The Regulatory Plan and Unified Agenda of Federal Regulatory and Deregulatory Actions - Introduction to The Regulatory Plan and the Unified Agenda of Federal Regulatory and Deregulatory Actions

[The Regulatory Plan and Unified Agenda of Federal Regulatory and Deregulatory Actions]
[Introduction to The Regulatory Plan and the Unified Agenda of Federal Regulatory and Deregulatory Actions]
[From the U.S. Government Printing Office, www.gpo.gov]

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Part II

Regulatory Information Service Center

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Introduction to The Regulatory Plan and the Unified Agenda of Federal
Regulatory and Deregulatory Actions

Federal Register / Vol. 73, No. 227 / Monday, November 24, 2008 / The
Regulatory Plan

[[Page 71095]]

REGULATORY INFORMATION SERVICE CENTER

Introduction to The Regulatory Plan and the Unified Agenda of Federal
Regulatory and Deregulatory Actions

AGENCY: Regulatory Information Service Center.

ACTION: Introduction to The Regulatory Plan and the Unified Agenda of
Federal Regulatory and Deregulatory Actions.

_______________________________________________________________________

SUMMARY: The Regulatory Flexibility Act requires that agencies publish
semiannual regulatory agendas in the Federal Register describing
regulatory actions they are developing that may have a significant
economic impact on a substantial number of small entities (5 U.S.C.
602). Executive Order 12866 ``Regulatory Planning and Review,'' signed
September 30, 1993 (58 FR 51735), as amended, and Office of Management
and Budget memoranda implementing section 4 of that Order establish
minimum standards for agencies' agendas, including specific types of
information for each entry. Section 4 of Executive Order 12866 also
directs that each agency prepare, as part of its submission to the fall
edition of the Unified Agenda, a regulatory plan of the most important
significant regulatory actions that the agency reasonably expects to
issue in proposed or final form during the upcoming fiscal year. The
Regulatory Plan (Plan) and the Unified Agenda of Federal Regulatory and
Deregulatory Actions (Unified Agenda) help agencies fulfill these
requirements.

Editions of the Unified Agenda prior to fall 2007 were printed in
their entirety in the Federal Register. Beginning with the fall 2007
edition, the Internet is the basic means for conveying Regulatory
Agenda information to the maximum extent legally permissible. The
complete Unified Agenda for fall 2008, including The Regulatory Plan,
is available to the public at http://reginfo.gov.

The fall 2008 Unified Agenda publication appearing in the Federal
Register consists of The Regulatory Plan and agency regulatory
flexibility agendas, in accordance with the publication requirements of
the Regulatory Flexibility Act. Agency regulatory flexibility agendas
contain only those Agenda entries for rules which are likely to have a
significant economic impact on a substantial number of small entities
and entries that have been selected for periodic review under section
610 of the Regulatory Flexibility Act.

The complete fall 2008 Unified Agenda contains the plans of 28
Federal agencies and the regulatory agendas for these and 33 other
Federal agencies.

ADDRESSES: Regulatory Information Service Center (MI), General Services
Administration, 1800 F Street NW., Suite 3039, Washington, DC 20405.

FOR FURTHER INFORMATION CONTACT: For further information about specific
regulatory actions, please refer to the Agency Contact listed for each
entry.

To provide comment on or to obtain further information about this
publication, contact: John C. Thomas, Executive Director, Regulatory
Information Service Center (MI), General Services Administration, 1800
F Street NW., Suite 3039, Washington, DC 20405, (202) 482-7340. You may
also send comments to us by e-mail at:

[email protected]

SUPPLEMENTARY INFORMATION:

TABLE OF CONTENTS

Page

Introduction to The Regulatory Plan and the Unified Agenda of Federal
Regulatory and Deregulatory Actions

I. What Are The Regulatory Plan and the Unified Agenda?......... 71096
II. Why Are The Regulatory Plan and the Unified Agenda 71097
Published?.....................................................
III. How Are The Regulatory Plan and the Unified Agenda 71097
Organized?.....................................................
IV. What Information Appears for Each Entry?.................... 71098
V. Abbreviations................................................ 71100
VI. How Can Users Get Copies of the Plan and the Agenda?........ 71100

Introduction to the Fall 2008 Regulatory Plan................... 71101

AGENCY REGULATORY PLANS

Cabinet Departments

Department of Agriculture....................................... 71112
Department of Commerce.......................................... 71134
Department of Defense........................................... 71146
Department of Education......................................... 71152
Department of Energy............................................ 71154
Department of Health and Human Services......................... 71157
Department of Homeland Security................................. 71165
Department of Housing and Urban Development..................... 71199
Department of the Interior...................................... 71203
Department of Justice........................................... 71217
Department of Labor............................................. 71223
Department of Transportation.................................... 71230
Department of the Treasury...................................... 71242
Department of Veterans Affairs.................................. 71253

Other Executive Agencies

Environmental Protection Agency................................. 71254
Equal Employment Opportunity Commission......................... 71270
General Services Administration................................. 71272
National Aeronautics and Space Administration................... 71273
National Archives and Records Administration.................... 71274
Office of Personnel Management.................................. 71275
Pension Benefit Guaranty Corporation............................ 71276
Small Business Administration................................... 71278
Social Security Administration.................................. 71280

Independent Regulatory Agencies

Consumer Product Safety Commission.............................. 71289
Federal Maritime Commission..................................... 71291
Federal Trade Commission........................................ 71292
National Indian Gaming Commission............................... 71302
Postal Regulatory Commission.................................... 71303

AGENCY AGENDAS

Cabinet Departments

Department of Agriculture....................................... 71305
Department of Commerce.......................................... 71325
Department of Health and Human Services......................... 71355
Department of Homeland Security................................. 71377
Department of Housing and Urban Development..................... 71387
Department of Justice........................................... 71391
Department of Labor............................................. 71395
Department of Transportation.................................... 71401

Other Executive Agencies

Environmental Protection Agency................................. 71423
General Services Administration................................. 71435
National Foundation on the Arts and the Humanities
Institute of Museum and Library Services...................... 71439
National Endowment for the Arts............................... 71441

[[Page 71096]]

Office of Personnel Management.................................. 71443
Small Business Administration................................... 71447

Joint Authority

Department of Defense/General Services Administration/National 71453
Aeronautics and Space Administration (Federal Acquisition
Regulation)....................................................

Independent Regulatory Agencies

Federal Communications Commission............................... 71457
Federal Reserve System.......................................... 71503
National Credit Union Administration............................ 71507
Nuclear Regulatory Commission................................... 71509
Securities and Exchange Commission.............................. 71513

INTRODUCTION TO THE REGULATORY PLAN AND THE UNIFIED AGENDA OF
FEDERAL REGULATORY AND DEREGULATORY ACTIONS

I. What Are The Regulatory Plan and the Unified Agenda?

The Regulatory Plan serves as a defining statement of the
Administration's regulatory and deregulatory policies and priorities.
The Plan is part of the fall edition of the Unified Agenda. Each
participating agency's regulatory plan contains: (1) A narrative
statement of the agency's regulatory priorities and, for most agencies,
(2) a description of the most important significant regulatory and
deregulatory actions that the agency reasonably expects to issue in
proposed or final form during the upcoming fiscal year. This edition
includes the regulatory plans of 28 agencies.

The Unified Agenda provides information about regulations that the
Government is considering or reviewing. The Unified Agenda has appeared
in the Federal Register twice each year since 1983 and has been
available online since 1995. In order to further the Administration's
commitment to use modern technology to deliver better service to the
American people for lower cost, beginning with the fall 2007 edition,
the Internet is the basic means for conveying Regulatory Agenda
information to the maximum extent legally permissible. The complete
Unified Agenda, including The Regulatory Plan, is available to the
public at http://reginfo.gov. The online Unified Agenda offers flexible
search tools and will soon offer access to the entire historic Unified
Agenda database.

These publication formats meet the publication mandates of the
Regulatory Flexibility Act and Executive Order 12866, as amended, as
well as move the Agenda process toward the Administration's goal of e-
Government, while providing a substantial reduction in printing costs
compared with prior editions. The current format does not reduce the
amount of information available to the public, but it does limit most
of the content of the Agenda to online access. The complete online
edition of the Unified Agenda includes regulatory agendas from 61
Federal agencies. Agencies of the United States Congress are not
included.

The following agencies have no entries identified for inclusion in
the printed regulatory flexibility agenda. An asterisk (*) indicates
agencies that appear in the Regulatory Plan. The regulatory agendas of
these agencies are available to the public at http://reginfo.gov.

Department of Defense *

Department of Education *

Department of Energy *

Department of the Interior *

Department of State

Department of the Treasury *

Department of Veterans Affairs *

Agency for International Development

Architectural and Transportation Barriers Compliance Board

Commission on Civil Rights

Commodity Futures Trading Commission

Committee for Purchase From People Who Are Blind or Severely
Disabled

Consumer Product Safety Commission *

Corporation for National and Community Service

Court Services and Offender Supervision Agency for the District of
Columbia

Equal Employment Opportunity Commission *

Farm Credit Administration

Farm Credit System Insurance Corporation

Federal Council on the Arts and the Humanities

Federal Deposit Insurance Corporation

Federal Energy Regulatory Commission

Federal Housing Finance Agency

Federal Housing Finance Board

Federal Maritime Commission *

Federal Mediation and Conciliation Service

Federal Trade Commission *

National Aeronautics and Space Administration *

National Archives and Records Administration *

National Endowment for the Humanities

National Indian Gaming Commission *

National Science Foundation

Office of Federal Housing Enterprise Oversight

Office of Government Ethics

Office of Management and Budget

Peace Corps

Pension Benefit Guaranty Corporation *

Postal Regulatory Commission *

Railroad Retirement Board

Selective Service System

Social Security Administration *

Surface Transportation Board

The Regulatory Information Service Center (the Center) compiles the
Plan and the Unified Agenda for the Office of Information and
Regulatory Affairs (OIRA), part of the Office

[[Page 71097]]

of Management and Budget. OIRA is responsible for overseeing the
Federal Government's regulatory, paperwork, and information resource
management activities, including implementation of Executive Order
12866. The Center also provides information about Federal regulatory
activity to the President and his Executive Office, the Congress,
agency managers, and the public.

The activities included in the Agenda are, in general, those that
will have a regulatory action within the next 12 months. Agencies may
choose to include activities that will have a longer timeframe than 12
months. Agency agendas also show actions or reviews completed or
withdrawn since the last Unified Agenda. Executive Order 12866 does not
require agencies to include regulations concerning military or foreign
affairs functions or regulations related to agency organization,
management, or personnel matters.

Agencies prepared entries for this publication to give the public
notice of their plans to review, propose, and issue regulations. They
have tried to predict their activities over the next 12 months as
accurately as possible, but dates and schedules are subject to change.
Agencies may withdraw some of the regulations now under development,
and they may issue or propose other regulations not included in their
agendas. Agency actions in the rulemaking process may occur before or
after the dates they have listed. The Regulatory Plan and the Unified
Agenda do not create a legal obligation on agencies to adhere to
schedules in this publication or to confine their regulatory activities
to those regulations that appear within it.

II. Why Are The Regulatory Plan and the Unified Agenda Published?

The Regulatory Plan and the Unified Agenda help agencies comply
with their obligations under the Regulatory Flexibility Act and various
Executive orders and other statutes.

Regulatory Flexibility Act

The Regulatory Flexibility Act requires agencies to identify those
rules that may have a significant economic impact on a substantial
number of small entities (5 U.S.C. 602). Agencies meet that requirement
by including the information in their submissions for the Unified
Agenda. Agencies may also indicate those regulations that they are
reviewing as part of their periodic review of existing rules under the
Regulatory Flexibility Act (5 U.S.C. 610). Executive Order 13272
entitled ``Proper Consideration of Small Entities in Agency
Rulemaking,'' signed August 13, 2002 (67 FR 53461) provides additional
guidance on compliance with the Act.

Executive Order 12866

Executive Order 12866 entitled ``Regulatory Planning and Review,''
signed September 30, 1993 (58 FR 51735) requires covered agencies to
prepare an agenda of all regulations under development or review. The
Order also requires that certain agencies prepare annually a regulatory
plan of their ``most important significant regulatory actions,'' which
appears as part of the fall Unified Agenda. The requirements for
regulatory plans were amended by Executive Order 13422 entitled
``Further Amendment to Executive Order 12866 on Regulatory Planning and
Review,'' signed January 18, 2007 (72 FR 2763).

Executive Order 13132

Executive Order 13132 entitled ``Federalism,'' signed August 4,
1999 (64 FR 43255) directs agencies to have an accountable process to
ensure meaningful and timely input by State and local officials in the
development of regulatory policies that have ``federalism
implications'' as defined in the Order. Under the Order, an agency that
is proposing regulations with federalism implications, which either
preempt State law or impose nonstatutory unfunded substantial direct
compliance costs on State and local governments, must consult with
State and local officials early in the process of developing the
regulation. In addition, the agency must provide to the Director of the
Office of Management and Budget a federalism summary impact statement
for such regulations, which consists of a description of the extent of
the agency's prior consultation with State and local officials, a
summary of their concerns and the agency's position supporting the need
to issue the regulation, and a statement of the extent to which those
concerns have been met. As part of this effort, agencies include in
their submissions for the Unified Agenda information on whether their
regulatory actions may have an effect on the various levels of
government and whether those actions have federalism implications.

Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, title II)
requires agencies to prepare written assessments of the costs and
benefits of significant regulatory actions ``that may result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100,000,000 or more . . . in any 1 year .
. . .'' The requirement does not apply to independent regulatory
agencies, nor does it apply to certain subject areas excluded by
section 4 of the Act. Affected agencies identify in the Unified Agenda
those regulatory actions they believe are subject to title II of the
Act.

Executive Order 13211

Executive Order 13211 entitled ``Actions Concerning Regulations
That Significantly Affect Energy Supply, Distribution, or Use,'' signed
May 18, 2001 (66 FR 28355) directs agencies to provide, to the extent
possible, information regarding the adverse effects that agency actions
may have on the supply, distribution, and use of energy. Under the
Order, the agency must prepare and submit a Statement of Energy Effects
to the Administrator of the Office of Information and Regulatory
Affairs, Office of Management and Budget, for ``those matters
identified as significant energy actions.'' As part of this effort,
agencies may optionally include in their submissions for the Unified
Agenda information on whether they have prepared or plan to prepare a
Statement of Energy Effects for their regulatory actions.

Small Business Regulatory Enforcement Fairness Act

The Small Business Regulatory Enforcement Fairness Act (Pub. L.
104-121, title II) established a procedure for congressional review of
rules (5 U.S.C. 801 et seq.), which defers, unless exempted, the
effective date of a ``major'' rule for at least 60 days from the
publication of the final rule in the Federal Register. The Act
specifies that a rule is ``major'' if it has resulted or is likely to
result in an annual effect on the economy of $100 million or more or
meets other criteria specified in that Act. The Act provides that the
Administrator of OIRA will make the final determination as to whether a
rule is major.

III. How Are The Regulatory Plan and the Unified Agenda
Organized?

The Regulatory Plan appears in part II of a daily edition of the
Federal Register. The Plan is a single document beginning with an
introduction, followed by a table of contents, followed by each
agency's section of the Plan.

[[Page 71098]]

Following the Plan in the Federal Register, as separate parts, are the
regulatory flexibility agendas for each agency whose agenda includes
entries for rules which are likely to have a significant economic
impact on a substantial number of small entities or rules that have
been selected for periodic review under section 610 of the Regulatory
Flexibility Act. Each printed agenda appears as a separate part. The
sections of the Plan and the parts of the Unified Agenda are organized
alphabetically in four groups: Cabinet departments; other executive
agencies; the Federal Acquisition Regulation, a joint authority (Agenda
only); and independent regulatory agencies. Agencies may in turn be
divided into subagencies. Each printed agency agenda has a table of
contents listing the agency's printed entries that follow.

Each agency's section of the Plan contains a narrative statement
of regulatory priorities and, for most agencies, a description of the
agency's most important significant regulatory and deregulatory
actions. Each agency's part of the Agenda contains a preamble providing
information specific to that agency plus descriptions of the agency's
regulatory and deregulatory actions.

The online, complete Unified Agenda contains the preambles of all
participating agencies. Unlike the printed edition, the online Agenda
has no fixed ordering. In the online Agenda, users can select the
particular agencies whose agendas they want to see. Users have broad
flexibility to specify the characteristics of the entries of interest
to them by choosing the desired responses to individual data fields. To
see a listing of all of an agency's entries, a user can select the
agency without specifying any particular characteristics of entries.

Each entry in the Agenda is associated with one of five rulemaking
stages. In the Plan, only the first three stages are applicable. Some
agencies use subheadings to identify regulations that are grouped
according to particular topics. The rulemaking stages are:

1. Prerule Stage -- actions agencies will undertake to determine
whether or how to initiate rulemaking. Such actions occur prior to
a Notice of Proposed Rulemaking (NPRM) and may include Advance
Notices of Proposed Rulemaking (ANPRMs) and reviews of existing
regulations.
2. Proposed Rule Stage -- actions for which agencies plan to publish a
Notice of Proposed Rulemaking as the next step in their rulemaking
process or for which the closing date of the NPRM Comment Period is
the next step.
3. Final Rule Stage -- actions for which agencies plan to publish a
final rule or an interim final rule or to take other final action
as the next step.
4. Long-Term Actions -- items under development but for which the
agency does not expect to have a regulatory action within the 12
months after publication of this edition of the Unified Agenda.
Some of the entries in this section may contain abbreviated
information.
5. Completed Actions -- actions or reviews the agency has completed or
withdrawn since publishing its last agenda. This section also
includes items the agency began and completed between issues of the
Agenda.

A bullet () preceding the title of an entry indicates that
the entry is appearing in the Unified Agenda for the first time.

In the printed edition, all entries are numbered sequentially from
the beginning to the end of the publication. The sequence number
preceding the title of each entry identifies the location of the entry
in this edition. This sequence number is used as the reference in the
printed table of contents. Sequence numbers are not used in the online
Unified Agenda because the unique Regulation Identifier Number (RIN) is
able to provide this cross-reference capability.

Editions of the Unified Agenda prior to fall 2007 contained
several indexes, which identified entries with various characteristics.
These included regulatory actions for which agencies believe that the
Regulatory Flexibility Act may require a Regulatory Flexibility
Analysis, actions selected for periodic review under section 610(c) of
the Regulatory Flexibility Act, and actions that may have federalism
implications as defined in Executive Order 13132 or other effects on
levels of government. These indexes are no longer compiled, because
users of the online Unified Agenda have the flexibility to search for
entries with any combination of desired characteristics. The online
edition retains the Unified Agenda's subject index based on the Federal
Register Thesaurus of Indexing Terms. In addition, online users have
the option of searching Agenda text fields for words or phrases.

IV. What Information Appears for Each Entry?

All entries in the Unified Agenda contain uniform data elements
including, at a minimum, the following information:

Title of the Regulation -- a brief description of the subject of
the regulation. In the printed edition, the notation ``Section 610
Review'' following the title indicates that the agency has selected the
rule for its periodic review of existing rules under the Regulatory
Flexibility Act (5 U.S.C. 610(c)). Some agencies have indicated
completions of section 610 reviews or rulemaking actions resulting from
completed section 610 reviews. In the online edition, these notations
appear as separate fields.

Priority -- an indication of the significance of the regulation.
Agencies assign each entry to one of the following five categories of
significance.

(1) Economically Significant

As defined in Executive Order 12866, a rulemaking action that will
have an annual effect on the economy of $100 million or more or
will adversely affect in a material way the economy, a sector of
the economy, productivity, competition, jobs, the environment,
public health or safety, or State, local, or tribal governments or
communities. The definition of an ``economically significant'' rule
is similar but not identical to the definition of a ``major'' rule
under 5 U.S.C. 801 (Pub. L. 104-121). (See below.)

(2) Other Significant

A rulemaking that is not Economically Significant but is considered
Significant by the agency. This category includes rules that the
agency anticipates will be reviewed under Executive Order 12866 or
rules that are a priority of the agency head. These rules may or
may not be included in the agency's regulatory plan.

(3) Substantive, Nonsignificant

A rulemaking that has substantive impacts but is neither Significant,
nor Routine and Frequent, nor Informational/Administrative/Other.

(4) Routine and Frequent

A rulemaking that is a specific case of a multiple recurring
application of a regulatory program in the Code of Federal

[[Page 71099]]

Regulations and that does not alter the body of the regulation.

(5) Informational/Administrative/Other

A rulemaking that is primarily informational or pertains to agency
matters not central to accomplishing the agency's regulatory
mandate but that the agency places in the Unified Agenda to inform
the public of the activity.

Major -- whether the rule is ``major'' under 5 U.S.C. 801 (Pub. L.
104-121) because it has resulted or is likely to result in an annual
effect on the economy of $100 million or more or meets other criteria
specified in that Act. The Act provides that the Administrator of the
Office of Information and Regulatory Affairs will make the final
determination as to whether a rule is major.

Unfunded Mandates -- whether the rule is covered by section 202 of
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). The Act
requires that, before issuing an NPRM likely to result in a mandate
that may result in expenditures by State, local, and tribal
governments, in the aggregate, or by the private sector of more than
$100 million in 1 year, agencies, other than independent regulatory
agencies, shall prepare a written statement containing an assessment of
the anticipated costs and benefits of the Federal mandate.

Legal Authority -- the section(s) of the United States Code
(U.S.C.) or Public Law (Pub. L.) or the Executive order (E.O.) that
authorize(s) the regulatory action. Agencies may provide popular name
references to laws in addition to these citations.

CFR Citation -- the section(s) of the Code of Federal Regulations
that will be affected by the action.

Legal Deadline -- whether the action is subject to a statutory or
judicial deadline, the date of that deadline, and whether the deadline
pertains to an NPRM, a Final Action, or some other action.

Abstract -- a brief description of the problem the regulation will
address; the need for a Federal solution; to the extent available,
alternatives that the agency is considering to address the problem; and
potential costs and benefits of the action.

Timetable -- the dates and citations (if available) for all past
steps and a projected date for at least the next step for the
regulatory action. A date printed in the form 08/00/09 means the agency
is predicting the month and year the action will take place but not the
day it will occur. In some instances, agencies may indicate what the
next action will be, but the date of that action is ``To Be
Determined.'' ``Next Action Undetermined'' indicates the agency does
not know what action it will take next.

Regulatory Flexibility Analysis Required -- whether an analysis is
required by the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
because the rulemaking action is likely to have a significant economic
impact on a substantial number of small entities as defined by the Act.

Small Entities Affected -- the types of small entities
(businesses, governmental jurisdictions, or organizations) on which the
rulemaking action is likely to have an impact as defined by the
Regulatory Flexibility Act. Some agencies have chosen to indicate
likely effects on small entities even though they believe that a
Regulatory Flexibility Analysis will not be required.

Government Levels Affected -- whether the action is expected to
affect levels of government and, if so, whether the governments are
State, local, tribal, or Federal.

International Impacts -- whether the regulation is expected to
have international trade and investment effects, or otherwise may be of
interest to the Nation's international trading partners (new data
element, added in fall 2008).

Federalism -- whether the action has ``federalism implications''
as defined in Executive Order 13132. This term refers to actions ``that
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.''
Independent regulatory agencies are not required to supply this
information.

Agency Contact -- the name and phone number of at least one person
in the agency who is knowledgeable about the rulemaking action. The
agency may also provide the title, address, fax number, e-mail address,
and TDD for each agency contact.

Some agencies have provided the following optional information:

RIN Information URL -- the Internet address of a site that
provides more information about the entry.

Public Comment URL -- the Internet address of a site that will
accept public comments on the entry. Alternatively, timely public
comments may be submitted at the governmentwide e-rulemaking site,
http://www.regulations.gov.

Additional Information -- any information an agency wishes to
include that does not have a specific corresponding data element.

Compliance Cost to the Public -- the estimated gross compliance
cost of the action.

Affected Sectors -- the industrial sectors that the action may
most affect, either directly or indirectly. Affected Sectors are
identified by North American Industry Classification System (NAICS)
codes.

Energy Effects -- an indication of whether the agency has prepared
or plans to prepare a Statement of Energy Effects for the action, as
required by Executive Order 13211 ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' signed May
18, 2001 (66 FR 28355).

Related RINs -- one or more past or current RINs associated with
activity related to this action, such as merged RINs, split RINs, new
activity for previously completed RINs, or duplicate RINs.

Entries appearing in The Regulatory Plan include some or all of
the following additional data elements, but will, at a minimum, include
information in Statement of Need and in Anticipated Costs and Benefits:

Statement of Need -- a description of the need for the regulatory
action.

Summary of the Legal Basis -- a description of the legal basis for
the action, including whether any aspect of the action is required by
statute or court order.

Alternatives -- a description of the alternatives the agency has
considered or will consider as required by section 4(c)(1)(B) of
Executive Order 12866.

Anticipated Costs and Benefits -- a description of preliminary
estimates of the anticipated costs and benefits of the action.

Risks -- a description of the magnitude of the risk the action
addresses, the amount by which the agency expects

[[Page 71100]]

the action to reduce this risk, and the relation of the risk and this
risk reduction effort to other risks and risk reduction efforts within
the agency's jurisdiction.

V. Abbreviations

The following abbreviations appear throughout this publication:

ANPRM -- An Advance Notice of Proposed Rulemaking is a preliminary
notice, published in the Federal Register, announcing that an agency is
considering a regulatory action. An agency may issue an ANPRM before it
develops a detailed proposed rule. An ANPRM describes the general area
that may be subject to regulation and usually asks for public comment
on the issues and options being discussed. An ANPRM is issued only when
an agency believes it needs to gather more information before
proceeding to a notice of proposed rulemaking.

CFR -- The Code of Federal Regulations is an annual codification
of the general and permanent regulations published in the Federal
Register by the agencies of the Federal Government. The Code is divided
into 50 titles, each title covering a broad area subject to Federal
regulation. The CFR is keyed to and kept up to date by the daily issues
of the Federal Register.

EO -- An Executive order is a directive from the President to
Executive agencies, issued under constitutional or statutory authority.
Executive orders are published in the Federal Register and in title 3
of the Code of Federal Regulations.

FR -- The Federal Register is a daily Federal Government
publication that provides a uniform system for publishing Presidential
documents, all proposed and final regulations, notices of meetings, and
other official documents issued by Federal agencies.

FY -- The Federal fiscal year runs from October 1 to September 30.

NPRM -- A Notice of Proposed Rulemaking is the document an agency
issues and publishes in the Federal Register that describes and
solicits public comments on a proposed regulatory action. Under the
Administrative Procedure Act (5 U.S.C. 553), an NPRM must include, at a
minimum:

a statement of the time, place, and nature of the public
rulemaking proceeding;
a reference to the legal authority under which the rule is
proposed; and
either the terms or substance of the proposed rule or a
description of the subjects and issues involved.

PL (or Pub. L.) -- A public law is a law passed by Congress and
signed by the President or enacted over his veto. It has general
applicability, unlike a private law that applies only to those persons
or entities specifically designated. Public laws are numbered in
sequence throughout the 2-year life of each Congress; for example, PL
110-4 is the fourth public law of the 110th Congress.

RFA -- A Regulatory Flexibility Analysis is a description and
analysis of the impact of a rule on small entities, including small
businesses, small governmental jurisdictions, and certain small not-
for-profit organizations. The Regulatory Flexibility Act (5 U.S.C. 601
et seq.) requires each agency to prepare an initial RFA for public
comment when it is required to publish an NPRM and to make available a
final RFA when the final rule is published, unless the agency head
certifies that the rule would not have a significant economic impact on
a substantial number of small entities.

RIN -- The Regulation Identifier Number is assigned by the
Regulatory Information Service Center to identify each regulatory
action listed in The Regulatory Plan and the Unified Agenda, as
directed by Executive Order 12866 (section 4(b)). Additionally, OMB has
asked agencies to include RINs in the headings of their Rule and
Proposed Rule documents when publishing them in the Federal Register,
to make it easier for the public and agency officials to track the
publication history of regulatory actions throughout their development.

Seq. No. -- The sequence number identifies the location of an
entry in the printed edition of the Agenda. Note that a specific
regulatory action will have the same RIN throughout its development but
will generally have different sequence numbers if it appears in
different printed editions of The Regulatory Plan and the Agenda.
Sequence numbers are not used in the online Unified Agenda.

USC -- The United States Code is a consolidation and codification
of all general and permanent laws of the United States. The USC is
divided into 50 titles, each title covering a broad area of Federal
law.

VI. How Can Users Get Copies of the Plan and the Agenda?

Copies of the Federal Register issue containing the printed
edition of The Regulatory Plan and the Unified Agenda (agency
regulatory flexibility agendas) are available from the Superintendent
of Documents, U.S. Government Printing Office, P.O. Box 371954,
Pittsburgh, PA 15250-7954. Telephone: (202) 512-1800 or 1-866-512-1800
(toll-free).

Copies of individual agency materials may be available directly
from the agency or may be found on the agency's website. Please contact
the particular agency for further information.

All editions of The Regulatory Plan and the Unified Agenda of
Federal Regulatory and Deregulatory Actions since fall 1995 are
available in electronic form at http://reginfo.gov. This site currently
offers flexible search tools for recent editions. By early 2009,
searchable access to the entire historic Unified Agenda database back
to 1983 will be added to the site.

In accordance with regulations for the Federal Register, the
Government Printing Office's GPO Access website contains copies of the
Agendas and Regulatory Plans that have been printed in the Federal
Register. These documents are available at:

http://www.gpoaccess.gov/ua/index.html

Dated: November 12, 2008.

John C. Thomas,
Executive Director.

[FR Doc. Filed 11-21-08; 8:45 am]
BILLING CODE 6820-27-S

The Regulatory Plan

____________________________________________________________________

[[Page 71101]]

INTRODUCTION TO THE FALL 2008 REGULATORY PLAN

Federal regulation is a fundamental instrument of
national policy. It is one of the three major tools --
in addition to spending and taxing -- used to implement
policy. It is used to advance numerous public
objectives, including homeland security, transportation
safety, environmental protection, educational quality,
food safety, health care quality, equal employment
opportunity, energy security, immigration control, and
consumer protection. The Office of Management and
Budget's (OMB) Office of Information and Regulatory
Affairs (OIRA) is responsible for overseeing and
coordinating the Federal Government's regulatory
policies.

The Regulatory Plan is published as part of the fall
edition of the Unified Agenda of Federal Regulatory and
Deregulatory Actions, and serves as a statement of the
Administration's regulatory and deregulatory policies
and priorities. The purpose of the Plan is to make the
regulatory process more accessible to the public and to
ensure that the planning and coordination necessary for
a well-functioning regulatory process occurs. The Plan
identifies regulatory priorities and contains
information about the most significant regulatory
actions agencies expect to undertake in the coming
year. An accessible regulatory process enables citizen
centered service.

Federal Regulatory Policy

Federal regulations should be sensible and based on
sound science, economics, and the law. Accordingly, the
Bush Administration strove for a regulatory process
that adopted new rules when markets failed to serve the
public interest, simplified and modified existing rules
to make them more effective, less costly or less
intrusive, and rescinded outmoded rules whose benefits
did not justify their costs. In pursuing this agenda,
OMB has adopted an approach based on the principles of
regulatory analysis and policy espoused in Executive
Order 12866, signed by President Clinton in 1993.

Effective regulatory policy is not uniformly pro-
regulation or anti-regulation. It originates with the
authority granted under the law. Within the discretion
available to the regulating agency through its
statutory authority, agencies apply a number of
principles articulated in Executive Order 12866, as
well as other applicable Executive Orders, in order to
design regulations that achieve their desired ends in
the most efficient way. This involves bringing to bear
on the policy problem sound economic principles, the
highest quality information, and the best possible
science. This is not always an easy task, and designing
regulations does not involve the rote application of
quantified data to reach policy decisions. In making
regulatory decisions, we expect agencies to consider
not only benefits and costs that can be quantified and
expressed in monetary units, but also other attributes
and factors that cannot be integrated readily in a
benefit-cost framework, such as privacy and fairness.
Effective regulation is the result of the careful use
of all available high-quality data, and the application
of broad principles established by the President.

The Administration's e-rulemaking program is designed
to increase transparency and improve the public's
ability to become involved in the rulemaking process.
Visitors to the website, www.regulations.gov, can view
and

[[Page 71102]]

comment electronically on regulations proposed by
Federal departments and agencies. Current and prior
editions of the Regulatory Plan and Unified Agenda are
available electronically in searchable database format
on both www.regulations.gov and www.reginfo.gov.

For new rulemakings and programs, OIRA has enhanced the
transparency of OMB's regulatory review process. OIRA's
website allows the public to identify which rules are
formally under review at OMB and which rules have
recently completed review or have been returned to
agencies for reconsideration. OIRA has increased the
amount of information available on its website. In
addition to information on meetings and correspondence,
OIRA makes available communications from the OIRA
Administrator to agencies, including ``prompt
letters,'' ``return letters,'' and ``post review
letters.''

For existing rulemakings, OMB initiated a series of
calls for reform nominations in 2001, 2002, and 2004.
In the 2004 draft Report to Congress on the Costs and
Benefits of Federal Regulation, OMB requested public
nominations of promising regulatory reforms relevant to
the manufacturing sector. Commenters were asked to
suggest specific reforms to rules, guidance documents,
or paperwork requirements that would improve
manufacturing regulation by reducing unnecessary costs,
increasing effectiveness, enhancing competitiveness,
reducing uncertainty, and increasing flexibility. In
response to the solicitation, OMB received 189 distinct
reform nominations from 41 commenters. Of these,
Federal agencies and OMB have determined that 76
nominations have potential merit and justify further
action. According to the 2008 draft OMB Report to
Congress on the Costs and Benefits of Federal
Regulation, agencies have completed 60 of the 76
priority reforms. For further information, all of these
Reports are available on OIRA's website at http://
www.whitehouse.gov/omb/inforeg/regpol.html.

The Administration's 2008 Regulatory Priorities

With regard to Federal regulation, the Administration's
objective is quality, not quantity. Those rules that
are finalized promise to be more effective, less
intrusive, and more cost-effective in achieving
national objectives while demonstrating greater
resilience. OMB seeks to ensure that the public is
provided with the information needed to understand and
comment on the Federal regulatory agenda. Accordingly,
the 2008 Regulatory Plan highlights the following
themes:

Regulations that are particularly good
examples of the Administration's ``smart''
regulation agenda to streamline regulations
and reporting requirements, which is a key
part of the President's economic plan.

Regulations of particular concern to
small businesses.

Regulations addressing the 2004
nominations for promising regulatory
reforms in the manufacturing sector.

In addition, the 2008 Regulatory Plan includes for the
first time an identification of regulations that may
have international trade and investment effects. The
Plan now includes an ``international flag'' for such
regulations, which the public can use to search for a
list of entries with international impacts or interest.
This enhanced capability grew out of a recommendation
developed through OMB's ongoing work with the
Secretariat General of the European Commission through
the U.S.-EU High Level Regulatory Forum. Specifically,
the Forum recognized the value of timely announcement
of planned regulations that may have international
trade and investment effects, and recommended that both
the U.S. and the EU develop a mechanism to provide the
public with such information.

[[Page 71103]]

Conclusion

Smarter regulatory policies, created through public
participation, transparency, and cooperation across
Federal agencies, are key Executive Branch objectives.
The following department and agency plans provide
further information on regulatory priorities. All
agencies' plans are a reflection of the
Administration's Federal Regulatory Policy objectives,
which aim at implementing an effective and results-
oriented regulatory system. As the eighth and final
Regulatory Plan of the Administration, this plan
reflects our efforts to have a regulatory system that
protects and improves Americans' health, safety and
environment, secures their rights, and ensures a fair
and competitive economic system, while respecting their
prerogative to make their own decisions and not
imposing unnecessary costs. One of the opportunities
for the new Administration, in addition to maintaining
and furthering these efforts, will be to continue
enhancing the transparency and accountability of the
regulatory process to the public. The following
department and agency plans provide additional
information on their individual regulatory priorities.

[[Page 71105]]

DEPARTMENT OF AGRICULTURE
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
1 Animal Welfare; Regulations and Standards for Birds 0579-AC02 Proposed Rule
Stage
2 Importation of Plants for Planting; Establishing a New Category of Plants for Planting Not 0579-AC03 Proposed Rule
Authorized for Importation Pending Risk Assessment Stage
3 Bovine Spongiform Encephalopathy; Importation of Bovines and Bovine Products 0579-AC68 Proposed Rule
Stage
4 Introduction of Organisms and Products Altered or Produced Through Genetic Engineering 0579-AC31 Final Rule Stage
5 Child and Adult Care Food Program: Improving Management and Program Integrity 0584-AC24 Final Rule Stage
6 FSP: Eligibility and Certification Provisions of the Farm Security and Rural Investment Act of 2002 0584-AD30 Final Rule Stage
7 Quality Control Provisions 0584-AD31 Final Rule Stage
8 Direct Certification of Children in Food Stamp Households and Certification of Homeless, Migrant, 0584-AD60 Final Rule Stage
and Runaway Children for Free Meals in the NSLP, SBP, and SMP
9 Special Supplemental Nutrition Program for Women, Infants, and Children (WIC): WIC Vendor Cost 0584-AD71 Final Rule Stage
Containment
10 Changes to Regulatory Jurisdiction Over Certain Food Products Containing Meat and Poultry 0583-AD28 Proposed Rule
Stage
11 New Poultry Slaughter Inspection 0583-AD32 Proposed Rule
Stage
12 Notification, Documentation and Recordkeeping Requirements for Inspected Establishments 0583-AD34 Proposed Rule
Stage
13 Mandatory Inspection of Catfish and Catfish Products 0583-AD36 Proposed Rule
Stage
14 Federal-State Interstate Shipment Cooperative Inspection Program 0583-AD37 Proposed Rule
Stage
15 Performance Standards for the Production of Processed Meat and Poultry Products; Control of 0583-AC46 Final Rule Stage
Listeria Monocytogenes in Ready-To-Eat Meat and Poultry Products
16 Requirements for the Disposition of Cattle that Become Non-Ambulatory Disabled Following Ante- 0583-AD35 Final Rule Stage
Mortem Inspection
17 Mandatory Country Of Origin Labeling Of Covered Commodities Including Muscle Cuts Of Beef 0583-AD38 Final Rule Stage
(Including Veal), Lamb, Chicken, Goat, and Pork; Ground Beef, Gr. Lamb, Gr. Chicken, Gr. Goat, and
Gr. Pork
18 Resource Agency Procedures for Conditions and Prescriptions in Hydropower Licenses 0596-AC42 Final Rule Stage
19 Special Areas; State-Specific Inventoried Roadless Area Management: Colorado 0596-AC74 Final Rule Stage
--------------------------------------------------------------------------------------------------------------------------------------------------------

DEPARTMENT OF COMMERCE
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
20 Amendment to Coastal Migratory Pelagics FMP, Red Drum FMP, Reef Fish FMP, Spiny Lobster FMP, and 0648-AS65 Proposed Rule
Stone Crab FMP To Provide for Regulation of Marine Aquaculture Stage
21 Certification of Nations Whose Fishing Vessels Are Engaged in IUU Fishing or Bycatch of Protected 0648-AV51 Proposed Rule
Living Marine Resources Stage
22 Magnuson-Stevens Fishery Conservation and Management Act Provisions and Interjurisdictional 0648-AW38 Proposed Rule
Fisheries Act Disaster Assistance Programs Stage
23 Provide Guidance for the Limited Access Privilege Program Provisions of the Magnuson-Stevens 0648-AX13 Proposed Rule
Fishery Conservation and Management Reauthorization Act of 2006 Stage
24 Magnuson-Stevens Fishery Conservation and Management Reauthorization Act (MSRA) Environmental 0648-AV53 Final Rule Stage
Review Procedure
25 Guidance for Annual Catch Limits and Accountability Measures to End Overfishing 0648-AV60 Final Rule Stage
26 Taking and Importing Marine Mammals; U.S. Navy Training in the Hawaii Range Complex 0648-AW86 Final Rule Stage

[[Page 71106]]

27 Taking and Importing Marine Mammals; U.S. Navy's Atlantic Fleet Active Sonar Training (AFAST) 0648-AW90 Final Rule Stage
28 Taking and Importing Marine Mammals; U.S. Navy Training in the Southern California Range Complex 0648-AW91 Final Rule Stage
(SOCAL)
--------------------------------------------------------------------------------------------------------------------------------------------------------

DEPARTMENT OF DEFENSE
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
29 Civilian Health and Medical Program of the Uniformed Services (CHAMPUS); TRICARE Pharmacy Benefits 0720-AB27 Proposed Rule
Program Stage
30 TRICARE: Relationship Between the TRICARE Program and Employer-Sponsored Group Health Coverage 0720-AB17 Final Rule Stage
31 TRICARE: Outpatient Hospital Prospective Payment System (OPPS) 0720-AB19 Final Rule Stage
32 CHAMPUS/TRICARE: Inclusion of TRICARE Retail Pharmacy Program in Federal Procurement of 0720-AB22 Final Rule Stage
Pharmaceuticals
--------------------------------------------------------------------------------------------------------------------------------------------------------

DEPARTMENT OF EDUCATION
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
33 Title IV and Title II of the Higher Education Act of 1965, as Amended 1840-AC95 Proposed Rule
Stage
--------------------------------------------------------------------------------------------------------------------------------------------------------

DEPARTMENT OF ENERGY
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
34 Energy Efficiency Standards for Fluorescent and Incandescent Reflector Lamps 1904-AA92 Proposed Rule
Stage
35 Energy Conservation Standards for Residential Electric and Gas Ranges and Ovens and Microwave 1904-AB49 Final Rule Stage
Ovens, and Commercial Clothes Washers
36 Energy Efficiency Standards for Commercial Refrigeration Equipment 1904-AB59 Final Rule Stage
--------------------------------------------------------------------------------------------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
37 Control of Communicable Diseases Foreign Quarantine 0920-AA12 Final Rule Stage
38 Medical Device Reporting; Electronic Submission Requirements 0910-AF86 Proposed Rule
Stage
39 Electronic Registration and Listing for Devices 0910-AF88 Proposed Rule
Stage
40 Prevention of Salmonella Enteritidis in Shell Eggs 0910-AC14 Final Rule Stage
41 Expanded Access to Investigational Drugs for Treatment Use 0910-AF14 Final Rule Stage
42 Changes to the Hospital Inpatient Prospective Payment System for FY 2010 (CMS-1406-P) 0938-AP39 Proposed Rule
Stage
43 Revisions to Payment Policies under the Physician Fee Schedule for CY 2010 (CMS-1413-P) 0938-AP40 Proposed Rule
Stage

[[Page 71107]]

44 Changes to the Hospital Outpatient Prospective Payment System and Ambulatory Surgical Center 0938-AP41 Proposed Rule
Payment System for CY 2010 (CMS-1414-P) Stage
--------------------------------------------------------------------------------------------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
45 Collection of Alien Biometric Data Upon Exit from the United States at Air and Sea Ports of 1601-AA34 Final Rule Stage
Departure; United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT)
46 United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT), Enrollment of 1601-AA35 Final Rule Stage
Additional Aliens in US-VISIT
47 Documents and Receipts Acceptable for Employment Eligibility Verification 1615-AB72 Proposed Rule
Stage
48 Commonwealth of the Northern Mariana Islands Transitional Nonimmigrant Investor Classification 1615-AB75 Proposed Rule
Stage
49 Commonwealth of the Northern Mariana Islands Transitional Workers Classification 1615-AB76 Proposed Rule
Stage
50 Changes to Requirements Affecting H-2A Nonimmigrants 1615-AB65 Final Rule Stage
51 Changes to Requirements Affecting H-2B Nonimmigrants and Their Employers 1615-AB67 Final Rule Stage
52 Transportation Worker Identification Credential (TWIC); Card Reader Requirements (USCG-2007-28915) 1625-AB21 Prerule Stage
53 Implementation of the 1995 Amendments to the International Convention on Standards of Training, 1625-AA16 Proposed Rule
Certification, and Watchkeeping (STCW) for Seafarers, 1978 (USCG-2004-17914) Stage
54 Standards for Living Organisms in Ships' Ballast Water Discharged in U.S. Waters (USCG-2001-10486) 1625-AA32 Proposed Rule
Stage
55 Vessel Requirements for Notices of Arrival and Departure, and Automatic Identification System (USCG- 1625-AA99 Proposed Rule
2005-21869) Stage
56 Passenger and Inspected Vessel Stability Requirements (USCG-2007-0030) 1625-AB20 Proposed Rule
Stage
57 Advance Information on Private Aircraft Arriving and Departing the United States 1651-AA41 Final Rule Stage
58 Importer Security Filing and Additional Carrier Requirements 1651-AA70 Final Rule Stage
59 Changes to the Visa Waiver Program To Implement the Electronic System for Travel Authorization 1651-AA72 Final Rule Stage
(ESTA) Program
60 Implementation of the Guam-CNMI Visa Waiver Program 1651-AA77 Final Rule Stage
61 Aircraft Repair Station Security 1652-AA38 Proposed Rule
Stage
62 Large Aircraft Security Program, Other Aircraft Operator Security Programs, and Airport Operator 1652-AA53 Proposed Rule
Security Program Stage
63 Public Transportation--Security Training of Employees 1652-AA55 Proposed Rule
Stage
64 Public Transportation--Security Plan 1652-AA56 Proposed Rule
Stage
65 Railroads--Security Training of Employees 1652-AA57 Proposed Rule
Stage
66 Railroads--Vulnerability Assessment and Security Plan 1652-AA58 Proposed Rule
Stage
67 Over-the-Road Buses--Security Training of Employees 1652-AA59 Proposed Rule
Stage
68 Over-the-Road Buses--Vulnerability Assessment and Security Plan 1652-AA60 Proposed Rule
Stage
69 Secure Flight Program 1652-AA45 Final Rule Stage
70 Rail Transportation Security 1652-AA51 Final Rule Stage

[[Page 71108]]

71 Air Cargo Screening 1652-AA64 Final Rule Stage
72 Amendment of Flight Training Regulations for F and M Nonimmigrants and to Transition J Flight 1653-AA43 Proposed Rule
Training Programs of the Department of State to M Flight Programs with the Department of Homeland Stage
Security
73 Clarification of Criteria for Certification, Oversight, and Recertification of Schools by the 1653-AA44 Proposed Rule
Student and Exchange Visitor Program (SEVP) To Enroll F or M Nonimmigrant Students Stage
74 Special Community Disaster Loans Program 1660-AA44 Proposed Rule
Stage
75 Update of FEMA's Public Assistance Regulations 1660-AA51 Proposed Rule
Stage
76 Disaster Assistance; Federal Assistance to Individuals and Households 1660-AA18 Final Rule Stage
--------------------------------------------------------------------------------------------------------------------------------------------------------

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
77 Refinement of Income and Rent Determinations in Public and Assisted Housing Programs (FR-4998) 2501-AD16 Final Rule Stage
78 Real Estate Settlement Procedures Act (RESPA): Simplification and Improvement of the Process of 2502-AI61 Final Rule Stage
Obtaining Home Mortgages and Reducing Consumer Costs (FR-5180)
--------------------------------------------------------------------------------------------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
79 Placement of Excess Spoil 1029-AC04 Final Rule Stage
80 Oil Shale Leasing and Operations 1004-AD90 Final Rule Stage
--------------------------------------------------------------------------------------------------------------------------------------------------------

DEPARTMENT OF JUSTICE
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
81 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities 1190-AA44 Final Rule Stage
82 Nondiscrimination on the Basis of Disability in State and Local Government Services 1190-AA46 Final Rule Stage
--------------------------------------------------------------------------------------------------------------------------------------------------------

DEPARTMENT OF LABOR
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
83 Senior Community Service Employment Program 1205-AB48 Proposed Rule
Stage
84 Senior Community Service Employment Program; Performance Accountability 1205-AB47 Final Rule Stage
85 Fiduciary Requirements for Disclosure in Participant-Directed Individual Account Plans 1210-AB07 Final Rule Stage
86 Prohibited Transaction Exemption for Provision of Investment Advice to Participants in Individual 1210-AB13 Final Rule Stage
Account Plans
87 Occupational Exposure to Crystalline Silica 1218-AB70 Prerule Stage
88 Cranes and Derricks 1218-AC01 Proposed Rule
Stage
89 Hazard Communication 1218-AC20 Proposed Rule
Stage
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 71109]]

DEPARTMENT OF TRANSPORTATION
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
90 Enhancing Airline Passenger Protections 2105-AD72 Proposed Rule
Stage
91 Automatic Dependent Surveillance--Broadcast (ADS-B) Equipage Mandate To Support Air Traffic Control 2120-AI92 Proposed Rule
Service Stage
92 National Registry of Certified Medical Examiners 2126-AA97 Proposed Rule
Stage
93 Carrier Safety Fitness Determination 2126-AB11 Proposed Rule
Stage
94 Commercial Driver's License Testing and Commercial Learner's Permit Standards 2126-AB02 Final Rule Stage
95 Ejection Mitigation 2127-AK23 Proposed Rule
Stage
96 Pipeline Safety: Distribution Integrity Management 2137-AE15 Final Rule Stage
--------------------------------------------------------------------------------------------------------------------------------------------------------

DEPARTMENT OF THE TREASURY
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
97 Basel II Standardized Approach 1557-AD07 Final Rule Stage
--------------------------------------------------------------------------------------------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
98 Review of the Primary National Ambient Air Quality Standard for Nitrogen Dioxide 2060-AO19 Prerule Stage
99 Review of the Secondary National Ambient Air Quality Standards for Oxides of Nitrogen and Oxides of 2060-AO72 Prerule Stage
Sulfur
100 Formaldehyde Emissions from Pressed Wood Products 2070-AJ44 Prerule Stage
101 Definition of Solid Waste for Non-Hazardous Materials 2050-AG44 Prerule Stage
102 Greenhouse Gas Mandatory Reporting Rule 2060-AO79 Proposed Rule
Stage
103 Renewable Fuels Standard Program 2060-AO81 Proposed Rule
Stage
104 Risk and Technology Review Phase II Group 2A 2060-AO91 Proposed Rule
Stage
105 Effluent Limitations Guidelines and Standards for the Construction and Development Point Source 2040-AE91 Proposed Rule
Category Stage
106 Prevention of Significant Deterioration and Nonattainment New Source Review: Emission Increases for 2060-AN28 Final Rule Stage
Electric Generating Units
107 Hazardous Waste Manifest Revisions -- Standards and Procedures for Electronic Manifests 2050-AG20 Final Rule Stage
108 CERCLA--Administrative Reporting Exemption for Air Releases of Hazardous Substances From Animal 2050-AG37 Final Rule Stage
Waste at Farms
--------------------------------------------------------------------------------------------------------------------------------------------------------

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
109 Genetic Information Nondiscrimination Act 3046-AA84 Proposed Rule
Stage
110 Disparate Impact Under the Age Discrimination in Employment Act 3046-AA76 Final Rule Stage
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 71110]]

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
111 Federal Records Management 3095-AB16 Final Rule Stage
--------------------------------------------------------------------------------------------------------------------------------------------------------

SMALL BUSINESS ADMINISTRATION
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
112 Lender Oversight Program 3245-AE14 Final Rule Stage
--------------------------------------------------------------------------------------------------------------------------------------------------------

SOCIAL SECURITY ADMINISTRATION
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
113 Revised Medical Criteria for Evaluating Respiratory System Disorders (859P) 0960-AF58 Proposed Rule
Stage
114 Revised Medical Criteria for Evaluating Mental Disorders (886P) 0960-AF69 Proposed Rule
Stage
115 Revised Medical Criteria for Evaluating Hematological Disorders (974P) 0960-AF88 Proposed Rule
Stage
116 Additional Insured Status Requirements for Certain Alien Workers (2882P) 0960-AG22 Proposed Rule
Stage
117 Revisions to Rules on Representation of Parties (3396F) 0960-AG56 Proposed Rule
Stage
118 Setting the Time and Place for a Hearing before an Administrative Law Judge (3481P) 0960-AG61 Proposed Rule
Stage
119 Revised Medical Criteria for Evaluating Immune (HIV) System Disorders (3466P) 0960-AG71 Proposed Rule
Stage
120 Amendments to Application Filing Date Requirements for Certain Military Members of the Uniformed 0960-AG73 Proposed Rule
Service (3474P) Stage
121 Reestablishing Appeals Council Level Provisions in the Boston Region (3502P) 0960-AG80 Proposed Rule
Stage
122 Disability Determinations by State Agency Disability Examiners (3510P) 0960-AG87 Proposed Rule
Stage
123 Amendments to Rules on Fee Payments and Sanctions (3513P) 0960-AG90 Proposed Rule
Stage
124 Revised Medical Criteria for Evaluating Hearing Loss (2862F) 0960-AG20 Final Rule Stage
125 Revised Medical Criteria for Malignant Neoplastic Diseases (3429F) 0960-AG57 Final Rule Stage
126 Authorization of Representative Fees (3508F) 0960-AG82 Final Rule Stage
--------------------------------------------------------------------------------------------------------------------------------------------------------

CONSUMER PRODUCT SAFETY COMMISSION
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
127 Flammability Standard for Upholstered Furniture 3041-AB35 Final Rule Stage
--------------------------------------------------------------------------------------------------------------------------------------------------------

NATIONAL INDIAN GAMING COMMISSION
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
128 Technical Standards for Gaming Machines and Gaming Systems 3141-AA29 Final Rule Stage
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 71111]]

POSTAL REGULATORY COMMISSION
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulation
Sequence Title Identifier Rulemaking Stage
Number Number
--------------------------------------------------------------------------------------------------------------------------------------------------------
129 Accounting Practices and Principles 3211-AA04 Final Rule Stage
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. Filed 11-21-08;8:45 am]
BILLING CODE 6820-27-S

[[Page 71112]]

DEPARTMENT OF AGRICULTURE (USDA)

Statement of Regulatory Priorities
USDA's regulatory efforts in 2009 will focus on implementing the Food,
Conservation, and Energy Act of 2008 (``2008 Farm Bill'') covering
major farm, trade, conservation, rural development, nutrition
assistance and other programs. In addition to work implementing the
2008 Farm Bill, USDA's regulatory activities in 2009 will cover a broad
range of issues. Within the rulemaking process is the department-wide
effort to reduce burden on participants and program administrators
alike by focusing on improving program outcomes, and particularly on
achieving the performance measures specified in the USDA and agency
Strategic Plans. Important areas of activity include the following:
USDA will continue regulatory work to protect the health and
value of U.S. agricultural and natural resources while
facilitating trade flows. This includes amending
regulations related to the importation of fruits and
vegetables, nursery products, animals and animal products,
and continuing work related to regulation of plant and
animal biotechnologies. In addition, USDA will propose
specific standards for the humane handling, care,
treatment, and transportation of birds under the Animal
Welfare Act.
In the area of food safety, USDA will continue to develop
science-based regulations that improve the safety of meat,
poultry, and egg products in the least burdensome and most
cost-effective manner. Regulations will be revised to
address emerging food safety challenges, streamlined to
remove excessively prescriptive regulations, and updated to
be made consistent with hazard analysis and critical
control point principles. As required by the 2008 Farm
Bill, USDA will also develop science-based regulations that
improve the safety of catfish in the least burdensome and
most cost-effective manner. To assist small entities to
comply with food safety requirements, the Food Safety and
Inspection Service will continue to collaborate with other
USDA agencies and State partners in the enhanced small
business outreach program.
As changes are made for the nutrition assistance programs,
USDA will work to foster actions that will help improve
diets, and particularly to prevent and reduce overweight
and obesity. In 2009, FNS will continue to promote
nutritional knowledge and education while minimizing
participant and vendor fraud. USDA has priority projects in
the Rural Development mission area to strengthen the
regulations for its broadband access program to better
focus on areas without such access, to consolidate and
streamline its regulations relating to the delivery of its
guaranteed loan programs, and to promulgate new regulations
that promote the development and production of advanced
biofuels.
USDA has priority projects in the Rural Development mission
area to strengthen the regulations for its broadband access
program to better focus on areas without access. Rural
Development will publish new regulations that will
consolidate and streamline the delivery of its guaranteed
loan programs. Rural Development is anticipating the
publication of both interim final rules by the end of the
year. Finally, pursuant to the 2008 Farm Bill, Rural
Development will promulgate new regulations that promote
the development and production of advanced biofuels.
USDA will continue to promote economic opportunities for
agriculture and rural communities through its BioPreferred
Program (formerly the Federal Biobased Product Preferred
Procurement Program). USDA will continue to designate
groups of biobased products to receive procurement
preference from Federal agencies and contractors. In
addition, USDA will publish rules establishing the
Voluntary Labeling Program for biobased products.
Reducing Paperwork Burden on Customers
USDA has made substantial progress in implementing the goal of the
Paperwork Reduction Act of 1995 to reduce the burden of information
collection on the public. To meet the requirements of the Government
Paperwork Elimination Act (GPEA) and the E-Government Act, agencies
across USDA are providing electronic alternatives to their
traditionally paper-based customer transactions. As a result, producers
increasingly have the option to electronically file forms and all other
documentation online. To facilitate the expansion of electronic
government, USDA implemented an electronic authentication capability
that allows customers to ``sign-on'' once and conduct business with all
USDA agencies. Supporting these efforts are ongoing analyses to
identify and eliminate redundant data collections and streamline
collection instructions. The end result of implementing these
initiatives is better service to our customers enabling them to choose
when and where to conduct business with USDA.
The Role of Regulations
The programs of USDA are diverse and far reaching, as are the
regulations that attend their delivery. Regulations codify how USDA
will conduct its business, including the specifics of access to, and
eligibility for, USDA programs. Regulations also specify the
responsibilities of State and local governments, private industry,
businesses, and individuals that are necessary to comply with their
provisions.
The diversity in purpose and outreach of USDA programs contributes
significantly to USDA being near the top of the list of departments
that produce the largest number of regulations annually. These
regulations range from nutrition standards for the school lunch
program, to natural resource and environmental measures governing
national forest usage and soil conservation, to emergency producer
assistance as a result of natural disasters, to regulations protecting
American agribusiness (a major dollar value contributor to exports)
from the ravages of domestic or foreign plant or animal pestilence, and
they extend from farm to supermarket to ensure the safety, quality, and
availability of the Nation's food supply.
Many regulations function in a dynamic environment, which requires
their periodic modification. The factors determining various
entitlement, eligibility, and administrative criteria often change from
year to year. Therefore, many significant regulations must be revised
annually to reflect changes in economic and market benchmarks.
Almost all legislation that affects USDA programs has accompanying
regulatory needs, often with a significant impact resulting in the
modification, addition, or deletion of many programs. In 2009, USDA
will implement the 2008 Farm Bill through regulations on major programs
covering domestic commodity support, crop insurance, conservation,
export and foreign food assistance, bioenergy, rural development,
agricultural research, and food and nutrition programs.

[[Page 71113]]

Major Regulatory Priorities
This document represents summary information on prospective significant
regulations as called for in Executive Order 12866. The following
agencies are represented in this regulatory plan, along with a summary
of their mission and key regulatory priorities for 2009:
Farm Service Agency
Mission: The Farm Service Agency's (FSA) mission is to stabilize farm
income; to assist owners and operators of farms and ranches to conserve
and enhance soil, water, and related natural resources; to provide
credit to new or existing farmers and ranchers who are temporarily
unable to obtain credit from commercial sources; and to help farm
operations recover from the effects of disaster, as prescribed by
various statutes.
Priorities: FSA's priority for 2009 will be to fully implement the 2008
Farm Bill, the Food, Conservation, and Energy Act of 2008. The 2008
Farm Bill, which was enacted on June 18, 2008, governs Federal farm
programs through 2012. Among its major provisions are to provide income
support for wheat, feed grains, upland cotton, rice, oilseeds, and
other commodities through three programs: Direct payments, counter-
cyclical payments, and marketing loans. It also provides a new
alternative income support program, the average crop revenue election
program. In addition, the 2008 Farm Bill provides a set of standing
disaster assistance programs, including a new revenue based program for
supplemental agricultural disaster assistance. These entirely new
programs require completely new regulations and revision of the
existing program regulations. In addition, significant revisions in
existing regulations will be required to address new reforms in
criteria for program eligibility and limitations on payments to
participants. It also requires changes to farm operating loans, down
payment loans, and emergency loans, including expanding to include
socially disadvantaged farmers, increasing loan limits, loan size,
funding targets, interest rates, and graduating borrowers to commercial
credit. In addition, it establishes a new direct and guaranteed loan
program to assist farmers in implementing conservation practices. FSA
will develop and issue the regulations and make program funds available
to eligible clientele in as timely a manner as possible. As these and
future changes required by Administration initiatives and new
legislation are made, the Agency's focus will be to implement the
changes in such a way as to provide benefits while minimizing program
complexity and regulatory burden for program participants.
Opportunities will be taken to clarify, simplify, and reduce confusion
whenever possible. The Agency's ability to promote new policy
initiatives when implementing these regulations is limited due to the
need to adhere to legislative intent. Therefore, due to their combined
economic magnitude, they are noted here to acknowledge their
significance in the overall USDA regulatory plan, but are not further
listed in the body of the plan that appears below (the regulations are
all included in the Unified Agenda).
Food and Nutrition Service
Mission: FNS increases food security and reduces hunger in partnership
with cooperating organizations by providing children and low-income
people access to food, a healthful diet, and nutrition education in a
manner that supports American agriculture and inspires public
confidence.
Priorities: In addition to responding to provisions of legislation
authorizing and modifying Federal nutrition assistance programs, FNS's
2008 regulatory plan supports USDA's Strategic Goal 5, ``Improve the
Nation's Nutrition and Health,'' and its three related objectives:
Improve Access to Nutritious Food. This objective represents
FNS's efforts to improve nutrition by providing access to
program benefits (Food Stamps, WIC food vouchers and
nutrition services, school meals, commodities) and
distributing State administrative funds to support program
operations. To advance this objective, FNS plans to
finalize rules implementing provisions of the Farm Security
and Rural Investment Act of 2002 (P.L. 107-171) to simplify
program administration, support work, and improve access to
benefits in the Food Stamp Program (FSP). The Agency will
also issue rules implementing provisions of the Child
Nutrition and WIC Reauthorization Act of 2004 (P.L. 108-
265) to establish automatic eligibility for homeless
children for school meals.
Promote Healthier Eating Habits and Lifestyles. This objective
represents FNS's efforts to improve nutrition knowledge and
behavior through nutrition education and breastfeeding
promotion, and to ensure that program benefits meet the
appropriate nutrition standards to effectively improve
nutrition for program participants. In support of this
objective, FNS plans to finalize a rule revising
requirements that allow schools to substitute
nutritionally-equivalent non-dairy beverages for fluid milk
at the request of a recipient's parent in addition to
medical care providers.
Improve Nutrition Assistance Program Management and Customer
Service. This objective represents FNS's ongoing commitment
to maximize the accuracy of benefits issued, maximize the
efficiency and effectiveness of program operations, and
minimize participant and vendor fraud. In support of this
objective, FNS plans to finalize rules in the Child and
Adult Care Food Program (CACFP) and the Special
Supplemental Nutrition Program for Women, Infants and
Children Program (WIC) to improve program management and
prevent vendor fraud, as well as finalize rules in the FSP
to improve the Quality Control process.
Food Safety and Inspection Service
Mission: The Food Safety and Inspection Service (FSIS) is responsible
for ensuring that meat, poultry, egg, and catfish products in
interstate and foreign commerce are wholesome, not adulterated, and
properly marked, labeled, and packaged.
Priorities: FSIS' 2008 Regulatory Plan helps implement USDA's Strategic
Goal 4, ``Enhance Protection and Safety of the Nation's Agriculture and
Food Supply,'' particularly the objective to reduce the incidence of
foodborne illnesses related to meat, poultry, egg products, and, once a
program is implemented, catfish in the U.S. FSIS is working toward a
more scientific inspection system with a more risk-based approach to
ensuring that meat, poultry, egg products, and catfish are wholesome
and not adulterated or misbranded.
FSIS is committed to developing and issuing science-based regulations
intended to ensure that meat, poultry, egg, and catfish products are
wholesome and not adulterated or misbranded. FSIS continues to review
its existing authorities and regulations to streamline excessively
prescriptive regulations, to revise or remove regulations that are
inconsistent with the Agency's hazard analysis and critical control
point regulations, and to ensure that it can address emerging food
safety challenges. FSIS is also working with the Food and Drug
Administration (FDA) to better delineate the two agencies'
jurisdictions over various food products.

[[Page 71114]]

Following are some of the Agency's recent and planned initiatives:
In July 2008, FSIS published a final rule on the Availability of Retail
Consignee During Meat and Poultry Product recalls. This final rule
should enhance the public health by helping consumers to determine
whether they have recalled product in their refrigerator freezer or
pantry.
FSIS is proposing to require that all cattle that become non-ambulatory
disabled at any time before slaughter, including those that become non-
ambulatory disabled after passing ante-mortem inspection, must be
condemned and properly disposed of. Under the current regulations, FSIS
inspection personnel determine, on case by-case basis, the disposition
of cattle that become nonambulatory disabled after they have passed
ante-mortem inspection. FSIS is proposing to remove the provision for
case-by-case determination by FSIS inspection personnel.
2008 Farm Bill-related Rulemakings:
The Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246), known
as the 2008 Farm Bill, made several amendments to statutes administered
by FSIS and gave the Agency other instructions. As a result, FSIS is
developing new regulations to implement: mandatory inspection for
catfish; a program for interstate shipment of State-inspected meat and
poultry products; and recall procedure and process control reassessment
requirements for inspected establishments. FSIS is also developing
regulations on country-of-origin labeling (COOL) for certain meat and
poultry commodities to conform to final regulations promulgated by
USDA's Agricultural Marketing Service.
Catfish Inspection:
FSIS is developing regulations to implement Farm Bill amendments of the
FMIA (in Pub. L. 110-246, Sec. 11016) to make catfish amenable to the
FMIA. The regulations will define ``catfish'' and the scope of coverage
of the regulations to apply to establishments that process catfish and
catfish products. The regulations, to be implemented no later than 18
months from the date of enactment of the 2008 Farm Bill, will take into
account the conditions under which the catfish are raised and
transported to a processing establishment.
Interstate shipment of State-inspected meat and poultry products:
FSIS is proposing regulations to implement a new voluntary Federal-
State cooperative inspection program under which State-inspected
establishments with 25 or fewer employees would be eligible to ship
meat and poultry products in interstate commerce. State-inspected
establishments selected to participate in this program would be
required to comply with all Federal standards under the FMIA and the
PPIA. These establishments would receive inspection services from State
inspection personnel that have been trained and certified to assist
with enforcement of the FMIA and PPIA. Meat and poultry products
produced under the program that have been inspected and passed by
selected State inspection personnel would bear a Federal mark of
inspection. Section 11015 of the 2008 Farm Bill provides for the
interstate shipment of State-inspected meat and poultry product from
selected establishments and requires that FSIS promulgate implementing
regulations no later than 18 months from the date of its enactment.
Food safety improvement:
FSIS is proposing regulations that will implement Sec. 11017 of the
2008 Farm Bill on notification, documentation, and recordkeeping
requirements for inspected establishments. This section amends the FMIA
and PPIA to require establishments that are subject to inspection under
these Acts to promptly notify the Agency that an adulterated or
misbranded product received by or originating from the establishment
has entered into commerce, if the establishment has reason to believe
that this has happened. Section 11017 also requires establishments
subject to inspection under the FMIA and PPIA to: (1) prepare and
maintain current procedures for the recall of all products produced and
shipped by the establishment; (2) document each reassessment of the
process control plans of the establishment; and (3) upon request, make
the procedures and reassessed control plans available to FSIS
inspection personnel for review and copying.
In June 2003, FSIS published an interim final rule requiring
establishments to prevent L. monocytogenes contamination of RTE
products. The Agency is evaluating the effectiveness of this interim
final rule, which in 2004 was the subject of a regulatory reform
nomination to OMB. FSIS has carefully reviewed its economic analysis of
the interim final rule in response to this recommendation and is
planning to adjust provisions of the rule to reduce the information
collection burden on small businesses. FSIS is also planning further
action with respect to other elements of the 2001 proposal, based on
quantitative risk assessments of target pathogens in processed
products.
FSIS plans to propose to amend the poultry products inspection
regulations to put in place a system in which the establishment sorts
the carcasses for defects, and the Agency verifies that the system is
under control and producing safe and wholesome product. The Agency
would propose to adopt performance standards, designed to ensure that
the establishments are carrying out slaughter, dressing, and chilling
operations in a manner that ensures no significant growth of pathogens,
as demonstrated by control of the pathogens or indicator organisms. The
Agency would also verify that vulnerable points in the process are
under control.
Small business implications:
The great majority of businesses regulated by FSIS are small
businesses. With the exception of the non-ambulatory disabled cattle
rulemaking, the regulations listed above substantially affect small
businesses. Some rulemakings can benefit small businesses. For example,
the rule on interstate shipment of State-inspected products will open
interstate markets to some small State-inspected establishments that
previously could only sell their products within State boundaries.
FSIS recognizes the difficulties faced by many small and very small
establishments in complying with necessary, science-based food-safety
or other consumer protection requirements and in assuming the
associated technical and financial burdens. FSIS attempts to reduce the
burdens of its regulations on small business by providing alternative
dates of compliance, furnishing detailed compliance guidance material,
and conducting outreach programs to small and very small
establishments.
FSIS conducts a small business outreach program that provides critical
training, access to food safety experts, and information resources
(such as compliance guidance and questions and answers on various
topics) in forms that are uniform, easily comprehended, and consistent.
The Agency collaborates in this effort with other USDA agencies and
cooperating State partners. For

[[Page 71115]]

example, FSIS makes plant owners and operators aware of loan programs,
available through USDA's Rural Business and Cooperative programs, to
help them in upgrading their facilities. FSIS employees meet
proactively with small and very small plant operators to learn more
about their specific needs and provide joint training sessions for
small and very small plants and FSIS employees.
International trade or investment effects:
To be eligible for the importation of meat, poultry, or egg products
into the United States, foreign inspection systems and establishments
must meet regulatory standards that are equivalent to those that FSIS
administers. For most of the regulatory initiatives described above,
foreign inspection systems will have to ensure that they are
maintaining equivalent standards. For example, in order to be able to
continue to ship catfish-type products to the United States, foreign
countries will have to have inspection systems for catfish and catfish
products that impose requirements that are equivalent to those that
FSIS will establish in the rulemaking described above.
Animal and Plant Health Inspection Service
Mission: A major part of the mission of the Animal and Plant Health
Inspection Service (APHIS) is to protect the health and value of
American agricultural and natural resources. APHIS conducts programs to
prevent the introduction of exotic pests and diseases into the United
States and conducts surveillance, monitoring, control, and eradication
programs for pests and diseases in this country. These activities
enhance agricultural productivity and competitiveness and contribute to
the national economy and the public health. APHIS also conducts
programs to ensure the humane handling, care, treatment, and
transportation of animals under the Animal Welfare Act.
Priorities: APHIS is continuing work to revise its biotechnology
regulations to reflect new consolidated authorities under the Plant
Protection Act and to address advances in technology. APHIS also plans
to revise its regulations for importing nursery stock to better address
plant health risks associated with propagative material. With respect
to animal health, the Agency intends to revise its regulations
concerning bovine spongiform encephalopathy (BSE) to provide a more
comprehensive framework for the importation of certain animals and
products. The revision of the regulations regarding BSE will likely be
of most interest to those countries that currently export large volumes
of live bovines or bovine-derived products to the United States, as
well as to those countries from which such commodities are currently
prohibited, but that may wish to export live bovines or bovine products
to the United States in the future. APHIS also plans to propose
standards for the humane handling, care, treatment, and transportation
of birds covered under the Animal Welfare Act.
Additional information about APHIS and its programs is available on the
Internet at http://www.aphis.usda.gov.
Agricultural Marketing Service
Mission: The Agricultural Marketing Service (AMS) provides marketing
services to producers, manufacturers, distributors, importers,
exporters, and consumers of food products. The AMS also manages the
government's food purchases, supervises food quality grading, maintains
food quality standards, and supervises the Federal research and
promotion programs.
Priorities: AMS priority items for the next year include several
rulemakings as a result of passage of the Food, Conservation, and
Energy Act of 2008 (2008 Farm Bill). These include the following:
Country of Origin Labeling:
On August 1, 2008, AMS published an interim final rule implementing the
Mandatory Country of Origin and Labeling (COOL) of Beef, Pork, Lamb,
Chicken, Goat, Perishable Agricultural Commodities, Peanuts, Pecans,
Ginseng, and Macadamia Nuts as directed by the 2002 Farm Bill. The rule
requires retailers to notify their customers of the country of origin
of covered commodities. Covered commodities include muscle cuts of beef
(including veal), lamb, chicken, goat, and pork; ground beef, ground
lamb, ground chicken, ground goat, and ground pork; perishable
agricultural commodities; macadamia nuts; pecans; ginseng; and peanuts.
Because the 2008 Farm Bill contained a number of provisions that amends
the regulations, AMS published an interim final rule with request for
comments to allow newly affected industries the opportunity to comment
prior to issuance of a final rule. The COOL interim final rule for wild
and farm-raised fish and shellfish was published On October 5, 2004.
Dairy Promotion and Research Program:
The Dairy Production Stabilization Act of 1983 (Dairy Act) authorized
USDA to create a national producer program for dairy product promotion,
research, and nutrition education as part of a comprehensive strategy
to increase human consumption of milk and dairy products. Dairy farmers
fund this self-help program through a mandatory assessment on all milk
produced in the contiguous 48 States and marketed commercially. Dairy
farmers administer the national program through the National Dairy
Promotion and Research Board (Dairy Board).
The 2008 Farm Bill extended the program to include producers in Alaska,
Hawaii, and Puerto Rico who will pay an assessment of $0.15 per
hundredweight of milk production. Imported dairy products will be
assessed at $0.075 per hundredweight of fluid milk equivalent. An
interim final rule will implement these new provisions.
Dairy Forward Pricing:
The 2008 Farm Bill re-established the Dairy Forward Pricing Program,
which allows dairy farmers to voluntarily enter into forward contracts
with milk handlers. The original Dairy Forward Pricing Program operated
on a pilot basis from 1999 through 2004. A forward contract is an
agreement to sell a stated quantity of milk, for a stated period, at a
stated priced. This voluntary risk management tool will allow producers
and handlers to ``lock in'' prices, reducing risks associated with
changes in price and income and enhancing the ability to obtain
financing. AMS intends to issue an interim final rule to implement the
program as provided for in the 2008 Farm Bill.
Establish Procedures for Farmers' Market Promotion Program:
The Agricultural Marketing Service (AMS) will establish regulations for
the operation of the Farmers' Market Promotion Program (FMPP)
incorporating new amendments enacted in the 2008 Farm Bill. The purpose
of the FMPP is to make grants available to eligible entities for
projects to ``establish, expand, and promote farmers' markets and to
promote direct producer-to-consumer marketing''; increase domestic
consumption of agricultural commodities by improving and expanding, or
assisting in the improvement and expansion of domestic farm ers'
markets, roadside stands, community-supported agriculture programs,
agri-tourism activities, and other direct producer-to-

[[Page 71116]]

consumer market opportunities; and develop, or aid in the development
of, new farmers' markets, roadside stands, community-supported
agriculture programs, agri-tourism activities, and other direct
producer-to-consumer marketing opportunities.
Other important rulemakings the Agency will undertake include two
proposed rules amending the National Organic Program regulations. The
1990 Organic Foods Production Act, established the National Organic
Program (NOP) within the Agricultural Marketing Service (AMS). It also
established the National Organic Standards Board (NOSB), as an advisory
body to the NOP. The program was established to create organic
standards and to require and oversee mandatory certification or organic
production. The NOP regulations were implemented in 2002.
Access to Pasture:
Since implementation of the NOP, some members of the public have
advocated for a more explicit regulatory standard on the relationship
between livestock, particularly dairy animals, and grazing land. They
have asserted the current regulatory language on access to pasture for
ruminants and temporary confinement based on an animal's stage of
production, when applied together, do not provide a uniform requirement
for the pasturing of ruminant animals that meet the principles
underlying an organic management system for livestock and livestock
products that consumers expect.
Dairy Replacement:
The Agricultural Marketing Service (AMS) is proposing to amend the
National Organic Program (NOP) regulations to clarify the regulations
with respect to the sourcing of dairy replacement animals. AMS expects
to publish a proposed rule with request for comment in spring 2009
requesting input on existing origin of livestock provisions.
AMS Program Rulemaking Pages: All of AMS' rules published in the
Federal Register are available on the Internet at http://
www.regulations.gov. This site also includes commenting instructions
and addresses, links to news releases and background material, and
comments received on various rules.
Forest Service
Mission: The mission of the Forest Service is to sustain the health,
productivity, and diversity of the Nation's forests and rangelands to
meet the needs of present and future generations. This includes
protecting and managing National Forest System lands; providing
technical and financial assistance to States, communities, and private
forest landowners; and developing and providing scientific and
technical assistance and scientific exchanges in support of
international forest and range conservation.
Priorities: Roadless Rules - On January 12, 2001, the Department of
Agriculture promulgated the Roadless Area Conservation Rule (RACR) to
provide for the conservation and management of approximately 58.5
million acres of inventoried roadless areas within the National Forest
System under the principles of the Multiple-Use Sustained-Yield Act of
1960. On July 14, 2003, the U.S. District Court for the District of
Wyoming found the 2001 roadless rule to be unlawful and ordered that
the rule be permanently enjoined. The final rule for Inventoried
Roadless Area Management for the State of Idaho was published October
16, 2008. The State of Colorado has petitioned the Secretary pursuant
to 5 U.S.C. Sec. 553(e) and 7 C.F.R. Sec. 1.28 for state specific rules
to replace this national rule.
The 2008 Farm Bill identifies 3 rule-making actions specific to the
Forest Service. These proposals are priority for the agency for fall
2008.
Community Forest And Open Space Conservation Program - This
program will provide federal matching grants to help local
government, tribes, or non-profit organizations acquire
private forests that are threatened by conversion to non-
forest uses.
Pest And Disease Revolving Loan Fund - The Pest and Disease
Revolving Loan Fund authorizes low interest loans to local
governments for equipment & contracts to aid in combating
invasive species outbreaks in community trees and forests.
Forest Products For Traditional And Cultural Purposes - The
Forest Products for Traditional and Cultural Purposes
provision authorizes Indian Tribes free use of forest
products from National Forest System lands for traditional
and cultural purposes.
Rural Development
Mission: Rural Development's mission is to support increased economic
opportunities and improved quality of life in rural America. This
support is provided through loan guarantees, grants and technical
assistance for rural housing, community facilities, business and
industry, and electric, telecommunication and water and waste disposal
facilities.
Priorities: USDA has priority projects in Rural Development to
strengthen the regulations for its broadband access program to better
focus on areas without such access. Rural Development will publish new
regulations that will consolidate and streamline the delivery of its
guaranteed loan programs. Rural Development is anticipating the
publication of both interim final rules by the end of the year.
Finally, pursuant to the 2008 Farm Bill, Rural Development will
promulgate new regulations that promote the development and production
of advanced biofuels.
Departmental Administration
Mission: Departmental Administration's mission is to provide management
leadership to ensure that USDA administrative programs, policies,
advice and counsel meet the needs of USDA program organizations,
consistent with laws and mandates; and provide safe and efficient
facilities and services to customers.
Priorities: The regulatory priority for Departmental Administration is
to continue implementing the BioPreferred Program (formerly the Federal
Biobased Product Preferred Procurement Program) authorized by the 2008
Farm Bill (Public Law 110-246). Included in this priority are proposed
and final regulations designating items for preferred Federal
procurement. These regulations will assist in the expansion of market
opportunities for manufacturers of biobased products, resulting in
economic opportunities for American agricultural producers and rural
communities. These efforts support USDA's strategic goal ``To enhance
the competitiveness and sustainability of rural and farm economies.''
In addition, Departmental Administration will look to begin
implementation of the BioPreferred labeling program. Once implemented,
this program will allow biobased manufacturers to receive a label to be
used in the commercial market to distinguish their products as
biobased.
Aggregate Costs and Benefits
Per E.O. 13422, USDA is required to provide its best estimate of the
combined aggregate costs and benefits of final regulations included in
the Regulatory Plan. For calendar year 2009, USDA's priority will be to
fully implement the 2008 Farm Bill, the Food, Conservation, and Energy
Act of 2008. The 2008 Farm Bill governs

[[Page 71117]]

Federal farm programs through 2012. Provisions will require completely
new regulations and revision of existing program regulations. The
Department's focus on Farm Bill and other regulations will be to
implement the changes in such a way as to provide benefits while
minimizing program complexity and regulatory burden for program
participants.
_______________________________________________________________________

USDA--Animal and Plant Health Inspection Service (APHIS)

-----------

PROPOSED RULE STAGE

-----------

1. ANIMAL WELFARE; REGULATIONS AND STANDARDS FOR BIRDS

Priority:

Other Significant

Legal Authority:

7 USC 2131 to 2159

CFR Citation:

9 CFR 1 to 3

Legal Deadline:

None

Abstract:

APHIS intends to establish standards for the humane handling, care,
treatment, and transportation of birds other than birds bred for use in
research.

