danger posed by any other adjacent track either because there is no adjacent track on the field side of the occupied track or, even though there is an adjacent track on the field side of the occupied track, on-track safety has been established in accordance with the RWP Rule on that adjacent track. The second exception to the requirement for adjacent-track on-track safety would be for a hi-rail vehicle on the occupied track, provided such hi-rail vehicle is not coupled to any equipment. *See* proposed § 214.336(b)(2). As discussed in section IV. of this preamble, there has been only one adjacent-track fatality where a roadway work group had been engaged in a common task with a hi-rail vehicle as defined in § 214.7, and the roadway workers in that case were under the impression that adjacent-track on-track safety was in effect when, due to a miscommunication, it was not. Given the circumstances of the one fatality and because the duties normally performed by an employee operating a hi-rail tend to be less distracting to on-ground roadway workers and produce less dust and noise than a typical on-track roadway maintenance machine, FRA proposes that adjacent-track on-track safety not be required for roadway work groups engaged in a common task with a hi-rail. The consensus language for this exception also included language indicating that where multiple hi-rails are engaged in a common task, the on-track safety briefing shall include discussion of the nature of the work to be performed to determine if adjacent-track on-track safety is necessary. FRA has removed this language in its proposal because the roadway worker in charge must always consider the nature of the work to be performed to determine the appropriate level of on-track safety. In fact, the consensus language emphasizes that nothing in this subpart prohibits the roadway worker in charge from establishing adjacent-track on-track safety as he or she deems necessary. The third proposed exception to the requirement for adjacent-track on-track safety is for a catenary maintenance tower car with one or more roadway workers positioned on the ground exclusively within the gage of the occupied track for the sole purpose of applying or removing grounds. As discussed in section IV. of this preamble, there have been no adjacent-track fatalities where a roadway work group had been engaged in a common task with a catenary maintenance tower car on the occupied track and the duties normally performed by an employee operating a catenary maintenance tower car tend to be less distracting to on-ground roadway workers and produce less dust and noise than a typical on-track roadway maintenance machine. In its errata review comments on the FRA document compiling all of the Working Group consensus language that was recommended to FRA by the RSAC, BMWED noted that from the manner in which the consensus exceptions (paragraphs (e)(1)-(e)(3)) were constructed, one could interpret that the roadway worker in charge of on-ground roadway workers exclusively performing work on the field side of the occupied track described in consensus paragraph (e)(2) would not be afforded the same right to establish a greater level of adjacent-track on-track safety as the roadway worker in charge of the hi-rail vehicle or catenary maintenance tower car described in paragraphs (e)(1) and (e)(3), respectively. FRA agrees that the provisions should be consistent. The section has been reorganized so that the language indicating that nothing in this subpart prohibits the roadway worker in charge from establishing adjacent-track on-track safety as he or she deems necessary has been removed from paragraphs (e)(1) and (e)(3) and moved into the body of the introductory text of proposed new paragraph
(b)so as to apply to all three exceptions in proposed paragraphs (b)(1)-(b)(3). Consensus paragraph (e)(1) (now proposed paragraph (b)(2)) was also amended to remove the words “as defined in § 214.7” from the hi-rail exception, since each time that a term defined in § 214.7 is used in part 214, FRA intends the term to be interpreted in the manner in which it is defined in § 214.7, unless otherwise noted. Regarding the prohibition in consensus paragraph
(d)against “equipment” fouling an adjacent track unless protected by working limits, FRA has changed the term to “roadway maintenance machine” to clarify that this prohibition is meant to be broad and would include hi-rails that are part of the roadway work group. *See* proposed § 214.336(b)(3). While a hi-rail alone would not trigger the requirement to establish adjacent-track on-track safety, once a hi-rail has become part of a roadway work group involving at least one roadway worker on the ground and “an on-track roadway maintenance machine or coupled equipment,” the hi-rail would be subject to this prohibition against fouling, as well as to the machine spacing requirement in consensus paragraph (c)(3). *See* proposed §§ 214.336(a)(2), 214.336(a)(3), and 214.336(b)(2). Further, FRA clarifies that the prohibition was not meant to be so broad that a roadway worker would not be permitted to use readily portable tools or equipment similar to a jackhammer, such as a pneumatic tamping gun or a spike driver, on an adjacent track while afforded on-track safety through train approach warning. FRA would urge that employers and employees use common sense in determining which tools or equipment they would permit to be used or use under train approach warning. If there is any doubt as to whether the equipment could be readily removed, the employee must not foul the track with those tools or equipment under watchman/lookout ( *i.e.* , train approach warning) protection. Paragraph (c), Training, and (d), Recordkeeping, of § 214.336 Training and recordkeeping requirements were also added to ensure compliance with this new section. Proposed new paragraph
