[Federal Register Volume 73, Number 206 (Thursday, October 23, 2008)]
[Proposed Rules]
[Pages 63085-63090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25289]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 2

[Docket No. APHIS-2006-0159]
RIN 0579-AC69


Handling of Animals; Contingency Plans

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the Animal Welfare Act regulations 
to add requirements for contingency planning and training of personnel 
by research facilities and by dealers, exhibitors, intermediate 
handlers, and carriers. We are proposing these requirements because we 
believe all licensees and registrants should develop

[[Page 63086]]

a contingency plan for all animals regulated under the Animal Welfare 
Act in an effort to better prepare for potential disasters. This action 
would heighten the awareness of licensees and registrants regarding 
their responsibilities and help ensure a timely and appropriate 
response should an emergency or disaster occur.

DATES: We will consider all comments that we receive on or before 
December 22, 2008.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2006-0159 to submit or view comments and 
to view supporting and related materials available electronically.
     Postal Mail/Commercial Delivery: Please send two copies of 
your comment to Docket No. APHIS-2006-0159, Regulatory Analysis and 
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, 
Riverdale, MD 20737-1238. Please state that your comment refers to 
Docket No. APHIS-2006-0159.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in room 1141 of 
the USDA South Building, 14th Street and Independence Avenue, SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at http://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Dr. Jodie Kulpa-Eddy, Staff 
Veterinarian, Animal Care, APHIS, 4700 River Road Unit 84, Riverdale, 
MD 20737; (301) 734-7833.

SUPPLEMENTARY INFORMATION:

Background

    Under the Animal Welfare Act (AWA) (7 U.S.C. 2131 et seq.), the 
Secretary of Agriculture is authorized to promulgate standards and 
other requirements governing the humane handling, care, treatment, and 
transportation of certain animals by dealers, research facilities, 
exhibitors, operators of auction sales, carriers, and intermediate 
handlers. Regulations established under the AWA are contained in the 
Code of Federal Regulations (CFR) in 9 CFR parts 1 and 2, and 9 CFR 
part 3 contains standards for the humane handling, care, treatment, and 
transportation of animals covered by the AWA. Part 3 consists of 
subparts A through E, which contain specific standards for dogs and 
cats, guinea pigs and hamsters, rabbits, nonhuman primates, and marine 
mammals, respectively, and subpart F, which sets forth general 
standards for warmblooded animals not otherwise specified.
    The only requirement for contingency planning by licensees and 
registrants currently in the regulations is located in Sec.  3.101(b), 
which covers water and power supply requirements at facilities housing 
marine mammals. Specifically, this section requires facilities to 
submit written contingency plans to the Deputy Administrator of Animal 
Care (AC) regarding emergency sources of water and electric power 
should primary sources fail. Among other things, the plans must include 
evacuation plans in the event of a disaster and a description of backup 
systems and/or arrangements for relocating marine mammals requiring 
artificially cooled or heated water.
    Following the events experienced during the 2005 hurricane season, 
a Federal document, ``The Federal Response to Katrina: Lessons 
Learned,'' which can be found on the Internet at http://www.whitehouse.gov/reports/katrina-lessons-learned/, was published that 
highlighted the need for planning to minimize the impact of disasters. 
AC's experience indicates that, although contingency planning would 
benefit the health and welfare of animals covered by the AWA, at least 
some entities responsible for regulated animals have not undertaken 
such planning. Therefore, we believe all licensees and registrants 
should be required to develop a contingency plan for all animals 
regulated under the AWA in an effort to better prepare for potential 
disasters. We are proposing to add requirements for contingency plans, 
and training of personnel regarding their roles and responsibilities, 
to a new Sec.  2.38(l) for research facilities and to a new Sec.  2.134 
for dealers, exhibitors, intermediate handlers, and carriers. For 
marine mammal facilities, these proposed requirements would be in 
addition to the requirements of Sec.  3.101(b) mentioned above.
    The regulations in current Sec.  2.38(i) allow a person or premises 
to be designated as a recognized animal site for holding animals in 
lieu of a research facility, if the research facility obtains prior 
approval of the AC Regional Director. Likewise, the regulations in 
Sec.  2.102 allow a person or premises to be designated as a recognized 
animal site for holding animals in lieu of a dealer, exhibitor, or 
intermediate handler if the dealer, exhibitor, or intermediate handler 
obtains prior approval of the AC Regional Director. We would also amend 
these provisions to require that any site so designated either be 
directly included in the contingency plan of the research facility, 
dealer, exhibitor, or intermediate handler or develop its own 
contingency plan in accordance with the regulations for research 
facilities, dealers, exhibitors, or intermediate handlers.
    Due to the fact that the individual circumstances for facilities 
may be different (e.g., holding exotic animals versus pet animals, 
being situated in a State with a cold climate versus a temperate 
climate, etc.), it is difficult to go into specific detail as to what 
elements must be included in all contingency plans. However, we are 
proposing a set of general criteria to which contingency plans would 
have to adhere. These criteria would require licensees and registrants 
to develop contingency plans that:
     Identify situations the facility might experience that 
would trigger the need for a contingency plan, including emergencies 
such as electrical outages, faulty HVAC systems, fires, and animal 
escapes, as well as natural disasters the facility is most likely to 
experience. Listings of areas most at risk for specific natural 
disasters can be found on the U.S. Geological Survey Web site at http://www.usgs.gov/hazards or on the Weather Channel Web site at http://www.weather.com/ready/?from=secondarynav.
     Outline specific tasks required to be carried out in 
response to the identified emergencies including, but not limited to, 
detailed animal evacuation instructions or shelter-in-place 
instructions and provisions for providing backup sources of food and 
water as well as sanitation, ventilation, bedding, veterinary care, 
etc.
     Identify a chain of command and who (by name or by 
position title) will be responsible for fulfilling these tasks.
     Address how response and recovery will be handled in terms 
of materials, resources, and training needed.
    We are also considering the development of a guidance document (or 
other means) to provide examples of elements that may be included in 
contingency plans. We welcome public comment on Web sites, articles, or 
other sources that may be used to develop such guidance, in addition to 
suggestions as to what elements should be included as examples for an 
adequate contingency plan. We would retain the specific requirements in 
Sec.  3.101(b) that are applicable to marine mammals.