Statement of Need:

The Farm Security and Rural Investment Act of 2002 amended the
definition of animal in the Animal Welfare Act (AWA) by specifically
excluding birds, rats of the genus Rattus, and mice of the genus Mus,
bred for use in research. While the definition of animal in the
regulations contained in 9 CFR part 1 has excluded rats of the genus
Rattus and mice of the genus Mus bred for use in research, that
definition has also excluded all birds (i.e., not just those birds bred
for use in research). In line with this change to the definition of
animal in the AWA, APHIS intends to establish standards in 9 CFR part 3
for the humane handling, care, treatment, and transportation of birds
other than those birds bred for use in research.

Summary of Legal Basis:

The Animal Welfare Act (AWA) authorizes the Secretary of Agriculture 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,
and carriers and immediate handlers. Animals covered by the AWA include
birds that are not bred for use in research.

Alternatives:

To be identified.

Anticipated Cost and Benefits:

To be determined.

Risks:

Not applicable.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 02/00/09
NPRM Comment Period End 04/00/09

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

Undetermined

Additional Information:

Additional information about APHIS and its programs is available on the
Internet at http://www.aphis.usda.gov.

Agency Contact:
Darrel Styles
Veterinary Medical Officer, Animal Care
Department of Agriculture
Animal and Plant Health Inspection Service
4700 River Road, Unit 84
Riverdale, MD 20737-1234
Phone: 301 734-0658
RIN: 0579-AC02
_______________________________________________________________________

USDA--APHIS

2. IMPORTATION OF PLANTS FOR PLANTING; ESTABLISHING A NEW CATEGORY OF
PLANTS FOR PLANTING NOT AUTHORIZED FOR IMPORTATION PENDING RISK
ASSESSMENT (RULEMAKING RESULTING FROM A SECTION 610 REVIEW)

Priority:

Other Significant

Legal Authority:

7 USC 450; 7 USC 7701 to 7772; 7 USC 7781 to 7786; 21 USC 136 and 136a

CFR Citation:

7 CFR 319

Legal Deadline:

None

Abstract:

This action would establish a new category in the regulations governing
the importation of nursery stock, also known as plants for planting.
This category would list taxa of plants for planting whose importation
is not authorized pending risk assessment. We would allow foreign
governments to request that a pest risk assessment be conducted for a
taxon whose importation is not authorized pending risk evaluation.
After the pest risk assessment was completed, we would conduct
rulemaking to remove the taxon from the proposed category if determined
appropriate by the risk assessment. We are also proposing to expand the
scope of the plants regulated in the plants for planting regulations to
include non-vascular plants. These changes would allow us to react more
quickly to evidence that a taxon of plants for planting may pose a pest
risk while ensuring that our actions are based on scientific evidence.

Statement of Need:

APHIS typically relies on inspection at a Federal plant inspection
station or port of entry to mitigate the risks of pest introduction
associated with the importation of plants for planting. Importation of
plants for planting is further restricted or prohibited only if there
is specific evidence that such importation could introduce a quarantine
pest into the United States. Most of the taxa of plants for planting
currently being imported have not been thoroughly studied to determine
whether their importation presents a risk of introducing a quarantine
pest into the United States. The volume and the number of types of
plants for planting have increased dramatically in recent years, and
there are several problems associated with gathering data on what
plants for planting are being imported and on the risks such
importation presents. In addition, quarantine pests that enter the
United States via the importation of plants for planting pose a
particularly high risk of becoming established within the United
States. The current regulations need to be amended to better address
these risks.

Summary of Legal Basis:

The Secretary of Agriculture may prohibit or restrict the importation
or entry of any plant if the Secretary determines that the prohibition
or

[[Page 71118]]

restriction is necessary to prevent the introduction into the United
States of a plant pest or noxious weed (7 U.S.C. 7712).

Alternatives:

APHIS has identified one alternative to the approach we are
considering. We could prohibit the importation of all nursery stock
pending risk evaluation, approval, and notice-and-comment rulemaking,
similar to APHIS's approach to regulating imported fruits and
vegetables. This approach would lead to a major interruption in
international trade and would have significant economic effects on both
U.S. importers and U.S. consumers of plants for planting.

Anticipated Cost and Benefits:

Undetermined.

Risks:

In the absence of some action to revise the nursery stock regulations
to allow us to better address pest risks, increased introductions of
plant pests via imported nursery stock are likely, causing extensive
damage to both agricultural and natural plant resources.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 02/00/09
NPRM Comment Period End 04/00/09

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

None

International Impacts:

This regulatory action will be likely to have international trade and
investment effects, or otherwise be of international interest.

Additional Information:

Additional information about APHIS and its programs is available on the
Internet at http://www.aphis.usda.gov.

Agency Contact:
Arnold T. Tschanz
Senior Import Specialist, Commodity Import Analysis and Operations, PPQ
Department of Agriculture
Animal and Plant Health Inspection Service
4700 River Road, Unit 133
Riverdale, MD 20737-1236
Phone: 301 734-5306
RIN: 0579-AC03
_______________________________________________________________________

USDA--APHIS

3. BOVINE SPONGIFORM ENCEPHALOPATHY; IMPORTATION OF BOVINES AND BOVINE
PRODUCTS

Priority:

Other Significant

Legal Authority:

7 USC 450; 7 USC 1622; 7 USC 7701 to 7772; 7 USC 8301 to 8317; 21 USC
136 and 136a; 31 USC 9701

CFR Citation:

9 CFR 92 to 96; 9 CFR 98

Legal Deadline:

None

Abstract:

This rulemaking would amend the regulations regarding the importation
of bovines and bovine products. Under this rulemaking, countries would
be classified as either negligible risk, controlled risk, or
undetermined risk for bovine spongiform encephalopathy (BSE). Some
commodities would be allowed importation into the United States
regardless of the BSE classification of the country of export. Other
commodities would be subject to importation restrictions or
prohibitions based on the type of commodity and the BSE classification
of the country. The criteria for country classification and commodity
import would be closely aligned with those of the World Organization
for Animal Health.

Statement of Need:

We are proposing to amend the regulations after conducting a thorough
review of relevant scientific literature and a comprehensive evaluation
of the issues and concluding that the proposed changes would continue
to guard against the introduction of BSE into the United States, while
allowing the importation of additional animals and animal products into
this country.

Summary of Legal Basis:

Under the Animal Health Protection Act of 2002 (7 U.S.C. 8301 et seq.),
the Secretary of Agriculture is authorized to promulgate regulations to
prevent the introduction into the United States or dissemination of any
pest or disease of livestock.

Alternatives:

We could leave the bovine regulations unchanged. The current
regulations are not consistent with the latest scientific information,
however, and, as a result, are more restrictive than necessary. Another
alternative--modifying the BSE regulations related to the importation
of bovines and bovine-derived products to precisely match the OIE
guidelines without allowing for modification deemed necessary by
APHIS--would not allow APHIS to independently interpret the scientific
literature or reflect current USDA regulations and policies. Making no
changes to the current regulations that govern the importation of
cervids and camelids would perpetuate an unnecessary constraint on
trade in those commodities, because cervids and camelids pose an
extremely low BSE risk.

Anticipated Cost and Benefits:

Undetermined.

Risks:

APHIS has concluded that the proposed changes would continue to guard
against the introduction of BSE into the United States.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 02/00/09
NPRM Comment Period End 04/00/09

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

Federal

International Impacts:

This regulatory action will be likely to have international trade and
investment effects, or otherwise be of international interest.

Additional Information:

Additional information about APHIS and its programs is available on the
Internet at http://www.aphis.usda.gov.

[[Page 71119]]

Agency Contact:
Christopher Robinson
Senior Staff Veterinarian, Technical Trade Services, National Center
for Import and Export, VS
Department of Agriculture
Animal and Plant Health Inspection Service
4700 River Road, Unit 40
Riverdale, MD 20737-1231
Phone: 301 734-7837
RIN: 0579-AC68
_______________________________________________________________________

USDA--APHIS

-----------

FINAL RULE STAGE

-----------

4. INTRODUCTION OF ORGANISMS AND PRODUCTS ALTERED OR PRODUCED THROUGH
GENETIC ENGINEERING

Priority:

Other Significant

Legal Authority:

7 USC 7701 to 7772; 7 USC 7781 to 7786; 31 USC 9701

CFR Citation:

7 CFR 340

Legal Deadline:

None

Abstract:

This rulemaking would revise the regulations regarding the importation,
interstate movement, and environmental release of certain genetically
engineered organisms in order to bring the regulations into alignment
with provisions of the Plant Protection Act. The revisions would also
update the regulations in response to advances in genetic science and
technology and our accumulated experience in implementing the current
regulations. This is the first comprehensive review and revision of the
regulations since they were established in 1987. This rule would affect
persons involved in the importation, interstate movement, or release
into the environment of genetically engineered plants and certain other
genetically engineered organisms.

Statement of Need:

APHIS currently regulates the introduction (movement into the United
States or interstate, or release into the environment) of genetically
engineered organisms that may present a plant pest risk under 7 CFR
part 340, ``Introduction of Organisms and Products Altered or Produced
Through Genetic Engineering Which Are Plant Pests or Which There Is
Reason to Believe Are Plant Pests.'' APHIS is evaluating its regulatory
program to determine if there is a need to revise its regulations in
light of our current knowledge and experience and advances in science
and technology.

Summary of Legal Basis:

The primary authority is provided by the Plant Protection Act, which
authorizes the Secretary of Agriculture to prohibit or restrict the
importation, entry, and movement in interstate commerce any plant,
plant product, biological control organism, noxious weed, or other
article if necessary to prevent the introduction into or dissemination
within the United States of any plant pest or noxious weed. Such
articles may include genetically engineered products.

Alternatives:

A draft environmental impact statement (DEIS) prepared for this action
evaluates all of the regulatory alternatives under consideration by the
Agency. Some key alternatives considered include whether APHIS should
broaden the scope of the regulations to reflect its authority over
noxious weeds and biological control organisms; whether and how to
revise the regulations to make the Agency's use of risk-based
categories--where genetically engineered organisms are classified
according to risk and familiarity so that oversight and confinement
vary by category--more refined, more explicit and more transparent to
the industry and the public and what criteria should be used to
establish risk-based categories; how to manage genetically engineered
organisms that present only minor unresolved risks that can be
mitigated effectively, and what factors should be considered in
establishing appropriate mitigations; whether new or additional
regulatory mechanisms are needed to ensure that genetically engineered
organisms producing pharmaceutical or industrial compounds are subject
to requirements and oversight commensurate with the potential risks;
for organisms that might be commercialized but that do not meet the
criteria for deregulation, whether a new type of permitting system
would be more appropriate in terms of efficiency and effectiveness than
the current system; whether APHIS should establish a new regulatory
approach to address incidents of low-level presence of genetically
engineered plant material; whether APHIS should establish a new
regulatory mechanism to allow for imports of commodities for
nonpropagative use, that is, for food, feed, or processing, in cases
where these commodities might not have been deregulated in the United
States; and whether to expand its current exemption from interstate
movement restrictions additional well-studied, low-risk, genetically
engineered research organisms.

Anticipated Cost and Benefits:

To be determined.

Risks:

While APHIS has always used a risk-based approach in regulating
genetically engineered organisms, there is a trend toward more highly
varied organisms. For example, genetic engineering technology has
advanced to the point where organisms can be developed that produce
novel proteins and other substances with biological activity or
industrial utility. We have initiated this rulemaking because APHIS
recognizes that the regulatory process may need greater flexibility and
rigor to more appropriately regulate the increasing variety of
organisms.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Notice of Intent to
Prepare an
Environmental Impact
Statement 01/23/04 69 FR 3271
Comment Period End 03/23/04
Notice of Availability of
Draft Environmental
Impact Statement 07/17/07 72 FR 39021
Comment Period End 09/11/07
NPRM 10/09/08 73 FR 60007
NPRM Comment Period End 11/24/08
Final Action 01/00/09

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

None

International Impacts:

This regulatory action will be likely to have international trade and
investment effects, or otherwise be of international interest.

[[Page 71120]]

Additional Information:

Additional information about APHIS and its programs is available on the
Internet at http://www.aphis.usda.gov.

Agency Contact:
John Turner
Director, Policy Coordination Division, BRS
Department of Agriculture
Animal and Plant Health Inspection Service
4700 River Road, Unit 146
Riverdale, MD 20737-1236
Phone: 301 734-5720
RIN: 0579-AC31
_______________________________________________________________________

USDA--Food and Nutrition Service (FNS)

-----------

FINAL RULE STAGE

-----------

5. CHILD AND ADULT CARE FOOD PROGRAM: IMPROVING MANAGEMENT AND PROGRAM
INTEGRITY

Priority:

Other Significant

Legal Authority:

42 USC 1766; PL 103-448; PL 104-193; PL 105-336

CFR Citation:

7 CFR 226

Legal Deadline:

None

Abstract:

This rule amends the Child and Adult Care Food Program (CACFP)
regulations. The changes in this rule result from the findings of State
and Federal program reviews and from audits and investigations
conducted by the Office of Inspector General. This rule revises: State
agency criteria for approving and renewing institution applications;
program training and other operating requirements for child care
institutions and facilities; and State and institution-level monitoring
requirements. This rule also includes changes that are required by the
Healthy Meals for Healthy Americans Act of 1994 (Pub. L. 103-448), the
Personal Responsibility and Work Opportunities Reconciliation Act of
1996 (Pub. L. 104-193), and the William F. Goodling Child Nutrition
Reauthorization Act of 1998 (Pub. L. 105-336).

The changes are designed to improve program operations and monitoring
at the State and institution levels and, where possible, to streamline
and simplify program requirements for State agencies and institutions.
(95-024)

Statement of Need:

In recent years, State and Federal program reviews have found numerous
cases of mismanagement, abuse, and in some instances, fraud, by child
care institutions and facilities in the CACFP. These reviews revealed
weaknesses in management controls over program operations and examples
of regulatory noncompliance by institutions, including failure to pay
facilities or failure to pay them in a timely manner; improper use of
program funds for non-program expenditures; and improper meal
reimbursements due to incorrect meal counts or to miscategorized or
incomplete income eligibility statements. In addition, audits and
investigations conducted by the Office of Inspector General (OIG) have
raised serious concerns regarding the adequacy of financial and
administrative controls in CACFP. Based on its findings, OIG
recommended changes to CACFP review requirements and management
controls.

Summary of Legal Basis:

Some of the changes proposed in the rule are discretionary changes
being made in response to deficiencies found in program reviews and OIG
audits. Other changes codify statutory changes made by the Healthy
Meals for Healthy Americans Act of 1994 (Pub. L. 103-448), the Personal
Responsibility and Work Opportunities Reconciliation Act of 1996 (Pub.
L. 104-193), and the William F. Goodling Child Nutrition
Reauthorization Act of 1998 (Pub. L. 105-336).

Alternatives:

In developing the proposal, the Agency considered various alternatives
to minimize burden on State agencies and institutions while ensuring
effective program operation. Key areas in which alternatives were
considered include State agency reviews of institutions and sponsoring
organization oversight of day care homes.

Anticipated Cost and Benefits:

This rule contains changes designed to improve management and financial
integrity in the CACFP. When implemented, these changes would affect
all entities in CACFP, from USDA to participating children and
children's households. These changes will primarily affect the
procedures used by State agencies in reviewing applications submitted
by, and monitoring the performance of, institutions which are
participating or wish to participate in the CACFP. Those changes which
would affect institutions and facilities will not, in the aggregate,
have a significant economic impact.

Data on CACFP integrity is limited, despite numerous OIG reports on
individual institutions and facilities that have been deficient in
CACFP management. While program reviews and OIG reports clearly
illustrate that there are weaknesses in parts of the program
regulations and that there have been weaknesses in oversight, neither
program reviews, OIG reports, nor any other data sources illustrate the
prevalence and magnitude of CACFP fraud and abuse. This lack of
information precludes USDA from estimating the amount of money lost due
to fraud and abuse or the reduction in fraud and abuse the changes in
this rule will realize.

Risks:

Operating under interim rules puts State agencies and institutions at
risk of implementing Program provisions subject to change in a final
rule.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 09/12/00 65 FR 55103
NPRM Comment Period End 12/11/00
Interim Final Rule 06/27/02 67 FR 43448
Interim Final Rule
Effective 07/29/02
Interim Final Rule
Comment Period End 12/24/02
Interim Final Rule 09/01/04 69 FR 53502
Interim Final Rule
Effective 10/01/04
Interim Final Rule
Comment Period End 09/01/05
Final Action 09/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Local, State

Federalism:

This action may have federalism implications as defined in EO 13132.

[[Page 71121]]

Agency Contact:
James F. Herbert
Regulatory Review Specialist
Department of Agriculture
Food and Nutrition Service
9th Floor
3101 Park Center Drive
Alexandria, VA 22302
Phone: 703 305-1625
Email: [email protected]
Related RIN: Merged with 0584-AC94
RIN: 0584-AC24
_______________________________________________________________________

USDA--FNS

6. FSP: ELIGIBILITY AND CERTIFICATION PROVISIONS OF THE FARM SECURITY
AND RURAL INVESTMENT ACT OF 2002

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

PL 107-171, secs 4101 to 4109, 4114, 4115, and 4401

CFR Citation:

7 CFR 273

Legal Deadline:

None

Abstract:

This rulemaking will amend Food Stamp Program regulations to implement
11 provisions of the Farm Security and Rural Investment Act of 2002
that establish new eligibility and certification requirements for the
receipt of food stamps. (02-007)

Statement of Need:

The rule is needed to implement the food stamp certification and
eligibility provisions of Public Law 107-171, the Farm Security and
Rural Investment Act of 2002.

Summary of Legal Basis:

The legal basis for this rule is Public Law 107-171, the Farm Security
and Rural Investment Act of 2002.

Alternatives:

This final rule deals with changes required by Public Law 107-171, the
Farm Security and Rural Investment Act of 2002. The Department has
limited discretion in implementing provisions of that law. Most of the
provisions in this rule were effective October 1, 2002, and must be
implemented by State agencies prior to publication of this rule.

Anticipated Cost and Benefits:

The provisions of this rule simplify State administration of the Food
Stamp Program, increase eligibility for the program among certain
groups, increase access to the program among low-income families and
individuals, and increase benefit levels. The provisions of Public Law
107-171 implemented by this rule have a 5-year cost of approximately
$1.9 billion.

Risks:

The FSP provides nutrition assistance to millions of Americans
nationwide--working families, eligible non-citizens, and elderly and
disabled individuals. Many low-income families don't earn enough money
and many elderly and disabled individuals don't receive enough in
retirement or disability benefits to meet all of their expenses and
purchase healthy and nutritious meals. The FSP serves a vital role in
helping these families and individuals achieve and maintain self-
sufficiency and purchase a nutritious diet. This rule implements the
certification and eligibility provisions of Public Law 107-171, the
Farm Security and Rural Investment Act of 2002. It simplifies State
administration of the Food Stamp Program, increases eligibility for the
program among certain groups, increases access to the program among
low-income families and individuals, and increases benefit levels. The
provisions of this rule increase benefits by approximately $1.95
billion over 5 years. When fully effective in FY 2006, the provisions
of this rule will add approximately 415,000 new participants.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 04/16/04 69 FR 20724
NPRM Comment Period End 06/15/04
Final Action 01/00/09
Final Action Effective 03/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Federal, Local, State, Tribal

Agency Contact:
James F. Herbert
Regulatory Review Specialist
Department of Agriculture
Food and Nutrition Service
9th Floor
3101 Park Center Drive
Alexandria, VA 22302
Phone: 703 305-1625
Email: [email protected]
RIN: 0584-AD30
_______________________________________________________________________

USDA--FNS

7. QUALITY CONTROL PROVISIONS

Priority:

Other Significant

Legal Authority:

7 USC 2011 to 2032; PL 107-171

CFR Citation:

7 CFR 273; 7 CFR 275

Legal Deadline:

None

Abstract:

This rule finalizes the interim rule ``Non-Discretionary Quality
Control Provisions of Title IV of Public Law 107-171'' (published
October 16, 2003 at 68 FR 59519) and the proposed rule ``Discretionary
Quality Control Provisions of Title IV of Public Law 107-171''
(published September 23, 2005 at 70 FR 55776).

The following quality control (QC) provisions required by sections 4118
and 4119 of the Farm Security and Rural Investment Act of 2002 (title
IV of Pub. L. 107-171) and contained in the interim rule are
implemented by this final rule:

1) Timeframes for completing quality control reviews;

2) Timeframes for completing the arbitration process;

3) Timeframes for determining final error rates;

4) The threshold for potential sanctions and time period for sanctions;

5) The calculation of State error rates;

6) The formula for determining States' liability amounts;

7) Sanction notification and method of payment; and

8) Corrective action plans.

The following provisions required by sections 4118 and 4119 and
additional policy and technical changes, and contained in the proposed
rule, are implemented by this final rule:

[[Page 71122]]

Legislative changes based on or required by sections 4118 and 4119:

1) Eliminate enhanced funding;

2) Establish timeframes for completing individual quality control
reviews; and

3) Establish procedures for adjusting liability determinations
following appeal decisions.

Policy and technical changes:

1) Require State agency QC reviewers to attempt to complete review when
a household refuses to cooperate;

2) Mandate FNS validation of negative sample for purposes of high
performance bonuses;

3) Revise procedures for conducting negative case reviews;

4) Revise time frames for household penalties for refusal to cooperate
with State and Federal QC reviews;

5) Revise procedures for QC reviews of demonstration and SSA processed
cases;

6) Eliminate requirement to report variances resulting from Federal
information exchange systems (FIX) errors;

7) Eliminate references to integrated QC; and

8) Update definitions section to remove out-dated definitions. (02-014)

Statement of Need:

The rule is needed to implement the food stamp quality control
provisions of Public Law 107-171, the Farm Security and Rural
Investment Act of 2002.

Summary of Legal Basis:

The legal basis for this rule is Public Law 107-171, the Farm Security
and Rural Investment Act of 2002.

Alternatives:

This rule deals with changes required by Public Law 107-171, the Farm
Security and Rural Investment Act of 2002. The Department has no
discretion in implementing the time frames for completing quality
control reviews, the arbitration process, and determining the final
error rates; the threshold for potential sanctions and the time period
for the sanctions; the calculation for State error rates; the formula
for determining liability amounts; the sanction notification; method of
payment for liabilities; corrective action planning, and the
elimination of enhanced funding. These provisions were effective for
the fiscal year 2003 quality control review period and must have been
implemented by FNS and State agencies during fiscal year 2003. This
rule also deals in part with discretionary changes to the quality
control system resulting from Public Law 107-171. The provision
addressing results of appeals is required to be regulated by Public Law
107-171. The remaining changes amend existing regulations and are
required to make technical changes resulting from these changes or to
update policy consistent with current requirements.

Anticipated Cost and Benefits:

The provisions of this rule are not anticipated to have any impact on
benefit levels or administrative costs.

Risks:

The FSP provides nutrition assistance to millions of Americans
nationwide. The quality control system measures the accuracy of States
providing food stamp benefits to the program recipients. This rule is
intended to implement the quality control provisions of Public Law 107-
701, the Farm Security and Rural Investment Act of 2002. It will
significantly revise the system for determining State agency
liabilities and sanctions for high payment error rates.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Interim Final Rule 10/16/03 68 FR 59519
Interim Final Rule
Effective 12/15/03
Interim Final Rule
Comment Period End 01/14/04
NPRM 02/23/05 70 FR 55776
NPRM Comment Period End 12/22/05
Final Action 06/00/09

Regulatory Flexibility Analysis Required:

Government Levels Affected:

Federal, Local, State

Agency Contact:
James F. Herbert
Regulatory Review Specialist
Department of Agriculture
Food and Nutrition Service
9th Floor
3101 Park Center Drive
Alexandria, VA 22302
Phone: 703 305-1625
Email: [email protected]
Related RIN: Merged with 0584-AD37
RIN: 0584-AD31
_______________________________________________________________________

USDA--FNS

8. DIRECT CERTIFICATION OF CHILDREN IN FOOD STAMP HOUSEHOLDS AND
CERTIFICATION OF HOMELESS, MIGRANT, AND RUNAWAY CHILDREN FOR FREE MEALS
IN THE NSLP, SBP, AND SMP

Priority:

Other Significant

Legal Authority:

PL 108-265, sec 104

CFR Citation:

7 CFR 210; 7 CFR 215; 7 CFR 220; 7 CFR 245

Legal Deadline:

None

Abstract:

In response to Public Law 108-265, which amended the Richard B. Russell
National School Lunch Act, 7 CFR 245, Determining Eligibility for Free
and Reduced Price Meals and Free Milk in Schools, will be amended to
establish categorical (automatic) eligibility for free meals and free
milk upon documentation that a child is (1) homeless as defined by the
McKinney-Vento Homeless Assistance Act; (2) a runaway served by grant
programs under the Runaway and Homeless Youth Act; or (3) migratory as
defined in section 1309(2) of the Elementary and Secondary Education
Act. The rule also requires phase-in of mandatory direct certification
for children who are members of households receiving food stamps and
continues discretionary direct certification for other categorically
eligible children. (04-018)

Statement of Need:

The changes made to the Richard B. Russell National School Lunch Act
concerning direct certification are intended to improve program access,
reduce paperwork, and improve the accuracy of the delivery of free meal
benefits. This regulation will implement the statutory changes and
provide State agencies and local educational agencies with the policies
and procedures to conduct mandatory and discretionary direct
certification.

Summary of Legal Basis:

These changes are being made in response to provisions in Public Law
108-265.

Alternatives:

FNS will be working closely with State agencies to implement the
changes made by this regulation and will be

[[Page 71123]]

developing extensive guidance materials in conjunction with our
cooperators.

Anticipated Cost and Benefits:

This regulation will reduce paperwork, target benefits more precisely,
and will improve program access of eligible school children.

Risks:

This regulation may require adjustments to existing computer systems to
more readily share information between schools, food stamp offices, and
other agencies.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Interim Final Rule 08/00/09
Interim Final Rule
Comment Period End 11/00/09
Final Action 12/00/10

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Local, State

Agency Contact:
James F. Herbert
Regulatory Review Specialist
Department of Agriculture
Food and Nutrition Service
9th Floor
3101 Park Center Drive
Alexandria, VA 22302
Phone: 703 305-1625
Email: [email protected]
Related RIN: Merged with 0584-AD62
RIN: 0584-AD60
_______________________________________________________________________

USDA--FNS

9. SPECIAL SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN, INFANTS, AND
CHILDREN (WIC): WIC VENDOR COST CONTAINMENT

Priority:

Other Significant

Legal Authority:

42 USC 1786

CFR Citation:

7 CFR 246

Legal Deadline:

Final, Statutory, June 30, 2006.

Abstract:

This final rule amends the WIC regulations to strengthen vendor cost
containment. The rule incorporates into program regulations new
legislative requirements that affect the selection, authorization, and
reimbursement of retail vendors. These requirements are contained in
the Child Nutrition and WIC Reauthorization Act of 2004 (Pub. L. 108-
265), which was enacted on June 30, 2004. The rule reflects the
statutory provisions that require WIC State agencies to implement a
vendor peer group system, competitive price selection criteria, and
allowable reimbursement levels in a manner that ensures that the WIC
Program pays authorized vendors competitive prices for supplemental
foods. It also requires State agencies to ensure that vendors that
derive more than 50 percent of their annual food sales revenue from WIC
food instruments do not result in higher food costs to the program than
do other vendors. The intent of these provisions is to maximize the
number of women, infants, and children served with available Federal
funding. (04-029)

Statement of Need:

This action is needed to implement the vendor cost containment
provisions of the Child Nutrition and WIC Reauthorization Act of 2004,
Public Law 108-265. The rule requires WIC State agencies to operate
vendor management systems that effectively contain food costs by
ensuring that prices paid for supplemental foods are competitive. The
rule also responds to data which indicate that WIC food expenditures
increasingly include payments to a type of vendor whose prices are not
governed by the market forces that affect most retail grocers. As a
result, the prices charged by these vendors tend to be higher than
those of other retail grocery stores participating in the program. To
ensure that the program pays competitive prices, this rule codifies the
new statutory requirements for State agencies to use in evaluating
vendor applicants' prices during the vendor selection process and when
paying vendors for supplemental foods following authorization.

Summary of Legal Basis:

Section 203(e)(10) of Public Law 108-265, Child Nutrition and WIC
Reauthorization Act of 2004.

Alternatives:

This rule implements the vendor peer group provisions of the Child
Nutrition and WIC Reauthorization Act of 2004, which FNS believes is an
effective means of controlling WIC food costs. While this Act mandates
that States establish peer groups, competitive price criteria, and
allowable reimbursement levels, and states that these requirements must
result in the outcome of paying above-50-percent vendors no more than
regular vendors, the rule does not specify particular criteria for peer
groups or acceptable methods of setting competitive price criteria and
allowable reimbursement levels. FNS considered mandating specific means
of developing peer groups, competitive price criteria, and allowable
reimbursement levels in order to ensure that the outcome of this
legislation was achieved.

However, given States' responsibility to manage WIC as a discretionary
grant program and the varying market conditions in each State, FNS
believes that States need flexibility to develop their own peer groups,
competitive price criteria, and allowable reimbursement levels. At the
October 2004 meeting the FNS convened to gain input for this rule,
States indicated that they needed the ability to design cost
containment practices that would be effective in their own markets and
would ensure participant access. In addition, there is little
information about the effectiveness of particular cost containment
practices in the variety of markets represented by the 89 WIC State
agencies. Mandating more specific means of developing peer groups,
competitive price criteria, and allowable reimbursement levels could
have unintended negative consequences for participant access, food
costs and administrative burden.

As States gain experience and the results of their vendor cost
containment practices become apparent, FNS may develop further
regulations and guidance to improve vendor cost containment. In the
interim, FNS believes that the current rule will substantially
accomplish the goal of the Act of containing food costs and ensuring
that above-50-percent vendors do not result in higher costs to the WIC
Program than regular vendors.

Anticipated Cost and Benefits:

Costs: This rule places new requirements on State agencies; therefore,
the cost implications of this rule relate primarily to administrative
burden for WIC State agencies. These cost implications are partially
dependent on the current practices of State agencies relative to the
requirements of the rule. Detailed

[[Page 71124]]

information regarding the cost implications of this rule is contained
in the Regulatory Impact Analysis developed by FNS to accompany this
rulemaking.

Benefits: The WIC Program will benefit from the provisions of this rule
by reducing unnecessary food expenditures, thus increasing the
potential to serve more eligible women, infants, and children for the
same cost. This rule should have the effect of ensuring that payments
to vendors, particularly vendors that derive more than 50 percent of
their annual food sales revenue from WIC food instruments, reflect
competitive prices for WIC foods. The Regulatory Impact Analysis
prepared by FNS to accompany this rulemaking projects an estimated
monthly cost savings of over $6.25 million. (Details of this projection
can be found in the complete Regulatory Impact Analysis.)

Risks:

Because the vendor peer group provisions in the Child Nutrition and WIC
Reauthorization Act of 2004 and this rule provide for some flexibility
in implementation, and because there is a wide degree of variation in
food prices and current vendor cost containment practices across State
agencies, the impact of many of the provisions of this rule is
uncertain. Uncertainties include the administrative burden State
agencies will incur and the savings that can be realized nationally or
in any State agency. The major uncertainties for both administrative
burden and program savings are discussed in greater detail in the
Regulatory Impact Analysis.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Interim Final Rule 11/29/05 70 FR 71708
Interim Final Rule
Comment Period End 11/29/06
Interim Final Rule
Effective 12/29/05
Final Action 04/00/09
Final Action Effective 05/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Governmental Jurisdictions

Government Levels Affected:

Federal, Local, State, Tribal

URL For More Information:
www.fns.usda.gov/wic

Agency Contact:
James F. Herbert
Regulatory Review Specialist
Department of Agriculture
Food and Nutrition Service
9th Floor
3101 Park Center Drive
Alexandria, VA 22302
Phone: 703 305-1625
Email: [email protected]
RIN: 0584-AD71
_______________________________________________________________________

USDA--Food Safety and Inspection Service (FSIS)

-----------

PROPOSED RULE STAGE

-----------

10. CHANGES TO REGULATORY JURISDICTION OVER CERTAIN FOOD PRODUCTS
CONTAINING MEAT AND POULTRY

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Legal Authority:

21 USC 601(j); 21 USC 454(f)

CFR Citation:

9 CFR 303.1; 9 CFR 381.15

Legal Deadline:

None

Abstract:

The Food Safety and Inspection Service (FSIS) and the Food and Drug
Administration (FDA) have concluded that a clearer approach to
determining jurisdiction over meat and poultry products is possible.
This approach involves considering the contribution of the meat or
poultry ingredients to the identity of the food. FSIS is proposing to
amend the Federal meat and poultry products inspection regulations to
provide consistency and predictability in the regulatory jurisdiction
over nine products or product categories. Historically there has been
confusion about whether these products fall within the jurisdiction of
FSIS or FDA. These proposed changes would exempt cheese and cheese
products prepared with less than 50 percent meat or poultry; breads,
rolls and buns prepared with less than 50 percent meat or poultry;
dried poultry soup mixes; flavor bases and flavors; pizza with meat or
poultry; and salad dressings prepared with less than 50 percent meat or
poultry from the requirements of the Federal Meat Inspection Act and
the Poultry Product Inspection Act and would clarify that bagel dogs,
natural casings, and close faced-sandwiches are subject to the
requirements of the Federal Meat Inspection Act and the Poultry
Products Inspection Act.

Statement of Need:

Over the years, FSIS has made decisions about the jurisdiction under
which food products containing meat or poultry ingredients are produced
based on the amount of meat or poultry in the product; whether the
product is represented as a meat or poultry product (that is, whether a
term that refers to meat or poultry is used on labeling); whether the
product is perceived by consumers as a product of the meat or poultry
industries; and whether the product contains poultry or meat from an
accepted source. With regard to the consumer perception factor, FSIS
made decisions on a case-by-case basis, mostly in response to
situations involving determinations for compliance and enforcement.
Although this case-by-case approach resulted in decisions that made
sense at the time that they were made, a review in 2004 to 2005 by a
working group of FSIS and FDA representatives showed that some of the
decisions do not appear to be fully consistent with other product
decisions and that the reasoning behind various determinations was not
fully articulated or supported.

Summary of Legal Basis:

Under the Federal Meat Inspection Act (FMIA) (21 U.S.C. 601 to 695),
the Poultry Products Inspection Act (PPIA) (21 U.S.C. 451 to 470), and
the Egg Products Inspection Act (EPIA) (21 U.S.C. 1032), and the
regulations that implement these Acts, FSIS has authority over all meat
food and poultry products and processed egg products. Under the Federal
Food, Drug, and Cosmetic Act (FFDCA) and the regulations that implement
it, FDA has authority over all foods not under FSIS' jurisdiction,
including dairy, bread and other grain products, vegetables and other
produce, and other products, such as seafood.

According to the provisions of the FMIA and PPIA, the Secretary has the
authority to exempt certain human food products from the definition of
a meat food product (21 U.S.C. 601(j)) or a poultry product (20 U.S.C.
454(f)) based on either of two factors: (1) The product contains only a
relatively small

[[Page 71125]]

proportion of livestock ingredients or poultry ingredients, or (2) the
product historically has not been considered by consumers as a product
of the meat food or poultry industry, and under such conditions as he
or she may prescribe to ensure that the livestock or poultry
ingredients are not adulterated and that the products are not
represented as meat food or poultry products.

Alternatives:

FSIS has considered over the years a number of variations to clarify
the confusion regarding jurisdiction for these various products.

Alternative 1: Maintain the status quo. Although FSIS has considered
taking no action at this time, the Agency does not recommend this
option because of the continued confusion that exists among industry
and consumers as to jurisdictional coverage for nine categories of
products.

Alternative 2: Reassess the statutory factors for making jurisdiction
decision and recommend an amendment. The amendment of the statute would
be from the historical perception factor because that is the factor, of
the two statutory factors, that the working group identified as leading
to the state of confusion about the jurisdiction of certain products
containing meat or poultry.

Alternative 3: Adopt some of the FDA/FSIS working group's suggested
approach to making clear and transparent jurisdiction decisions by
proposing changes to regulations to codify the current policies on
exempted products.

Anticipated Cost and Benefits:

FSIS estimates that the initial and recurring costs of the rule to
industry would be approximately $5 million and $7 million,
respectively. These costs would be attributable to new Sanitation SOP
and HACCP plan development, as well as to labeling changes and
training. FSIS would incur $7 million in annual recurring costs
(salaries and benefits). Establishments coming under FSIS jurisdiction
also would incur costs for recordkeeping, monitoring, testing, and
annual HACCP plan reassessment.

Benefits to industry would accrue from reduced confusion over Agency
jurisdiction, which may affect labeling and recordkeeping costs. There
may be spill-over benefits accruing from changes in consumer behavior.
Also, there would be improvement in efficiency in use of FDA and FSIS
resources.

Risks:

None

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 09/00/09

Regulatory Flexibility Analysis Required:

Undetermined

Small Entities Affected:

Businesses

Government Levels Affected:

None

Agency Contact:
Charles Gioglio
Labeling and Program Delivery Division
Department of Agriculture
Food Safety and Inspection Service
1400 Independence Avenue SW
Washington, DC 20250
Phone: 202 205-0279
Fax: 202 205-3625
Email: [email protected]
RIN: 0583-AD28
_______________________________________________________________________

USDA--FSIS

11. NEW POULTRY SLAUGHTER INSPECTION

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

21 USC 451 et seq

CFR Citation:

9 CFR 381.66; 9 CFR 381.67; 9 CFR 381.76; 9 CFR 381.83; 9 CFR 381.91; 9
CFR 381.94

Legal Deadline:

None

Abstract:

FSIS is proposing a new inspection system for young poultry slaughter
establishments that would facilitate public health-based inspection.
This new system would be available initially only to young chicken
slaughter establishments. Establishments that slaughter broilers,
fryers, roasters, and Cornish game hens (as defined in 9 CFR 381.170)
would be considered as ``young chicken establishments.'' FSIS is also
proposing to revoke the provisions that allow young chicken slaughter
establishments to operate under the current Streamlined Inspection
System (SIS) or the New Line Speed (NELS) Inspection System. The
proposed rule would establish new performance standards to reduce
pathogens. FSIS anticipates that this proposed rule would provide the
framework for action to provide public health-based inspection in all
establishments that slaughter amenable poultry species.

Under the proposed new system, young chicken slaughter establishments
would be required to sort chicken carcasses and to conduct other
activities to ensure that carcasses are not adulterated before they
enter the chilling tank.

Statement of Need:

Because of the risk to the public health associated with pathogens on
young chicken carcasses, FSIS is proposing a new inspection system that
would allow for more effective inspection of young chicken carcasses,
would allow the Agency to more effectively allocate its resources,
would encourage industry to more readily use new technology, and would
include new performance standards to reduce pathogens.

This proposed rule is an example of regulatory reform because it would
facilitate technological innovation in young chicken slaughter
establishments. It would likely result in more cost-effective dressing
of young chickens that are ready to cook or ready for further
processing. Similarly, it would likely result in more efficient and
effective use of Agency resources.

Summary of Legal Basis:

The Secretary of Agriculture is charged by the Poultry Products
Inspection Act (PPIA--21 U.S.C. 451 et seq.) with carrying out a
mandatory poultry products inspection program. The Act requires post-
mortem inspection of all carcasses of slaughtered poultry subject to
the Act and such reinspection as deemed necessary (21 U.S.C. 455(b)).
The Secretary is authorized to promulgate such rules and regulations as
are necessary to carry out the provisions of the Act (21 U.S.C.
463(b)). The Agency has tentatively determined that this rule would
facilitate FSIS post-mortem inspection of young chicken carcasses. The
proposed new system would likely result in more efficient and effective
use of Agency resources and in industry innovations.

Alternatives:

FSIS considered the following options in developing this proposal:

1) No action.

2) Propose to implement HACCP-Based Inspection Models Pilot in
regulations.

[[Page 71126]]

3) Propose to establish a mandatory, rather than a voluntary, new
inspection system for young chicken slaughter establishments.

4) Propose standards of identity regulations for young chickens that
include trim and processing defect criteria and that take into account
the intended use of the product.

5) Propose a voluntary new inspection system for young chicken
slaughter establishments and propose standards of identity for whole
chickens, regardless of the products' intended use.

Anticipated Cost and Benefits:

The proposed performance standards and the implementation of public
health-based inspection would likely improve the public health. FSIS is
conducting a risk assessment for this proposed rule to assess the
likely public health benefits that the implementation of this rule may
achieve.

Establishments that volunteer for this proposed new inspection system
alternative would likely need to make capital investments in facilities
and equipment. They may also need to add labor (trained employees).
However, one of the beneficial effects of these investments would
likely be the lowering of the average cost per pound to dress poultry
properly. Cost savings would likely result because of increased line
speeds, increased productivity, and increased flexibility to industry.
The expected lower average unit cost for dressing poultry would likely
give a marketing advantage to establishments under the new system.
Consumers would likely benefit from lower retail prices for high
quality poultry products. The rule would also likely provide
opportunities for the industry to innovate because of the increased
flexibility it would allow poultry slaughter establishments. In
addition, in the public sector, benefits would accrue to FSIS from the
more effective deployment of FSIS inspection program personnel to
verify process control based on risk factors at each establishment.

Risks:

Salmonella and other pathogens are present on a substantial portion of
poultry carcasses inspected by FSIS. Foodborne salmonella cause a large
number of human illnesses that at times lead to hospitalization and
even death. There is an apparent relationship between human illness and
prevalence levels for salmonella in young chicken carcasses. FSIS
believes that through better allocation of inspection resources and the
use of performance standards, it would be able to reduce the prevalence
of salmonella and other pathogens in young chickens.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 09/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

State

Agency Contact:
Dr. Daniel L. Engeljohn
Deputy Assistant Administrator, Office of Policy and Program
Development
Department of Agriculture
Food Safety and Inspection Service
1400 Independence Avenue SW
Washington, DC 20250
Phone: 202 205-0495
Fax: 202 401-1760
Email: [email protected]
RIN: 0583-AD32
_______________________________________________________________________

USDA--FSIS

12. NOTIFICATION, DOCUMENTATION AND RECORDKEEPING REQUIREMENTS
FOR INSPECTED ESTABLISHMENTS

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Legal Authority:

21 U.S.C. 612 and 613; 21 U.S.C. 459

CFR Citation:

Not Yet Determined

Legal Deadline:

None

Abstract:

The Food Safety and Inspection Service (FSIS) is proposing to require
establishments subject to inspection under the Federal Meat Inspection
Act and the Poultry Products Inspection Act to promptly notify the
Secretary of Agriculture that an adulterated or misbranded product
received by or originating from the establishment has entered into
commerce, if the establishment believes or has reason to believe that
this has happened. FSIS is also proposing to require these
establishments to: (1) prepare and maintain current procedures for the
recall of all products produced and shipped by the establishment; (2)
document each reassessment of the process control plans of the
establishment; and (3) upon request, make the procedures and reassessed
control plans available to inspectors appointed by the Secretary for
review and copying.

Statement of Need:

The Food, Conservation, and Energy Act of 2008 (Public Law 110-246,
Sec. 11017), known as the 2008 Farm Bill, amended the Federal Meat
Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA) to
require establishments subject to inspection under these Acts to
promptly notify the Secretary that an adulterated or misbranded product
received by or originating from the establishment has entered into
commerce, if the establishment believes or has reason to believe that
this has happened. Section 11017 also requires establishments subject
to inspection under the FMIA and PPIA to: (1) prepare and maintain
current procedures for the recall of all products produced and shipped
by the establishment; and (2) document each reassessment of the process
control plans of the establishment.

Summary of Legal Basis:

21 U.S.C. 612 and 613; 21 U.S.C. 459, and Public Law 110-246, Sec.
11017.

Alternatives:

The option of no rulemaking is unavailable. The Agency will consider
alternative methods of implementation, and the effects on foreign and
domestic commerce and on small business associated with the
alternatives.

Anticipated Cost and Benefits:

FSIS will conduct an analysis to determine the costs and benefits
associated with this rulemaking. FSIS has made an initial determination
that this rule will not have a significant economic impact on a
substantial number of small entities.

Risks:

In preparing regulations on the shipment of adulterated meat and
poultry products by meat and poultry establishments, the preparation
and maintenance of procedures for recalled products produced and
shipped by establishments, and the documentation of each reassessment
of the process control plans by the establishment, the

[[Page 71127]]

Agency will consider any risks to public health or other pertinent
risks associated with these actions.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Proposed Rule 03/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Businesses

Government Levels Affected:

None

Agency Contact:
Victoria Levine
Program Analyst, Policy Issuances Division
Department of Agriculture
Food Safety and Inspection Service
1400 Independence Avenue SW
Washington, DC 20250
Phone: 202 720-5627
Fax: 202 690-0486
Email: [email protected]
RIN: 0583-AD34
_______________________________________________________________________

USDA--FSIS

13. MANDATORY INSPECTION OF CATFISH AND CATFISH PRODUCTS

Priority:

Other Significant

Legal Authority:

21 U.S.C. 601 et seq. Pub L. 110-249, Sec. 11016

CFR Citation:

9 CFR Chapter III, Subchapter F (new)

Legal Deadline:

Final, Statutory, December 2009, Final regulations NLT 18 months after
enactment of Pub. L. 110-246.

Abstract:

The Food, Conservation, and Energy Act of 2008 (Public Law 110-246,
Sec. 11016), known as the 2008 Farm Bill, amended the Federal Meat
Inspection Act (FMIA) to make catfish an amenable species under the
FMIA. The regulations will define ``catfish'' and the scope of coverage
of the regulations to apply to establishments that process farm-raised
species of catfish and to catfish and catfish products. The regulations
will take into account the conditions under which the catfish are
raised and transported to a processing establishment.

Statement of Need:

The Food, Conservation, and Energy Act of 2008 (Public Law 110-246,
Sec. 11016), known as the 2008 Farm Bill, amended the Federal Meat
Inspection Act (FMIA) to make catfish an amenable species under the
FMIA. The Farm Bill directs the Department to issue final regulations
implementing the FMIA amendments not later than 18 months after the
enactment date (June 18, 2008) of the legislation.

Summary of Legal Basis:

21 U.S.C. 601-695 and Public Law 110-246, Sec. 11016

Alternatives:

The option of no rulemaking is unavailable. The Agency will consider
alternative methods of implementation and levels of stringency, and the
effects on foreign and domestic commerce and on small business
associated with the alternatives.

Anticipated Cost and Benefits:

FSIS anticipates benefits from uniform standards and the more extensive
and intensive inspection service that FSIS provides (compared with
current voluntary inspection programs). FSIS would apply requirements
for imported catfish that would be equivalent to those applying to
catfish raised and processed in the United States.

Risks:

In preparing regulations on catfish and catfish products, the Agency
will consider any risks to public health or other pertinent risks
associated with the production, processing, and distribution of the
products. FSIS will determine, through scientific risk assessment
procedures, the magnitude of the risks associated with catfish and how
they compare with those associated with other foods in FSIS's
jurisdiction.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 03/00/09
Final Action 12/00/09

Regulatory Flexibility Analysis Required:

Undetermined

Small Entities Affected:

Businesses

Government Levels Affected:

Federal, State

Agency Contact:
Dr. John Hicks
Risk Management Division, Department of Agriculture, Food Safety and
Inspection Service
Department of Agriculture
Food Safety and Inspection Service
1400 Independence Avenue SW
Washington, DC 20250
Phone: 202 205-0032
Fax: 202 720-7027
Email: [email protected]
RIN: 0583-AD36
_______________________________________________________________________

USDA--FSIS

14. FEDERAL-STATE INTERSTATE SHIPMENT COOPERATIVE INSPECTION
PROGRAM

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Unfunded Mandates:

Undetermined

Legal Authority:

PL 110-246 (section 11015)

CFR Citation:

Not Yet Determined

Legal Deadline:

Final, Statutory, December 18, 2009.

Abstract:

FSIS is proposing regulations to implement a new voluntary Federal-
State cooperative inspection program under which State-inspected
establishments with 25 or fewer employees would be eligible to ship
meat and poultry products in interstate commerce. State-inspected
establishments selected to participate in this program would be
required to comply with all Federal standards under the Federal Meat
Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA).
These establishments would receive inspection services from State
inspection personnel that have been trained and certified to assist
with enforcement of the FMIA and PPIA. Meat and poultry products
produced under the program that have been inspected and passed by
selected State-inspection personnel would bear a Federal mark of
inspection. FSIS is proposing these regulations in response to the
Food, Conservation, and Energy Act, enacted on June 18, 2008 (the 2008
Farm Bill). Section 11015 of 2008 Farm Bill provides for the interstate
shipment of State-inspected meat and poultry

[[Page 71128]]

product from selected establishments and requires that FSIS promulgate
implementing regulations no later than 18 months from the date of its
enactment

Statement of Need:

This action is needed to implement a new Federal-State cooperative
program that will permit certain State-inspected establishments to ship
meat and poultry products in interstate commerce. Inspection services
for establishments selected to participate in the program will be
provided by state inspection personnel that have been trained and
certified in the administration and enforcement of the Federal Meat
Inspection Act (FMIA) (21 U.S.C. 601, et seq.) and the Poultry Products
Inspection Act (PPIA) (21 U.S.C. 451, et seq.) Meat and poultry
products produced by establishments selected to participate in the
program will bear a Federal mark of inspection.

Summary of Legal Basis:

This action is authorized under section 11015 of the Food,
Conservation, and Energy Act of 2008 (the 2008 Farm Bill) (PL-110-246).
Section 11015 amends the Federal Meat Inspection Act (FMIA) (21 U.S.C.
601, et seq.) and the Poultry Products Inspection Act (PPIA) (21 U.S.C.
451, et seq.) to establish an optional Federal-State cooperative
program under which State-inspected establishments would be permitted
to ship meat and poultry products in interstate commerce. The law
requires that FSIS promulgate implementing regulations no later than 18
months after the date of enactment.

Alternatives:

1. No action: FSIS did not consider the alternative of no action
because section 11015 of the 2008 Farm Bill requires that it promulgate
regulations to implement the new Federal-State cooperative program. The
Agency did consider alternatives on how to implement the new program.

2. Limit participation in the program to state-inspected establishments
with 25 or fewer employees on average: Under the law, state-inspected
establishments that have 25 or fewer employees on average are permitted
to participate in the program. The law also provides that FSIS may
select establishments that employ more than 25 but fewer than 35
employees on average as of June 18, 2008 (the date of enactment) to
participate in the program. Under the law, if these establishments
employ more than 25 employees on average 3 years after FSIS promulgates
implementing regulations, they are required to transition to a Federal
establishment. FSIS rejected the option of limiting the program to
establishment that employ 25 or fewer employees on average to give
additional small establishments the opportunity to participate in the
program and ship their meat of poultry products in interstate commerce.

3. Permit establishments with 25 to 35 employees on average as of June
18, 2008, to participate in the program. FSIS chose the option of
permitting these establishments to be selected to participate in the
program to give additional small establishments the opportunity to ship
their meat and poultry products in interstate commerce. Under this
option, FSIS will develop a procedure to transition any establishment
that employs more than 25 people on average to a Federal establishment.
Establishments that employee 24 to 35 employees on average as of June
18, 2008, would be subject to the transition procedure beginning on the
date three years after the Agency promulgates implementing regulations.

Anticipated Cost and Benefits:

FSIS is analyzing the costs of this proposed rule to industry, FSIS,
State and local governments, small entities, and foreign countries.
Participation in the new Federal-State cooperative program will be
optional. Thus, the costs and benefits associated with the proposed
rule will depend on the number of States and establishments that chose
to participate. Very small and certain small establishments State-
inspected establishments that are selected to participate in the
program are likely to benefit from the program because they will be
permitted sell their products to consumers in other States and foreign
countries.

Risks:

None.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 01/00/09
Final Action 01/00/10

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

Federal, State

Federalism:

Undetermined

Agency Contact:
Rachel Edelstein
Director, Policy Issuances Division
Department of Agriculture
Food Safety and Inspection Service
1400 Independence Avenue SW
Washington, DC 20250
Phone: 202 720-5627
Fax: 202 690-0486
Email: [email protected]
RIN: 0583-AD37
_______________________________________________________________________

USDA--FSIS

-----------

FINAL RULE STAGE

-----------

15. PERFORMANCE STANDARDS FOR THE PRODUCTION OF PROCESSED MEAT AND
POULTRY PRODUCTS; CONTROL OF LISTERIA MONOCYTOGENES IN READY-TO-EAT
MEAT AND POULTRY PRODUCTS

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

21 USC 451 et seq; 21 USC 601 et seq

CFR Citation:

9 CFR 301; 9 CFR 303; 9 CFR 317; 9 CFR 318; 9 CFR 319; 9 CFR 320; 9 CFR
325; 9 CFR 331; 9 CFR 381; 9 CFR 417; 9 CFR 430; 9 CFR 431

Legal Deadline:

None

Abstract:

FSIS has proposed to establish pathogen reduction performance standards
for all ready-to-eat (RTE) and partially heat-treated meat and poultry
products, and measures, including testing, to control Listeria
monocytogenes in RTE products. The performance standards spell out the
objective level of pathogen reduction that establishments must meet
during their operations in order to produce safe products but allow the
use of customized, plant-specific processing procedures other than
those prescribed in the earlier regulations. With HACCP, food safety
performance standards give establishments the incentive and flexibility
to adopt innovative, science-based food safety processing procedures
and controls, while providing objective, measurable standards that can
be

[[Page 71129]]

verified by Agency inspectional oversight. This set of performance
standards will include and be consistent with standards already in
place for certain ready-to-eat meat and poultry products.

Statement of Need:

Although FSIS routinely samples and tests some ready-to-eat products
for the presence of pathogens prior to distribution, there are no
specific regulatory pathogen reduction requirements for most of these
products. The proposed performance standards are necessary to help
ensure the safety of these products; give establishments the incentive
and flexibility to adopt innovative, science-based food safety
processing procedures and controls; and provide objective, measurable
standards that can be verified by Agency oversight.

Summary of Legal Basis:

Under the Federal Meat Inspection Act (21 U.S.C. 601 to 695) and the
Poultry Product Inspection Act (21 U.S.C. 451 to 470), FSIS issues
regulations governing the production of meat and poultry products
prepared for distribution in commerce. The regulations, along with FSIS
inspection programs, are designed to ensure that meat and poultry
products are safe, not adulterated, and properly marked, labeled, and
packaged.

Alternatives:

As an alternative to all of the proposed requirements, FSIS considered
taking no action. As alternatives to the proposed performance standard
requirements, FSIS considered end-product testing and requiring ``use-
by'' date labeling on ready-to-eat products.

Anticipated Cost and Benefits:

Benefits are expected to result from fewer contaminated products
entering commercial food distribution channels as a result of improved
sanitation and process controls and in-plant verification. FSIS
believes that the benefits of the rule would exceed the total costs of
implementing its provisions. FSIS currently estimates net benefits from
the 2003 interim final rule at $470 to $575 million, with annual
recurring costs at $150.4 million, if FSIS discounts the capital cost
at 7%. FSIS is continuing to analyze the potential impact of the other
provisions of the proposal.

The other main provisions of the proposed rule are: Lethality
performance standards for Salmonella and E. coli O157:H7 and
stabilization performance standards for C. perfringens that firms must
meet when producing RTE meat and poultry products. Most of the costs of
these requirements would be associated with one-time process
performance validation in the first year of implementation of the rule
and with revision of HACCP plans. Benefits are expected to result from
the entry into commercial food distribution channels of product with
lower levels of contamination resulting from improved in-plant process
verification and sanitation. Consequently, there will be fewer cases of
foodborne illness.

Risks:

Before FSIS published the proposed rule, FDA and FSIS had estimated
that each year L. monocytogenes caused 2,540 cases of foodborne
illness, including 500 fatalities. The Agencies estimated that about
65.3 percent of these cases, or 1660 cases and 322 deaths per year,
were attributable to RTE meat and poultry products. The analysis of the
interim final rule on control of L. monocytogenes conservatively
estimated that implementation of the rule would lead to an annual
reduction of 27.3 deaths and 136.7 illnesses at the median. FSIS is
continuing to analyze data on production volume and Listeria controls
in the RTE meat and poultry products industry and is using the FSIS
risk assessment model for L. monocytogenes to determine the likely risk
reduction effects of the rule. Preliminary results indicate that the
risk reductions being achieved are substantially greater than those
estimated in the analysis of the interim rule.

FSIS is also analyzing the potential risk reductions that might be
achieved by implementing the lethality and stabilization performance
standards for products that would be subject to the proposed rule. The
risk reductions to be achieved by the proposed rule and that are being
achieved by the interim rule are intended to contribute to the Agency's
public health protection effort.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 02/27/01 66 FR 12590
NPRM Comment Period End 05/29/01
NPRM Comment Period
Extended 07/03/01 66 FR 35112
NPRM Comment Period End 09/10/01
Interim Final Rule 06/06/03 68 FR 34208
Interim Final Rule
Effective 10/06/03
Interim Final Rule
Comment Period End 01/31/05
NPRM Comment Period
Reopened 03/24/05 70 FR 15017
NPRM Comment Period End 05/09/05
Affirmation of Interim
Final Rule 09/00/09
Final Action 09/00/09

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

Undetermined

Agency Contact:
Dr. Daniel L. Engeljohn
Deputy Assistant Administrator, Office of Policy and Program
Development
Department of Agriculture
Food Safety and Inspection Service
1400 Independence Avenue SW
Washington, DC 20250
Phone: 202 205-0495
Fax: 202 401-1760
Email: [email protected]
RIN: 0583-AC46
_______________________________________________________________________

USDA--FSIS

16. REQUIREMENTS FOR THE DISPOSITION OF CATTLE THAT BECOME
NON-AMBULATORY DISABLED FOLLOWING ANTE-MORTEM INSPECTION

Priority:

Other Significant

Legal Authority:

21 U.S.C. 621; 21 U.S.C. 603(a); 21 U.S.C. 603(b)

CFR Citation:

9 CFR 309.3

Legal Deadline:

None

Abstract:

FSIS is proposing to remove the provision in 309.3(e) that allows FSIS
inspection personnel to determine the disposition of cattle that become
non-ambulatory disabled after they have passed ante-mortem inspection
on a case-by-case basis. If FSIS finalizes this proposed rule, cattle
that become non-ambulatory disabled from an acute

[[Page 71130]]

injury after ante-mortem inspection will no longer be eligible to
proceed to slaughter as ``U.S. Suspects.'' Instead, FSIS inspectors
will tag these cattle as ``U.S. condemned'' and prohibit these animals
from proceeding to slaughter.

Statement of Need:

This rule is necessary to better ensure effective implementation of
ante-mortem inspection pursuant to 21 USC 603(a) and of humane handling
requirements pursuant to 21 USC 603(b).

This rule is also necessary to make clear that establishments have an
affirmative obligation to make FSIS personnel aware when an animal goes
down. This regulatory requirement will preclude establishments from
attempting to force such animals to rise.

Summary of Legal Basis:

FSIS is proposing this rule under 21 U.S.C 621, which gives FSIS the
authority to adopt regulations for the efficient administration of the
FMIA. The amendment in this proposal would better ensure effective
implementation of ante-mortem inspection pursuant to 21 U.S.C. 603(a)
and of humane handling requirements established pursuant to 21 U.S.C
603(b).

Alternatives:

This proposed rule is likely to have only minimum economic effects on
the beef industry and consumers. Based on the Agency's 2007 survey
data, out of the approximately 33.7 million cattle slaughtered in 2007,
FSIS estimates that about 1,300 cattle -- about 600 cull cattle (i.e.,
mostly cows and bulls) and 700 steers and heifers -- were in this
category. Data from the Agricultural Marketing Service (AMS) indicate
that the market value for a cull cattle carcass and parts is between
$500 and $1,000, and the market value for a steer or heifer carcass and
parts is between $900 and $1,100. Therefore, the estimated total market
value of the carcasses and parts from cattle that would be condemned
under this proposed rule would be in the range of $930,000 to
$1,370,000 per year.

If adopted as a final rule, the proposed amendment would benefit both
consumers and the beef industry by enhancing public confidence in the
U.S. beef supply. This proposed rule would enhance public confidence by
eliminating any controversy surrounding the condemnation of cattle that
become non-ambulatory disabled after ante-mortem inspection and by
preventing the slaughter of cattle that may be unfit for human food. It
would also reduce the potential for inhumane handling of non-ambulatory
disabled cattle at slaughter operations.

This proposed rule would also assist the United States in international
trade relations and negotiations by providing greater confidence to
those countries that continue to raise questions about American beef.
The proposed amendment would increase consumer confidence and U.S.
access to overseas markets. Thus, the proposed rule will generally
benefit the industry because it would likely lead to higher sales and
revenue.

Anticipated Cost and Benefits:

Not applicable.

Risks:

Not Applicable.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 08/29/08 73 FR 50889
Final Action 01/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Businesses

Government Levels Affected:

State

Agency Contact:
Dr. Daniel L. Engeljohn
Deputy Assistant Administrator, Office of Policy and Program
Development
Department of Agriculture
Food Safety and Inspection Service
1400 Independence Avenue SW
Washington, DC 20250
Phone: 202 205-0495
Fax: 202 401-1760
Email: [email protected]
RIN: 0583-AD35
_______________________________________________________________________

USDA--FSIS

17. MANDATORY COUNTRY OF ORIGIN LABELING OF COVERED
COMMODITIES INCLUDING MUSCLE CUTS OF BEEF (INCLUDING VEAL), LAMB,
CHICKEN, GOAT, AND PORK; GROUND BEEF, GR. LAMB, GR. CHICKEN, GR. GOAT,
AND GR. PORK

Priority:

Other Significant

Legal Authority:

Public Law 110-234 (2008 Farm Bill)

CFR Citation:

9 CFR 317; 9 CFR 381

Legal Deadline:

Final, Statutory, September 30, 2008, Statutory implementation deadline
per the 2008 Bill.

Abstract:

FSIS is amending its regulations through an interim final rule to make
clear that country of origin labeling of covered commodities that
complies with the Food, Conservation and Energy Act of 2008 and the
Agricultural Marketing Service (AMS) interim regulations will be
generically approved under 9 CFR 317.5 and 9 CFR 381.133

Statement of Need:

Mandatory Country of Origin Labeling of Covered Commodities including
Muscle Cuts of Beef (including Veal), Lamb, Chicken, Goat, and Pork;
Ground Beef, Ground Lamb, Ground Chicken, Ground Goat, and Ground Pork
-- Interim final rule. (This rule makes minor changes to FSIS
regulations based on mandatory country of origin labeling
requirements.)

Summary of Legal Basis:

FSIS is amending its regulations based on mandatory country of origin
labeling for meat and poultry covered commodities based on the Food,
Conservation and Energy Act of 2008. Meat covered commodities include
muscle cuts of beef (including veal), lamb, chicken, goat, and pork;
ground beef, ground lamb, ground chicken, ground goat, and ground pork.
This rule will provide consumers with additional information on which
to base their purchasing decisions.

Alternatives:

Not applicable.

Anticipated Cost and Benefits:

None. All costs for this interim final rule are covered under the USDA/
AMS COOL rule published on August 1, 2008 (73 FR 45106).

Risks:

There are no risks associated with this rule.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Interim Final Rule 08/28/08 73 FR 50701
Final Action 12/00/08

Regulatory Flexibility Analysis Required:

[[Page 71131]]

Small Entities Affected:

Government Levels Affected:

None

Agency Contact:
Charles Gioglio
Labeling and Program Delivery Division
Department of Agriculture
Food Safety and Inspection Service
1400 Independence Avenue SW
Washington, DC 20250
Phone: 202 205-0279
Fax: 202 205-3625
Email: [email protected]
RIN: 0583-AD38
_______________________________________________________________________

USDA--Forest Service (FS)

-----------

FINAL RULE STAGE

-----------

18. RESOURCE AGENCY PROCEDURES FOR CONDITIONS AND PRESCRIPTIONS IN
HYDROPOWER LICENSES

Priority:

Other Significant

Legal Authority:

PL 109-58

CFR Citation:

7 CFR 1

Legal Deadline:

Final, Statutory, November 7, 2005.

Public Law 109-58 charges agencies requiring mandatory conditions and
prescriptions with the promulgation of new regulations by November 7,
2005, to provide the regulatory framework to implement a trial-type
hearing process.

Abstract:

The Energy Policy Act of 2005 (Pub. L. 109-58) contains provisions
requiring a trial-type hearing to resolve disputed issues of material
fact related to mandatory conditions and prescriptions required under
the issuance of a Federal hydropower license. The law also mandates
that the Agency consider alternatives to proposed mandatory conditions
and prescriptions. This law charges agencies requiring mandatory
conditions and prescriptions with the promulgation of new regulations
by November 7, 2005, to provide the regulatory framework to implement
the trial-type hearing process. The U.S. Department of Agriculture,
acting through the Forest Service, is one of the agencies required
under the Act to provide a trial-type hearing and issue an implementing
regulation. To meet the statutory deadline, the U.S. Department of
Agriculture, along with the U.S. Departments of the Interior and
Commerce, issued a joint interim final rule. The Department of the
Interior is the lead agency in this effort.

The Forest Service adopted an interim final rule at 7 CFR part 1
establishing a trial-type hearing procedure to resolve disputed issues
of material fact related to mandatory conditions and prescriptions
required under the issuance of a Federal hydropower license. The
interim final rule also provides a process for the filing of proposed
alternative conditions and prescriptions.

Statement of Need:

The Departments of Agriculture, the Interior, and Commerce are jointly
revising the procedures they established for expedited trial-type
hearings. The three Departments are also revising the procedures they
established for the consideration of alternative conditions and
prescriptions submitted by any party to a Federal Energy Regulatory
(FERC) hydroelectric licensing proceeding. Three substantially similar
rules are being promulgated - one for each agency - with a joint
preamble. The rules and preamble reflect changes to each Department's
interim final rules, in response to public comments and the
Departments' experience in implementing their interim final rules.

Summary of Legal Basis:

On November 17, 2005, the Departments of Agriculture, the Interior, and
Commerce jointly published interim final rules implementing section 241
of the Energy Policy Act of 2005 (EPAct), Pub. L. 109-58. 70 FR 69804-
51. In their joint preamble, the Departments stated that, based upon
comments received and experience gained with their interim final rules,
they would consider revising the rules.

Alternatives:

There was some discussion among the Departmental/Agency representatives
over the interpretation of the scope of work and trigger for conducting
an alternative condition analysis. DOI proposed that the group conduct
an alternative condition analysis on ALL mandatory conditions. The DOI
position was agreed to with some clarification that this approach was
selected as it is not explicit in the language of Section 241 of the
Energy Policy Act of 2005.

Anticipated Cost and Benefits:

The Final rule addresses the uncertainty by commenters about the
``Interim Final'' rule from 2005 and it incorporates some of the
lessons learned of some of the Trial Type and Alternative Condition
processes conducted since promulgation of the Interim Final Rule.

The most notable costs are staff time to conduct an Alternative
Condition Analysis for all mandatory terms and conditions submitted to
FERC and potential litigation challenging the Alternative Condition
Analysis due to limited expertise in some of the legislated
considerations when conducting an Alternative Condition Analysis.

Risks:

No risks have been identified at this time.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Interim Final Rule 11/17/05 70 FR 69804
Interim Final Rule
Comment Period End 01/17/06
Final Action 12/00/08

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

Agency Contact:
Lorrie Parker
Regulatory Analyst
Department of Agriculture
Forest Service
ATTN: ORMS, D&R Branch
1400 Independence Avenue SW
Washington, DC 20250-0003
Phone: 202 205-6560
Fax: 202 260-6539
Email: [email protected]
RIN: 0596-AC42
_______________________________________________________________________

USDA--FS

19. SPECIAL AREAS; STATE-SPECIFIC INVENTORIED ROADLESS AREA MANAGEMENT:
COLORADO

Priority:

Economically Significant. Major under 5 USC 801.

[[Page 71132]]

Legal Authority:

Not Yet Determined

CFR Citation:

36 CFR 294

Legal Deadline:

None

Abstract:

On April 11, 2007, Governor of Colorado Ritter submitted a petition
under the provisions of the Administrative Procedure Act (5 U.S.C.
553(e)) and Agriculture Department regulation (7 CFR 1.28) to
promulgate regulations, in cooperation with the State, for the
management of inventoried roadless areas within the State of Colorado.
After review and recommendation by the Roadless Area Conservation
National Advisory Committee, the Secretary accepted the Governor's
petition and initiated a proposed rulemaking for inventoried roadless
areas in Colorado. The proposed rulemaking would manage Colorado's
inventoried roadless areas by prohibiting road building and tree
cutting, with some exceptions, on 4.1 million acres of inventoried
roadless areas in Colorado. The 4.1 million acres reflect the most
updated IRA boundaries for Colorado, which incorporate planning rule
revisions since 2001 on several Colorado national forests. Inventoried
roadless areas that are allocated to ski area special uses
(approximately 10,000 acres) would also be removed from roadless
designation. Road construction and reconstruction plus timber
harvesting would be prohibited in inventoried roadless areas, with some
exceptions, on the Arapaho-Roosevelt, Grand Mesa-Uncompahgre, Gunnison,
Manti-La Sal, Pike-San Isabel, Rio Grande, Routt, San Juan, and White
River National Forests in Colorado. Exceptions to the prohibitions
would be allowed for certain health, safety, valid existing rights,
resource protection, and ecological management needs.

Web site: http://roadless.fs.fed.us

Statement of Need:

The Department of Agriculture is committed to conserving and managing
roadless values and considers inventoried roadless areas an important
component of the National Forest System. The roadless rule has been the
subject of 10 lawsuits in Federal district courts in Idaho, Utah, North
Dakota, Wyoming, Alaska, and the District of Columbia. On July 14,
2003, the U.S. District Court for the District of Wyoming found the
2001 roadless rule to be unlawful and ordered that the rule be
permanently enjoined. On May 13, 2005, the Forest Service promulgated
the State Petitions Rule. The State Petitions Rule allowed Governors to
voluntarily seek establishment of or adjustment of management
requirements for National Forest System inventoried roadless areas
within their States. If a petition was not received within 18 months,
inventoried roadless areas would be guided by individual land
management plans. It also established the Roadless Area Conservation
National Advisory Committee (RACNAC) to make recommendations on State-
petitions to the Secretary. With the promulgation of the State
Petitions Rule, the Tenth Circuit, which was reviewing an appeal by
intervenors of the Wyoming court's decision, dismissed the case as
moot. Under the guidance of the State Petitions Rule the States of
California, Idaho, New Mexico, North Carolina, South Carolina, and
Virginia filed a petition with the Secretary. The Secretary instructed
the Forest Service to enter into rulemaking for North Carolina, South
Carolina, and Virginia. Two lawsuits were filed against the State
Petitions Rule in the Federal district court for the Northern District
of California.

One suit was filed by the States of California, New Mexico, Oregon, and
Washington with the State of Montana being amicus curiae in support of
plaintiffs; and the States of Alaska and Idaho are amici curiae to
USDA. The other lawsuit was filed by a coalition of environmental
groups. On September 20, 2006, the Federal district court enjoined the
State Petitions Rule and reinstated the roadless rule. In an effort to
again re-enjoin the roadless rule, the State of Wyoming filed a second
lawsuit in the Federal district court for Wyoming on January 12, 2007.
Oral hearing for this lawsuit was held October 19 and decision is
pending. With the reinstatement of roadless rule, the Under Secretary
announced that interested States could still petition the Secretary
pursuant to 5 U.S.C. section 553(e) and 7 CFR section 1.28. On November
13, 2006, Colorado Governor Bill Owens submitted his petition under
these authorities. On April 11, 2007, Colorado Governor Bill Ritter
resubmitted the petition with amendments. The RACNAC reviewed the
petition and made recommendations to the Secretary on August 2, 2007.

Collaboratively working on the establishment of a State-specific
roadless rule for the petitioning State will allow the State the level
of management of inventoried roadless areas it seeks to best meet its
needs in balance with the Department's and Forest Service's goals for
the conserving and managing roadless values nationally. In addition, it
will allow for the management of these lands in that State without
being affected by other legal actions concerning the roadless rule or
State Petitions Rule.

Summary of Legal Basis:

On January 12, 2001, the Department of Agriculture promulgated the
Roadless Area Conservation Rule to provide for the conservation and
management of approximately 58.5 million acres of inventoried roadless
areas within the National Forest System under the principles of the
Multiple-Use Sustained-Yield Act of 1960. The State of Colorado has
petitioned the Secretary pursuant to 5 U.S.C. section 553(e) and 7 CFR
section 1.28 for state-specific rules to replace this national rule.

Alternatives:

The Forest Service is preparing environmental impact statements in
support of the rulemaking effort. Besides the proposed rule, two
alternatives are being considered: (1) Continuation of the RACR for
management of these inventoried roadless areas, and (2) using existing
forest plans and future forest plan revisions to determine the
management of these areas.

Anticipated Cost and Benefits:

The proposed rule is an economically significant rule, and will have an
annual effect of more than $100 million or more on the economy nor
adversely affect productivity, competition, jobs, the environment,
public health or safety, nor State or local governments. This proposed
rule is not expected to interfere with an action taken or planned by
another Agency nor raise new legal or policy issues. This proposed rule
will not alter the budgetary impact of entitlements, grants, user fees,
or loan programs or the rights and obligations of recipients of such
programs. Furthermore, the proposed rule is programmatic in nature,
consisting of direction for road construction, road reconstruction,
timber harvesting, special uses including ski resorts, and
discretionary mineral activities, which would be applied to future
management activities

[[Page 71133]]

on inventoried roadless areas in Colorado.

Risks:

The rule is programmatic in nature and would constrain certain
activities that would reduce roadless area characteristics. Reducing or
controlling the development of these lands will reduce the risk of
environmental effects associated with development activities like road
construction, timber harvesting, and mineral extraction. Therefore
soil, water, and air quality; sources of drinking water; diversity of
plant and animal communities; habitat for threatened, endangered,
proposed, candidate, and sensitive species dependent on large,
undisturbed areas of land; scenic quality; traditional cultural
properties and sacred sites; and other locally unique characteristics
would be maintained.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 07/25/08 73 FR 43544
NPRM Comment Period End 10/23/08
Final Action 01/00/09

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

Federal, State, Tribal

URL For More Information:
www.roadless.fs.fed.us.