(c)provides that before an employer (“a railroad, or a contractor to a railroad, that directly engages or compensates individuals to perform any of the duties defined in [part 214]”) assigns an employee to perform roadway worker duties for which adjacent-track on-track safety is required, the employer shall provide such an employee either with training on this section or a copy of a railroad-issued bulletin, order, general order, notice, operating rule, or other document adopting the adjacent-track on-track safety requirements of this section. See § 214.7. FRA expects that each railroad would revise its on-track safety program and documents required by §§ 214.303 and 214.309 as necessary to include the requirements of this proposed new section. Issuing a bulletin, order, general order, notice, or other document adopting the adjacent-track on-track safety requirements of this section would suffice until a more permanent update is made. A contractor to a railroad would have to ensure that its employees are aware of this change and of any other changes to a railroad's operating and safety rules related to this proposed new section, and FRA would ask each railroad to cooperate with its contractors to have these documents or any other updates to its on-track safety program and documents required by §§ 214.303 and 214.309 available for contractors performing roadway worker duties on its property. The proposed requirements for providing training or a copy of a railroad-issued document ( *i.e.* , that adopts the new adjacent-track on-track safety requirements) is intended to allow railroads and contractors to railroads the maximum flexibility, while still ensuring that employees are aware of the requirements prior to performing a roadway worker duty for which adjacent-track on-track safety would be required. Thus, an employee performing only the duty of a lone worker would not need to be trained by the effective date of this rule, under the proposed requirements. A railroad or a contractor to a railroad would also be able comply with this proposed training requirement by providing its employees with an extended on-track safety job briefing that discusses the new requirements prior to assigning them to perform a roadway worker duty affected by this section. Proposed new paragraph
(d)would require each employer to obtain from each affected employee a written receipt or acknowledgement of the delivery of a copy of the adjacent-track on-track safety training or document required by paragraph (c), and retain such a receipt or acknowledgement until the employee receives, pursuant to § 214.343, recurrent training that includes discussion of the procedures for adjacent-track on-track safety required by this section. If the training is received for the first time as part of an employee's recurrent training, a record kept pursuant to § 214.343(d) will serve as the receipt or acknowledgement for purposes of this section. If an employee receives training for the first time, but not as part of recurrent training and does not receive recurrent training within two years of the initial training ( *e.g.* , if the employee is on extended leave or no longer works for the employer), then the record would no longer need to be kept. Further, under the proposed language, records of the written receipts or acknowledgements would need to be made available to representatives of FRA and States participating under part 212 for inspection and copying during normal business hours. VIII. Regulatory Impact and Notices A. Executive Order 12866 and DOT Regulatory Policies and Procedures This NPRM has been evaluated in accordance with existing policies and procedures, and determined not to be significant under both Executive Order 12866 and DOT policies and procedures. *See* 44 FR 11034 (Feb. 26, 1979). FRA has prepared and placed in the docket a regulatory evaluation addressing the economic impact of this NPRM. Document inspection and copying facilities are available at the Federal Docket Management Facility, U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. Docket material is also available for inspection on the Internet at *http://www.regulations.gov.* Photocopies may also be obtained by submitting a written request to the FRA Docket Clerk at Office of Chief Counsel, Mail Stop 10, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590; please refer to Docket No. FRA-2008-0059, Notice No. 1. Certain of the requirements reflect current industry practice, or restate existing regulations, or both. As a result, in calculating the costs of this NPRM, FRA has neither included the costs of those actions that would be performed voluntarily in the absence of a regulation, nor has FRA included the costs of those actions that would be required by an existing regulation. This evaluation includes quantitative measurements and qualitative discussions of implementation costs for this proposed rule. The costs would primarily be imposed by a small increase in job briefing time and additional resources spent to provide protection for the safe conduct of other than large-scale maintenance and construction of track adjacent to track with train movements. Training and recordkeeping costs would also accrue. The benefits would primarily accrue from a reduction in roadway worker casualties (fatalities and injuries). Business benefits stemming from avoided train delays and property damages would also accrue. FRA estimates that the present value (PV, 7%) of the total 20-year costs which the industry would be expected to incur to comply with the requirements in this NPRM is $137.8 million. FRA also estimates the PV (7%) of the total 20-year benefits accruing to society from the implementation of the requirements is $88.1 million. FRA believes that taking into account non-quantifiable benefits, including reduced train delays and property damages resulting from roadway worker incidents, the benefits associated with this proposed rule would justify the implementation costs. B. Regulatory Flexibility Act and Executive Order 13272 The Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) and Executive Order 13272 require a review of proposed and final rules to assess their impact on small entities. FRA has prepared and placed in the docket a Small Entity Impact Assessment and Evaluation that assesses the small entity impact of this NPRM. Document inspection and copying facilities are available at the Docket Management Facility, U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. Docket material is also available for inspection on the Internet at *http://www.regulations.gov.* Photocopies may also be obtained by submitting a written request to the FRA Docket Clerk at Office of Chief Counsel, Mail Stop 10, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590; please refer to Docket No. FRA-2008-0059, Notice No. 1. This Small Entity Impact Assessment and Evaluation concludes that this proposed rule would not have a significant economic impact on a substantial number of small entities. In order to determine the significance of the economic impact for the final rule's Regulatory Flexibility Act
(RFA)requirements, FRA invites comments from all interested parties concerning data and information regarding the potential economic impact caused by this proposed rule, during the comment period. The U.S. Small Business Administration
(SBA)stipulates in its “Size Standards” a “for profit” railroad business firm may not have more than 1,500 employees for “Line-Haul Operating” Railroads, and 500 employees for “Switching and Terminal Establishments” to be considered as a “small entity.” 6 “Small entity” is defined in 5 U.S.C. 601 as a small business concern that is independently owned and operated, and is not dominant in its field of operation. SBA's “size standards” may be altered by Federal agencies upon consultation with SBA and in conjunction with public comment. 6 “Table of Size Standards,” U.S. Small Business Administration, January 31, 1996, 13 CFR Part 121. Pursuant to that authority, FRA has published a final policy that classifies “small entities” as being railroads that meet the line haulage revenue requirements of a Class III railroad. 7 Currently, the revenue requirements are 20 million inflation-adjusted dollars or less in annual operating revenue. The $20-million limit is based on the Surface Transportation Board's threshold of a Class III railroad carrier, which is adjusted by applying the railroad revenue deflator adjustment. 8 The same dollar limit on revenues is established to determine whether a railroad shipper or contractor is a small entity. FRA is using this definition of “small entity” for regulatory flexibility purposes in this rulemaking. 7 *See* 68 FR 24891 (May 9, 2003). 8 For further information on the calculation of the specific dollar limit, please reference 49 CFR part 1201. There are approximately 665 small railroads. 9 Potentially all small railroads could be impacted by this proposed regulation. However, because of certain characteristics that these railroads typically have, there should not be any impact on the majority of them. Most only have single-track operations. Some small railroads such as the tourist and historic railroads, operate across the lines of other railroads that would bear the burden or impact of the proposed rules requirements. Finally, others, if they do have more than a single track, typically have operations that are light enough such that the railroads have generally always performed the pertinent trackside work with the track and right-of-way taken out of service, or conducted the work during hours the track is not used. 9 715 railroads −50 (large freight, medium freight, passenger, and commuter railroads) = 665 small railroads. In addition, FRA is not aware of any commuter railroads that qualify as small entities. This is likely because commuter railroad operations in the United States are part of larger governmental entities whose jurisdictions exceed 50,000 in population. FRA is uncertain as to the number of contractors that would be affected by this issue. FRA is aware that some railroads hire contractors to conduct some of the functions of roadway workers on their railroads. However, most of the costs associated with the burdens from this rulemaking would ultimately get passed on to the pertinent railroad. Most likely, the contracts would be written to reflect that, and the contractor would bear no additional burden for the proposed requirements. In addition, FRA is uncertain as to the number of contractors that would be considered to be small entities. FRA requests any information during the rulemaking comment period related to contractors and the burdens that might impact them as a result of this proposed rulemaking. No other small businesses (non-railroads) are expected to be impacted by this proposed rulemaking. There are some minor recordkeeping