[[Page 63087]]

    We are further proposing that the plans be made available to APHIS 
upon request and, in the case of research facilities, to any funding 
Federal agency representatives. Contingency plans would have to be in 
place 180 days after any final rule following this proposal became 
effective and would have to be reviewed by the research facility, 
dealer, exhibitor, intermediate handler, or carrier on at least an 
annual basis. Training of personnel would have to take place within 60 
days following the adoption of a contingency plan by the research 
facility, dealer, exhibitor, intermediate handler, or carrier. 
Employees hired within 30 days or less after adoption of the 
contingency plan would be included in the training period taking place 
within 60 days following adoption of the contingency plan. For 
employees hired more than 30 days after adoption of the contingency 
plan, training would have to be conducted within 30 days of their start 
date. Training of personnel could be developed and offered by the 
research facility, dealer, exhibitor, intermediate handler, or carrier 
or provided by an outside entity.
    Each research facility, dealer, exhibitor, intermediate handler, or 
carrier would be expected to review its contingency plan on at least an 
annual basis to ensure their plan adequately addresses the four 
criteria listed above. For licensees and registrants who travel with 
animals or have multiple sites where animals are maintained, their 
contingency plans would have to address potential hazards for all areas 
where the animals are maintained for regulated purposes. Any changes to 
a contingency plan resulting from the annual review would have to be 
communicated to employees through training, which would have to be 
conducted within 30 days of making the changes. The plan would also be 
reviewed by APHIS personnel as a part of the routine inspection process 
(similar to the process for our review of dog exercise and nonhuman 
primate environment enhancement plans).