Agency Contact:
Lorrie Parker
Regulatory Analyst
Department of Agriculture
Forest Service
ATTN: ORMS, D&R Branch,
1400 Independence Avenue SW
Washington, DC 20250-0003
Phone: 202 205-6560
Fax: 202 205-6539
Email: [email protected]
RIN: 0596-AC74
BILLING CODE 3410-90-S

[[Page 71134]]

DEPARTMENT OF COMMERCE (DOC)

Statement of Regulatory and Deregulatory Priorities
Enhancing long-term economic growth is a central focus of the
President's policies and priorities. The mission of the Department of
Commerce is to promote job creation, economic growth, technological
competitiveness, sustainable development, and improve living standards
for all Americans by working in partnership with businesses,
universities, communities, and workers to:
Build for the future and promote U.S. economic competitiveness
in the global marketplace by strengthening and safeguarding
the Nation's economic infrastructure;
Keep America competitive with cutting-edge science and
technology and an unrivaled information base; and
Provide effective management and stewardship of our nation's
resources and assets to ensure sustainable economic
opportunities.
The DOC mission statement, containing our three strategic themes,
provides the vehicle for understanding the Department's aims, how they
interlock, and how they are to be implemented through our programs.
This statement was developed with the intent that it serve as both a
statement of departmental philosophy and as the guiding force behind
the Department's programs.
The importance that this mission statement and these strategic themes
have for the Nation is amplified by the vision they pursue for
America's communities, businesses, and families. Commerce is the
smallest Cabinet agency, yet our presence is felt, and our
contributions are found, in every State.
The DOC touches Americans, daily, in many ways--we make possible the
weather reports that all of us hear every morning; we facilitate the
technology that all of us use in the workplace and in the home each
day; we support the development, gathering, and transmitting of
information essential to competitive business; we make possible the
diversity of companies and goods found in America's (and the world's)
marketplace; and we support environmental and economic health for the
communities in which Americans live.
The DOC has a clear and powerful vision for itself, for its role in the
Federal Government, and for its roles supporting the American people,
now and in the future. We confront the intersection of trade promotion,
civilian technology, economic development, sustainable development, and
economic analysis, and we want to provide leadership in these areas for
the Nation.
We work to provide programs and services that serve our country's
businesses, communities, and families, as initiated and supported by
the President and the Congress. We are dedicated to making these
programs and services as effective as possible, while ensuring that
they are being delivered in the most cost-effective ways. We seek to
function in close concert with other agencies having complementary
responsibilities so that our collective impact can be most powerful. We
seek to meet the needs of our customers quickly and efficiently, with
programs, information, and services they require and deserve.
As a permanent part of the Federal Government, but serving an
Administration and Congress that can vary with election results, we
seek to serve the unchanging needs of the Nation, according to the
priorities of the President and the Congress. The President's
priorities for the Department range from issues concerning the economy
to the environment. For example, the President directs the Department
to promote electronic commerce activities; encourage open and free
trade; represent American business interests abroad; and assist small
businesses to expand and create jobs. We are able to address these
priorities effectively by functioning in accordance with the
legislation that supports our programs and by working closely with the
President and the committees in Congress that have programmatic and
financial oversight for our programs.
The DOC also promotes and expedites American exports, helps nurture
business contacts abroad, protects U.S. firms from unfair foreign
competition, and makes how-to-export information accessible to small
and mid-sized companies throughout the Nation, thereby ensuring that
U.S. market opportunities span the globe.
The DOC encourages development in every community, clearing the way for
private-sector growth by building and rebuilding economically deprived
and distressed communities. We promote minority entrepreneurship to
establish businesses that frequently anchor neighborhoods and create
new job opportunities. We work with the private sector to enhance
competitive assets.
As the Nation looks to revitalize its industries and communities, the
DOC works as a partner with private entities to build America with an
eye on the future. Through technology, research and development, and
innovation, we are making sure America continues to prosper in the
short term, while also helping industries prepare for long-term
success.
The DOC's considerable information capacities help businesses
understand clearly where our national and world economies are going and
take advantage of that knowledge by planning the road ahead. Armed with
the Department's economic and demographic statistics, businesses can
undertake new ventures, investments, and expansions that make our
economy grow.
The DOC has instituted programs and policies that lead to cutting-edge,
competitive, and better paying jobs. We work every day to boost
exports, to deregulate business, to help smaller manufacturers battle
foreign competition, to advance the technologies critical to our future
prosperity, to invest in our communities, and to fuse economic and
environmental goals.
The DOC is American business' surest ally in job creation, serving as a
vital resource base, a tireless advocate, and its Cabinet-level voice.
The Regulatory Plan tracks the most important regulations that
implement these policy and program priorities, several of which involve
regulation of the private sector by the Department.
Responding to the Administration's Regulatory Philosophy and Principles
The vast majority of the Department's programs and activities do not
involve regulation. Of the Department's 12 primary operating units,
only the National Oceanic and Atmospheric Administration (NOAA) will be
planning actions that are considered the ``most important'' significant
preregulatory or regulatory actions for fiscal year 2009. During the
next year, NOAA plans to publish nine rulemaking actions that are
designated as Regulatory Plan actions. Further information on these
actions is provided below.
Though not principally a regulatory agency, the DOC has long been a
leader in advocating and using market-oriented regulatory approaches in
lieu of traditional command-and-control regulations when such
approaches offer a better alternative. All regulations are designed and
implemented to maximize societal benefits while placing the

[[Page 71135]]

smallest possible burden on those being regulated.
The DOC is also refocusing on its regulatory mission by taking into
account, among other things, the President's regulatory principles. To
the extent permitted by law, all preregulatory and regulatory
activities and decisions adhere to the Administration's statement of
regulatory philosophy and principles, as set forth in section 1 of
Executive Order 12866. Moreover, we have made bold and dramatic
changes, never being satisfied with the status quo. We have emphasized,
initiated, and expanded programs that work in partnership with the
American people to secure the Nation's economic future. At the same
time, we have downsized, cut regulations, closed offices, and
eliminated programs and jobs that are not part of our core mission. The
bottom line is that, after much thought and debate, we have made many
hard choices needed to make this Department ``state of the art.''
The Department has a long-standing policy to prohibit the issuance of
any regulation that discriminates on the basis of race, religion,
gender, or any other suspect category and requires that all regulations
be written so as to be understandable to those affected by them. The
Secretary also requires that the Department afford the public the
maximum possible opportunity to participate in departmental
rulemakings, even where public participation is not required by law.
National Oceanic and Atmospheric Administration
The National Oceanic and Atmospheric Administration (NOAA) establishes
and administers federal policy for the conservation and management of
the Nation's oceanic, coastal, and atmospheric resources. It provides a
variety of essential environmental services vital to public safety and
to the Nation's economy, such as weather forecasts and storm warnings.
It is a source of objective information on the state of the
environment. NOAA plays the lead role in achieving the departmental
goal of promoting stewardship by providing assessments of the global
environment.
Recognizing that economic growth must go hand-in-hand with
environmental stewardship, the Department, through NOAA, conducts
programs designed to provide a better understanding of the connections
between environmental health, economics, and national security.
Commerce's emphasis on ``sustainable fisheries'' is designed to boost
long-term economic growth in a vital sector of the U.S. economy while
minimizing any economic dislocation necessary to ensure long-term
economic growth. The Department is where business and environmental
interests intersect, and the classic debate on the use of natural
resources is transformed into a ``win-win'' situation for the
environment and the economy.
Three of NOAA's major components, the National Marine Fisheries
Services (NMFS), the National Ocean Service (NOS), and the National
Environmental Satellite, Data, and Information Service (NESDIS),
exercise regulatory authority.
NMFS oversees the management and conservation of the Nation's marine
fisheries, protects threatened and endangered marine and anadromous
species and marine mammals, and promotes economic development of the
U.S. fishing industry. NOS assists the coastal states in their
management of land and ocean resources in their coastal zones,
including estuarine research reserves; manages the Nation's national
marine sanctuaries; monitors marine pollution; and directs the national
program for deep-seabed minerals and ocean thermal energy. NESDIS
administers the civilian weather satellite program and licenses private
organizations to operate commercial land-remote sensing satellite
systems.
The Administration is committed to an environmental strategy that
promotes sustainable economic development and rejects the false choice
between environmental goals and economic growth. The intent is to have
the Government's economic decisions guided by a comprehensive
understanding of the environment. The Department, through NOAA, has a
unique role in promoting stewardship of the global environment through
effective management of the Nation's marine and coastal resources and
in monitoring and predicting changes in the Earth's environment, thus
linking trade, development, and technology with environmental issues.
NOAA has the primary federal responsibility for providing sound
scientific observations, assessments, and forecasts of environmental
phenomena on which resource management and other societal decisions can
be made.
In the environmental stewardship area, NOAA's goals include: rebuilding
and maintaining strong U.S. fisheries by using market-based ecosystem
approaches to management; increasing the populations of depleted,
threatened, or endangered species and marine mammals by implementing
recovery plans that provide for their recovery while still allowing for
economic and recreational opportunities; promoting healthy coastal
ecosystems by ensuring that economic development is managed in ways
that maintain biodiversity and long-term productivity for sustained
use; and modernizing navigation and positioning services. In the
environmental assessment and prediction area, goals include:
modernizing the National Weather Service; implementing reliable
seasonal and interannual climate forecasts to guide economic planning;
providing science-based policy advice on options to deal with very
long-term (decadal to centennial) changes in the environment; and
advancing and improving short-term warning and forecast services for
the entire environment.
Magnuson-Stevens Fishery Conservation and Management Act
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) rulemakings concern the conservation and management of
fishery resources in the U.S. Exclusive Economic Zone (generally 3-200
nautical miles). Among the several hundred rulemakings that NOAA plans
to issue in fiscal year 2009, a number of the preregulatory and
regulatory actions will be significant. The exact number of such
rulemakings is unknown, since they are usually initiated by the actions
of eight regional Fishery Management Councils (FMCs) that are
responsible for preparing fishery management plans (FMPs) and FMP
amendments, and for drafting implementing regulations for each managed
fishery. NOAA issues regulations to implement FMPs and FMP amendments.
Once a rulemaking is triggered by an FMC, the Magnuson-Stevens Act
places stringent deadlines upon NOAA by which it must exercise its
rulemaking responsibilities. FMPs and FMP amendments for Atlantic
highly migratory species, such as bluefin tuna, swordfish, and sharks,
are developed directly by NOAA, not by FMCs.
FMPs address a variety of issues including maximizing fishing
opportunities on healthy stocks, rebuilding overfished stocks, and
addressing gear conflicts. One of the problems that FMPs may address is
preventing overcapitalization (preventing excess fishing capacity) of
fisheries. This may be resolved by market-based systems such as

[[Page 71136]]

individual transferable quotas, which permit quota-holders to harvest a
quantity of fish and which can be traded on the open market. Harvest
limits based on the best available scientific information, whether as a
total fishing limit for a species in a fishery or as a share assigned
to each vessel participant, enable stressed stocks to rebuild. Other
measures include staggering fishing seasons or limiting gear types to
avoid gear conflicts on the fishing grounds, and establishing seasonal
and area closures to protect fishery stocks.
The FMCs provide a forum for public debate and, using the best
scientific information available, make the judgments needed to
determine optimum yield on a fishery-by-fishery basis. Optional
management measures are examined and selected in accordance with the
national standards set forth in the Magnuson-Stevens Act. This process,
including the selection of the preferred management measures,
constitutes the development, in simplified form, of an FMP. The FMP,
together with draft implementing regulations and supporting
documentation, is submitted to NMFS for review against the national
standards set forth in the Magnuson-Stevens Act, in other provisions of
the Act, and other applicable laws. The same process applies to
amending an existing approved FMP.
The Magnuson-Stevens Act contains ten national standards against which
fishery management measures are evaluated. NMFS has supplemented the
standards with guidelines interpreting each standard, and has updated
and added to those guidelines. One of the national standards requires
that management measures, where practicable, minimize costs and avoid
unnecessary duplication. Under the guidelines, NMFS will not approve
management measures submitted by an FMC unless the fishery is in need
of management. Together, the standards and the guidelines correspond to
many of the Administration's principles of regulation as set forth in
section 1(b) of Executive Order 12866. One of the national standards
establishes a qualitative equivalent to the Executive Order's ``net
benefits'' requirement--one of the focuses of the Administration's
statement of regulatory philosophy as stated in section 1(a) of the
Executive Order.
On January 12, 2007, the President signed into law the Magnuson-Stevens
Fishery Conservation and Management Reauthorization Act of 2006 (MSRA).
This important new law was identified by the President as one of his
priority actions in the U.S. Ocean Plan. The enactment of the law
reaffirms the importance of the goals of the Magnuson-Stevens Act, but
more importantly, it implements important groundbreaking provisions
that could enhance fisheries management. The new measures implemented
by this law would work to end overfishing; promote market-based
management approaches; improve science by providing a stronger role for
peer review and for the Councils' Science and Statistical Committees
(SSC) in decision-making, and improving the collection of accurate and
precise fishing data; and enhance international cooperation by
addressing illegal, unreported and unregulated (IUU) fishing and
bycatch of protected living marine resources. NMFS will be initiating
several rulemakings in the coming year to implement these important
provisions.
Marine Mammal Protection Act
The Marine Mammal Protection Act of 1972 (MMPA) provides the authority
for the conservation and management of marine mammals under U.S.
jurisdiction. It expressly prohibits, with certain exceptions, the take
of marine mammals. Exceptions include the collection of wild animals
for scientific research or public display or to enhance the survival of
a species or stock. NMFS initiates rulemakings under the MMPA to
establish a management regime to reduce marine mammal mortalities and
injuries as a result of interactions with fisheries. The Act also
established the Marine Mammal Commission, which makes recommendations
to the Secretaries of the Departments of Commerce and the Interior and
other federal officials on protecting and conserving marine mammals.
The Act underwent significant changes in 1994 to allow for takings
incidental to commercial fishing operations, to provide certain
exemptions for subsistence and scientific uses, and to require the
preparation of stock assessments for all marine mammal stocks in waters
under U.S. jurisdiction.
Endangered Species Act
The Endangered Species Act of 1973 (ESA) provides for the conservation
of species that are determined to be ``endangered'' or ``threatened,''
and the conservation of the ecosystems on which these species depend.
The ESA authorizes both NMFS and the Fish and Wildlife Service (FWS) to
jointly administer the provisions of the Act. NMFS manages marine and
``anadromous'' species and FWS manages land and freshwater species.
Together, NMFS and FWS work to protect critically imperiled species
from extinction. Of the 1,310 listed species found in part or entirely
in the United States and its waters, NMFS has jurisdiction over
approximately 60 species. NMFS' rulemaking actions are focused on
determining whether any species under its responsibility is an
endangered or threatened species and whether those species must be
added to the list of protected species. NMFS is also responsible for
designating, reviewing, and revising critical habitat for any listed
species. In addition, under the ESA's procedural framework, federal
agencies consult with NMFS on any proposed action authorized, funded,
or carried out by that agency that may affect one of the listed species
or designated critical habitat, or is likely to jeopardize proposed
species or adversely modify proposed critical habitat that is under
NMFS' jurisdiction.
NOAA's Regulatory Plan Actions
While most of the rulemakings undertaken by NOAA do not rise to the
level necessary to be included in the Department's Regulatory Plan,
NMFS is undertaking nine actions that rise to the level of ``most
important'' of the Departments significant regulatory actions, and thus
are included in this year's Regulatory Plan. Three actions implement
the Marine Mammal Protection Act. Six actions implement provisions of
the Magnuson-Stevens Reauthorization Act (MSRA). One regulation that
may be of particular interest to international trading partners
concerns the Certification of Nations Whose Fishing Vessels are Engaged
in Illegal, Unreported, or Unregulated Fishing or Bycatch of Protected
Living Marine Resources, as described below.
``Certification of Nations Whose Fishing Vessels Are Engaged in IUU
Fishing or Bycatch of Protected Living Marine Resources'' - In this
action, NMFS would establish a process of identification and
certification to address illegal, unreported, or unregulated (IUU)
activities and bycatch of protected species in international fisheries.
Nations whose fishing vessels engage, or have been engaged, in IUU
fishing or bycatch of protected living marine resources would be
identified in a biennial report to Congress. NMFS would subsequently
certify whether identified nations have taken appropriate corrective
action with respect to the activities of its fishing vessels, as
required under Section 403 of MSRA. Negative certification of a

[[Page 71137]]

nation may result in the imposition of trade measures.
``Provide Guidance for the Limited Access Privilege Program Provisions
of the Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act of 2006'' - This action would provide national
guidance on the use of Limited Access Privilege Programs (LAPP) as
fishery management tools. The guidance is intended to assist the
fishery management councils and NMFS headquarters and regional offices
in developing and implementing LAPPs.
``Guidance for Annual Catch Limits and Accountability Measures to End
Overfishing'' - In this action, NMFS would implement provisions that
require fishery management plans to establish a mechanism for
specifying annual catch limits (ACLs) in the plans implementing
regulations or annual specifications, at a level such that overfishing
does not occur in a fishery. In addition, this action would implement
measures to ensure accountability.
``Disaster Assistance Programs'' - This action would govern requests
for determinations of fishery resource disasters as a basis for
acquiring potential disaster assistance. The regulations would
establish definitions and characteristics of commercial fishery
failures, fishery resource disasters, serious disruptions affecting
future production, and harm incurred by fishermen. The intended result
is to clarify and interpret the fishery disaster assistance provisions
of the Magnuson-Stevens Act and the Interjurisdictional Fisheries Act
and thereby ensure consistency and facilitate the processing of
requests.
``Magnuson-Stevens Fishery Conservation and Management Reauthorization
Act Environmental Review Procedure'' - This final rule would revise and
update NMFS procedures for complying with the National Environmental
Policy Act (NEPA) in the context of fishery management actions
developed pursuant to the Magnuson Stevens Fishery Conservation and
Management Act. These regulations are modeled on the Council of
Environmental Quality (CEQ) regulations implementing the procedural
provisions of NEPA, and are designed to conform to the timelines for
review and approval of fishery management plans and plan amendments.
``Amendment to Coastal Migratory Pelagics FMP, Red Drum FMP, Reef Fish
FMP, Spiny Lobster FMP, and Stone Crab FMP to Provide for Regulation of
Marine Aquaculture'' - The Gulf of Mexico Fishery Management Council is
developing an Aquaculture Fishery Management Plan, which if approved,
would establish a regional permitting process for regulating and
promoting environmentally sound and economically sustainable
aquaculture in the Gulf of Mexico exclusive economic zone.
``Taking and Importing Marine Mammals; U.S. Navy's Atlantic Fleet
Active Sonar Training (AFAST)'' - NMFS has received a request from the
U.S. Navy for authorization to take marine mammals incidental to
training activities conducted off the U.S. Atlantic Coast and in the
Gulf of Mexico for the period of January 2009 through January 2014.
These training activities are classified as military readiness
activities. The final regulations would authorize these activities and
govern the take of marine mammals.
``Taking and Importing Marine Mammals; U.S. Navy Training in the
Southern California Range Complex'' - NMFS has received a request from
the U.S. Navy for authorization to take marine mammals incidental to
training activities conducted in the Southern California Range Complex
, which extends south and southwest off the southern California coast,
for the period of January 2009 through January 2014. These training
activities are classified as military readiness activities. The final
regulations would authorize these activities and govern the take of
marine mammals.
``Taking and Importing Marine Mammals; U.S. Navy Training in the Hawaii
Range Complex'' - NMFS has received a request from the U.S. Navy for
authorization to take marine mammals incidental to training activities
conducted within the Hawaii Range Complex (HRC) for the period of
December 2008 through December 2013. These training activities are
classified as military readiness activities. The final regulations
would authorize these activities and govern the take of marine mammals.
NOAA's nine Regulatory Plan actions support several of the President's
priorities as stated in the U.S. Ocean Action Plan. Specifically, NMFS'
regulatory actions implement the President's ongoing effort to combat
international illegal, unregulated and unreported fishing activities
through its proposed identification and certification process and
support the goal to use market-based systems for fisheries management.
At this time, NOAA is unable to determine the aggregate cost of the
identified Regulatory Plan actions as several of these actions are
currently under development.
Bureau of Industry and Security
The Bureau of Industry and Security (BIS) promotes U.S. national and
economic security and foreign policy interests by managing and
enforcing the Department's security-related trade and competitiveness
programs. BIS plays a key role in challenging issues involving national
security and nonproliferation, export growth, and high technology. The
Bureau's continuing major challenge is combating the proliferation of
weapons of mass destruction while furthering the growth of U.S.
exports, which are critical to maintaining our leadership in an
increasingly competitive global economy. BIS strives to be the leading
innovator in transforming U.S. strategic trade policy and programs to
adapt to the changing world.
Major Programs and Activities
The Export Administration Regulations (EAR) provide for export controls
on dual-use goods and technology (primarily commercial goods that have
potential military applications) not only to fight proliferation, but
also to pursue other national security, short supply, and foreign
policy goals (such as combating terrorism). Simplifying and updating
these controls in light of the end of the Cold War has been a major
accomplishment of BIS.
BIS is also responsible for:
Enforcing the export control and antiboycott provisions of the
Export Administration Act (EAA), as well as other statutes
such as the Fastener Quality Act. The EAA is enforced
through a variety of administrative, civil, and criminal
sanctions.
Analyzing and protecting the defense industrial and technology
base, pursuant to the Defense Production Act and other
laws. As the Defense Department increases its reliance on
dual-use high technology goods as part of its cost-cutting
efforts, ensuring that we remain competitive in those
sectors and subsectors is critical to our national
security.
Helping Ukraine, Kazakhstan, Belarus, Russia, and other newly
emerging countries develop effective export control
systems. The effectiveness of U.S. export controls can be
severely undercut if ``rogue states'' or terrorists gain
access to

[[Page 71138]]

sensitive goods and technology from other supplier
countries.
Working with former defense plants in the Newly Independent
States to help make a successful transition to profitable
and peaceful civilian endeavors. This involves helping
remove unnecessary obstacles to trade and investment and
identifying opportunities for joint ventures with U.S.
companies.
Assisting U.S. defense enterprises to meet the challenge of
the reduction in defense spending by converting to civilian
production and by developing export markets. This work
assists in maintaining our defense industrial base as well
as preserving jobs for U.S. workers.
_______________________________________________________________________

DOC--National Oceanic and Atmospheric Administration (NOAA)

-----------

PROPOSED RULE STAGE

-----------

20. AMENDMENT TO COASTAL MIGRATORY PELAGICS FMP, RED DRUM FMP, REEF
FISH FMP, SPINY LOBSTER FMP, AND STONE CRAB FMP TO PROVIDE FOR
REGULATION OF MARINE AQUACULTURE

Priority:

Other Significant

Legal Authority:

16 USC 1801 et seq

CFR Citation:

50 CFR 622

Legal Deadline:

None

Abstract:

The purpose of the amendment is to develop a regulatory permitting
process for regulating and promoting environmentally sound and
economically sustainable aquaculture in the Gulf Exclusive Economic
Zone. Possible management actions include: (1) Types of aquaculture
permits required; (2) duration aquaculture permits are effective; (3)
conditions for permit issuance; (4) species allowed for aquaculture;
(5) allowable aquaculture systems; (6) designation of sites or areas
for conducting aquaculture; (7) buffer zones for aquaculture
facilities; (8) recordkeeping and reporting requirements; and (9)
regulations to aid in the enforcement of marine aquaculture facilities.

Statement of Need:

Demand for protein is increasing in the United States and commercial
wild-capture fisheries will not likely be adequate to meet this growing
demand. Aquaculture is one method to meet current and future demands
for seafood. Supplementing the harvest of domestic fisheries with
cultured product will help the U.S. meet consumers' growing demand for
seafood and may reduce the nation's dependence on seafood imports.
Currently, the U.S. imports over 80 percent of the seafood consumed in
the country, and the annual U.S. seafood trade deficit is at an all
time high of over $9 billion.

Summary of Legal Basis:

Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C.
1801 et seq.

Alternatives:

The Council's Aquaculture FMP includes 10 actions, each with an
associated range of alternatives. These actions and alternatives are
collectively intended to establish a regional permitting process for
offshore aquaculture. Management actions in the FMP include: 1)
Aquaculture permit requirements, eligibility, and transferability; 2)
duration aquaculture permits are effective; 3) aquaculture application
requirements, operational requirements, and restrictions; 4) species
allowed for aquaculture; 5) allowable aquaculture systems; 6) marine
aquaculture siting requirements and conditions; 7) restricted access
zones for aquaculture facilities; 8) recordkeeping and reporting
requirements; 9) biological reference points and status determination
criteria; and 10) framework procedures for modifying biological
reference points and regulatory measures.

Anticipated Cost and Benefits:

Environmental and social/economic costs and benefits are described in
detail in the Council's Aquaculture FMP. Potential benefits include:
establishing a rigorous review process for reviewing and approving/
denying aquaculture permits, increasing optimum yield by supplementing
the harvest of wild domestic fisheries with cultured products, and
reducing the nation's dependence on imported seafood. Anticipated costs
include: increased administration and oversight of an aquaculture
permitting process and potential negative environmental impacts to wild
marine resources. Approval of an aquaculture permitting system may also
benefit fishing communities by creating new jobs or impact fishing
communities if cultured products economically displace domestic
seafood.

Risks:

National offshore aquaculture legislation has also been previously
proposed by the Administration. This action may reduce the need for
uniform national legislation and allow aquaculture regulations to vary
by region.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 11/00/08
NPRM Comment Period End 12/00/08

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

None

Agency Contact:
Roy Crabtree
Regional Administrator, Southeast Region
Department of Commerce
National Oceanic and Atmospheric Administration
263 Thirteenth Avenue South
St. Petersburg, FL 33701
Phone: 727 570-5305
Fax: 727 570-5583
Email: [email protected]
RIN: 0648-AS65
_______________________________________________________________________

DOC--NOAA

21. CERTIFICATION OF NATIONS WHOSE FISHING VESSELS ARE ENGAGED IN IUU
FISHING OR BYCATCH OF PROTECTED LIVING MARINE RESOURCES

Priority:

Other Significant

Legal Authority:

16 USC 1801 et seq; 16 USC 1826d to 1826k

CFR Citation:

50 CFR 300

Legal Deadline:

None

Abstract:

The National Marine Fisheries Service is establishing a process of

[[Page 71139]]

identification and certification to address illegal, unreported, or
unregulated (IUU) activities and bycatch of protected species in
international fisheries. Nations whose fishing vessels engage, or have
been engaged, in IUU fishing or bycatch of protected living marine
resources would be identified in a biennial report to Congress, as
required under Section 403 of the Magnuson-Stevens Fishery Conservation
and Management Reauthorization Act (MSRA) of 2006. NMFS would
subsequently certify whether identified nations have taken appropriate
corrective action with respect to the activities of its fishing
vessels, as required under Section 403 of MSRA.

Statement of Need:

The National Oceanic and Atmospheric Administration (NOAA) National
Marine Fisheries Service (NMFS) proposes regulations to set forth
identification and certification procedures for nations whose vessels
engage in illegal, unregulated, and unreported (IUU) fishing activities
or bycatch of protected living marine resources pursuant to the High
Seas Fishing Moratorium Protection Act (Moratorium Protection Act).
Specifically, the Moratorium Protection Act requires the Secretary of
Commerce to identify in a biennial report to Congress those foreign
nations whose vessels are engaged in IUU fishing or fishing that
results in bycatch of protected living marine resources. The Moratorium
Protection Act also requires the establishment of procedures to certify
whether nations identified in the biennial report are taking
appropriate corrective actions to address IUU fishing or bycatch of
protected living marine resources by fishing vessels of that nation.
Based upon the outcome of the certification procedures developed in
this rulemaking, nations could be subject to import prohibitions on
certain fisheries products and other measures under the authority
provided in the High Seas Driftnet Fisheries Enforcement Act if they
are not positively certified by the Secretary of Commerce.

Summary of Legal Basis:

NOAA is proposing these regulations pursuant to its rulemaking
authority under sections 609 and 610 of the High Seas Driftnet Fishing
Moratorium Protection Act (16 U.S.C. 1826j to 1826k), as amended by the
Magnuson-Stevens Fishery Conservation and Management Reauthorization
Act.

Alternatives:

NMFS is currently in the process of developing alternatives, and will
provide this information at a later date.

Anticipated Cost and Benefits:

Because this rule is under development, NMFS does not currently have
estimates of the amount of product that is imported into the United
States from other nations whose vessels are engaged in illegal,
unreported, and unregulated (IUU) fishing or bycatch of protected
living marine resources. Therefore, quantification of the economic
impacts of this rulemaking is not possible at this time. This
rulemaking does not meet the $100 million annual economic impact
threshold and thus has not been determined to be economically
significant under EO 12866.

Risks:

The risks associated with not pursuing the proposed rulemaking include
allowing IUU fishing activities and/or bycatch of protected living
marine resources by foreign vessels to continue without an effective
tool to aid in combating such activities.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
ANPRM 06/11/07 72 FR 32052
ANPRM Comment Period End 07/26/07
NPRM 12/00/08

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

None

Agency Contact:
Christopher Rogers
Division Chief
Department of Commerce
National Oceanic and Atmospheric Administration
1315 East West Highway
Silver Spring, MD 20910
Phone: 301 713-9090
Email: [email protected]
RIN: 0648-AV51
_______________________________________________________________________

DOC--NOAA

22. MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT PROVISIONS
AND INTERJURISDICTIONAL FISHERIES ACT DISASTER ASSISTANCE PROGRAMS

Priority:

Other Significant

Legal Authority:

16 USC 1861; 16 USC 4107

CFR Citation:

50 CFR 600

Legal Deadline:

None

Abstract:

In accordance with the Magnuson-Stevens Fishery Conservation and
Management Act (MSA), as amended, and the Interjurisdicational
Fisheries Act (IFA), the National Marine Fisheries Service (NMFS)
proposes regulations to govern the application for and determination of
commercial fishery failures as a basis for acquiring potential disaster
assistance. The regulations would establish definitions,
characteristics of commercial fishery failures and fishery resource
disasters, requirements for initiating a review by NMFS, and the
administrative process it will follow in processing such applications.
The intended effect of these procedures and requirements is to clarify
the fishery disaster assistance provisions of the MSA and the IFA
through rulemaking and thereby facilitate the processing of requests.

Statement of Need:

The National Oceanic and Atmospheric Administration (NOAA) National
Marine Fisheries Service (NMFS) intends to propose this rule to govern
the requests for determinations of fishery resource disasters as a
basis for acquiring potential disaster assistance. The regulations
would establish definitions, and characteristics of commercial fishery
failures, fishery resource disasters, serious disruptions affecting
future production, and harm incurred by fishermen, as well as
requirements for initiating a review by NMFS, and the administrative
process it will follow in processing such applications. The intended
result of these procedures and requirements is to clarify and interpret
the fishery disaster assistance provisions of the Magnuson-Stevens
Fishery Conservation and Management Act (MSA) and the
Interjurisdictional

[[Page 71140]]

Fisheries Act (IFA) through rulemaking and thereby ensure consistency
and facilitate the processing of requests.

Summary of Legal Basis:

NMFS is proposing these regulations pursuant to its rulemaking
authority under sections 312(a) or 315 of the MSA (16 U.S.C. 1861,
1864), as amended, and sections 308(b) or 308(d) of the IFA (16 U.S.C.
4107).

Alternatives:

Because this rule is presently in the beginning stages of development,
no alternatives have been formulated or analyzed at this time.

Anticipated Cost and Benefits:

Because this rule is presently in the beginning stages of development,
no analysis has been completed at this time to assess the amount that
would be saved or imposed as a result of this rule. However, this rule
does not meet the $100 million annual economic impact threshold and
thus has not been determined to be economically significant under EO
12866.

Risks:

Without this rulemaking, there is a risk that disaster determinations
can be made on an ad hoc basis, without regard to any standardized
guidelines or procedures.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 11/00/08
NPRM Comment Period 01/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Local, State, Tribal

Agency Contact:
Charles L. Cooper
Program Leader
Department of Commerce
National Oceanic and Atmospheric Administration
1315 East-West Highway
Silver Spring, MD 20910
Phone: 301 713-2396
Email: [email protected]
RIN: 0648-AW38
_______________________________________________________________________

DOC--NOAA

23. PROVIDE GUIDANCE FOR THE LIMITED ACCESS PRIVILEGE PROGRAM
PROVISIONS OF THE MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT
REAUTHORIZATION ACT OF 2006

Priority:

Other Significant

Legal Authority:

16 USC 1801 et seq

CFR Citation:

50 CFR 600

Legal Deadline:

None

Abstract:

This rule will provide regions with interpretive guidance on the use of
Limited Access Privilege Programs as fishery management tools. The
guidance is intended to assist the fishery management councils and the
National Marine Fisheries Service regional offices in developing and
implementing LAPPs.

Statement of Need:

The National Oceanic and Atmospheric Administration (NOAA) National
Marine Fisheries Service (NMFS) intends to propose this rulemaking to
create national guidance for the new Limited Access Privilege Program
(LAPP) provisions found in section 303(A) of the Magnuson-Stevens
Fishery Conservation and Management Act (MSA), as amended by the
Magnuson-Stevens Fishery Conservation and Management Reauthorization
Act of 2006 (MSRA). The LAPP provisions provide new incentive-based
options for fisheries management. NMFS has received numerous requests
from constituent groups, Regional Fishery Management Councils
(Councils), and Congress to develop such guidance. This guidance will
assist Councils in developing LAPPs with full consideration of national
perspectives and concerns.

Summary of Legal Basis:

NMFS is proposing these regulations pursuant to its rulemaking
authority under the MSA. 5 U.S.C. 561, 16 U.S.C. 773, et seq., and 16
U.S.C. 1801 et seq.

Alternatives:

Because this rule is presently in the beginning stages of development,
no alternatives have been formulated or analyzed at this time.

Anticipated Cost and Benefits:

Because this rule is presently in the beginning stages of development,
no analysis has been completed at this time to asses the amount that
would be saved or imposed as a result of this rule. However, this rule
does not meet the $100 million annual economic impact threshold and
thus has not been determined to be economically significant under EO
12866.

Risks:

Without this rulemaking, there is a risk that new LAPPs will be
developed that do not meet the requirements of section 303(A), and
therefore may detrimentally impact the fish stocks that they are
designed to manage, the fisheries, or the human environment. Properly
designed LAPPs mitigate environmental risk, ensure fair and equitable
initial allocations, prevent excessive shares, protect the basic
cultural and social framework of the fisheries and fishing communities,
and contribute to public safety and economic prosperity.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 04/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

Agency Contact:
Alan Risenhoover
Director, Office of Sustainable Fisheries
Department of Commerce
National Oceanic and Atmospheric Administration
1315 East-West Highway
Room 13362
Silver Spring, MD 20910
Phone: 301 713-2334
RIN: 0648-AX13

[[Page 71141]]

_______________________________________________________________________

DOC--NOAA

-----------

FINAL RULE STAGE

-----------

24. MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT
REAUTHORIZATION ACT (MSRA) ENVIRONMENTAL REVIEW PROCEDURE

Priority:

Other Significant

Legal Authority:

16 USC 1801

CFR Citation:

50 CFR 700

Legal Deadline:

NPRM, Statutory, July 11, 2007.

Final, Statutory, January 11, 2008.

Abstract:

Section 107 of the Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act (MSRA) (Pub. L. 109-479) requires NOAA Fisheries to
revise and update agency procedures for complying with the National
Environmental Policy Act (NEPA) in context of fishery management
actions. It further requires that NOAA Fisheries consult with the
Council on Environmental Quality (CEQ) and the Regional Fishery
Management Councils (Councils), and involve the public in the
development of the revised procedures. The MSRA provides that the
resulting procedures will be the sole environmental impact assessment
procedure for fishery management actions, and that they must conform to
the time lines for review and approval of fishery management plans and
plan amendments; and integrate applicable environmental analytical
procedures, including the time frames for public input, with the
procedure for the preparation and dissemination of fishery management
plans, plan amendments and other actions taken or approved pursuant to
this Act in order to provide for timely, clear and concise analysis
that is useful to decision makers and the public, reduce extraneous
paperwork, and effectively involve the public.

NOAA Fisheries is currently consulting with the councils, the Public
and CEQ to develop a proposed procedure.

Statement of Need:

In December 2006, the U.S. Congress amended the Magnuson-Stevens Act,
which was signed into law by the President on January 12, 2007 (Public
Law 109-479). Section 107 requires NMFS to better integrate and more
closely align applicable environmental analytical procedures with the
Magnuson Stevens Act's fishery management process.

Congress directed the Secretary, acting through NMFS, and in
consultation with the regional fishery management councils (Councils)
and CEQ, to revise and update agency procedures to comply with NEPA.
Congress stated that the procedures shall:

(A) conform to the [Magnuson-Stevens Act's] time lines for review and
approval of fishery management plans and amendments under this section;
and (B) integrate applicable environmental analytical procedures,
including the time frames for public input, with the procedure for the
preparation and dissemination of fishery management plans, plan
amendments, and other actions taken or approved pursuant to this Act in
order to provide for timely, clear and concise analysis that is useful
to decision makers and the public, reduce extraneous paperwork and
effectively involving the public. 16 U.S.C. 1854(i)(1)(A) and (B).

Moreover, Congress stated that the revised and updated procedures are
to be the sole environmental impact assessment procedure for fishery
management actions (e.g., FMPs, FMP amendments, or other actions taken
or approved pursuant to the Magnuson Stevens Act) used by the Councils
or NMFS. 16 U.S.C. 1854(i)(2). Finally, Congress authorized and
directed NMFS, in cooperation with CEQ and the Councils, to involve the
affected public in the development of the revised procedures.

Summary of Legal Basis:

Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C.
1801 et seq.

Alternatives:

In the process of developing the proposed rule NMFS identified
alternatives for possible fisheries-specific improvements in several
general categories: form of NEPA documentation; roles and
responsibilities of Councils and NMFS in the NEPA process; timing and
flow of process; and other elements (experimental fishing, emergencies,
page limits, and the range of alternatives to be analyzed). The NMFS
preferred alternative as expressed in the proposed rule was developed
after serious consideration of input received through extensive
internal and external outreach. NMFS also considered the ``No Action''
alternative. Under the ``no action'' alternative, NMFS would not issue
a final rule and the environmental review process for Magnuson-Stevens
Act actions would proceed under the status quo.

Anticipated Cost and Benefits:

The modifications to the NEPA procedures for fishery management actions
are intended to allow for more efficient response to fishery management
needs while ensuring continued compliance with NEPA requirements.
Because these provisions would create a new approach to NEPA
compliance, litigation challenges would be likely as implementation
progressed. Additional costs may also be incurred, for example, where
the conflict of interest provisions require use of a more expensive
contractor. However, it is impossible to predict such additional costs,
if any.

Risks:

The risk of not taking action would be that NMFS would not meet its
statutory mandate under the Magnuson-Stevens Act.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 05/14/08 73 FR 27997
NPRM Comment Period End 06/13/08
Final Action 11/00/08

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses, Governmental Jurisdictions, Organizations

Government Levels Affected:

None

[[Page 71142]]

_______________________________________________________________________

DOC--NOAA

25. GUIDANCE FOR ANNUAL CATCH LIMITS AND ACCOUNTABILITY MEASURES TO END
OVERFISHING

Priority:

Other Significant

Legal Authority:

16 USC 1853

CFR Citation:

50 CFR 600.310

Legal Deadline:

None

Abstract:

Section 104(b) of the Magnuson-Stevens Fishery Conservation and
Management Reauthorization Act of 2006 (MSRA), requires that in fishing
year 2010, for fisheries determined by the Secretary to be subject to
overfishing, and in fishing year 2011, for all other fisheries, that
fishery management plans establish annual catch limits (ACLs),
including regulations and annual specifications, at a level such that
overfishing does not occur in a fishery, including measures to ensure
accountability.

The National Marine Fisheries Service intends to prepare guidance on
how to establish adequate ACLs and AMs by revising its National
Standard 1 (NS1) guidelines at 50 CFR 600.310. This is because NS1 of
the Magnuson-Stevens Act states that ``Conservation and management
measures shall prevent overfishing while achieving, on a continuing
basis, the optimum yield from each fishery for the United States
fishing industry.''

Statement of Need:

The Magnuson-Stevens Fishery Conservation and Management Act (MSA), as
amended by the Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act of 2006 (MSRA) (Pub. L. 109-479), requires that
``any fishery management plan which is prepared by any [Fishery
Management] Council, or by the Secretary [of Commerce], with respect to
any fishery, shall-establish a mechanism for specifying annual catch
limits in the plan (including a multiyear plan), implementing
regulations, or annual specifications, at a level such that overfishing
does not occur in the fishery, including measures to ensure
accountability'' (see MSA section 303(a)(15)). NMFS, on behalf of the
Secretary, has decided to revise the National Standard 1 (NS1)
guidelines to include guidance about how to use annual catch limits
(ACLs) and accountability measures (AMs) to end and prevent
overfishing. NMFS believes that revisions to the NS1 guidelines will
assist the Councils and the Secretary in addressing new MSA
requirements, ensure greater consistency in approaches to ending
overfishing and rebuilding stocks, increase efficiency in reviewing
actions and tracking annual management performance, and improve
communication between NMFS and the Councils.

Summary of Legal Basis:

Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C.
1801 et seq.

Alternatives:

No Action. Do not revise the current NS1 guidelines to include guidance
for ACLs and AMs. Councils are statutorily required to implement ACLs
and AMs. Without guidelines, Councils may develop and submit fishery
management plan (FMP) amendments that the Secretary may determine to be
inadequate. Secretarial disapproval of an FMP amendment would be
followed by a request that the Council modify and resubmit their
amendment, making it unlikely that the ACLs and AMs can be implemented
by the first statutory deadline of 2010, for stocks undergoing
overfishing, and 2011, for all other stocks.

Preferred Action. Revise the current NS1 guidelines to include guidance
for ACLs and AMs. Councils and the Secretary are more likely to prepare
adequate ACLs and AMs for ending and preventing overfishing, if NMFS
provides guidance through the NS1 guidelines, than by relying on
statutory language alone. Secretarial approval of FMP amendments that
contain adequate ACLs and AMs for ending overfishing is more likely if
NMFS provides new guidance on NS1, ACLs and AMs. Also, if NMFS provides
such guidance, it is more likely that FMPs will have ACLs and AMs in
place for stocks undergoing overfishing by the first statutory deadline
of 2010, and the second statutory deadline of 2011, for all other
stocks.

Anticipated Cost and Benefits:

There are no economic, social or environmental impacts of the proposed
guideline revisions themselves. When the Councils and/or the Secretary
revise FMPs per the guidelines, they will develop specific management
actions and evaluate the economic, social, and environmental impacts of
those measures at that time.

Risks:

The National Marine Fisheries Service intends to revise the NS1
guidelines to combine requirements for ACLs and AMs, and new rebuilding
plan provisions with current NS1 guidelines that cover topics such as
maximum sustainable yield, optimum yield, and status determination
criteria for overfishing and overfished definitions. NMFS believes that
by combining new guidance about how to use ACLs and AMs to end or
prevent overfishing, along with the various principles already
contained in the MSA such as overfishing, rebuilding overfished stocks,
and achieving optimum yield, the Councils and stakeholders of fisheries
would experience less confusion than they would in the absence of new
guidelines.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 06/09/08 73 FR 32526
Notice 06/26/08 73 FR 36300
Comment Period End 08/13/08 73 FR 47125
NPRM Comment Period End 09/08/08
Comment Period Extended 09/22/08
Final Action 03/00/09

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

None

DOC--NOAA

26. TAKING AND IMPORTING MARINE MAMMALS; U.S. NAVY TRAINING IN
THE HAWAII RANGE COMPLEX

Priority:

Other Significant

[[Page 71143]]

Legal Authority:

16 USC 1361 et seq

CFR Citation:

50 CFR 216

Legal Deadline:

None

Abstract:

The National Marine Fisheries Service (NMFS) is proposing the issuance
of regulations and subsequent Letters of Authorization (LOAs) for the
Navy to take individuals of 24 species of marine mammals incidental to
upcoming Navy training activities to be conducted within the Hawaii
Range Complex, which covers 235,000 nm2 around the Main Hawaiian
Islands, over the course of 5 years. These training activities are
classified as military readiness activities. These training activities
may incidentally take (by Level B Harassment) marine mammals present
within the HRC by exposing them to sound from mid-frequency or high
frequency active sonar (MFAS/HFAS) or to underwater detonations at
levels that NMFS associates with the take of marine mammals. Further,
though we do not expect it to occur, NMFS proposes to authorize the
Navy to take, by injury or mortality, up to 10 individuals each of 10
species over the course of the 5-year period (bottlenose dolphin, Kogia
spp., melon-headed whale, pantropical spotted dolphin, pygmy killer
whale, short-finned pilot whale, striped dolphin, and Cuvier's,
Longman's, and Blainville's beaked whale). Because of the public
interest and likelihood of litigation, this application and proposal is
considered controversial.

Statement of Need:

NMFS has received a request from the U.S. Navy (Navy) for authorization
to take marine mammals incidental to training activities conducted
within the Hawaii Range Complex (HRC) for the period of December 2008
through December 2013. These training activities are classified as
military readiness activities. The Navy states that these training
activities may incidentally take marine mammals present within the HRC
by exposing them to sound from mid-frequency or high frequency active
sonar or to underwater detonations at levels that NMFS associates with
the take of marine mammals. The final regulations would authorize these
activities and govern the take of marine mammals.

The Navy's mission is to maintain, train, and equip combat-ready naval
forces capable of winning wars, deterring aggression, and maintaining
freedom of the seas. Title 10, U.S. Code (U.S.C.) section 5062 directs
the Chief of Naval Operations to train all naval forces for combat. The
Chief of Naval Operations meets that direction, in part, by conducting
at-sea training exercises and ensuring naval forces have access to
ranges, operating areas and airspace where they can develop and
maintain skills for wartime missions and conduct research, development,
test, and evaluation of naval weapons systems. The HRC, where the Navy
has, for more than 40 years, routinely conducted training and major
exercises in the waters around the Hawaiian Islands, is a critical part
of the Navy's mission, especially as it relates to training. Centrally
located in the Pacific Ocean between the west coast of the United
States and the naval stations in the western Pacific, and surrounding
the most isolated islands in the world, the HRC has the infrastructure
(i.e., extensive existing range assets and training capabilities) to
support a large number of forces in a location both remote and under
U.S. control. The range surrounds the major homeport of Naval Station
Pearl Harbor, enabling re-supply and repairs to submarines and surface
ships alike. The isolation of the range offers an invaluable facility
on which to conduct missile testing and training. Able to link with the
U.S. Army's Pohakuloa Training Area, as well as U.S. Air Force and U.S.
Marine Corps bases where aircraft basing and amphibious training may
occur, the HRC provides a superior joint training environment for all
the U.S. armed services and advanced missile testing capability.

Summary of Legal Basis:

Marine Mammal Protection Act, 16 U.S.C. 1371(a)(5)(A).

Alternatives:

A number of alternatives were analyzed in the Draft Environmental
Impact Statement prepared for this action, published in April 2007, and
available at http://www.nmfs.noaa.gov/pr/permits/incidental.htm

Anticipated Cost and Benefits:

Because the Navy is the only entity that will be directly affected by
this rulemaking, NMFS did not perform an analysis of the anticipated
costs and benefits.

Risks:

This rule addresses the risk of take incidental to Navy training
activities. The rule analyzes the risk of such take.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 06/23/08 73 FR 35510
NPRM Comment Period End 07/23/08
Final Action 01/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Federal

Agency Contact:
James H. Lecky
Director, Office of Protected Resources
Department of Commerce
National Oceanic and Atmospheric Administration
1315 East-West Highway
Silver Spring, MD 20910
Phone: 301 713-2332
Fax: 301 427-2520
Email: [email protected]
RIN: 0648-AW86
_______________________________________________________________________

DOC--NOAA

27. TAKING AND IMPORTING MARINE MAMMALS; U.S. NAVY'S ATLANTIC
FLEET ACTIVE SONAR TRAINING (AFAST)

Priority:

Other Significant

Legal Authority:

16 USC 1361

CFR Citation:

50 CFR 216

Legal Deadline:

None

Abstract:

In February 2008, the National Marine Fisheries Service (NMFS) received
an application from the Navy for MMPA Letters of Authorization (LOAs)
to take individuals of 39 species of marine mammals incidental to Navy
Atlantic Fleet Active Sonar Training (AFAST) to be conducted off the
Atlantic Coast of the U.S. and in the Gulf of Mexico over the course of
5 years. These military readiness training activities may incidentally
take marine mammals

[[Page 71144]]

present in the area by exposing them to sound from mid-frequency or
high frequency active sonar (MFAS/HFAS) or to underwater explosive
detonations that may take marine mammals. Further, though we do not
anticipate it to occur, the Navy requests authorization to take, by
injury or mortality, up to 10 total beaked whales over the course of 5
years (any combination of six species).

NMFS participated as a cooperating agency on the Environmental Impact
Statement (EIS) analyzing the effects on the environment from the
Navy's proposed activity. Take of marine mammals will be minimized
through: (1) Powerdown and shutdown of sonar when marine mammals are
detected within ranges where the received sound level is likely to
result in temporary threshold shift (TTS) or injury, (2) the use of
exclusion zones that avoid exposing marine mammals to explosives likely
to result in injury or death of marine mammals, and (3) the
implementation of a Stranding Response Plan for the HRC, which includes
a shutdown provision in and requires NMFS and the Navy develop an MOA
to allow the Navy to assist NMFS in stranding response/investigation
through in-kind services. NMFS is still working with the Navy to
determine if additional protective measures are appropriate.
Additionally, NMFS and the Navy have worked to develop a robust
monitoring plan to help further determine the effects that MFAS/HFAS
have on marine mammals.

Statement of Need:

NMFS has received a request from the U.S. Navy (Navy) for authorization
to take marine mammals incidental to training activities conducted off
the U.S. Atlantic Coast and in the Gulf of Mexico for the period of
January 2009 through January 2014. The final regulations would
authorize these activities and govern the take of marine mammals.

These training activities are classified as military readiness
activities. The Navy states, and NMFS concurs, that these training
activities may incidentally take marine mammals present within the
AFAST Study Area by exposing them to sound from mid-frequency or high
frequency active sonar or to employment of the improved extended echo
ranging (IEER) system. The IEER consists of an explosive source
sonobuoy (AN/SSQ-110A) and an air deployable active receiver (ADAR)
sonobuoy (AN/SSQ-101).

The purpose of the Navy's proposed action is to provide mid- and high-
frequency active sonar and IEER system training for U.S. Navy Atlantic
Fleet ship, submarine, and aircraft crews, as well as to conduct
research, development, testing, and evaluation (RDT&E) activities to
support the requirements of the Fleet Readiness Training Plan (FRTP)
and stay proficient in anti-submarine warfare and mine warfare skills.
The FRTP is the Navy's training cycle that requires naval forces to
build up in preparation for operational deployment and to maintain a
high level of proficiency and readiness while deployed. All phases of
the FRTP training cycle are needed to meet Title 10 requirements.
Specifically, the Navy's need for training and RDT&E is found in Title
10 of the United States Code (U.S.C.), Section 5062 (10 U.S.C. 5062).
Title 10 U.S.C. 5062 requires the Navy to be ``organized, trained, and
equipped primarily for prompt and sustained combat incident to
operations at sea.''

Summary of Legal Basis:

Marine Mammal Protection Act, 16 U.S.C. 1371(a)(5)(A).

Alternatives:

A number of alternatives were analyzed in the Draft Environmental
Impact Statement prepared for this action, published on February 15,
2008, and available at http://www.nmfs.noaa.gov/pr/permits/
incidental.htm

Anticipated Cost and Benefits:

Because the Navy is the only entity that will be directly affected by
this rulemaking, NMFS did not perform an analysis of the anticipated
costs and benefits.

Risks:

This rule addresses the risk of take incidental to Navy training
activities. The rule analyzes the risk of such take.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 10/14/08 73 FR 60754
NPRM Comment Period End 11/13/08
Final Action 01/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Federal

Agency Contact:
James H. Lecky
Director, Office of Protected Resources
Department of Commerce
National Oceanic and Atmospheric Administration
1315 East-West Highway
Silver Spring, MD 20910
Phone: 301 713-2332
Fax: 301 427-2520
Email: [email protected]
RIN: 0648-AW90
_______________________________________________________________________

DOC--NOAA

28. TAKING AND IMPORTING MARINE MAMMALS; U.S. NAVY TRAINING IN
THE SOUTHERN CALIFORNIA RANGE COMPLEX (SOCAL)

Priority:

Other Significant

Legal Authority:

16 USC 1361

CFR Citation:

50 CFR 216

Legal Deadline:

None

Abstract:

On April 1, 2008, NMFS received an application from the Navy requesting
authorization for the take of individuals of 37 species of marine
mammals incidental to upcoming Navy training activities, maintenance,
and research, development, testing, and evaluation (RDT&E) activities
to be conducted within the Southern California Range Complex, which
extends southwest approximately 600 nm in the general shape of a 200-nm
wide rectangle (see the Navy's application), over the course of 5
years. These training activities are classified as military readiness
activities. The Navy states, and NMFS concurs, that these military
readiness activities may incidentally take marine mammals present
within SOCAL by exposing them to sound from mid-frequency or high
frequency active sonar (MFAS/HFAS) or underwater detonations. The Navy
requests authorization to take individuals of 37 species of marine
mammals by Level B Harassment. Further, though they do not anticipate
it to occur, the Navy requests authorization to take, by injury or
mortality, up to 10 beaked whales over the course of the 5-yr
regulations.

[[Page 71145]]

In order to issue an incidental take authorization (ITA) under Section
101(a)(5)(A) of the MMPA, NMFS must set forth the ``permissible methods
of taking pursuant to such activity, and other means of effecting the
least practicable adverse impact on such species or stock and its
habitat, paying particular attention to rookeries, mating grounds, and
areas of similar significance.'' NMFS reviewed the proposed SOCAL
activities and the proposed SOCAL mitigation measures presented in the
Navy's application to determine whether the activities and mitigation
measures were capable of achieving the least practicable adverse effect
on marine mammals. NMFS determined that further discussion was
necessary regarding the potential relationship between the operation of
MFAS/HFAS and marine mammal strandings. NMFS worked with the Navy to
identify additional practicable and effective mitigation measures,
which included a careful balancing of the likely benefit of any
particular measure to the marine mammals with the likely effect of that
measure on personnel safety, practicality of implementation, and impact
on the activity.

Statement of Need:

NMFS has received a request from the U.S. Navy (Navy) for authorization
to take marine mammals incidental to training activities conducted in
the Southern California Range Complex (SOCAL), which extends south and
southwest off the southern California coast, for the period of January
2009 through January 2014. The final regulations would authorize these
activities and govern the take of marine mammals.

These training activities are classified as military readiness
activities. The Navy states, and NMFS concurs, that these military
readiness activities may incidentally take marine mammals present
within SOCAL by exposing them to sound from mid-frequency or high
frequency active sonar or underwater detonations.

The Navy proposes to implement actions within the SOCAL Range Complex
to: Increase training and RDT&E operations from current levels as
necessary to support the Navy-wide training plan, known as the Fleet
Readiness Training Plan (FRTP); accommodate mission requirements
associated with force structure changes and introduction of new weapons
and systems to the Fleet; and implement enhanced range complex
capabilities.

Summary of Legal Basis:

Marine Mammal Protection Act, 16 U.S.C. 1371(a)(5)(A).

Alternatives:

A number of alternatives were analyzed in the Draft Environmental
Impact Statement prepared for this action, published in April 2008, and
available at http://www.nmfs.noaa.gov/pr/permits/incidental.htm

Anticipated Cost and Benefits:

Because the Navy is the only entity that will be directly affected by
this rulemaking, NMFS did not perform an analysis of the anticipated
costs and benefits.

Risks:

This rule addresses the risk of take incidental to Navy training
activities. The rule analyzes the risk of such take.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 10/14/08 73 FR 60836
NPRM Comment Period End 11/13/08
Final Action 01/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Federal

[[Page 71146]]

DEPARTMENT OF DEFENSE (DOD)

Statement of Regulatory Priorities
Background
The Department of Defense (DoD) is the largest Federal Department
consisting of three Military Departments (Army, Navy, and Air Force),
nine Unified Combatant Commands, eighteen Defense Agencies, and twelve
DoD Field Activities. It has 1,385,122 military personnel and 692,176
civilians assigned as of June 30, 2008, and over 200 large and medium
installations in the continental United States, U. S. territories, and
foreign countries. The overall size, composition, and dispersion of
DoD, coupled with an innovative regulatory program, presents a
challenge to the management of the Defense regulatory efforts under
Executive Order 12866 ``Regulatory Planning and Review'' of September
30, 1993.
Because of its diversified nature, DoD is affected by the regulations
issued by regulatory agencies such as the Departments of Energy, Health
and Human Services, Housing and Urban Development, Labor,
Transportation, and the Environmental Protection Agency. In order to
develop the best possible regulations that embody the principles and
objectives embedded in Executive Order 12866, there must be
coordination of proposed regulations among the regulatory agencies and
the affected DoD Components. Coordinating the proposed regulations in
advance throughout an organization as large as DoD is straightforward,
yet a formidable undertaking.
DoD is not a regulatory agency, but occasionally it issues regulations
that have an effect on the public. These regulations, while small in
number compared to the regulating agencies, can be significant as
defined in Executive Order 12866. In addition, some of DoD's
regulations may affect the regulatory agencies. DoD, as an integral
part of its program, not only receives coordinating actions from the
regulating agencies, but coordinates with the agencies that are
affected by its regulations as well.
Overall Priorities
The Department needs to function at a reasonable cost, while ensuring
that it does not impose ineffective and unnecessarily burdensome
regulations on the public. The rulemaking process should be responsive,
efficient, cost-effective, and both fair and perceived as fair. This is
being done in DoD while reacting to the contradictory pressures of
providing more services with fewer resources. The Department of
Defense, as a matter of overall priority for its regulatory program,
fully incorporates the provisions of the President's priorities and
objectives under Executive Order 12866.
Administration Priorities:
1. Rulemakings that Support the Administration's Regulation Agenda to
Streamline Regulations and Reporting Requirements
The Department plans to:
Simplify Defense Federal Acquisition Regulation Supplement
(DFARS) policy relating to acquisition of Government
property, consistent with the recent significant revisions
to the Federal Acquisition Regulation (FAR) part 45.
Implement in the FAR and DFARS the waiver of certain statutory
requirements when acquiring commercially available off-the-
shelf items.
Simplify and clarify the DFARS coverage of multiyear
acquisitions.
Simplify and clarify the DFARS coverage of patents, data, and
copyrights, dramatically reducing the amount of regulatory
text and the number of required clauses.
Improve the contract closeout process.
2. Regulations of Particular Interest to Small Business
Of interest to Small Businesses are regulations to:
Revise the FAR to clarify the relationship among small
business programs.
Revise the FAR to implement changes in the HUBZone Program, in
accordance with Small Business Administration regulations.
Add a procurement goal for Native Hawaiian-serving
institutions and Alaska Native-serving institutions.
3. Regulations with International Effects or Interest
Of international effect or interest are regulations to:
Provide authority to limit competition in the acquisition of
products or services, other than small arms, acquired in
support of operations in Iraq or Afghanistan.
Revise the DFARS to implement the pending Defense Procurement
Trade Cooperation Treaties with the United Kingdom and
Australia, upon ratification.
Remove from the FAR the prohibition of imports from North
Korea.
Revise the FAR and DFARS list of least developed countries
that are designated countries under the Trade Agreements
Act to add Liberia and remove Cape Verde.
4. Suggestions From the Public for Reform-Status of DoD Items
Rulemaking Actions in Response to Public Nominations
The Army Corps of Engineers has not undertaken any rulemaking actions
in response to the public nominations submitted to the Office of
Management and Budget in 2001, 2002, or 2004. Those nominations were
discussed in:
Making Sense of Regulation: 2001 Report to Congress on the
Costs and Benefits of Regulations and Unfunded Mandates on
State, Local, and Tribal Entities.
Stimulating Smarter Regulation: 2002 Report to Congress on the
Costs and Benefits of Regulations and Unfunded Mandates on
State, Local, and Tribal Entities.
Progress in Regulatory Reform: 2004 Report to Congress on the
Costs and Benefits of Federal Regulations and Unfunded
Mandates on State, Local, and Tribal Entities.
Specific DoD Priorities:
For this Regulatory Plan, there are four specific DoD priorities, all
of which reflect the established regulatory principles. In those areas
where rulemaking or participation in the regulatory process is
required, DoD has studied and developed policy and regulations that
incorporate the provisions of the President's priorities and objectives
under the Executive Order.
DoD has focused its regulatory resources on the most serious
environmental, health, and safety risks. Perhaps most significant is
that each of the priorities described below promulgates regulations to
offset the resource impacts of Federal decisions on the public or to
improve the quality of public life, such as those regulations
concerning civil functions of the U.S. Army Corps of Engineers,
acquisition, health affairs, and the National Security Personnel
System.
1. Regulatory Program of the U.S. Army Corps of Engineers

[[Page 71147]]

Army Regulatory Program's Compliance with the National Historic
Preservation Act
In 1990, the Army Corps of Engineers published as appendix C of 33 CFR
part 325, a rule that governs compliance with the National Historic
Preservation Act (NHPA) for the Army's Regulatory Program. Over the
years, there have been substantial changes in policy, and the NHPA was
amended in 1992, leading to the publication in December 2000 of new
implementing regulations at 36 CFR part 800, issued by the Advisory
Council on Historic Preservation (ACHP). Those regulations were amended
on July 6, 2004. The ACHP's regulations allow Federal agencies to
utilize alternate procedures in lieu of the regulations at 36 CFR part
800. In 2005 and 2007, the Corps Headquarters issued supplemental
guidance on compliance with the NHPA while efforts were underway to
revise or replace Appendix C. To solicit public comment on the
appropriate mechanism for revising the Army Regulatory Program's
process for considering effects to historic properties resulting from
activities authorized by DA permits, the Army Corps of Engineers
published an Advance Notice of Proposed Rulemaking (ANPRM) to obtain
the views of interested parties. After reviewing the comments received
in response to the ANPRM, the Army Corps of Engineers held facilitated
stakeholder meetings to determine the best course of action for
revising its procedures to comply with the requirements of Section 106
of the National Historic Preservation Act. The Corps also held
additional focus group meetings facilitated by our eight division
offices to gather input from federally recognized tribes on their
recommendations concerning how government-to-government consultation
could occur. After reviewing those recommendations, the Corps developed
a consultation plan, and is currently in the process of conducting
government-to-government consultation with federally recognized tribes.
Also, our division offices have solicited information on topics that
any new alternative procedure should address.
2. Defense Procurement and Acquisition Policy
The Department of Defense continuously reviews the DFARS and continues
to lead Government efforts to:
Establish a new restriction on acquisition of specialty metals
under 10 U.S.C. 2533b, as amended by the FY08 National
Defense Authorization Act. Provides exemption from domestic
source requirements for all electronics; commercially
available off-the-shelf items, except high performance
magnets and fasteners; for fasteners and commercial
derivative military articles when using market basket
approach; minimal amounts of specialty metals; and,
national security requirements.
Revise the FAR and the DFARS to require contractor personnel
who are authorized to accompany the U.S. Armed Forces
deployed outside the United States or are performing
outside the United States in a theater of operations during
contingency or certain other operations, or at a diplomatic
or consular mission to report human rights violations, as
well as kidnapping and sexual assault violations. Implement
the DoD Law of War Program, requiring contractors to be
trained in the Law of War and to report violations.
Revise the FAR to make requirements for Government contractor
internal control systems more similar of U.S. Sentencing
Guidelines; mandate timely disclosure of civil or criminal
wrongdoing related to the award, performance, or closeout
of a Government contract or subcontract thereunder; mandate
full cooperation with Government investigators; make
failure to timely disclose significant overpayments or
violations of civil or criminal wrongdoing a cause for
suspension/debarment.
Revise the FAR to address service contractor employee personal
conflicts of interest and organizational conflicts of
interest and limit contractor access to information.
Revise the FAR to require contractors to verify, through the
use of the E-Verify System, that certain of their employees
are eligible to work in the United States.
Enhance competition by:
-- Limiting the length of contracts awarded non-competitively under
``unusual and compelling urgency'' circumstances to the minimum
contract period necessary to meet requirements, not to exceed one year,
unless approved by the head of the contracting activity.
-- Requiring publication of notices on FedBizOpps of all sole source
task or delivery orders in excess of the simplified acquisition
thresholds that are placed against multiple award contracts or multiple
award blanket purchase agreements.
-- Requiring post-award debriefings be provided, as requested, to
disappointed offerors on task and delivery orders in excess of $5
million (including options).
-- Requiring public disclosure of justification and approval documents
for noncompetitive contracts.
Providing enhanced competition for task and delivery order
contracts and additional market research before awarding a
task or delivery order in excess of the simplified
acquisition threshold.
3. Health Affairs, Department of Defense
The Department of Defense is able to meet its dual mission of wartime
readiness and peacetime health care by operating an extensive network
of medical treatment facilities. This network includes DoD's own
military treatment facilities supplemented by civilian health care
providers, facilities, and services under contract to DoD through the
TRICARE program. TRICARE is a major health care program designed to
improve the management and integration of DoD's health care delivery
system. The program's goal is to increase access to health care
services, improve health care quality, and control health care costs.
The TRICARE Management Activity plans to submit the following rules:
Final rule on CHAMPUS/TRICARE: Inclusion of TRICARE Retail
Pharmacy Program in Federal Procurement of Pharmaceuticals.
This rule implements changes directed by the enactment of
National Defense Authorization Act for Fiscal Year 2008
(NDAA-08), Pub. L. 110-181, to the extent necessary to
ensure pharmaceuticals, paid for by the DoD that are
provided by pharmacies under the TRICARE Retail Pharmacy
Program (TRRx) to eligible beneficiaries, are subject to
the pricing standards under section 8126 of title 38 United
States Code. This is an economically significant rule. The
proposed rule was published July 25, 2008 (73 FR 43394).
The comment period ends September 23, 2008.
Proposed rule on CHAMPUS/TRICARE: Pharmacy Benefits Program.
This rule implements several changes enacted by the John
Warner National Defense Authorization Act for Fiscal Year
2007 (NDAA-07), Pub. L. 109-364, and accompanying
recommendations of the Conference Committee, set forth in
H. Conf. Rept. 109-702.

[[Page 71148]]

Specifically, this rule recommends changes to adopt state-
of-the-art pharmacy benefit management practices to
encourage greater use of the TRICARE Mail Order Pharmacy
(TMOP) Program, generic drugs, formulary drugs, and over-
the-counter (OTC) drugs. This rule will not affect retail
pharmacy copayment amounts (currently under a statutory
cap). The proposed rule should publish before the end of
2008.
Final rule on TRICARE: Relationship Between the TRICARE
Program and Employer-Sponsored Group Health Coverage. This
rule implements section 1097c of title 10, United States
Code. This law prohibits employers from offering incentives
to TRICARE-eligible employees to not enroll, or to
terminate enrollment, in an employer-offered Group Health
Plan (GHP) that is or would be primary to TRICARE.
Cafeteria plans that comport with section 125 of the
Internal Revenue Code will be permissible so long as the
plan treats all employees the same and does not illegally
take TRICARE eligibility into account. This is an
economically significant rule. The proposed rule was
published March 28, 2008 (73 FR 16612). The comment period
ended May 27, 2008.
Final rule on TRICARE: Outpatient Prospective Payment System
(OPPS). The rule implements a prospective payment system
for hospital outpatient services similar to that furnished
to Medicare beneficiaries, as set forth in section 1833(t)
of the Social Security Act. The rule also recognizes
applicable statutory requirements and changes arising from
Medicare's continuing experience with its system, including
certain related provisions of the Medicare Prescription
Drug, Improvement, and Modernization Act of 2003. While
TRICARE intends to remain as true as possible to Medicare's
basic OPPS methodology (i.e., adoption and updating of the
Medicare data elements used in calculating the prospective
payment amounts), there will be some significant deviations
required to accommodate the uniqueness of the TRICARE
program. These deviations have been designed to accommodate
existing TRICARE benefit structure and claims processing
procedures implemented under the TRICARE Next Generation
Contracts (T-NEX) while at the same time eliminating any
undue financial burden to TRICARE Prime, Extra and Standard
beneficiary populations. The proposed rule was published
April 1, 2008 (73 FR 17271). The comment period ended June
2, 2008.
4. National Security Personnel System, Department of Defense
On November 1, 2005 (70 FR 66115-66164), the Department of Defense and
the Office of Personnel Management (OPM) issued final regulations to
establish the National Security Personnel System (NSPS), a human
resources management system, within DoD, as authorized by the National
Defense Authorization Act (Pub. L. 108-136, November 24, 2003). These
regulations govern basic pay, staffing, classification, performance
management, labor relations, adverse actions, and employee appeals.
These regulations are designed to ensure that the DoD's human resources
management and labor relations systems align with its critical mission
requirements and protect the civil service rights of its employees.
Subsequent legislation in the National Defense Authorization Act (Pub.
L. 110-181, January 28, 2008) require revision of the NSPS regulation.
DoD and OPM published a proposed rule on May 22, 2008 (73 FR 29882-
29927). The period for public comment ended on June 23, 2008. The final
rule should be published by the end of 2008.
_______________________________________________________________________

DOD--Office of Assistant Secretary for Health Affairs (DODOASHA)

-----------

PROPOSED RULE STAGE

-----------

29. CIVILIAN HEALTH AND MEDICAL PROGRAM OF THE UNIFORMED
SERVICES (CHAMPUS); TRICARE PHARMACY BENEFITS PROGRAM

Priority:

Other Significant

Legal Authority:

5 USC 301; 10 USC ch 55

CFR Citation:

32 CFR 199

Legal Deadline:

None

Abstract:

This rule implements several changes enacted by the John Warner
National Defense Authorization Act for Fiscal Year 2007 (NDAA-07), Pub.
L. 109-364, and accompanying recommendations of the Conference
Committee, set forth in H. Conf. Rept. 109-702. Specifically, this rule
recommends changes to adopt state-of-the-art pharmacy benefit
management practices to encourage greater use of the TRICARE Mail Order
Pharmacy (TMOP) Program, generic drugs, formulary drugs, and over-the-
counter (OTC) drugs. The rule would not affect retail pharmacy
copayment amounts (currently under a statutory cap).

Statement of Need:

This rule implements congressionally directed changes to adopt state-
of-the art pharmacy benefit management practices to encourage greater
use of the TRICARE Mail Order Pharmacy Program (TMOP), generic drugs,
formulary drugs, and over-the-counter drugs.

Summary of Legal Basis:

This rule implements several changes enacted by the John Warner
National Defense Authorization Act for Fiscal Year 2007, Pub. L. 109-
364, and accompanying recommendations of the Conference Committee, set
forth in H. Conf. Rept. 109-702. Legal authority includes 10 U.S.C.
Sec. 1074g.

Alternatives:

The Department is initiating the changes consistent with Congressional
direction and the recommendations from the Task Force on the Future of
Military Health Care. Current statutory restrictions, including a cap
on retail pharmacy co-payments, limit available alternatives.

Anticipated Cost and Benefits:

The rule is part of an overall strategy to encourage the use of value-
based pharmaceutical agents and cost-effective dispensing venues.
Allowing beneficiaries to receive non-formulary pharmaceutical agents
through only the TMOP allows the Department to reinforce the
encouragement to use more cost-effective pharmaceutical agents. The
overall effect of the rule is expected to be a degree of moderation in
the rapid growth of the TRICARE Pharmacy Benefits Program.

Risks:

The primary risk this rule seeks to address is what the GAO recently
called ``the fiscal sustainability of'' DoD's pharmacy benefits
program. Pharmacy benefits, particularly retail pharmacy benefits,
represent the segment of the TRICARE program that has experienced the
most uncontrolled increase in costs. The GAO said retail pharmacy costs
from FY-2000 to FY-

[[Page 71149]]

2006 rose ``almost ninefold from $455 million to $3.9 billion.'' The
rule will address this problem, to an extent, by encouraging greater
use of more cost-effective drugs, particularly formulary drugs, generic
drugs, and, when appropriate, over-the-counter drugs.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 12/00/08

Regulatory Flexibility Analysis Required:

Government Levels Affected:

None

Additional Information:

The TRICARE Retail Pharmacy rule is now being reported as RIN 0720-
AB22.

Agency Contact:
Captain William Blanche
Department of Defense
Office of Assistant Secretary for Health Affairs
1200 Defense Pentagon
Washington, DC 20301-1200
Phone: 703 681-2890
Email: [email protected]
Related RIN: Previously reported as 0720-AB22
RIN: 0720-AB27
_______________________________________________________________________

DOD--DODOASHA

-----------

FINAL RULE STAGE

-----------

30. TRICARE: RELATIONSHIP BETWEEN THE TRICARE PROGRAM AND EMPLOYER-
SPONSORED GROUP HEALTH COVERAGE

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

5 USC 301; 10 USC ch 55

CFR Citation:

32 CFR 199

Legal Deadline:

Other, Statutory, January 8, 2008.

John Warner National Defense Authorization Act for Fiscal Year 2007
directed the Secretary of Defense to report to the House and Senate
Armed Services committees on the treatment of cafeteria plans and non-
TRICARE exclusive employer-provided incentives under the Department's
implementation of section 707 of the Act regarding employer-sponsored
group health care plans.

Abstract:

This rule implements section 1097c of title 10, United States Code.
This law prohibits employers from offering incentives to TRICARE-
eligible employees to not enroll, or to terminate enrollment, in an
employer-offered Group Health Plan (GHP) that is or would be primary to
TRICARE. Cafeteria plans that comport with section 125 of the Internal
Revenue Code will be permissible so long as the plan treats all
employees the same and does not illegally take TRICARE eligibility into
account.

Statement of Need:

Section 707 of the 2007 National Defense Authorization Act, directed
the Department of Defense to establish section 1097c for addition to
Chapter 55 of title 10, Untied States Code. Section 1097c will act to
prohibit employers from offering incentives to TRICARE-eligible
employees not to enroll, or to terminate enrollment, in an employer-
offered Group Health Plan (GHP). Many employers, including state and
local governments, have begun to offer their employees who are TRICARE
eligible a TRICARE Supplement as an incentive not to enroll in the
employer's primary GHP. These actions shift thousands of dollars of
annual health costs per employee to the Defense Department, draining
resources from higher national security priorities. This is what 10
U.S.C. 1097c is designed to stop.

Summary of Legal Basis:

The National Defense Authorization Act (NDAA) for Fiscal Year 2007,
directed the Secretary of Defense to report to the House and Senate
Armed Services committees on the treatment of cafeteria plans and non-
TRICARE exclusive employer-provided incentives under the Department's
implementation of section 707 of the Act regarding employer sponsored
group health care plans. As enacted, section 707 added to title 10,
United States Code, section 1097c, which extends to TRICARE the same
prohibition on offering financial or other incentives not to enroll in
a Group Health Plan (GHP) that currently applies to Medicare under
section 1862(b)(3)(C) of the Social Security Act (42 U.S.C.
1395y(b)(3)(C)).

Alternatives:

This rule complies with a Congressional mandate. No other alternatives
were developed.

Anticipated Cost and Benefits:

There are no additional or anticipated Government cost associated with
prohibiting employers from offering incentives to TRICARE-eligible
employees not to enroll in an employer-offered GHP. There are no
additional or anticipated cost for current beneficiaries enrolled in
TRICARE. Any additional cost associated with this rule will be borne
entirely by the employers who are currently offering such incentives
and placing their current health cost on the Defense Department.

Risks:

There is no anticipated risk accompanying this action.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 03/28/08 73 FR 16612
NPRM Comment Period End 05/27/08
Final Action 10/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Undetermined

Agency Contact:
Jody Donehoo
Department of Defense
Office of Assistant Secretary for Health Affairs
1200 Defense Pentagon
Washington, DC 20301
Phone: 703 681-0039
RIN: 0720-AB17
_______________________________________________________________________

DOD--DODOASHA

31. TRICARE: OUTPATIENT HOSPITAL PROSPECTIVE PAYMENT SYSTEM (OPPS)

Priority:

Other Significant

Legal Authority:

5 USC 301; 10 USC ch 55

CFR Citation:

32 CFR 199

[[Page 71150]]

Legal Deadline:

None

Abstract:

This rule implements a prospective payment system for hospital
outpatient services similar to that furnished to Medicare
beneficiaries, as set forth in section 1833(t) of the Social Security
Act. The rule also recognizes applicable statutory requirements and
changes arising from Medicare's continuing experience with this system
including certain related provisions of the Medicare Prescription Drug,
Improvement, and Modernization Act of 2003.

Statement of Need:

This final rule implements the TRICARE Hospital Outpatient Prospective
Payment System (OPPS) as mandated under section 707 of the National
Defense Authorization Act of Fiscal Year 2002 (NDAA-02), Pub. L. 107-
107 (December 28, 2001), changing the statutory authorization in 10
U.S.C. 1079(j)(2) to provide that TRICARE payment methods for
institutional care be determined, to the extent practicable, in
accordance with the same reimbursement rules used by Medicare. Under
the above Congressional mandate, TRICARE will be paying for hospital
outpatient services in accordance with the provisions outlined in
section 1833(t) of the Social Security Act and its implementing
Medicare regulation (42 CFR Sec. 419).

Summary of Legal Basis:

There is a statutory basis for this final rule: Section 707 of the
National Defense Authorization Act of Fiscal Year 2002 (NDAA-02), Pub.
L. 107-107.

Alternatives:

This is a statutory change; consequently, no alternatives were
considered.

Anticipated Cost and Benefits:

Anticipated costs of implementation are $20 million. Anticipated cost-
savings for first full year of implementation are $80 - $90 million.

Risks:

Failure to publish this final rule would result in noncompliance with a
statutory provision--the NDAA-02/Public Law 107-107.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 04/01/08 73 FR 17271
NPRM Comment Period End 06/02/08
Final Action 12/00/08

Regulatory Flexibility Analysis Required:

Government Levels Affected:

None

Agency Contact:
David E. Bennett
Department of Defense
Office of Assistant Secretary for Health Affairs
1200 Defense Pentagon
Washington, DC 20301
Phone: 303 676-3494
Email: [email protected]
RIN: 0720-AB19
_______________________________________________________________________

DOD--DODOASHA

32. CHAMPUS/TRICARE: INCLUSION OF TRICARE RETAIL PHARMACY PROGRAM IN
FEDERAL PROCUREMENT OF PHARMACEUTICALS

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

5 USC 301; 10 USC ch 55

CFR Citation:

32 CFR 199

Legal Deadline:

None

Abstract:

Section 703 of the National Defense Authorization Act for Fiscal Year
2008 (NDAA-08) (Public Law 110-181) states with respect to any
prescription filled on or after the date of enactment of the NDAA, the
TRICARE retail pharmacy program (TRRx) shall be treated as an element
of the DoD for purposes of procurement of drugs by Federal agencies
under section 8126 of title 38, United States Code (U.S.C.), to the
extent necessary to ensure pharmaceuticals paid for by the DoD that are
provided by network retail pharmacies under the program to eligible
covered beneficiaries are subject to the pricing standards in such
section 8126. NDAA-08 was enacted on January 28, 2008. The statute
requires implementing regulations. This proposed rule is to implement
section 703.

Statement of Need:

This proposed rule implements changes as directed by the enactment of
NDAA for FY08 (January 28, 2008) to the extent necessary to ensure
pharmaceuticals paid for by the DoD that are provided by pharmacies
under the TRICARE Retail Pharmacy Program (TRRx) to eligible
beneficiaries are subject to the pricing standards under section 8126
of title 38 United States Code.

Summary of Legal Basis:

This proposed rule implements Section 703 of the National Defense
Authorization Act for Fiscal Year 2008 (NDAA-08) (Public Law 110-181).

Alternatives:

The Department is initiating the proposed changes consistent with clear
congressional direction.

Anticipated Cost and Benefits:

This regulation will extend federal ceiling prices (FCP) to eligible
prescriptions dispensed through the TRICARE retail pharmacy network.
This change represents hundreds of millions of dollars annually in
government savings while remaining transparent to beneficiaries and the
retail pharmacy network. The cost to administer this program is very
small compared to the cost savings it will generate.