requirements in the new section of the proposed rule. These proposed requirements relate to documenting that all affected roadway workers are trained on the new section. However, since FRA believes that no small railroads will be required to establish adjacent-track on-track safety to perform track work under the proposed requirements, these recordkeeping requirements are not expected to impact any small railroads. As noted prior, these railroads either only have a single track, and therefore no adjacent track to protect, or currently take all pertinent track out of service when performing track work. The impacts from this regulation are primarily a result of the proposed requirements for roadway work groups to be provided on-track safety when working on a track within close proximity of an adjacent track. Again, since small railroads either do not have any adjacent track or conduct track work on the occupied track with an adjacent track when the adjacent track is out of service, there is no impact for small railroads. Since FRA does not anticipate that this proposed rule would impose any burdens on small entities, there is no alternative treatment proposed for small entities. Having made these determinations, FRA certifies that this NPRM is not expected to have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act or Executive Order 13272. C. Paperwork Reduction Act The information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget
(OMB)under the Paperwork Reduction Act of 19995, 44 U.S.C. 3501 *et seq* . The sections that contain the new information collection requirements, and the estimated time to fulfill each requirement are as follows: CFR section Respondent universe Total annual responses Average time per response Total annual burden hours Total annual burden cost Form FRA F 6180.1119—Part 214 Railroad Workplace Safety Violation Report 350 Safety Inspectors 150 forms 4 hours 600 $24,000 214.303—Railroad On-Track Safety Programs: —Amendments to Programs 718 Railroads 20 prog. amend. + 584 prog. amend 20 hours: 4 hours 2,736 139,536 —Subsequent Years: New Programs 5 New Railroads 5 safety prog 250 hours 1,250 63,750 214.313—Good Faith Challenges to On-Track Safety Rules 20 Railroads 80 challenges 4 hours per challenge 320 12,800 214.315/335—Supervision and Communication Job Briefings 50,000 Roadway Workers 16,350,000 briefings 2 minutes 30 seconds 640,375 21,800,000 214.321—Exclusive Track Occupancy—Working Limits 8,583 Roadway Workers 700,739 written authorities 1 minute 11,679 467,160 214.325—Train Coordination: —Establishing Working Limits through Communication 50,00 Roadway Workers 36,500 communications 15 seconds 152 6,080 214.327—Inaccessible Track: —Working Limits on Non-controlled Track: Notifications 718 Railroads 50,000 occurrences or notifications 10 minutes 8,333 333,320 214.336—Procedures for Adjacent-Track Movements Over 25 mph (New Requirements) : Notifications/Watchmen/ Lookout Warnings 100 Railroads 10,000 warnings 15 seconds 42 1,680 —Roadway Worker Communication with Train Engineers or Equipment Operators 100 Railroads 3,000 communications 1 minute 50 2,000 —Procedures for Adjacent-Track Movements 25 mph or less: Notifications/Watchmen/Lookout Warnings 100 Railroads 3,000 warnings 15 seconds 13 520 —Roadway Worker Communication with Train Engineers or Equipment Operators 100 Railroads 1,500 communic. 1 minute 25 1,000 —Training 718 Railroads 35,000 tr. empl 5 minutes 2,916 1 0 —Recordkeeping 718 Railroads 35,000 receipts + 35,000 coopies 1 minute; 3 seconds 612 24,480 214.337—On-Track Safety Procedures for Lone Workers: Statements by Lone Workers 718 Railroads 2,080,000 statements 30 seconds 17,333 693,320 214.343/345/347/349/351/353/355—Training Requirements 50,000 Roadway Workers 50,000 tr. Empl 4.5 hours 225,000 9,000,000 —Records of Training 50,000 Roadway Workers 50,000 records 2 minutes 1,667 85,017 214.503—Good Faith Challenges; Procedures for Notification and Resolution.—Notice of Unsafe Vehicle or Non-compliance with FRA rules 50,000 Roadway Workers 125 notifications 10 minutes 21 840 —Development of Resolution Procedures 644 Railroads 10 procedures 2 hours 20 1,020 214.505—Req'd Environmental Control and Protection Systems for New On-Line Roadway Maintenance Machines with Enclosed Cabs 644 Railroads 9 lists 1 hour 9 459 214.507—A-Built Light Weight on New Roadway Maintenance Machines 644 Railroads 1,000 stickers 5 minutes 83 3,320 214.511—Req'd Audible Warning Devices for New On-Track Roadway Maintenance Machines 644 Railroads 3,700 identified mechanisms 5 minutes 308 12,320 214.513—Retrofitting of Existing On-Track Roadway Maintenance Machines: —Identification of Triggering Mechanism—Horns 644 Railroads 200 mechanisms 5 minutes 17 680 214.515—Overhead Covers for Existing On-Track Roadway Maintenance Machines 645 Railroads 500 requests + 500 responses 10 minutes; 20 minutes 250 11,837 214.517—Retrofitting of Existing On-Track Roadway Maintenance Machines Manufactured After 1990: Stenciling/Marking of Light Weight 644 Railroads 500 stencils 5 minutes 42 1,680 214.518—Safe and Secure Position for Riders: —Positions identified by stencilings/markings/notices 644 Railroads 1,000 stencils 5 minutes 83 3,320 214.523—Hi-Rail Vehicles 644 Railroads 2,000 insp. record 60 minutes 2,000 80,000 —Non-Complying Conditions 644 Railroads 500 tags + 500 reports 10 minutes; 15 minutes 208 8,320 214.527—Inspection for Compliance; Repair Schedules 644 Railroads 550 tags + 550 reports 5 minutes; 15 minutes 184 7,360 214.533—Schedule of Repairs; Subject to Availability of Parts: Compliance Records 644 Railroads 250 records 15 minutes 63 3,213 1 Incl. RIA. All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA solicits comments concerning: whether these information collection requirements are necessary for the proper performance of the functions of FRA, including whether the information has practical utility; the accuracy of FRA's estimates of the burden of the information collection requirements; the quality, utility, and clarity of the information to be collected; and whether the burden of collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology, may be minimized. For information or a copy of the paperwork package submitted to OMB, contact Mr. Robert Brogan, Information Clearance Officer, at 202-493-6292, or Ms. Nakia Poston at 202-493-6073. Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to Mr. Robert Brogan or Ms. Nakia Poston, Federal Railroad Administration, 1200 New Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also be submitted via e-mail to Mr. Brogan or Ms. Poston at the following address: *robert.brogan@dot.gov* ; *nakia.poston@dot.gov* . OMB is required to make a decision concerning the collection of information requirements contained in this proposed rule between 30 and 60 days after publication of this document in the **Federal Register.** Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal. FRA is not authorized to impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of the final rule. The OMB control number, when assigned, will be announced by separate notice in the **Federal Register.** D. Federalism Implications FRA has analyzed this NPRM in accordance with the principles and criteria contained in Executive Order 13132, issued on August 4, 1999, which directs Federal agencies to exercise great care in establishing policies that have federalism implications. *See* 64 FR 43255. This NPRM will not have a substantial direct effect on the States, on the relationship between the National government and the States, or on the distribution of power and responsibilities among various levels of government. One of the fundamental federalism principles, as stated in section 2(a) of Executive Order 13132, is that “Federalism is rooted in the belief that issues that are not national in scope or significance are most appropriately addressed by the level of government closest to the people.” Congress expressed its intent that there be national uniformity of regulation concerning railroad safety matters when it enacted 49 U.S.C. 20106. That section provides that all regulations prescribed by the Secretary of Transportation with respect to railroad safety matters and the Secretary of Homeland Security with respect to railroad security matters preempt any State law, regulation, or order covering the same subject matter, except a provision necessary to eliminate or reduce an essentially local safety or security hazard that is not incompatible with a Federal law, regulation, or order and that does not unreasonably burden interstate commerce. Nothing in this NPRM proposes to alter the preemptive effect of the RWP Rule. FRA notes that the above factors have been considered throughout the development of this NPRM both internally and through consultation within the RSAC forum, as described in Sections VI and VII of this preamble. The full RSAC, which, prior to the publication of this NPRM, reached consensus on the proposed rule text and recommended the proposal to FRA, has as permanent voting members two organizations representing State and local interests: AASHTO and ASRSM. As such, these State organizations concurred with the proposed requirements, which differ in only limited respects from the requirements contained in this NPRM. The RSAC regularly provides recommendations to the FRA Administrator for solutions to regulatory issues that reflect significant input from its State members. To date, FRA has received no indication of concerns about the Federalism implications of this rulemaking from these representatives or from any other representative. For the foregoing reasons, FRA believes that this NPRM is in accordance with the principles and criteria contained in Executive Order 13132. E. Environmental Impact FRA has evaluated this NPRM in accordance with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) ( *see* 64 FR 28545 (May 26, 1999)) as required by the National Environmental Policy Act ( *see* 42 U.S.C. 4321 *et seq.* ), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined that this NPRM is not a major FRA action (requiring the preparation of an environmental impact statement or environmental assessment) because it is categorically excluded from detailed environmental review pursuant to section 4(c)(20) of FRA's Procedures. *See* 64 FR 28547 (May 26, 1999). In accordance with section 4(c) and
(e)of FRA's Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. As a result, FRA finds that this NPRM is not a major Federal action significantly affecting the quality of the human environment. F. Unfunded Mandates Reform Act of 1995 Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. No. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires the following: [B]efore promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (annually adjusted for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement* * * The written statement must detail the effect on State, local, and tribal governments and the private sector. This NPRM will not result in the expenditure, in the aggregate, of $132,300,000 in any one year, and thus preparation of such a statement is not required. G. Energy Impact Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” *See* 66 FR 28355 (May 22, 2001). Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in the **Federal Register** ) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) That is a significant regulatory action under Executive Order 12866 or any successor order, and