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. This rule 
has been determined to be significant for the purposes of Executive 
Order 12866 and, therefore, has been reviewed by the Office of 
Management and Budget.
    For this proposed rule, we have prepared an economic analysis, 
which is summarized below. The analysis includes an initial regulatory 
flexibility analysis that considers the potential economic effects of 
the proposed rule on small entities as required by the Regulatory 
Flexibility Act, and a cost-benefit analysis as required by Executive 
Order 12866. The full economic analysis may be viewed on the 
Regulations.gov Web site or in our reading room (see ADDRESSES above 
for instructions for accessing Regulations.gov). The full analysis may 
also be obtained from the person listed under FOR FURTHER INFORMATION 
CONTACT.
    Lack of disaster preparedness can leave businesses and 
organizations and the animals in their care vulnerable, as was the case 
in the southern United States in 2005. The devastating impact of the 
2005 hurricane season, in particular the many animals that were 
stranded and died in the aftermath of Hurricane Katrina, underscores 
the need for contingency planning for all animals covered under the 
Animal Welfare Act. Regulated animal populations, in addition to non-
regulated animal populations, suffered as a result of the hurricane. In 
one particular instance, 90 percent of the animals left in a facility 
after personnel were evacuated either died or had to be humanely 
euthanized.
    In 2004, USDA's Animal Care reported 1,101,958 animals, including 
dogs, cats, guinea pigs, nonhuman primates, hamsters, and rabbits, were 
used by registered research facilities (http://www.aphis.usda.gov/animal_welfare/publications_and_reports.shtml). This does not 
include regulated animals in zoos and other types of facilities. This 
high number of animals used by research facilities illustrates the need 
for contingency plans to protect animals and mitigate impacts of 
natural and manmade disasters.
    Currently, only facilities that house marine mammals are required 
under the regulations to develop contingency plans. The proposed rule 
would require that all licensees and registrants, of which there are 
more than 10,000, develop and document contingency plans for all other 
animals covered under the Act. In addition, training and 
familiarization with these plans would have to be provided to all 
facility employees.
    The proposed requirements may affect research facilities, dealers, 
exhibitors, intermediate handlers, and carriers that fall into nine 
categories of the North American Industry Classification System 
(NAICS). For the purposes of this analysis, the potentially affected 
entities are classified within the following industries: All Other 
Animal Production (NAICS 112990), Pet and Pet Supplies Stores (NAICS 
453910),\1\ Schedule Freight Transport (NAICS 48112), Research and 
Development in Physical Engineering and Life Sciences (NAICS 541710), 
Veterinary Services (NAICS 541940), Zoos and Botanical Gardens (NAICS 
712130), Nature Park and Other Similar Institutions (NAICS 712190), 
Environment Conservation and Wildlife Organizations (NAICS 813312), and 
Pet Care Services (NAICS 812910). Data are unavailable on the size of 
the specific entities, but we may assume that the majority of the 
establishments that would be affected by the rule are small, based on 
the industry estimates obtained from the Economic Census and the Census 
of Agriculture.
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    \1\ Businesses are included in this category if they deal in 
exotic pets such as primates.
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    In terms of economic impacts, we anticipate that the proposed 
changes would only impose minimal costs to develop and document the 
contingency plans and provide employee training. This is because the 
cost of training for facility personnel is expected to vary depending 
on the type and size of business and many of the larger facilities, in 
particular, already have contingency plans in place. In addition, there 
is a wealth of information available from various Federal and State 
agencies and private organizations that addresses animal disaster 
planning. A list of resources that may aid in the development and 
implementation of contingency plans is included in the full economic 
analysis.
    We do not have any estimates of the costs of implementing 
contingency plans for facilities that do not already have contingency 
plans in place, such as the costs of equipment or materials that may be 
needed. We welcome public comment on the types of equipment or 
materials that may be needed to implement contingency plans and the 
costs of this equipment or materials.

Significant Alternatives to the Rule

    One alternative to the rule would be to require that all licensees 
and registrants submit their contingency plans to APHIS for review, as 
is required for the marine mammal facilities. There are more than 
10,000 licensees and registrants that would be submitting plans for 
review under this alternative, which we expect would take an enormous 
amount of resources for the Agency to process, review, and store. 
Another alternative would be to retain the status quo, i.e., not amend 
the regulations to require regulated entities other than marine mammal 
facilities to prepare contingency plans. However, we believe that this 
alternative would

[[Page 63088]]

not provide adequate protection for the general public and the animals 
in these facilities. Thus, the approach we are proposing in this 
document, which would ensure that contingency plans are developed and 
can be reviewed by APHIS during scheduled inspection visits or at other 
times, is preferred.

Summary

    Preparedness for disasters can reduce harm caused to animals and 
loss of life. The devastating impact of the 2005 hurricane season 
underscores the need for contingency planning for all animals covered 
under the Animal Welfare Act. Currently, only facilities that house 
marine mammals are required under 9 CFR 3.101 to develop contingency 
plans. The proposed rule would require that all licensees and 
registrants develop and document contingency plans for all other 
animals covered under the Act. In addition, training and 
familiarization with these plans would be provided to all facility 
employees. The licensees and registrants fall into various categories 
of the North American Industry Classification System and while no 
economic data are available on business size for the specific entities, 
we may assume the majority of the establishments are small, based on 
the industry estimates obtained from the Economic Census and the Census 
of Agriculture. In terms of economic impacts, we anticipate that the 
proposed rule would only impose minimal costs to develop and document 
the contingency plans and provide employee training. The cost of 
training for facility personnel is expected to vary depending on the 
type and size of business. Many of the larger facilities, in 
particular, already have contingency plans in place. Overall, we do not 
anticipate a substantial economic impact on the entities affected. 
Nevertheless, APHIS welcomes public comment on the proposed rule's 
possible impacts, including the cost of implementing contingency plans.