Risks:

This regulation helps to mitigate the long term financial risks
associated with sustaining the TRICARE pharmacy benefit. By obtaining
consistent and favorable pricing at the retail, mail, and MTF points of
service, the overall growth in program costs should slow. Price
normalization among military treatment facilities, TRICARE Mail Order
Pharmacy (TMOP), and the TRRx is possible; maintaining a competitive
Uniform Formulary process mitigates this risk. We believe there is
sufficient competition among pharmaceutical manufacturers to keep
acquisition costs low for all points of service available through the
TRICARE Pharmacy Benefits Program.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 07/25/08 73 FR 43394
NPRM Comment Period End 09/23/08
Final Action 12/00/08

Regulatory Flexibility Analysis Required:

[[Page 71151]]

Government Levels Affected:

None

[[Page 71152]]

DEPARTMENT OF EDUCATION (ED)

Statement of Regulatory and Deregulatory Priorities
General
We support States, local communities, institutions of higher education,
and others in improving education Nationwide and in helping to ensure
that all Americans receive a quality education. Our roles include
providing leadership and financial assistance for education to
agencies, institutions, and individuals in situations in which there is
a national interest, such as in helping all students to reach grade-
level standards in reading/language arts and mathematics; assisting
students in their pursuit of postsecondary education; monitoring and
enforcing the implementation of Federal civil rights laws in programs
and activities that receive Federal financial assistance; and
supporting research, evaluation, and dissemination of findings to
improve the quality of education.
We administer programs that affect nearly every American during his or
her life. For the 2008-2009 school year, we project that about 50
million students will attend some 97,000 elementary and secondary
schools in approximately 14,000 public school districts, and that about
18.3 million students will enroll in degree-granting postsecondary
schools.
We have worked effectively with a broad range of interested parties and
the general public to develop regulations, guidance, technical
assistance, and approaches to compliance. In developing and
implementing regulations, we are committed to working closely with
affected persons and groups, including parents, students, and
educators; State, local, and tribal governments; and neighborhood
groups, schools, colleges, rehabilitation service providers,
professional associations, advocacy organizations, businesses, and
labor organizations.
In particular, we continue to seek greater and more useful public
participation in our rulemaking activities through the use of
transparent and interactive rulemaking procedures and new technologies.
If we determine that the development of regulations is necessary, we
seek public participation at all key stages in the rulemaking process.
We invite the public to submit comments on all proposed regulations
through the Internet or by regular mail.
To facilitate the public's involvement, we participate in the Federal
Docketing Management System (FDMS), a new, electronic single
Governmentwide access point (www.regulations.gov) that enables the
public to search, read, download, and submit comments on different
types of Federal regulatory documents. In the case of our Department,
this system provides the public with the opportunity to file a comment
electronically on any notice of proposed rulemaking or interim final
regulations open for comment, as well as read and print any supporting
regulatory documents. In addition, FDMS enables the public to read
comments filed by other members of the public during the public comment
period and to respond to those comments.
We are continuing our efforts to streamline information collections,
reduce the burden on information providers involved in our programs,
and make information maintained by us easily accessible to the public.
No Child Left Behind
We look forward to congressional reauthorization of the Elementary and
Secondary Education Act of 1965, and to building on the results of its
most recent reauthorization through the No Child Left Behind Act of
2001. No Child Left Behind has increased accountability for States,
school districts, and schools; provided greater choice for parents and
students, particularly those students attending low-performing schools;
provided more flexibility for States and local educational agencies in
the use of Federal education dollars; and placed a stronger emphasis on
using scientifically based research to guide instruction, especially in
reading for our youngest children.
As necessary, we intend to amend current regulations to reflect the
reauthorization of this statute.
Higher Education
The Higher Education Opportunity Act (P.L. 110-135), signed by the
President on August 14, 2008, amends and extends the Higher Education
Act of 1965 (HEA). This major piece of legislation made a wide variety
of changes to the student financial aid and institutional aid programs
under the HEA, including--
Extensive new reporting requirements and consumer disclosures,
particularly regarding student loan terms and conditions;
A new ``Adjunct Teacher Corps'' that would draw on the skills
of well-qualified individuals outside of the public
education system to meet specialized teaching needs in
secondary schools;
A new maintenance-of-effort requirement regarding State
funding of higher education;
A new appeals process under which TRIO applicants may appeal
scoring decisions, and new requirements regarding the
methodologies that ED may use to evaluate the Upward Bound
and other TRIO programs;
The availability of two Pell Grants in one year to students
who are attending an institution of higher education year-
round, and an 18-semester overall limitation on a student's
eligibility to receive Pell Grants;
Changes undoing ED's regulations regarding mandatory
assignment to ED of defaulted Federal Perkins Loans held by
institutions that have been unable to collect on those
loans for seven or more years;
Several time-sensitive corrections to changes made by the
Ensuring Continuing Access to Student Loans Act of 2008
(P.L. 110-227, ECASLA) to the eligibility and deferment
requirements for PLUS Loans, loan limits for unsubsidized
student loans, and eligibility requirements for the
Academic Competitiveness Grant and National SMART Grant
programs; and
Changes to the so-called ``90-10'' rule (which requires a
proprietary institution of higher education participating
in the Title IV student aid programs to derive at least 10
percent of its total revenues from non-Title IV sources).
This legislation also creates more than 60 new programs, many of which
will require implementing regulations if Congress appropriates funds
for them.
Unless subject to an exemption, regulations to carry out changes to the
student financial aid programs under Title IV of the HEA must generally
go through the negotiated rulemaking process. In the coming year we
will be conducting negotiated rulemaking to implement the law's new
requirements.
Individuals with Disabilities Education Act
We plan to issue later this year final regulations that would address
issues in part B of the Individuals with Disabilities Education Act
(IDEA) that were not covered by final regulations issued in August
2006. We also plan to issue later this year final regulations
implementing changes to the part C program--the early intervention

[[Page 71153]]

program for infants and toddlers with disabilities -- under the IDEA.
Student Privacy
In March 2008, we issued a notice of proposed rulemaking to amend the
regulations governing education records maintained by educational
agencies and institutions under section 444 of the General Education
Provisions Act, which is also known as the Family Educational Rights
and Privacy Act of 1974, as amended. We plan to issue later this fall
final regulations addressing several key privacy issues, including
permissible disclosures of student information in health and safety
emergencies, disclosures to contractors and other outside parties in
connection with the outsourcing of institutional services and
functions, and redisclosures by State and Federal officials.
Other Potential Regulatory Activities
Congress is considering legislation to reauthorize the Adult Education
and Family Literacy Act (AEFLA) (Title II of the Workforce Investment
Act of 1998)--including the National Institute for Literacy--and the
Rehabilitation Act of 1973. The Administration is working with Congress
to ensure that any changes to these laws improve and streamline the
State grant and other programs providing assistance for adult basic
education under the AEFLA and for vocational rehabilitation and
independent living services for persons with disabilities under the
Rehabilitation Act of 1973, and that they provide greater
accountability in the administration of programs under both statutes.
Changes to our regulations may be necessary as a result of the
reauthorization of these two statutes.
During the coming year, other regulations may be necessitated by
legislation or programmatic experience. In developing and promulgating
any additional regulations we will be guided by the following
Principles for Regulating:
Principles for Regulating
Our Principles for Regulating determine when and how we will regulate.
Through consistent application of the following principles, we have
eliminated unnecessary regulations and identified situations in which
major programs could be implemented without any regulations or with
only limited regulations.
We will regulate only if regulating improves the quality and equality
of services to our customers. We will regulate only if absolutely
necessary and then in the most flexible, most equitable, and least
burdensome way possible.
In deciding when to regulate, we consider:
Whether regulations are essential to promote quality and
equality of opportunity in education.
Whether a demonstrated problem cannot be resolved without
regulation.
Whether regulations are necessary to provide a legally binding
interpretation to resolve ambiguity.
Whether entities or situations to be regulated are so diverse
that a uniform approach through regulation does more harm
than good.
In deciding how to regulate, we are mindful of the following
principles:
Regulate no more than necessary.
Minimize burden to the extent possible, and promote multiple
approaches to meeting statutory requirements when possible.
Encourage federally funded activities to be coordinated with
State and local reform activities.
Ensure that benefits justify costs of regulation.
To the extent possible, establish performance objectives
rather than specify compliance behavior.
Encourage flexibility to the extent possible so institutional
forces and incentives achieve desired results.
_______________________________________________________________________

ED--Office of Postsecondary Education (OPE)

-----------

PROPOSED RULE STAGE

-----------

33. TITLE IV AND TITLE II OF THE HIGHER EDUCATION ACT OF 1965,
AS AMENDED

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

20 USC 1098a

CFR Citation:

34 CFR Chapter VI

Legal Deadline:

None

Abstract:

The Secretary will propose regulations to implement the student
financial aid and other provisions of Title IV, and possibly Title II,
of the Higher Education Act of 1965, as amended by the Higher Education
Opportunity Act of 2008, P.L. 110-315.

Statement of Need:

These regulations are needed to implement certain provisions of the
Higher Education Opportunity Act of 2008, P.L. 110-315, which amended
the Higher Education Act of 1965.

Summary of Legal Basis:

These regulations are proposed to implement provisions of the Higher
Education Opportunity Act of 2008, P.L. 110-315.

Alternatives:

To be determined.

Anticipated Cost and Benefits:

To be determined.

Risks:

None.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 07/00/09

Regulatory Flexibility Analysis Required:

Undetermined

Government Levels Affected:

Undetermined

Federalism:

Undetermined

Agency Contact:
David Bergeron
Department of Education
Office of Postsecondary Education
Room 8022
1990 K Street NW
Washington, DC 20006
Phone: 202 502-7815
RIN: 1840-AC95
BILLING CODE 4000-01-S

[[Page 71154]]

DEPARTMENT OF ENERGY (DOE)

Statement of Regulatory and Deregulatory Priorities
The Department of Energy (Department or DOE) makes vital contributions
to the Nation's welfare through its activities focused on improving
national security, energy supply, energy efficiency, environmental
remediation, and energy research. The Department's mission is to:
Promote dependable, affordable and environmentally sound
production and distribution of energy;
Foster energy efficiency and conservation;
Provide responsible stewardship of the Nation's nuclear
weapons;
Clean up the Department's sites and facilities, which include
sites dating back to the Manhattan Project;
Lead in the physical sciences and advance the biological,
environmental and computational sciences; and
Provide premier instruments of science for the Nation's
research enterprise.
The Department's regulatory activities are essential to achieving its
critical mission and to implementing major initiatives of the
President's National Energy Policy. Among other things, the Regulatory
Plan (Plan) and the Unified Agenda of Federal Regulatory and
Deregulatory Actions (Agenda) contain the rulemakings the Department
will be engaged in during the coming year to fulfill the Department's
commitment to meeting deadlines for issuance of energy conservation
standards and related test procedures. The Plan and Agenda also reflect
the Department's continuing commitment to cut costs, reduce regulatory
burden, and increase responsiveness to the public.
Energy Efficiency Program for Consumer Products and Commercial
Equipment
The Energy Policy and Conservation Act (EPCA) requires DOE to set
energy efficiency standards for residential appliances and commercial
equipment at levels that achieve the maximum improvement in energy
efficiency that is both technologically feasible and economically
justified. Standards already in place for residential products are
expected to save consumers nearly $93 billion by 2020, and to save
enough energy to operate all U.S. homes for approximately two years.
On January 31, 2006, the Department released a schedule for setting new
energy efficiency standards that will save American consumers billions
of dollars in energy costs. The five-year plan outlined how DOE would
address the energy efficiency standards rulemaking backlog and meet the
statutory requirements established in EPCA and the Energy Policy Act of
2005 (EPACT 2005). The 2006 plan has been updated to address energy
efficiency standards requirements included in the Energy Independence
and Security Act of 2007 (EISA 2007). The plan provides for the
issuance of one rulemaking for each of the 18 products in the backlog.
The plan also provides for setting energy efficiency standards for
products required under EPACT 2005 and EISA 2007.
The overall plan for implementing the schedule is contained in the
periodic Report to Congress required under section 141 of EPACT 2005.
The plan was last updated in August 2008. All of the reports are posted
at:
http://www.eere.energy.gov/buildings/appliance--standards/schedule--
setting.html.
The report identifies all products for which DOE has missed the
deadlines established in EPCA (42 U.S.C. Sec. 6291 et seq.) and the
Department's plan for expeditiously prescribing new or amended
standards. Information and timetables concerning these actions can also
be found in the Department's Agenda, which is posted online at:
www.reginfo.gov.
Estimate of Combined Aggregate Costs and Benefits
The regulatory action on energy efficiency standards for fluorescent
and incandescent reflector lamps is in the early stages of rulemaking,
and the Department has not yet proposed candidate standards levels for
the covered products or equipment. Consequently, DOE cannot provide an
estimate of combined aggregate costs and benefits for these actions.
However, and in compliance with law, the Department will issue
standards that provide the maximum energy savings that are
technologically feasible and economically justified. Estimates of
energy savings will be provided when DOE issues the notice of proposed
rulemaking. The notice of proposed rulemaking for commercial
refrigeration equipment contains standard levels that, if adopted,
would result in energy savings of .83 quadrillion BTUs (quads) of
energy over the course of 30 years (73 FR 50071). The standard levels
for residential electric and gas ranges and ovens, microwave ovens, and
commercial clothes washers, set forth in the notice of proposed
rulemaking (73 FR 62034), if adopted, would result in energy savings of
.75 quads over 30 years.
_______________________________________________________________________

DOE--Energy Efficiency and Renewable Energy (EE)

-----------

PROPOSED RULE STAGE

-----------

34. ENERGY EFFICIENCY STANDARDS FOR FLUORESCENT AND INCANDESCENT
REFLECTOR LAMPS

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

42 USC 6295(i)(1), (3) and (5)

CFR Citation:

10 CFR 430.32

Legal Deadline:

Final, Judicial, June 30, 2009.

Abstract:

The Energy Policy and Conservation Act (EPCA), as amended, establishes
initial energy efficiency standard levels for fluorescent lamps and
incandescent reflector lamps. EPCA also requires DOE to undertake two
subsequent rulemakings to determine whether the standard for a covered
product should be amended. This is the first review of the standards
for fluorescent and incandescent lamps. Previously, this rulemaking had
considered energy conservation standards for general service
incandescent lamps, however the Energy Independence and Security Act of
2007 established standard levels for general service incandescent lamps
and modified spectrum general service incandescent lamps which take
effect between 2012 and 2014. DOE is therefore no longer considering
these lamps in this rulemaking.

Statement of Need:

The Energy Policy and Conservation Act requires minimum energy
efficiency standards for appliances, which has the effect of
eliminating inefficient appliances and equipment from the market.

Summary of Legal Basis:

The EPCA, as amended by the Energy Policy Act of 1992, establishes
initial

[[Page 71155]]

energy efficiency standard levels for fluorescent lamps and
incandescent reflector lamps. The EPCA also requires DOE to undertake
two subsequent rulemakings to determine whether the standard for a
covered product should be amended.

Alternatives:

The statute requires the Department to conduct rulemakings to review
standards and to revise standards to achieve the maximum improvement in
energy efficiency that the Secretary determines is technologically
feasible and economically justified. In making this determination, the
Department conducts a thorough analysis of the alternative standard
levels, including the existing standard, based on the criteria
specified by the statute.

Anticipated Cost and Benefits:

More efficient lamps may be more costly to purchase initially but will
be economically justified over the life of the lamps. Benefits that may
result from higher efficiency standards for these lighting products
include significant energy savings along with a reduction in
environmental impacts. The specific costs and benefits have not been
established because DOE is still in the early stages of the rulemaking
and has not yet proposed a standard level. Estimates of energy savings
will be provided when the DOE issues the notice of proposed rulemaking
for this regulatory action.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Notice: Public Meeting,
Framework Document
Availability 05/31/06 71 FR 30834
ANPRM 03/13/08 73 FR 13620
ANPRM Comment Period End 04/14/08
NPRM 11/00/08
Final Action 06/00/09

Regulatory Flexibility Analysis Required:

Government Levels Affected:

Local, State

Additional Information:

The Energy Independence and Security Act of 2007 prescribes standards
for general service incandescent lamps. Because standards are now in
place for these products, they have been removed from this rulemaking.

Agency Contact:
Linda Graves
Office of Building Technologies Program, EE-2J
Department of Energy
Energy Efficiency and Renewable Energy
1000 Independence Avenue SW.
Washington, DC 20585
Phone: 202 586-1851
Email: [email protected]
Related RIN: Related to 1904-AB72
RIN: 1904-AA92
_______________________________________________________________________

DOE--EE

-----------

FINAL RULE STAGE

-----------

35. ENERGY CONSERVATION STANDARDS FOR RESIDENTIAL ELECTRIC AND GAS
RANGES AND OVENS AND MICROWAVE OVENS, AND COMMERCIAL CLOTHES WASHERS

Priority:

Other Significant

Legal Authority:

42 USC 6295(g) to (h)(cc); 42 USC 6313(e)

CFR Citation:

10 CFR 430; 10 CFR 431

Legal Deadline:

Final, Judicial, March 31, 2009.

Abstract:

The Energy Policy and Conservation Act (EPCA), as amended, establishes
initial energy efficiency standard levels for many types of major
residential appliances and generally requires DOE to undertake two
subsequent rulemakings, at specified times, to determine whether the
extant standard for a covered product should be amended. Through this
combined rulemaking, the Department is evaluating potential amendments
to update the current energy efficiency standards for residential
electric and gas ranges and ovens (including a new provision specific
to microwave ovens) and is also considering establishing energy
efficiency standards for commercial clothes washers, as required by the
Energy Policy Act of 2005, which further amended EPCA. Previously, this
rulemaking also included dishwashers and dehumidifiers. Because the
Energy Independence Act of 2007 (EISA 2007) prescribed standards for
dishwashers and dehumidifiers, they have been removed from the
rulemaking.

Statement of Need:

EPCA requires minimum energy efficiency standards for appliances, which
has the effect of eliminating inefficient appliances and equipment from
the market.

Summary of Legal Basis:

EPCA establishes initial energy efficiency standards for most types of
major residential appliances and certain commercial equipment. EPCA
generally requires DOE to subsequently undertake rulemaking, at
specified times, to determine whether the standard for a covered
product should be made more stringent. Pursuant to EPCA, the Department
has conducted prior energy efficiency standards rulemakings for
residential electric and gas ranges and ovens, as well as dishwashers.
In addition, the Energy Policy Act of 2005 amended EPCA to authorize
the Department to establish standards for energy (and water, where
appropriate) used in the operation of dehumidifiers and commercial
clothes washers, as well as to authorize the Department to conduct
rulemakings to assess whether higher standards are appropriate.

Alternatives:

Anticipated Cost and Benefits:

The standard levels for residential electric and gas ranges and ovens,
microwave ovens, and commercial clothes washers set forth in the notice
of proposed rulemaking, if adopted, would result in energy savings of
.75 quadrillion BTUs of energy (quads) over 30 years.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Notice: Public Meeting,
Framework Document
Availability 03/27/06 71 FR 15059
ANPRM 11/15/07 72 FR 64432
ANPRM Comment Period End 01/29/08

[[Page 71156]]

NPRM 10/17/08 73 FR 62033
NPRM Comment Period End 12/16/08
Final Action 03/00/09

Regulatory Flexibility Analysis Required:

Undetermined

Government Levels Affected:

Local, State

Additional Information:

EISA of 2007 prescribes standards for both dehumidifiers and
dishwashers. Because standards are now in place for these products,
they have been removed from this rulemaking.

Agency Contact:
Stephen Witkowski
Office of Building Technologies Program, EE-2J
Department of Energy
Energy Efficiency and Renewable Energy
1000 Independence Avenue SW.
Washington, DC 20585
Phone: 202 586-7463
Email: [email protected]
Related RIN: Related to 1904-AB78
RIN: 1904-AB49
_______________________________________________________________________

DOE--EE

36. ENERGY EFFICIENCY STANDARDS FOR COMMERCIAL REFRIGERATION EQUIPMENT

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

42 USC 6313(c)(4)(A)

CFR Citation:

10 CFR 431

Legal Deadline:

Final, Statutory, January 1, 2009.

Abstract:

The Energy Policy Act of 2005 (EPACT 2005) amendments to the Energy
Policy and Conservation Act (EPCA) require that DOE establish standards
for ice cream freezers; self-contained commercial refrigerators,
freezers, and refrigerator-freezers without doors; and remote-
condensing commercial refrigerators, freezers, and refrigerator-
freezers.

Statement of Need:

EPCA requires minimum energy efficiency standards for appliances, which
has the effect of eliminating inefficient appliances and equipment from
the market.

Summary of Legal Basis:

The EPACT 2005 amendments to EPCA authorize DOE to establish energy
conservation standards for commercial refrigeration equipment.

Alternatives:

Anticipated Cost and Benefits:

The commercial refrigeration equipment standard levels set forth in the
notice of proposed rulemaking, if adopted, would result in energy
savings of .83 quadrillion BTUs of energy (quads) over 30 years.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Notice: Public Meeting,
Framework Document
Availabiltiy 04/25/06 71 FR 23876
ANPRM 07/26/07 72 FR 41162
ANPRM Comment Period End 10/09/07
NPRM 08/25/08 73 FR 50071
NPRM Comment Period End 10/24/08
Final Action 01/00/09

Regulatory Flexibility Analysis Required:

Undetermined

Government Levels Affected:

Local, State

URL For More Information:
www.eere.energy.gov/buildings/appliance--standards/commercial/
refrigeration--equipment.html

URL For Public Comments:
www.regulations.gov

Agency Contact:
Charles Llenza
Office of Building Technologies Program, EE-2J
Department of Energy
Energy Efficiency and Renewable Energy
1000 Independence Avenue SW.
Washington, DC 20585
Phone: 202 586-2192
Email: [email protected]
RIN: 1904-AB59
BILLING CODE 6450-01-S

[[Page 71157]]

DEPARTMENT OF HEALTH AND HUMAN SERVICES (HHS)

Statement of Regulatory Priorities
The Department of Health and Human Services (HHS) is the Federal
Government's principal agency for protecting the health of all
Americans and providing essential human services. HHS responsibilities
include: Medicare, Medicaid, support for public health preparedness,
biomedical research, substance abuse and mental health treatment and
prevention, assurance of safe and effective drugs and other medical
products, food safety, financial assistance to low income families, the
Head Start program, services to older Americans, and direct health
services delivery.
The HHS budget constitutes almost a quarter of all Federal outlays, and
the Department administers more grant dollars than all other Federal
agencies combined. The Medicare program is the Nation's largest health
insurer, handling more than 1 billion claims per year. Medicare,
Medicaid and the State Children's Health Insurance Program (SCHIP)
together provide health care to more than 92 million beneficiaries, or
almost one in three Americans.
HHS works closely with State and local governments. Many HHS-funded
services are provided at the local level by State or county agencies,
or through private sector grantees. The Department's 300 programs are
administered by 11 Operating Divisions.
Since assuming the leadership of HHS, Secretary Michael O. Leavitt has
consistently sought to make transparent his approach to overseeing the
Department's programs. His current statement of the Department's
priorities is available for public review at http://www.hhs.gov/
secretary/ priorities/index. The regulatory actions noted below reflect
this policy framework.
Food Safety - Secretary Leavitt recently chaired the Interagency
Working Group on Import Safety established by the President. The final
report of the Working Group is accessible at: http://
www.importsafety.gov/report/actionupdate/actionplanupdate.pdf.
Reflecting the importance of the Nation's effort to strengthen import
regulatory and inspection systems, the Plan includes:
a final rule completing the rulemaking process requiring that
the Food and Drug Administration be notified prior to the
entry of imported food into the United States; and
a final rule designed to have significant effect in reducing
the risk of mortality and morbidity from salmonella-
contaminated eggs.
Healthier US Initiative - The Secretary's priorities include emphasis
on disease prevention and the need for individual responsibility for
personal wellness. His HealthierUS initiative is a national effort to
prevent and reduce the costs of disease, and promote community health
and wellness. The Plan accordingly includes a final rule amending
existing regulations governing investigational new drugs - the rule
would delineate new avenues of access for patients to obtain such
therapies on an individual basis. The Plan also includes a final rule
to establish a multi-tiered illness detection and response process for
communicable diseases, enhancing the Nation's public health prevention
capacity.
Medicare Modernization - The Secretary's statement of priorities
includes a focus on Medicare modernization. The Regulatory Plan,
accordingly, highlights final rules establishing annual adjustments in
payment amounts under Medicare for physicians' services and for
hospital outpatient services for calendar year 2010; and for hospital
inpatient services for fiscal year 2010.
Health Information Technology - The Secretary's strategy for reforming
the Nation's health sector stresses maximum use of electronic
information technology. The FY 2009 Regulatory Plan accordingly
includes proposals: (1) to require medical-device firms to register
electronically with the FDA; and (2) electronically to report to FDA
post-marketing information about approved devices.
_______________________________________________________________________

HHS--Centers for Disease Control and Prevention (CDC)

-----------

FINAL RULE STAGE

-----------

37. CONTROL OF COMMUNICABLE DISEASES FOREIGN QUARANTINE

Priority:

Economically Significant. Major under 5 USC 801.

Unfunded Mandates:

This action may affect the private sector under PL 104-4.

Legal Authority:

Not Yet Determined

CFR Citation:

42 CFR 70 and 71

Legal Deadline:

None

Abstract:

By statute, the Secretary of Health and Human Services has broad
authority to prevent introduction, transmission, and spread of
communicable diseases from foreign countries into the United States and
from one State or possession into another. Quarantine regulations are
divided into two parts: Part 71 dealing with foreign arrivals and part
70 dealing with interstate matters. This rule (42 CFR part 71) will
update and improve CDC's response to both global and domestic disease
threats by creating a multi-tiered illness detection and response
process thus substantially enhancing the public health system's ability
to slow the introduction, transmission, and spread of communicable. The
rule will also modify current Federal regulations governing the
apprehension, quarantinable disease, while respecting individual
autonomy.

CDC maintains quarantine stations at 20 ports of entry staffed with
medical and public health officers who respond to reports of diseases
from carriers. According to the statutory scheme, the President
determines through Executive order which diseases may subject
individuals to quarantine. The current disease list, which was last
updated in April 2005, includes cholera, diphtheria, tuberculosis,
plague, smallpox, yellow fever, viral hemorrhagic fevers, severe acute
respiratory syndrome (SARS), and influenza caused by novel or re-
emergent influenza viruses that are causing, or have the potential to
cause a pandemic.

Statement of Need:

The quarantine or isolation of persons believed to be infected with or
exposed to a communicable disease are public health prevention measures
that have been used effectively to contain the spread of disease. As
diseases evolve due to natural occurrences or man-made events, it is
important to ensure that prevention procedures reflect new threats and
uniform ways to contain them. Recent experiences with emerging
infectious diseases such as West Nile Virus, SARS, and monkeypox have
illustrated both the

[[Page 71158]]

rapidity with which disease may spread throughout the world and the
impact that communicable diseases, when left unchecked, may have on the
global economy. Stopping an outbreak--whether it is naturally occurring
or intentionally caused--requires the use of the most rapid and
effective public health tools available. Two of these tools are
isolation and quarantine. Isolation refers to the separation or
restriction of movement of ill persons with an infectious disease in
order to prevent transmission to those who are not ill. Quarantine
refers to the separation and restriction of movement of persons who,
while not yet ill, have been exposed to an infectious agent and
therefore may become infectious. Isolation and quarantine of ill and
exposed persons may be one of the best initial strategies to prevent
the uncontrolled spread of highly dangerous biologic agents--especially
when combined with other health strategies such as vaccination,
prophylactic drug treatment, and other appropriate infection control
measures.

Summary of Legal Basis:

These regulations would be proposed under the authority of 25 U.S.C.
198, 231, 2001; 42 U.S.C. 243, 264 to 271. In addition, section 361(b)
of the Public Health Service Act (42 U.S.C. 264(b)) authorizes the
``apprehension, detention, or conditional release'' of persons to
prevent the introduction, transmission, and spread of specified
communicable diseases from foreign countries into the United States and
from one State or possession into another. Among other public health
powers, the lawful ability to inspect property, to medically examine
and monitor persons, and to detain or quarantine exists in current
regulations. Acknowledging the critical importance of protecting the
public's health, long-standing court decisions uphold the ability of
Congress and State legislatures to enact quarantine and other public
health laws and to have them executed by public health officials.

Alternatives:

These regulations are necessary to ensure that HHS has the tools it
needs to respond to public health emergencies and disease threats. Any
less stringent alternatives would prevent the Department from the most
effective possible pursuit of this objective.

Anticipated Cost and Benefits:

The primary cost impact of the proposed rule would be data collection,
transmission, storage and retrieval, and costs associated with contact
tracing. The benefits of this rule will offer procedures that more
completely describe the 21st century implementation of disease
containment measures such as isolation and quarantine. These procedures
are expected to expedite and improve CDC operations by allowing
immediate medical follow-up of potentially infected passengers and
their contacts. The benefits of the rule would be measured in terms of
the number of deaths and illnesses prevented by rapid intervention.

Risks:

Failure to move forward with this rulemaking would hinder the Nation's
ability to use the most rapid and effective public health tools
available when responding to public health emergencies and disease
threats.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 11/30/05 70 FR 71892
Final Action 04/00/09

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

None

Agency Contact:
Stacy Howard
Department of Health and Human Services
Centers for Disease Control and Prevention
CLFT Building 16, Room 4324
MS E03
Atlanta, GA 30329
Phone: 404 718-1056
RIN: 0920-AA12
_______________________________________________________________________

HHS--Food and Drug Administration (FDA)

-----------

PROPOSED RULE STAGE

-----------

38. MEDICAL DEVICE REPORTING; ELECTRONIC SUBMISSION REQUIREMENTS

Priority:

Other Significant

Legal Authority:

21 USC 352; 21 USC 360; 21 USC 360i; 21 USC 360j; 21 USC 371; 21 USC
374

CFR Citation:

21 CFR 803

Legal Deadline:

None

Abstract:

The Food and Drug Administration (FDA) is proposing to amend its
postmarket medical device reporting regulations to require that
manufacturers, importers, and user facilities submit mandatory reports
of medical device adverse events to the agency in an electronic format
that FDA can process, review, and archive. FDA is taking this action to
improve the Agency's systems for collecting and analyzing postmarketing
safety reports. The proposed change would help the Agency to more
quickly review safety reports and identify emerging public health
issues.

Statement of Need:

The proposed rule would require user facilities and medical device
manufacturers and importers to submit medical device adverse event
reports in electronic format instead of using a paper form. FDA is
taking this action to improve its adverse event reporting program by
enabling it to more quickly receive and process these reports.

Summary of Legal Basis:

The Agency has legal authority under section 519 of the Federal Food,
Drug, and Cosmetic Act to require adverse event reports. The proposed
rule would require manufacturers, importers, and user facilities to
change their procedures to send reports of medical device adverse
events to FDA in electronic format instead of using a hard copy form.

Alternatives:

The alternatives to this rulemaking include not updating the medical
device reporting requirements and not requiring submission of this
information in electronic format. For over 20 years, medical device
manufacturers, importers, and user facilities have sent adverse event
reports to FDA on paper forms. Processing paper forms is a time
consuming and expensive process. FDA believes this rulemaking is the
preferable alternative.

[[Page 71159]]

Anticipated Cost and Benefits:

The principal benefit would be to public health because the increased
speed in the processing and analysis of the more than 200,000 medical
device reports currently submitted annually on paper. In addition,
requiring electronic submission would reduce FDA annual operating costs
by $1.25 million.

The total one-time cost for modifying SOPs and establishing electronic
submission capabilities is estimated to range from $58.6 million to
$79.7 million. Annually recurring costs totaled $8.5 million and
included maintenance of electronic submission capabilities, including
renewing the electronic certificate, and for some firms the incremental
cost to maintain high-speed internet access.

Risks:

None

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 04/00/09

Regulatory Flexibility Analysis Required:

Undetermined

Government Levels Affected:

Undetermined

Federalism:

Undetermined

International Impacts:

This regulatory action will be likely to have international trade and
investment effects, or otherwise be of international interest.

Agency Contact:
Myrna Hanna
Regulations Staff
Department of Health and Human Services
Food and Drug Administration
Center for Devices and Radiological Health (HFZ-215)
1350 Piccard Drive
PI50 RM150F
Rockville, MD 20850
Phone: 240 276-2347
Fax: 240 276-2352
Email: [email protected]
RIN: 0910-AF86
_______________________________________________________________________

HHS--FDA

39. ELECTRONIC REGISTRATION AND LISTING FOR DEVICES

Priority:

Other Significant

Legal Authority:

PL 107-188, sec 321; 21 USC 360(a) to 360(j); 21 USC 360(p)

CFR Citation:

21 CFR 807

Legal Deadline:

None

Abstract:

FDA is proposing to amend the medical device establishment registration
and listing requirements under 21 CFR part 807 to reflect the
requirements in section 321 of the Public Health Security and
Bioterrorism Preparedness and Response Act of 2002 (BT Act) and section
510(p) of the Federal Food, Drug, and Cosmetic Act (the act). Section
510(p) was added to the act by section 207 of the Medical Device User
Fee and Modernization Act of 2002 (MDUFMA), and later amended by
section 224 of the Food and Drug Administration Amendments Act of 2007
(FDAAA). This proposed rule would require domestic and foreign device
establishments to submit registration and listing data electronically
via the Internet using FDA's Unified Registration and Listing System.
This proposed rule would convert registration and listing to a
paperless process. However, for those companies that do not have access
to the Web, FDA would offer an avenue by which they can register, list,
and update information with a paper submission. The proposed rule also
would amend part 807 to reflect the timeframes for device establishment
registration and listing established by sections 222 and 223 of FDAAA.

Statement of Need:

FDA is proposing to amend the medical device establishment registration
and listing requirements under 21 CFR part 807 to reflect the
requirements in section 321 of the the BT Act and section 510(p) of the
act, which was added by section 207 of MDUFMA and later amended by
section 224 of FDAAA. This proposed rule would improve FDA's device
establishment registration and listing system and utilize the latest
technology in the collection of this information.

Summary of Legal Basis:

The statutory basis for our authority includes sections 510(a) through
(j), 510(p), 701, 801, and 903 of the act.

Alternatives:

The alternatives to this rulemaking include not updating the
registration and listing regulations and not requiring the electronic
submission of registration and listing information. Because of the new
statutory requirements, and the advances in data collection and
transmission technology, FDA believes this rulemaking is the preferable
alternative to the paper system currently in place.

Anticipated Cost and Benefits:

The Agency believes that there may be some one-time costs associated
with the rulemaking, which involve resource costs of familiarizing
users with the electronic system. Recurring costs related to submission
of the information by domestic firms would probably remain the same or
decrease because a paper submission and postage is not required. There
might be some increase in the financial burden on foreign firms since
they will have to supply additional registration information as
required by section 321 of the BT Act.

Risks:

None

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 04/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Businesses

Government Levels Affected:

None

International Impacts:

This regulatory action will be likely to have international trade and
investment effects, or otherwise be of international interest.

[[Page 71160]]

_______________________________________________________________________

HHS--FDA

-----------

FINAL RULE STAGE

-----------

40. PREVENTION OF SALMONELLA ENTERITIDIS IN SHELL EGGS

Priority:

Economically Significant. Major under 5 USC 801.

Unfunded Mandates:

This action may affect the private sector under PL 104-4.

Legal Authority:

21 USC 321; 21 USC 342; 21 USC 371; 21 USC 381; 21 USC 393; 42 USC 243;
42 USC 264; 42 USC 271; . . .

CFR Citation:

21 CFR 16; 21 CFR 116; 21 CFR 118

Legal Deadline:

None

Abstract:

Publication of this final rule is an action item in the Food Protection
Plan announced by the Department of Health and Human Services (HHS) in
November 2007.

In July 1999, the Food and Drug Administration (FDA) and the Food
Safety Inspection Service (FSIS) committed to developing an action plan
to address the presence of Salmonella Enteritidis (SE) in shell eggs
and egg products using a farm-to-table approach. FDA and FSIS held a
public meeting on August 26, 1999, to obtain stakeholder input on the
draft goals, as well as to further develop the objectives and action
items for the action plan. The Egg Safety Action Plan was announced on
December 11, 1999. The goal of the Action Plan is to reduce egg-related
SE illnesses by 50 percent by 2005 and eliminate egg-related SE
illnesses by 2010. The Egg Safety Action Plan consists of eight
objectives covering all stages of the farm-to-table continuum as well
as support functions. On March 30, 2000 (Columbus, OH), April 6, 2000
(Sacramento, CA), and July 31, 2000 (Washington, DC), joint public
meetings were held by FDA and FSIS to solicit and discuss information
related to the implementation of the objectives in the Egg Safety
Action Plan.

On September 22, 2004, FDA published a proposed rule that would require
egg safety measures to prevent the contamination of shell eggs with SE
during egg production. The proposal also solicited comment on whether
recordkeeping requirements should include a written SE prevention plan
and records for compliance with the SE prevention measures, and whether
safe egg handling and preparation practices should be mandated for
retail establishments that specifically serve a highly susceptible
population (e.g., nursing homes, hospitals, day care centers). The
proposed egg production SE prevention measures included: (1) Provisions
for procurement of chicks and pullets; (2) a biosecurity program; (3) a
rodent and pest control program; (4) cleaning and disinfection of
poultry houses that have had an environmental or egg test positive for
SE; (5) egg testing when an environmental test is positive; and (6)
refrigerated storage of eggs held at the farm. Additionally, to verify
that the measures have been effective, the rule proposes that producers
test the poultry house environment for SE. If the environmental test is
positive, eggs from that environment must be tested for SE, and if the
egg test is positive, the eggs must be diverted to egg products
processing or a treatment process that achieves at least a five-log
destruction of SE.

The proposed rule was a step in a broader farm-to-table egg safety
effort that includes FDA's requirements for safe handling statements on
egg cartons, and refrigerated storage of shell eggs at retail, and egg
safety education for consumers and retail establishments. The rule had
a 90-day comment period, which ended December 21, 2004. To discuss the
proposed rule and solicit comments from interested stakeholders, FDA
held three public meetings: October 28, 2004, in College Park, MD;
November 9, 2004, in Chicago, IL; and November 16, 2004, in Los
Angeles, CA. The comment period was reopened until July 25, 2005, to
solicit further comment and information on industry practices and
programs that prevent SE-monitored chicks from becoming infected by SE
during the period of pullet rearing until placement into laying hen
houses.

Statement of Need:

FDA proposed regulations as part of the farm-to-table safety system for
eggs outlined by the President's Council on Food Safety in its Egg
Safety Action Plan. FDA intends to publish a final egg safety rule
because of the continued reports of outbreaks of foodborne illness and
death caused by SE that are associated with the consumption of shell
eggs. The agency believes that this rule, when final, will have
significant effect in reducing the risk of illness from SE-contaminated
eggs and will contribute significantly to the interim public health
goal of a 50 percent reduction in egg-related SE illness.

Summary of Legal Basis:

FDA's legal basis derives in part from sections 402(a)(4) and 701(a) of
the Federal Food, Drug, and Cosmetic Act (the Act) ((21 U.S.C.
342(a)(4) and 371(a)). Under section 402(a)(4) of the Act, a food is
adulterated if it is prepared, packed, or held in insanitary conditions
whereby it may have been contaminated with filth or may have been
rendered injurious to health. Under section 701(a) of the Act, FDA is
authorized to issue regulations for the efficient enforcement of the
Act. FDA's legal basis also derives from section 361 of the Public
Health Service Act (PHS Act) (42 U.S.C. 264), which gives FDA authority
to promulgate regulations to control the spread of communicable
disease.

Alternatives:

There are several alternatives that the Agency considered in the
proposed rule. The principal alternatives included: (1) No new
regulatory action; (2) alternative testing requirements; (3)
alternative on-farm prevention measures; (4) alternative retail
requirements; and (5) HACCP.

Anticipated Cost and Benefits:

The benefits from a final regulation to control Salmonella enteritidis
in shell eggs derive from improved practices that reduce contamination
and generate benefits measured as the value of the human illnesses
prevented. FDA has produced estimates of costs and benefits for a
number of options. The mitigations considered include on-farm rodent
control, changes in retail food preparation practices, diversion of
eggs from infected flocks to pasteurization, recordkeeping,
refrigeration, and feed testing. The actual costs and benefits of the
final rule will depend upon the set of mitigations chosen and the set
of entities covered.

Risks:

The potential for contamination of eggs with SE and its subsequent
survival or growth must be considered a very serious risk because of
the possibility that such contamination, survival, and growth could
cause widespread foodborne illness, including some severe long-term
effects and even loss of life. FDA's decision to publish a

[[Page 71161]]

final rule to reduce this risk of SE contamination of shell eggs is
based on a considerable body of evidence, literature, and expertise in
this area. In addition, this decision was also based on the USDA risk
assessment on SE in shell eggs and egg products and the identified
public health benefits associated with controlling SE in eggs at the
farm and retail levels.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 09/22/04 69 FR 56824
NPRM Comment Period End 12/21/04
NPRM Reopened Comment
Period End 06/09/05 70 FR 24490
NPRM Extension of
Reopened Comment
Period End 07/25/05 70 FR 33404
Final Action 04/00/09

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

State

Federalism:

This action may have federalism implications as defined in EO 13132.

Agency Contact:
John F. Sheehan
Director
Department of Health and Human Services
Food and Drug Administration
Division of Plant and Dairy Food Safety (HFS-315)
Room 3B-012
5100 Paint Branch Parkway
College Park, MD 20740
Phone: 301 436-2367
Fax: 301 436-2632
Email: [email protected]
RIN: 0910-AC14
_______________________________________________________________________

HHS--FDA

41. EXPANDED ACCESS TO INVESTIGATIONAL DRUGS FOR TREATMENT USE

Priority:

Other Significant

Legal Authority:

21 USC 355; 21 USC 360bbb; 21 USC 371; 42 USC 262

CFR Citation:

21 CFR 312.42; 21 CFR 312.300; 21 CFR 312.305; 21 CFR 312.310; 21 CFR
312.315; 21 CFR 312.320

Legal Deadline:

None

Abstract:

The Food and Drug Administration proposed in the Federal Register of
December 14, 2006 (75 FR 75147), to amend the regulations governing
investigational new drugs (IND) to describe the ways patients may
obtain investigational drugs for treatment use under expanded access
programs. Such use of investigational drugs would be available to: (1)
Individual patients, including in emergencies; (2) intermediate-size
patient populations; and (3) larger populations under a treatment
protocol or treatment IND.

Statement of Need:

The Food and Drug Administration Modernization Act of 1997
(Modernization Act) amended the Federal Food, Drug, and Cosmetic Act
(the Act) to include specific provisions concerning expanded access to
investigational drugs for treatment use. In particular, section 561(b)
of the Act permits any person, acting through a licensed physician, to
request access to an investigational drug to diagnose, monitor, or
treat a serious disease or condition provided that a number of
conditions are met. The rule is needed to incorporate into FDA's
regulations this and other provisions of the Modernization Act
concerning access to investigational drugs.

In addition, the agency seeks to increase awareness and knowledge of
expanded access programs and the procedures for obtaining
investigational drugs for treatment use. The rule will assist in
achieving this goal by describing in detail the criteria, submission
requirements, and safeguards applicable to different types of treatment
uses.

Summary of Legal Basis:

FDA has the authority to impose requirements concerning the treatment
use of investigational drugs under various sections of the Act,
including sections 505(i), 561, and 701(a) (21 U.S.C. 355(i), 360bbb,
and 371(a)).

Section 505(i) of the Act directs the Secretary to promulgate
regulations exempting from the operation of the new drug approval
requirements drugs intended solely for investigational use by experts
qualified by scientific training and expertise to investigate the
safety and effectiveness of drugs. The rule explains procedures and
criteria for obtaining FDA authorization for treatment uses of
investigational drugs.

The Modernization Act provides significant additional authority for
this rulemaking. Section 561(a) states that the Secretary may, under
appropriate conditions determined by the Secretary, authorize the
shipment of investigational drugs for the diagnosis, monitoring, or
treatment of a serious disease or condition in emergency situations.
Section 561(b) allows any person, acting through a physician licensed
in accordance with State law, to request from a manufacturer or
distributor an investigational drug for the diagnosis, monitoring, or
treatment of a serious disease or condition if certain conditions are
met. Section 561(c) closely tracks FDA's existing regulation at 21 CFR
part 312.34 providing for treatment use by large patient populations
under a treatment protocol or treatment IND if a number of conditions
are met.

Section 701(a) provides the Secretary with the general authority to
promulgate regulations for the efficient enforcement of the Act. By
clarifying the criteria and procedures relating to treatment use of
investigational products, this rule is expected to aid in the efficient
enforcement of the Act.

Alternatives:

One alternative to this rulemaking that FDA considered was not to
promulgate regulations implementing the expanded access provisions of
the Modernization Act. However, the agency believes that promulgating
regulations would further improve the availability of investigational
drugs for treatment use by providing clear direction to sponsors,
patients, and licensed physicians about the criteria for authorizing
treatment use and what information must be submitted to FDA.

Another alternative FDA considered was a regulation describing only
individual patient and large scale expanded access criteria. However,
the agency concluded that it would be preferable to have a third
category of expanded access for intermediate-size patient populations.

Anticipated Cost and Benefits:

FDA expects that the costs of the rule will range from a low of about
$109,350 to $218,700 in the first year following implementation of the
final rule, to a high of about $325,500 to $567,825 in the fourth and
fifth years. These

[[Page 71162]]

estimates suggest that total annual costs for the rule would be between
$1.2 million and $2.2 million for the 5-year period following
implementation of the final rule. The agency also expects that the
estimated incremental cost burdens associated with this rule are likely
to be widely dispersed among affected entities.

The benefits of the rule are expected to result from improved patient
access to investigational drugs generally and from treatment use being
made available for a broader variety of disease conditions and
treatment settings. In particular, the clarification of eligibility
criteria and submission requirements would enhance patient access by
easing the administrative burdens on individual physicians seeking
investigational drugs for their patients and on sponsors who make
investigational drugs available for treatment use.

Risks:

The agency foresees no risks associated with the rule.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 12/14/06 71 FR 75147
NPRM Comment Period End 03/14/07
Final Action 11/00/08

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Organizations

Government Levels Affected:

None

Agency Contact:
Elena N. Cohen
Regulatory Counsel
Department of Health and Human Services
Food and Drug Administration
Center for Drug Evaluation and Research
10903 New Hampshire Ave.
Bldg. 51, Room 6356
Silver Spring, MD 20993-0002
Phone: 301 796-3602
Fax: 301 847-8440
Email: [email protected]
RIN: 0910-AF14
_______________________________________________________________________

HHS--Centers for Medicare & Medicaid Services (CMS)

-----------

PROPOSED RULE STAGE

-----------

42. CHANGES TO THE HOSPITAL INPATIENT PROSPECTIVE PAYMENT
SYSTEM FOR FY 2010 (CMS-1406-P)

Priority:

Economically Significant. Major under 5 USC 801.

Unfunded Mandates:

Undetermined

Legal Authority:

Sec 1886(d) of the Social Security Act

CFR Citation:

42 CFR 412

Legal Deadline:

NPRM, Statutory, April 1, 2009.

Final, Statutory, August 1, 2009.

Abstract:

This major rule proposes to revise the Medicare hospital inpatient
prospective payment systems (IPPS) for operating and capital-related
costs to implement changes arising from our continuing experience with
these systems.

Statement of Need:

CMS annually revises the Medicare hospital inpatient prospective
payment systems (IPPS) for operating and capital-related costs to
implement changes arising from our continuing experience with these
systems. In addition, we describe the proposed changes to the amounts
and factors used to determine the rates for Medicare hospital inpatient
services for operating costs and capital-related costs. The proposed
rule solicits comments on the proposed IPPS payment rates and new
policies. CMS will issue a final rule containing the payment rates for
the 2010 IPPS at least 60 days before October 1, 2009.

Summary of Legal Basis:

The Social Security Act (the Act) sets forth a system of payment for
the operating costs of acute care hospital inpatient stays under
Medicare Part A (Hospital Insurance) based on prospectively set rates.
The Act requires the Secretary to pay for the capital-related costs of
hospital inpatient stays under a prospective payment system (PPS).
Under these PPSs, Medicare payment for hospital inpatient operating and
capital-related costs is made at predetermined, specific rates for each
hospital discharge. These changes would be applicable to services
furnished on or after October 1, 2009.

Alternatives:

None. This is a statutory requirement.

Anticipated Cost and Benefits:

Total expenditures will be adjusted for FY 2010.

Risks:

If this regulation is not published timely, inpatient hospital services
will not be paid appropriately beginning October 1, 2009.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 04/00/09

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

Federal

Federalism:

Undetermined

Agency Contact:
Tiffany Swygert
Health Insurance Specialist
Department of Health and Human Services
Centers for Medicare & Medicaid Services
Div of Acute Care, Hosp and Ambulatory Policy Group
Mailstop C4-25-11
7500 Security Blvd
Baltimore, MD 21244
Phone: 410 786-4642
Email: [email protected]
RIN: 0938-AP39
_______________________________________________________________________

HHS--CMS

43. REVISIONS TO PAYMENT POLICIES UNDER THE PHYSICIAN FEE
SCHEDULE FOR CY 2010 (CMS-1413-P)

Priority:

Economically Significant. Major under 5 USC 801.

Unfunded Mandates:

Undetermined

Legal Authority:

Social Security Act, sec 1102; Social Security Act, sec 1871

[[Page 71163]]

CFR Citation:

42 CFR 405; 42 CFR 410 to 411; 42 CFR 413 to 414; 42 CFR 426

Legal Deadline:

Final, Statutory, November 1, 2009.

Abstract:

This major proposed rule would revise payment polices under the
physician fee schedule, as well as other policy changes to payment
under Part B.

Statement of Need:

The statute requires that we establish each year, by regulation,
payment amounts for all physicians' services furnished in all fee
schedule areas. This major proposed rule would make changes affecting
Medicare Part B payment to physicians and other Part B suppliers.

The final rule has a statutory publication date of November 1, 2009,
and implementation of January 1, 2010.

Summary of Legal Basis:

Section 1848 of the Social Security Act (the Act) establishes the
payment for physician services provided under Medicare. Section 1848 of
the Act imposes a deadline of no later than November 1 for publication
of the final physician fee schedule rule.

Alternatives:

None. This is a statutory requirement.

Anticipated Cost and Benefits:

Total expenditures will be adjusted for CY 2010.

Risks:

If this regulation is not published timely, physician services will not
be paid appropriately.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 06/00/09

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

Federal

Federalism:

Undetermined

Agency Contact:
Diane Milstead
Health Insurance Specialist
Department of Health and Human Services
Centers for Medicare & Medicaid Services
Centers for Medicaid Mangement
Mailstop C4-03-06
7500 Security Blvd
Baltimore, MD 21244
Phone: 410 786-3355
Email: [email protected]
Related RIN: Related to 0938-AN04
RIN: 0938-AP40
_______________________________________________________________________

HHS--CMS

44. CHANGES TO THE HOSPITAL OUTPATIENT PROSPECTIVE PAYMENT
SYSTEM AND AMBULATORY SURGICAL CENTER PAYMENT SYSTEM FOR CY 2010 (CMS-
1414-P)

Priority:

Economically Significant. Major status under 5 USC 801 is undetermined.

Legal Authority:

BBA; PPRA; BIPA; MMA; MMSEA; MIPPA

CFR Citation:

42 CFR 410; 42 CFR 410 to 413; 42 CFR 416; 42 CFR 419

Legal Deadline:

Final, Statutory, November 1, 2009.

Abstract:

This major rule would revise the Medicare hospital outpatient
prospective payment system to implement applicable statutory
requirements and changes arising from our continuing experience with
this system and to implement certain related provisions of the Medicare
Prescription Drug, Improvement, and Modernization Act (MMA) of 2003. In
addition, the proposed rule describes proposed changes to the amounts
and factors used to determine the payment rates for Medicare hospital
outpatient services paid under the prospective payment system. The rule
also proposes changes to the Ambulatory Surgical Center Payment System
list of services and rates. These changes would be applicable to
services furnished on or after January 1 annually.

Statement of Need:

Medicare pays over 4,200 hospitals for outpatient department services
under the hospital outpatient prospective payment system (OPPS). The
OPPS is based on groups of clinically similar services called
ambulatory payment classifications (APCs). CMS annually revises the APC
payment amounts based on claims data, proposes new payment polices, and
updates the payments for inflation using the market basket. The
proposed rule solicits comments on the proposed OPPS payment rates and
new policies. This rule does not impact payments to critical access
hospitals as they are not paid under the OPPS. CMS will issue a final
rule containing the payment rates for the 2010 OPPS at least 60 days
before January 1, 2010.

Summary of Legal Basis:

Section 1833 of the Social Security Act establishes Medicare payment
for hospital outpatient services. The final rule revises the Medicare
hospital OPPS to implement applicable statutory requirements and
changes arising from our continuing experience with this system and to
implement certain related provisions of the Medicare Prescription Drug,
Improvement, and Modernization Act (MMA) of 2003. In addition, the
proposed and final rules describe changes to the outpatient APC system,
relative payment weights, outlier adjustments, and other amounts and
factors used to determine the payment rates for Medicare hospital
outpatient services paid under the prospective payment system. These
changes would be applicable to services furnished on or after January
1, 2010.

Alternatives:

None. This is a statutory requirement.

Anticipated Cost and Benefits:

Total expenditures will be adjusted for CY 2010.

Risks:

If this regulation is not published timely, outpatient hospital
services will not be paid appropriately beginning January 1, 2010.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 06/00/09

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

Federal

[[Page 71164]]

Federalism:

This action may have federalism implications as defined in EO 13132.

Agency Contact:
Alberta Dwivedi
Health Insurance Specialist
Department of Health and Human Services
Centers for Medicare & Medicaid Services
Centers for Medicare Management
Mailstop C5-01-26
7500 Security Blvd
Baltimore, MD 21244
Phone: 410 786-0763
Email: [email protected]
RIN: 0938-AP41
BILLING CODE 4150-24-S

[[Page 71165]]

DEPARTMENT OF HOMELAND SECURITY (DHS)

Statement of Regulatory Priorities
The Department of Homeland Security was created in 2003 pursuant to the
Homeland Security Act of 2002, Pub. L. 107-296. The Department's
Strategic Plan governs the development of DHS's strategies, programs
and projects, and ultimately is reflected in the Department's budget
and regulatory agenda. DHS's Strategic Plan is posted on the
Department's web site: http://www.dhs.gov/xlibrary/assets/DHS--
StratPlan--FINAL--spread.pdf.
The Strategic Plan sets forth the five strategic goals of the Secretary
of Homeland Security. Those goals are:
1. Protect our Nation from Dangerous People
2. Protect our Nation from Dangerous Goods
3. Protect Critical Infrastructure
4. Strengthen our Nation's Preparedness and Emergency Response
Capabilities
5. Strengthen and Unify DHS Operations and Management
The regulations we have summarized below in the Department's 2008 Fall
Regulatory Program and in the Unified Agenda support the Department's
Strategic Plan and each of the five Strategic Goals listed above. These
regulations will improve the Department's ability to accomplish its
primary missions.
The regulations identified in the Department's 2008 Fall Regulatory
Program also address recent legislative initiatives including, but not
limited to: the Implementing Recommendations of the 9/11 Commission Act
of 2008 (9/11 Act), Pub. L. 110-53 (Aug. 3, 2007); the Post-Katrina
Emergency Management Reform Act of 2006 (PKEMRA), Pub. L. 109-295 (Oct.
4, 2006); the Consolidated Natural Resources Act of 2008 (CNRA), Pub.
L. No. 110-220 (May 7, 2008); the Security and Accountability for Every
Port Act of 2006 (SAFE Port Act), Pub. L. 109-347 (Oct. 13, 2006); and
the Consolidated Security, Disaster Assistance, and Continuing
Appropriations Act, 2009, Pub. L. 110-329 (Sept. 30, 2008).
DHS strives for organizational excellence and uses a centralized and
unified approach in managing its regulatory resources. The Department's
regulatory program, including the Unified Regulatory Agenda and
Regulatory Plan, is managed by the Office of the General Counsel. In
addition, DHS senior leadership reviews each significant regulatory
project to ensure that the project fosters and supports the
Department's Strategic Goals.
DHS is also committed to ensuring that all of its regulatory
initiatives are aligned with its guiding principles to protect civil
rights and civil liberties, integrate our actions, build coalitions and
partnerships, develop human resources, innovate, and be accountable to
the American public. The Department values public involvement in the
development of its Regulatory Plan, Unified Agenda, and regulations,
and takes particular concern with the impact its rules have on small
businesses. DHS and each of its components continue to emphasize the
use of plain language in our notices and rulemaking documents to
promote a better understanding of regulations and increased public
participation in the Department's rulemakings.
The Fall 2008 Regulatory Plan for DHS includes regulations issued by
the Department's major offices and directorates such as the National
Protection and Programs Directorate (NPPD). In addition, it includes
regulations from DHS components--including U.S. Citizenship and
Immigration Services (USCIS), the U.S. Coast Guard (Coast Guard), U.S.
Customs and Border Protection (CBP), the Federal Emergency Management
Administration (FEMA), the U.S. Immigration and Customs Enforcement
(ICE), and the Transportation Security Administration (TSA)--that have
active regulatory programs. Below is a discussion of the Fall 2008
Regulatory Plan for DHS offices and directorates as well as DHS
regulatory components.
National Protection and Programs Directorate
US-VISIT
U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) is an
integrated, automated entry-exit system that records the arrival and
departure of aliens, verifies aliens' identities, and authenticates
aliens' travel documents by comparison of biometric identifiers. The
goals of US-VISIT are to enhance the security of U.S. citizens and
visitors to the United States, facilitate legitimate travel and trade,
ensure the integrity of the U.S. immigration system, and protect the
privacy of visitors to the United States.
Currently, aliens entering the United States pursuant to a nonimmigrant
visa, or those traveling without a visa as part of the Visa Waiver
Program, are subject to US-VISIT requirements with certain limited
exceptions. NPPD will be issuing a final rule to expand the population
of aliens who will be subject to US-VISIT requirements to nearly all
aliens, including lawful permanent residents. Specifically, as proposed
in our July 27, 2006 notice of proposed rulemaking (NPRM), the
following classes of aliens, among others, would become subject to US-
VISIT requirements:
Lawful permanent residents.
Aliens seeking admission on immigrant visas.
Refugees and asylees.
Certain Canadian citizens who receive a Form I-94 at
inspection or who require a waiver of inadmissibility. (DHS
did not propose to change the exemption for Canadian
citizens entering the United States for temporary business
or pleasure purposes under B visas).
Aliens paroled into the United States.
Aliens applying for admission under the Guam Visa Waiver
Program.
NPPD also published an NPRM on April 24, 2008, proposing to establish
an exit program at all air and sea ports of departure in the United
States. Under section 711 of the 9/11 Act, DHS is required to establish
an air exit system and to certify to Congress that such system is in
place no later than June 30, 2009. DHS planned to issue a final rule by
the end of 2008 to meet the requirements of the 9/11 Recommendations
Act. However, under the title III, Division D of the recently enacted
Consolidated Security, Disaster Assistance, and Continuing
Appropriations Act, 2009, the Department is now required to conduct two
pilot programs to test the proposed methods of collecting biometric
information from aliens upon departure from the United States before
DHS can issue a final rule. DHS continues to work to ensure that the
final air/sea exit rule will be issued during fiscal year 2009.
United States Citizenship and Immigration Services
The mission of U.S. Citizenship and Immigration Services (USCIS) is to
protect national security while conveying our Nation's privileges of
freedom and citizenship through the rule of law. The three strategic
priorities of USCIS are national security, customer service and
organizational excellence. USCIS seeks to welcome lawful immigrants
while preventing

[[Page 71166]]

exploitation of the immigration system, and we seek to create and
maintain a high-performing, integrated, public service organization. As
a nation of immigrants, the United States has a strong commitment to
welcoming those individuals who seek entry through our legal
immigration system, and also to assisting those in need of humanitarian
protection against harm.
USCIS has an essential role in supporting DHS's Strategic Goal to
ensure the security and integrity of the immigration system by making
certain that immigrants and nonimmigrants comply with the laws and
security mandates to prevent those who seek to exploit our immigration
benefits or engage in illegal activities from obtaining lawful status
in this country.
USCIS also strives to provide efficient, courteous, accurate, and
responsive services to those who seek and qualify for admission to our
country as well as provide seamless, transparent and dedicated customer
support services and organizational excellence within the agency. To
meet these goals, USCIS is pursuing the following regulatory
initiatives, which will directly support the core priorities of the
Department.
Commonwealth of the Northern Mariana Islands Transitional Nonimmigrant
Investor Classification. This rule proposes to implement the
nonimmigrant investor visa provisions of the Consolidated Natural
Resources Act of 2008. The Act extends the immigration laws of the
United States to the Commonwealth of the Northern Marianas Islands.
This proposed rule responds to the Congressional mandate requiring the
federal government to assume responsibility for visas for foreign
investors entering the CNMI. This rule proposes to amend the DHS
regulations governing E-2 nonimmigrant treaty investors; it will
establish procedures for classifying investors in the CNMI with long-
term E2 nonimmigrant investor status. The benefits of this rule will
include protection from the threat posed by the use of fraudulent visas
from CNMI as means of entering the United States.
Nonimmigrant Transitional Worker Provisions for the Commonwealth of the
Northern Marianas Islands. This rule proposes to implement the
nonimmigrant transitional worker provisions of the Consolidated Natural
Resources Act of 2008. The purpose of these provisions is to provide
for a transition from an economy supported by a sizable population of
temporary workers to an economy that is supported by temporary and
permanent workers under the Immigration and Nationality Act. This rule
proposes to amend DHS regulations to provide for a nonimmigrant
transitional worker category for the CNMI only and to allow for enough
planning by employers who may need to replace workers and who may need
to have temporary workers perform legitimate business travel. The
benefits of the proposed rule will include maintenance of current
levels of employment in the CNMI and consistency with other USCIS
regulations.
Designation of Acceptable Documents for Employment Verification. This
rulemaking will reduce the number of acceptable documents that
employees may present for Employment Verification, or Form I-9
purposes. The current employment verification process uses a very dated
list of acceptable documents. USCIS will shorten the list of acceptable
documents and reissue the Form I-9 with a shorter list of more highly
secure documents. The benefit of this rulemaking is that it will
provide for more detail, specificity, and security regarding acceptable
identity and employment authorization documents.
Changes Affecting H-2A and H-2B Nonimmigrants and Their Employers.
USCIS will be finalizing two rulemaking actions affecting the standards
USCIS will use to grant H-2A (temporary and seasonal agricultural
workers) and H-2B (temporary non-agricultural workers) status to
nonimmigrant aliens. The H-2A rule removes certain limitations on H-2A
employers and adopts streamlining measures in order to encourage and
facilitate the lawful employment of foreign temporary and seasonal
agricultural workers. The final rule also addresses concerns regarding
the integrity of the H-2A program and sets forth several conditions to
prevent fraud and to protect laborers' rights. The purpose of the final
rule is to provide agricultural employers with an orderly and timely
flow of legal workers, thereby decreasing their reliance on
unauthorized workers, while protecting the rights of laborers.
The H-2B rule removes certain limitations on H-2B employers and adopts
streamlining measures in order to facilitate the lawful employment of
foreign temporary nonagricultural workers. The final rule also
addresses concerns regarding the integrity of the H-2B program and sets
forth several conditions to prevent fraud and protect laborers' rights.
The final rule will benefit U.S. businesses by facilitating a timely
flow of legal workers while ensuring the integrity of the program.
Both final rules provide that DHS will refuse to grant petitions for H-
2A or H-2B nonimmigrant status for nationals of countries consistently
refusing or unreasonably denying repatriation of their nationals. DHS
will identify any countries that it has determined fail to adequately
repatriate their nationals by notice in the Federal Register. Finally,
both rules also establish a pilot exit control program for certain H-2A
and H-2B workers, by requiring them to report their departure at
designated ports of entry.
United States Coast Guard
The U.S. Coast Guard (Coast Guard) is an Armed Service of the United
States and the only military organization within DHS. It is the
principal federal agency responsible for maritime safety, security, and
environmental stewardship and delivers daily value to the Nation
through multi-mission resources, authorities, and capabilities.
Effective governance in the maritime domain hinges upon an integrated
approach to safety, security, and environmental stewardship. The Coast
Guard's policies and capabilities are integrated and interdependent,
delivering results through a network of enduring partnerships. The
Coast Guard's ability to field versatile capabilities and highly-
trained personnel is the U.S. Government's most significant and
important strength in the maritime environment.
America is a maritime nation, and our security, resilience, and
economic prosperity are intrinsically linked to the oceans. Safety,
efficient waterways, and freedom of transit on the high seas are
essential to our well-being. The Coast Guard is leaning forward, poised
to meet the demands of the new millennium. The Coast Guard creates
value for the public through solid prevention and response efforts.
Activities involving oversight and regulation, enforcement, maritime
presence, and public and private partnership foster increased maritime
safety, security, and stewardship.
The statutory responsibilities of the Coast Guard include ensuring
marine safety and security, preserving maritime mobility, protecting
the marine environment, enforcing U.S. laws and international treaties,
and performing search and rescue. The Coast Guard supports the
Department's overarching goals of mobilizing and organizing our Nation
to secure the homeland from terrorist attacks, natural disasters, and

[[Page 71167]]

other emergencies. In performing its duties, the Coast Guard has
established five strategic goals-maritime safety, protection of natural
resources, maritime security, maritime mobility and national defense.
In 2008, the Coast Guard began a strategic campaign to further advance
the safety of recreational and commercial activities in the maritime
domain using focused prevention and response programs and activities.
In partnership with other federal agencies, state and local
governments, marine industries, and individual mariners, the Coast
Guard advances the safety of maritime communities, trade,
transportation, and recreational boating through focused prevention and
response programs. Although much has been achieved, developing
comprehensive maritime safety, security, and environmental protection
regimes for the nation remains our most important goal.
The Coast Guard rulemaking projects identified in the Unified Agenda,
and the five rules listed below, support these strategic goals and
reflect our regulatory policies.
Transportation Worker Identification Credential (TWIC); Card Reader
Requirements. The Coast Guard continues the Department's work in the
important area of implementing the transportation security card
requirements found in 46 U.S.C. Sec. 70105. Under the TWIC final rule
issued on January 25, 2007, certain workers in the maritime sector are
required to undergo security threat assessments and obtain TWICs. These
cards are used as visual identity badges, and are only read
electronically if the Coast Guard conducts spot checks or an annual
examination at a vessel or facility regulated by 33 CFR chapter I,
subchapter H. This advance notice of proposed rulemaking (ANPRM) asks
whether the Coast Guard should require certain owners and operators of
these vessels and facilities to also read the cards electronically,
including checking for a match of the TWIC holder's fingerprint with
the template stored on the TWIC. These proposed requirements would be
necessary in order to ensure that only the individual to whom the TWIC
was issued (and on whom the security threat assessment was conducted)
is able to use it to gain unescorted access to secure areas or to hold
their Coast Guard issued merchant mariner credential. The SAFE Port Act
requires the Coast Guard to promulgate card reader regulations. This
rulemaking supports the Coast Guard Commandant's strategic goal of
maritime security.
Vessel Requirements for Notices of Arrival and Departure and Automatic
Identification System. This is a regulatory action of particular
importance to the Coast Guard in the Department's Fall 2008 Regulatory
Plan. Currently, the Coast Guard does not have a mechanism to capture
vessel, crew, passenger, or specific cargo information on vessels less
than or equal to 300 gross tons intending to arrive at or depart from
U.S. ports unless they are arriving with certain dangerous cargo or are
arriving at a port or place within the 7th Coast Guard District
(primarily Florida and surrounding waters). To remedy this situation,
the Coast Guard will issue a NPRM that proposes to expand the
applicability of these requirements to better enable the Coast Guard to
correlate vessel Automatic Identification System data with Notices of
Arrival and Departure (NOAD) data, enhance the Coast Guard's ability to
identify and track vessels, detect anomalies, improve navigation
safety, and heighten overall maritime domain awareness and security.
This rulemaking would expand the applicability of NOADs to include all
foreign commercial vessels, regardless of tonnage, and all U.S.
commercial vessels arriving from a foreign port or place. This
rulemaking supports the Coast Guard Commandant's strategic goals of
maritime safety and maritime security.
Implementation of the 1995 Amendments to the International Convention
on Standards of Training, Certification, and Watchkeeping (STCW) for
Seafarers, 1978. In 1995, the International Maritime Organization (IMO)
comprehensively amended the STCW. The amendments came into force on
February 1, 1997. This project implements those amendments by revising
current regulations to ensure that the United States complies with
their requirements for the training of merchant mariners, the
documenting of their qualifications, and watch-standing and other
arrangements aboard seagoing merchant ships of the Unites States. This
rulemaking also makes several minor editorial and clarification changes
throughout 46 CFR parts 10, 11, 12, and 15. This project supports the
Coast Guard Commandant's strategic goal of maritime safety.
Increasing Passenger Weight Standards on Passenger Vessels. This
project would develop a rule that addresses both the stability
calculations and the environmental operating requirements for certain
domestic passenger vessels. The proposed rule would address the
outdated per-person weight averages that are currently used in
stability calculations for certain domestic passenger vessels. In
addition, the proposed rule would add environmental operating
requirements for domestic passenger vessels that could be adversely
affected by sudden inclement weather. This rulemaking would increase
passenger safety by significantly reducing the risk of certain types of
passenger vessels capsizing due to either passenger overloading or
operating these vessels in hazardous weather conditions. This
rulemaking supports the Coast Guard Commandant's strategic goal of
maritime safety.
Standards for Living Organisms in Ships' Ballast Water Discharged in
U.S. Waters. This rulemaking would amend the ballast water management
requirements (33 CFR part 151 subpart D) and establish a standard that
specifies the level of biological treatment that must be achieved by a
ballast water treatment system before ballast water can be discharged
into U.S. waters. The unintentional introduction of nonindigenous
species into U.S. waters via the discharge of vessels' ballast water
has had significant impacts to the nation's aquatic resources,
biological diversity, and coastal infrastructures. This rulemaking
would increase the Coast Guard's ability to protect U.S. waters against
the introduction of nonindigenous species via ballast water discharges
and supports the Coast Guard Commandant's strategic goal of maritime
safety and environmental stewardship.
United States Customs and Border Protection
U.S. Customs and Border Protection (CBP) is the federal agency
principally responsible for the security of our Nation's borders, both
at and between the ports of entry and at official crossings into the
United States. CBP must accomplish its border security and enforcement
mission without stifling the flow of legitimate trade and travel. The
primary mission of CBP is its homeland security mission, that is, to
prevent terrorists and terrorist weapons from entering the United
States. An important aspect of this priority mission involves improving
security at our borders and ports of entry, but it also means extending
our zone of security beyond our physical borders.

[[Page 71168]]

CBP is also responsible for administering laws concerning the
importation into the United States of goods, and enforcing the laws
concerning the entry of persons into the United States. This includes
regulating and facilitating international trade; collecting import
duties; enforcing U.S. trade, immigration and other laws of the United
States at our borders; inspecting imports, overseeing the activities of
persons and businesses engaged in importing; enforcing the laws
concerning smuggling and trafficking in contraband; apprehending
individuals attempting to enter the United States illegally; protecting
our agriculture and economic interests from harmful pests and diseases;
servicing all people, vehicles and cargo entering the United States;
maintaining export controls; and protecting U.S. businesses from theft
of their intellectual property.
In carrying out its priority mission, CBP's goal is to facilitate the
processing of legitimate trade and people efficiently without
compromising security. Consistent with its primary mission of homeland
security, CBP published several final and proposed rules during the
last fiscal year and intends to propose and finalize others during the
next fiscal year that are intended to improve security at our borders
and ports of entry. We have highlighted some of these rules below.
Electronic System for Travel Authorization (ESTA). On June 9, 2008, CBP
published an interim final rule amending Title 8 of the Code of Federal
Regulations. That rule implemented the Electronic System for Travel
Authorization (ESTA) for aliens who wish to enter the United States
under the Visa Waiver Program (VWP) at air or sea ports of entry. This
rule, which was effective August 8, 2008, establishes ESTA and
delineates the data fields that DHS has determined the system will
collect. The rule requires that each alien traveling to the United
States under the VWP must obtain electronic travel authorization via
the ESTA System in advance of such travel. VWP travelers may obtain the
required ESTA authorization by electronically submitting to CBP
biographic and other information as currently required by the I-94W
Nonimmigrant Alien Arrival/Departure Form. The Secretary of Homeland
Security will inform the public of the date on which ESTA is mandatory
by Federal Register notice. DHS anticipates that the Secretary of
Homeland Security will issue this notice in November 2008, for
implementation of the mandatory ESTA requirements on or before January
12, 2009. Once ESTA is mandatory, all VWP travelers must either obtain
travel authorization in advance of travel under ESTA or obtain a visa
prior to traveling to the United States.
This rule is intended to fulfill the requirements of section 711 of the
9/11Act. By procedurally shifting from a paper form to an electronic
form and requiring the data in advance of travel, CBP will be able to
determine, before the alien departs for the United States, the
eligibility of nationals from VWP countries and whether such travel
poses a law enforcement or security risk. In addition to fulfilling a
statutory mandate, the interim final rule serves the twin goals of
promoting border security and legitimate travel to the United States.
By modernizing the VWP, the ESTA is intended to both increase national
security and provide for greater efficiencies in the screening of
international travelers by allowing for vetting of subjects of
potential interest well before boarding, thereby reducing traveler
delays based on lengthy processes at ports of entry.
Western Hemisphere Travel Initiative (WHTI). On April 3, 2008, CBP
finalized the second phase of a joint DHS and Department of State plan,
known as WHTI, to implement new documentation requirements for U.S.
citizens and certain nonimmigrant aliens entering the United States.
This final rule identifies which documents U.S. citizens and
nonimmigrant citizens of Canada, Bermuda, and Mexico will be required
to present when entering the United States from within the Western
Hemisphere at sea and land ports-of-entry. This final rule is effective
on June 1, 2009. WHTI implements requirements of the Intelligence
Reform and Terrorism Prevention Act of 2004 (IRTPA), as amended, which
provides that upon full implementation, U.S. citizens and certain
classes of nonimmigrant aliens may enter the United States only with
passports or such alternative documents as the Secretary of Homeland
Security designates as satisfactorily establishing identity and
citizenship.
Advance Information on Private Aircraft Arriving and Departing the
United States. On September 18, 2007, CBP published a NPRM titled
``Advance Information on Private Aircraft Arriving and Departing the
United States.'' It proposes to require that the pilot of any private
aircraft arriving in the United States from a foreign location or
departing the United States for a foreign location provide an advance
electronic transmission of information to CBP describing all of the
individuals traveling onboard the aircraft. Under the proposal, the
pilot must transmit this information by an electronic data interchange
system approved by CBP. CBP intends to publish a final rule during the
next fiscal year. These regulations will assist CBP in adequately and
accurately assessing potential security threats by private aircraft
entering and departing the United States.
Importer Security Filing and Additional Carrier Requirements. On
January 1, 2008, CBP published an NPRM titled ``Importer Security
Filing and Additional Carrier Requirements.'' It would amend CBP
regulations to require carriers and importers to provide to CBP, via a
CBP approved electronic data interchange system, information necessary
to enable CBP to identify high-risk shipments to prevent smuggling and
ensure cargo safety and security. Under the proposed rule, importers
and carriers must submit certain information to CBP before the cargo is
brought into the United States by vessel. These regulations would
implement the provisions of section 203 of the Security and
Accountability for Every Port Act of 2006 and section 343(a) of the
Trade Act of 2002, as amended by the Maritime Transportation Security
Act of 2002. This rule would improve CBP's risk assessment and
targeting capabilities, while at the same time, enabling the agency to
facilitate the prompt release of legitimate cargo following its arrival
in the United States. The information would assist CBP in increasing
the security of the global trading system. CBP intends to publish a
final rule during the next fiscal year.
Implementation of Guam-CNMI Visa Waiver Program. Section 702 of the
Consolidated Natural Resources Act of 2008 (CNRA) extends the
immigration laws of the United States to the Commonwealth of the
Northern Mariana Islands (CNMI) and provides for a joint visa waiver
program for travel to Guam and the CNMI. CBP will be issuing an interim
final rule to implement section 702 of the CNRA by amending the
regulations to replace the current Guam Visa Waiver Program with a new
Guam-CNMI Visa Waiver Program.
Section 403(1) of the Homeland Security Act transferred the former U.S.
Customs Service, including functions of the Secretary of the Treasury
relating thereto, to the Secretary of Homeland Security. As part of the
initial organization of DHS, the Customs

[[Page 71169]]

Service inspection and trade functions were combined with the
immigration and agricultural inspection functions and the Border Patrol
and transferred into CBP. The Department of the Treasury, however,
retained regulatory authority of the U.S. Customs Service relating to
customs revenue functions. In addition to its plans to continue issuing
regulations to enhance border security, CBP, during fiscal year 2009,
expects to continue to issue regulatory documents that will facilitate
legitimate trade and implement trade benefit programs. CBP regulations
regarding the customs revenue function are discussed in the regulatory
plan of the Department of the Treasury.
Federal Emergency Management Agency
The Federal Emergency Management Agency's (FEMA) primary mission is to
reduce the loss of life and property and protect the Nation from all
hazards, including natural disasters, acts of terrorism, and other man-
made disasters, by leading and supporting the Nation in a risk-based,
comprehensive emergency management system of preparedness, protection,
response, recovery, and mitigation. FEMA is leading the Nation's
efforts to develop and maintain an integrated, nationwide operational
capability to prepare for, respond to, recover from, and mitigate
against hazards, regardless of their cause, in partnership with other
federal agencies, state and local governments, volunteer organizations,
and the private sector. The agency also coordinates and implements the
federal response to disasters declared by the President.
In fiscal year 2009, FEMA will continue to promote the DHS Strategic
Goals of awareness, prevention, protection, response, and recovery. In
furtherance of the Department's and agency's goals, FEMA will develop
regulations that implement provisions of the Post-Katrina Emergency
Management Reform Act of 2006 (PKEMRA) (Pub. L. 109-295).
Disaster Assistance; Federal Assistance to Individuals and Households.
The first of these rules will update the current interim rule entitled
``Disaster Assistance; Federal Assistance to Individuals and
Households.'' This rulemaking would implement section 408 of the Robert
T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C.
Sec. Sec. 5121-5207 (Stafford Act). It would also make further
revisions to 44 CFR part 206, subparts D (the Individuals and
Households Program (IHP)) and E. Among other things, it would implement
section 686 of PKEMRA to remove the IHP subcaps and implement section
685 regarding semi-permanent and permanent housing construction
eligibility; revise FEMA's regulations pursuant to section 689 of
PKEMRA; and revise FEMA's regulations to allow for the payment of
security deposits and the costs of utilities, excluding telephone
service, in accordance with section 689d of PKEMRA. This regulation
would also implement section 689f of PKEMRA by authorizing assistance
to relocate individuals displaced from their predisaster primary
residence, to and from alternate locations for short-or long-term
accommodations.
Public Assistance Program regulations. FEMA will also work to revise
the Public Assistance Program regulations in 44 CFR part 206 to reflect
changes made to the Stafford Act by PKEMRA, the Pets Evacuation and
Transportation Standards Act of 2006 (PETS Act) (Pub. L. 109-308), the
Local Community Recovery Act of 2006 (Pub. L. 109-218), and the
Security and Accountability for Every Port Act of 2006 (SAFE Port Act)
(Pub. L. 109-347), and to make other substantive and nonsubstantive
clarifications and corrections. The proposed changes will expand
eligibility to include performing arts facilities and community arts
centers pursuant to section 688 of PKEMRA; include education in the
list of critical services pursuant to section 689h of PKEMRA, thus
allowing private nonprofit educational facilities to be eligible for
restoration funding; add accelerated Federal assistance to available
assistance and precautionary evacuations to activities eligible for
reimbursement pursuant to section 681 of PKEMRA, include household pets
and service animals in essential assistance pursuant to section 689 of
PKEMRA and section 4 of the PETS Act, provide for expedited payments of
grant assistance for the removal of debris pursuant to section 610 of
the SAFE Port Act, and allow for a contract to be set aside for award
based on a specific geographic area pursuant to section 2 of the Local
Community Recovery Act of 2006. Other changes include the addition or
revision of requirements to improve the Public Assistance grant
application process.
Special Community Disaster Loans (SCDL) Program. In addition, FEMA
intends to propose a revision to the Special Community Disaster Loans
(SCDL) Program to implement loan cancellation provisions for SCDLs
provided by FEMA to local governments in the Gulf region following
Hurricanes Katrina and Rita. This rule would not result in the
automatic cancellation of all SCDLs. Instead, it would propose
procedures and requirements for governments who received SCDLs to apply
for cancellation of loan obligations as authorized by section 4502 of
the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq
Accountability Appropriations Act, 2007 (Pub. L. 110-28). The proposed
procedures would provide FEMA with information that would then be used
to determine when cancellation of a SCDL, in whole or in part, is
warranted. The proposed rule would not apply to any loans made under
FEMA's traditional Community Disaster Loans Program which is governed
under separate regulations.
United States Immigration and Customs Enforcement
The mission of the U.S. Immigration and Customs Enforcement (ICE) is to
prevent the movement across borders of people, money, and materials
that could harm our Nation and its people; prevent violations of
immigration law by terrorists, criminals, and others who exploit us by
entering and remaining in the country illegally; and mitigate risks to
national security at home and abroad.
During fiscal year 2009, ICE will pursue rulemakings that implement
major components of the President's and Department's Strategic Goals.
Specifically, ICE will focus on two critical areas: improving the
tracking of foreign students, particularly alien flight training
students; and fully implementing the certification, oversight, and
recertification of schools certified by the Student and Exchange
Visitor Program (SEVP) for attendance by F and/or M nonimmigrant
students.
Amendment of Flight Training Regulations for F and M Nonimmigrants and
to Transition J Flight Programs of the Department of State to M Flight
Programs with the Department of Homeland Security. ICE will transition
all J flight training programs from Department of State designation to
DHS (i.e., SEVP certification); and promote international flight safety
by modifying regulations to expand practical training opportunities for
those in alien flight training programs. As a matter of national
security, it is important that DHS provide efficient and effective
oversight of flight training programs.
Student and Exchange Visitor Program (SEVP). ICE will also amend
regulations, located at 8 CFR 214.3 and 214.4, which govern
certification, oversight and

[[Page 71170]]

recertification of schools certified by SEVP for attendance by F and/or
M nonimmigrant students. The rule will clarify the criteria for initial
certification, compliance, and recertification of SEVP-certified
schools every two years.
Transportation Security Administration
The Transportation Security Administration (TSA) protects the Nation's
transportation systems to ensure freedom of movement for people and
commerce. TSA is committed to continuously setting the standard for
excellence in transportation security through its people, processes,
and technology as we work to meet the immediate and long-term needs of
the transportation sector.
In fiscal year 2009, TSA will promote the DHS Strategic Goals of
awareness, prevention, protection, response, and service by emphasizing
regulatory efforts that allow TSA to better identify, detect, and
protect against threats against various modes of the transportation
system, while facilitating the efficient movement of the traveling
public, transportation workers, and cargo.
Screening of Air Cargo. TSA is developing a rulemaking that codifies a
statutory requirement of the 9/11 Act that TSA establish a system to
screen 100% of cargo transported on passenger aircraft by August 3,
2010. To assist in carrying out this mandate, TSA is establishing a
voluntary program under which it will certify cargo screening
facilities to screen cargo according to TSA standards prior to its
being tendered to aircraft operators for carriage on passenger
aircraft.
Large Aircraft Security Program (General Aviation (GA)). In addition,
TSA plans to amend current aviation transportation security regulations
to enhance the security of general aviation by expanding the scope of
current requirements and by adding new requirements for certain large
aircraft operators and airports serving those aircraft. To date, the
government's focus with regard to aviation security generally has been
on air carriers and commercial operators. As vulnerabilities and risks
associated with air carriers and commercial operators have been reduced
or mitigated, terrorists may perceive that GA aircraft are more
vulnerable and may view them as attractive targets. This rule would
enhance aviation security by requiring operators of aircraft with a
maximum certificated takeoff weight above 12,500 pounds (``large
aircraft'') to adopt a security program and to undertake other security
measures. The rule would also impose security requirements on certain
airports that serve large aircraft to adopt security programs.
Security Training for Non-Aviation Modes. TSA also will issue
regulations to enhance the security of several non-aviation modes of
transportation, in accordance with the requirements of the 9/11 Act. In
particular, TSA will issue regulations requiring freight railroads,
passenger railroads, mass transportation system operators, and over-
the-road bus operators to conduct security training for certain of
their employees.
Aircraft Repair Station Security. TSA will be promulgating regulations
to require foreign repair stations that are certificated by the Federal
Aviation Administration (FAA) under 14 CFR Part 145 to adopt and
implement standard security programs and to comply with security
directives issued by TSA. The rule also proposes to codify the scope of
TSA's existing inspection program and to require regulated parties to
allow DHS officials to enter, inspect, and test property, facilities,
and records relevant to repair stations. This rulemaking action
implements section 1616 of the 9/11 Act.
DHS Regulatory Plan for Fiscal Year 2009
A more detailed description of the priority regulations that comprise
DHS's Fall 2008 Regulatory Plan follows.
_______________________________________________________________________

DHS--Office of the Secretary (OS)

-----------

FINAL RULE STAGE

-----------

45. COLLECTION OF ALIEN BIOMETRIC DATA UPON EXIT FROM THE UNITED STATES
AT AIR AND SEA PORTS OF DEPARTURE; UNITED STATES VISITOR AND IMMIGRANT
STATUS INDICATOR TECHNOLOGY PROGRAM (US-VISIT)

Priority:

Economically Significant. Major under 5 USC 801.