(ii)is likely to have a significant adverse effect on the supply, distribution, or use of energy; or
(2)that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. FRA has evaluated this NPRM in accordance with Executive Order 13211. FRA has determined that this NPRM is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA has determined that this regulatory action is not a “significant energy action” within the meaning of Executive Order 13211. H. Trade Impact The Trade Agreements Act of 1979 (Pub. L. No. 96-39, 19 U.S.C. 2501 *et seq.* ) prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. FRA has assessed the potential effect of this NPRM on foreign commerce and believes that its requirements are consistent with the Trade Agreements Act. The requirements imposed are safety standards, which, as noted, are not considered unnecessary obstacles to trade. I. Privacy Act Anyone is able to search the electronic form of all comments received into any of FRA's 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 DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://DocketsInfo.dot.gov.* IX. List of Subjects in 49 CFR Part 214 Occupational safety and health, Penalties, Railroad safety, Reporting and recordkeeping requirements. The Proposed Rule In consideration of the foregoing, FRA proposes to amend part 214 of chapter II, subtitle B of title 49, Code of Federal Regulations, as follows: PART 214—[AMENDED] 1. The authority citation for part 214 is revised to read as follows: Authority: 49 U.S.C. 20102-20103, 20107, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.49. Subpart A—General § 214.7 [Amended] 2. Section 214.7 is amended by removing the definition of “Adjacent tracks”. Subpart C—Roadway Worker Protection 3. Section 214.315 is amended by revising paragraph
(a)to read as follows: § 214.315 Supervision and communication.
(a)When an employer assigns a duty to a roadway worker that calls for that employee to foul a track, the employer shall provide the employee with an on-track safety job briefing that, at a minimum, includes the following:
(1)Information on the means by which on-track safety is to be provided for each track identified to be fouled;
(2)Instruction on each on-track safety procedure to be followed; and
(3)Information about any tracks adjacent to the track to be fouled, on-track safety for such tracks, if required by this subpart, and identification of any roadway maintenance machines that will foul such tracks. In such cases, the on-track safety job briefing shall address the nature of the work to be performed and the characteristics of the work location to ensure compliance with this subpart. 4. Section 214.335 is amended by removing paragraph
(c)and revising the section heading to read as follows: § 214.335 On-track safety procedures for roadway work groups, general. 5. New § 214.336 is added to read as follows: § 214.336 Adjacent-track on-track safety for certain roadway work groups; procedures, training, and recordkeeping.
(a)*Procedures; general.* Except as provided in paragraph
(b)of this section, on-track safety is required for each adjacent track when a roadway work group with at least one of the roadway workers on the ground, is engaged in a common task with an on-track roadway maintenance machine or coupled equipment on an occupied track. The required on-track safety shall be in accordance with § 214.319 (Working limits, generally); § 214.321 (Exclusive track occupancy); § 214.323 (Foul time); § 214.325 (Train coordination); or § 214.329 (Train approach warning provided by watchmen/lookouts) and as more specifically described in this paragraph (a). If an occupied track has two adjacent tracks, and one of the tracks has one or more adjacent-track movements authorized at 25 mph or less, and the other has one or more concurrent adjacent-track movements authorized at over 25 mph, the more restrictive procedures in paragraph (a)(1) of this section apply. For purposes of this section, “ *adjacent track* ” means a controlled track whose track center is spaced 19 feet or less from the track center of the occupied track, and “ *occupied track* ” means the track on which a roadway maintenance machine or coupled equipment is located while engaged in a common task with a roadway work group.
(1)*Procedures for adjacent-track movements over 25 mph.* If a train or other on-track equipment is authorized to move on an adjacent track at a speed greater than 25 mph, each roadway work group to which this section applies must comply with the following procedures:
(i)Each roadway worker in the roadway work group shall cease any on-ground work and movement of any roadway maintenance machine or coupled equipment in the fouling space of the occupied track and the adjacent track, and occupy a predetermined place of safety upon receiving—
(A)A watchman/lookout warning, if on-track safety through train approach warning (§ 214.329) has been established on the adjacent track; or
(B)A notification in accordance with § 214.319(c) that the roadway worker in charge intends to authorize one or more train or other on-track equipment movements through the working limits on the adjacent track, if adjacent-track on-track safety has been established through working limits alone.