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. It is not intended to have retroactive effect. 
This rule would not preempt any State or local laws, regulations, or 
policies, unless they present an irreconcilable conflict with this 
rule. The Act does not provide administrative procedures which must be 
exhausted prior to a judicial challenge to the provisions of this rule.

Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this proposed rule have been 
submitted for approval to the Office of Management and Budget (OMB). 
Please send written comments to the Office of Information and 
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, 
DC 20503. Please state that your comments refer to Docket No. APHIS-
2006-0159. Please send a copy of your comments to: (1) Docket No. 
APHIS-2006-0159, Regulatory Analysis and Development, PPD, APHIS, 
Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, 
and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and 
Independence Avenue, SW., Washington, DC 20250. A comment to OMB is 
best assured of having its full effect if OMB receives it within 30 
days of publication of this proposed rule.
    The proposed rule would amend the current regulations and would 
require all licensees and registrants, which include research 
facilities, dealers, exhibitors, intermediate handlers, and carriers, 
to develop and document contingency plans for the handling of animals 
during all emergencies or disasters.
    These criteria would require licensees and registrants to develop 
contingency plans that:
     Identify situations the facility might experience that 
would trigger the need for a contingency plan, including emergencies 
such as electrical outages, faulty HVAC systems, fires, and animal 
escapes, as well as natural disasters the facility is most likely to 
experience.
     Outline specific tasks required to be carried out in 
response to the identified emergencies or disasters including, but not 
limited to, detailed animal evacuation instructions or shelter-in-place 
instructions and provisions for providing backup sources of food and 
water as well as sanitation, ventilation, bedding, veterinary care, 
etc.
     Identify a chain of command and who (by name or by 
position title) will be responsible for fulfilling these tasks.
     Address how response and recovery will be handled in terms 
of materials, resources, and training needed.
    We are further proposing that the plans be made available to APHIS 
upon request and, in the case of research facilities, to any funding 
Federal agency representatives. Contingency plans would have to be in 
place 180 days after any final rule following this proposal became 
effective and would have to be reviewed by the research facility, 
dealer, exhibitor, intermediate handler, or carrier on at least an 
annual basis.
    We are soliciting comments from the public (as well as affected 
agencies) concerning our proposed information collection and 
recordkeeping requirements. These comments will help us:
    (1) Evaluate whether the proposed information collection is 
necessary for the proper performance of our agency's functions, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
proposed information collection, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as 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).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated at 4 to 6 hours (average 5 hours) per 
response.
    Respondents: Dealers, exhibitors, research facilities, carriers and 
intermediate handlers.
    Estimated annual number of respondents: 10,351.
    Estimated annual number of responses per respondent: 1.
    Estimated annual number of responses: 10,351.
    Estimated total annual burden on respondents: 51,755 hours. (Due to 
averaging, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the reporting burden per 
response.)
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 
851-2908.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the E-Government Act to promote the use of the Internet 
and other information technologies, to provide increased opportunities 
for citizen access to Government information and services, and for 
other purposes. For information pertinent to

[[Page 63089]]

E-Government Act compliance related to this proposed rule, please 
contact Mrs. Celeste Sickles, APHIS' Information Collection 
Coordinator, at (301) 851-2908.

List of Subjects in 9 CFR Part 2

    Animal welfare, Pets, Reporting and recordkeeping requirements, 
Research.

    Accordingly, we propose to amend 9 CFR part 2 as follows:

PART 2--REGULATIONS

    1. The authority citation for part 2 continues to read as follows:

    Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.7.

    2. Section 2.38 is amended by adding new paragraphs (i)(4) and (l) 
to read as follows:


Sec.  2.38  Miscellaneous.