Unfunded Mandates:

This action may affect the private sector under PL 104-4.

Legal Authority:

8 USC 1101 to 1104; 8 USC 1182; 8 USC 1184 to 1185 (pursuant to EO
13323); 8 USC 1221; 8 USC 1365a, 1365b; 8 USC 1379; 8 USC 1731 to 1732

CFR Citation:

8 CFR 215.1; 8 CFR 231.4

Legal Deadline:

None

Abstract:

DHS established the United States Visitor and Immigrant Status
Indicator Technology Program (US-VISIT) in accordance with a series of
legislative mandates requiring that DHS create an integrated automated
entry-exit system that records the arrival and departure of aliens;
verifies aliens' identities; and authenticates travel documents. On
January 5, 2004, DHS published an Interim Final Rule in the Federal
Register at 69 FR 468 authorizing the Secretary of Homeland Security to
require, in part, certain aliens to provide fingerprints,
photograph[s], or other biometric identifiers, documentation of
immigration status in the United States, and other such evidence as may
be required to determine the alien's identity and whether he or she has
properly maintained immigration status while in the United States at
the time of departure from the United States. The Interim Rule
authorized the establishment of pilot programs at up to fifteen air and
sea ports of entry to evaluate the implementation of this departure
procedure. That evaluation pilot has been completed and this rule
establishes procedures for collection of biometrics from aliens
departing the United States from air or sea ports. This rule removes
the limit on the collection of this information from the 15 locations
of the pilot programs and authorizes implementation at all air and sea
ports of entry. This rule requires aliens to provide biometric
identifiers at entry to provide biometric identifiers upon departure at
any air and sea port of entry at which facilities exist to collect such
information.

Statement of Need:

This rule establishes an exit system at all air and sea ports of
departure in the United States. This rule requires aliens subject to
United States Visitor and Immigrant Status Indicator Technology Program
biometric requirements upon entering the United States to also provide
biometric identifiers prior to departing the United States from air or
sea ports of departure.

Anticipated Cost and Benefits:

Economic analysis under development.

[[Page 71171]]

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 04/24/08 73 FR 22065
NPRM Comment Period End 06/23/08
Other/Final Rule 04/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Helen DeThomas
Management and Programs Analyst
Department of Homeland Security
1616 N. Fort Myer Drive
Arlington, VA 22203
Phone: 202 298-5173
Email: [email protected]
Related RIN: Previously reported as 1650-AA04
RIN: 1601-AA34
_______________________________________________________________________

DHS--OS

46. UNITED STATES VISITOR AND IMMIGRANT STATUS INDICATOR TECHNOLOGY
PROGRAM (US-VISIT), ENROLLMENT OF ADDITIONAL ALIENS IN US-VISIT

Priority:

Other Significant. Major under 5 USC 801.

Legal Authority:

PL 106-215, sec 2(a), 114 Stat 337 (June 15, 2000); PL 106-396, sec
205, 114 Stat 1637, 1641 (October 30, 2000); PL 107-56, sec 114, 115
Stat 271, 553 (October 26, 2001); PL 107-173, sec 302, 116 Stat 543,
552 (May 14, 2002)

CFR Citation:

8 CFR 215.8; 8 CFR 235.1

Legal Deadline:

None

Abstract:

In 2003, the Department of Homeland Security established the United
States Visitor and Immigrant Status Technology Program (US-VISIT),
whose objective is to create and maintain an integrated, automated
entry-exit system that records the arrival and departure of aliens,
verifies their identities, and authenticates their travel documents
through comparison of biometric identifiers. The goals of the US-VISIT
program are to enhance the security of United States citizens and
visitors to the United States, facilitate legitimate travel and trade,
ensure the integrity of the United States immigration system, and
protect the privacy of visitors to the United States. In its early
stages, US-VISIT applied only to nonimmigrants with visas and to those
who did not require a visa as they were entering under the Visa Waiver
Program. This rule would amend DHS regulations to provide that all
aliens, including Lawful Permanent Residents, may be enrolled into US-
VISIT, with the exception of Canadian citizens entering the United
States as either B-1 visitors for business or B-2 visitors for
pleasure, or these categories of alien expressly exempt by statute or
regulation.

Statement of Need:

On July 27, 2006, DHS published a proposed rule in the Federal Register
that outlined DHS' plan to begin enrolling additional groups of aliens
into the US-VISIT biometric screening protocol. (US-VISIT is an
integrated, automated entry-exit system that records the arrival and
departure of aliens, verifies aliens' identities, and authenticates
aliens' travel documents through the comparison of biometric
identifiers.) The expansion of US-VISIT biometric screening to these
additional groups is needed in order to verify the identity and
authenticity of aliens presenting United States issued travel documents
upon an application for admission. The expansion is consistent with the
implementation of the US-VISIT program to date, which has taken an
incremental, phased-in approach to the biometric screening of aliens
applying for admission to and exiting from the United States. This
expansion will encompass the majority of aliens to-date not undergoing
biometric screening by the US-VISIT program.

Summary of Legal Basis:

While the establishment of the US-VISIT program is found in the
provisions of several public laws, the abstracts of which have been
discussed in several rulemakings (See 69 FR 53318, for example), the
authority for the expansion of the program to additional alien groups
may be found in section 302(b)(2) of the Enhanced Border Security and
Visa Entry Reform Act of 2002, Public Law 107-173, 116 Stat. 543, 552
(May 14, 2002). This section of law requires the United States to
install at all ports of entry equipment and software that allows for
the biometric comparison and authentication of all United States visas
and all machine-readable, tamper-resistant travel and entry documents
that are issued to aliens. The installation of the needed equipment and
software is complete.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 07/27/06 71 FR 42605
NPRM Comment Period End 08/28/06
Final Rule 11/00/08

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Helen DeThomas
Management and Programs Analyst
Department of Homeland Security
1616 N. Fort Myer Drive
Arlington, VA 22203
Phone: 202 298-5173
Email: [email protected]
Related RIN: Previously reported as 1650-AA06
RIN: 1601-AA35
_______________________________________________________________________

DHS--U.S. Citizenship and Immigration Services (USCIS)

-----------

PROPOSED RULE STAGE

-----------

47. DOCUMENTS AND RECEIPTS ACCEPTABLE FOR EMPLOYMENT
ELIGIBILITY VERIFICATION

Priority:

Other Significant

Legal Authority:

8 U.S.C. 1101; 8 U.S.C. 1103; 8 U.S.C. 1324a

CFR Citation:

8 CFR 274a

[[Page 71172]]

Legal Deadline:

None

Abstract:

This rule proposes amendments to regulations governing the types of
acceptable identity and employment authorization documents that
employees may present to their employers for completion of the Form I-
9, Employment Eligibility Verification. The purpose of this proposed
rule is to further improve the integrity of the employment eligibility
verification process by adding safeguards and ensuring that the list of
acceptable identity and employment authorization documents contains
secure and fraud-resistant documents.

Statement of Need:

To further improve the integrity of the employment eligibility
verification process, and to ensure that the list of acceptable
identity and employment authorization documents contain secure and
fraud-resistant documents.

Summary of Legal Basis:

All employers and agricultural recruiters and referrers for a fee
(collectively referred to as ``employer(s)'') are required to verify
the identity and employment authorization of each individual they hire
for employment in the United States, regardless of the individual's
citizenship. (See Immigration and Nationality Act (INA) section
274A(a)(1)(B), 8 U.S.C. 1324a(a)(1)(B)).

As part of the verification process, employers must complete Form I-9,
Employment Eligibility Verification, retain the form for a statutorily-
established period of time, and make the form available for inspection
by certain government officials. (See INA section 274A(b), 8 U.S.C.
1324a(b); 8 CFR 274a.2).

The documents designated as acceptable for the Form I-9 are divided
among three lists:

List A--documents that establish both identity and employment
authorization;

List B--documents that establish only identity; and

List C--documents that establish only employment
authorization.

(See INA sections 274A(b)(1)(B),(C) and (D), 8 U.S.C.
1324a(b)(1)(B),(C); 8 CFR 274a.2(B)(1)(v)(A), B) and (C)).

Additionally, DHS possesses statutory authority to prohibit or place
conditions on the use of documents establishing the employment
authorization or identity of individuals for Form I-9 purposes if DHS
finds, by regulation, that such documents do not reliably establish
employment authorization or identity or are being used fraudulently to
an unacceptable degree. (See INA section 274A(b)(1)(E), 8 U.S.C.
1324a(b)(1)(E)).

The changes proposed in this rule are not required by statute or court
order.

Alternatives:

This proposed rule requests input from the public on what alternatives,
if any, DHS should consider. The proposed rule also requests that any
alternatives suggested should include the costs and benefits of those
alternatives, as well as the effect on small entities.

Anticipated Cost and Benefits:

There are significant unquantifiable benefits.

The proposal provides details and specificity on acceptable identity
and employment authorization documents, which are not present in the
legislation or current regulations.

Cost Analysis.

The cost benefit analysis of this proposed rule will be provided to the
Office of Management and Budget (OMB) and will be available for review
in the public docket for this rulemaking at www.regulations.gov once
this proposed rule is published in the Federal Register.

Risks:

An employment eligibility verification system that relies on a wide
range of documents may result in misapplication of the employment
eligibility verification requirements. In addition, a complicated
system may encourage fraud and result in individuals who are authorized
to work in the United States being displaced by unauthorized
individuals.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 11/00/08
NPRM Comment Period End 12/00/08

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Businesses

Government Levels Affected:

None

Agency Contact:
Miriam Hetfield
Branch Chief, E-Verify Operations
Department of Homeland Security
U.S. Citizenship and Immigration Services
Suite 8202
490 L'Enfant East SW.
Washington, DC 20024
Phone: 202 358-7777
Email: [email protected]
Related RIN: Related to 1615-AB69
RIN: 1615-AB72
_______________________________________________________________________

DHS--USCIS

48. COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS TRANSITIONAL
NONIMMIGRANT INVESTOR CLASSIFICATION

Priority:

Other Significant

Legal Authority:

8 U.S.C. 1101; 8 U.S.C. 1102; 8 U.S.C. 1103; 8 U.S.C. 1182; 8 U.S.C.
1184; 8 U.S.C. 1186a

CFR Citation:

8 CFR 214

Legal Deadline:

None

Abstract:

On May 8, 2008, Public Law 110-229, Commonwealth Natural Resources Act,
established a transitional period for the application of the
Immigration and Nationality Act (INA) to the Commonwealth of the
Northern Mariana Islands (CNMI). Although the CNMI is subject to most
U.S. laws, the CNMI has administered its own immigration system under
the terms of its 1976 covenant with the United States. The Department
of Homeland Security is proposing to amend its regulations by creating
a new E2 CNMI Investor classification for the duration of the
transition period. These temporary provisions are necessary to reduce
the potential harm to the CNMI economy before these foreign workers and
investors are required to convert into U.S. immigrant or nonimmigrant
visa classifications.

Statement of Need:

This proposed rule responds to a Congressional mandate that requires
the Federal Government assume responsibility for visas for entry to
CNMI by foreign investors. This proposed rule will reduce the degree of
fraud in visas to CNMI and the threat

[[Page 71173]]

to homeland security posed by terrorists trying to enter CNMI with
fraudulent visas as a gateway to the continental United States.

Summary of Legal Basis:

This proposed rule is based upon a Congressional mandate to publish
regulations to implement the nonimmigrant investor visa provisions of
the Consolidated Natural Resources Act of 2008 ( Pub.L. 110-229). This
public law extends the immigration laws of the United States to the
CNMI. Public Law 110-229 authorizes the Secretary of Homeland Security
to classify an alien as a CNMI-only nonimmigrant under section
101(a)(15)(E)(ii) of the Immigration and Nationality Act (Act) (8
U.S.C. 1101(a)(15)(E)(ii)) if the alien meets the requirements of the
Act.

Alternatives:

In light of the potential adverse economic impact of such limitations
and the goal of limiting adverse economic impact on the CNMI, such
limiting options were not chosen. DHS chose the broadest interpretation
possible, whereby long-term business investors, perpetual foreign
investors and foreign retiree investors would be eligible for CNMI E-2
Investor status, because it believes such an interpretation is most in
keeping with the mandate to limit adverse economic impact.

Anticipated Cost and Benefits:

Public Costs:

This rule reduces the employer's annual cost by $200 per year ($500 -
$300), plus any further reduction caused by eliminating the paperwork
burden associated with the CNMI's process. In 2006 -- 2007, there were
464 long-term business entry permit holders and 20 perpetual foreign
investor entry permit holders and retiree investor permit holders,
totaling 484, or approximately 500 foreign registered investors. The
total savings to employers from this rule is thus expected to be
$100,000 per year ($500 x $200).

Cost to the Federal Government:

The yearly Federal Government cost is estimated at $42,310.

Benefits:

The potential abuse of the visa system by those seeking to illegally
emigrate from the CNMI to Guam or elsewhere in the United States
reduces the integrity of the United States immigration system by
increasing the ease by which aliens may unlawfully enter the United
States through the CNMI. Federal oversight and regulations of CNMI
foreign investors should help reduce abuse by foreign employees in the
CNMI, and should help reduce the opportunity for aliens to use the CNMI
as an entry point into the United States.

Conclusion:

This proposed rule responds to a Congressional mandate that requires
the Federal Government to assume responsibility for all immigration to
the CNMI by foreign investors, whether temporary or permanent. This
proposed rule will implement this mandate and thus contribute to U.S.
homeland security.

Risks:

This proposed regulation attempts to mitigate potential harm to the
CNMI economy before the CNMI foreign investors are required to convert
into United States immigrant or nonimmigrant visa classifications. The
regulation is intended to assist CNMI investment permit holders to
convert from their current status to a status covered under the Act
during the transition period while considering their contributions to
the well-being of the CNMI economy. Data gathered by the GAO suggests
that perpetual foreign investors and long-term business permit holders
invested at least $72 million in the CNMI in 2006 and 2007. The
proposed regulation attempts to reduce the risk of losing substantial
investments by including a majority of CNMI's current investor
categories under the new E2 CNMI classification.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 11/00/08
NPRM Comment Period End 12/00/08

Regulatory Flexibility Analysis Required:

Government Levels Affected:

None

Additional Information:

CIS No. 2458-08

Agency Contact:
Steven Viger
Department of Homeland Security
U.S. Citizenship and Immigration Services
20 Massachusetts Ave., NW
Washington, DC 20529
Phone: 202 272-1470
Email: [email protected]
RIN: 1615-AB75
_______________________________________________________________________

DHS--USCIS

49. COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS TRANSITIONAL
WORKERS CLASSIFICATION

Priority:

Other Significant

Legal Authority:

PL 110-229

CFR Citation:

8 CFR 214.2

Legal Deadline:

None

Abstract:

This rule proposes to implement provisions of the Consolidated Natural
Resources Act of 2008 to provide for a transition for a sizable
population of temporary workers in the Commonwealth of Northern Mariana
Islands (CNMI) to workers admitted under the Immigration and
Nationality Act.

Statement of Need:

This rule is required by a statute that requires the Federal Government
to assume responsibility for visas for entry to the CNMI by non-
resident workers.

Summary of Legal Basis:

The Consolidated Natural Resources Act of 2008 (CNRA), P.L. 110-229,
enacted on May 8, 2008, extends the Immigration and Nationality Act
(INA) in full to the Commonwealth of Northern Mariana Islands.

Alternatives:

This rule is required by statute and alternatives were not considered.

Anticipated Cost and Benefits:

Each of the estimated 22,000 CNMI transitional workers will be required
to pay a $320 fee per year, for an annualized cost to the affected
public of $7 million.

[[Page 71174]]

Risks:

The effect of this rule on the CNMI economy is uncertain at this point.
The Senate Report of Public Law 110-229 states that there are risks to
the homeland security as a result of the lack of integrity in the CNMI
immigration system that resulted in the passage of the legislation
requiring this rule's promulgation.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 12/00/08
NPRM Comment Period End 01/00/09

Regulatory Flexibility Analysis Required:

Undetermined

Government Levels Affected:

State

Agency Contact:
Sophia Cox
Department of Homeland Security
U.S. Citizenship and Immigration Services
20 Massachusetts Avenue NW., 2nd Floor
Washington, DC 20529
Phone: 202 272-1522
Email: [email protected]
RIN: 1615-AB76
_______________________________________________________________________

DHS--USCIS

-----------

FINAL RULE STAGE

-----------

50. CHANGES TO REQUIREMENTS AFFECTING H-2A NONIMMIGRANTS

Priority:

Other Significant

Legal Authority:

8 USC 1101 and 1102

CFR Citation:

8 CFR 214; 8 CFR 274a

Legal Deadline:

None

Abstract:

U.S. Citizenship and Immigration Services is amending the regulations
affecting temporary and seasonal agricultural workers within the H-2A
nonimmigrant category and their U.S. employers. The rule relaxes the
current limitations on the ability of U.S. employers to petition
unnamed agricultural workers to come to the United States and makes
related changes to the evidentiary requirements for such petitions. In
addition, the rule revises the current limitations on agricultural
workers' length of stay, including: Redefining ``temporary
employment;'' lengthening the amount of time an agricultural worker may
remain in the United States after their H-2A nonimmigrant status has
expired; and shortening the time period that an agricultural worker
whose H-2A nonimmigrant status has expired must wait before he or she
is eligible to obtain H-2A nonimmigrant status again. Finally, this
rule provides for temporary employment authorization to agricultural
workers seeking an extension of their H-2A nonimmigrant status through
a different U.S. employer. These changes are necessary to encourage and
facilitate the lawful employment of foreign agricultural workers.

Statement of Need:

The final rule removes certain limitations on H-2A employers and adopts
streamlining measures in order to encourage and facilitate the lawful
employment of foreign temporary and seasonal agricultural workers. The
final rule also addresses concerns regarding the integrity of the H-2A
program and sets forth several conditions to prevent fraud and to
protect laborers' rights. The purpose of the final rule is to provide
agricultural employers with an orderly and timely flow of legal
workers, thereby decreasing their reliance on unauthorized workers,
while protecting the rights of laborers.

Summary of Legal Basis:

The H-2A nonimmigrant classification applies to aliens who are coming
to the United States temporarily to perform agricultural labor or
services of a temporary or seasonal nature. INA section
101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a).

Alternatives:

Since DHS does not foresee the rule having a significant economic
impact on small entities, this rule does not put forth significant
alternatives to minimize impacts.

Anticipated Cost and Benefits:

USCIS funds the cost of processing applications and petitions for
immigration and naturalization benefits and services, and USCIS'
associated operating costs, by charging and collecting fees. For each
Form I-129 USCIS charges a filing fee of $320. This rule does not
change that fee, thus, the fee impacts of this rule on each petitioning
firm are neutral. The enhancements in this rule are expected to
increase the number of H-2A petitions per year by an estimated 3,600.
Thus aggregate petition fees for H-2A employees as a result of this
rule are expected to increase by $1,152,000.

This rule will benefit applicants by:

-- Reducing delays caused by IBIS checks holding up the petition
application process.

-- Reducing disruption of the life and affairs of H-2A workers in the
United States.

-- Protecting laborers' rights by precluding payment of fees by the
alien.

-- Preventing the filing of requests for more workers than needed, visa
selling, coercion of alien workers and their family members, or other
practices that exploit workers and stigmatize the H-2A program.

-- Encouraging employers who currently hire seasonal agricultural
workers who are not properly authorized to work in the United States to
replace those workers with legal workers.

-- Minimizing immigration fraud and human trafficking.

Risks:

Since DHS does not foresee the rule having a significant economic
impact on small entities, this rule does not put forth significant
alternatives to minimize impacts.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 02/13/08 73 FR 8230
NPRM Comment Period End 04/14/08
Final Action 11/00/08

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

Additional Information:

CIS 2428-07

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

[[Page 71175]]

Agency Contact:
Hiroko Witherow
Service Center Operations
Department of Homeland Security
U.S. Citizenship and Immigration Services
111 Massachusetts Avenue NW.
Washington, DC 20529
Phone: 202 272-8410
Email: [email protected]
RIN: 1615-AB65
_______________________________________________________________________

DHS--USCIS

51. CHANGES TO REQUIREMENTS AFFECTING H-2B NONIMMIGRANTS AND THEIR
EMPLOYERS

Priority:

Other Significant

Legal Authority:

8 USC 1101

CFR Citation:

8 CFR 214

Legal Deadline:

None

Abstract:

The Department of Homeland Security is amending its regulations
affecting temporary nonagricultural workers within the H-2B
nonimmigrant category and their U.S. employers. The changes are
designed to improve the efficiency and effectiveness of the H-2B
nonimmigrant classification. This rule relaxes the current limitations
on the ability of U.S. employers to petition unnamed nonagricultural
workers to come to the United States. In addition, this rule creates a
process that will allow for issuance of a partial approval notice in
the event that a security check generates adverse information on one
beneficiary who is part of a multiple beneficiary petition. Finally,
this rule provides for employer notification to USCIS within 30 days of
the date that the employee leaves employment or is terminated. These
proposals will increase the efficiency of the program by eliminating
certain regulatory barriers.

Statement of Need:

The final rule removes certain limitations on H-2B employers and adopts
streamlining measures in order to facilitate the lawful employment of
foreign temporary nonagricultural workers. The final rule also
addresses concerns regarding the integrity of the H-2B program and sets
forth several conditions to prevent fraud and protect laborers' rights.
The final rule will benefit U.S. businesses by facilitating a timely
flow of legal workers while ensuring the integrity of the program.

Summary of Legal Basis:

The H-2B classification applies to aliens who are coming to the United
States to perform nonagricultural labor or services of a temporary
nature. INA section 101(a)(15)(H)(ii)(b); 8 U.S.C.
1101(a)(15)(H)(ii)(b).

Alternatives:

This rule does not propose alternatives to minimize impacts. What cost
increases occur due to the revised requirements are not expected to
significantly affect entities and thus will not have a measurable
impact on their ability to carry out their business activities.

Anticipated Cost and Benefits:

This rule eliminates the ``extraordinary circumstances'' restriction on
periods of temporary need longer than one year and provides that such a
period could last up to three years. This change will greatly benefit
employers that utilize the H-2B program and that often need workers for
specific long-term, but temporary projects. The fee impacts of this
rule are neutral. Only those petitions received before the maximum
annual number is reached are adjudicated and the fee check deposited.
Petitions not received before the maximum annual number is reached are
rejected. Because the total number of H-2B visas available per year
will not increase and the total number of workers requested already
greatly exceeds the number of H-2B visas available, fees will not
increase because there will be no increase in Form I-129 filings that
are processed.

Risks:

None. The amendments to the regulations affecting H-2B nonimmigrant
workers and their U.S. employers are designed to improve the efficiency
and effectiveness of the H-2B nonimmigrant classification while
ensuring that the rights and interests of U.S. and H-2B workers are
protected.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 08/20/08 73 FR 49109
NPRM Comment Period End 09/19/08
Final Rule 11/00/08

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

Additional Information:

2432-07

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Sophia Cox
Department of Homeland Security
U.S. Citizenship and Immigration Services
20 Massachusetts Avenue NW., 2nd Floor
Washington, DC 20529
Phone: 202 272-1522
Email: [email protected]
RIN: 1615-AB67
_______________________________________________________________________

DHS--U.S. Coast Guard (USCG)

-----------

PRERULE STAGE

-----------

52. TRANSPORTATION WORKER IDENTIFICATION CREDENTIAL (TWIC); CARD READER
REQUIREMENTS (USCG-2007-28915)

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Unfunded Mandates:

Undetermined

Legal Authority:

33 USC 1226, 1231; 46 USC Ch 701; 50 USC 191, 192; EO 12656

CFR Citation:

33 CFR subchapter H

Legal Deadline:

Final, Statutory, August 2010, SAFE Port Act, codified at 46 USC
70105(k).

The final rule is required 2 years after the start of the pilot
program.

Abstract:

The Coast Guard is establishing electronic card reader requirements for
maritime facilities and vessels to be used in combination with TSA's
Transportation Worker Identification Credential.

Statement of Need:

The Maritime Transportation Security Act (MTSA) of 2002 explicitly
required

[[Page 71176]]

the issuance of a biometric transportation security card to all U.S.
merchant mariners and to workers requiring unescorted access to secure
areas of facilities and vessels. On May 22, 2006, the Transportation
Security Administration (TSA) and the Coast Guard published a Notice of
Proposed Rule Making (NPRM) to carry out this statute, proposing a
Transportation Worker Identification Credential (TWIC) Program where
TSA conducts security threat assessments and issues identification
credentials, while the Coast Guard requires integration of the TWIC
into the access control systems of vessels, facilities and OCS
facilities. This would have included the use of biometric TWIC readers
by vessels, facilities, and OCS facilities. Based upon comments
received during the public comment period, TSA and the Coast Guard
bifurcated the TWIC rule. The final rule, published in January of 2007,
addressed the issuance of the TWIC and use of the TWIC as a ``flash
pass'' at access control points.

The requirement for integration of the TWIC into access control systems
via TWIC card readers was deliberately excluded from the first TWIC
Final Rule due to technology, operational and economic feasibility
concerns. While the private sector has employed biometrics for a number
of years in controlled, office-like environments, very few studies have
examined how biometric card readers will withstand the comparatively
harsh environments of vessels and facilities. The standard for the
design and issuance of the TWIC did not provide for the card to be read
without inserting it into an open slot reader, which commenters felt
was operationally insufficient for the rigors of application in the
maritime environment. Also, several commenters stated that the cost of
biometric card readers would be extremely detrimental for small
entities. With this in mind, Congress enacted several statutory
requirements within the Security and Accountability for Every (SAFE)
Port Act of 2006 to guide regulations pertaining to TWIC card readers.

This rulemaking is necessary to comply with the SAFE Port Act and to
complete the implementation of the TWIC Program in our ports. By
requiring electronic card readers at vessels and facilities, the Coast
Guard will further enhance port security and improve access control
measures.

Summary of Legal Basis:

The statutory authorities for the Coast Guard to prescribe, change,
revise, or amend these regulations are provided under 33 U.S.C. 1226,
1231; 46 U.S.C. chapter 701; 50 U.S.C. 191, 192; Executive Order 12656,
3 CFR 1988 Comp., p. 585; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19;
Department of Homeland Security Delegation No. 0170.1.

The SAFE Port Act requires a final rule within two years of
``commencement'' of the TWIC pilot program.

Alternatives:

Alternative 1: Use several, if not all, of the concepts introduced in
the first TWIC rule NPRM to address card reader requirements. This
would mean that every facility and vessel regulated by 33 CFR
subchapter H would need to purchase or have access to at least one
reader.

Alternative 2: Don't implement a reader requirement, and instead have
the Coast Guard do spot checks on regulated facilities and vessels
using hand-held biometric card readers, while TWICs are used as flash
passes.

Alternative 3: Require the use of card readers at regulated facilities
and vessels based upon the risk of an access control related
Transportation Security Incident taking place.

No non-regulatory alternatives are available at this time.

Anticipated Cost and Benefits:

The Coast Guard and TSA are in the process of revising earlier reader
technology and compliance cost analysis from the Regulatory Evaluation
used in support of the 2006 NPRM. We plan to revise the 2006 cost
estimates associated with reader technology by incorporating data and
findings from the pilot program and soliciting public comments. The
pilot program discussed in the SAFE Port Act focuses on business
processes, measurements of available technology, and operational
impacts of readers. As of the publication date of this Regulatory Plan,
data has not been collected from the pilot program. The Coast Guard and
TSA anticipate reader technology deployed at vessels and facilities
will further enhance port security and improve access control measures.

Based on preliminary analysis that does not include pilot data and
information, we estimate the discounted first-year costs of this
rulemaking to be $189 million or $204 million at a seven or three
percent discount rate, respectively. The recurring annual costs after
the first year, without technology replacement, range between $13.3
million and $6.9 million, depending on year and discount rate. The
annual cost of this rulemaking with technology replacement in 2014
(five years after installation) is about $36 million or $47 million at
a seven or three percent discount rate, respectively. The annualized
cost over a ten-year period is $42.6 million or $40.6 million per year
at a seven percent or three percent interest rate, respectively. We
also estimate the total discounted ten-year cost of this rulemaking to
be approximately $299 million at a seven percent discount rate and $347
million at a three percent discount rate.

Risks:

During the rulemaking process, we will take into account the various
conditions in which TWIC card readers may be employed. For example, we
will consider the types of vessels and facilities that will use TWIC
readers, locations of secure and restricted areas, operational
constraints, and need for accessibility. As part of this consideration,
we are using the analytical hierarchy approach to incorporate Maritime
Security Risk Analysis Model maximum consequence data, criticality, and
TWIC utility factors to determine the level of TWIC authentication
necessary at each type of facility and vessel. This will tie TWIC
reader use requirements with facility and vessel risk, criticality, and
TWIC utility. Recordkeeping requirements, amendments to security plans,
and the requirement for data exchanges (i.e., TWIC hotlist) between TSA
and vessel and facility owners/operators will also be addressed in this
rulemaking.

The MTSA of 2002 further required the TWIC to be applicable to vessel
pilots (46 U.S.C. 70105(b)(2)(C)). Most vessel pilots are already
included in the first TWIC Final Rule as many hold federally issued
merchant mariner credentials. In this proposed rulemaking, we will
propose extending the TWIC applicability to vessel pilots holding only
state commissions or credentials. Similarly, MTSA required the TWIC to
be applicable to ``an individual engaged on a towing vessel that
pushes, pulls, or hauls alongside a tank vessel'' (46 U.S.C.
70105(b)(2)(D)). While we have included individuals working on towing
vessels subject to 33 CFR part 104 in the first TWIC Final Rule, we
will propose extending TWIC applicability to those individuals who

[[Page 71177]]

work on towing vessels that push, pull, or haul alongside a tank
vessel.

Another vital part of this rulemaking will be the vessel crew size
limitations described in the SAFE Port Act. We are currently evaluating
minimum crew size options as a component of proposed electronic reader
requirements aboard vessels.

Finally, we will also revisit the concept of recurring unescorted
access which was introduced in the first TWIC rule. As stated in the
NPRM, published on May 22, 2006, ``As a result of this desire to
provide flexibility, we propose the concept of `recurring unescorted
access,' which is intended to allow an individual to enter on a
continual basis, without repeating the personal identity verification
piece.'' We will examine the risks and benefits of this provision and
propose an appropriate solution for vessels and facilities with small
contingents of regular employees.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
ANPRM 12/00/08

Regulatory Flexibility Analysis Required:

Undetermined

Small Entities Affected:

Businesses

Government Levels Affected:

Undetermined

Federalism:

Undetermined

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
LCDR Jonathan H. Maiorine
Program Manager (CG-5442)
Department of Homeland Security
U.S. Coast Guard
2100 Second Street SW.
Washington, DC 20593-0001
Phone: 202 372-1133
Fax: 202 372-1906
Email: [email protected]
Related RIN: Related to 1625-AB02, Related to 1652-AA41
RIN: 1625-AB21
_______________________________________________________________________

DHS--USCG

-----------

PROPOSED RULE STAGE

-----------

53. IMPLEMENTATION OF THE 1995 AMENDMENTS TO THE INTERNATIONAL
CONVENTION ON STANDARDS OF TRAINING, CERTIFICATION, AND WATCHKEEPING
(STCW) FOR SEAFARERS, 1978 (USCG-2004-17914)

Priority:

Other Significant

Legal Authority:

46 USC 2103; 46 USC chapters 71 and 73; DHS Delegation 0170.1

CFR Citation:

46 CFR 10; 46 CFR 12; 46 CFR 15

Legal Deadline:

None

Abstract:

The International Maritime Organization (IMO) comprehensively amended
the International Convention on Standards of Training, Certification,
and Watchkeeping (STCW) for Seafarers, 1978, in 1995. The amendments
came into force on February 1, 1997. This project implements those
amendments by revising current rules to ensure that the United States
complies with their requirements on: The training of merchant mariners,
the documenting of their qualifications, and watch-standing and other
arrangements aboard seagoing merchant ships of the United States. In
addition, the Coast Guard has identified the need for additional
changes to the interim rule issued in 1997. This rulemaking makes
several minor editorial and clarification changes throughout title 46
parts 10, 11, 12, and 15. This project supports the Coast Guard's
strategic goal of maritime safety. It also supports the goal of the
Prevention Directorate by reducing deaths and injuries of crew members
on domestic merchant vessels and eliminating substandard vessels from
the navigable waters of the United States.

Market or Regulatory Failure Analysis: The IMO adopted amendments to
the international convention on STCW in 1995. In 1997, we modified the
regulations to implement these amendments. Since then, however, we
found that more specificity is needed in the STCW regulations. The need
for additional clarification resulted in the issuance of several policy
guidelines over the past 10 years detailing mariner and training
provider compliance to the STCW regulations. This regulatory action
proposes to add the specificity from these guidelines, to close other
regulatory gaps, and to propose some additional changes to the STCW
regulations.

Statement of Need:

The Coast Guard proposes to amend its regulations to implement changes
to its interim rule published on June 26, 1997. These proposed
amendments go beyond changes found in the interim rule and seek to more
fully incorporate the requirements of the International Convention on
Standards of Training, Certification and Watchkeeping for Seafarers,
1978, as amended (STCW) in the requirements for the credentialing of
United States merchant mariners. The new changes are primarily
substantive and: (1) Are necessary to continue to give full and
complete effect to the STCW Convention; (2) Incorporate lessons learned
from implementation of the STCW through the interim rule and through
policy letters and NVICs; and (3) Attempt to clarify regulations that
have generated confusion among USCG offices and industry.

Summary of Legal Basis:

The authority for the Coast Guard to prescribe, change, revise, or
amend these regulations is provided under 46 U.S.C. 2103 and 46 U.S.C.
chapters 71 and 73; and Department of Homeland Security Delegation No.
0170.1

Alternatives:

For each proposed change, the Coast Guard has considered various
alternatives. We considered using policy statements, but they are not
enforceable. We also considered taking no action, but this does not
support the Coast Guard's fundamental safety and security mission.
Additionally, we considered comments made during our 1997 rulemaking to
formulate our alternatives. When we analyzed issues, such as license
progression and tonnage equivalency, the alternatives chosen were those
that most closely met the requirements of STCW.

Anticipated Cost and Benefits:

We estimate the non-discounted first-year and annual recurring costs of
this proposed rule to be $14.6 million and $11.4 million, respectively.
We estimate the annualized cost over a ten-year period to be at $11.9
million per year

[[Page 71178]]

at either a seven percent or a three percent discount rate. We estimate
the total discounted ten-year cost of this rulemaking to be $83.8
million at a seven percent discount rate and $101.1 million at a three
percent discount rate. The primary benefit of this rulemaking is to
specify seafarer training.

Risks:

The ultimate goal of the regulation is to increase safety and
facilitate consistency of the United States regulations with
International Maritime Organization guidelines and requirements.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Notice of Meeting 08/02/95 60 FR 39306
Supplemental NPRM Comment
Period End 09/29/95
Notice of Inquiry 11/13/95 60 FR 56970
Comment Period End 01/12/96
NPRM 03/26/96 61 FR 13284
Notice of Public Meetings 04/08/96 61 FR 15438
NPRM Comment Period End 07/24/96
Notice of Intent 02/04/97 62 FR 5197
Interim Final Rule 06/26/97 62 FR 34505
Interim Final Rule
Effective 07/28/97
Supplemental NPRM 01/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

Additional Information:

Old Docket Number CGD 95-062.

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Mark Gould
Project Manager, CG-5221
Department of Homeland Security
U.S. Coast Guard
2100 Second Street SW.
Washington, DC 20593-0001
Phone: 202 372-1409
RIN: 1625-AA16
_______________________________________________________________________

DHS--USCG

54. STANDARDS FOR LIVING ORGANISMS IN SHIPS' BALLAST WATER DISCHARGED
IN U.S. WATERS (USCG-2001-10486)

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Legal Authority:

16 USC 4711

CFR Citation:

33 CFR 151

Legal Deadline:

None

Abstract:

This rulemaking would add a performance standard to 33 CFR part 151,
subpart D, for all ballast water management methods being used as
alternatives to mid-ocean ballast water exchange. It supports the Coast
Guard's strategic goals of marine safety and protection of natural
resources. This project is significant due to high interest from
Congress and several Federal and State agencies.

Market or Regulatory Failure Analysis: There exists the potential
introduction of new viable invasive species populations into U.S.
waters. Commercial users of U.S. waterways (i.e., owners and operators
of vessels) will not voluntarily install costly ballast water treatment
systems to reduce the introduction of invasive species. We anticipate
affected owners and operators cannot internalize the benefits of
developing and testing such systems (e.g., receive a positive return on
investment or benefit by increasing profits). Without regulation, we do
not expect industry to incur the costs to develop, install, and
maintain approved technology that can achieve effective ballast water
discharge standards.

Statement of Need:

The unintentional introductions of nonindigenous species into U.S.
waters via the discharge of vessels' ballast water has had significant
impacts to the nation's aquatic resources, biological diversity, and
coastal infrastructures. This rulemaking would amend the ballast water
management requirements (33 CFR part 151 subpart D) and establish a
standard that specifies the level of biological treatment that must be
achieved by a ballast water treatment system before ballast water can
be discharged into U.S. waters. This would increase the Coast Guard's
ability to protect U.S. waters against the introduction of
nonindigenous species via ballast water discharges.

Summary of Legal Basis:

Congress has directed the Coast Guard to develop ballast water
regulations to prevent the introduction of nonindigenous species into
U.S. waters under the Nonindigenous Aquatic Nuisance Prevention and
Control Act of 1990 and reauthorized and amended it with the National
Invasive Species Act of 1996. This is not a statutory rulemaking.

Alternatives:

We would use the standard rulemaking process to develop regulations for
a ballast water discharge standard. Nonregulatory alternatives such as
navigation and vessel inspection circulars and the Marine Safety Manual
have been considered and may be used for the development of policy and
directives to provide the maritime industry and our field offices
guidelines for implementation of the regulations. Nonregulatory
alternatives cannot be substituted for the standard we would develop
with this rule.

Anticipated Cost and Benefits:

We estimate the first-year (initial) cost of this rulemaking to be $241
million based on a seven percent discount rate and $250 million based
on a three percent discount rate. Over the 10-year period of analysis
(2012-2021), the total cost for the U.S. vessels is approximately $1.37
billion using the 3 percent discount rate and $1.19 billion using the 7
percent discount rate. Our cost assessment includes existing and new
vessels.

We anticipate damages avoided from nonindigenous invasive species are
the benefits of this rulemaking. Based on preliminary analysis, our
primary annualized estimate of damages avoided range from $165 million
to $282 million at a seven percent interest rate or $194 million to
$330 million at a three percent discount rate. Estimated mid-point
total benefits over a ten-year period of analysis, adjusted for the
phase-in schedule, range from $1,161 million to $2,813 million
depending on effective factors and discount rates.

Risks:

The rate at which nonindigenous species are unintentionally introduced
into U. S. waters via ballast water continues to increase, and is
estimated to cost the United States $7.98 billion annually (source:
2005 Pimental et al).

[[Page 71179]]

It is estimated that for areas such as the Great Lakes, San Francisco
Bay, and Chesapeake Bay, one nonindigenous species becomes established
per year. At this time, it is difficult to estimate the reduction of
risk that would be accomplished by promulgating this rulemaking;
however, it is expected a major reduction will occur.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
ANPRM 03/04/02 67 FR 9632
ANPRM Comment Period End 06/03/02
NPRM 03/00/09

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

None

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Bivan R. Patnaik
Project Manager, CG-5224
Department of Homeland Security
U.S. Coast Guard
2100 Second Street SW.
Washington, DC 20593-0001
Phone: 202 372-1435
Email: [email protected]
RIN: 1625-AA32
_______________________________________________________________________

DHS--USCG

55. VESSEL REQUIREMENTS FOR NOTICES OF ARRIVAL AND DEPARTURE, AND
AUTOMATIC IDENTIFICATION SYSTEM (USCG-2005-21869)

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Legal Authority:

33 USC 1223; 33 USC 1225; 33 USC 1231; 46 USC 3716; 46 USC 8502 and ch
701; sec 102 of PL 107-295

CFR Citation:

33 CFR 160; 33 CFR 161; 33 CFR 164; 33 CFR 165

Legal Deadline:

None

Abstract:

This rulemaking would expand the applicability for Notice of Arrival
and Departure (NOAD) and Automatic Identification System (AIS)
requirements. These expanded requirements would better enable the Coast
Guard to correlate vessel AIS data with NOAD data, enhance our ability
to identify and track vessels, detect anomalies, improve navigation
safety, and heighten our overall maritime domain awareness.

The NOAD portion of this rulemaking would expand the applicability of
the NOAD regulations by changing the minimum size of vessels covered
below the current 300 gross tons, require that a notice of departure be
submitted for all vessels required to submit a notice of arrival, and
mandate electronic submission of NOAD notices to the National Vessel
Movement Center. The AIS portion of this rulemaking will expand current
AIS carriage requirements for the population identified in the Marine
Transportation Security Act (MTSA) of 2002.

Market or Regulatory Failure Analysis: The NOAD and AIS portions of the
NPRM would attempt to close regulatory gaps by having smaller vessels
submit Notices of Departure as well as Notices of Arrival and to do
this electronically. AIS would help to track and identify the affected
vessels (including enhancing situational awareness) and provide synergy
with the NOAD portion of this rulemaking. The mandate for AIS is
provided by the MTSA 2002.

Statement of Need:

We do not have a current mechanism in place to capture vessel, crew,
passenger, or specific cargo information on vessels less than or equal
to 300 gross tons (GT) intending to arrive at or depart from U.S. ports
unless they are arriving with certain dangerous cargo (CDC) or are
arriving at a port in the 7th Coast Guard District. The lack of NOA
information on this large and diverse population of vessels represents
a substantial gap in our maritime domain awareness (MDA). We can
minimize this gap and enhance MDA by expanding the applicability of the
NOAD regulation beyond vessels greater than 300 GT, cover all foreign
commercial vessels and all U.S. commercial vessels coming from a
foreign port; and enhance maritime domain awareness by tracking them
(and others) with AIS. There is no current Coast Guard requirement for
vessels to submit notification of departure information. This
information is necessary in order to expand our MDA.

Summary of Legal Basis:

This rulemaking is based on congressional authority provided in the
Ports and Waterways Safety Act and the Maritime Transportation Security
Act of 2002.

Alternatives:

Our goal is to increase MDA and to identify anomalies by correlating
vessel AIS data with NOAD data. NOAD and AIS information from a greater
number of vessels would provide even greater MDA than the proposed
rule. We considered expanding NOAD and AIS to even more vessels, but we
determined we needed additional legislative authority to expand AIS
beyond what we propose in this rulemaking; and that it was best to
combine additional NOAD expansion with future AIS expansion.

Although not in conjunction with a proposed rule, the Coast Guard
sought comment regarding expansion of AIS carriage to other waters and
other vessels not subject to the current requirements (68 FR 39355-56,
and 39370, July 1, 2003; USCG 2003-14878). Those comments were reviewed
and considered in drafting this rule and will become part of this
docket.

To fulfill our agency obligations, the Coast Guard needs to receive AIS
reports and NOADs from vessels identified in this rulemaking that
currently are not required to provide this information. Policy or other
non-binding statements by the Coast Guard addressed to the owners of
these vessels would not produce the information required to
sufficiently enhance our MDA to produce the information required to
fulfill our Agency obligations.

Anticipated Cost and Benefits:

We estimate the non-discounted first-year cost of this proposed rule to
be about $94.4 million. We estimate the annualized cost over the 10-
year period of analysis to be about $28.0 million at either a seven or
a three percent discount rate. We estimate the total discounted 10-year
cost of this proposed rule to be about $199.6 million at a seven
percent discount rate and about $235.9 million at a three percent
discount rate. We estimate the annualized benefit to be about $3.8
million at either a seven or a three percent discount rate. These
estimates are based in part on available

[[Page 71180]]

technology. The primary benefit of this proposed rule is to enhance
maritime security and safety through navigational and situational
awareness. We also estimated there to be additional barrels of oil not
spilled by this rulemaking. These estimates may change through further
development of the rulemaking and after consideration of public
comments.

Risks:

Considering the economic utility of U.S. ports, waterways, and coastal
approaches, it is clear that a terrorist incident against our U.S.
Maritime Transportation System (MTS) would have a disastrous impact on
global shipping, international trade, and the world economy. By
improving the ability of the Coast Guard both to identify potential
terrorists coming to the United States while their vessel is far at sea
and to coordinate appropriate responses and intercepts before the
vessel reaches a U.S. port, this rulemaking would contribute
significantly to the expansion of MDA, and consequently is instrumental
in addressing the threat posed by terrorist actions against the MTS.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 11/00/08

Regulatory Flexibility Analysis Required:

Undetermined

Government Levels Affected:

None

Additional Information:

Legal Deadline: With regard to the legal deadline, we have indicated in
past notices and rulemaking documents, and it remains the case, that we
have worked to coordinate implementation of AIS MTSA requirements with
the development of our ability to take advantage of AIS data (68 FR
39355-56 and 39370, July 1, 2003).

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
LT Sharmine Jones
Program Manager, Office of Vessel Activities, Foreign and Offshore
Vessel Activities Div. (CG-5432)
Department of Homeland Security
U.S. Coast Guard
2100 Second Street SW.
Washington, DC 20593
Phone: 202 372-1234

Jorge Arroyo
Project Manager, Office of Navigation Systems CG-5413
Department of Homeland Security
U.S. Coast Guard
2100 Second Street SW.
Washington, DC 20593-0001
Phone: 202 372-1563
RIN: 1625-AA99
_______________________________________________________________________

DHS--USCG

56. PASSENGER AND INSPECTED VESSEL STABILITY REQUIREMENTS (USCG-2007-
0030)

Priority:

Other Significant

Legal Authority:

33 USC 1321(j); 43 USC 1333; 46 USC 2103, 3205, 3306, 3307, 3703, 6101;
49 USC App 1804; EO 11735; EO 12234; Dept of Homeland Security
Delegation No. 0170.1

CFR Citation:

46 CFR 115; 46 CFR 116; 46 CFR 122; 46 CFR 170; 46 CFR 171; 46 CFR 176;
46 CFR 178; 46 CFR 185; 46 CFR 114; 46 CFR 175; 46 CFR 179

Legal Deadline:

None

Abstract:

The Coast Guard proposes developing a rule that addresses both the
stability calculations and the environmental operating requirements for
certain domestic passenger vessels. The proposed rule would address the
outdated per-person weight averages that are currently used in
stability calculations for certain domestic passenger vessels. In
addition, the proposed rule would add environmental operating
requirements for domestic passenger vessels that could be adversely
affected by sudden inclement weather. This rulemaking would increase
passenger safety by significantly reducing the risk of certain types of
passenger vessels capsizing due to either passenger overloading or
operating these vessels in hazardous weather conditions.

Market or Regulatory Failure Analysis: These regulations need to be
updated to reflect current passenger weights. Standards are often set
because owners and operators cannot internalize the benefits of
appropriate safety standards. The commercial passenger vessel industry
is not capable of voluntarily establishing uniform, nationwide
standards for passenger weight. Failure to update the standards to
reflect accurate, current passenger weights places passenger vessels at
greater risk of capsizing.

This NPRM would support the Coast Guard's strategic goal of maritime
safety.

Statement of Need:

Coast Guard regulations use an assumed average weight per person to
calculate the maximum number of passengers and crew permitted on each
deck. This assumed weight was established in the 1960s and is 160
pounds per person, except that vessels operating exclusively on
protected waters carrying a mix of men, women, and children may use an
average of 140 pounds. A recent report from the National Health and
Nutrition Examination Survey (NHANES) program of the National Center
for Health Statistics shows that there has been a significant increase
in the average weights of the U.S. population between 1960 and 2002.
Accordingly, the Coast Guard is updating the average passenger weight
used in stability tests and evaluations for those vessels that may be
at risk of capsizing due to excessive passenger weight.

Summary of Legal Basis:

The authority for the Coast Guard to prescribe, change, revise, or
amend these regulations is provided under 33 U.S.C. 1321(j); 43 U.S.C.
1333; 46 U.S.C. 2103, 3205, 3306, 3307, 3703, and 6101; 49 U.S.C. App.
1804; E.O. 11735, 38 FR 21243, 3 CFR, 1971 to 1975 Comp., p. 743; E.O.
12234; 45 FR 58801, 3 CFR, 1980 Comp., p. 277; and Department of
Homeland Security Delegation No. 0170.1.

Alternatives:

The Coast Guard advised mariners through a Federal Register notice on
April 26, 2006 (71 FR 24732) to voluntarily follow revised procedures
to account for increased passenger weight when calculating the maximum
number of persons permitted on board. The notice advised owners and
operators of all pontoon vessels, and small passenger vessels not more
than 65 feet in length, that met simplified

[[Page 71181]]

stability requirements using either 140 or 160 pounds, to voluntarily
restrict the maximum number of passengers permitted on board by:

(1) Changing passenger capacity to a reduced number by dividing the
total test weight by 185 pounds; or

(2) changing passenger capacity to a reduced number equal to 140
divided by 185 times the current number of passengers permitted to be
carried. If the total test weight was based on 160 pounds per person,
the multiplier may be taken as 160 divided by 185; or

(3) weighing persons and effects at dockside prior to boarding and
limiting the actual load to the total test weight used in the vessel's
SST or PSST.

On November 2, 2006, the Coast Guard published a second notice in the
Federal Register clarifying the environmental conditions appropriate
for operation of small passenger vessels (71 FR 64546). Guidance,
though, does not carry the force of law. A regulatory solution is
necessary to enact changes to the mandatory passenger weight
limitations.

The Coast Guard also considered the option of directing Officers in
Charge, Marine Inspection, pursuant to 46 CFR 178.210(c), to use a
current assumed average passenger weight in stability tests for vessels
under 65 feet in length. As with guidance, though, a policy directive
is not enforceable and a regulatory change is necessary.

Anticipated Cost and Benefits:

We estimate the non-discounted first-year and recurring costs of this
proposed rule to be about $10 million and $2.5 million, respectively.
We estimate the annualized cost over the ten-year period at about $3.5
million per year at either a seven percent or a three percent discount
rate. We estimate the total discounted ten-year cost of this rulemking
to be $24.6 million at a seven percent discount rate and $28.7 million
at a three percent discount rate.

These cost estimates may change through further development of the
rulemaking and after consideration of public comments. The anticipated
benefit is aligning regulation with the actual average passenger
weight. We anticipate the revised weight standards would improve
stability and reduce the risk of capsizings due either to passenger
overloading or operating certain vessels in hazardous weather
conditions, but have not assessed the extent of the risk reduction.

Risks:

Passenger vessel capsizings can involve significant loss of life and
property. This rulemaking would reduce the risk of such incidents by
updating the average passenger weight used in stability tests and
evaluations of certain vessels. Consequently, this rulemaking would
increase passenger safety and supports the Coast Guard's strategic goal
of maritime safety.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 08/20/08 73 FR 49244
NPRM Comment Period End 11/18/08

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

None

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
William Peters
Program Manager, Office of Design & Engineering Standards, Systems
Engineering Division (CG-5212)
Department of Homeland Security
U.S. Coast Guard
2100 Second Street SW.
Washington, DC 20593
Phone: 202 372-1371
Email: [email protected]
RIN: 1625-AB20
_______________________________________________________________________

DHS--U.S. Customs and Border Protection (USCBP)

-----------

FINAL RULE STAGE

-----------

57. ADVANCE INFORMATION ON PRIVATE AIRCRAFT ARRIVING AND DEPARTING THE
UNITED STATES

Priority:

Other Significant

Legal Authority:

5 USC 301; 19 USC 58b; 19 USC 66; 19 USC 1433; 19 USC 1436; 19 USC
1448; 19 USC 1459; 19 USC 1590; 19 USC 1594; 19 USC 1623 to 1624; 19
USC 1644 to 1644a

CFR Citation:

19 CFR 122

Legal Deadline:

None

Abstract:

This rule would amend Title 19 of the Code of Federal Regulations to
require that the pilot of any private aircraft arriving in the United
States from a foreign location or departing the United States for
foreign provide an advance electronic transmission of information to
Customs and Border Protection (CBP) regarding each individual traveling
onboard the aircraft. In addition, the rule would add data elements to
the existing notice of arrival requirements and proposes a new notice
of departure requirement. The notice of arrival and notice of departure
information would be required to be submitted to CBP via an approved
electronic data interchange system in the same transmission as the
corresponding arrival or departure manifest information. The means of
transmission for these data elements must be via an electronic data
interchange system approved by CBP. Under the proposed rule, the
transmission of the data must be accomplished so that CBP receives the
data prior to the private aircraft departing from a foreign airport,
and prior to a private aircraft departing a United States airport for a
foreign port or place.

Statement of Need:

Current regulations do not provide CBP the capability to assess
potential threats posed by private aircraft entering and departing the
United States. Private aircraft currently are not required to
electronically transmit to CBP advance notice of arrival through an
approved electronic data interchange system. In addition, private
aircraft are not currently required to electronically transmit
identifying information for all individuals onboard the aircraft
(manifest data) before arriving in or departing from the United States.
The existing regulations lack clarity in the procedures for requesting
permission to land at landing rights airports. Private aircraft are
also currently not required to obtain clearance or provide notice of
departure prior to departing the United States.

To adequately and accurately assess potential threats posed by private
aircraft entering and departing the United States, CBP needs sufficient
and timely information about the impending arrival or departure of a

[[Page 71182]]

private aircraft, the passengers and crew onboard, and clear procedures
regarding landing rights and departure clearance. Without these tools,
CBP does not currently have the capability to perform risk assessments
on passengers traveling on private aircraft.

Under this rule, CBP would receive advance electronic information of
notice of arrival combined with passenger manifest data for those
aboard private aircraft that arrive in and depart from the United
States. This would provide critical information in a sufficient time to
fully pre-screen information on all individuals intending to travel
onboard private aircraft to or from the United States. Moreover, these
changes would enable CBP to minimize potential threats posed by private
aircraft by identifying high-risk individuals and aircraft and allowing
CBP to coordinate with airport personnel and domestic or foreign
government authorities to take appropriate action when warranted by a
threat.

This rule serves to provide the nation, private aircraft operators, and
the international traveling public, additional security from the threat
of terrorism and enhance CBP's ability to carry out its border
enforcement mission.

Alternatives:

This proposed rule is not economically significant under Executive
Order 12866. Therefore, CBP did not consider regulatory alternatives.

Anticipated Cost and Benefits:

Currently, pilots of private aircraft must submit information regarding
themselves, their aircraft, and any passengers prior to arrival into
the United States from a foreign airport. Depending on the location of
the foreign airport, the pilot provides the arrival information 1 hour
prior to crossing the U.S. coastline or border (areas south of the
United States) or during the flight (other areas). The information that
would now be required for the pilot is similar to what is already
required; it would now need to be submitted earlier (60 minutes prior
to departure). The information that would now be required for
passengers is more extensive that what is currently required and would
also have to be submitted earlier. No notice of departure information
is currently required for private aircraft departing the United States
for a foreign airport.

CBP estimates that 138,559 private aircraft landed in the United States
in 2006 based on current notice of arrival data. These aircraft
collectively carried 455,324 passengers; including the 138,559 pilots
of the aircraft, this totals 593,883 individuals arriving in the United
States aboard private aircraft. CBP estimates that approximately two-
thirds are U.S. citizens and the remaining one-third is comprosed of
non-U.S. citizens.

CBP does not currently compile data for departures, as there are
currently no requirements for private aircraft departing the United
States. For this analysis, we assume that the number of departures is
the same as the number of arrivals.

Thus, we estimate that 140,000 private aircraft arrivals and 140,000
departures will be affected annually as a result of the rule. While the
current data elements for pilots are very similar to the proposed
requirements, the data elements for passengers are more extensive.
Based on the current information collected and accounting for proposed
changes in the data elements, CBP estimates that one submission, which
includes the arrival information and the passenger manifest data, will
require 15 minutes of time (0.25 hours) to complete.

Currently, private aircraft arriving from areas south of the United
States must provide advance notice of arrival at least 1 hour before
crossing the U.S. coastline or border. There are no such timing
requirements for other areas. Thus, some pilots and their passengers
may decide that in order to comply with the new requirements, including
submitting information through eAPIS and waiting for a response from
CBP, they must convene at the airport earlier than they customarily
would.

To estimate the costs associated with the time required to input data
into eAPIS, we use the value of an hour of time as reported in the
Federal Aviation Administration's (FAA) document on critical values,
$28.60. This represents a weighted cost for business and leisure
travelers in the air environment. The cost to submit advance notice of
arrival data through eAPIS would be approximately $1 million (140,000
arrivals * 0.25 hours * $28.60 per hour). Similarly, costs to submit
advance notice of departure data would be $1 million, for a total cost
to submit the required data elements of $2 million annually.

To estimate the costs of arriving earlier than customary, we again use
the value of time of $28.60 per hour. As noted previously, we assume
that 301,000 pilots and passengers may choose to arrive 0.25 hours
earlier than customary. This would result in a cost of approximately $2
million for arrivals and $2 million for departures, a total of $4
million annually (301,000 individuals * 0.25 hours * $28.60 per hour *
2).

Thus, the total annual cost of the proposed rule is expected to be $6
million. Over 10 years, this would total a present value cost of $47
million at a 7 percent discount rate ($55 million at a 3 percent
discount rate).

As noted previously, the benefit of this proposed rule is enabling CBP
to identify high-risk individuals and aircraft prior to their arrival
in the United States, thus allowing CBP to coordinate with airport
personnel and government authorities to take the action warranted by
the threat. CBP would receive more information earlier to better assess
risks of specific flights to national security and to take appropriate
action in order to prevent security threats.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 09/18/07 72 FR 53393
NPRM Comment Period End 11/19/07
Final Action 01/00/09

Regulatory Flexibility Analysis Required:

Government Levels Affected:

None

Additional Information:

Transferred from RIN 1515-AD10

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

[[Page 71183]]

Agency Contact:
Barbara Connolly
Program Officer
Department of Homeland Security
U.S. Customs and Border Protection
Office of Field Operations
1300 Pennsylvania Avenue NW.
Washington, DC 20229
Phone: 202 344-1694

Glen E. Vereb
Chief, Cargo Security, Carriers and Immigration Branch, Office of
International Trade
Department of Homeland Security
U.S. Customs and Border Protection
1300 Pennsylvania Avenue NW.
Washington, DC 20229
Phone: 202 352-0212
RIN: 1651-AA41
_______________________________________________________________________

DHS--USCBP

58. IMPORTER SECURITY FILING AND ADDITIONAL CARRIER REQUIREMENTS

Priority:

Economically Significant. Major under 5 USC 801.

Unfunded Mandates:

This action may affect the private sector under PL 104-4.

Legal Authority:

PL 109-347, sec 203; 5 USC 301; 19 USC 66, 1431, 1433, 1434, 1624, 2071
note; 46 USC 60105

CFR Citation:

19 CFR 4

Legal Deadline:

None

Abstract:

This rule would amend DHS regulations to provide that Customs and
Border Protection (CBP) must receive, by way of a CBP-approved
electronic data interchange system, additional information from
carriers and importers pertaining to cargo before the cargo is brought
into the United States by vessel. The information required is that
which is reasonably necessary to enable high-risk shipments to be
identified so as to prevent smuggling and ensure cargo safety and
security pursuant to the laws enforced and administered by CBP. The
amendment is specifically intended to implement the provisions of
section 203 of the Security and Accountability for Every Port Act of
2006.

Statement of Need:

Vessel carriers are currently required to transmit certain manifest
information by way of the CBP Vessel Automated Manifest System (AMS) 24
hours prior to lading of containerized and non-exempt break bulk cargo
at a foreign port. For the most part, this is the ocean carrier's or
non-vessel operating common carrier (NVOCC)'s cargo declaration. CBP
analyzes this information to generate its risk assessment for targeting
purposes.

Internal and external government reviews have concluded that more
complete advance shipment data would produce even more effective and
more vigorous cargo risk assessments. In addition, pursuant to Section
203 of the Security and Accountability for Every Port Act of 2006 (Pub.
L. 109-347, 6 U.S.C. 943) (SAFE Port Act), the Secretary of Homeland
Security, acting through the Commissioner of CBP, must promulgate
regulations to require the electronic transmission of additional data
elements for improved high-risk targeting, including appropriate
security elements of entry data for cargo destined to the United States
by vessel prior to loading of such cargo on vessels at foreign
seaports.

Based upon its analysis, as well as the requirements under the SAFE
Port Act, CBP is proposing to require the electronic transmission of
additional data for improved high-risk targeting. Some of these data
elements are being required from carriers (Container Status Messages
and Vessel Stow Plan) and others are being required from ``importers,''
as that term is defined for purposes of the proposed regulations.

This rule will improve CBP's risk assessment and targeting
capabilities, while at the same time, enabling the agency to facilitate
the prompt release of legitimate cargo following its arrival in the
United States. The information will assist CBP in increasing the
security of the global trading system and, thereby, reducing the threat
to the United States and world economy.

Summary of Legal Basis:

Pursuant to Section 203 of the Security and Accountability for Every
Port Act of 2006 (Pub. L. 109-347, 6 U.S.C. 943) (SAFE Port Act), the
Secretary of Homeland Security, acting through the Commissioner of CBP,
must promulgate regulations to require the electronic transmission of
additional data elements for improved high-risk targeting, including
appropriate security elements of entry data for cargo destined to the
United States by vessel prior to loading of such cargo on vessels at
foreign seaports.

Alternatives:

CBP considered requiring an importer security filing for bulk cargo as
well as for containerized and break-bulk cargo. If bulk cargo were not
exempt from an importer security filing, the annualized costs of the
rule would be increased by approximately $10 million.

Anticipated Cost and Benefits:

When the NPRM was published, CBP estimated that approximately 11
million import shipments conveyed by 1,200 different carrier companies
operating 50,000 unique voyages or vessel-trips to the United States
will be subject to the rule. Annualized costs range from $390 million
to $630 million (7 percent discount rate over 10 years).

The annualized cost range results from varying assumptions about the
estimated security filing transaction costs or fees charged to the
importers by the filing parties, the potential for supply chain delays,
and the estimated costs to carriers for transmitting additional data to
CBP.

Ideally, the quantification and monetization of the benefits of this
regulation would involve estimating the current level of risk of a
successful terrorist attack, absent this regulation, and the
incremental reduction in risk resulting from implementation of the
regulation. CBP would then multiply the change by an estimate of the
value individuals place on such a risk reduction to produce a monetary
estimate of direct benefits. However, existing data limitations and a
lack of complete understanding of the true risks posed by terrorists
prevent us from establishing the incremental risk reduction
attributable to this rule. As a result, CBP has undertaken a ``break-
even'' analysis to inform decision-makers of the necessary incremental
change in the probability of such an event occurring that would result
in direct benefits equal to the costs of the proposed rule.

CBP's analysis finds that the incremental costs of this regulation are
relatively small compared to the median value of a shipment of goods
despite the rather large absolute estimate of present value cost.

The proposed regulation may increase the time shipments are in transit,
particularly for shipments consolidated in containers. For such
shipments, the supply chain is generally more complex

[[Page 71184]]

and the importer has less control of the flow of goods and associated
security filing information. Foreign cargo consolidators may be
consolidating multiple shipments from one or more shippers in a
container destined for one or more buyers or consignees. In order to
ensure that the security filing data is provided by the shippers to the
importers (or their designated agents) and is then transmitted to and
accepted by CBP in advance of the 24-hour deadline, consolidators may
advance their cut-off times for receipt of shipments and associated
security filing data.

These advanced cut-off times would help prevent a consolidator or
carrier from having to unpack or unload a container in the event the
security filing for one of the shipments contained in the container is
inadequate or not accepted by CBP. For example, consolidators may
require shippers to submit, transmit, or obtain CBP approval of their
security filing data before their shipments are stuffed in the
container, before the container is sealed, or before the container is
delivered to the port for lading. In such cases, importers would likely
have to increase the times they hold their goods as inventory and thus
incur additional inventory carrying costs to sufficiently meet these
advanced cut-off times imposed by their foreign consolidators. The high
end of the cost ranges presented assumes an initial supply chain delay
of 1 day (24 hours) for the first year of implementation (2008) and a
delay of 12 hours for years 2 through 10 (2009 to 2017).

The benefit of this rule is the improvement of CBP's risk assessment
and targeting capabilities, while at the same time, enabling CBP to
facilitate the prompt release of legitimate cargo following its arrival
in the United States. The information will assist CBP in increasing the
security of the global trading system, and thereby reducing the threat
to the United States and the world economy.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 01/02/08 73 FR 90
NPRM Comment Period End 03/03/08
NPRM Comment Period
Extended 02/01/08 73 FR 6061
NPRM Comment Period End 03/18/08
Final Action 01/00/09

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

None

International Impacts:

This regulatory action will be likely to have international trade and
investment effects, or otherwise be of international interest.

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Richard DiNucci
Department of Homeland Security
U.S. Customs and Border Protection
Office of Field Operations
1300 Pennsylvania Avenue, NW.
Washington, DC 20229
Phone: 202 344-2513
Email: [email protected]
RIN: 1651-AA70
_______________________________________________________________________

DHS--USCBP

59. CHANGES TO THE VISA WAIVER PROGRAM TO IMPLEMENT THE ELECTRONIC
SYSTEM FOR TRAVEL AUTHORIZATION (ESTA) PROGRAM

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

8 USC 1103; 8 USC 1187; 8 CFR part 2

CFR Citation:

8 CFR 217.5

Legal Deadline:

None

Abstract:

This interim rule amends title 8 of the Code of Federal Regulations
(CFR) on an interim basis to implement the Electronic System for Travel
Authorization (ESTA) procedures for aliens who wish to travel to the
United States under the Visa Waiver Program (VWP) at air or sea ports
of entry. Currently, aliens from VWP countries must provide certain
biographical information to U.S. Customs and Border Protection (CBP)
Officers at air and sea ports of entry on a paper form Nonimmigrant
Alien Arrival/Departure (Form I-94W). Under this interim final rule,
VWP travelers will provide the same information to CBP electronically
before departing for the United States. By automating the I-94W process
and establishing a system to provide VWP traveler data in advance of
travel, CBP will be able to determine the eligibility of citizens and
nationals from VWP countries to travel to the United States and whether
such travel poses a law enforcement or security risk, before such
individuals begin travel to the United States. ESTA will provide for
greater efficiencies in the screening of international travelers by
allowing CBP to identify subjects of potential interest before they
depart for the United States, thereby increasing security and reducing
traveler delays upon arrival at U.S. ports of entry. ESTA will be
implemented as a mandatory program 60 days after publication of another
notice in the Federal Register DHS. DHS anticipates the such notice
will be issued in November 2008, for implementation of the mandatory
ESTA requirements on or before January 12, 2009.

Statement of Need:

Currently, aliens from VWP countries must provide certain biographical
information to U.S. Customs and Border Protection (CBP) Officers at air
and sea ports of entry on a paper form Nonimmigrant Alien Arrival/
Departure (Form I-94W). Section 711 of the 9/11 Act requires the
Secretary of Homeland Security, in consultation with the Secretary of
State, to develop and implement a fully automated electronic travel
authorization system which will collect biographical and other
information in advance of travel to determine the eligibility of the
alien to travel to the United States and to determine whether such
travel poses a law enforcement or security risk. ESTA is intended to
fulfill these statutory requirements.

Under this interim final rule, VWP travelers will provide the same
information to CBP electronically before departing for the United
States. VWP travelers who receive travel authorization under ESTA will
not be required to complete the paper Form I-94W when arriving on a
carrier that is capable of receiving and validating messages pertaining
to the traveler's ESTA status as part of the traveler's boarding
status. By automating the I-94W process and establishing a system to
provide VWP traveler data in advance of travel, CBP will be able to
determine the eligibility of citizens and eligible nationals from VWP
countries to travel to the United States and whether such travel poses
a law

[[Page 71185]]

enforcement or security risk, before such individuals begin travel to
the United States. ESTA will provide for greater efficiencies in the
screening of international travelers by allowing CBP to identify
subjects of potential interest before they depart for the United
States, thereby increasing security and reducing traveler delays upon
arrival at U.S. ports of entry.

Summary of Legal Basis:

The ESTA program is based on congressional authority provided under
section 711 of the Implementing Recommendations of the 9/11 Commission
Act of 2007 and section 217 of the Immigration and Nationality Act
(INA).

Alternatives:

CBP considered three alternatives to this rule:

1: The ESTA requirements in the rule, but with a $1.50 fee per each
travel authorization (more costly)

2: The ESTA requirements in the rule, but with only the name of the
passenger and the admissibility questions on the I-94W form (less
burdensome)

3: The ESTA requirements in the rule, but only for the countries
entering the VWP after 2009 (no new requirements for VWP, reduced
burden for newly entering countries)

CBP determined that the rule provides the greatest level of enhanced
security and efficiency at an acceptable cost to traveling public and
potentially affected air carriers.

Anticipated Cost and Benefits:

The purpose of ESTA is to allow DHS and CBP to establish the
eligibility of certain foreign travelers to travel to the United States
under the VWP, and whether the alien's proposed travel to the United
States poses a law enforcement or security risk. Upon review of such
information, DHS will determine whether the alien is eligible to travel
to the United States under the VWP. Once ESTA is implemented as a
mandatory program, citizens and eligible nationals of the 27 countries
in the current VWP must comply with this rule.

Impacts to Air & Sea Carriers

CBP estimated that eight U.S.-based air carriers and eleven sea
carriers will be affected by the rule. An additional 35 foreign-based
air carriers and five sea carriers will be affected. CBP concluded that
costs to air and sea carriers to support the requirements of the ESTA
program could cost $137 million to $1.1 billion over the next 10 years
depending on the level of effort required to integrate their systems
with ESTA, how many passengers they need to assist in applying for
travel authorizations, and the discount rate applied to annual costs.

Impacts to Travelers

ESTA will present new costs and burdens to travelers in VWP countries
who were not previously required to submit any information to the U.S.
Government in advance of travel to the United States. Travelers from
Roadmap countries who become VWP countries will also incur costs and
burdens, though these are much less than obtaining a nonimmigrant visa
(category B1/B2), which is currently required for short-term pleasure
or business to travel to the United States. CBP estimated that the
total quantified costs to travelers will range from $1.1 billion to
$3.5 billion depending on the number of travelers, the value of time,
and the discount rate. Annualized costs are estimated to range from
$133 million to $366 million.

Benefits

As set forth in section 711 of the 9/11 Act, it was the intent of
Congress to modernize and strengthen the security of the Visa Waiver
Program under section 217 of the Immigration and Nationality Act (INA,
8 USC 1187) by simultaneously enhancing program security requirements
and extending visa-free travel privileges to citizens and eligible
nationals of eligible foreign countries that are partners in the war on
terrorism.

By requiring passenger data in advance of travel, CBP may be able to
determine, before the alien departs for the United States, the
eligibility of citizens and eligible nationals from VWP countries to
travel to the United States under the VWP, and whether such travel
poses a law enforcement or security risk. In addition to fulfilling a
statutory mandate, the rule serves the twin goals of promoting border
security and legitimate travel to the United States. By modernizing the
VWP, ESTA is intended to both increase national security and provide
for greater efficiencies in the screening of international travelers by
allowing for the screening of subjects of potential interest well
before boarding, thereby reducing traveler delays based on potentially
lengthy processes at U.S. ports of entry.

CBP concluded that the total benefits to travelers could total $1.1
billion to $3.3 billion over the period of analysis. Annualized
benefits could range from $134 million to $345 million.

In addition to these benefits to travelers, CBP and the carriers should
also experience the benefit of not having to administer the I-94W.
While CBP has not conducted an analysis of the potential savings, it
should accrue benefits from not having to produce, ship, and store
blank forms. CBP should also be able to accrue savings related to data
entry and archiving. Carriers should realize some savings as well,
though carriers will still have to administer the I-94 for those
passengers not traveling under the VWP and the Customs Declaration
forms for all passengers aboard the aircraft and vessel.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Interim Final Action 06/09/08 73 FR 32440
Interim Final Rule
Effective 08/08/08
Interim Final Rule
Comment Period End 08/08/08
Final Rule 06/00/09

Regulatory Flexibility Analysis Required:

Government Levels Affected:

None

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Beverly Good
Director, Electronic System Travel Authorization
Department of Homeland Security
U.S. Customs and Border Protection
1300 Pennsylvania Avenue NW.
Suite 3.3C
Washington, DC 20229
Phone: 202 344-2433
Fax: 202-344-2747
Email: [email protected]
RIN: 1651-AA72
_______________________________________________________________________

DHS--USCBP

60. IMPLEMENTATION OF THE GUAM-CNMI VISA WAIVER PROGRAM

Priority:

Other Significant

[[Page 71186]]

Legal Authority:

PL 110-229, sec 702

CFR Citation:

8 CFR 100.4; 8 CFR 212.1; 8 CFR 233.5; 8 CFR 235.5; 19 CFR 4.7b; 19 CFR
122.49a

Legal Deadline:

Final, Statutory, November 4, 2008, PL 110-229.

Abstract:

This rule amends Department of Homeland Security (DHS) regulations to
implement section 702 of the Consolidated Natural Resources Act of 2008
(CNRA). This law extends the immigration laws of the United States to
the Commonwealth of the Northern Mariana Islands (CNMI) and provides
for a joint visa waiver program for travel to Guam and the CNMI. This
rule implements section 702 of the CNRA by amending the regulations to
replace the current Guam Visa Waiver Program with a new Guam-CNMI Visa
Waiver Program. The amended regulations set forth the requirements for
nonimmigrant visitors who seek admission for business or pleasure and
solely for entry into and stay on Guam or the CNMI without a visa. DHS
is establishing six ports of entry in the CNMI for purposes of
administering and enforcing the Guam-CNMI Visa Waiver Program.

Statement of Need:

Currently, aliens who are citizens of eligible countries may apply for
admission to Guam at a Guam port of entry as nonimmigrant visitors for
a period of fifteen (15) days or less, for business or pleasure,
without first obtaining a nonimmigrant visa, provided that they are
otherwise eligible for admission. Section 702(b) of the Consolidated
Natural Resources Act of 2008 (CNRA), supersedes the Guam visa waiver
program by providing for a visa waiver program for Guam and the
Commonwealth of the Northern Mariana Islands (Guam-CNMI Visa Waiver
Program). Section 702(b) requires DHS to promulgate regulations within
180 days of enactment of the CNRA to allow nonimmigrant visitors from
eligible countries to apply for admission into Guam and the CNMI, for
business or pleasure, without a visa, for a period of authorized stay
of no longer than forty-five (45) days.

Under this interim final rule, a visitor seeking admission under the
Guam-CNMI Visa Waiver Program must be a national of an eligible country
and must meet the requirements enumerated in the current Guam visa
waiver program as well as additional requirements that bring the Guam-
CNMI Visa Waiver Program into soft alignment with the U.S. Visa Waiver
Program provided for in 8 CFR 217. The country eligibility requirements
established in this rule take into account the intent of the CNRA and
ensure that the regulations meet current border security needs. The
country eligibility requirements are designed to: (1) ensure effective
border control procedures, (2) properly address national security and
homeland security concerns in extending U.S. immigration law to the
CNMI, and (3) maximize the CNMI's potential for future economic and
business growth. This rule also provides that visitors from the
People's Republic of China and Russia have provided a significant
economic benefit to the CNMI. However, nationals from those countries
can not, at this time, seek admission under the Guam-CNMI Visa Waiver
Program due to security concerns. Pursuant to section 702(a) of the
CNRA, which extends the immigration laws of the United States to the
CNMI, this rule also establishes six ports of entry in the CNMI to
enable the Secretary of Homeland Security (the Secretary) to administer
and enforce the Guam-CNMI Visa Waiver Program.

Summary of Legal Basis:

The Guam-CNMI Visa Waiver Program is based on congressional authority
provided under 702(b) of the Consolidated Natural Resources Act of 2008
(CNRA).

Alternatives:

None

Anticipated Cost and Benefits:

The most significant change for admission to the CNMI as a result of
the rule will be for visitors from those countries who are not included
in either the existing U.S. Visa Waiver Program or the Guam-CNMI Visa
Waiver Program established by the rule. These visitors must apply for
U.S. visas, which require in-person interviews at U.S. embassies or
consulates and higher fees than the CNMI currently assesses for its
visitor entry permits. CBP anticipates that the annual cost to the CNMI
will be $6 million. These are losses associated with the reduced visits
from foreign travelers who may no longer visit the CNMI upon
implementation of this rule.

The anticipated benefits of the rule are enhanced security that will
result from the federalization of the immigration functions in the
CNMI.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Interim Final Rule 11/00/08

Regulatory Flexibility Analysis Required:

Government Levels Affected:

None

International Impacts:

This regulatory action will be likely to have international trade and
investment effects, or otherwise be of international interest.

Agency Contact:
Cheryl C. Peters
Department of Homeland Security
U.S. Customs and Border Protection
1300 Pennsylvania Avenue NW.
Washington, DC 20229
Phone: 202 344-1707
Email: [email protected]
RIN: 1651-AA77
_______________________________________________________________________

DHS--Transportation Security Administration (TSA)

-----------

PROPOSED RULE STAGE

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61. AIRCRAFT REPAIR STATION SECURITY

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Legal Authority:

49 USC 114; 49 USC 44924

CFR Citation:

49 CFR 1554

Legal Deadline:

Final, Statutory, August 8, 2004, sec. 611 of Vision 100 requires TSA
to issue a final rule within 240 days from date of enactment of Vision
100.

Final, Statutory, August 3, 2008, sec. 1616 of the 9/11 Commission Act
requires that the final rule be issued within one year of the date of
enactment.

Section 611(b)(1) of Vision 100--Century of Aviation Reauthorization
Act (Pub. L. 108-176; Dec. 12, 2003; 117 Stat. 2490), codified at 49
U.S.C.

[[Page 71187]]

44924, requires TSA to issue ``final regulations to ensure the security
of foreign and domestic aircraft repair stations'' within 240 days from
date of enactment of Vision 100.

Abstract:

The Transportation Security Administration (TSA) will propose to add a
new regulation to improve the security of domestic and foreign aircraft
repair stations, as required by the section 611 of Vision 100--Century
of Aviation Reauthorization Act. The NPRM will propose general
requirements for security programs to be adopted and implemented by
repair stations certified by the Federal Aviation Administration (FAA).
Regulations originally were to be promulgated by August 8, 2004. A
Report to Congress was sent August 24, 2004, explaining the delay.