(ii)A component of a roadway work group may resume on-ground work and movement of any roadway maintenance machine or coupled equipment on or fouling the occupied track only after the head-end of all trains or other on-track equipment moving on the adjacent track (either authorized through the working limits by the roadway worker in charge or for which a watchman/lookout has provided a warning) has passed and remains ahead of that component of the roadway work group; however, if the train or other on-track equipment stops before its head-end has passed all of the roadway workers in the roadway work group (or if a roadway worker in the roadway work group moves to a position on or fouling the occupied track in advance of the head-end of the adjacent-track movement), the work to be performed on or fouling the occupied track ahead of the train or other on-track equipment on the adjacent track may resume only—
(A)If on-track safety through train approach warning (§ 214.329) is still in effect or has been re-established on the adjacent track; or
(B)After the roadway worker in charge has communicated with the train engineer or equipment operator and obtained or regained control of such train or other on-track equipment, if adjacent-track on-track safety has been established by working limits alone.
(2)*Procedures for adjacent-track movements 25 mph or less.* If a train or other on-track equipment is authorized to move on an adjacent track at a speed of 25 mph or less, each roadway work group to which this section applies must comply with the procedures listed in paragraph (a)(1) of this section, except that the following work may continue:
(i)Work that is performed exclusively while positioned between the rails of the occupied track, provided that any on-ground work is performed more than 25 feet away from the front or rear of any roadway maintenance machine on or fouling the occupied track during such adjacent-track movement;
(ii)Work that is performed exclusively to the field side of the occupied track furthest from the adjacent track where the movement is authorized, provided that—
(A)Either no adjacent track is on that side or on-track safety has been established in accordance with this subpart on any adjacent track on that side; and
(B)Any on-ground work is performed more than 25 feet away from the front or rear of any roadway maintenance machine on or fouling the occupied track during such adjacent-track movement.
(3)*Procedures for a roadway maintenance machine or coupled equipment fouling an adjacent track.* A roadway maintenance machine or coupled equipment shall not foul an adjacent track unless working limits have been established on the adjacent track and there are no movements authorized through the working limits by the roadway worker in charge.
(b)*Exceptions to the requirement for adjacent-track on-track safety.* Adjacent-track on-track safety is not required for the work activities described in paragraphs (b)(1) through (b)(3) of this section. Nothing in this section prohibits the roadway worker in charge from establishing adjacent-track on-track safety as he or she deems necessary.
(1)One or more on-ground roadway workers performing work while exclusively positioned on the field side of the occupied track, provided that either no adjacent track is on that side or on-track safety has been established in accordance with this subpart on any such adjacent track.
(2)A hi-rail vehicle on or fouling the occupied track while engaged in a common task with one or more roadway workers on the ground, provided such hi-rail vehicle is not coupled to one or more railroad cars.
(3)A catenary maintenance tower car on or fouling the occupied track that is engaged in a common task with one or more roadway workers positioned on the ground within the gage of the occupied track for the sole purpose of applying or removing grounds.
(c)*Training.* Prior to assigning an employee to perform roadway worker duties for which adjacent-track on-track safety is required, the employer shall provide the employee with—
(1)Training on the procedures for adjacent-track on-track safety required by this section; or
(2)A copy of a railroad-issued bulletin, order, general order, notice, operating rule, or other document adopting the procedures for adjacent-track on-track safety required by this section.
(d)*Recordkeeping.*
(1)Each employer shall obtain from each affected employee a written receipt or acknowledgement of the adjacent-track on-track safety training or document required by paragraph (c). If the training is received for the first time as part of an employee's recurrent training, a record kept pursuant to § 214.343(d) serves as the receipt or acknowledgement for purposes of this section.
(2)Each employer shall retain the written receipt or acknowledgement required by paragraph (d)(1) of this section—
(i)Until the employee receives, pursuant to § 214.343, recurrent training that includes discussion of the procedures for adjacent-track on-track safety required by this section; or
(ii)For two years following the date the employee was provided with the training or document required by paragraph (d)(1) of this section.