* * * * *
    (i) * * *
    (4) The other person or premises must either be directly included 
in the research facility's contingency plan required under paragraph 
(l) of this section or must develop its own contingency plan in 
accordance with paragraph (l) of this section.
* * * * *
    (l) Contingency planning. (1) Research facilities must develop, 
document, and follow an appropriate plan to provide for the humane 
handling, treatment, transportation, housing, and care of their animals 
in the event of an emergency or disaster (one which could reasonably be 
anticipated and expected to be detrimental to the good health and well-
being of the animals in their possession). Such contingency plans must:
    (i) Identify situations the facility might experience that would 
trigger the need for a contingency plan, including emergencies such as 
electrical outages, faulty HVAC systems, fires, and animal escapes, as 
well as natural disasters the facility is most likely to experience.
    (ii) Outline specific tasks required to be carried out in response 
to the identified emergencies or disasters including, but not limited 
to, detailed animal evacuation instructions or shelter-in-place 
instructions and provisions for providing backup sources of food and 
water as well as sanitation, ventilation, bedding, veterinary care, 
etc.;
    (iii) Identify a chain of command and who (by name or by position 
title) will be responsible for fulfilling these tasks; and
    (iv) Address how response and recovery will be handled in terms of 
materials, resources, and training needed.
    (2) The contingency plan must be in place by [date 180 days after 
effective date of final rule]. This plan must be made available to 
APHIS and any funding Federal agency representatives upon request. The 
plan must be reviewed by the research facility on at least an annual 
basis to ensure that it adequately addresses the criteria listed in 
paragraph (l)(1) of this section. Facilities maintaining or otherwise 
handling marine mammals in captivity must also comply with the 
requirements of Sec.  3.101(b) of this subchapter.
    (3) The facility must provide and document participation in and 
successful completion of training for its personnel regarding their 
roles and responsibilities as outlined in the plan. Training of 
facility personnel must be completed within 60 days of the adoption 
date required under paragraph (l)(2) of this section; employees hired 
30 days or less after that date must also be trained within that 60-day 
period. For employees hired more than 30 days after adoption of the 
contingency plan, training must be conducted within 30 days of their 
start date. Any changes to the plan as a result of the annual review 
must be communicated to employees through training which must be 
conducted within 30 days of making the changes.
    3. Section 2.102 is amended by adding new paragraphs (a)(4) and 
(b)(3) to read as follows:


Sec.  2.102  Holding facility.

    (a) * * *
    (4) The other person or premises must either be directly included 
in the dealer's or exhibitor's contingency plan required under Sec.  
2.134 or must develop its own contingency plan in accordance with Sec.  
2.134.
* * * * *
    (b) * * *
    (3) The other person or premises must either be directly included 
in the intermediate handler's contingency plan required under Sec.  
2.134 or must develop its own contingency plan in accordance with Sec.  
2.134.
    4. A new section Sec.  2.134 is added to read as follows:


Sec.  2.134  Contingency planning.

    (a) Dealers, exhibitors, intermediate handlers, and carriers must 
develop, document, and follow an appropriate plan to provide for the 
humane handling, treatment, transportation, housing, and care of their 
animals in the event of an emergency or disaster (one which could 
reasonably be anticipated and expected to be detrimental to the good 
health and well-being of the animals in their possession). Such 
contingency plans must:
    (1) Identify situations the facility might experience that would 
trigger the need for a contingency plan, including emergencies such as 
electrical outages, faulty HVAC systems, fires, and animal escapes, as 
well as natural disasters the facility is most likely to experience;
    (2) Outline specific tasks required to be carried out in response 
to the identified emergencies or disasters including, but not limited 
to, detailed animal evacuation instructions or shelter-in-place 
instructions and provisions for providing backup sources of food and 
water as well as sanitation, ventilation, bedding, veterinary care, 
etc.;
    (3) Identify a chain of command and who (by name or by position 
title) will be responsible for fulfilling these tasks; and
    (4) Address how response and recovery will be handled in terms of 
materials, resources, and training needed.
    (b) The contingency plan must be in place by [date 180 days after 
effective date of final rule]. This plan must be made available to 
APHIS upon request. The plan must be reviewed by the dealer, exhibitor, 
intermediate handler, or carrier on at least an annual basis to ensure 
that it adequately addresses the criteria listed in paragraph (a) of 
this section. Dealers, exhibitors, intermediate handlers, and carriers 
maintaining or otherwise handling marine mammals in captivity must also 
comply with the requirements of Sec.  3.101(b) of this subchapter.
    (c) Dealers, exhibitors, intermediate handlers, and carriers must 
provide and document participation in and successful completion of 
training for personnel regarding their roles and responsibilities as 
outlined in the plan. Training of dealer, exhibitor, intermediate 
handler, and carrier personnel must be completed within 60 days of the 
adoption date required under paragraph (b) of this section. Employees 
hired 30 days or less after that date must also be trained within that 
60-day period. For employees hired more than 30 days after adoption of 
the contingency plan, training must be conducted within 30 days of 
their start date. Any changes to the plan as a result of the annual 
review must be communicated to employees through training which must be 
conducted within 30 days of making the changes.


[[Page 63090]]


    Done in Washington, DC, this 17th day of October 2008.
Bruce Knight,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. E8-25289 Filed 10-22-08; 8:45 am]
BILLING CODE 3410-34-P