Statement of Need:

The Transportation Security Administration (TSA) is proposing
regulations to improve the security of domestic and foreign aircraft
repair stations. The proposed regulations will require repair stations
that are certificated by the Federal Aviation Administration to adopt
and carry out a security program. The proposal will codify the scope of
TSA's existing inspection program. The proposal also will provide
procedures for repair stations to seek review of any TSA determination
that security measures are deficient.

Summary of Legal Basis:

Sec. 611(b)(1) of Vision 100--Century of Aviation Reauthorization Act
(Pub. L. 108-176; 12/12/2003; 117 Stat. 2490), codified at 49 U.S.C.
44924, requires TSA to issue ``final regulations to ensure the security
of foreign and domestic aircraft repair stations'' within 240 days from
date of enactment of Vision 100. Section 1616 of Public Law 110-53,
Implementing Recommendations of the 9/11 Commission Act of 2007 (Aug.
3, 2007; 121 Stat. 266) requires that the FAA may not certify any
foreign repair stations if the regulations are not issued within one
year after the date of enactment of the 9/11 Commission Act unless the
repair station was previously certified or is in the process of
certification.

Anticipated Cost and Benefits:

The proposed rule would enhance aviation security by supplementing
existing safety regulations with requirements for repair stations to
implement specific security measures to protect aircraft from
commandeering, tampering, or sabotage. The proposed security measures
will mitigate the potential threat that an aircraft could be used as a
weapon or be destroyed. Using a 7 percent discount rate, TSA estimated
the 10-year cost impacts for the primary scenario of this rulemaking
would total $242.4 million. This total is distributed among domestic
repair stations, which would incur total costs of $119.7 million;
foreign repair stations, which would incur costs of $68.9 million; and
TSA-projected Federal Government costs, which would be $53.7 million.
As of March 2007, the FAA reported that there are 4,227 domestic repair
stations and 694 repair stations located outside the U.S. that have an
FAA certificate under part 145 of the FAA's rules.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Notice--Public Meeting;
Request for Comments 02/24/04 69 FR 8357
Report to Congress 08/24/04
NPRM 12/00/08

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Businesses

Government Levels Affected:

None

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
John Randol
Program Manager, Repair Stations
Department of Homeland Security
Transportation Security Administration
Office of Security Operations
TSA-29, HQ, E9
601 South 12th Street
Arlington, VA 22202-4220
Phone: 571 227-1796
Email: [email protected]

Dominick S. Caridi
Director, Regulatory Development and Business Analysis
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management
TSA-28, HQ, E10-410N
601 South 12th Street
Arlington, VA 22202-4220
Phone: 571 227-2952
Fax: 703 603-0302
Email: [email protected]

Linda L. Kent
Sr. Attorney, Regulations Division
Department of Homeland Security
Transportation Security Administration
Office of the Chief Counsel
TSA-2, HQ, E12-126S
601 South 12th Street
Arlington, VA 22202-4220
Phone: 571 227-2675
Fax: 571 227-1381
Email: [email protected]
RIN: 1652-AA38
_______________________________________________________________________

DHS--TSA

62. LARGE AIRCRAFT SECURITY PROGRAM, OTHER AIRCRAFT OPERATOR SECURITY
PROGRAMS, AND AIRPORT OPERATOR SECURITY PROGRAM

Priority:

Economically Significant. Major under 5 USC 801.

Unfunded Mandates:

This action may affect the private sector under PL 104-4.

Legal Authority:

6 USC 469; 18 USC 842; 18 USC 845; 46 USC 70102 to 70106; 46 USC 70117;
49 USC 114; 49 USC 5103; 49 USC 5103a; 49 USC 40113; 49 USC 44901 to
44907; 49 USC 44913 to 44914; 49 USC 44916 to 44918; 49 USC 44932; 49
USC 44935 to 44936; 49 USC 44942; 49 USC 46105

[[Page 71188]]

CFR Citation:

49 CFR 1515; 49 CFR 1520; 49 CFR 1522; 49 CFR 1540; 49 CFR 1542; 49 CFR
1544; 49 CFR 1550

Legal Deadline:

None

Abstract:

The Transportation Security Administration (TSA) proposes to amend
current aviation transportation security regulations to enhance the
security of general aviation by expanding the scope of current
requirements, and by adding new requirements for certain large aircraft
operators and airports serving those aircraft. TSA is proposing that
all aircraft operations, including corporate and private charter
operations, with aircraft having a maximum certificated takeoff weight
(MTOW) above 12,500 pounds (``large aircraft'') be required to adopt a
large aircraft security program. TSA also proposes to require certain
airports that serve large aircraft to adopt security programs.

Statement of Need:

This NPRM would enhance current security measures, and would apply
security measures currently in place for operators of certain types of
aircraft, to operators of other aircraft. While the focus of TSA's
existing aviation security programs has been on air carriers and
commercial operators, TSA is aware that general aviation aircraft with
a maximum certificated takeoff weight (MTOW) of over 12,500 pounds
(``large aircraft'') may be vulnerable to terrorist activity. These
aircraft are of sufficient size and weight to inflict significant
damage and loss of lives if they are hijacked and used as missiles. TSA
has current regulations that apply to large aircraft operated by air
carriers and commercial operators, including the twelve five program,
the partial program, and the private charter program. However, the
current regulations do not cover all general aviation operations, such
as those operated by corporations and individuals, and such operations
do not have the features that are necessary to enhance security.

Anticipated Cost and Benefits:

The proposed rule would yield benefits in the areas of security and
quality governance. The security and governance benefits are four-fold.
First, the rule would enhance security by expanding the mandatory use
of security measures to certain operators of large aircraft that are
not currently required to have a security plan. These measures would
deter malicious individuals from perpetrating acts that might
compromise transportation or national security by using large aircraft
for these purposes. Second, it would harmonize, as appropriate,
security measures used by a single operator in its various operations
and between different operators. Third, the new periodic audits of
security programs would augment TSA's efforts to ensure that large
aircraft operators are in compliance with their security programs.
Finally, it would consolidate the regulatory framework for large
aircraft operators that currently operate under a variety of security
programs, thus simplifying the regulations and allowing for better
governance.

TSA estimated the total 10-year cost of the program would be $1.3
billion, discounted at 7 percent. Aircraft operators, airport
operators, and the Transportation Security Administration would incur
costs to comply with the requirements of the proposed Large Aircraft
Security Program rule. Aircraft operator costs comprise 85 percent of
all estimated expenses. TSA estimated approximately 9,000 general
aviation aircraft operators use aircraft with a maximum takeoff weight
exceeding 12,500 pounds, and would be newly subjected to the proposed
rule.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 10/30/08 73 FR 64790
NPRM Comment Period End 12/29/08

Regulatory Flexibility Analysis Required:

Undetermined

Government Levels Affected:

Local

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Michal C. Morgan
General Manager, General Aviation Security
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management
TSA-28, HQ, E10-353N
601 South 12th Street
Arlington, VA 22202-4220
Phone: 571 227-2634
Fax: 571 227-2819
Email: [email protected]

Mai Dinh
Assistant Chief Counsel, Regulations Division
Department of Homeland Security
Transportation Security Administration
Office of the Chief Counsel
TSA-2, HQ, E12-309N
601 South 12th Street
Arlington, VA 22202-4220
Phone: 571 227-2725
Fax: 571 227-1378
Email: [email protected]
Related RIN: Related to 1652-AA03, Related to 1652-AA04
RIN: 1652-AA53
_______________________________________________________________________

DHS--TSA

63. PUBLIC TRANSPORTATION--SECURITY TRAINING OF EMPLOYEES

Priority:

Other Significant. Major under 5 USC 801.

Unfunded Mandates:

Undetermined

Legal Authority:

49 USC 114; PL 110-53, sec 1408

CFR Citation:

Not Yet Determined

Legal Deadline:

Final, Statutory, November 3, 2007, Interim Rule is due 90 days after
date of enactment.

Final, Statutory, August 3, 2008, Rule is due 1 year after date of
enactment.

According to section 1408 of Public Law 110-53, Implementing
Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121
Stat. 266), interim final regulations are due 90 days after the date of
enactment (Nov. 3, 2007), and final regulations are due 1 year after
the date of enactment of this Act.

[[Page 71189]]

Abstract:

The Transportation Security Administration (TSA) will add a new
regulation to improve the security of public transportation in
accordance with the Implementing Recommendations of the 9/11 Commission
Act of 2007.

This rulemaking will propose general requirements for a public
transportation security training program to prepare public
transportation employees, including frontline employees, for potential
security threats and conditions.

Statement of Need:

A public transportation security training program is proposed to
prepare public transportation employees, including frontline employees,
for potential security threats and conditions.

Summary of Legal Basis:

49 U.S.C. 114; Sec. 1408 of Public Law 110-53, Implementing
Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121
Stat. 266).

Anticipated Cost and Benefits:

Economic analysis under development.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 08/00/09

Regulatory Flexibility Analysis Required:

Undetermined

Government Levels Affected:

Undetermined

Federalism:

Undetermined

Agency Contact:
Thomas L. Farmer
Deputy General Manager - Mass Transit
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management
TSA-28, E10-219S
601 South 12th Street
Arlington, VA 22202-4220
Phone: 571 227-3552
Email: [email protected]

David Kasminoff
Attorney, Regulations Division
Department of Homeland Security
Transportation Security Administration
Office of the Chief Counsel
TSA-2, HQ, E12-310N
601 South 12th Street
Arlington, VA 22202-4220
Phone: 571 227-3583
Fax: 571 227-1378
Email: [email protected]
RIN: 1652-AA55
_______________________________________________________________________

DHS--TSA

64. PUBLIC TRANSPORTATION--SECURITY PLAN

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Unfunded Mandates:

Undetermined

Legal Authority:

49 USC 114; PL 110-53, sec 1405

CFR Citation:

Not Yet Determined

Legal Deadline:

None

Abstract:

The Transportation Security Administration (TSA) will propose new
regulations to enhance security in public transportation in accordance
with section 1405 of the Implementing Recommendations of the 9/11
Commission Act of 2007.

This rulemaking will propose general requirements to require public
transportation agencies that the Secretary of the Department of
Homeland Security (DHS) has determined are at high risk for terrorism
to develop comprehensive security plans. Technical assistance and
guidance will be provided to these agencies in preparing and
implementing the security plans.

Statement of Need:

The rulemaking will propose general requirements for the development of
comprehensive security plans by high-risk public transportation
agencies to deter security threats.

Summary of Legal Basis:

49 U.S.C. 114; section 1405 of Public Law 110-53, Implementing
Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121
Stat. 266).

Anticipated Cost and Benefits:

Economic analysis under development.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 10/00/09

Regulatory Flexibility Analysis Required:

Undetermined

Government Levels Affected:

Undetermined

Federalism:

Undetermined

David Kasminoff
Attorney, Regulations Division
Department of Homeland Security
Transportation Security Administration
Office of the Chief Counsel
TSA-2, HQ, E12-310N
601 South 12th Street
Arlington, VA 22202-4220
Phone: 571 227-3583
Fax: 571 227-1378
Email: [email protected]
RIN: 1652-AA56
_______________________________________________________________________

DHS--TSA

65. RAILROADS--SECURITY TRAINING OF EMPLOYEES

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Unfunded Mandates:

Undetermined

[[Page 71190]]

Legal Authority:

49 USC 114; PL 110-53, sec 1517

CFR Citation:

Not Yet Determined

Legal Deadline:

NPRM, Statutory, February 3, 2008, due 6 months after date of
enactment.

According to section 1517 of Public Law 110-53, Implementing
Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121
Stat. 266), TSA must issue a regulation no later than 6 months after
the date of enactment of this Act.

Abstract:

The Transportation Security Administration (TSA) will add new
regulations to improve the security of railroads in accordance with the
Implementing Recommendations of the 9/11 Commission Act of 2007.

The rulemaking will propose general requirements for a security
training program to prepare railroad frontline employees for potential
security threats and conditions. The regulations will take into
consideration any current security training requirements or best
practices.

Statement of Need:

The rulemaking will propose general requirements for a security
training program to prepare railroad frontline employees for potential
security threats and conditions.

Summary of Legal Basis:

49 U.S.C. 114; section 1517 of Public Law 110-53, Implementing
Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121
Stat. 266).

Anticipated Cost and Benefits:

Economic analysis under development.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 08/00/09

Regulatory Flexibility Analysis Required:

Undetermined

Government Levels Affected:

Undetermined

Federalism:

Undetermined

Agency Contact:
Brian Lusty
Lead Program Analyst, Freight Rail Security
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management
TSA-28, E10-332N
601 South 12th Street
Arlilngton, VA 22202-4220
Phone: 571 227-4998
Fax: 571 227-1923
Email: [email protected]

David Kasminoff
Attorney, Regulations Division
Department of Homeland Security
Transportation Security Administration
Office of the Chief Counsel
TSA-2, HQ, E12-310N
601 South 12th Street
Arlington, VA 22202-4220
Phone: 571 227-3583
Fax: 571 227-1378
Email: [email protected]
RIN: 1652-AA57
_______________________________________________________________________

DHS--TSA

66. RAILROADS--VULNERABILITY ASSESSMENT AND SECURITY PLAN

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Unfunded Mandates:

Undetermined

Legal Authority:

49 USC 114; PL 110-53, sec 1512

CFR Citation:

Not Yet Determined

Legal Deadline:

NPRM, Statutory, August 3, 2008, Due 12 months after date of enactment.

According to section 1512 of Public Law 110-53, Implementing
Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121
Stat. 266), TSA must issue a regulation no later than 12 months after
date of enactment of this Act.

Abstract:

The Transportation Security Administration (TSA) will add new
regulations to improve the security of rail transportation in
accordance with the Implementing Recommendations of the 9/11 Commission
Act of 2007.

This rulemaking will propose general requirements for each railroad
carrier assigned by the Secretary of the Department of Homeland
Security (DHS) to a high-risk tier to conduct a vulnerability
assessment; implement a security plan that addresses security
performance requirements; and establish standards and guidelines for
developing and implementing these vulnerability assessments and
security plans.

Statement of Need:

The rulemaking will propose general requirements for each high-risk
railroad carrier to conduct a vulnerability assessment; implement a
security plan that addresses security performance requirements; and
establish standards and guidelines for developing and implementing
these vulnerability assessments and security plans.

Summary of Legal Basis:

49 U.S.C. 114; section 1512 of Public Law 110-53, Implementing
Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121
Stat. 266).

Anticipated Cost and Benefits:

Economic analysis under development.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 10/00/09

Regulatory Flexibility Analysis Required:

Undetermined

Government Levels Affected:

Undetermined

Federalism:

Undetermined

[[Page 71191]]

Agency Contact:
Scott Gorton
Policy & Plans Branch Chief for Freight Rail
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management
TSA-28, HQ, E10-423N
601 South 12th Street
Arlington, VA 22202-4220
Phone: 571 227-1251
Fax: 571 227-2930
Email: [email protected]

David Kasminoff
Attorney, Regulations Division
Department of Homeland Security
Transportation Security Administration
Office of the Chief Counsel
TSA-2, HQ, E12-310N
601 South 12th Street
Arlington, VA 22202-4220
Phone: 571 227-3583
Fax: 571 227-1378
Email: [email protected]
RIN: 1652-AA58
_______________________________________________________________________

DHS--TSA

67. OVER-THE-ROAD BUSES--SECURITY TRAINING OF EMPLOYEES

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Unfunded Mandates:

Undetermined

Legal Authority:

49 USC 114; PL 110-53, sec 1534

CFR Citation:

Not Yet Determined

Legal Deadline:

NPRM, Statutory, February 3, 2008, Due 6 months after date of
enactment.

According to section 1534 of Public Law 110-53, Implementing
Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007); 121
Stat. 266), TSA must issue a regulation no later than 6 months after
date of enactment of this Act.

Abstract:

The Transportation Security Administration (TSA) will add new
regulations to improve the security of over-the-road buses in
accordance with the Implementing Recommendations of the 9/11 Commission
Act of 2007.

The rulemaking will propose an over-the-road bus security training
program to prepare over-the-road bus frontline employees for potential
security threats and conditions. The regulations will take into
consideration any current security training requirements or best
practices.

Statement of Need:

The rulemaking will propose an over-the-road bus security training
program to prepare over-the-road bus frontline employees for potential
security threats and conditions.

Summary of Legal Basis:

49 U.S.C. 114; section 1534 of Public Law 110-53, Implementing
Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121
Stat. 266).

Anticipated Cost and Benefits:

Economic analysis under development.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 08/00/09

Regulatory Flexibility Analysis Required:

Undetermined

Government Levels Affected:

Undetermined

Federalism:

Undetermined

Agency Contact:
David Kasminoff
Attorney, Regulations Division
Department of Homeland Security
Transportation Security Administration
Office of the Chief Counsel
TSA-2, HQ, E12-310N
601 South 12th Street
Arlington, VA 22202-4220
Phone: 571 227-3583
Fax: 571 227-1378
Email: [email protected]

Bud Hunt
Chief, Threats, Vulnerabilities, & Consequences Br; Highway & Motor
Carrier Programs
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management
TSA-28, HQ, E4-415N
601 South 12th Street
Arlington, VA 22202-4220
Phone: 571 227-2152
Fax: 571 227-2935
Email: [email protected]
RIN: 1652-AA59
_______________________________________________________________________

DHS--TSA

68. OVER-THE-ROAD BUSES--VULNERABILITY ASSESSMENT AND SECURITY PLAN

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Unfunded Mandates:

Undetermined

Legal Authority:

49 USC 114; PL 110-53, sec 1531

CFR Citation:

Not Yet Determined

Legal Deadline:

Final, Statutory, February 3, 2009, section 1531 directs TSA to issue a
regulation no later than 18 months after date of enactment.

According to section 1531 of Public Law 110-53, Implementing
Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121
Stat. 266), TSA must issue a regulation no later than 18 months after
date of enactment (Feb. 3, 2009) of this Act.

Abstract:

The Transportation Security Administration (TSA) will add new
regulations to improve the security of over-the-road bus operators in
accordance with section 1531 of the Implementing Recommendations of the
9/11 Commission Act of 2007.

The rulemaking will propose general requirements for each over-the-road
bus operator assigned by the Secretary of the Department of Homeland
Security (DHS) to a high-risk tier to conduct a vulnerability
assessment and implement a security plan.

Statement of Need:

The rulemaking will propose general requirements for each high-risk
over-the-road bus operator to conduct a vulnerability assessment and
implement a security plan.

Summary of Legal Basis:

49 U.S.C. 114; section 1531 of Public Law 110-53, Implementing
Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121
Stat. 266).

Anticipated Cost and Benefits:

Economic analysis under development.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 10/00/09

[[Page 71192]]

Regulatory Flexibility Analysis Required:

Undetermined

Government Levels Affected:

Undetermined

Federalism:

Undetermined

Bud Hunt
Chief, Threats, Vulnerabilities, & Consequences Br; Highway & Motor
Carrier Programs
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management
TSA-28, HQ, E4-415N
601 South 12th Street
Arlington, VA 22202-4220
Phone: 571 227-2152
Fax: 571 227-2935
Email: [email protected]
RIN: 1652-AA60
_______________________________________________________________________

DHS--TSA

-----------

FINAL RULE STAGE

-----------

69. SECURE FLIGHT PROGRAM

Priority:

Economically Significant. Major under 5 USC 801.

Unfunded Mandates:

This action may affect the private sector under PL 104-4.

Legal Authority:

49 USC 114; 49 USC 40113; 49 USC 44901 to 44903

CFR Citation:

49 CFR 1560

Legal Deadline:

Final, Statutory, September 2005.

Section 4012 of the Intelligence Reform and Terrorism Prevention Act of
2004 (IRTPA) (Pub. L. 108-458; Dec. 17, 2004) requires that not later
than January 1, 2005, TSA commence testing of an advanced passenger
prescreening system; and that not later than 180 days after completion
of testing, TSA begin to assume the performance of the passenger
prescreening function.

Abstract:

The Transportation Security Administration (TSA) is issuing a rule to
implement the requirement in section 4012 of the Intelligence Reform
and Terrorism Prevention Act of 2004 (IRTPA) (Pub. L. 108-458; Dec. 17,
2004) that TSA assume from aircraft operators the performance of the
passenger screening function of comparing passenger information to
appropriate records in the consolidated and integrated terrorist
watchlist maintained by the Federal Government.

Statement of Need:

The Secure Flight program will fulfill the requirement of the
Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) (Pub.
L. 108-458) that TSA begin to assume the pre-flight watch list matching
function currently carried out by air carriers. The rule would
establish the regulatory basis for initiation of the Secure Flight
program.

Anticipated Cost and Benefits:

Secure Flight operational testing would exercise and validate TSA's
ability to connect with the aircraft operators and the Terrorist
Screening Center, receive passenger and non-traveler information,
conduct watch list matching, and transmit watch list results back to
the aircraft operators using live passenger data. Once the testing
results achieve the program's desired efficacy levels, Secure Flight
would be implemented and TSA would receive the primary responsibility
for airline passenger watch list matching. Benefits could include more
accurate, timely, and comprehensive screening, and a reduction in false
positives. This would occur because Secure Flight would have access to
more data than airlines with which to distinguish passengers from
records in the watch lists. Further, the airlines would be relieved of
watch list matching responsibilities, and once the program is fully
implemented, TSA would be relieved of distributing the watch lists.
Other benefits would include increased security due to the watch list
matching of non-traveling individuals who request access to a sterile
area.

TSA estimated the discounted 10-year costs of this rulemaking
discounted at 7 percent would total from $2.074 billion to $3.5281
billion. Air carriers would incur total costs of $345.3 million to
$1,422 million, and travel agents would incur costs of $170.8 to $256.6
million. TSA projected Federal Government costs would be from $943.9 to
$1,155.7 million. The total cost of outlays would be from $2,074.4
billion to $3,581.1 billion. Additionally, the cost to individuals
(value of time) would be between $602.1 and $726.3 million.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Notice: Information
Collection; Emergency
Processing 09/24/04 69 FR 57342
Notice: Information
Collection; Emergency
Processing Comment
Period End 10/25/04
Notice: Final Order for
Secure Flight Test
Phase; Response to
Public Comments 11/15/04 69 FR 65619
NPRM 08/23/07 72 FR 48355
NPRM Comment Period End 10/22/07
Notice: Public Meeting;
Request for Comments 09/05/07 72 FR 50916
Notice: Public Meeting;
Comment Period End 10/22/07
NPRM Extension of Comment
Period 10/24/07 72 FR 60307
NPRM Comment Period End 11/21/07
Final Rule (Part II) 10/28/08 73 FR 64018
Final Rule Effective 12/29/08

Regulatory Flexibility Analysis Required:

Government Levels Affected:

None

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

[[Page 71193]]

Agency Contact:
Paul Leyh
Acting Program Director, Secure Flight Program
Department of Homeland Security
Transportation Security Administration
Office of Threat Assessment & Credentialing
Suite 6876
9800 Savage Road
Ft. Meade, MD 20755
Phone: 240 568-5410
Email: [email protected]

Courtney Smith
Attorney-Advisor
Department of Homeland Security
Transportation Security Administration
601 South 12th Street
TSA-2, E12-334N
Arlington, VA 22202
Phone: 571 227-1951
Fax: 571 227-1380
Email: [email protected]
Related RIN: Related to 1652-AA48
RIN: 1652-AA45
_______________________________________________________________________

DHS--TSA

70. RAIL TRANSPORTATION SECURITY

Priority:

Other Significant

Legal Authority:

46 USC 70102 to 70106; 46 USC 70117; 49 USC 114; 49 USC 40113; 49 USC
44901 to 44907; 49 USC 44913 and 44914; 49 USC 44916 to 44918; 49 USC
44935 and 44936; 49 USC 44942; 49 USC 46105; PL 110-53, sec 1501; PL
107-71; PL 107-296

CFR Citation:

49 CFR 1520; 49 CFR 1580

Legal Deadline:

None

Abstract:

The Transportation Security Administration (TSA) will issue
requirements in this rulemaking to enhance the security of our Nation's
rail transportation system. Regulated entities would include freight
railroad carriers; intercity, commuter, and short-haul passenger train
service providers; rail transit systems; and operators of certain
fixed-site facilities that ship or receive specified categories and
quantities of rail security-sensitive materials by rail.

This rulemaking will codify the scope of TSA's existing inspection
program and require regulated parties to allow TSA and Department of
Homeland Security (DHS) officials to enter, inspect, and test property,
facilities, conveyances, and records relevant to rail security. This
action will also require that regulated parties designate rail security
coordinators and report significant security concerns to DHS.

TSA further will identify a list of rail security-sensitive materials
and require that freight rail carriers and certain facilities handling
rail security-sensitive materials be equipped to report location and
shipping information to TSA upon request and to implement chain of
custody requirements to ensure a positive and secure exchange of
specified hazardous materials. In this action, TSA will also clarify
and extend the sensitive security information (SSI) protections to
cover certain information associated with rail transportation.

Statement of Need:

The Transportation Security Administration (TSA) will issue this final
rule to establish security requirements for freight railroad carriers;
intercity, commuter, and short-haul passenger train service providers;
rail transit systems; and rail operations at certain fixed-site
facilities that ship or receive specified hazardous materials by rail.
This rule will enhance the security of our nation's rail transportation
system.

Summary of Legal Basis:

TSA has the responsibility for enhancing security in all modes of
transportation. Under ATSA, and delegated authority from the Secretary
of Homeland Security, TSA has broad responsibility and authority for
``security in all modes of transportation . . . including security
responsibilities'' over modes of transportation that are exercised by
the Department of Transportation. TSA's authority with respect to
transportation security is comprehensive and supported with specific
powers related to the development and enforcement of regulations,
security directives, security plans, and other requirements.
Accordingly, under this authority, TSA may assess a security risk for
any mode of transportation, develop security measures for dealing with
that risk, and enforce compliance with those measures.

Anticipated Cost and Benefits:

The primary estimate of the total 10-year cost of the final rule
discounted at 7 percent is from $153 million to $174 million. The main
costs are from the chain of custody and location reporting
requirements.

The final rule will enhance rail transportation security by imposing
requirements to designate rail security coordinators, report
significant security concerns, and implement location reporting and
chain of custody requirements. In addition, the broad inspection
authorities codified in the final rule may help identify
vulnerabilities in rail transportation that should be addressed in
future rulemakings or through other mechanisms. Finally, changes to the
SSI provisions will allow access to information by State, local, and
tribal authorities that may assist them in addressing security threats.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 12/21/06 71 FR 76852
Notice--Public Meeting;
Request for Comments 01/19/07 72 FR 2488
NPRM; Comment Period End 02/20/07
NPRM; Initial Regulatory
Flexibility Analysis
(IRFA) 02/15/07 72 FR 7376
NPRM; IRFA; Comment
Period End 02/20/07
Final Action 11/00/08

Regulatory Flexibility Analysis Required:

Government Levels Affected:

Local, State

Federalism:

This action may have federalism implications as defined in EO 13132.

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

[[Page 71194]]

David Kasminoff
Attorney, Regulations Division
Department of Homeland Security
Transportation Security Administration
Office of the Chief Counsel
TSA-2, HQ, E12-310N
601 South 12th Street
Arlington, VA 22202-4220
Phone: 571 227-3583
Fax: 571 227-1378
Email: [email protected]
RIN: 1652-AA51
_______________________________________________________________________

DHS--TSA

71. AIR CARGO SCREENING

Priority:

Economically Significant. Major status under 5 USC 801 is undetermined.

Unfunded Mandates:

Undetermined

Legal Authority:

PL 110-53, sec 1602; 49 USC 114; 49 USC 40113; 49 USC 44901 to 44905;
49 USC 44913 to 44914; 49 USC 44916; 49 USC 44935 to 44936; 49 USC
46105

CFR Citation:

49 CFR 1520; 49 CFR 1522; 49 CFR 1540; 49 CFR 1544; 49 CFR 1548; 49 CFR
1549

Legal Deadline:

Other, Statutory, February 2009, 50 percent of cargo on passenger
aircraft.

Final, Statutory, August 2010, 100 percent of cargo on passenger
aircraft.

Sec 1602 of the Implementing Recommendations of the 9/11 Commission Act
of 2007 (Pub. L. 110-53, 121 Stat. 266, 478, Aug. 3, 2007) requires
that the Secretary of Homeland Security establish a system to screen 50
percent of cargo on passenger aircraft not later than 18 months after
the date of enactment and 100 percent of such cargo not later than 3
years after the date of enactment.

Abstract:

The Transportation Security Administration (TSA) will establish the
Certified Cargo Screening Program that will certify shippers,
manufacturers, and other entities to screen air cargo intended for
transport on a passenger aircraft. This will be the primary means
through which TSA will meet the requirements of sec. 1602 of the
Implementing Recommendations of the 9/11 Commission Act of 2007 that
mandates that 100 percent of air cargo transported on passenger
aircraft, operated by an air carrier or foreign air carrier in air
transportation or intrastate air transportation, must be screened by
August 2010, to ensure the security of all such passenger aircraft
carrying cargo.

Under this rulemaking, each certified cargo screening facility (CCSF)
and their employees and authorized representatives that will be
screening cargo must successfully complete a security threat
assessment. The CCSF must also submit to an audit of their security
measures by TSA-approved auditors, screen cargo using TSA-approved
methods, and initiate strict chain of custody measures to ensure the
security of the cargo throughout the supply chain prior to tendering it
for transport on passenger aircraft.

Statement of Need:

TSA will establish a system to screen 100 percent of cargo transported
on passenger aircraft operated by an air carrier or foreign air carrier
in air transportation or intrastate air transportation to ensure the
security of all such passenger aircraft carrying cargo.

The system shall require, at a minimum, that equipment, technology,
procedures, personnel, or other methods approved by the Administrator
of TSA, are used to screen cargo carried on passenger aircraft to
provide a level of security commensurate with the level of security for
the screening of passenger checked baggage.

Summary of Legal Basis:

49 U.S.C. 114; sec 1602 of the Implementing Recommendations of the 9/11
Commission Act of 2007 (Pub. L. 110-53, 121 Stat. 266, 478, 10/3/2007)

Anticipated Cost and Benefits:

TSA estimates the cost of the rule will be $3.0 billion (discounted at
seven percent) over ten years. TSA analyzed the alternative of not
establishing the Certified Cargo Screening Program (CCSP) and, instead,
having aircraft operators and air carriers perform screening of all
cargo transported on passenger aircraft. Absent the CCSP, the estimated
cost to aircraft operators and air carriers is $8.5 billion (discounted
at seven percent) over ten years. The bulk of the costs for both the
CCSP and the alternative are attributed to personnel and the impact of
cargo delays resulting from the addition of a new operational process.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Interim Final Rule 12/00/08

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

Federal

Agency Contact:
Victor Parker
Branch Chief, Air Cargo Policy & Plans
Department of Homeland Security
Transportation Security Administration
Office of Transportation Sector Network Management
TSA-28, HQ
601 South 12th Street
Arlington, VA 22202
Phone: 571 227-3664
Email: [email protected]

Alice Crowe
Attorney, Regulations Division
Department of Homeland Security
Transportation Security Administration
Office of the Chief Counsel
TSA-2, HQ, E-12-309N
601 South 12th Street
Arlington, VA 22202-4220
Phone: 571 227-2652
Fax: 571 227-1378
Email: [email protected]
RIN: 1652-AA64

[[Page 71195]]

_______________________________________________________________________

DHS--U.S. Immigration and Customs Enforcement (USICE)

-----------

PROPOSED RULE STAGE

-----------

72. AMENDMENT OF FLIGHT TRAINING REGULATIONS FOR F AND M NONIMMIGRANTS
AND TO TRANSITION J FLIGHT TRAINING PROGRAMS OF THE DEPARTMENT OF STATE
TO M FLIGHT PROGRAMS WITH THE DEPARTMENT OF HOMELAND SECURITY

Priority:

Other Significant

Legal Authority:

Not Yet Determined

CFR Citation:

8 CFR 214; 22 CFR 62

Legal Deadline:

None

Abstract:

This regulation will ensure that, in the interest of national security,
DHS provides efficient and effective oversight for flight training
programs. The eight Department of State (DOS) flight training programs
that are validated to enroll J visa exchange visitors will, at DOS
request, be incorporated into the DHS Student and Exchange Visitor
Program (SEVP) flight training certification process no later than June
1, 2010. This regulation will accomplish and facilitate this
transition, modify existing M regulations to improve the tracking of
flight training students in M classification and promote international
flight safety by expanding practical training opportunities for this
group.

Statement of Need:

On July 11, 2008, the Department of State published Public Notice 6284,
73 FR 40008, Exchange Visitor Program--Termination of Flight Training
Programs. The notice informs the public that the Department of State
will cease sponsorship of their existing flight training programs on
June 1, 2010. To avoid adverse consequences to these programs, DHS will
need to implement this rule no later than December 31, 2009.

Anticipated Cost and Benefits:

The benefits of the Amendment of Flight Training Regulations for F and
M Nonimmigrants and to Transition J Flight Training Programs of the
Department of State to M Flight Programs with the Department of
Homeland Security are impossible to quantify or monetize using standard
economic accounting techniques. The number of alien flight training
students and the number of flight training programs and providers is in
constant flux. There are immeasurable benefits for both national
security and the economy to continued monitoring of flight training
programs, improved tracking of alien flight training, and the promotion
of international flight safety.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 03/00/09

Regulatory Flexibility Analysis Required:

Undetermined

Small Entities Affected:

Businesses

Government Levels Affected:

Federal

Agency Contact:
Louis Farrell
Director, Student and Exchange Visitor Program
Department of Homeland Security
U.S. Immigration and Customs Enforcement
425 I Street NW.
Suite 6034
Washington, DC 20536
Phone: 202 305-2346
RIN: 1653-AA43
_______________________________________________________________________

DHS--USICE

73. CLARIFICATION OF CRITERIA FOR CERTIFICATION, OVERSIGHT, AND
RECERTIFICATION OF SCHOOLS BY THE STUDENT AND EXCHANGE VISITOR PROGRAM
(SEVP) TO ENROLL F OR M NONIMMIGRANT STUDENTS

Priority:

Other Significant

Legal Authority:

8 USC 1356(m); PL 107-56; PL 107-173

CFR Citation:

8 CFR 103; 8 CFR 214.3; 8 CFR 214.4

Legal Deadline:

None

Abstract:

This rule amends DHS regulations 8 CFR 214.3 and 214.4 governing
certification, oversight, and recertification of schools certified by
the Student and Exchange Visitor Program (SEVP) for attendance by F
and/or M nonimmigrant students. The rule clarifies the criteria for
initial certification, compliance, and recertification of SEVP-
certified schools every two years.

Statement of Need:

SEVP recertification of schools will commence Apr 1, 2009. It is
essential that this rule be implemented by that date to establish the
standard for adjudications in the two-year recertification cycle that
will commence on that date.

Anticipated Cost and Benefits:

It is extremely difficult to quantify monetarily the benefits of the
Clarification of Criteria for Certification, Oversight and
Recertification of Schools by the Student and Exchange Visitor Program
(SEVP) To Enroll F or M Nonimmigrant Students regulation using standard
economic accounting techniques. Nonimmigrant students, the schools that
serve them, and the communities in which they live will benefit from
the improvements and clarifications to the rules governing the
certification, oversight, and recertification of schools certified by
SEVP.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 09/00/09
NPRM Comment Period End 11/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

[[Page 71196]]

_______________________________________________________________________

DHS--Federal Emergency Management Agency (FEMA)

-----------

PROPOSED RULE STAGE

-----------

74. SPECIAL COMMUNITY DISASTER LOANS PROGRAM

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

42 USC 5121 to 5207

CFR Citation:

44 CFR 206

Legal Deadline:

None

Abstract:

FEMA would amend its regulations to implement loan cancellation
provisions for Special Community Disaster Loans (Special CDLs) which
were provided by FEMA to local governments in the Gulf region following
Hurricanes Katrina and Rita. This proposed rule would not automatically
cancel all Special CDLs, but would propose the procedures and
requirements for governments who received Special CDLs to apply for
cancellation of loan obligations as authorized by the U.S. Troop
Readiness Veterans' Care, Katrina Recovery, and Iraq Accountability
Appropriations Act, 2007 (Troop Act). With the passage of the Troop
Act, FEMA has the discretionary ability to cancel Special CDLs subject
to the limitations of section 417(c) of the Stafford Act. Under section
417 of the Stafford Act, FEMA is authorized to cancel a loan if it
determines that ``the revenues of the local government during the full
three fiscal year period following the disaster are insufficient to
meet the operating budget for the local government, including
additional unreimbursed disaster-related expenses for a municipal
operating character.'' Since the cancellation provisions of section 417
of the Stafford Act already exist in the Traditional CDL Program
regulations at 44 CFR 206.366, and section 417 of the Stafford Act
provides the basis for cancellation of loans under both the Special CDL
Program and the Traditional CDL Program, FEMA would propose to mirror
the Traditional CDL cancellation provisions for Special CDLs. This rule
would not affect the cancellation provisions for the Traditional CDL
Program.

Statement of Need:

This rulemaking is needed to address the needs of the communities
affected by Hurricanes Katrina and Rita in 2005. The Community Disaster
Loan Act of 2005 (Pub. L. 109-88) authorized FEMA to transfer $750
million from the funds appropriated in the Second Emergency
Supplemental Appropriations Act To Meet Immediate Needs Arising From
the Consequences of Hurricane Katrina, 2005, (Pub. L. 109-62), to
provide up to $1 billion in loan authority. The Emergency Supplemental
Appropriations Act for Defense, the Global War on Terror, and Hurricane
Recovery, 2006 (Pub. L. 109-234), authorized an additional $371,733,000
in loans authorized under the Community Disaster Loan Act of 2005. The
U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq
Accountability Appropriations Act, 2007, (Pub. L. 110-28) removes the
loan cancellation prohibitions contained in the 2005 and 2006 Acts.

Summary of Legal Basis:

This rulemaking is authorized by the Community Disaster Loan Act of
2005 (Pub. L. 109-88), the Emergency Supplemental Appropriations Act
for Defense, the Global War on Terror, and Hurricane Recovery, 2006,
(Pub. L. 109-234), and the U.S. Troop Readiness, Veterans' Care,
Katrina Recovery, and Iraq Accountability Appropriations Act, 2007
(Pub. L. 110-28).

Alternatives:

The alternative to this notice of proposed rulemaking would be to
finalize the interim rule for the Community Disaster Loan Act of 2005
without adding in a provision for cancellation of Special Community
Disaster Loans. FEMA is not in favor of that alternative. The public
will be afforded an opportunity to provide comments on the proposed
loan cancellation provisions authorized in the U.S. Troop Readiness,
Veterans' Care, Katrina Recovery, and Iraq Accountability
Appropriations Act, 2007 (Pub. L. 110-28) when FEMA publishes the
rulemaking in the Federal Register.

Anticipated Cost and Benefits:

The overall impact of this rule is, therefore, the cost to the
applicant to apply for the cancellation, as well as the impact on the
economy of potentially forgiving all Special Community Disaster Loans
and any related interest and costs. The maximum total economic impact
of this rule is approximately $1.3 billion. However, without knowing
the dollar amount of the loans that may be cancelled, it is impossible
to predict the amount of the economic impact of this rule with any
precision. Although the impact of the rule could be spread over
multiple years as applications are received, processed and loans
cancelled, the total economic effect of a specific loan cancellation
would only occur once, rather than annually.

Risks:

This action does not adversely affect public health, safety, or the
environment.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Interim Final Rule 10/18/05 70 FR 60443
Interim Final Rule
Effective 10/18/05
Interim Final Rule
Comment Period End 12/19/05
NPRM 02/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Federal, Local, State, Tribal

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
James A. Walke
Disaster Assistance Directorate
Department of Homeland Security
Federal Emergency Management Agency
500 C Street SW.
Washington, DC 20472
Phone: 202 646-2751
Fax: 202 646-3304
Email: [email protected]
RIN: 1660-AA44
_______________________________________________________________________

DHS--FEMA

75. UPDATE OF FEMA'S PUBLIC ASSISTANCE REGULATIONS

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

42 USC 5121-5207

CFR Citation:

44 CFR 206

[[Page 71197]]

Legal Deadline:

None

Abstract:

This proposed rule would revise the Federal Emergency Management
Agency's Public Assistance Program regulations. Many of these changes
reflect amendments made to the Robert T. Stafford Disaster Relief and
Emergency Assistance Act by the Post-Katrina Emergency Management
Reform Act of 2006 and the Security and Accountability For Every Port
Act of 2006. The proposed rule also proposes a few further substantive
and nonsubstantive clarifications and corrections to the Public
Assistance regulations. This proposed rule is intended to improve the
efficiency and consistency of the Public Assistance Program, as well as
implement new statutory authority

Statement of Need:

The proposed changes implement new statutory authorities and
incorporate necessary clarifications and corrections to streamline and
improve the Public Assistance Program. Portions of FEMA's Public
Assistance regulations have become out-of-date and do not reflect
current statutory requirements and authorities. These inconsistencies
and deficiencies inhibit FEMA's ability to clearly articulate its
regulatory requirements, and the Public Assistance applicants'
understanding of the program. The proposed changes are intended to
improve the efficiency and consistency of the Public Assistance
Program.

Summary of Legal Basis:

The legal authority for the changes in this proposed rule is contained
in the Robert T. Stafford Disaster Relief and Emergency Assistance Act,
42 U.S.C. 5121-5207 as amended by the Post-Katrina Emergency Management
Reform Act of 2006, 6 U.S.C. 701 et seq., the Security and
Accountability for Every Port Act of 2006, 6 U.S.C. 901 note, the Local
Community Recovery Act of 2006, Public Law 109-218, 120 Stat. 333, and
the Pets Evacuation and Transportation Standards Act of 2006, Public
Law 109-308, 120 Stat. 1725.

Alternatives:

The alternative would be to not implement the new authorities provided
to FEMA through post-Katrina legislation, and not take independent
steps to improve upon the Public Assistance Program. FEMA does not deem
this an acceptable alternative.

Anticipated Cost and Benefits:

FEMA is in the process of drafting a complete economic analysis for
this proposed rulemaking. Although the economic analysis is not yet
complete, the proposed rule is expected to have economic impacts on the
public, Grantees, subgrantees, and FEMA. The expected benefits are a
reduction in property damages, societal losses, and losses to local
businesses, as well as improved efficiency and consistency of the
Public Assistance Program. The expected cost impact of the proposed
rule is mainly the costs to FEMA in administering the Public Assistance
Program. The total economic impact of the proposed rule is estimated at
approximately $100 million per year. These costs are expected to accrue
from the inclusion of education to the list of eligible private
nonprofit critical services; expansion of force account labor cost
eligibility; the inclusion of durable medical equipment; the
evacuation, care, and sheltering of pets; as well as precautionary
evacuation measures; etc. However, most of the proposed changes are not
expected to result in any additional cost to FEMA or any changes in the
eligibility of assistance. For example, the proposed rule would provide
for accelerated Federal assistance and expedited payment of Federal
share for debris removal. These are expected to improve the agency's
ability to quickly provide funding to Grantees and subgrantees without
affecting Public Assistance funding amounts.

Risks:

This action does not adversely affect public health, safety, or the
environment.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 04/00/09

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Governmental Jurisdictions

Government Levels Affected:

Federal, Local, State

Agency Contact:
James A. Walke
Disaster Assistance Directorate
Department of Homeland Security
Federal Emergency Management Agency
500 C Street SW.
Washington, DC 20472
Phone: 202 646-2751
Fax: 202 646-3304
Email: [email protected]
RIN: 1660-AA51
_______________________________________________________________________

DHS--FEMA

-----------

FINAL RULE STAGE

-----------

76. DISASTER ASSISTANCE; FEDERAL ASSISTANCE TO INDIVIDUALS AND
HOUSEHOLDS

Priority:

Other Significant. Major under 5 USC 801.

Legal Authority:

42 USC 5174

CFR Citation:

44 CFR 206

Legal Deadline:

Final, Statutory, October 15, 2002.

Abstract:

This rulemaking implements section 408 of the Robert T. Stafford
Disaster Relief and Emergency Assistance Act, as amended. It would also
make further revisions to 44 CFR part 206, subpart D (the Individuals
and Households Program (IHP)) and remove subpart E (Individual and
Family Grant Programs). Among other things, it would implement section
686 of the Post-Katrina Emergency Management Reform Act of 2006
(PKEMRA) to remove the IHP subcaps; section 685 regarding semi-
permanent and permanent housing construction eligibility; revise FEMA's
regulations related to individuals with disabilities pursuant to PKEMRA
section 689; and revise FEMA's regulations to allow for the payment of
security deposits and the costs of utilities, excluding telephone
service, in accordance with section 689d of PKEMRA. This regulation
also would implement section 689f of PKEMRA by authorizing assistance
to relocate individuals displaced from their predisaster primary
residence, to and from alternate locations for short-or long-term
accommodations.

[[Page 71198]]

Statement of Need:

FEMA needs to revise its IHP regulations to update them based on
lessons learned, comments from States about implementation of the
regulations, and to implement recent legislative changes (i.e. Post-
Katrina Emergency Management Reform Act of 2006). These changes are
intended to provide clear information to disaster assistance
applicants, implement new authorites, and help ensure consistent
administration of programs by FEMA.

Summary of Legal Basis:

This rulemaking is authorized by Robert T. Stafford Disaster Relief and
Emergency Assistance Act, as amended and the Post-Katrina Emergency
Management Reform Act of 2006.

Alternatives:

The alternative would be to not implement the new authorities provided
to FEMA through post-Katrina legislation, and not take independent
steps to improve upon the Individuals and Households Program. FEMA does
not deem this an acceptable alternative.

Anticipated Cost and Benefits:

Annually, FEMA pays out in excess of $100 million through the
Individuals and Households Program. The proposed and interim rules were
deemed significant but not economically significant because they did
not cause FEMA to pay out $100 million per year more than the agency
paid through its previous regulations. Although this second interim
rule is expected to alter eligibility requirements, and generally
expand the assistance provided through this program, preliminary
estimates of the anticipated costs and benefits are not available at
this time.

Risks:

This action does not adversely affect public health, safety, or the
environment.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 01/23/02 67 FR 3412
NPRM Comment Period End 03/11/02
Interim Final Rule 09/30/02 67 FR 61446
Corrections 10/09/02 67 FR 62896
Corrections Effective 10/09/02
Interim Final Rule
Effective 10/15/02
Interim Final Rule
Comment Period End 04/15/03
Second Interim Final Rule 07/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Federal, State

Additional Information:

Transferred from RIN 3067-AD25

Agency Contact:
Julia Chiu
Disaster Assistance Directorate
Department of Homeland Security
Federal Emergency Management Agency
500 C Street SW.
Washington, DC 20472
Phone: 202 212-1137
Fax: 202 212-1002
Email: [email protected]
RIN: 1660-AA18
BILLING CODE 4410-10-S

[[Page 71199]]

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD)

Statement of Regulatory Priorities
The Regulatory Plan for the Department of Housing and Urban
Development (HUD) for Fiscal Year 2009 highlights the Department's most
significant regulations and policy initiatives that it seeks to
complete during the upcoming fiscal year. As the federal agency
responsible for national policy and programs that address the housing
needs of Americans, encourages community development, and enforces fair
housing laws, HUD plays a significant role in the lives of families and
in communities throughout America. The Department's program and
initiatives help to provide decent, safe and sanitary housing, and to
create suitable living environments for all Americans. HUD expands
housing opportunities for Americans by enforcing fair housing laws that
operate to eliminate housing discrimination. HUD also provides housing
and other essential support to a wide range of individuals and families
with special needs, including homeless individuals, the elderly, and
persons with disabilities.
Secretary Preston has established a results-focused agenda for the
Department that focuses on ways for HUD to support its constituents,
provide transparency to major initiatives, and move the Department
forward. The Secretary has charged HUD with completing certain
strategic goals during his tenure, including promoting responsible,
sustainable homeownership for all Americans, and maximizing options for
safe and affordable housing so all Americans can embark on a path to
self-sufficiency. The regulations highlighted in this Regulatory Plan
and in the Semiannual Agenda of Regulations, published elsewhere in
today's Federal Register, are directed toward achieving these goals.
Priority: Promoting Responsible and Sustainable Homeownership
One way that HUD can promote responsible and sustainable homeownership
is to simplify and improve the disclosure requirements for mortgage
settlement costs and to protect consumers from unnecessarily high
settlement costs under the Real Estate Settlement Procedures Act
(RESPA). The settlement costs associated with a mortgage loan are
significant. In the case of purchase transactions these costs can
become an impediment to homeownership, particularly for low- and
moderate-income households. The purposes of RESPA include the provision
of effective advance disclosure of settlement costs and elimination of
practices that tend to unnecessarily increase the costs of settlement
services.
Regulatory Action: Real Estate Settlement Procedures Act --
Simplification and Improvement of the Process of Obtaining Home
Mortgages and Reduce Consumer Settlement Costs
To improve the advance disclosure of settlement costs, this final rule
amends HUD's RESPA regulations by improving and standardizing the Good
Faith Estimate (GFE) form to make it easier to use for shopping among
settlement providers, and modifies the HUD-1/1A to facilitate the
comparison of the GFE and the HUD-1/HUD-1A Settlement Statements. The
final rule follows publication of a March 14, 2008, proposed rule and
takes into consideration the approximately 12,000 public comments
received on the proposed rule. HUD believes that the result is a final
rule that provides borrowers with additional and more reliable
information about their mortgage loans and settlement costs earlier in
the application process, and will better assure that the mortgage loans
to which they commit at settlement will be the loans of their choice.
The regulatory changes will not only improve advance disclosure of
settlement costs, but will encourage shopping and competition to lower
such costs. Moreover, the final rule updates the RESPA's regulations to
better reflect changes to the mortgage industry since enactment of the
statute in 1974.
Priority: Maximizing Options for Safe and Affordable Housing
In furtherance of its goal to maximize safe and affordable housing
options available to American families, HUD must ensure that rental
assistance is being correctly calculated, so as to eliminate the
misallocation of scarce financial resources and ensure that subsidies
are being provided to those families truly in need of such aid.
Sections 6 and 8 of the United States Housing Act of 1937 (42 U.S.C.
1437d and 1437f), section 202 of the Housing Act of 1959 (12 U.S.C.
1701q), sections 221(d)(3), 221(d)(5), and 236 of the National Housing
Act (12 U.S.C. 1715l(d) and 1715z-1), section 811 of the Cranston-
Gonzalez National Affordable Housing Act (42 U.S.C. 8013), and section
101 of the Housing and Urban Development Act of 1965 (12 U.S.C. 1701s)
authorize HUD to provide financial assistance in the form of rent
subsidies for participants in HUD's public and assisted housing
programs. As part of the procedures for determining proper rent
subsidies, PHAs and multifamily housing owners and management agents
must conduct income verifications for applicants and participants in
covered HUD programs. HUD requires the disclosure and verification of
social security numbers, employer identification numbers, and
citizenship or eligible immigration status.
Regulatory Action: Refinement of Income and Rent Determinations in
Public and Assisted Housing Programs
This final rule amends HUD's regulations governing the verification of
employment and income in the Department's public and assisted housing
programs. The regulatory changes will help ensure that deficiencies in
public and assisted housing rental determinations are identified and
cured through quality control studies and internal audits. Most
significantly, the final rule will require the use of upfront income
verification (UIV) procedures, in lieu of the more time-consuming and
less accurate third-party verification process. That process involves
contacting individual employers identified by the family and reviewing
handwritten documents reporting income.
The final rule follows publication of a June 9, 2007, proposed rule and
takes into consideration the 34 public comments received on the
proposed rule. HUD received public comments from a variety of sources,
including: individuals; PHAs; national PHA and redevelopment
organizations; affordable housing advocacy associations; and
immigration policy groups. HUD is making several changes at this final
rule stage, in response to the comments received on the proposed rule,
and in further consideration of certain issues raised in the earlier
proposed rule.
Aggregate Costs and Benefits
Executive Order 12866, as amended, requires the agency to provide its
best estimate of the combined aggregate costs and benefits of all
regulations included in the agency's Regulatory Plan that will be made
effective in calendar year 2009. HUD anticipates that, over the next
twelve months, the two rules included in its Regulatory Plan, Real
Estate Settlement Procedures Act - Simplification and Improvement of
the Process of Obtaining Home Mortgages and Reduce Consumer Settlement
Costs

[[Page 71200]]

and Refinement of Income and Rent Determinations in Public and Assisted
Housing Programs, will have a combined impact of $570 million of one-
time adjustment costs, $4.3 million of recurring costs, and $783
million of transfers. The $570 million one-time adjustment costs result
from RESPA. The recurring costs and transfers result from the
Refinement of Income and Rent Determination rule. Once the RESPA rule
is implemented, after twelve months, the expected annual impact of
these two rules will be $922 million in annual recurring costs and
$9,133 million in transfers.
The Priority Regulations That Comprise HUD's FY 2009 Regulatory Plan
A more detailed description of the priority regulations that comprise
HUD's FY 2009 Regulatory Plan follows.
_______________________________________________________________________

HUD--Office of the Secretary (HUDSEC)

-----------

FINAL RULE STAGE

-----------

77. REFINEMENT OF INCOME AND RENT DETERMINATIONS IN PUBLIC AND ASSISTED
HOUSING PROGRAMS (FR-4998)

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

42 USC 1437f; 42 USC 3535(d); 42 USC 3543; 42 USC 3544; 42 USC 3608

CFR Citation:

24 CFR 5; 24 CFR 92; 24 CFR 908

Legal Deadline:

None

Abstract:

This final rule revises HUD's public and assisted housing program
regulations to implement the upfront income verification (UIV) process
and to require the use of HUD's Enterprise Income Verification (EIV)
system by public housing agencies (PHAs), and multifamily housing
owners and management agents (O/As), when verifying the employment and
income of program participants at the time of all reexaminations or
recertifications. The rule will ensure that deficiencies in public and
assisted housing rental determinations are identified and cured through
quality control studies and internal audits. This final rule is
consistent with HUD's comprehensive strategy under the Rental Housing
Integrity Improvement Project initiative to reduce by half the number
and dollar amount of errors in HUD's rental assistance programs. This
final rule follows publication of a June 19, 2007, proposed rule and
makes certain changes at this final rule stage in response to public
comment and further consideration of certain issues by HUD.

Statement of Need:

This rule is needed to meet HUD's goal of reducing errors, including
overpayment of subsidy, caused by incorrect income determinations and
rent calculations in HUD's public and assisted housing programs. To do
this, this rule would implement the upfront income verification (UIP)
process and require the use of HUD's Enterprise Income Verification
(EIV) systems. The use of UIV will allow entities to validate the
accuracy of a family's self-reported household income and reduce the
incidence of fraud, waste, and abuse in public and assisted housing
programs. HUD also believes that the use of UIV is less time-consuming
and more accurate than third-party verification.

Summary of Legal Basis:

Sections 6 and 8 of the United States Housing Act of 1937 (42 U.S.C.
1437d and 1437f), section 202 of the Housing Act of 1959 (12 U.S.C.
1701q), sections 221(d)(3), 221(d)(5), and 236 of the National Housing
Act (12 U.S.C. 1715l(d) and 1715z-1), section 811 of the Cranston-
Gonzalez National Affordable Housing Act (42 U.S.C. 8013), and section
101 of the Housing and Urban Development Act of 1965 (12 U.S.C. 1701s)
authorize HUD to provide financial assistance in the form of rent
subsidies for participants in HUD's public and assisted housing
programs. These statutory provisions and HUD's general rulemaking
authority under section 7(d) the Department of Housing and Urban
Development Act (42 U.S.C. 3535(d)) authorize HUD to establish
regulatory policies and procedures governing such rental subsidies,
including the verification of employment and income necessary to
determine the subsidy amounts.

Alternatives:

The policies and procedures governing employment and income
verification are codified in regulation. Accordingly, any revisions to
the regulatory requirements must also be implemented through notice and
comment rulemaking. Implementation of the changes necessary changes
described above through other means, such as a handbook, would not be
binding or enforceable.

Anticipated Cost and Benefits:

Under the Improper Payments Information Act (IPIA) of 2002 and Office
of Management and Budget (OMB) implementing guidance Circular No. A-
123, agencies are to assess all programs and activities they administer
and identify those that may be susceptible to significant improper
payments. Consistent with these directives, HUD initiated the Rental
Housing Integrity Program (RHIP) in the spring of 2001with the goal of
reducing improper payments in HUD's rental housing assistance programs.
The recurring study cost is about $4.3 million annually. The findings
of the latest Quality Control Study, implies that the gross transfer
resulting from eliminating all the under- and over-payments of rents is
approximately $783 million ($523.7 million in rent subsidy overpayment
and $258.7 million in rent subsidy underpayment). The single major
benefit of the initiative is an improvement on the integrity of HUD
programs.

Risks:

This rule poses no risk to public health, safety or the environment.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 06/19/07 72 FR 33844
NPRM Comment Period End 08/20/07
Final Action 12/00/08

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

Agency Contact:
Nicole Faison
Director, Office of Public Housing Programs
Department of Housing and Urban Development
Office of Public and Indian Housing
Phone: 202 708-0744
RIN: 2501-AD16

[[Page 71201]]

_______________________________________________________________________

HUD--Office of Housing (OH)

-----------

FINAL RULE STAGE

-----------

78. REAL ESTATE SETTLEMENT PROCEDURES ACT (RESPA): SIMPLIFICATION AND
IMPROVEMENT OF THE PROCESS OF OBTAINING HOME MORTGAGES AND REDUCING
CONSUMER COSTS (FR-5180)

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

12 USC 2601 et seq; 42 USC 3535(d)

CFR Citation:

24 CFR 3500

Legal Deadline:

None

Abstract:

This final rule amends HUD's regulations to further RESPA's purposes by
requiring more timely and effective disclosures related to mortgage
settlement costs for federally related mortgage loans to consumers. The
changes made by this final rule are designed to protect consumers from
unnecessarily high settlement costs by taking steps to: (1) improve and
standardize the Good Faith Estimate (GFE) form, to make it easier to
use for shopping among settlement providers; (2) ensure that page one
of the GFE provides a clear summary of the loan terms and total
settlement charges, so that borrowers will be able to use the GFE to
identify a particular loan product and then comparison-shop among loan
originators; (3) provide more accurate estimates of costs of settlement
services shown on the GFE; (4) improve disclosure of yield spread
premiums, to help borrowers understand how they can affect their
settlement charges; (5) facilitate comparison of the GFE and the HUD-1/
HUD-1A Settlement Statements; (6) ensure that at settlement, borrowers
are aware of final costs as they relate to the particular mortgage loan
and settlement transaction; (7) clarify HUD-1 instructions; (8) clarify
HUD's current regulations concerning discounts; and (9) expressly state
when RESPA permits certain pricing mechanisms that benefit consumers,
including volume-based discounts. The final rule follows a March 14,
2008, proposed rule and makes changes in response to public comment and
further consideration of certain issues by HUD.

Statement of Need:

The rule is needed to simplify and improve the process of obtaining a
home mortgage, to lower costs for consumers. The current disclosure
requirements under RESPA have not been substantially revised in several
years. The proposed rule was of significant public interest. By the end
of an extended public comment period on June 12, 2008, HUD had received
approximately 12,000 comments (although many were identical form
letters submitted as part of letter writing campaigns). Many commenters
on the March 14, 2008, proposed rule -- including consumers, industry
representatives, and federal and state regulatory agencies -- supported
the concept of better disclosures in general, and commended both HUD's
efforts and particular provisions in the proposed rule. HUD also
received a considerable number of comments about many aspects of the
proposed rule from mortgage industry representatives, including
requests that HUD withdraw its proposal entirely, or that HUD postpone
its current efforts in order to work with the Federal Reserve Board to
arrive at a joint regulatory approach. HUD takes these mortgage
industry comments very seriously and appreciates the concerns raised by
these commenters. HUD's strong view continues to be, however, that
improvements in disclosures to consumers about critical information
relating to the costs of obtaining a home mortgage, often the most
significant financial transaction a consumer will enter into, are
needed, and that such disclosures are a central purpose of RESPA.
Moreover, given the current mortgage crisis, the foreclosure situation
many homeowners are now facing because they entered into mortgage
transactions that they did not fully understand, and the prospect that
future homeowners may find themselves in this same situation, HUD
believes that it is important that the improvements in mortgage
disclosures made by this final rule move forward immediately.

Summary of Legal Basis:

The Secretary is authorized to prescribe such rules and regulations as
may be necessary to achieve the purpose of the Real Estate Settlement
Procedures Act of 1974 (12 U.S.C. 2617).

Alternatives:

The Department considered and acted upon several non-regulatory
alternatives prior to issuance of the March 14, 2008, proposed rule,
but determined that the changes in the marketplace and recent judicial
decisions called for new regulations on the part of HUD. As part of its
review of the public comments on the proposed rule, HUD will consider,
and possibly adopt, alternatives to the regulatory requirements
contained in the proposed rule.

Anticipated Cost and Benefits:

The nation's home mortgage market is a billion-dollar industry.
Accordingly, as was the case with the preceding proposed rule, there
are costs and benefits associated with this rule that will be addressed
in the Economic Analysis that will accompany the final rule. The
Economic Analysis has identified a wide range of benefits, costs,
efficiencies, transfers and market impacts. It estimated that borrowers
will save $8.35 billion in origination and settlement charges. The
total one-time adjustment costs to the lending and settlement industry
of the proposed GFE and HUD-1 are estimated to be $570 million. Total
recurring costs are estimated to be $918 million annually. Because
there is a twelve-month implementation period, only the one-time
adjustment costs will be realized over the next year.

Risks:

This rule poses no threat to public safety, health, or the environment.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 03/14/08 73 FR 14030
NPRM Comment Period End 05/13/08
NPRM Comment Period
Extended 05/12/08 73 FR 26953
Final Action 12/00/08

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

None

[[Page 71202]]

Agency Contact:
Ivy Jackson
Director, Office of RESPA and Interstate Land Sales
Department of Housing and Urban Development
Office of Housing
Phone: 202 708-0502
RIN: 2502-AI61
BILLING CODE 4210-67-S

[[Page 71203]]

DEPARTMENT OF THE INTERIOR (DOI)

Statement of Regulatory Priorities
The Department of the Interior (DOI) is the principal Federal steward
of our nation's public lands and resources, including many of our
cultural treasures. We serve as trustee to Native Americans and Alaska
natives and also are responsible for relations with the island
territories under United States jurisdiction. We manage more than 500
million acres of Federal lands, including 391 park units, 548 wildlife
refuges, and approximately 1.7 billion of submerged offshore acres. The
Department protects natural, historic, and cultural resources, recovers
endangered species, manages water projects, manages forests and fights
wildland fires, regulates surface coal mining operations, leases public
lands for coal, oil, and gas production to meet the Nation's energy
needs, educates children in Indian schools, and provides recreational
opportunities for over 400 million visitors annually in our national
parks, Bureau of Land Management public lands, national wildlife
refuges, and Bureau of Reclamation recreation areas. To fulfill these
responsibilities, the Department generates scientific and other
information relating to land and resource management.
The Department is committed to achieving its stewardship objectives in
partnership with States, communities, landowners, and others through
consultation, cooperation, and communication.
We will review and update the Department's regulations and policies to
ensure that they are effective, efficient, and promote accountability.
Special emphasis will be given to regulations and policies that:
Adopt performance approaches focused on achieving cost-
effective, timely results;
Incorporate the best available science and utilize peer review
where appropriate;
Promote partnerships with States, tribes, local governments,
other groups, and individuals;
Provide incentives for private landowners to achieve
conservation goals; and
Minimize regulatory and procedural burdens, promoting
fairness, transparency, and accountability by agency
regulators while maintaining performance goals.
Major Regulatory Areas
DOI bureaus rely on regulations to implement legislatively mandated
programs that focus on the management of natural resources and public
or trust lands. Some of these regulatory activities include:
Management of migratory birds and preservation of certain
marine mammals and endangered species;
Management of dedicated lands, such as national parks,
wildlife refuges, and American Indian trust lands;
Management of public lands open to multiple use;
Leasing and development oversight of Federal energy, minerals,
and renewable resources;
Management of revenues from American Indian and Federal
minerals;
Fulfillment of trust and other responsibilities pertaining to
American Indians;
Natural resource damage assessments; and
Management of financial and nonfinancial assistance programs.
Regulatory Policy
How DOI Regulatory Procedures Relate to the Administration's Regulatory
Policies
Within the requirements and guidance in Executive Orders 12866, 12630,
13132, 13175, 13211, and 12988, DOI's regulatory programs seek to:
Fulfill all legal requirements as specified by statutes or
court orders;
Perform essential functions that cannot be handled by non-
Federal entities;
Minimize regulatory costs to society while maximizing societal
benefits; and
Operate programs openly, efficiently, and in cooperation with
Federal and non-Federal entities.
DOI bureaus work with other Federal agencies, non-Federal government
agencies, and public entities to make our regulations easier to comply
with and understand. Regulatory improvement is a continuing process
that requires the participation of all affected parties. We strive to
include all affected entities in the decision-making process and to
issue rules efficiently. To better manage and review the regulatory
process, we have revised our internal rulemaking and information
quality guidance. Our regulatory process ensures that bureaus share
ideas on how to reduce regulatory burdens while meeting the
requirements of the laws they enforce and improving their stewardship
of the environment and resources under their purview. Results include:
Increased bureau awareness of and responsiveness to the needs
of small businesses and better compliance with the Small
Business Regulatory Enforcement Fairness Act (SBREFA);
A departmental effort to evaluate the economic effects of
planned rules and regulations;
Issuance of guidance in the Departmental Manual to ensure we
use plain language in our regulations and guidance
documents;
Issuance of new guidance in the Departmental Manual to ensure
that National Environmental Policy Act policies that
streamline decision making and enhance citizen
participation are institutionalized;
Issuance of revised procedures in the Departmental Manual to
clarify our responsibility to offer cooperating agency
status to qualified agencies and governments, and to make
clear the role of cooperating agencies in the
implementation of the Department's NEPA compliance process;
Increased outreach to involved parties in the Natural
Resources Damage Assessment Program, stressing cooperation
and restoration of affected sites;
Streamlined decision-making pertaining to fuels-reduction
projects under the Healthy Forests Initiative and Healthy
Forests Restoration Act; and
A joint effort with the Departments of Agriculture and
Commerce, in consultation with FERC, to streamline the
licensing and appeals process in hydropower licensing, as
called for in the Energy Policy Act of 2005. A final rule
is expected to publish before January of 2009.
Implementing the President's National Energy Policy and the Energy
Policy Act
The President's National Energy Policy promotes ``dependable,
affordable, and environmentally sound production and distribution of
energy for the future.'' The Department of the Interior plays a vital
role in implementing the President's energy policy goals. The lands,
waters, and facilities managed by the Department account for nearly 30
percent of all the energy produced in the United States.

[[Page 71204]]

Through over 100 actions from 2005-2008, the Department has been
implementing the President's energy policy and the Energy Policy Act of
2005, including numerous regulatory actions. These actions will
encourage development of dependable, affordable, and environmentally
sound domestic sources of energy, including alternative sources of
energy such as wind, geothermal, hydropower, and alternative fuels.
The Bureau of Land Management and the Minerals Management Service have
completed several regulations that implement provisions of the Energy
Policy Act and are continuing to develop additional regulations
required by the Act. A key component of our energy efforts is the BLM's
issuance of oil shale regulations. Oil shale regulations would provide
critical ``rules of the road'' for private investors. Oil shale is a
strategically important domestic energy resource, with a potential of
800 billion barrels of recoverable oil- enough to meet U.S. demand for
oil at current levels for 110 years. The BLM has issued proposed
regulations that set out the policies and procedures of a commercial
program for oil shale resources on Federal lands, in keeping with the
Energy Policy Act of 2005 and the Mineral Leasing Act of 1920. The BLM
expects to finalize those regulations in 2008.
The Office of Surface Mining has developed regulations that will
promote better mining and reclamation practices while maintaining a
stable regulatory framework conducive to coal production. As a result,
concern for the environment during mining and reclamation afterwards
are now well established components of energy production through coal
mining operations. OSM continues to refine its program as science,
circumstances or legislation require. OSM recently issued regulations
that encourage the reforestation of reclaimed coal mine sites by
revising vegetative ground cover standards that required excessive
levels of ground cover vegetation which interfere with tree survival
and growth. OSM also issued regulations on financial assurances in the
form of trust funds and annuities to fund the treatment of long-term
post-mining pollution discharges from surface coal mining operations.
The Energy Policy Act of 2005 directed Interior to promulgate
regulations regarding geothermal leasing, National Petroleum Reserve
Alaska, tar sands leasing, oil and gas lease acreages and lease
reinstatement, APD processing procedures, right-of-way rental fees, oil
shale leasing, and coal lease provisions, alternative energy on the
Outer Continental Shelf (OCS), royalty relief for ultra-deep wells on
the OCS, and discretionary relief for OCS leases offshore Alaska. The
MMS has issued proposed regulations for the OCS-related issues and
plans to issue final regulations before the end of 2008. These will
provide the regulatory framework for expanding the development of
alternative energy to the nation's OCS, provide royalty relief with
well-defined price thresholds, encouraging production of clean-burning
natural gas at ultra-deep depths, and provide revenue sharing to Gulf-
producing states for critical projects ranging from conservation and
coastal restoration, to hurricane protection, and the mitigation of the
impacts of OCS activities. Other energy-related regulations have also
been promulgated. The Minerals Management Service, for example,
published a final regulation addressing technical issues pertaining to
valuation of oil on Indian lands, a regulation on open and
nondiscriminatory access to OCS pipelines and electronic payment of
fees.
The BLM has issued final regulations for most of the requirements of
the Energy Policy Act, but continues work on the oil shale leasing
regulations and the coal lease regulations. In particular, the BLM has
issued proposed regulations to set out the policies and procedures of a
commercial program for oil shale resources on Federal lands, in keeping
with the Energy Policy Act of 2005 and the Mineral Leasing Act of 1920.
The Energy Policy Act authorizes the BLM to allow the exploration,
development, and utilization of oil shale resources on BLM-managed
lands. The goal of the BLM oil shale program is to promote economically
viable and environmentally sound oil shale production that augments
current domestic oil production while accounting for the potential
effects of development on states and local communities. The BLM's oil
shale program could result in the addition of up to 800 billion barrels
of recoverable oil from lands in the Western United States.
The BLM has seen a sharp and sustained increase in the submission of
oil and natural gas drilling permit applications. BLM met the challenge
by initiating numerous innovative streamlining strategies to reduce the
backlog of pending drilling permits. As BLM continues to make steady
progress in reducing the backlog, it must work even more aggressively
in the face of rising energy prices and increased demand for drilling
permits. To aid in this effort, new process improvement tools have
become available with the passage of the Energy Policy Act that will
help reduce the backlog of pending permits while allowing the
development of energy resources in an environmentally responsible
manner.
The BLM is continuing its program of environmental Best Management
Practices (BMPs) to help ensure the continued development of energy
resources in an environmentally responsible manner. BMPs are
innovative, dynamic, and improved environmental protection practices
aimed at reducing impacts to the many natural resources BLM manages on
behalf of the public. The BLM requires that appropriate environmental
BMPs be considered for use in all new oil and gas drilling and
production operations on the public lands administered by the BLM. A
full discussion and many examples of BMPs can be found at BLM's BMP
website: www.blm.gov/bmp
The BLM is revising and updating numerous land-use plans, including
those in Utah (for example, public land under the management of the
BLM's Vernal and Kanab Field Offices), western Oregon, and New Mexico,
that would incorporate the land restoration and rehabilitation
objectives of the Healthy Lands Initiative. This initiative, launched
by Secretary of the Interior Dirk Kempthorne in Fiscal Year 2007, is a
visionary landscape-scale effort aimed at improving the health and
productivity of the public lands in today's fast-growing West, where
demand for public land uses and products is at an all-time high.
Focused on areas where energy development intersects with world-class
wildlife habitat, the Healthy Lands Initiative takes a comprehensive,
ridge-to-ridge approach to land management, one that involves Federal
agencies, state and local governments, private organizations, and
private industry working across jurisdictional lines to implement
conservation and restoration projects that make a difference on the
land. The Healthy Lands Initiative responds to a multitude of pressures
on the public lands, including more intense urban-suburban development,
increased outdoor recreational activity, rising demands for energy,
impacts from large-scale wildfires, and the effects of an ongoing weed
invasion.
The Bureau of Indian Affairs finalized regulations implementing
provisions of

[[Page 71205]]

the Energy Policy Act concerning tribal energy resource development on
tribal lands (73 FR 12808; March 10, 2008). Specifically, the Indian
Tribal Energy Development and Self-Determination Act of 2005, Title
XXVI, Section 2604 of the Energy Policy Act, as amended, authorizes
tribes, at their discretion, to apply for and enter into Tribal Energy
Resource Agreements (TERAs) with the Secretary. Upon Secretarial
approval of TERAs, tribes may enter into energy-related business
agreements and leases, and grant rights-of-way for pipelines and
electric transmission and distribution lines, on tribal lands without
the Secretary's review and approval. The final regulations provide the
process by which a tribe may apply for, and the Secretary may grant,
authority for the tribe to review and approve business agreements and
leases. The final regulations also provide the process for
implementation of TERAs, including periodic review and evaluation of a
tribe's activities under a TERA, enforcement of TERA provisions,
administrative appeals, and voluntary rescission of a TERA.
Implementation of the final regulations providing for TERAs furthers
the Federal Government's policy of providing enhanced self-
determination and economic development opportunities for Indian tribes
by promoting tribal oversight and management of energy resource
development on tribal lands. The Act and the regulations provide
another process, in addition to the Indian Minerals Development Act and
the Indian Mineral Leasing Act, under which tribes may develop their
mineral resources. Implementation of these regulations also supports
the national energy policy of increasing utilization of domestic energy
resources.
Encouraging Responsible Management of the Nation's Resources
The Department's mission includes protecting and providing access to
our Nation's natural and cultural heritage and honoring our trust
responsibilities to tribes. We are committed to this mission and to
applying laws and regulations fairly and effectively. The Department's
priorities include protecting public health and safety, restoring and
maintaining public lands, protecting threatened and endangered species,
ameliorating land and resource-management problems on public lands, and
ensuring accountability and compliance with Federal laws and
regulations.
Consistent with the President's Executive Order on Cooperative
Conservation, the Department is continuing to work with State and local
governments, tribes, landowners, conservation groups, and the business
community to conserve species and habitat. Building on successful
approaches such as habitat conservation plans, safe harbor agreements,
and candidate conservation agreements, the Department is reviewing its
policies and regulations to identify opportunities to streamline the
regulatory process where possible, consistent with protection of
wildlife, and to enhance incentive-based programs to encourage
landowners and others to implement voluntary conservation measures. For
example, the Fish and Wildlife Service has issued guidance to promote
the establishment of conservation banks as a tool to offset adverse
impacts to species listed under the Endangered Species Act and restore
habitat. The Service has developed guidance for expanding the use of
the Recovery Credit System that was crafted in collaboration with
partners at Fort Hood, Texas.
Under President Bush's leadership, the Department has emphasized
partnership with landowners and local communities. These partnerships
have benefited many species through improved habitat and have improved
forest and rangeland. Information on our cooperative agreements policy
and examples of successful partnerships are available on the Internet
at http://www.doi.gov/news/CoopConserv--PRINT.pdf.
The BLM Wildlife Program continues to focus on the maintenance and
management of wildlife habitat to help ensure self-sustaining
populations and a natural abundance and diversity of wildlife resources
on public lands. In partnership with the U.S. Geological Survey and the
Fish and Wildlife Service, BLM is developing a landscape-scale approach
to public lands management under the Department's Healthy Lands
Initiative. BLM-managed terrestrial lands are vital to big game, upland
game, waterfowl, shorebirds, songbirds, raptors and hundreds of species
of non-game mammals, reptiles, and amphibians. In order to provide for
the long-term protection of these wildlife resources, especially given
other mandated land use requirements, the Wildlife Program supports
aggressive habitat conservation and restoration activities, many funded
by partnerships with Federal, state, and non-governmental
organizations. For instance, the Wildlife Program continues the
implementation of a suite of complementary wildlife habitat restoration
efforts across a multi-state region in support of sagebrush vegetation
community dependent wildlife species. Projects are tailored to address
regionally specific issues such as fire (as in the western portion of
the sagebrush biome) or habitat degradation and loss (as in the eastern
portion of the sagebrush biome). Additionally, the BLM undertakes
habitat improvement projects in partnership with a variety of
stakeholders and consistent with State (Fish and Game) Wildlife Action
Plans and Local Working Group Plans.
The Department is improving incentives through administrative
flexibility under the Endangered Species Act. Released in April 2004
was a rule change intended to provide greater clarity as to what is
allowable under incidental take permits and to provide greater private
landowner protections under safe harbor agreements. On August 15, 2008,
the Department published a proposed rule that would clarify when
consultation required under Section 7 of the Endangered Species Act of
1973 is applicable and the correct standards for effects analysis, and
would establish timeframes for the informal consultation process.
The U.S. Geological Survey (USGS) has developed a policy and procedures
for reporting, investigating, and adjudicating allegations of
scientific misconduct by USGS employees and volunteers in accordance
with the Federal policy on research misconduct. All covered employees
and volunteers must follow this policy and are required to sign a
statement indicating they have received, read, and understand the
policy. These efforts will help to protect the public from the effects
of inaccurate or misleading information produced through scientific
activities and help to ensure scientific integrity in the conduct of
scientific activities.
In 2006, the Secretaries of Interior and Agriculture, Western
Governors, county commissioners, and other affected parties completed a
revision of the 10-Year Comprehensive Strategy Implementation Plan, a
collaborative national effort to reduce the risk wildland fire poses to
people, communities, and the environment. The revision incorporates new
understanding and lessons learned over the last five years. It draws
upon new tools like LANDFIRE (an advanced natural resource geographic
information system), National Fire Plan Operating and Reporting System
(NFPORS) (a comprehensive interagency fuels treatment, community
assistance, and post-fire rehabilitation tracking system),