(3)Records of the written receipts or acknowledgements shall be made available to representatives of FRA and States participating under 49 CFR part 212 for inspection and copying during normal business hours. Issued in Washington, DC, on July 9, 2008. Joseph H. Boardman, Administrator. [FR Doc. E8-16140 Filed 7-16-08; 8:45 am] BILLING CODE 4910-06-P 73 138 Thursday, July 17, 2008 Presidential Documents Part IV The President Proclamation 8273—FBI Day, 2008 Title 3— The President Proclamation 8273 of July 14, 2008 FBI Day, 2008 By the President of the United States of America A Proclamation For 100 years, the committed men and women of the Federal Bureau of Investigation have worked diligently to deliver justice and keep Americans safe. On FBI Day, we recognize the Bureau's many accomplishments and pay tribute to all who have served in its ranks with valor and dedication. The FBI traces its origins to 1908, when under the leadership of President Theodore Roosevelt and Attorney General Charles Bonaparte, a force of Special Agents was created, later to be called the Bureau of Investigation. As a Federal agency with the power to investigate crimes across State lines and enforce Federal law, the FBI has protected our country against threats from abroad and caught dangerous criminals like “Baby Face” Nelson, John Dillinger, Ted Kaczynski, and Ramzi Yousef. Today, the FBI is charged with guarding our Nation from terrorist attacks, combating public corruption and organized crime, resisting cyber attacks, and opposing other high-technology crimes. The FBI also has a deep commitment to civil rights, helping protect the values we cherish. With an abiding respect for the Constitution, the men and women of the FBI bring strength, impartiality, and devotion to their pursuit of justice. They continue to uphold their motto of “Fidelity, Bravery, Integrity.” On FBI Day, we especially remember the fallen agents who paid the ultimate price in serving our country and keeping our Nation safe. NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim July 26, 2008, as FBI Day. I call upon all Americans to recognize the 100th anniversary of the Federal Bureau of Investigation. IN WITNESS WHEREOF, I have hereunto set my hand this fourteenth day of July, in the year of our Lord two thousand eight, and of the Independence of the United States of America the two hundred and thirty-third. GWBOLD.EPS [FR Doc. 08-1448 Filed 7-16-08; 12:03 pm]
Connections4 cite this · traces to 87
Cited by 4 sections · top 2
Traces to 87 documents
U.S. Code
CFR
91 references not yet in our index
  • Pub. L. 106-503
  • 43 CFR 2650.7(d)
  • 43 CFR 4
  • 43 CFR 8364.1
  • 43 CFR 8341.1(f)
  • 43 USC 1331-1356
  • 30 CFR 256
  • 30 CFR 256.37
  • 30 CFR 260
  • 30 CFR 218.151
  • 30 CFR 203
  • 30 CFR 260.122(b)(2)
  • 30 CFR 260.122(c)
  • 30 CFR 256.41
  • 30 CFR 256.46
  • 30 CFR 256.46(b)
  • 30 CFR 218.155
  • 41 CFR 60
  • 30 CFR 251.12
  • 5 USC 16(b)
  • 56 F.3d 1448
  • 489 F. Supp. 2d 1
  • 489 F. Supp. 2
  • 858 F.2d 456
  • 648 F.2d 660
  • 152 F. Supp. 2d 37
  • 272 F. Supp. 2d 1
  • 406 F. Supp. 713
  • 552 F. Supp. 131
  • 460 U.S. 1001
  • 605 F. Supp. 619
  • 107 F. Supp. 2d 10
  • Pub. L. 104-13
  • 10 CFR 50
  • 10 CFR 2
  • 10 CFR 51
  • 10 CFR 52
  • Pub. L. 103-322
  • 108 Stat. 1796
  • 17 CFR 240.19
+ 51 more
Citation graph
cites case law
Notices
Notice of Availability
Fed. Reg.×4
Fed. Reg.Notices
U.S.C.§ 4371
U.S.C.§ 3571
U.S.C.§ 1331
C.F.R.§ 250.175
C.F.R.§ 203.41
C.F.R.§ 203.0
U.S.C.§ 1860
Fed. Reg.Notices
F. App'x56 F.3d 1448
F. Supp.489 F. Supp. 2d 1
F. Supp.489 F. Supp. 2
Cites 178 · showing 12Cited by 4 across 1 source
★   the supreme law of the land   ★
Don't Tread on Me
E Pluribus Unum — out of many, one

"If you don't know your rights, you don't have any."

Marginalia · a citizen's law index
A research desk, not legal advice. Always read the cited source before relying on a summary.
Questions or an issue? support@self-law.org
disclaimerMarginalia is a research index, not a law firm. Nothing on this site is legal, tax, or financial advice and no attorney–client relationship is formed by using it. Statutes, regulations, and case law change; summaries, search results, AI output, and member posts may be incomplete, out of date, or wrong. Any interpretation drawn from material on this site should be validated by a licensed attorney in your jurisdiction before you act on it.