[[Page 71206]]

and the emergence of Community Wildfire Protection Plans (CWPP) called
for in the Healthy Forests Restoration Act signed by the President in
December 2003. The revision contains new performance measures and
implementation tasks covering collaboration, fire prevention and
suppression, hazardous fuels reduction, pre- and post-fire landscape
restoration, and community assistance.
Since the President announced the Healthy Forests Initiative in 2002,
the Department has made extensive progress in reducing hazardous fuels.
From 2003 to 2006, the bureaus treated an average of over 1,260,000
acres annually compared to 728,000 acres in 2001. The Department
shifted emphasis toward the wildland urban interface (WUI), each year
treating three times as many WUI acres as were reached in 2001. In
2007, the Department treated 1.787 million acres of wildland urban
interface and non-wildland urban interface lands. The Department has
rapidly inculcated the new tools provided by the Healthy Forests
Initiative and the Healthy Forests Restoration Act into its work. The
Department now uses the streamlined NEPA-compliance on some 80 percent
of new hazardous fuels NEPA work while, in 2006, over 45 percent of all
fuels treatments accomplished where associated with either a
streamlined NEPA tool or a CWPP.
The National Park Service developed a new winter use plan and EIS for
Yellowstone and Grand Teton National parks and the John D. Rockefeller,
Jr. Memorial Parkway. These park areas operated for three winters under
a Temporary Winter Use Plan that expired at the end of the 2006-2007
winter season. The regulation published late in 2007 provided for an
average daily entrance of 540 snowmobiles (compared to 720 under the
interim plan), continued requirements for guided tours and group size
not to exceed 10 snowmobiles, and established daily limits on snowcoach
entrances to the park. The rule also proposed closing the Sylvan Pass
area to snowmobile and snowcoach travel during the winter, but
committed NPS to participating with the town of Cody in a facilitated
conflict resolution process. That process resulted in a decision to
retain over-snow travel and a revised rule was developed in the summer
of 2008.
The National Park Service completed a nearly 10-year public process to
develop a management plan for the Colorado River in Grand Canyon
National Park with the signing of a Record of Decision on the
Environmental Impact Statement in November, 2006. Conforming
regulations consistent with the management directions outlined in the
plan are now necessary. These include changes affecting: permit
requirements for commercial river trips below a specified location in
the canyon; updating visitor use restrictions (i.e. beach uses, trip
requirements) and camping closures; and eliminating unnecessary
provisions in the current regulation. The National Park Service intends
to publish proposed regulations in 2008.
The National Park Service is working with the BLM and FWS to finalize
rulemaking to implement Public Law 106-206, which directs the Secretary
to establish a reasonable fee system (location fees) for commercial
filming and still photography activities on public lands. Commercial
filming and still photography are activities generally allowed on
Federal lands. In many circumstances, it is in the government's
interest to manage the activity through a permitting process to
minimize the possibility of damage to the cultural or natural resources
or interference with other visitors to the area. This regulation would
standardize the collection of location fee by DOI agencies.
The BLM published final grazing regulations in June of 2006. The new
regulations sought to: (1) improve the Bureau's working relationships
with those holding the nearly 18,000 leases and permits that authorize
grazing on BLM-managed land; (2) advance the BLM's efforts in assessing
and protecting rangelands; and (3) enhance the agency's administrative
efficiency. However, litigation resulted in a ruling against the
regulations on February 28, 2008, by the U.S. District Court for Idaho,
which blocked the BLM from implementing the regulations. On April 25,
2008, the Department of Justice, on behalf of all Federal defendants,
filed an appeal to the Ninth Circuit Court of Appeals regarding the
February 28, 2008, ruling. The issues proposed to be raised on appeal
include: (1) whether the District Court properly denied Federal
defendants' motion to dismiss the Endangered Species Act claim for lack
of jurisdiction and (2) whether the District Court properly held that
BLM's promulgation of the final grazing regulations violated the
National Environmental Policy Act, the Federal Land Policy and
Management Act, and the Endangered Species Act. In a related matter,
the BLM has been working to update and refine its grazing policies,
although these changes would not be regulatory in nature. This effort
is expected to result in the revision during 2008 of two rangeland
manuals and five handbooks that have not been updated since the late
1980s. There are more manuals and handbook updates proposed for fiscal
year 2009.
In December 2004, President Bush issued the U.S. Ocean Action Plan, in
response to the US Commission on Ocean Policy Report. The Action Plan
includes a series of proposals from across the Government that included
policy proposals, legislative recommendations, and regulatory
initiatives. DOI has a number of responsibilities under the Action plan
including: implementation of interim regulations and joint permits to
support the President's Proclamation establishing the Papahanaumokuakea
National Marine Monument in the northwest Hawaiian islands; development
of a seamless network to protect and conserve the nations ocean and
coastal refuges, reserves, parks and sanctuaries; and creation of a
National Water Quality Network. The U.S. Fish and Wildlife Service, in
cooperation with the National Oceanic and Atmospheric Administration,
the State of Hawaii's Department of Land and Natural Resources and
Office of Hawaiian Affairs, made available a draft monument management
plan on Earth Day, April 22, 2008. The draft management plan and
associated environmental assessment were available for a 90-day public
comment period from April 23, 2008 through July 23, 2008.
Minimizing Regulatory Burdens
We are using the regulatory process to improve results while easing
regulatory burdens. For instance, the Endangered Species Act (ESA)
allows for the delisting of threatened and endangered species if they
no longer need the protection of the ESA. We have identified
approximately 12 species for which delisting or downlisting
(reclassification from endangered to threatened) has been or may be
appropriate. Since January 1, 2008, we have delisted one species, the
Virginia northern flying squirrel (8/26/08), and proposed delisting for
four other species: brown pelican (2/20/08), Maguire daisy (5/16/08),
concho water snake (7/08/08), and the Hawaiian hawk (8/06/08). By the
end of this calendar year, we expect to propose delisting for five
additional species: valley elderberry longhorn beetle, Eureka Valley
evening-primrose, Eureka Valley dunegrass, Utah valvata snail, and
Tennessee

[[Page 71207]]

purple coneflower. We also expect to propose downlisting for two
species: Okaloosa darter and tulotoma snail.
The Fish and Wildlife Service has found that making listing decisions
under the Endangered Species Act on candidate species in Hawaii on a
traditional, species-by-species basis is inefficient in both cost and
time, since very similar information and analysis would be repeated in
each rule. To improve regulatory efficiency while using the best
science available, the Fish and Wildlife Service has taken an approach
that includes consideration of 48 species in one regulatory package.
This allows us to address the existing backlog of candidate species
more quickly. Most candidate species on the Hawaiian Islands face
nearly identical threats and are only found in the few remaining
native-dominated ecological communities. The impacts of these threats
are well understood at the community level, while their impacts to the
individual candidate species relatively less studied. Because a
significant focus under this approach is on the conservation of the key
physical and biological components of these native communities and
ecosystems (and not just the individual listed species found there),
this approach may preclude the need to list additional species found in
the same ecological communities. Recovery plans developed in response
to the Kauai listing package will focus conservation efforts on the
protection and restoration of ecosystem processes, allowing us to more
efficiently address common threats in the most important areas.
The Department has submitted over a dozen proposed categorical
exclusions provided for under NEPA to expedite a range of activities
that the agencies routinely conduct. These range from periodic road
closures over dams to activities related to improving Forest Health and
energy related activities.
The Federal Power Act authorizes the Department to include in
hydropower licenses issued by the Federal Energy Regulatory Commission
conditions and prescriptions necessary to protect Federal and tribal
lands and resources and to provide fishways when navigable waterways or
Federal reservations are used for hydropower generation. The Department
of the Interior developed a joint rule with the Departments of
Agriculture and Commerce that establishes a trial-type hearing for a
review of disputes over ``material facts'' included in hydropower
licenses, as required by section 241 of the Energy Policy Act of 2005.
The Department expects to publish a final rule in 2008.
The Department of the Interior has proposed a regulatory change
affecting the firearms regulations of the National Park Service and the
Fish and Wildlife Service. The proposed regulatory change would update
the current regulations to reflect current state laws authorizing the
possession of concealed firearms. The Department proposes to amend
existing regulations to allow individuals to carry concealed weapons in
park units and refuges to the extent that they could lawfully do so on
analogous state-administered lands. The proposed rule was published on
April 30, 2008. The comment period was re-opened in the summer, and
closed August 8. Analysis of comments is underway. DOI expects to
publish a final rule in 2008.
The National Park Service published a proposed rule regarding permits
for inaugural events on August 8, 2008. The comment period closes
September 22, 2008. This rule was needed to respond to legal decisions
that would affect the upcoming inaugural, regardless of the election
results. The proposed rule changes are intended to protect the planning
prerogatives of future presidential inaugural committees. The NPS
proposed regulation would expressly authorize the NPS to apply for
permits on behalf of a Presidential Inaugural Committee so that the
Inaugural Committee can continue its traditional functions along
Pennsylvania Avenue. The permits would include the time to set-up and
take-down structures. The regulation would establish a priority for PIC
activities in designated areas. The regulation would also establish
set-up and take-down times for Inaugural-related construction
activities on parkland directly in front of the White House.
Encouraging Public Participation and Involvement in the Regulatory
Process
The Department is encouraging increased public participation in the
regulatory process to improve results by ensuring that regulatory
policies take into account the knowledge and ideas of our customers,
regulated community, and other interested participants. The Department
is reaching out to communities to seek public input on a variety of
regulatory issues. For example, every year FWS establishes migratory
bird hunting seasons in partnership with ``flyway councils,'' which are
made up of State fish and wildlife agencies. As the process evolves
each year, FWS holds a series of public meetings to give other
interested parties, including hunters and other groups, opportunities
to participate in establishing the upcoming season's regulations.
Similarly, BLM uses Resource Advisory Councils (RACs) made up of
affected parties to help prepare land management plans and regulations
that it issues under the Federal Land Policy and Management Act and
other statutes.
The Department reviewed and reformed its NEPA compliance program and in
2004 implemented new procedures to improve public participation and
reduce paperwork and redundancy of effort in the field. The reforms
include: consensus-based management, public participation, community-
based training, use of integrated analysis, adaptive management, and
tiered and transferred analysis. To promote greater transparency and
public accountability, the Department is promulgating regulations to
codify these policies in the Code of Federal Regulations. These
regulations will supplement the CEQ regulations and must be used in
conjunction with them. The regulations will ensure that field staffs
have the tools to tailor their implementation of the NEPA process to
local needs and interests.
The Federal Lands Recreation Enhancement Act (REA; PL 108-447), enacted
in December 2004, required the Forest Service and BLM to establish
Recreation Resource Advisory Committees (RRACs), or use existing BLM
RACs to perform the duties of RRACs. These committees make recreation
fee program recommendations to the two agencies on agency proposals to
implement or eliminate certain recreation fees; to expand or limit
their fee programs; and to implement fee level changes. The Department
of the Interior and the Department of Agriculture signed an Interagency
Agreement establishing the framework, processes, and collaborative RRAC
approach the two agencies are using to comply with the REA's public
participation requirements. The RRACs began reviewing agency fee
proposals in 2007.
We encourage public consultation during the regulatory process. For
example:
OSM is continuing its outreach to interested groups to improve
the substance and quality of rules and, to the greatest
extent possible, achieve consensus on regulatory issues. As
part of this process, OSM meets on a

[[Page 71208]]

regular basis with organizations that represent coal-
producing states such as the Interstate Mining Compact
Commission and the National Association of Abandoned Mine
Land Programs. OSM also meets on a regular basis with
Indian tribes regarding coal mining activity on their
tribal lands.
The Bureau of Indian Affairs (BIA) engaged in a comprehensive
approach to public consultation while developing
regulations related to Indian probate and other areas of
Indian trust management reform. BIA held five tribal
consultation sessions in different regions of the country,
presented the regulatory changes at several conferences,
provided Continuing Legal Education (CLE) training at a
symposium sponsored by the Institute of Indian Estate
Planning and Probate, held workshops, and made available
public outreach materials describing the regulatory
changes.
The Golden Gate National Recreation Area, a unit of the
National Park System, has engaged in negotiated rulemaking
to resolve an issue regarding walking dogs off-leash in the
park and their impacts to endangered species. Existing NPS
regulations require all dogs to be on a leash while in
Golden Gate NRA, and the park has asked interested parties
on both sides of the issue to help draft a proposed
regulation. NPS published a final rule to provide temporary
protection on 9/19/2008 (73 FR 54317). NPS expects to
publish special rules on dog management by winter 2010.
Rules of Particular Interest to Small Businesses
FWS is making critical habitat designations more site-specific and is
using the ESA section 4(b) exclusion process to reduce regulatory costs
on small businesses.
BLM has developed Stewardship Contracting Guidance that provides a
framework for the preparation, implementation, and tracking of BLM
stewardship projects, in accordance with Section 323 of Public Law 108-
7, the Consolidated Appropriations Resolution, 2003, which authorizes
BLM to enter into stewardship projects with private persons or public
or private entities, by contract or by agreement, to perform services
to achieve land management goals for the national forests or public
lands that meet local and rural community needs. The legislation also
authorizes the value of timber or other forest products removed to be
applied as an offset against the cost of services received.
The Future of DOI
Interior updated its 2003-2008 strategic plan in accordance with the
Government Performance and Results Act requirement to update such plans
every three years. Employee teams from bureaus and offices across
Interior engaged in the revision process. Senior Departmental
leadership was involved in reviews and approval of recommended changes
before releasing the draft plan for public comment. The draft GPRA
Strategic Plan: 2007-12 was the subject of a number of public meetings,
tribal government to government consultations, and employee focus
groups during August and September 2006. Modifications based on
analysis of the comments received were completed and the final plan was
published on December 28, 2006.
The Department has established cooperative conservation principles as a
central organizing theme for enhancing resource management and reducing
conflict relating to public lands decisions. The Department can best
achieve conservation by leveraging its resources through successful
partnerships, cooperative agreements and participation from farmers,
ranchers, hunters, anglers, landowners, and others who are interested
in conservation. As we empower people as stewards of the land, we
become more effective in our conservation mission. President Bush has
emphasized the value of cooperative conservation through Executive
Order 13352. The Executive Order defines cooperative conservation as
``actions that relate to use, enhancement, and enjoyment of natural
resources, protection of the environment, or both, and that involve
collaborative activity among Federal, State, local, and Tribal
governments, private for-profit and non-profit institutions, other
nongovernmental entities and individuals.'' The DOI has aligned
budgets, administrative tools, and policies to strengthen its capacity
to encourage cooperative conservation and fulfill its potential to
achieve on-the-ground conservation results. Below are only a few of
many examples of actions the Department has taken to maximize
conservation through cooperation:
We increased programs and grants designed to facilitate
cooperative conservation from $217.1 million in 2001 to
$311.3 million in 2008, a 43 percent increase.
We incorporated cooperative conservation goals into employee
performance plans;
We established a permanent Office of Conservation,
Partnerships and Management Policy within the Office of the
Secretary that works with an intradepartmental team to
strengthen capacity for collaboration, mediation, and
partnering.
We revised our Departmental Manual chapter on donations to
improve our ability to partner effectively with the public.
The revised policy encourages partnerships while upholding
the principles that the integrity and impartiality of the
Department and public confidence in the Department are key
considerations in any acceptance of donations.
The National Park Service adopted a Building Better
Partnership Projects (BBPP) process to help ensure that
partnership-assisted construction projects in National
Parks are properly designed, vetted and managed and that
the fundraising campaign is slated for success. The BBPP
process is intended to help ensure that:
1) the project is appropriately designed and sized for the park
2) the capital campaign will succeed in raising all the needed funds
without having to turn to Congress to make up any
difference the campaign cannot raise
3) the project can be staffed and maintained over time
4) there is proper compliance with and oversight of design and
construction
5) all appropriate parties, including the Department and Congress, are
aware and supportive of the projects.
Recent examples of successful projects include the $18.5 million Craig
Thomas Discovery and Visitor Center at Grand Teton National Park,
funded in part by the Grand Teton National Park Foundation and the
Grand Teton Natural History Association; the $14 million Lower Yosemite
Falls Trail Improvement Project, funded primarily by the Yosemite Fund;
and the new museum and visitor center at Gettysburg National Military
Park funded principally through the $125 million Campaign to Preserve
Gettysburg by the Gettysburg Foundation.
We revised the Departmental Manual chapter on contracts,
grants and cooperative agreements to address single source
awards while continuing to uphold the

[[Page 71209]]

Department's policy that the bureaus must use appropriate
instruments for federal financial assistance transactions,
provide appropriate justifications and documentation for
files and conduct periodic compliance reviews.
The revised GPRA Strategic Plan:
Incorporates key Administration and Secretarial priorities
into Interior's goals and performance measures
Provides for more ``results-oriented'' goals for Interior
programs
Provides the basis for the Departmental Annual Performance
Plan
Interior bureaus will continue to prepare internal plans to support
their budget initiatives and to meet management excellence and
accountability needs.
Bureaus and Offices Within DOI
The following brief descriptions summarize the regulatory functions of
DOI's major regulatory bureaus and offices.
Bureau of Indian Affairs
The Bureau of Indian Affairs (BIA) is responsible for the
administration and management of 66 million acres of land held in trust
by the United States for Indians and Indian tribes, providing services
to approximately 1.7 million Indians and Alaska Natives, and
maintaining a government-to-government relationship with the 562
federally recognized Indian tribes. BIA's mission is to ``... enhance
the quality of life, to promote economic opportunity, and to carry out
the responsibility to protect and improve the trust assets of American
Indians, Indian tribes, and Alaska Natives'' as well as to provide
quality education opportunities to students in Indian schools.
In fiscal year 2008, BIA has two primary areas of regulatory focus:
1) improved management of trust responsibilities and
2) promotion of economic development in Indian communities.
The focus on Indian trust management reform originated with Congress's
enactment of the Trust Fund Management Reform Act of 1994. Since that
time, BIA, with the input of tribal leaders, individual Indian
beneficiaries, and other subject matter experts, has been examining
ways to better serve its beneficiaries. The American Indian Probate
Reform Act of 2004 (AIPRA) amendments to the Indian Land Consolidation
Act (ILCA) made clear that regulatory changes were necessary to update
the manner in which BIA meets its trust management responsibilities.
The focus on promoting economic development in Indian communities is a
core component of BIA's mission and furthers the Secretary's Safe
Indian Communities initiative by preventing crime through economic
development opportunities.
BIA's regulatory priorities are to:
Meet the Indian trust reform goals for land consolidation and
improve service to individual Indian and tribal
beneficiaries. BIA and the Office of the Secretary plan to
finalize in late 2008 several regulations related to Indian
trust management to meet the policies articulated by
Congress in ILCA, as amended by AIPRA. These regulations
address Indian trust management issues in the areas of
probate; probate hearings and appeals; tribal probate
codes; life estates and future interest in Indian land; and
conveyances of trust or restricted land. These amendments
to 25 CFR parts 15, 18, 152, 179, and 43 CFR Parts 4, 30
form an integrated approach to Indian trust management
related to probate and conveyances that allows the
Department to better meet the needs of its beneficiaries.
(See proposed rule at 71 FR 45174; August 6, 2006). BIA is
also developing amendments to regulations in the areas of
land title and records; leasing; grazing; minerals and
energy; rights-of-way; and trust fund accounting and
appeals. Together, these regulatory changes, to be proposed
in 2009, will provide the Department with the tools it
needs to better serve beneficiaries and will standardize
procedures for consistent execution of fiduciary
responsibilities across the BIA.
Promote economic development through regulated gaming
activities. Congress identified gaming as a means of
promoting tribal economic development, self-sufficiency and
strong tribal governments. See, e.g., the Indian Gaming
Regulatory Act (IGRA), 25 U.S.C. 2701 et seq. In fiscal
year 2008, BIA established a process for Indian tribes to
take advantage of this important means of economic
development on lands acquired after October 17, 1988.
Specifically, BIA finalized a new rule that establishes the
process for Indian tribes to submit applications and
demonstrate that they meet the statutory requirements
allowing them to conduct class II or class III gaming
activities on those lands (73 FR 12808; May 20, 2008). This
year, BIA also proposed, and plans to finalize, a rule that
clarifies the process for Indian tribes to submit their
Tribal-State Gaming Compacts for review and approval by the
Secretary (73 FR 37907; July 2, 2008). Tribal-State Gaming
Compacts govern the conduct of class III gaming activities
on the tribe's Indian lands located within that State.
The Bureau of Land Management
The Bureau of Land Management (BLM) manages about 258 million acres of
land surface, including 15 National Monuments, and about 700 million
acres of Federal mineral estate. These lands consist of extensive
grasslands, forests, mountains, arctic tundra, and deserts. Resources
on the lands include energy and minerals, timber, forage, wild horse
and burro populations, habitat for fish and wildlife, wilderness areas,
and archaeological and cultural sites. The BLM manages these lands and
resources for multiple purposes and the sustained yield of renewable
resources. Primary statutes under which the BLM operates include: the
Federal Land Policy and Management Act of 1976; the General Mining Law
of 1872; the Mineral Leasing Act of 1920, as amended; the Recreation
and Public Purposes Act; the Taylor Grazing Act; the Wilderness Act;
and the Wild Free-Roaming Horse and Burro Act.
The BLM regulatory focus is directed primarily by priorities of the
President and Congress. For example, many regulatory efforts support
the objectives of the Energy Policy Act of 2005. These objectives
include those that facilitate the domestic production of various
sources of energy, including biomass, wind, solar, and other
alternative sources of energy, including oil shale. Other statutory
objectives include providing for a wide variety of public uses while
maintaining the long-term health and diversity of the land and
preserving significant natural, cultural, and historic resource values;
understanding the arid, semi-arid, arctic, and other ecosystems we
manage and committing ourselves to using the best scientific and
technical information to make resource management decisions;
understanding the needs of the people who use the BLM-managed public
lands and providing them with quality service; securing the recovery of
a fair return for using publicly owned resources and avoiding the
creation of long-term liabilities for American taxpayers; and resolving
problems and implementing decisions in cooperation with other agencies,
States, tribal governments, and the public.

[[Page 71210]]

During the development of regulations, the BLM recognizes the need to
ensure communication, coordination, and consultation with all affected
interests and the public and that the regulations are easy for the
public to understand, especially those who would be most affected by
them.
The BLM's regulatory priorities include:
Finalizing oil shale regulations to provide critical ``rules
of the road'' essential to oil shale development. The BLM
has issued proposed regulations (73 FR 42926; July 23,
2008) that set out the policies and procedures of a
commercial program for oil shale resources on Federal
lands, in keeping with the Energy Policy Act of 2005 and
the Mineral Leasing Act of 1920. It expects to finalize
these regulations in 2008. Finalizing these regulations is
a key component of our effort to promote America's energy
security. Oil shale is a strategically important domestic
energy resource, with a potential of 800 billion barrels of
recoverable oil- enough to meet U.S. demand for oil at
current levels for 110 years.
Other regulatory and planning efforts seek to improve the agency's
management of public rangelands and other land resources, such as land-
use plan revisions that incorporate the objectives of the Healthy Lands
Initiative. Through these actions, the BLM is working to ensure that
America's public lands stay healthy and productive for multiple uses,
both now and in the years to come.
Minerals Management Service
Minerals Management Service (MMS) has two major responsibilities. The
first is timely and accurate collection, distribution, and accounting
for revenues associated with mineral production from leased Federal and
Indian lands. The second is management of the resources of the Outer
Continental Shelf (OCS) in a manner that provides for safety,
protection of the environment, and conservation of natural resources.
Both of these responsibilities are carried out under the provisions of
the Federal Oil and Gas Royalty Management Act, the Federal minerals
leasing acts, the Outer Continental Shelf Lands Act, the Indian mineral
leasing acts, and other related statutes.
Our regulatory focus in fiscal year 2008 is directed primarily by
priorities of the President and Congress. Legislation enacted by
Congress and signed by the President emphasizes contributing to our
nation's energy supply, developing new energy sources and sharing OCS
revenues with coastal states affected by offshore oil and gas
exploration. Through the Energy Policy Act of 2005 (EPAct) and the Gulf
of Mexico Energy Security Act of 2006 (GOMESA), Congress directed MMS
to:
1) develop regulations to encourage development of alternative energy
and alternate uses of facilities on the OCS, and
2) distribute a fair share of Federal royalty revenue to States and
political subdivisions affected by offshore oil and gas
exploration in the Gulf of Mexico.
Our regulatory priorities are to:
Meet our Indian trust responsibilities. We have an ongoing
trust responsibility to collect and disburse oil and gas
royalties on Indian lands. The Minerals Management Service
announced its intent to establish an Indian Oil Valuation
negotiated rulemaking committee by Federal Register notice
(73 FR 22970), published on April 28, 2008. This effort
will address issues pertaining to the valuation of oil
produced from Indian lands and add more certainty to oil
valuation for royalty purposes. The negotiated rulemaking
process will involve stakeholders in the rulemaking process
and address some of the unique terms contained in Indian
tribal and allotted leases - in particular, the major
portion provision to ensure consistent, fair and proper
calculation of oil value from Indian lands.
Encourage development of alternative energy and alternate uses
for existing facilities. In responding to the mandates of
the EPAct, MMS has moved forward in developing and
codifying the regulatory framework for alternative energy
projects on the OCS. We published a proposed rule (RIN
1010-AD30) in July, 2008, and expect to publish the final
regulations by the end of the year. The regulations will
provide a mechanism for developing the nations' offshore
wind, wave and ocean current resources in a safe and
environmentally sound manner.
Promote Gulf of Mexico coastal restoration through revenue
sharing with affected States. We published a proposed rule
(RIN 1010-AD46) in May, 2008, and expect to publish a final
rule before the end of 2008 that would establish a formula
and provide a process for allocating a portion of OCS
revenues (royalties, rents and bonuses) from leases in
specified areas of the Gulf of Mexico to the States of
Alabama, Mississippi, Louisiana and Texas and their coastal
political jurisdictions. The funds provided would be used
for the purposes of coastal protection, including
conservation, coastal restoration, hurricane protection,
mitigation of damage to fish, wildlife or natural
resources, and the mitigation of the impacts of OCS
activities.
Royalty Relief for Ultra-Deep gas wells and Deep Gas wells
pursuant to the EPAct. We are promulgating a final rule
(RIN 1010-AD33) to reflect the statutory changes enacted in
the EPAct to provide royalty relief, with price thresholds,
for certain ultra-deep wells on OCS leases in shallow water
in the Gulf of Mexico. The rule would provide relief under
certain circumstances and could foster increased production
of clean burning natural gas for the nation.
Office of Surface Mining Reclamation and Enforcement
The Office of Surface Mining Reclamation and Enforcement (OSM) was
created by the Surface Mining Control and Reclamation Act of 1977
(SMCRA) to ``strike a balance between protection of the environment and
agricultural productivity and the Nation's need for coal as an
essential source of energy.'' The principal regulatory provisions
contained in Title V of SMCRA set minimum requirements for obtaining a
permit for surface coal mining operations, set standards for those
operations, require land reclamation once mining ends, and require
rules and enforcement procedures to ensure that the standards are met.
Under SMCRA, as amended by the Surface Mining Control and Reclamation
Act Amendments of 2006, OSM is the primary enforcer of SMCRA's
provisions until a State or Indian tribe achieves ``primacy;'' that is,
until it demonstrates that its regulatory program meets all of the
specifications in SMCRA and has regulations consistent with those
issued by OSM. When a primacy State or Indian tribe takes over the
permitting, inspection, and enforcement activities of the Federal
Government, OSM changes its role from regulating mining activities
directly to overseeing and evaluating State and Indian programs. Today,
24 of the 26 coal-producing States have primacy. In return for assuming
primacy, States are entitled to regulatory grants and to grants for
reclaiming abandoned mine lands. In addition,

[[Page 71211]]

under cooperative agreements, some primacy States have agreed to
regulate mining on Federal lands within their borders. At present, none
of the Indian tribes with coal resources has primacy. Tribal primacy
was not authorized until passage of the 2006 amendments to SMCRA. Since
passage of the 2006 amendments, three tribes have expressed an interest
in submitting a tribal program. In summary, OSM regulates mining
directly only in nonprimacy States, on Federal lands in States where no
cooperative agreements are in effect, and on Indian lands when the
tribe does not have primacy.
OSM has sought to develop and maintain a stable regulatory program for
surface coal mining hat is safe, cost-effective, and environmentally
sound. A stable regulatory program provides regulatory certainty so
that coal companies know what is expected of them and citizens know
what is intended and how they can participate. During the development
and maintenance of its program, OSM has recognized the need to (a)
respond to local conditions, (b) provide flexibility to react to
technological change, (c) be sensitive to geographic diversity, and (d)
eliminate burdensome recordkeeping and reporting requirements that over
time have proved unnecessary to ensure an effective regulatory program.
OSM's major regulatory priorities are to:
Revise Our Abandoned Mine Land Program Regulations To Be
Consistent With the Surface Mining Control Act Amendments
of 2006. We published a proposed rule (RIN 1029-AC56) on
June 20, 2008, that aligns our existing regulations to be
consistent with the 2006 amendments to SMCRA which extended
the AML fee through 2021 with several substantive changes.
The rule also uses plain English to make the regulations
easier to understand where no substantive change is
intended and provides further guidance and clarification on
implementation of the 2006 amendments where appropriate or
needed. The primary benefits of the rule will be to insure
the stable and efficient administration of these
significant changes to the abandoned mine land program
through the fee extension provided by the new legislation.
Issue Regulations for Stream Buffer Zones and Excess Spoil
Placement. We published a proposed rule (RIN 1029-AC04) on
August 24, 2007, concerning stream buffer zones, stream-
channel diversions, siltation structures, impoundments,
excess spoil, and coal mine waste. Among other things, the
rule would require that surface coal mining operations be
designed to minimize the creation of excess spoil and the
adverse environmental impacts of fills constructed to
dispose of excess spoil and coal mine waste. The primary
benefits of the rule will be (1) minimization of adverse
environmental impacts from construction of excess spoil
fills and (2) regulatory clarity and stability with respect
to buffer zones for intermittent and perennial streams.
U.S. Fish and Wildlife Service
The mission of the Fish and Wildlife Service is, working with others,
to conserve, protect, and enhance fish, wildlife, plants and their
habitats for the continuing benefit of the American people. The
Service's vision is to be a leader and trusted partner in fish and
wildlife conservation, known for its scientific excellence, stewardship
of lands and natural resources, dedicated professionals, and commitment
to public service.
The Service has six priorities:
1) National Wildlife Refuge System - conserving our lands and
resources;
2) Landscape Conservation - working with others;
3) Migratory Birds - conservation and management;
4) Threatened and Endangered Species - achieving recovery and
preventing extinction;
5) Aquatic Species - National Fish Habitat Action Plan and trust
species; and
6) Connecting People with Nature - ensuring the future of conservation.
Our regulatory focus through fiscal year 2008 is on four of those
priorities - National Wildlife Refuges, Connecting People with Nature,
Migratory Birds, and Threatened and Endangered Species.
The regulatory priority for the National Wildlife Refuge System and
Connecting People with Nature is to meet our responsibilities to
provide quality hunting and fishing opportunities for the American
people.
We published a final rule (1018-AU61) on June 11, 2008, that
opens select National Wildlife Refuges to hunting and sport
fishing. The National Wildlife System Administration Act of
1966 closes all national wildlife refuges in all states,
except Alaska, unless opened. This final rule added one
refuge to the list of refuges open for sport fishing and
amends certain other regulations pertaining to hunting and
sport fishing for the 2008-2009 season.
We published a proposed rule (1018-AV20) on June 11, 2008,
that proposed to add one refuge to the list of refuges open
to hunting and/or sport fishing and that would increase
activities available on six other refuges for the 2008-2009
season. The comment period for this rule closed on July 11,
2008. The final rule published on August 29, 2008.
Our regulatory priorities for Migratory Birds are to provide assurances
and/or permits for entities covered under ESA Section 7 or Section 10
permits prior to the delisting of the bald eagle and to finalize
regulations proposed in 2007 to establish two new permits under the
Eagle Act.
On May 20, 2008, we published a final rule to extend Eagle Act
authorizations to holders of existing ESA authorizations.
1) We provide take authorization to ESA section 10(a)(1)(B) permittees
where the bald eagle is covered in a Habitat Conservation
Plan (HCP) or the golden eagle is covered as a non-listed
species.
2) We established a new permit category to provide expedited Eagle Act
permits to entities authorized to take bald eagles through
section 7 incidental take statements.
On August 14, 2008, we published a Draft Environmental
Assessment on issuance of permits under the Act. We also
reopened the comment period on the rule proposed in 2007.
1) We plan to issue regulations for permits take of eagles and nests
where necessary for the safety of humans or the eagles, and
to allow disturbance of eagles where the disturbance is
associated with otherwise-lawful activities.
2) These regulations will establish a priority for Native American take
of eagles for religious purposes.
3) We plan to complete and implement these regulations in fall 2008.
Our regulatory priorities for Threatened and Endangered Species are as
follows.
Facilitate implementation of conservation provisions for the
polar bear by harmonizing Endangered Species Act and Marine
Mammal

[[Page 71212]]

Protection Act provisions. We published a proposed section
4(d) rule (1018-AV79) on May 15, 2008 and the comment
period closed on July 14, 2008. We are in the process of
gathering and analyzing all comments received. We expect to
publish a final rule by the end of this year.
Take the following actions to list the polar bear:
1) We published a final rule (1018-AV19) listing the polar bear as a
threatened species on May 15, 2008. The rule affords the
polar bear the protections of the provisions of the
Endangered Species Act.
2) We also published a special rule (1018-AV79) under the authority of
section 4(d) of the Endangered Species Act of 1973, as
amended, to provide customized measures that are necessary
and advisable for the conservation of the polar bear.
Improve Interagency Consultation Regulations. Targeted
revisions to Section 7 interagency consultation regulations
were proposed on August 15 (1018-AT50) to increase
efficiencies and enable Fish and Wildlife Service
biologists to devote more time to assessing the status of
potential species at risk.
National Park Service
The National Park Service is dedicated to conserving the natural and
cultural resources and values of the National Park System for the
enjoyment, education, and inspiration of this and future generations.
The Service is also responsible for managing a great variety of
national and international programs designed to help extend the
benefits of natural and cultural resources conservation and outdoor
recreation throughout this country and the world.
There are 391 units in the National Park System, including national
parks and monuments; scenic parkways, preserves, trails, riverways,
seashores, lakeshores, and recreation areas; and historic sites
associated with important movements, events, and personalities of the
American past.
The National Park Service develops and implements park management plans
and staffs the areas under its administration. It relates the natural
values and historical significance of these areas to the public through
talks, tours, films, exhibits, and other interpretive media. It
operates campgrounds and other visitor facilities and provides, usually
through concessions, lodging, food, and transportation services in many
areas. The National Park Service also administers the following
programs:
The State portion of the Land and Water Conservation Fund
Nationwide Outdoor Recreation coordination and information and
State comprehensive outdoor recreation planning
Planning and technical assistance for the National Wild and
Scenic Rivers System and the National Trails System
Natural area programs
Preserve America grant program
National Register of Historic Places
National historic landmarks
Historic preservation
Technical preservation services
Historic American Buildings survey
Historic American Engineering Record
Interagency archeological services
The National Park Service maintains regulations that help manage public
use, access, and recreation in units of the National Park System. The
Service provides visitor and resource protection to ensure public
safety and prevent derogation of resources. The regulatory program
develops and reviews regulations, maintaining consistency with State
and local laws, to allow these uses only if they are compatible with
the purpose for which each area was established. The regulatory
priorities to be accomplished through the balance of this
Administration include:
Providing consistency between NPS and state parks or other
analogous lands with regarded to allowing the carrying of
concealed firearms (RIN1024-AD70)(public comment period
closed 8/8/08);
Assuring consistency between regulations and management
actions associated with the presidential inaugural every
four years (RIN 1024-AD71) (proposed rule published 8/8/08;
comment period closes 9/22/08);
Implementing the Colorado River Management Plan through
conforming regulations (RIN 1024-AD50); and
Addressing the challenges of managing off-leash dogs and
protecting endangered species habitat at Golden Gate
National Recreation Area (RIN 1024-AD71).
Bureau of Reclamation
The Bureau of Reclamation's mission is to manage, develop, and protect
water and related resources in an environmentally and economically
sound manner in the interest of the American public. To accomplish this
mission, Reclamation applies management, engineering, and scientific
skills that result in effective and environmentally sensitive
solutions.
Reclamation projects provide for some or all of the following
concurrent purposes: Irrigation water service, municipal and industrial
water supply, hydroelectric power generation, water quality
improvement, groundwater management, fish and wildlife enhancement,
outdoor recreation, flood control, navigation, river regulation and
control, system optimization, and related uses. Reclamation has
increased security at its facilities and is implementing its law
enforcement authorization received in November 2001.
Reclamation's regulatory program focus in fiscal year 2008 is to ensure
that its mission and newly adopted laws that require regulatory actions
are carried out expeditiously, efficiently, and with an emphasis on
cooperative problem solving by:
Implementing a Collaborative Agreement on Water Management.
After decades of dispute over the ownership and use of
water and water rights in the Truckee and Carson River
basins, the Secretary successfully negotiated the Truckee
River Operating Agreement (TROA), an agreement for the
major Federal and private reservoirs on the Truckee River
upstream from Reno. This agreement was formally signed on
September 6, 2008. TROA, which satisfies requirements of
the 1990 Truckee-Carson-Pyramid Lake Water Rights
Settlement Act, is intended to increase the operational
flexibility, efficiency, and coordination of reservoirs in
the Lake Tahoe and Truckee River basins to provide multiple
environmental benefits while protecting existing water
rights. Reclamation published a proposed rule on September
15, 2008 and expects to publish a final rule codifying the
TROA in January of 2009 (RIN 1006-AA48).
Efficiently Managing Water and Lands Associated with
Reclamation Projects.
1) In support of the Secretary's role as water master for the Colorado
River, Reclamation has negotiated a set of procedures to
identify water that is

[[Page 71213]]

being pumped from the Colorado River without a valid
entitlement. It also establishes a set of procedures to
deal with those who are taking water unlawfully. Developed
in concert with the Colorado River Basin States and with
water users, these procedures are consistent with state
procedures for other river systems. Reclamation published a
proposed rule on July 16, 2008 and expects to publish a
final rule in 2008 (RIN 1006-AA50).
2) Reclamation has published a proposed revised rule addressing public
uses of lands, facilities, and water bodies associated with
Reclamation projects. The rule establishes procedures for
obtaining authorization for uses other than individual,
non-commercial use for occasional activities such as
hiking, picnicking, swimming, or boating, to ensure that
water management goals as authorized by Congress can
continue to be effectively accomplished. Reclamation
published a proposed rule on July 18, 2008 and expects to
publish a final rule in 2008 (RIN 1006-AA51).
3) Reclamation is finalizing a rule to clarify how and where seaplanes
can land on Reclamation reservoirs. This rule will balance
the need to ensure the safety and security of vital dams
and reservoirs with the need for seaplane access to
reservoirs. Reclamation expects to publish a final rule in
2008 (RIN 1006-AA55).
Implementing New Statutorily Authorized Programs.
1) Public Law 109-451 (Title I) authorized the establishment of a rural
water supply program to enable the Bureau of Reclamation to
coordinate with rural communities throughout the Western
United States to identify their potable water supply needs
and evaluate options for meeting that need. Pursuant to the
Act, Reclamation is finalizing a rule to establish
programmatic criteria to define how it will identify and
work with eligible rural communities. Reclamation expects
to publish a final rule in 2008 (RIN 1006-AA554).
2) Public Law 109-451 (Title II) authorizes the Secretary, through the
Bureau of Reclamation, to issue loan guarantees to assist
in financing (a) rural water supply projects, (b)
extraordinary maintenance and rehabilitation of Bureau of
Reclamation project facilities, and (c) improvements to
infrastructure directly related to a Reclamation project.
This new program will provide an additional funding option
to help western communities and water managers to cost
effectively meet their water supply and maintenance needs.
Pursuant to the Act, Reclamation is working with the Office
of Management and Budget to publish a Rule that will
establish programmatic criteria and define how the loan
guarantee program will be administered. Reclamation
published a proposed rule on October 6, 2008 and expects to
publish a final rule in 2008.
Office of the Secretary, Natural Resource Damage Assessment and
Restoration Program
The regulatory functions of the Natural Resource Damage Assessment and
Restoration Program (Restoration Program) stem from requirements under
section 301(c)) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (CERCLA). Section
301(c)) requires the development of natural resource damage assessment
rules and the biennial review and revisions, as appropriate, of these
rules. Rules have been promulgated for the optional use by natural
resource trustees to assess appropriate restoration for injury to
natural resources caused by hazardous substances. The Restoration
Program established the Natural Resources Damage Assessment and
Restoration Program Advisory Committee that has provided advice and
recommendations on DOI's authorities and responsibilities, including
its responsibility to promulgate regulations in the implementation of
the National Resource Damage provisions of CERCLA. The proposed change
to the NRDAR regulations is a targeted regulatory revision to clarify
the appropriateness of a restoration-based approach for all natural
resource damages. The revised language responds simultaneously to one
of the Advisory Committee's recommendations and to a Court remand [see
Kennecott v. DOI, 88 F. 3rd 1191 (D.C. Cir. 1996)]. These regulatory
changes will provide flexibility to use simpler, more cost effective,
and more transparent methods to relate natural resource damage claims
to restoration, rather than monetary damages, and promote an early
focus on restoration actions.
Costs and Benefits of Department of the Interior Regulations
As required by Executive Order 12866, the Department attempts to
estimate the costs and benefits associated with each of our significant
regulations. Where costs can be calculated, our figures can at best
represent only an order of magnitude estimate. This is because each
estimate can vary based upon the assumptions made about baselines,
different time periods, different discount rates, and other variables
that can result in widely varying cost estimates.
In attempting to estimate benefits, the same variability exists due to
potentially different baselines, different time periods, different
discount rates, different underlying behavioral assumptions, and
different treatment of risk and uncertainty that may not result in a
meaningful estimate of net benefits. Furthermore, the treatment of
environmental goods and services, which are not typically bought and
sold in markets, presents additional problems. The Office of Management
and Budget recognizes these difficulties in Circular A-4, which states
that benefits may in many cases be unquantifiable. This is the case
with most of the Department's regulations.
For the foregoing reasons, it is impossible for the Department to
quantify in any meaningful way the aggregate costs of its regulatory
program, even though we have attempted to quantify costs where possible
in individual cases. Aggregate figures for the benefits of the
Department's regulatory program are not possible to calculate, since we
have been able to quantify the approximate benefits in only a very
small percentage of cases.
_______________________________________________________________________

DOI--Office of Surface Mining Reclamation and Enforcement (OSMRE)

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FINAL RULE STAGE

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79. PLACEMENT OF EXCESS SPOIL

Priority:

Other Significant

Legal Authority:

30 USC 1201 et seq

CFR Citation:

30 CFR 780; 30 CFR 784; 30 CFR 816; 30 CFR 817

Legal Deadline:

None

Abstract:

This rule will establish permit application requirements and review

[[Page 71214]]

procedures for applications that propose to place excess spoil or coal
mine waste from surface coal mining operations into waters of the
United States. Among other things, it will require that mine operators
minimize the creation of excess spoil and the adverse environmental
impacts resulting from the construction of excess spoil fills. In
addition, it will clearly specify the activities to which that
requirement does and does not apply, and revise the findings required
for a variance from the buffer requirement to more closely track the
underlying statutory provisions.

Statement of Need:

This rule will provide long-term regulatory stability by clearly
specifying the activities to which the buffer requirement does and does
not apply and describing the relationship between our rules and the
Clean Water Act. It also will promote environmental protection by
requiring that mining operations be designed to minimize both the
creation of excess spoil and adverse environmental impacts resulting
from the disposal of excess spoil and coal mine waste.

Summary of Legal Basis:

General rulemaking authority: Section 201(c)(2) of the Surface Mining
Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1211(c)(2),
directs the Secretary of the Interior (the Secretary), acting through
OSM, to publish and promulgate such rules and regulations as may be
necessary to carry out the purposes and provisions of SMCRA.

Legal basis under SMCRA: Sections 515(b)(10)(B)(i) and 516(b)(9)(B) of
SMCRA, 30 U.S.C. 1265(b)(10)(B)(i) and 1266(b)(9)(B), require that
surface coal mining operations be conducted so as to prevent the
contribution of additional suspended solids to streamflow or runoff
outside the permit area to the extent possible using the best
technology currently available. Sections 515(b)(24) and 516(b)(11) of
SMCRA, 30 U.S.C. 1265(b)(24) and 1266(b)(11), require that surface coal
mining and reclamation operations be conducted to minimize disturbances
to and adverse impacts on fish, wildlife, and related environmental
values ``to the extent possible using the best technology currently
available.'' These statutory provisions form the basis for the new
rules concerning excess spoil, coal mine waste, and buffer zones for
waters of the United States.

Alternatives:

Alternatives considered in the Environmental Impact Statement include:

A. Alternative 1 -- Changing the Excess Spoil and Stream Buffer Zone
Regulations (OSM's Preferred Alternative and Most Environmentally
Protective Alternative):

OSM would revise the regulations applicable to excess spoil generation
and placement to further lessen the adverse environmental effects
stemming from excess spoil fill construction. OSM would require the
applicant for a surface coal mining permit to demonstrate that (1) the
operation has been designed to minimize the creation of excess spoil
and (2) excess spoil fills have been designed to be no larger than
needed to accommodate the anticipated volume of excess spoil that the
operation will generate. Finally, OSM would require the applicant to
consider various alternative spoil disposal plans in which the size,
numbers, and locations of the excess spoil fills vary, and to submit an
analysis showing that the preferred excess spoil disposal plan would
result in the least adverse environmental impact.

Similarly, OSM would revise its coal mine waste disposal regulations to
require permit applicants to describe the steps to be taken to minimize
adverse environmental impacts and identify and analyze the
environmental impacts associated with alternative disposal methods and
potential locations.

OSM would revise the stream buffer zone regulation to clarify which
kinds of coal mining activities are subject to the rule. Surface mining
and reclamation activities occurring adjacent to, but not in, waters of
the United States would be subject to the rule. Stream crossings,
sedimentation ponds, excess spoil fills, mining through waters of the
United States, and coal mine waste disposal facilities would not be
subject to the prohibition on disturbance of the buffer zone.

OSM would also revise the criteria for authorizing variances from the
100-foot buffer zone to more accurately reflect the statutory basis for
the rule. The stream buffer zone is principally based on two SMCRA
provisions: Sections 515(b)(10)(B)(i) and 515(b)(24). The first
provision requires, among other things, that surface coal mining
operations be conducted so as to prevent, to the extent possible using
the best technology currently available, additional contributions of
suspended solids to streamflow or runoff outside the permit area. The
second provision, Section 515(b)(24), requires that to the extent
possible using the best technology currently available, surface coal
mining and reclamation operations must minimize disturbances and
adverse impacts of the operation on fish, wildlife, and related
environmental values, and achieve enhancement of such resources where
practicable. Variances to use of a 100-foot buffer as BTCA could be
authorized if equally or more effective alternative means to achieve
the performance standards of sections 515(b)(10)(B)(i) and (24) would
be used.

Finally, OSM would also extend the requirement of a 100-foot buffer
zone to other water bodies in addition to streams, so as to apply the
rule to lakes, ponds, and adjacent wetlands (to the extent those water
bodies constitute ``waters of the United States'' under the Clean Water
Act).

As a variant of this alternative, OSM is also considering largely
retaining the existing buffer zone rule language at 30 CFR 816.57(a)
and 817.57(a), but modifying the criteria for allowing a variance from
the 100-foot buffer requirement: The first modification would retain
the current criterion that requires that the regulatory authority find
that the ``mining activities will not cause or contribute to the
violation of applicable State or Federal water quality standards, and
will not adversely affect the water quantity and quality or other
environmental resources of the stream.'' This variant would explicitly
note that the appropriate Federal and State Clean Water Act agencies in
accordance with sections 401, 402, or 404 would make this
determination. The second modification would replace the phrase
``adversely affect'' with ``significantly degrade.''

B. Alternative 2 -- January 7, 2004 Proposed Rule

OSM would change the excess spoil regulations essentially as described
in Alternative 1 but would change the stream buffer zone regulations at
30 CFR 816.56 and 817.57 as described in the January 7, 2004 Federal
Register notice of the previous proposed stream buffer zone rule [69 FR
1036].

OSM would retain the prohibition on disturbance of land within 100 feet
of a perennial or intermittent stream for surface coal mining
operations but allow the regulatory authority to grant a variance to
this requirement if the regulatory authority finds in writing

[[Page 71215]]

that the activities would, to the extent possible, use the best
technology currently available:

(1) Prevent additional contributions of suspended solids to the section
of stream within 100 feet downstream of the mining activities, and
outside the area affected by mining activities; and

(2) Minimize disturbances and adverse impacts on fish, wildlife, and
other related environmental values of the stream.

C. Alternative 3 -- Change Only the Excess Spoil Regulations

OSM would change the excess spoil regulations as described in
Alternative 1. No changes would be made to the stream buffer zone
regulations.

D. Alternative 4 -- Change Only the Stream Buffer Zone Regulations

OSM would change the stream buffer zone regulations as described in
Alternative 1. No changes would be made to the excess spoil
regulations.

E. Alternative 5 -- No Action Alternative:

OSM would not adopt any new rules. The current regulations applicable
to excess spoil generation and fill construction and the stream buffer
zone would remain unchanged.

Anticipated Cost and Benefits:

It is anticipated that some of the regulatory changes will result in an
increase in the costs and burdens placed on coal operators and on some
primacy States. We estimate that the total annual increase for
operators would be approximately $240,500, and for the primacy States
the total annual increase is estimated at approximately $24,200. These
increases are a result of the requirement to document the analyses and
findings required by the regulatory changes. This estimated increase in
costs would likely only affect those coal operators and States
(Kentucky, Virginia, and West Virginia) located in the steep slope
terrain of the central Appalachian coalfields, where the bulk of excess
spoil is generated. Because all of the regulatory agencies in the
Appalachian coalfields have implemented policies to minimize the volume
of excess spoil, no significant additional costs of implementing these
regulatory changes are anticipated other than those required to
document the strengthened requirements to consider all alternative
excess spoil construction and disposal sites.

One of the primary benefits of the rule is an expected reduction in the
placement of excess spoil with resulting positive environmental
consequences. The rule is also expected to clarify mining requirements
for steep slope and mountaintop mining operations in Appalachia and
thereby establish regulatory certainty for the coal industry, which has
been hesitant to expend large sums of money on this type of mining
operations because of legal uncertainty.

Risks:

If the proposed rule is not adopted, the controversy and uncertainty
concerning the meaning of the existing stream buffer zone rule may
continue to exist. That uncertainty creates the risk of additional
litigation concerning the existing rule, which could result in
regulatory instability and a reluctance on the part of coal mining
companies to invest in new mining projects. There is also the risk that
not all of the environmental benefits of the excess spoil minimization
rules would be achieved. Finally, failure to adopt this rule would
result in the retention of legally and technically obsolete provisions
of the existing rules.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 01/07/04 69 FR 1036
NPRM Comment Period End 03/08/04
Second NPRM 08/24/07 72 FR 48890
Other/Second NPRM Comment
Period End 11/23/07
Final Action 11/00/08

Regulatory Flexibility Analysis Required:

Government Levels Affected:

Federal, State

Agency Contact:
Dennis Rice
Regulatory Analyst
Department of the Interior
Office of Surface Mining Reclamation and Enforcement
1951 Constitution Avenue NW.
Washington, DC 20240
Phone: 202 208-2829
Email: [email protected]
RIN: 1029-AC04
_______________________________________________________________________

DOI--Bureau of Land Management (BLM)

-----------

FINAL RULE STAGE

-----------

80. OIL SHALE LEASING AND OPERATIONS

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

Sec. 369(d) of the Energy Policy Act of 2005

CFR Citation:

43 CFR 3900

Legal Deadline:

None

Abstract:

The Energy Policy Act of 2005 envisions a 3-step approach to the
development of oil shale resources. The first step is the creation of a
limited Research, Development, and Demonstration (RDD) Leasing Program
designed to evaluate and test promising oil shale technology. Step two
in the process is the completion of a Programmatic Environmental Impact
Statement for leasing of Oil Shale and Tar Sands on public lands, with
an emphasis on the most geologically prospective lands within the
States of Colorado, Utah, and Wyoming. The third step in the process is
the creation of rules regulating the leasing and development of the oil
shale. This rule would create the regulations necessary to develop
converted RDD leases and make commercial exploration, leasing, and
development possible.

Statement of Need:

Currently there are no regulations in place that allow leasing and
development of oil shale resources. The rule would establish the
regulatory framework allowing commercial leasing and development of oil
shale.

Summary of Legal Basis:

Sec. 369(d) of the Energy Policy Act of 2005 requires that the
Secretary of the Interior publish final regulations establishing a
commercial leasing program for Oil Shale and Tar Sands.

Alternatives:

There is no alternative to creation of the regulations. Creation of the
regulations is mandated by sec. 369(d) of the Energy Policy Act of
2005.

[[Page 71216]]

Anticipated Cost and Benefits:

BLM anticipates the following benefit: Increased Federal revenue and
domestic fuel production, decreased dependency on energy imports, and
the expansion of local economies through employment and taxes.

The major categories of costs include: BLM administrative costs,
including enforcement and monitoring, and compliance costs for lessees.

Risks:

Development of the oil shale resources will place additional demands on
the lands and localities containing the oil shale resources. These
demands will result in increased resource conflicts (i.e., oil and gas,
nahcolite, and wildlife) and pressure on local governments/
infrastructure (i.e., law enforcement, schools, hospitals and roads).

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
ANPRM 08/25/06 71 FR 50378
ANPRM Comment Period End 09/25/06
Comment Period Extended 09/26/06 71 FR 56085
ANPRM Comment Period End 10/25/06
NPRM 07/23/08 73 FR 42926
NPRM Comment Period End 09/22/08
Final Action 11/00/08

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

Agency Contact:
Mitchell Leverette
Deputy Division Chief, Solid Minerals
Department of the Interior
Bureau of Land Management
1849 C Street NW.
Washington, DC 20240
Phone: 202 452-5088
Fax: 202 653-7397
Email: [email protected]
RIN: 1004-AD90
BILLING CODE 4310-10-S

[[Page 71217]]

DEPARTMENT OF JUSTICE (DOJ)

Statement of Regulatory Priorities
The first and overriding priority of the Department of Justice is to
prevent, detect, disrupt, and dismantle terrorism while preserving
constitutional liberties. To fulfill this mission, the Department is
devoting all the resources necessary and utilizing all legal
authorities to eliminate terrorist networks, to prevent terrorist
attacks, and to bring to justice those who kill Americans in the name
of murderous ideologies. It is engaged in an aggressive arrest and
detention campaign of lawbreakers with a single objective: To get
terrorists off the street before they can harm more Americans. In
addition to using investigative, prosecutorial, and other law
enforcement activities, the Department is also using the regulatory
process to enhance its ability to prevent future terrorist acts and
safeguard our borders while ensuring that America remains a place of
welcome to foreigners who come here to visit, work, or live peacefully.
The Department also has important and wide-ranging responsibilities for
criminal investigations, law enforcement, and prosecutions and, in
certain specific areas, makes use of the regulatory process to better
carry out the Department's law enforcement missions.
The Department of Justice's regulatory priorities focus in particular
on a major regulatory initiative in the area of civil rights.
Specifically, the Department is planning to revise its regulations
implementing titles II and III of the Americans With Disabilities Act
(ADA). However, in addition to this specific initiative, several other
components of the Department carry out important responsibilities
through the regulatory process. Although their regulatory efforts are
not singled out for specific attention in this regulatory plan, those
components carry out key roles in implementing the Department's anti-
terrorism and law enforcement priorities.
Civil Rights
The Department has published proposed rules to revise its regulations
implementing titles II and III of the ADA to amend the ADA Standards
for Accessible Design (28 CFR part 36, appendix A) to be consistent
with the revised ADA accessibility guidelines published by the U.S.
Architectural and Transportation Barriers Compliance Board (Access
Board) in final form on July 23, 2004. (The Access Board had issued the
guidelines in proposed form in November 1999 and in final draft form in
April 2002.) Title II of the ADA prohibits discrimination on the basis
of disability by public entities, and title III prohibits such
discrimination by places of public accommodation and requires
accessible design and construction of places of public accommodation
and commercial facilities. In implementing these provisions, the
Department of Justice is required by statute to publish regulations
that include design standards that are consistent with the guidelines
developed by the Access Board. The Access Board was engaged in a
multiyear effort to revise and amend its accessibility guidelines. The
goals of this project were: 1) To address issues such as unique State
and local facilities (e.g., prisons, courthouses), recreation
facilities, play areas, and building elements specifically designed for
children's use that were not addressed in the initial guidelines; 2) to
promote greater consistency between the Federal accessibility
requirements and the model codes; and 3) to provide greater consistency
between the ADA guidelines and the guidelines that implement the
Architectural Barriers Act. The Access Board issued guidelines that
address all of these issues. Therefore, to comply with the ADA
requirement that the ADA standards remain consistent with the Access
Board's guidelines, the Department proposed to adopt revised ADA
Standards for Accessible Design that are consistent with the revised
ADA Accessibility Guidelines.
The Department's proposed rules also revise its regulations
implementing title II and title III (28 CFR parts 35 and 36) to ensure
that the requirements applicable to new construction and alterations
under title II are consistent with those applicable under title III, to
update the regulations to reflect the current state of law, and to
ensure the Department's compliance with section 610 of the Small
Business Regulatory Enforcement Fairness Act (SBREFA).
The Department's proposed rules were the second step in a three-step
process to adopt and interpret the Access Board's revised and amended
guidelines in three steps. The first step of the rulemaking process was
an advance notice of proposed rulemaking, published in the Federal
Register on September 30, 2004, at 69 FR 58768, which the Department
believes simplified and clarified the preparation of the proposed rule.
In addition to giving notice of the proposed rule that will adopt
revised ADA accessibility standards, the advance notice raised two sets
of questions for public comment, and proposed a framework for the
regulatory analysis that will accompany the proposed rule. One set of
questions addresses interpretive matters related to adopting revised
ADA accessibility standards, such as what should be the effective date
of the revised standards and how best to apply the revised standards to
existing facilities that have already complied with the current ADA
standards. Another set of questions was directed to collecting data
about the benefits and costs of applying the new standards to existing
facilities. The second step of the rulemaking process was a proposed
rule proposing to adopt revised ADA accessibility standards consistent
with the Access Board's revised and amended guidelines that will, in
addition to revising the current ADA Standards for Accessible Design,
supplement the standards with specifications for prisons, jails, court
houses, legislative facilities, building elements designed for use by
children, play areas, and recreation facilities. The proposed rule also
offered proposed answers to the interpretive questions raised in the
advance notice and presented an initial regulatory assessment; it will
be followed by a final rule, the third step of the process.
The Department's revised and supplemented regulations under the ADA
will affect small businesses, small governmental jurisdictions, and
other small organizations (together, small entities). The Access Board
has prepared regulatory assessments (including cost impact analyses) to
accompany its new guidelines, which estimate the annual compliance
costs that will be incurred by covered entities with regard to
construction of new facilities. These assessments include the effect on
small entities and will apply to new construction under the
Department's revised and supplemented regulations. With respect to
existing facilities, the Department has prepared an additional
regulatory assessment of the estimated annual cost of compliance. In
this process, the Department has given careful consideration to the
cost effects on small entities, including the solicitation of comments
specifically designed to obtain compliance data relating to small
entities.
Other Department Initiatives
1. DNA Sample Collection
The Department will publish a final rule to implement legislative
amendments that authorize the Attorney General to expand the categories
of

[[Page 71218]]

persons from whom DNA samples are collected in the Federal system
beyond convicts, to also include arrestees and non-U.S. persons
detained under Federal authority. The effect will be to equate DNA
sample collection by Federal agencies to fingerprinting as a routine
justice system identification measure, thereby maximizing the
capability of the DNA identification technology to solve rapes,
murders, and other serious crimes.
2. Protecting Children From Exploitation in Pornography
The Department will publish a combined rule finalizing 1) a proposed
rule published on July 12, 2007 (72 FR 38033) to implement the changes
made by the Adam Walsh Act to 18 U.S.C. Sec. 2257, most importantly,
including graphic nude photos not involving sexual intercourse in the
scope of the requirements; and 2) a proposed rule implementing the
recordkeeping and inspection requirements to title 28 of the Code of
Federal Regulations to implement 18 U.S.C. Sec. 2257A, enacted as
section 503 of the Adam Walsh Child Protection and Safety Act of 2006,
which requires a producer of depictions of simulated sexually explicit
conduct to maintain records of the identities and ages of performers in
those depictions. This rule will implement changes to the statute that
will strengthen the record-keeping regime to protect children from
exploitation in pornography.
3. Criminal Law Enforcement
In large part, the Department's criminal law enforcement components do
not rely on the rulemaking process to carry out their assigned
missions. The Federal Bureau of Investigation (FBI), for example, is
responsible for protecting and defending the United States against
terrorist and foreign intelligence threats, upholding and enforcing the
criminal laws of the United States, and providing leadership and
criminal justice services to Federal, State, municipal, and
international agencies and partners. Only in very limited contexts does
the FBI rely on rulemaking. For example, the FBI is currently updating
its National Instant Criminal Background Check System regulations to
allow criminal justice agencies to conduct background checks prior to
the return of firearms.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) issues
regulations to enforce the Federal laws relating to the manufacture and
commerce of firearms and explosives. ATF's mission and regulations are
designed to:
Curb illegal traffic in, and criminal use of, firearms, and to
assist State, local, and other Federal law enforcement
agencies in reducing crime and violence;
Facilitate investigations of violations of Federal explosives
laws and arson-for-profit schemes;
Regulate the firearms and explosives industries, including
systems for licenses and permits;
Assure the collection of all National Firearms Act (NFA)
firearms taxes and obtain a high level of voluntary
compliance with all laws governing the firearms industry;
and
Assist the States in their efforts to eliminate interstate
trafficking in, and the sale and distribution of,
cigarettes and alcohol in avoidance of Federal and State
taxes.
ATF will continue, as a priority during fiscal year 2009, to seek
modifications to its regulations governing commerce in firearms and
explosives. ATF plans to issue final regulations implementing the
provisions of the Safe Explosives Act, title XI, subtitle C, of Public
Law 107-296, the Homeland Security Act of 2002 (enacted November 25,
2002).
Combating the proliferation of methamphetamine and preventing the
diversion of prescription drugs for illicit purposes are among the
Attorney General's top drug enforcement priorities. The Drug
Enforcement Administration (DEA) is responsible for enforcing the
Controlled Substances Act and its implementing regulations to prevent
the diversion of controlled substances, while ensuring adequate
supplies for legitimate medical, scientific, and industrial purposes.
DEA accomplishes its objectives through coordination with State, local,
and other Federal officials in drug enforcement activities, development
and maintenance of drug intelligence systems, regulation of legitimate
controlled substances, and enforcement coordination and intelligence-
gathering activities with foreign government agencies. DEA continues to
develop and enhance regulatory controls relating to the diversion
control requirements for controlled substances.
One of DEA's key regulatory initiatives is its Notice of Proposed
Rulemaking ``Electronic Prescriptions for Controlled Substances'' [RIN
1117-AA61]. This regulation would provide practitioners with the option
of writing prescriptions for controlled substances electronically and
permit pharmacies to receive, dispense, and archive electronic
prescriptions for controlled substances. This regulation would provide
pharmacies, hospitals, and practitioners with the ability to use modern
technology for controlled substance prescriptions while maintaining the
closed system of controls on controlled substances.
In the past, drug traffickers have been able to easily obtain large
quantities of the List I chemicals ephedrine, pseudoephedrine, and
phenylpropanolamine, and others used in the clandestine production of
methamphetamine from both foreign and domestic sources. One of DEA's
key regulatory initiatives has been implementation of the Combat
Methamphetamine Epidemic Act of 2005 (CMEA), which further regulates
the importation, manufacture, and retail sale of ephedrine,
pseudoephedrine, and phenylpropanolamine and drug products containing
these three chemicals. CMEA imposes sales and purchase limits for over-
the-counter ephedrine, pseudoephedrine, and phenylpropanolamine
products at the retail level; provides for the establishment of
aggregate and individual company import and manufacturing quotas; and
limits importation to that which is necessary to provide for medical,
scientific, and other legitimate purposes. CMEA also provides
investigators with necessary identifying information regarding
manufacturers and importers of these chemicals. Regulations pertaining
to implementation of CMEA include, but are not limited to:
``Retail Sales of Scheduled Listed Chemical Products; Self-
Certification of Regulated Sellers of Scheduled Listed
Chemical Products'' [RIN 1117-AB05]
``Implementation of the Combat Methamphetamine Epidemic Act of
2005; Notice of Transfers Following Importation or
Exportation'' [RIN 1117-AB06]
``Import and Production Quotas for Certain List I Chemicals''
[RIN 1117-AB08]
``Elimination of Exemptions for Chemical Mixtures Containing
the List I Chemicals Ephedrine and/or Pseudoephedrine''
[RIN 1117-AB11]
``Registration Requirements for Importers and Manufacturers of
Prescription Drug Products Containing Ephedrine,
Pseudoephedrine, or Phenylpropanolamine'' [RIN 1117-AB09]

[[Page 71219]]

``Removal of Thresholds for the List I Chemicals
Pseudoephedrine and Phenylpropanolamine'' [RIN 1117-AB10]
The Federal Bureau of Prisons issues regulations to enforce the
Federal laws relating to its mission: To protect society by confining
offenders in the controlled environments of prisons and community-based
facilities that are safe, humane, cost-efficient, and appropriately
secure, and that provide work and other self-improvement opportunities
to assist offenders in becoming law-abiding citizens. During the next
12 months, in addition to other regulatory objectives aimed at
accomplishing its mission, the Bureau will continue its ongoing efforts
to: improve drug abuse treatment services and early release
consideration; improve disciplinary procedures; and reduce the
introduction of contraband through various means (such as clarifying
drug and alcohol surveillance testing programs). In addition, the
Bureau will finalize regulations relating to the civil commitment of
sexually dangerous persons.
4. Immigration Matters
On March 1, 2003, pursuant to the Homeland Security Act of 2002 (HSA),
the responsibility for immigration enforcement and for providing
immigration-related services and benefits such as naturalization and
work authorization was transferred from the Justice Department's
Immigration and Naturalization Service (INS) to the Department of
Homeland Security (DHS). However, the immigration judges and the Board
of Immigration Appeals in the Executive Office for Immigration Review
(EOIR)) remain part of the Department of Justice; the immigration
judges adjudicate approximately 300,000 cases each year to determine
whether the aliens should be ordered removed or should be granted some
form of relief from removal, and the Board has jurisdiction over
appeals from those decisions, as well as other matters. Accordingly,
the Attorney General has a continuing role in the conduct of removal
hearings, the granting of relief from removal, and the detention or
release of aliens pending completion of removal proceedings. The
Attorney General also is responsible for civil litigation and criminal
prosecutions relating to the immigration laws.
In several pending rulemaking actions, the Department is working to
revise and update the regulations relating to removal proceedings in
order to improve the efficiency and effectiveness of the hearings in
resolving issues relating to removal of aliens and the granting of
relief from removal.
On August 9, 2006, the Attorney General announced a series of
initiatives to improve the quality of adjudications before immigration
judges, in response to the review of the Immigration Courts and the
Board of Immigration Appeals which he ordered. Several regulations
proposed in FY 2008, once finalized, will implement different aspects
of the Attorney General's initiatives. In addition, other regulations
are currently being drafted to further those initiatives, such as
expanding the role of pro bono organizations to provide free or low
cost legal services to aliens in immigration proceedings, and enhancing
the ability of the Executive Office for Immigration Review to impose
discipline for misconduct on practitioners in those proceedings.
_______________________________________________________________________

DOJ--Civil Rights Division (CRT)

-----------

FINAL RULE STAGE

-----------

81. NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PUBLIC
ACCOMMODATIONS AND COMMERCIAL FACILITIES (SECTION 610 REVIEW)

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

5 USC 301; 28 USC 509; 28 USC 510; 42 USC 12186(b)

CFR Citation:

28 CFR 36

Legal Deadline:

None

Abstract:

In 1991, the Department of Justice published regulations to implement
title III of the Americans With Disabilities Act of 1990 (ADA). Those
regulations include the ADA Standards for Accessible Design, which
establish requirements for the design and construction of accessible
facilities that are consistent with the ADA Accessibility Guidelines
(ADAAG) published by the U.S. Architectural and Transportation Barriers
Compliance Board (Access Board). In the time since the regulations
became effective, the Department of Justice and the Access Board have
each gathered a great deal of information regarding the implementation
of the Standards. The Access Board began the process of revising ADAAG
a number of years ago. It published new ADAAG in final form on July 23,
2004, after having published guidelines in proposed form in November
1999 and in draft final form in April 2002. In order to maintain
consistency between ADAAG and the ADA Standards, the Department is
reviewing its title III regulations and expects to propose, in one or
more stages, to adopt revised ADA Standards consistent with the final
revised ADAAG and to make related revisions to the Department's title
III regulations. In addition to maintaining consistency between ADAAG
and the Standards, the purpose of this review and these revisions is to
more closely coordinate with voluntary standards; to clarify areas
which, through inquiries and comments to the Department's technical
assistance phone lines, have been shown to cause confusion; to reflect
evolving technologies in areas affected by the Standards; and to comply
with section 610 of the Regulatory Flexibility Act, which requires
agencies once every 10 years to review rules that have a significant
economic impact upon a substantial number of small entities.

The first step in adopting revised Standards was an advance notice of
proposed rulemaking that was published in the Federal Register on
September 30, 2004, at 69 FR 58768, issued under both title II and
title III. The Department believes that the advance notice simplified
and clarified the preparation of the proposed rule. In addition to
giving notice that the proposed rule will adopt revised ADA
accessibility standards, the advance notice raised questions for public
comment and proposed a framework for the regulatory analysis that
accompanied the proposed rule.

The adoption of revised ADAAG will also serve to address changes to the
ADA Standards previously proposed in RIN 1190-AA26, RIN 1190-AA38, RIN
1190-AA47, and RIN 1190-AA50, all of which have now been withdrawn from
the Unified Agenda. These changes include technical specifications for
facilities designed for use by children, accessibility standards for
State and local government facilities, play areas, and recreation
facilities, all of which had previously been published by the Access
Board.

The timetable set forth below refers to the notice of proposed
rulemaking that the Department issued as the second

[[Page 71220]]

step of the above described title III rulemaking. This notice proposed
to adopt revised ADA Standards for Accessible Design consistent with
the minimum guidelines of the revised ADAAG, and initiated the review
of the regulation in accordance with the requirements of section 610 of
the Regulatory Flexibility Act, as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA).

Statement of Need:

Section 504 of the ADA requires the Access Board to issue supplemental
minimum guidelines and requirements for accessible design of buildings
and facilities subject to the ADA, including title III. Section 306(c)
of the ADA requires the Attorney General to promulgate regulations
implementing title III that are consistent with the Access Board's ADA
guidelines. Because this rule will adopt standards that are consistent
with the minimum guidelines issued by the Access Board, this rule is
required by statute. Similarly, the Department's review of its title
III regulation is being undertaken to comply with the requirements of
the Regulatory Flexibility Act, as amended by SBREFA.

Summary of Legal Basis:

The summary of the legal basis of authority for this regulation is set
forth above under Legal Authority and Statement of Need.

Alternatives:

The Department is required by the ADA to issue this regulation.
Pursuant to SBREFA, the Department's title III regulation will consider
whether alternatives to the currently published requirements are
appropriate.

Anticipated Cost and Benefits:

The Access Board has analyzed the effect of applying its proposed
amendments to ADAAG to entities covered by titles II and III of the ADA
and has determined that they constitute a significant regulatory action
for purposes of Executive Order 12866. The Access Board's determination
will apply as well to the revised ADA standards published by the
Department.

As part of its revised ADAAG, the Access Board made available in
summary form an updated regulatory assessment to accompany the final
revised ADAAG. The Department prepared an initial Regulatory Impact
Analysis (RIA), pursuant to E.O. 12866, of the combined economic impact
of changes contained in this proposed rule and in the companion NPRM to
amend the Department's Title II regulation (RIN 1190-AA46). The RIA
incorporates the elements required for the Initial Regulatory
Flexibility Analysis (IRFA) required by the Regulatory Flexibility Act,
as amended. A summary of this RIA was published in the Federal Register
at 73 FR 37009, 37042 (June 30, 2008). The full analysis is available
for public review on www.regulations.gov and on the Department's ADA
Home Page, www.ada.gov. A revised RIA will be made available to the
public when the final rules are published.

The preliminary RIA indicates that the proposed rules will have a net
positive public benefit, i.e., the benefits will exceed the costs over
the life of the rule. This concept is expressed as the discounted net
present value (NPV) The RIA projects that the NPV will be between $7.5
billion (at a 7% discount rate) and $ 31.1 billion (at a 3% discount
rate). The RIA also concludes that the combined effect of the proposed
rules would not have a significant economic impact on a substantial
number of small entities.

Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1503(2), excludes from coverage under that Act any proposed or final
Federal regulation that ``establishes or enforces any statutory rights
that prohibit discrimination on the basis of race, color, religion,
sex, national origin, age, handicap, or disability.'' Accordingly, this
rulemaking is not subject to the provisions of the Unfunded Mandates
Reform Act.

Risks:

Without the proposed changes to the Department's title III regulation,
the ADA Standards will fail to be consistent with the ADAAG.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
ANPRM 09/30/04 69 FR 58768
ANPRM Comment Period End 01/28/05
ANPRM Comment Period
Extended 01/19/05 70 FR 2992
ANPRM Comment Period End 05/31/05
NPRM 06/17/08 73 FR 34508
NPRM Comment Period End 08/18/08
NPRM Correction 06/30/08 73 FR 37009
Final Action 01/00/09

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses, Organizations

Government Levels Affected:

None

Additional Information:

RIN 1190-AA44, which will effect changes to 28 CFR 36 (the Department's
regulation implementing title III of the ADA), is related to another
rulemaking of the Civil Rights Division, RIN 1190-AA46, which will
effect changes to 28 CFR 35 (the Department's regulation implementing
title II of the ADA).

Agency Contact:
John L. Wodatch
Chief, Disability Rights Section
Department of Justice
Civil Rights Division
P.O. Box 66738
Washington, DC 20035
Phone: 800 514-0301
TDD Phone: 800 514-0383
Fax: 202 307-1198
RIN: 1190-AA44
_______________________________________________________________________

DOJ--CRT

82. NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND LOCAL
GOVERNMENT SERVICES (SECTION 610 REVIEW)

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

5 USC 301; 28 USC 509 to 510; 42 USC 12134; PL 101-336

CFR Citation:

28 CFR 35

Legal Deadline:

None

Abstract:

On July 26, 1991, the Department published its final rule implementing
title II of the Americans With Disabilities Act (ADA). On November 16,
1999, the U.S. Architectural and Transportation Barriers Compliance
Board (Access Board) issued its first comprehensive review of the ADA
Accessibility Guidelines (ADAAG), which form the basis of the
Department's ADA Standards for Accessible Design. The Access Board
published an Availability of Draft Final Guidelines on April 2, 2002,
and published the ADA Accessibility Guidelines in final form on July
23, 2004. The ADA (section 204(c))

[[Page 71221]]

requires the Department's standards to be consistent with the Access
Board's guidelines. In order to maintain consistency between ADAAG and
the Standards, the Department is reviewing its title II regulations and
expects to propose, in one or more stages, to adopt revised standards
consistent with new ADAAG. The Department will also, in one or more
stages, review its title II regulations for purposes of section 610 of
the Regulatory Flexibility Act and make related changes to its title II
regulations.

In addition to the statutory requirement for the rule, the social and
economic realities faced by Americans with disabilities dictate the
need for the rule. Individuals with disabilities cannot participate in
the social and economic activities of the Nation without being able to
access the programs and services of State and local governments.
Further, amending the Department's ADA regulations will improve the
format and usability of the ADA Standards for Accessible Design;
harmonize the differences between the ADA Standards and national
consensus standards and model codes; update the ADA Standards to
reflect technological developments that meet the needs of persons with
disabilities; and coordinate future ADA Standards revisions with
national standards and model code organizations. As a result, the
overarching goal of improving access for persons with disabilities so
that they can benefit from the goods, services, and activities provided
to the public by covered entities will be met.

The first part of the rulemaking process was an advance notice of
proposed rulemaking, published in the Federal Register on September 30,
2004, at 69 FR 58768, issued under both title II and title III. The
Department believes the advance notice simplified and clarified the
preparation of the proposed rule to follow. In addition to giving
notice of the proposed rule that will adopt revised ADA accessibility
standards, the advance notice raised questions for public comment and
proposed a framework for the regulatory analysis that accompanied the
proposed rule.

The adoption of revised ADA Standards consistent with revised ADAAG
will also serve to address changes to the ADA Standards previously
proposed under RIN 1190-AA26, RIN 1190-AA38, RIN 1190-AA47, and RIN
1190-AA50, all of which have now been withdrawn from the Unified
Agenda. These changes include technical specifications for facilities
designed for use by children, accessibility standards for State and
local government facilities, play areas, and recreation facilities, all
of which had previously been published by the Access Board.

The timetable set forth below refers to the notice of proposed
rulemaking that the Department issued as the second step of the above-
described title III rulemaking. This notice also proposed to eliminate
the Uniform Federal Accessibility Standards (UFAS) as an alternative to
the ADA Standards for Accessible Design.

Statement of Need:

Section 504 of the ADA requires the Access Board to issue supplemental
minimum guidelines and requirements for accessible design of buildings
and facilities subject to the ADA, including title II. Section 204(c)
of the ADA requires the Attorney General to promulgate regulations
implementing title II that are consistent with the Access Board's ADA
guidelines. Because this rule will adopt standards that are consistent
with the minimum guidelines issued by the Access Board, this rule is
required by statute. Similarly, the Department's review of its title II
regulations is being undertaken to comply with the requirements of the
Regulatory Flexibility Act, as amended by the Small Business Regulatory
Enforcement Fairness Act (SBREFA).

Summary of Legal Basis:

The summary of the legal basis of authority for this regulation is set
forth above under Legal Authority and Statement of Need.

Alternatives:

The Department is required by the ADA to issue this regulation as
described in the Statement of Need above. Pursuant to SBREFA, the
Department's title II regulation will consider whether alternatives to
the currently published requirements are appropriate.

Anticipated Cost and Benefits:

The Administration is deeply committed to ensuring that the goals of
the ADA are met. Promulgating this amendment to the Department's ADA
regulations will ensure that entities subject to the ADA will have one
comprehensive design standard to follow. Currently, entities subject to
title II of the ADA (State and local governments) have a choice between
following the Department's ADA Standards for title III, which were
adopted for places of public accommodation and commercial facilities
and which do not contain standards for common State and local
government buildings (such as courthouses and prisons), or the Uniform
Federal Accessibility Standards (UFAS). By developing one comprehensive
standard, the Department will eliminate the confusion that arises when
governments try to mesh two different standards. As a result, the
overarching goal of improving access to persons with disabilities will
be better served.

As part of its revised ADAAG, the Access Board made available in
summary form an updated regulatory assessment to accompany the final
revised ADAAG. The Department prepared an initial Regulatory Impact
Analysis (RIA), pursuant to E.O. 12866, of the combined economic impact
of changes contained in this proposed rule and in the companion NPRM to
amend the Department's Title III regulation (RIN 1190-AA44). The RIA
incorporates the elements required for the Initial Regulatory
Flexibility Analysis (IRFA) required by the Regulatory Flexibility Act,
as amended. A summary of this RIA was published in the Federal Register
at 73 FR 36964, 36996 (June 30, 2008). The full analysis is available
for public review on www.regulations.gov and on the Department's ADA
Home Page, www.ada.gov. A revised RIA will be made available to the
public when the final rules are published.

The preliminary RIA indicates that the proposed rules will have a net
positive public benefit, i.e., the benefits will exceed the costs over
the life of the rule. This concept is expressed as the discounted net
present value (NPV) The RIA projects that the NPV will be between $ 7.5
billion (at a 7% discount rate) and $ 31.1 billion (at a 3% discount
rate). The RIA also concludes that the combined effect of the proposed
rules would not have a significant economic impact on a substantial
number of small entities.

The Access Board has made every effort to lessen the impact of its
proposed guidelines on State and local governments but recognizes that
the guidelines will have some federalism

[[Page 71222]]

effects. These effects are discussed in the Access Board's regulatory
assessment, which also applies to the Department's proposed rule.
Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1503(2), excludes from coverage under that Act any proposed or final
Federal regulation that ``establishes or enforces any statutory rights
that prohibit discrimination on the basis of race, color, religion,
sex, national origin, age, handicap, or disability.'' Accordingly, this
rulemaking is not subject to the provisions of the Unfunded Mandates
Reform Act.

Risks:

Without this amendment to the Department's ADA regulations, regulated
entities will be subject to confusion and delay as they attempt to sort
out the requirements of conflicting design standards. This amendment
should eliminate the costs and risks associated with that process.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
ANPRM 09/30/04 69 FR 58768
ANPRM Comment Period End 01/28/05
ANPRM Comment Period
Extended 01/19/05 70 FR 2992
ANPRM Comment Period End 05/31/05
NPRM 06/17/08 73 FR 34466
NPRM Comment Period End 08/18/08
NPRM Correction 06/30/08 73 FR 36964
Final Action 01/00/09

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Governmental Jurisdictions

Government Levels Affected:

Local, State

Federalism:

This action may have federalism implications as defined in EO 13132.

Additional Information:

RIN 1190-AA46, which will effect changes to 28 CFR 35 (the Department's
regulation implementing title II of the ADA), is related to another
rulemaking of the Civil Rights Division, RIN 1190-AA44, which will
effect changes to 28 CFR 36 (the Department's regulation implementing
title III of the ADA). By adopting revised ADAAG, this rulemaking will,
among other things, address changes to the ADA Standards previously
proposed in RINs 1190-AA26, 1190-AA36, and 1190-AA38, which have been
withdrawn and merged into this rulemaking. These changes include
accessibility standards for State and local government facilities that
had been previously published by the Access Board (RIN 1190-AA26) and
the timing for the compliance of State and local governments with the
curb-cut requirements of the title II regulation (RIN 1190-AA36). In
order to consolidate regulatory actions implementing title II of the
ADA, on February 15, 2000, RINs 1190-AA26 and 1190-AA38 were merged
into this rulemaking and on March 5, 2002, RIN 1190-AA36 was merged
into this rulemaking.

[[Page 71223]]

DEPARTMENT OF LABOR (DOL)

2008 Regulatory Plan
Executive Summary: Protecting America's Employees
Since its creation in 1913, the Department of Labor has been guided by
the idea that employees deserve safe and healthy workplaces, as well as
protection of their wages and pensions. The Secretary of Labor has made
protecting America's employees a top priority, and has combined tough
enforcement with compliance assistance to ensure the health, safety and
economic security of the American workforce. While the vast majority of
employers work hard to keep their employees and workplaces safe and
secure, strong enforcement is needed to protect employees whose
employers otherwise would not comply with safety and health, wage, and
pension laws and regulations.
The Secretary's compliance assistance initiative provides employers
with the knowledge and tools they need to carry out their legal
obligations, and is based on the proven success that comes when
government, employers, unions and employees work together. Educating
and encouraging employers helps employees far more than enforcement
alone, since no enforcement process can possibly identify every
violation of the law, and fines and penalties can never fully redress
losses of life, health, and economic well-being.
The Department is committed to aggressively enforcing the laws that
protect employees, including the rights of employees returning to their
jobs after military service. Workers also need information about
protection of their health insurance and pension benefits. In addition,
DOL has responsibilities beyond worker protection. The Department
recognizes that employees need constant updating of skills to compete
in a changing marketplace. DOL helps employers and employees bridge the
gap between the requirements of new high-technology jobs and the skills
of the workers who are needed to fill them.
The Secretary of Labor's Regulatory Plan for Accomplishing These
Objectives
In general, DOL tries to help employees and employers meet their needs
in a cooperative fashion. DOL will maintain health and safety standards
and protect employees by working with the regulated community.
DOL considers the following proposals to be proactive, common sense
approaches to the issues most clearly needing regulatory attention.
The Department's Regulatory Priorities
The Occupational Safety and Health Administration (OSHA) oversees a
wide range of measures in the public and private sectors. OSHA is
committed to establishing clear and sensible priorities, and to
continuing to reduce occupational deaths, injuries, and illnesses.
OSHA's first initiative in the area of health standards addresses
worker exposures to crystalline silica (RIN 1218-AB70). This substance
is one of the most widely found in workplaces, and data indicate that
silica exposure causes silicosis, a debilitating respiratory disease,
and perhaps cancer as well. OSHA has obtained input from small
businesses about regulatory approaches through a Small Business
Regulatory Enforcement Fairness Act (SBREFA) panel, and the Panel
report was submitted to the Assistant Secretary of OSHA on December 19,
2003. OSHA plans to complete an external peer review of the health
effects and risk assessment by January 2009.
OSHA has initiated rulemaking to revise its Hazard Communication
Standard (HCS) (RIN 1218-AC20) to adopt provisions to make it
consistent with a globally harmonized approach to hazard communication.
First promulgated in 1983, the HCS requires chemical manufacturers and
importers of chemicals to evaluate the hazards of the chemicals they
produce or import, and prepare labels and safety data sheets to
communicate the hazards and protective measures to users of their
products. All employers with hazardous chemicals in their workplaces
are required to have a hazard communication program, including labels
on containers, safety data sheets, and employee training. OSHA
estimates that the HCS covers over 945,000 hazardous chemical products
in 7 million American workplaces. OSHA and other Federal agencies have
participated in long-term international negotiations to develop the
Globally Harmonized System of Classification and Labeling of Chemicals
(GHS). Adopted by the United Nations in 2003, the GHS includes
harmonized criteria for health, physical and environmental hazards, as
well as specifications for container labels and safety data sheets.
There is an international goal to have as many countries as possible
implement the GHS by 2008. Revising the HCS to be consistent with the
GHS is expected to improve the communication of hazards in American
workplaces, as well as facilitate international trade in chemicals.
OSHA is continuing work on its rulemaking to update the 1971 Cranes and
Derricks Standards (RIN 1218-AC01) using the recommendations of a
negotiated rulemaking committee. The committee submitted its
recommendations in July 2004. A Small Business Regulatory Enforcement
Fairness Act panel was convened in August 2006 to obtain input from
small businesses; a report summarizing the panel's findings was issued
in October 2006. The Agency issued a notice of proposed rulemaking in
September 2008.
Protection of pension and health benefits continues to be a priority of
the Secretary of Labor. Consistent with the Secretary's priorities for
FY 2008, the Employee Benefits Security Administration (EBSA) will
focus on compliance assistance for pension and group health plans
through issuance of guidance. Specific initiatives for group health
plans include guidance on the application of the Genetic Information
Nondiscrimination Act (GINA) health coverage provisions of the Employee
Retirement Income Security Act (ERISA) (RIN 1210-AB27). With respect to
pension plans, the Department will be establishing standards to improve
the disclosure of information concerning plan service provider fees and
potential conflicts of interest to assist fiduciaries and participants
in making informed decisions about their plans (RIN 1210-AB07 and 1210-
AB08). In addition, the Department is developing guidance on several
initiatives relating to the implementation of the Pension Protection
Act of 2006, including investment advice guidance (RIN 1210-AB13).
ERISA's requirements affect private sector employee benefit plans
including an estimated 679,000 pension benefit plans, covering
approximately 117 million participants; an estimated 2.5 million group
health benefit plans, covering 137 million participants and dependents;
and similar numbers of other welfare benefits plans and participants.
The Employment and Training Administration (ETA) has one priority
regulatory initiative that reflects the Secretary's emphasis on meeting
the needs of the 21st century workforce. The Senior Community Service
Employment Program (SCSEP) regulations (RIN 1205-AB48 and 1205-AB47),
due to the issuance of the Older

[[Page 71224]]

Americans Act Amendments of 2006, enacted October 2006, make
substantial changes to the current SCSEP.
_______________________________________________________________________

DOL--Employment and Training Administration (ETA)

-----------

PROPOSED RULE STAGE

-----------

83. SENIOR COMMUNITY SERVICE EMPLOYMENT PROGRAM

Priority:

Other Significant

Legal Authority:

42 USC 3056 et seq

CFR Citation:

20 CFR 641

Legal Deadline:

None

Abstract:

The Older Americans Act Amendments of 2006, Pub. L. 109-365, enacted on
October 17, 2006, contain provisions amending title V of that Act,
which authorizes the Senior Community Service Employment program
(SCSEP). The Amendments, effective July 1, 2007, made substantial
changes to the SCSEP provisions in the Older Americans Act, including
new requirements relating to performance accountability, income
eligibility for program participation, competition of national grants,
and services to participants.

This NPRM consists of 8 subparts: subpart A--Purpose and Definitions;
Subpart B--Coordination with the Workforce Investment Act; subpart C--
the State Plan; subpart D--Grant Application and Responsibility Review
Requirements for State and National Grants, Subpart E--Services to
Participants; subpart F--Pilots, Demonstration, and Evaluation
Projects, subpart H--Administrative Requirements; and subpart I--
Grievance Procedures and Appeals Process. The performance
accountability requirements (subpart G) were implemented through a
separate Interim Final Rule (IFR).

Statement of Need:

The 2006 Amendments to the Older Americans Act (OAA-2006) were enacted
on October 17, 2006. The amendment instituted a number of significant
changes to the SCSEP, including time limits on the participation of
eligible individuals, new enrollment priorities, streamlined and
strengthened performance measures, more training options for
participants, new limits on participant fringe benefits, and required
open competition of national grants every 4 years.

The Department was required to implement the new performance measures
by July 1, 2007, and published an IFR on these requirements in the
Federal Register on June 29, 2007, (72 FR 35832). However, SCSEP
grantees were advised that they were responsible for complying with all
the OAA-2006 changes as of July 1, 2007, as communicated in
administrative guidance issued on June 11, 2007. Since OAA-2006
instituted so many significant changes in addition to those relating to
performance accountability, it is important that regulations
implementing the full requirements of the Amendments be issued
consistent with the identified timetable.

Summary of Legal Basis:

These regulations are authorized by 42 U.S.C. 3056 et seq to implement
amendments to Title V of the Older Americans Act of 1965.

Alternatives:

The public will be afforded an opportunity to provide comments on the
SCSEP program changes when the Department publishes the NPRM in the
Federal Register. A Final Rule will be issued after analysis and
incorporation of public comments to the NPRM, and IFR (1205-AB47).

Anticipated Cost and Benefits:

Preliminary estimates of the anticipated costs of this regulatory
action have not been determined at this time and will be determined at
a later date.

Risks:

This action does not affect public health, safety, or the environment.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 08/14/08 73 FR 47770
NPRM Comment Period End 10/14/08
Final Rule 01/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Federal, State, Tribal

Agency Contact:
Gay Gilbert
Administrator, Office of Workforce Investment
Department of Labor
Employment and Training Administration
200 Constitution Avenue NW.
FP Building
Room S4231
Washington, DC 20210
Phone: 202 693-3428
Email: [email protected]
Related RIN: Related to 1205-AB47
RIN: 1205-AB48
_______________________________________________________________________

DOL--ETA

-----------

FINAL RULE STAGE

-----------

84. SENIOR COMMUNITY SERVICE EMPLOYMENT PROGRAM; PERFORMANCE
ACCOUNTABILITY

Priority:

Other Significant

Legal Authority:

42 USC 3056 et seq

CFR Citation:

20 CFR 641

Legal Deadline:

Other, Statutory, June 30, 2007, Interim Final Rule.

Abstract:

The Older Americans Act Amendments of 2006, Pub. L. 109-365, enacted on
October 17, 2006, contains provisions amending title V of that Act,
which authorizes the Senior Community Service Employment Program
(SCSEP). The Amendments, effective July 1, 2007, make substantial
changes to the current SCSEP provisions in the Older Americans Act
relating to performance accountability.

Section 513(2) of title V requires that the Agency establish and
implement new measures of performance by July 1, 2007. Section
513(b)(3) requires that the Secretary issue definitions of indicators
of performance through regulation after consultation with stakeholders.
Therefore, this Interim Final Rule (IFR) is intended to implement
changes to the SCSEP program performance accountability regulations
found at 20 CFR 641 in subpart G. Changes to other subparts

[[Page 71225]]

of part 641 will be implemented through a separate Notice of Proposed
Rulemaking.

Statement of Need:

The 2006 Amendments to the Older Americans Act (OAA-2006) were enacted
on October 17, 2006. The Amendments instituted a number of significant
changes to the SCSEP, including time limits on the participation of
eligible individuals, new enrollment priorities, streamlined and
strengthened performance measures, more training options for
participants, new limits on participant benefits, and required open
competition of national grants every four years.

The Department was required to implement the new performance measures
by July 1, 2007, and published an Interim Final Rule on these
requirements in the Federal Register on June 29, 2007 (72 FR 35832).
However, SCSEP grantees were advised that they were responsible for
complying with all the OAA-2006 changes as of July 1, 2007, as
communicated in administrative guidance issued on June 11, 2007. Since
OAA-2006 instituted so many significant changes in addition to those
relating to performance accountability, it is important that
regulations implementing the full requirements of the Amendments be
issued consistent with the identified timetable.

Summary of Legal Basis:

These regulations are authorized by 42 U.S.C. 3056 et seq. to implement
amendments to title V of the Older Americans Act of 1965.

Alternatives:

The public was afforded an opportunity to provide comments on the SCSEP
performance measurement system changes when the Department published
the IFR in the Federal Register. Comments on the IFR and a proposed
rule for the SCSEP (RIN 1205-AB48) will be incorporated into one final
rule.

Anticipated Cost and Benefits:

Preliminary estimates of the anticipated costs of this regulatory
action have not been determined at this time and will be determined at
a later date.

Risks:

This action does not affect public health, safety, or the environment.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Interim Final Rule 06/29/07 72 FR 35832
Interim Final Rule
Comment Period End 08/28/07
Final Action 01/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Federal, State, Tribal

Agency Contact:
Gay Gilbert
Administrator, Office of Workforce Investment
Department of Labor
Employment and Training Administration
200 Constitution Avenue NW.
FP Building
Room S4231
Washington, DC 20210
Phone: 202 693-3428
Email: [email protected]
Related RIN: Related to 1205-AB48
RIN: 1205-AB47
_______________________________________________________________________

DOL--Employee Benefits Security Administration (EBSA)

-----------

FINAL RULE STAGE

-----------

85. FIDUCIARY REQUIREMENTS FOR DISCLOSURE IN PARTICIPANT-DIRECTED
INDIVIDUAL ACCOUNT PLANS

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

29 USC 1104; 29 USC 1135

CFR Citation:

29 CFR 2550

Legal Deadline:

None

Abstract:

This rulemaking will ensure that the participants and beneficiaries in
participant-directed individual account plans are provided the
information they need, including information about fees and expenses,
to make informed investment decisions. The rulemaking may include
amendments to the regulation governing ERISA section 404(c) plans (29
CFR 2550.404c-1). The rulemaking is needed to clarify and improve the
information currently required to be furnished to participants and
beneficiaries.

Statement of Need:

Given the potentially significant impact fees and expenses can have on
retirement savings, understanding what and how fees and expenses are
charged to 401(k) plans is essential to plan participants and
beneficiaries in making informed investment decisions.

Summary of Legal Basis:

Section 505 of ERISA provides that the Secretary may prescribe such
regulations as she considers necessary and appropriate to carry out the
provisions of title I of the Act, including section 404 of ERISA.

Alternatives:

Alternatives will be considered following a determination of the scope
and nature of the regulatory guidance needed by the public.

Anticipated Cost and Benefits:

Preliminary estimates of the anticipated costs and benefits will be
developed, as appropriate, following a determination regarding the
alternatives to be considered.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Request for Information 04/25/07 72 FR 20457
Comment Period End 07/24/07
NPRM 07/23/08 73 FR 43014
NPRM Comment Period End 09/08/08
Final Action 11/00/08

Regulatory Flexibility Analysis Required:

Undetermined

Government Levels Affected:

None

Agency Contact:
Katherine D. Lewis
Senior, Pension Law Specialist
Department of Labor
Employee Benefits Security Administration
200 Constitution Avenue NW.
FP Building
Room N-5655
Washington, DC 20210
Phone: 202 693-8500
RIN: 1210-AB07

[[Page 71226]]

_______________________________________________________________________

DOL--EBSA

86. PROHIBITED TRANSACTION EXEMPTION FOR PROVISION OF INVESTMENT ADVICE
TO PARTICIPANTS IN INDIVIDUAL ACCOUNT PLANS

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

29 USC 1108(g); 29 USC 1135; PL 109-280, sec 601(a), Pension Protection
Act of 2006; ERISA sec 408(g); ERISA sec 505

CFR Citation:

29 CFR 2550

Legal Deadline:

None

Abstract:

Section 601 of the Pension Protection Act (Pub. L. 109-280) amended
ERISA by adding new sections 408(b)(14) and 408(g). Section 408(b)(14)
is a prohibited transaction exemption that permits the provision of
investment advice to participants or beneficiaries of certain
individual account plans if the investment advice is provided under an
``eligible investment advice arrangement,'' as defined in section
408(g). In order to qualify as an ``eligible investment advice
arrangement,'' the arrangement must either provide that any fees
received by the adviser do not vary depending on the basis of any
investment options selected, or use a computer model under an
investment advice program that meets the criteria set forth in section
408(g) in connection with the provision of investment advice. Further,
with respect to both types of advice arrangements, the investment
adviser must disclose to advice recipients all fees that the adviser or
any affiliate is to receive in connection with the advice. Section
408(g) requires that the computer model which serves as the basis for
an eligible investment advice arrangement be certified by an ``eligible
investment expert'' in accordance with rules prescribed by the
Secretary of Labor. Section 408(g) also directs the Secretary of Labor
to issue a model form for the required disclosure of fees. EBSA
published a Request for Information that invited interested persons to
submit written comments and suggestions concerning the expertise and
procedures that may be needed to certify that a computer model meets
the statutory criteria, and the content, types, and designs of fee
disclosure materials currently used and their usefulness to plan
participants.

Statement of Need:

This rulemaking is necessary to fully implement the new exemption under
section 408(b)(14) of ERISA pursuant to section 601 of the PPA.

Summary of Legal Basis:

Section 505 of ERISA provides that the Secretary may prescribe such
regulations as she finds necessary and appropriate to carry out the
provisions of title I of the Act. In addition, section 408(g)(3) of
ERISA provides the Secretary with authority to establish rules
governing the computer model certification process.

Alternatives:

Alternatives will be considered following a determination of the scope
and nature of the regulatory guidance needed by the public.

Anticipated Cost and Benefits:

Preliminary estimates of the anticipated costs and benefits will be
developed, as appropriate, following a determination regarding the
alternatives to be considered.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Request for Information 12/04/06 71 FR 70429
Request for Information
Comment Period End 01/30/07
NPRM 08/22/08 73 FR 49896
NPRM Comment Period End 10/06/08
Notice of Hearing To Be
Held--October 21,
2008 10/14/08 73 FR 60657
Final Action 11/00/08

Regulatory Flexibility Analysis Required:

Government Levels Affected:

Undetermined

Agency Contact:
Fred Wong
Senior Pension Law Specialist
Department of Labor
Employee Benefits Security Administration
200 Constitution Avenue NW.
FP Building
Room N5655
Washington, DC 20210
Phone: 202 693-8500
Fax: 202 219-7291
RIN: 1210-AB13
_______________________________________________________________________

DOL--Occupational Safety and Health Administration (OSHA)

-----------

PRERULE STAGE

-----------

87. OCCUPATIONAL EXPOSURE TO CRYSTALLINE SILICA

Priority:

Economically Significant. Major under 5 USC 801.

Unfunded Mandates:

Undetermined

Legal Authority:

29 USC 655(b); 29 USC 657

CFR Citation:

29 CFR 1910; 29 CFR 1915; 29 CFR 1917; 29 CFR 1918; 29 CFR 1926

Legal Deadline:

None

Abstract:

Crystalline silica is a significant component of the earth's crust, and
many workers in a wide range of industries are exposed to it, usually
in the form of respirable quartz or, less frequently, cristobalite.
Chronic silicosis is a uniquely occupational disease resulting from
exposure of employees over long periods of time (10 years or more).
Exposure to high levels of respirable crystalline silica causes acute
or accelerated forms of silicosis that are ultimately fatal. The
current OSHA permissible exposure limit (PEL) for general industry is
based on a formula recommended by the American Conference of
Governmental Industrial Hygienists (ACGIH) in 1971 (PEL=10mg/cubic
meter/(% silica + 2), as respirable dust). The current PEL for
construction and maritime (derived from ACGIH's 1962 Threshold Limit
Value) is based on particle counting technology, which is considered
obsolete. NIOSH and ACGIH recommend 50[micro]g/m3 and 25[micro]g/m3
exposure limits, respectively, for respirable crystalline silica.

Both industry and worker groups have recognized that a comprehensive
standard for crystalline silica is needed to provide for exposure
monitoring, medical surveillance, and worker training. The American
Society for Testing and Materials (ASTM) has published a recommended
standard for addressing the hazards of crystalline silica. The Building
Construction Trades Department of the AFL-CIO has also developed a
recommended

[[Page 71227]]

comprehensive program standard. These standards include provisions for
methods of compliance, exposure monitoring, training, and medical
surveillance.

Statement of Need:

Over 2 million workers are exposed to crystalline silica dust in
general industry, construction, and maritime industries. Industries
that could be particularly affected by a standard for crystalline
silica include: Foundries, industries that have abrasive blasting
operations, paint manufacture, glass and concrete product manufacture,
brick making, china and pottery manufacture, manufacture of plumbing
fixtures, and many construction activities including highway repair,
masonry, concrete work, rock drilling, and tuckpointing. The
seriousness of the health hazards associated with silica exposure is
demonstrated by the fatalities and disabling illnesses that continue to
occur; between 1990 and 1996, 200 to 300 deaths per year are known to
have occurred where silicosis was identified on death certificates as
an underlying or contributing cause of death. It is likely that many
more cases have occurred where silicosis went undetected. In addition,
the International Agency for Research on Cancer (IARC) has designated
crystalline silica as a known human carcinogen. Exposure to crystalline
silica has also been associated with an increased risk of developing
tuberculosis and other nonmalignant respiratory diseases, as well as
renal and autoimmune respiratory diseases. Exposure studies and OSHA
enforcement data indicate that some workers continue to be exposed to
levels of crystalline silica far in excess of current exposure limits.
Congress has included compensation of silicosis victims on Federal
nuclear testing sites in the Energy Employees' Occupational Illness
Compensation Program Act of 2000. There is a particular need for the
Agency to modernize its exposure limits for construction and maritime
workers, and to address some specific issues that will need to be
resolved to propose a comprehensive standard.

Summary of Legal Basis:

The legal basis for the proposed rule is a preliminary determination
that workers are exposed to a significant risk of silicosis and other
serious disease and that rulemaking is needed to substantially reduce
the risk. In addition, the proposed rule will recognize that the PELs
for construction and maritime are outdated and need to be revised to
reflect current sampling and analytical technologies.

Alternatives:

Over the past several years, the Agency has attempted to address this
problem through a variety of non-regulatory approaches, including
initiation of a Special Emphasis Program on silica in October 1997,
sponsorship with NIOSH and MSHA of the National Conference to Eliminate
Silicosis, and dissemination of guidance information on its Web site.
The Agency is currently evaluating several options for the scope of the
rulemaking.

Anticipated Cost and Benefits:

The scope of the proposed rulemaking and estimates of the costs and
benefits are still under development.

Risks:

A detailed risk analysis is under way.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Completed SBREFA Report 12/19/03
Complete Peer Review of
Health Effects and
Risk Assessment 02/00/09

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

Undetermined

Agency Contact:
Dorothy Dougherty
Director, Directorate of Standards and Guidance
Department of Labor
Occupational Safety and Health Administration
200 Constitution Avenue NW.
FP Building
Room N3718
Washington, DC 20210
Phone: 202 693-1950
Fax: 202 693-1678
Email: [email protected]
RIN: 1218-AB70
_______________________________________________________________________

DOL--OSHA

-----------

PROPOSED RULE STAGE

-----------

88. CRANES AND DERRICKS

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

29 USC 651(b); 29 USC 655(b); 40 USC 333

CFR Citation:

29 CFR 1926

Legal Deadline:

None

Abstract:

A number of industry stakeholders asked OSHA to update the cranes and
derricks portion of subpart N (29 CFR 1926.550), specifically
requesting that negotiated rulemaking be used.

In 2002 OSHA published a notice of intent to establish a negotiated
rulemaking committee. A year later, in 2003, committee members were
announced and the Cranes and Derricks Negotiated Rulemaking Committee
was established and held its first meeting. In July 2004, the committee
reached consensus on all issues resulting in a final consensus
document.

Statement of Need:

There have been considerable technological changes since the consensus
standards upon which the 1971 OSHA standard is based were developed. In
addition, industry consensus standards for derricks and crawler, truck
and locomotive cranes were updated as recently as 2004.

The industry indicated that over the past 30 years, considerable
changes in both work processes and crane technology have occurred.
There are estimated to be 64 to 82 fatalities associated with cranes
each year in construction, and a more up-to-date standard would help
prevent them.

Summary of Legal Basis:

The Occupational Safety and Health Act of 1970 authorizes the Secretary
of Labor to set mandatory occupational safety and health standards to
assure safe and healthful working conditions for working men and women
(29 USC 651).

[[Page 71228]]

Alternatives:

The alternative to the proposed rulemaking would be to take no
regulatory action and not update the standards in 29 CFR 1926.550
pertaining to cranes and derricks.

Anticipated Cost and Benefits:

The estimates of the costs and benefits are still under development.

Risks:

OSHA's risk analysis is under development.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Notice of Intent To
Establish Negotiated
Rulemaking 07/16/02 67 FR 46612
Comment Period End 09/16/02
Request for Comments on
Proposed Committee
Members 02/27/03 68 FR 9036
Request for Comments
Period End 03/31/03 68 FR 9036
Established Negotiated
Rulemaking Committee 06/12/03 68 FR 35172
Rulemaking Negotiations
Completed 07/30/04
SBREFA Report 10/17/06
NPRM 10/09/08 73 FR 59714
NPRM Comment Period End 12/08/08

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

Undetermined

Agency Contact:
Noah Connell
Acting Director, Directorate of Construction
Department of Labor
Occupational Safety and Health Administration
200 Constitution Avenue NW.
FP Building
Room North 3467
Washington, DC 20210
Phone: 202 693-2020
Fax: 202 693-1689
RIN: 1218-AC01
_______________________________________________________________________

DOL--OSHA

89. HAZARD COMMUNICATION

Priority:

Other Significant

Legal Authority:

29 USC 655(b); 29 USC 657

CFR Citation:

29 CFR 1910.1200; 29 CFR 1915.1200; 29 CFR 1917.28; 29 CFR 1918.90; 29
CFR 1926.59; 29 CFR 1928.21

Legal Deadline:

None

Abstract:

OSHA's Hazard Communication Standard (HCS) requires chemical
manufacturers and importers to evaluate the hazards of the chemicals
they produce or import, and prepare labels and material safety data
sheets to convey the hazards and associated protective measures to
users of the chemicals. All employers with hazardous chemicals in their
workplaces are required to have a hazard communication program,
including labels on containers, material safety data sheets (MSDS), and
training for employees. Within the United States (U.S.), there are
other Federal agencies that also have requirements for classification
and labeling of chemicals at different stages of the life cycle.
Internationally, there are a number of countries that have developed
similar laws that require information about chemicals to be prepared
and transmitted to affected parties. These laws vary with regard to the
scope of substances covered, definitions of hazards, the specificity of
requirements (e.g., specification of a format for MSDSs), and the use
of symbols and pictograms. The inconsistencies between the various laws
are substantial enough that different labels and safety data sheets
must often be used for the same product when it is marketed in
different nations.

The diverse and sometimes conflicting national and international
requirements can create confusion among those who seek to use hazard
information. Labels and safety data sheets may include symbols and
hazard statements that are unfamiliar to readers or not well
understood. Containers may be labeled with such a large volume of
information that important statements are not easily recognized.
Development of multiple sets of labels and safety data sheets is a
major compliance burden for chemical manufacturers, distributors, and
transporters involved in international trade. Small businesses may have
particular difficulty in coping with the complexities and costs
involved.

As a result of this situation, and in recognition of the extensive
international trade in chemicals, there has been a longstanding effort
to harmonize these requirements and develop a system that can be used
around the world. In 2003, the United Nations adopted the Globally
Harmonized System of Classification and Labeling of Chemicals (GHS).
Countries are now considering adoption of the GHS into their national
regulatory systems. There is an international goal to have as many
countries as possible implement the GHS by 2008. OSHA is considering
modifying its HCS to make it consistent with the GHS. This would
involve changing the criteria for classifying health and physical
hazards, adopting standardized labeling requirements, and requiring a
standardized order of information for safety data sheets.

Statement of Need:

Multiple sets of requirements for labels and safety data sheets present
a compliance burden for U.S. manufacturers, distributors, and
transports involved in international trade. Adoption of the GHS would
facilitate international trade in chemicals, reduce the burdens caused
by having to comply with differing requirements for the same product,
and allow companies that have not had the resources to deal with those
burdens to be involved in international trade. This is particularly
important for small producers who may be precluded currently from
international trade because of the compliance resources required to
address the extensive regulatory requirements for classification and
labeling of chemicals. Thus every producer is likely to experience some
benefits from domestic harmonization, in addition to the benefits that
will accrue to producers involved in international trade.

Additionally, comprehensibility of hazard information will be enhanced
as the GHS will: (1) Provide consistent information and definitions for
hazardous chemicals; (2) address stakeholder concerns regarding the
need for a standardized format for material safety data sheets; and (3)
increase understanding by using standardized pictograms and harmonized
hazard statements.

[[Page 71229]]

Several nations, as well as the European Union, are preparing proposals
for adoption of the GHS. U.S. manufacturers, employers, and employees
will be at a disadvantage in the event that our system of hazard
communication is not compliant with the GHS.

Summary of Legal Basis:

Alternatives:

The alternative to the proposed rulemaking would be to take no
regulatory action.

Anticipated Cost and Benefits:

The estimates of the costs and benefits are still under development.

Risks:

OSHA's risk analysis is under development.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
ANPRM 09/12/06 71 FR 53617
ANPRM Comment Period End 11/13/06
Complete Peer Review of
Economic Analysis 11/19/07
NPRM 12/00/08

Regulatory Flexibility Analysis Required:

Government Levels Affected:

None

[[Page 71230]]

DEPARTMENT OF TRANSPORTATION (DOT)

Statement of Regulatory Priorities
The Department of Transportation (DOT) consists of ten operating
administrations and the Office of the Secretary, each of which has
statutory responsibility for a wide range of regulations. For example,
DOT regulates safety in the aviation, motor carrier, railroad, public
transportation, motor vehicle, commercial space, and pipeline
transportation areas. DOT regulates aviation consumer and economic
issues and provides financial assistance and writes the necessary
implementing rules for programs involving highways, airports, public
transportation, the maritime industry, railroads, and motor vehicle
safety. It writes regulations carrying out such varied statutes as the
Americans with Disabilities Act and the Uniform Time Act. Finally, DOT
has responsibility for developing policies that implement a wide range
of regulations that govern internal programs such as acquisitions and
grants, access for the disabled, environmental protection, energy
conservation, information technology, occupational safety and health,
property asset management, seismic safety, and the use of aircraft and
vehicles.
The Department has adopted a regulatory philosophy that applies to all
its rulemaking activities. This philosophy is articulated as follows:
DOT regulations must be clear, simple, timely, fair, reasonable, and
necessary. They will be issued only after an appropriate opportunity
for public comment, which must provide an equal chance for all affected
interests to participate, and after appropriate consultation with other
governmental entities. The Department will fully consider the comments
received. It will assess the risks addressed by the rules and their
costs and benefits, including the cumulative effects. The Department
will consider appropriate alternatives, including nonregulatory
approaches. It will also make every effort to ensure that legislation
does not impose unreasonable mandates.
In establishing its regulatory priorities--in identifying rulemaking
actions that deserve special attention--the Department has focused on a
number of factors, including the following:
The relative risk being addressed
Requirements imposed by statute or other law
Actions on the National Transportation Safety Board ``Most
Wanted List''
The costs and benefits of regulations
The advantages to non-regulatory alternatives
Opportunities for deregulatory action
The enforceability of any rule, including the effect on agency
resources
An important initiative of the Department has been to conduct high
quality rulemakings in a timely manner and to reduce the number of old
rulemakings. To implement this, the following actions have been
required: (1) Regular meetings of senior DOT officials to ensure
effective policy leadership and timely decisions, (2) better tracking
and coordination of rulemakings, (3) regular reporting, (4) early
briefings of interested officials, (5) better training of staff, and
(6) necessary resource allocations. The Department has achieved
significant success as a result of this initiative with the number of
old rulemakings as well as the average time to complete rulemakings
decreasing. This is also allowing the Department to use its resources
more effectively and efficiently.
The Department's regulatory policies and procedures provide a
comprehensive internal management and review process for new and
existing regulations and ensure that the Secretary and other
appropriate appointed officials review and concur in all significant
DOT rules. DOT continually seeks to improve its regulatory process. A
few examples include: the Department's development of regulatory
process and related training courses for its employees; creation of an
electronic, Internet-accessible docket that can also be used to submit
comments electronically; a ``list serve'' that allows the public to
sign up for e-mail notification when the Department issues a rulemaking
document; creation of an electronic rulemaking tracking and
coordination system; the use of direct final rulemaking; and the use of
regulatory negotiation.
In addition, the Department continues to engage in a wide variety of
activities to help cement the partnerships between its agencies and its
customers that will produce good results for transportation programs
and safety. The Department's agencies also have established a number of
continuing partnership mechanisms in the form of rulemaking advisory
committees.
The Department is also actively engaged in the review of existing rules
to determine whether they need to be revised or revoked. These reviews
are in accordance with section 610 of the Regulatory Flexibility Act,
the Department's regulatory policies and procedures, and Executive
Order 12866. This includes determining whether the rules would be more
understandable if they are written using a plain language approach.
Appendix D to our Regulatory Agenda highlights our efforts in this
area.
The Department will also continue its efforts to use advances in
technology to improve its rulemaking management process. For example,
the Department created an effective tracking system for significant
rulemakings to ensure that either rules are completed in a timely
manner or delays are identified and fixed. Through this tracking
system, a monthly report is generated. To make its efforts more
transparent, the Department has made this report Internet-accessible.
By doing this, the Department is providing valuable information
concerning our rulemaking activity and is providing information
necessary for the public to evaluate the Department's progress in
meeting its commitment to completing rulemakings in a timely manner.
The Department will continue to place great emphasis on the need to
complete high quality rulemakings by involving senior Departmental
officials in regular meetings to resolve issues expeditiously.
Office of the Secretary of Transportation (OST)
The Office of the Secretary (OST) oversees the regulatory process for
the Department. OST implements the Department's regulatory policies and
procedures and is responsible for ensuring the involvement of top
management in regulatory decisionmaking. Through the General Counsel's
office, OST is also responsible for ensuring that the Department
complies with Executive Order 12866 and other legal and policy
requirements affecting rulemaking, including new statutes and Executive
orders. Although OST's principal role concerns the review of the
Department's significant rulemakings, this office has the lead role in
the substance of projects concerning aviation economic rules and those
affecting the various elements of the Department.
OST provides guidance and training regarding compliance with regulatory
requirements and process for use by

[[Page 71231]]

personnel throughout the Department. OST also plays an instrumental
role in the Department's efforts to improve our economic analyses; risk
assessments; regulatory flexibility analyses; other related analyses;
and data quality, including peer reviews.
OST also leads and coordinates the Department's response to
Administration and congressional proposals that concern the regulatory
process. The General Counsel's Office works closely with
representatives of other agencies, the Office of Management and Budget,
the White House, and congressional staff to provide information on how
various proposals would affect the ability of the Department to perform
its safety, infrastructure, and other missions.
OST amended its Air Carrier Access Act (ACAA) rules to apply to
foreign carriers (2105-AC97). The final rule also added new provisions
concerning passengers who use medical oxygen and passengers who are
deaf or hard-of-hearing. The rule also reorganized and updated the
entire ACAA rule.
During fiscal year 2009, OST will continue to focus its efforts on
enhancing airline passenger protections by requiring carriers to adopt
various consumer service practices (2105-AB72).
OST will also continue its efforts to help coordinate the activities
of several operating administrations that advance the Department's
congestion initiative. Specific rulemakings concerning congestion
relief can be found under the headings of the operating
administrations.
Federal Aviation Administration (FAA)
The Federal Aviation Administration is charged with safely and
efficiently operating and maintaining the most complex aviation system
in the world. It is guided by its Flight Plan goals--Increased Safety,
Greater Capacity, International Leadership, and Organizational
Excellence. It issues regulations to provide a safe and efficient
global aviation system for civil aircraft, while being sensitive to not
imposing undue regulatory burdens and costs on small businesses.
Activities that may lead to rulemaking include:
Promotion and expansion of safety information sharing efforts
such as FAA-industry partnerships and data-driven safety
programs that prioritize and address risks before they lead
to accidents. Specifically, FAA will continue implementing
Commercial Aviation Safety Team projects related to
controlled flight into terrain, loss of control of an
aircraft, uncontained engine failures, runway incursions,
weather, pilot decision making, and cabin safety. Some of
these projects may result in rulemaking and guidance
materials.
Continuing to work cooperatively to harmonize the U.S.
aviation regulations with those of other countries, without
compromising rigorous safety standards. The differences
worldwide in certification standards, practice and
procedures, and operating rules must be identified and
minimized to reduce the regulatory burden on the
international aviation system. The differences between the
FAA regulations and the requirements of other nations
impose a heavy burden on U.S. aircraft manufacturers and
operators. Standardization should help the U.S. aerospace
industry remain internationally competitive. The FAA
continues to publish regulations based on recommendations
of Aviation Rulemaking Committees that are the result of
cooperative rulemaking between the U.S. and other
countries.
Top regulatory priorities for 2008-2009 include:
Automatic Dependent Surveillance -- Broadcast (ADS-B) Out
equipment (2120-AI92)
The FAA is pursuing an ADS-B rulemaking to:
1. Accommodate the expected increase in demand for air transportation,
as described in the Next Generation Air Transportation
System Integrated Plan;
2. Provide the Federal Aviation Administration with a comprehensive
surveillance system that accommodates the anticipated
increase in operations; and
3. Provide a platform for additional flight applications and services
in the future.
Lastly, the FAA also is continuing actions to advance the Department's
congestion initiative to provide a long-term solution to increased
congestion and delay in New York.
Federal Highway Administration (FHWA)
The Federal Highway Administration (FHWA) carries out the Federal
highway program in partnership with State and local agencies to meet
the Nation's transportation needs. The FHWA's mission is to improve
continually the quality and performance of our Nation's highway system
and its intermodal connectors.
Consistent with this mission, the FHWA will continue:
With ongoing regulatory initiatives in support of its surface
transportation programs;
To implement legislation in the least burdensome and
restrictive way possible; and
To pursue regulatory reform in areas where project development
can be streamlined or accelerated, duplicative requirements
can be consolidated, recordkeeping requirements can be
reduced or simplified, and the decisionmaking authority of
our State and local partners can be increased.
On August 10, 2005, President George W. Bush signed the Safe,
Accountable, Flexible, and Efficient Transportation Equity Act: A
Legacy for Users (SAFETEA-LU). SAFETEA-LU authorizes the Federal
surface transportation programs for highways, highway safety, and
transit for the five-year period from 2005-2009. The FHWA has analyzed
SAFETEA-LU and identified a number of congressionally directed
rulemakings. These rulemakings include:
1. Express Lane Demonstration Project (2125-AF07);
2. Projects of National and Regional Significance (2125-AF08); and
3. Environmental Review of Activities that Support the Deployment of
ITS Projects (2125-AF15).
These rulemakings are the FHWA's top regulatory priorities.
Additionally, the FHWA is in the process of reviewing all FHWA
regulations to ensure that they are consistent with SAFETEA-LU and will
update those regulations that are not consistent with this legislation.
In addition, the FHWA is updating the Department's regulation for
Credit Assistance for Surface Transportation Projects at 49 CFR Part 80
to incorporate changes to the Transportation Infrastructure Finance and
Innovation Act (TIFIA) program made by SAFETEA-LU, and to incorporate a
number of programmatic features which the U.S. DOT believes will
improve the administration of the TIFIA progam.
Finally, the FHWA has completed the rulemaking that amends the Manual
on Uniform Traffic Control Devices (MUTCD) to include a standard for
minimum maintained levels of traffic sign retroreflectivity and methods
to

[[Page 71232]]

maintain traffic sign retroreflectivity at or above these levels. This
rulemaking (2125-AE98) addresses comments received in response to the
Office of Management and Budget's (OMB's) request for regulatory reform
nominations from the public. The OMB is required to submit an annual
report to Congress on the costs and benefits of Federal regulations.
The 2002 report included recommendations for regulatory reform that OMB
requested from the public. One recommendation was that the FHWA should
establish standards for minimum levels of brightness of traffic signs.
The FHWA has identified this rulemaking as responsive to that
recommendation.
Federal Motor Carrier Safety Administration (FMCSA)
The mission of the Federal Motor Carrier Safety Administration (FMCSA)
is to reduce crashes, injuries, and fatalities involving commercial
trucks and buses. A strong regulatory program is a cornerstone of
FMCSA's compliance and enforcement efforts to advance this safety
mission. Developing new and more effective safety regulations is key to
increasing safety on our Nation's highways. FMCSA regulations establish
standards for motor carriers, drivers, vehicles, and States agencies
receiving certain motor carrier safety grants and issuing commercial
drivers' licenses.
FMCSA continues to develop regulations both mandated by Congress and
initiated by the Agency to increase safety. With the anticipated
publication in 2009 of the final rule to merge the medical certificate
and CDL issuance and renewal processes, FMCSA has completed all
rulemakings required under the Motor Carrier Safety Improvement Act of
1999. Additionally, FMCSA continues to address a significant number of
rules required by its most recent reauthorization legislation, Safe,
Accountable, Flexible, and Efficient Transportation Equity Act: A
Legacy for Users (SAFETEA-LU). The Agency is committed to promulgating
the SAFETEA-LU mandated rules while continuing to make progress on a
large and challenging rulemaking agenda.
In 2008, FMCSA anticipates completion of several significant
rulemakings including Requirements for Intermodal Equipment Providers
and Motor Carriers and Drivers Operating Intermodal Equipment, Hours of
Service of Drivers, New Entrant Safety Assurance Process, and
Electronic On-Board Recorders. FMCSA has also published notices of
proposed rulemaking on Consumer Complaint Information for Household
Goods Shipments, Entry Level Driver Training, CDL Learner's Permits,
and the Agency anticipates publishing NPRMs on National Registry of
Certified Medical Examiners and Railroad Grade Crossing.
FMCSA's implementation of Comprehensive Safety Analysis 2010 (CSA 2010)
commences with the rulemaking Carrier Safety Fitness Determination (RIN
2126-AB11). The Agency continues work on its CSA 2010 initiative, which
will improve the way FMCSA conducts compliance and enforcement
operations over the coming years. CSA 2010's goal is to improve large
truck and bus safety by assessing a wider range of safety performance
data of a larger segment of the motor carrier industry through an array
of progressive compliance interventions. FMCSA is targeting 2010 for
deployment of this new operational model. The Agency anticipates that
the impacts of CSA 2010 and its associated rulemakings will contribute
further to the Agency's overall goal of decreasing CMV-related
fatalities and injuries.
FMCSA's Regulatory Plan includes a number of rules that are high
priorities for the Agency because they would have a positive impact on
safety. Among the rulemakings included in the plan are: (1) Carrier
Safety Fitness Determination (RIN 2126-AB11), (2) National Registry of
Certified Medical Examiners (RIN 2126-AA97), and (3) Commercial
Driver's License Testing and Commercial Learner's Permit Standard (RIN
2126-AB02).
Together these priority rules will help to substantially improve
commercial motor vehicle (CMV) safety on our nation's highways by
improving FMCSA's ability to provide safety oversight of motor carriers
and drivers. For example, the Commercial Driver's License Testing and
Learner's Permit rulemaking (RIN 2126-AB02) would revise commercial
driver's license testing and require new minimum Federal standards for
States to issue commercial learner's permits. The National Registry of
Certified Medical Examiners rulemaking (RIN 2126-AA97) would establish
training and testing requirements for healthcare professionals who
issue medical certificates to truck and bus drivers.
In order to manage its rulemaking agenda, FMCSA continues to involve
senior agency leaders at the earliest stages of its rulemakings, and
continues to refine its regulatory development process. The Agency also
holds senior executives accountable for meeting deadlines for
completing rulemakings.
National Highway Traffic Safety Administration (NHTSA)
The statutory responsibilities of the National Highway Traffic Safety
Administration (NHTSA) relating to motor vehicles include reducing the
number of, and mitigating the effects of, motor vehicle crashes and
related fatalities and injuries; providing safety performance
information to aid prospective purchasers of vehicles, child
restraints, and tires; and improving automotive fuel efficiency. NHTSA
pursues policies that encourage the development of non-regulatory
approaches when feasible in meeting its statutory mandates. It issues
new standards and regulations or amendments to existing standards and
regulations when appropriate. It ensures that regulatory alternatives
reflect a careful assessment of the problem and a comprehensive
analysis of the benefits, costs, and other impacts associated with the
proposed regulatory action. Finally, it considers alternatives
consistent with the Administration's regulatory principles.
NHTSA continues to pursue the high priority vehicle safety area of
occupant protection in rollover events. The Safe, Accountable,
Flexible, and Efficient Transportation Equity Act of 2005 (SAFETEA-LU)
calls for a final rule that establishes a new performance standard to
reduce complete and partial ejections of vehicle occupants from
outboard seating positions during FY 2009.
NHTSA will also continue its efforts to publish a final rule setting
corporate average fuel economy (CAFE) standards for Model Years 2011-
2015 for both cars and light trucks.
In addition to numerous programs that focus on the safe performance of
motor vehicles, the agency is engaged in a variety of programs to
improve driver and occupant behavior. These programs emphasize the
human aspects of motor vehicle safety and recognize the important role
of the States in this common pursuit. NHTSA has identified two high
priority areas: safety belt use and impaired driving. To address these
issue areas, the agency is focusing especially on three strategies--
conducting highly visible, well publicized enforcement; supporting
prosecutors who handle impaired driving cases and expanding the use of
DWI/Drug Courts, which hold offenders accountable for receiving and
completing treatment for alcohol abuse and dependency; and the adoption
of alcohol screening and brief intervention by medical and health care
professionals. Other behavioral efforts

[[Page 71233]]

encourage child safety-seat use; combat excessive speed and aggressive
driving; improve motorcycle, bicycle, and pedestrian safety; and
provide consumer information to the public.
Federal Railroad Administration (FRA)
The Federal Railroad Administration (FRA) exercises regulatory
authority over all areas of railroad safety, fashioning regulations
that have favorable benefit-to-cost ratios and that, where feasible,
incorporate flexible performance standards and require cooperative
action by all affected parties. In order to foster an environment for
collaborative rulemaking, FRA established the Railroad Safety Advisory
Committee (RSAC). The purpose of the RSAC is to develop consensus
recommendations for regulatory action on issues referred to it by FRA.
Where consensus is achieved, and FRA believes the consensus
recommendations serve the public interest, the resulting rule is very
likely to be better understood, more widely accepted, more cost-
beneficial, and more correctly applied. Where consensus cannot be
achieved, however, FRA will fulfill its regulatory role without the
benefit of the RSAC's recommendations. The RSAC meets regularly, and
its working groups are actively addressing the following tasks: (1) the
development of safety standards for handling railroad equipment to
reduce the number of human factor caused accidents; (2) revisions to
the locomotive safety standards; (3) the development of passenger train
emergency systems; (4) establishing medical standards for railroad
personnel in safety critical functions.
On Oct. 16, 2008, FRA provided regulatory relief by adopting a rule
regarding Electronically Controlled Pneumatic Brake System
Implementation (2130-AB84). This rulemaking established criteria for
operating trains equipped with Electronically Controlled Pneumatic
Brake System technology.
Lastly, FRA will continue its work to ensure the long-term
sustainability of the Railroad Rehabilitation and Improvement Financing
(RRIF) Program. This would be accomplished by amending the eligibility
and application form and content criteria in the regulations to promote
competition in the railroad industry, and reduce the risk of default
for applicants and the Government (2130-AB91).
Federal Transit Administration (FTA)
The Federal Transit Administration (FTA) provides financial assistance
to State and local governments for public transportation purposes. The
regulatory activity of FTA focuses on establishing the terms and
conditions of Federal financial assistance available under the Federal
transit laws.
FTA's policy regarding regulations is to:
Implement statutory authorities in ways that provide the
maximum net benefits to society;
Keep paperwork requirements to a minimum;
Allow for as much local flexibility and discretion as is
possible within the law;
Ensure the most productive use of limited Federal resources;
Protect the Federal interest in local investments; and
Incorporate good management principles into the grant
management process.
As public transportation needs have changed over the years, so have the
requirements for Federal financial assistance under the Federal transit
laws and related statutes. As a result of the reauthorization
legislation, the FTA's regulatory activity includes a number of
substantive rulemakings. A few of those rulemakings are explicitly
mandated by the statute. Others will become necessary simply to make
amendments to current regulations to make them consistent with the
statute. FTA's regulatory priorities for the coming year will be
reflective of the directives and the programmatic priorities
established by the statute.
Although FTA has been directed by Congress to delay its initiatives
with the New Starts/Small Starts (2132-AA81) project, during FY 2009,
FTA will continue to assess how the agency can effectively support the
Department's congestion initiatives by continuing its focus on methods
that would encourage increased ridership.
Maritime Administration (MARAD)
The Maritime Administration (MARAD) administers Federal laws and
programs designed to promote and maintain a U.S. merchant marine
capable of meeting the Nation's shipping needs for both national
security and domestic and foreign commerce.
MARAD administers the Deepwater Port Act of 1974, as amended (DWPA, 33
U.S.C. Sec. 1501 et seq.), which established a licensing system for
ownership, construction, and operation of oil and natural gas deepwater
port (DWP) structures located seaward of U.S. territorial waters. The
DWPA authorizes the Secretary of Transportation, and by delegation the
Maritime Administration, to issue licenses for deepwater ports.
By its delegated authority, MARAD is responsible for determining the
financial capability of potential licensees, rendering citizenship
determinations for ownership, and securing operational and
decommissioning guarantees for deepwater port projects. In concert with
the U.S. Coast Guard (USCG) and other cooperating federal agencies,
MARAD prepares a Record of Decision (ROD) for each application. Through
the administration of the DWPA, the Maritime Administration plays a
vital role in meeting Presidential energy directives, protecting the
environment, building local economies, and improving mobility, safety,
and security in our Nation's oceans and ports.
MARAD's other regulatory objectives and priorities reflect the Agency's
responsibility of ensuring the availability of adequate and efficient
water transportation services for American shippers and consumers. To
advance these objectives, MARAD issues regulations, which are
principally administrative and interpretive in nature.
MARAD's regulatory priorities are to update existing regulations and to
reduce unnecessary burden on the public. This fall, the Agency will
implement its new America's Marine Highway regulation in response to
the enactment of the Energy Independence and Security Act of 2007 (Pub.
L. 110-140) which directs the Secretary of Transportation to establish
a short sea transportation program and designate short sea
transportation projects to mitigate landside congestion. Finally,
during FY 2009, MARAD will focus on revising its cargo preference
regulations.
Pipeline and Hazardous Materials Safety Administration (PHMSA)
The Pipeline and Hazardous Materials Safety Administration (PHMSA) has
responsibility for rulemaking under two programs. Through the Associate
Administrator for Hazardous Materials Safety, PHMSA administers
regulatory programs under Federal hazardous materials transportation
law and the Federal Water Pollution Control Act, as amended by the Oil
Pollution Act of

[[Page 71234]]

1990. Through the Associate Administrator for Pipeline Safety, PHMSA
administers regulatory programs under the Federal pipeline safety laws
and the Federal Water Pollution Control Act, as amended by the Oil
Pollution Act of 1990.
PHMSA will continue to work toward the elimination of deaths and
injuries associated with the transportation of hazardous materials by
all transportation modes, including pipeline. We will use data to focus
our efforts on the prevention of high-risk incidents, particularly
those of high consequence to people and the environment. PHMSA will use
all available agency tools to assess data; evaluate alternative safety
strategies, including regulatory strategies as necessary and
appropriate; target enforcement efforts; and enhance outreach, public
education, and training to promote safety outcomes. For maximum
effectiveness, we will work closely with other DOT safety agencies and
other federal, State and local agencies to bring together stakeholders
who can contribute to safety solutions.
PHMSA will continue to focus its safety efforts on the resolution of
highest priority risks, including those posed by the air transportation
of hazardous materials and bulk transportation of high hazard
materials. In addition, PHMSA is working with FAA to assess safety
risks associated with the transportation by aircraft of hazardous
materials in non-bulk packagings. To enhance aviation safety, the two
agencies are seeking to identify cost-effective solutions that can be
implemented to reduce incident rates and potentially detrimental
consequences without placing unnecessary burdens on the regulated
community. To address the risks posed by the bulk transportation of
high-risk hazardous materials, PHMSA in conjunction with FRA plans to
issue a final rule incorporating effective strategies for maintaining
tank car integrity during rail incidents, with a particular focus on
the containment of lethal compressed gases in high pressure tank cars.
Additionally, to address the need for an overall national program to
enhance rail security, PHMSA is working with FRA and TSA to issue a
final rule addressing the safe and secure transportation of hazardous
materials transported in commerce by rail. In addition, we would adopt
a new requirement for rail carriers to inspect placarded hazardous
materials rail cars for signs of tampering or suspicious items,
including improvised explosive devices (2137-AE02).
PHMSA will continue to look for ways to reduce the regulatory burden on
hazardous materials shippers and carriers, consistent with our overall
safety goals. For example, PHMSA is conducting a comprehensive review
of special permits to identify those with demonstrated safety records
that should be adopted as regulations of general applicability. We will
continue to review regulatory standards to ensure they are necessary,
easy to understand, contemporary and enforceable.
Over the next year, PHMSA expects to complete its integrity management
initiative by adding integrity management regulations applicable to gas
distribution pipelines. Integrity management regulations require
pipeline operators to establish risk-based programs that focus
increased safety attention on portions of pipeline posing the highest
risk (2137-AE15).
Research and Innovative Technology Administration (RITA)
The Research and Innovative Technology Administration (RITA) seeks to
identify and facilitate solutions to the challenges and opportunities
facing America's transportation system through:
Coordination, facilitation, and review of the Department's
research and development programs and activities;
Providing multi-modal expertise in transportation and
logistics research, analysis, strategic planning, systems
engineering and training;
Advancement, and research and development, of innovative
technologies, including intelligent transportation systems;
Comprehensive transportation statistics research, analysis,
and reporting;
Education and training in transportation and transportation-
related fields; and
Managing the activities of the John A. Volpe National
Transportation Systems Center.
Through its Bureau of Transportation Statistics, RITA collects,
compiles, analyzes, and makes accessible information on the Nation's
transportation system. RITA collects airline financial, traffic, and
operating statistical data, including on-time flight performance data.
This information gives the Government consistent and comprehensive
economic and market data on airline operations and is used in
supporting policy initiatives, negotiating international bilateral
aviation agreements, awarding international route authorities, and
meeting international treaty obligations.
Through its Intelligent Transportation Systems Joint Program Office
(ITS/JPO), RITA develops new regulations as appropriate, in
coordination with OST and other DOT operating administrations, to
enable deployment of ITS research and technology results.
Through its Volpe National Transportation Systems Center, RITA provides
a comprehensive range of engineering expertise, and qualitative and
quantitative assessment services, focused on applying, maintaining and
increasing the technical body of knowledge to support DOT operating
administration regulatory activities.
Through its Transportation Safety Institute, RITA designs, develops,
conducts and evaluates training and technical assistance programs in
transportation safety and security to support DOT operating
administration regulatory implementation and enforcement activities.
RITA's regulatory priorities are to assist OST and all DOT operating
administrations in updating existing regulations by applying research,
technology and analytical results; to provide reliable information to
transportation system decision makers; and to provide safety regulation
implementation and enforcement training.

[[Page 71235]]

QUANTIFIABLE COSTS AND BENEFITS OF RULEMAKINGS
ON THE 2008-2009 DOT REGULATORY PLAN

This chart does not account for non-quantifiable benefits, which are
often substantial

----------------------------------------------------------------------------------------------------------------
Quantifiable Quantifiable
Agency/RIN Number Costs Benefits
Title Stage Discounted 2007 Discounted 2007
$ (Millions) $ (Millions)
----------------------------------------------------------------------------------------------------------------
OST
----------------------------------------------------------------------------------------------------------------
2105-AD72 Enhancing Airline Passenger NPRM 11/08 TBD TBD
Protections
----------------------------------------------------------------------------------------------------------------
Total for OST 0 0
----------------------------------------------------------------------------------------------------------------
FAA
----------------------------------------------------------------------------------------------------------------
2120-AI92 Automatic Dependent Surveillance - ARC Recommenda3,010 2,660
Broadcast (ADS-B) Out 11/08
----------------------------------------------------------------------------------------------------------------
Total for FAA 3,010 2,660
----------------------------------------------------------------------------------------------------------------
FMCSA
----------------------------------------------------------------------------------------------------------------
2126-AA97 National Registry of Certified NPRM 12/08 658 1,014
Medical Examiners
----------------------------------------------------------------------------------------------------------------
2126-AB02 Commercial Driver's Licenses and FR 09/09 30 71
Learner's Permit
----------------------------------------------------------------------------------------------------------------
2126-AB11 Carrier Safety Fitness Determination NPRM 12/08 TBD TBD
----------------------------------------------------------------------------------------------------------------
Total for FMCSA 688 1,085
----------------------------------------------------------------------------------------------------------------
NHTSA
----------------------------------------------------------------------------------------------------------------
2127-AK23 Ejection Mitigation NPRM 04/09 TBD TBD
----------------------------------------------------------------------------------------------------------------
Total for NHTSA 0 0
----------------------------------------------------------------------------------------------------------------
PHMSA
----------------------------------------------------------------------------------------------------------------
2137-AE15 Pipeline Safety: Distribution FR 06/09 1,484 2,691
Integrity Management
----------------------------------------------------------------------------------------------------------------
Total for PHMSA 1,484 2,691
----------------------------------------------------------------------------------------------------------------
TOTAL FOR DOT 5,182 6,436

----------------------------------------------------------------------------------------------------------------
Notes:
Estimated values are shown after rounding to the nearest $1 million and represent discounted present values
assuming a discount rate of 7 percent.
Costs and benefits of rulemakings may be forecast over varying periods. Although the forecast periods will be
the same for any given rulemaking, comparisons between proceedings should be made cautiously.
The Department of Transportation generally assumes that there are economic benefits to avoiding a fatality of
$5.8 million. That economic value is included as part of the benefits estimates shown in the chart. As noted
above, we have made no effort to include the non-quantifiable benefits.

_______________________________________________________________________

DOT--Office of the Secretary (OST)

-----------

PROPOSED RULE STAGE

-----------

90. [rplus]ENHANCING AIRLINE PASSENGER PROTECTIONS

Priority:

Other Significant

Legal Authority:

49 USC 40101; 49 USC 41702; 49 USC 41712

CFR Citation:

14 CFR 234; 14 CFR 253; 14 CFR 259; 14 CFR 399

Legal Deadline:

None

Abstract:

This rulemaking would propose to enhance airline passenger protections
in the following ways: (1) require carriers to adopt contingency plans
for lengthy tarmac delays and to incorporate these plans in their
contracts of carriage, (2) require carriers to respond to consumer
problems, (3) declare the operation of flights that remain chronically
delayed to be an unfair and deceptive practice and an unfair method of
competition, (4) require carriers to publish delay data on their
websites, and (5) require carriers to adopt customer service plans,
incorporate these in their contracts of carriage, and audit their
adherence to their plans.

Statement of Need:

This rule is needed to provide consumers with more information and
protections to minimize the adverse consequences of air travel delays
and cancellations. The Department's Office of the Inspector General has
recommended that the Department take specific action to improve the air
travel environment for passengers and Congress has proposed legislation
to improve airline passenger protections.

Summary of Legal Basis:

The Department has authority and responsibility under 49 USC 41712, in
concert with 49 USC 40101(a)(4) and 40101(a)(9) and 49 USC 41702, to
protect consumer from unfair and deceptive practices and to ensure safe

[[Page 71236]]

and adequate service in air transportation.

Alternatives:

The main alternative would be to take no regulatory action to address
the increasing number of passengers who are dissatisfied with airline
service as a result of recent marathon tarmac waits and the epidemic of
flight delays, and to rely on the airlines to regulate themselves.

Anticipated Cost and Benefits:

The rule is estimated to cost $5.6 million and result in benefits of
$14.1 million per year (at a 7 percent discount rate).

Risks:

The risk of not taking regulatory action would be a continuation of the
dissatisfaction and frustration passengers have with the air travel
environment.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
ANPRM 11/20/07 72 FR 65233
ANPRM Comment Period End 01/22/08
Clarification Concerning
ANPRM 03/05/08 73 FR 11843
NPRM 11/00/08

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Blaine A. Workie
Attorney
Department of Transportation
Office of the Secretary
1200 New Jersey Avenue SE
Washington, DC 20590
Phone: 202 366-9342
TDD Phone: 202-755-7687
Fax: 202 366-7152
Email: [email protected]
RIN: 2105-AD72
_______________________________________________________________________

DOT--Federal Aviation Administration (FAA)

-----------

PROPOSED RULE STAGE

-----------

91. [rplus]AUTOMATIC DEPENDENT SURVEILLANCE--BROADCAST (ADS-B) EQUIPAGE
MANDATE TO SUPPORT AIR TRAFFIC CONTROL SERVICE

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

49 USC 1155; 49 USC 40103; 49 USC 40113; 49 USC 40120; 49 USC 44101; 49
USC 44111; 49 USC 44701; 49 USC 44709; 49 USC 44711; 49 USC 44712; 49
USC 44715; 49 USC 44716; 49 USC 44717; 49 USC 44722; 49 USC 46306; 49
USC 46315; 49 USC 46316; 49 USC 46504; 49 USC 46506 to 46507; 49 USC
47122; 49 USC 47508; 49 USC 47528 to 47531; 49 USC 106(g); Articles 12
and 29 of 61 Stat. 1180

CFR Citation:

14 CFR 91

Legal Deadline:

None

Abstract:

This rulemaking would require Automatic Dependent Surveillance--
Broadcast (ADS-B) Out equipment on aircraft to operate in certain
classes of airspace within the United States National Airspace System.
The rulemaking is necessary to accommodate the expected increase in
demand for air transportation, as described in the Next Generation Air
Transportation System Integrated Plan. The intended effect of this rule
is to provide the Federal Aviation Administration with a comprehensive
surveillance system that accommodates the anticipated increase in
operations and would provide a platform for additional flight
applications and services.

Statement of Need:

Congress has tasked the FAA with creating the Next Generation Air
Transportation System (NextGen) to accommodate the projected increase
in demand for air traffic services. The current FAA surveillance system
will not be able to maintain the same level of service as operations
continue to grow.

Summary of Legal Basis:

This rulemaking is promulgated under the authority described in 49 USC
subtitle VII, part A, subpart I, section 40103, Sovereignty and use of
airspace, and subpart III, section 44701, General requirements. Under
section 40103, the FAA is charged with prescribing regulations on the
flight of aircraft, including regulations on safe altitudes,
navigating, protecting, and identifying aircraft, and the safe and
efficient use of the navigable airspace. Under section 44701, the FAA
is charged with promoting safe flight of civil aircraft in air commerce
by prescribing regulations for practices, methods, and procedures the
Administrator finds necessary for safety in air commerce.

Alternatives:

The FAA considered the following alternatives before proceeding with
this rulemaking:

1. Status quo. The FAA rejected the status quo alternative because the
ground based radars tracking congested flyways and passing information
among the control centers for the duration of the flights is becoming
operationally obsolete. The current system is not efficient enough to
accommodate the estimated increases in air traffic, which would result
in mounting delays or limitations in service for many areas.

2. Multilateration. Multilateration is a separate type of secondary
surveillance system that is not radar and has limited deployment in the
U.S. At a minimum, multilateration requires upwards of four ground
stations to deliver the same volume of coverage and integrity of
information as ADS-B, due to the need to ``triangulate'' the aircraft's
position. Multilateration meets the need for accurate surveillance but
the total life cycle system costs is very high.

3. Exemption to small air carriers. This alternative would mean that
small air carriers would rely on the status quo ground based radars
tracking their flights and passing information among the control
centers for the duration of the flights. This alternative would require
compliance costs to continue for the commissioning of radar sites. Air
traffic controller workload and training costs would increase having to
employ two systems in tracking aircraft. Small entities may request ATC
deviations prior to operating in the airspace affected by this
proposal. It would also be contrary to our policy for one level of
safety in part 121 operations to exclude certain operators simply
because they are small entities.

[[Page 71237]]

Thus, this alternative is not considered to be acceptable.

Anticipated Cost and Benefits:

The estimated cost of this proposed rule ranges from a low of $1.31
billion to a high of $7.51 billion. The estimated quantified potential
benefits of the proposed rule are $8.11 billion and primarily result
from fuel, operating cost and time savings from more efficient flights.
On a present value basis costs range from $1.0 billion to $3.95
billion, with benefits estimated at $2.02 billion (using a 7% discount
rate).

Risks:

The demand for air travel is expected to double within the next 20
years. Current FAA projections are that by 2025, operations will grow
to more than half a million departures and arrivals per year at
approximately 16 additional airports. The present air traffic control
system will be unable to handle this level of growth. Not only will the
current method of handling traffic flow not be able to adapt to the
highest volume and density for future operations, but the nature of the
new growth may be problematic, as future aviation activity will be much
more diverse than it is today. A shift of 2 percent of today's
commercial passengers to very light jets that seat 4-6 passengers would
result in triple the number of flights necessary to carry the same
number of passengers. Furthermore, the challenges grow with the advent
of other non-conventional aircraft, such as the UAS.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 10/05/07 72 FR 56947
NPRM Extension of Comment
Period End 11/19/07 72 FR 64966
NPRM Comment Period End 01/03/08
Extended Comment Period
End 03/03/08
NPRM Comment Period
Reopened 10/02/08 73 FR 57270
Comment Period End 11/03/08

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

None

International Impacts:

This regulatory action will be likely to have international trade and
investment effects, or otherwise be of international interest.

Additional Information:

Project number ATO-06-552-R.

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Vincent Capezzuto
Terminal Program Operations
Department of Transportation
Federal Aviation Administration
800 Independence Avenue, SW
Washington, DC 20591
Phone: 202 385-8637
Email: [email protected]
RIN: 2120-AI92
_______________________________________________________________________

DOT--Federal Motor Carrier Safety Administration (FMCSA)

-----------

PROPOSED RULE STAGE

-----------

92. [rplus]NATIONAL REGISTRY OF CERTIFIED MEDICAL EXAMINERS

Priority:

Other Significant. Major under 5 USC 801.

Unfunded Mandates:

This action may affect the private sector under PL 104-4.

Legal Authority:

Sec. 4116 of PL 109-59 (2005); 49 USC 31136(a); 49 USC 31149(d)

CFR Citation:

49 CFR 390; 49 CFR 391

Legal Deadline:

Final, Statutory, August 10, 2006, Final Rule.

Abstract:

This rulemaking would establish training, testing and certification
standards for medical examiners responsible for certifying that
interstate commercial motor vehicle drivers meet established physical
qualifications standards; provide a database (or National Registry) of
medical examiners that meet the prescribed standards for use by motor
carriers, drivers, and Federal and State enforcement personnel in
determining whether a medical examiner is qualified to conduct
examinations of interstate truck and bus drivers; and require medical
examiners to transmit electronically to FMCSA the name of the driver
and a numerical identifier for each driver that is examined. The
rulemaking would also establish the process by which medical examiners
that fail to meet or maintain the minimum standards would be removed
from the National Registry. This action is in response to section 4116
of Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A
Legacy for Users.

Statement of Need:

In enacting the Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users (SAFETEA-LU) [Pub. L. 109-59, August 10,
2005], Congress recognized the need to improve the quality of the
medical certification of drivers. SAFETEA-LU addresses the requirement
for medical examiners to receive training in physical examination
standards and be listed on a national registry of medical examiners as
one step toward improving the quality of the commercial motor vehicle
(CMV) driver physical examination process and the medical fitness of
CMV drivers to operate CMVs. The safety impact will result from
ensuring that medical examiners have completed training and testing to
demonstrate that they fully understand FMCSA's physical qualifications
standards and are capable of applying those standards consistently,
thereby decreasing the likelihood that a medically unqualified driver
may obtain a medical certificate.

Summary of Legal Basis:

The fundamental legal basis for the NRCME program comes from 49 U.S.C.
31149(d), which requires FMCSA to establish and maintain a current
national registry of medical examiners that are qualified to perform
examinations of CMV drivers and to issue medical certificates. FMCSA is
required to remove from the registry any medical examiner who fails to
meet or maintain qualifications established by FMCSA. In addition, in
developing its regulations, FMCSA must consider both the effect of
driver health on the safety of CMV operations and the effect of such
operations on driver health, 49 U.S.C. 31136(a).

[[Page 71238]]

Alternatives:

The rulemaking is statutorily mandated. Thus, the Agency must establish
the National Registry.

Anticipated Cost and Benefits:

We estimated 10 year costs (discounted at 7 percent) at $586,969,000,
total benefits at $662,130,000, and net benefits over 10 years at
$75,161,000.

Risks:

FMCSA has not yet fully assessed the risks that might be associated
with this activity.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 12/00/08

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

None

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Dr. Mary D. Gunnels
Director, Office of Medical Programs
Department of Transportation
Federal Motor Carrier Safety Administration
1200 New Jersey Avenue SE
Washington, DC 20590
Phone: 202 366-4001
Email: [email protected]
RIN: 2126-AA97
_______________________________________________________________________

DOT--FMCSA

93. [rplus]CARRIER SAFETY FITNESS DETERMINATION

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Unfunded Mandates:

Undetermined

Legal Authority:

Section 4009 of TEA-21; 49 USC 31133; 49 USC 31144

CFR Citation:

49 CFR 385

Legal Deadline:

None

Abstract:

This rulemaking would revise 49 CFR Part 385, Safety Fitness
Procedures, in accordance with the Agency's major new initiative,
Comprehensive Safety Analysis (CSA) 2010. CSA 2010 is a new operational
model FMCSA plans to implement that is designed to help the Agency
carry out its compliance and enforcement programs more efficiently and
effectively. Currently, the safety fitness rating of a motor carrier is
determined based on the results of a very labor intensive compliance
review conducted at the carrier's place of business. Aside from
roadside inspections and new audits, the compliance review is the
Agency's primary intervention. Under CSA 2010, FMCSA would propose to
implement a broader array of progressive interventions, some of which
allow FMCSA to make contact with more carriers. Through this rulemaking
FMCSA would establish safety fitness determinations based on safety
data consisting of crashes, inspections, and violation history rather
than the standard compliance review. This will enable the Agency to
assess the safety performance of a greater segment of the motor carrier
industry with the goal of further reducing large truck and bus crashes
and fatalities.

Statement of Need:

Because of the time and expense associated with the on-site compliance
review, only a small fraction of carriers (approximately 12,000)
receive a safety fitness determination (SFD) each year. Since the
current SFD process is based exclusively on the results of an on site
compliance review, the great majority of carriers subject to FMCSA
jurisdiction do not receive a timely determination of their safety
fitness.

The proposed methodology for determining motor carrier safety fitness
should correct the deficiencies of the current process. In correcting
these deficiencies, FMCSA has made a concerted effort to develop a
``transparent'' method for the SFD that would allow each motor carrier
to understand fully how FMCSA established that carrier's specific SFD.

Summary of Legal Basis:

This rule is based primarily on the authority of 49 U.S.C. 31144, which
directs the Secretary of Transportation to ``determine whether an owner
or operator is fit to operate a commercial motor vehicle'' and to
``maintain by regulation a procedure for determining the safety fitness
of an owner or operator.'' This statute was first enacted as part of
the Motor Carrier Safety Act of 1984, Sec. 215, Pub. L. 98-554, 98
Stat. 2844 (Oct. 30, 1984).

The proposed rule also relies on the provisions of 49 U.S.C. 31133,
which gives the Secretary ``broad administrative powers to assist in
the implementation'' of the provisions of the Motor Carrier Safety Act
now found in chapter 311 of title 49, U.S.C. These powers include,
among others, authority to conduct inspections and investigations,
compile statistics, require production of records and property,
prescribe recordkeeping and reporting requirements and to perform other
acts considered appropriate. These powers are used to obtain the data
used by the Safety Management System and by the proposed new
methodology for safety fitness determinations.

Under 49 CFR 1.73(g), the Secretary has delegated the authority to
carry out the functions in subchapters I, III, and IV of chapter 311,
title 49, U.S.C., to the FMCSA Administrator. Sections 31133 and 31144
are part of subchapter III of chapter 311.

Alternatives:

The Agency has been considering only two alternatives: the no-action
alternative and the proposal.

Anticipated Cost and Benefits:

FMCSA has not yet fully assessed the costs and benefits at this time.

Risks:

FMCSA has not yet fully assessed the risks that might be associated
with this activity.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 12/00/08

Regulatory Flexibility Analysis Required:

Undetermined

Government Levels Affected:

Undetermined

Federalism:

Undetermined

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

[[Page 71239]]

Agency Contact:
David Miller
Regulatory Development Division
Department of Transportation
Federal Motor Carrier Safety Administration
1200 New Jersey Avenue SE
Washington, DC 20590
Phone: 202 366-5011
Email: [email protected]
RIN: 2126-AB11
_______________________________________________________________________

DOT--FMCSA

-----------

FINAL RULE STAGE

-----------

94. [rplus]COMMERCIAL DRIVER'S LICENSE TESTING AND COMMERCIAL LEARNER'S
PERMIT STANDARDS

Priority:

Other Significant

Legal Authority:

Sec. 703 of PL 109-347; 49 USC 31102 and 31136; PL 105-178, 112 Stat.
414 (1998); PL 99-570, title XII, 100 Stat. 3207 (1086); Sec.
4007(a)(1) of PL 102-240, Stat. 1914, 2151; Sec. 4122 of PL 109-59
(2005)

CFR Citation:

49 CFR 380; 49 CFR 383; 49 CFR 384; 49 CFR 385

Legal Deadline:

Final, Statutory, April 13, 2008, Publish Final Rule by April 13, 2008.

The statutory deadline results from section 703 of the SAFE Port Act
(enacted October 13, 2006). The Act requires the Agency to implement
certain statutory provisions within 18 months of enactment.

Abstract:

This rulemaking would establish revisions to the commercial driver's
license knowledge and skills testing standards as required by section
4019 of TEA-21, implement fraud detection and prevention initiatives at
the State driver licensing agencies as required by the SAFE Port Act of
2006, and establish new minimum Federal standards for States to issue
commercial learner's permits (CLPs), based in part on the requirements
of section 4122 of SAFETEA-LU. In addition to ensuring the applicant
has the appropriate knowledge and skills to operate a commercial motor
vehicle, this rule would establish the minimum information that must be
on the CLP document and the electronic driver's record. The rule would
also establish maximum issuance and renewal periods, establish a
minimum age limit, address issues related to a driver's State of
Domicile, and incorporate previous regulatory guidance into the Federal
regulations. This rule would also address issues raised in the SAFE
Port Act.

Statement of Need:

This proposed rule would create a Federal requirement for a commercial
learner's permit (CLP) as a pre-condition for a commercial driver's
license (CDL) and make a variety of other changes to enhance the CDL
program. This would help to ensure that drivers who operate CMVs are
legally licensed to do so and that they do not operate CMVs without
having passed the requisite tests.

Summary of Legal Basis:

The Commercial Motor Vehicle Safety Act of 1986 (CMVSA) (Pub. L. 99-
570, title XII, 100 Stat. 3207-170; 49 U.S.C. chapter 313); section
4122 of the Safe, Accountable, Flexible, Efficient Transportation
Equity Act--A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, 119 Stat.
1144, at 1734; 49 U.S.C. 31302, 31308, and 31309); and section 703 of
the Security and Accountability For Every Port Act of 2006 (SAFE Port
Act) (Pub. L. 109-347, 120 Stat. 1884, at 1944). It is also based in
part on the Motor Carrier Safety Act of 1984 (MCSA) (Pub. L. 98-554,
title II, 98 Stat. 2832; 49 U.S.C. 31136, and the safety provisions of
the Motor Carrier Act of 1935 (MCA) (ch. 498, 49 Stat. 543, codified at
49 U.S.C. 31502).

Alternatives:

There are 17 issues described in this rulemaking document and several
alternatives were considered for each.

Anticipated Cost and Benefits:

We estimate 10-year costs (discounted at 7%) at $25,836,000, total
benefits at $95,913,000, and net benefits over 10 years at $70,076,000.

Risks:

FMCSA has not yet fully assessed the risks that might be associated
with this activity.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 04/09/08 73 FR 19282
NPRM Comment Period End 06/09/08
NPRM Comment Period
Extended 06/09/08 73 FR 32520
Second NPRM Comment
Period End 07/09/08
Final Rule 09/00/09

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses, Governmental Jurisdictions

Government Levels Affected:

State

Federalism:

This action may have federalism implications as defined in EO 13132.

Additional Information:

Docket ID FMCSA-2007-27659

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Robert Redmond
Senior Transportation Specialist
Department of Transportation
Federal Motor Carrier Safety Administration
1200 New Jersey Avenue, SE.
Washington, DC 20590
Phone: 202-366-5014
Email: [email protected]
Related RIN: Related to 2126-AB00
RIN: 2126-AB02
_______________________________________________________________________

DOT--National Highway Traffic Safety Administration (NHTSA)

-----------

PROPOSED RULE STAGE

-----------

95. [rplus]EJECTION MITIGATION

Priority:

Economically Significant. Major under 5 USC 801.

Unfunded Mandates:

This action may affect the private sector under PL 104-4.

Legal Authority:

49 USC 30111; 49 USC 30115; 49 USC 30117; 49 USC 30166; 49 USC 322;
delegation of authority at 49 CFR 1.50

CFR Citation:

Not Yet Determined

[[Page 71240]]

Legal Deadline:

Final, Statutory, October 1, 2009, Final Rule.

Abstract:

This rulemaking would create a new Federal Motor Vehicle Safety
Standard (FMVSS) for reducing occupant ejection. Currently, there are
over 52,000 annual ejections in motor vehicle crashes, and over 10,000
ejected fatalities per year. This rulemaking would propose new
requirements for reducing occupant ejection through passenger vehicle
side widows. The requirement would be an occupant containment
requirement on the amount of allowable excursion through passenger
vehicle side windows. The SAFETEA-LU legislation requires that: ``[t]he
Secretary shall also initiate a rulemaking proceeding to establish
performance standards to reduce complete and partial ejections of
vehicle occupants from outboard seating positions. In formulating the
standards the Secretary shall consider various ejection mitigation
systems. The Secretary shall issue a final rule under this paragraph no
later than October 1, 2009.''

Statement of Need:

The agency's annualized injury data from 1997 to 2005 show that there
are 6,174 fatalities and 5,271 Maximum Abbreviated Injury Scale (MAIS)
3+ non-fatal serious injuries for occupants partially and completely
ejected through side windows in vehicles with a gross vehicle weight
rating (GVWR) less than 4,536 kg (10,000 lbs.). Sixty-five percent of
the fatalities and 78 percent of the serious injuries are from
ejections that involve a rollover as part of the crash event.

Summary of Legal Basis:

Section 30111, Title 49 of the USC, states that the Secretary shall
prescribe motor vehicle safety standards. Section 10301 of the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETEA-LU) requires the Secretary to issue by October 1,
2009, an ejection mitigation final rule reducing complete and partial
ejections of occupants from outboard seating positions.

Alternatives:

The agency is not pursuing any alternatives to reduce side window
ejections of light vehicle occupants other than establishing FMVSS No.
226.

Anticipated Cost and Benefits:

The agency is reducing the population of partial and complete side
window ejections through a series of rulemaking actions. These actions
included adding a pole impact upgrade to FMVSS No. 214 -- Side Impact
Protection (72 FR 51908) and promulgating FMVSS No. 126 -- Electronic
Stability Control Systems (72 FR 17236). We estimate that promulgating
FMVSS No. 226 will reduce the remaining population of ejection
fatalities and serious injuries by 406 and 318, respectively. The cost
per equivalent fatality at a seven percent discount rate is estimated
to be $2.0 million.

Risks:

The agency believes there are no substantial risks to this rulemaking,
and that only beneficial outcomes will occur as the industry moves to
reduce side window ejections of light vehicle occupants.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 04/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

International Impacts:

This regulatory action will be likely to have international trade and
investment effects, or otherwise be of international interest.

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Louis Molino
Safety Standards Engineer
Department of Transportation
National Highway Traffic Safety Administration
1200 New Jersey Avenue, SE
Washington, DC 20590
Phone: 202-366-1833
Fax: 202-366-4329
Email: [email protected]
RIN: 2127-AK23
_______________________________________________________________________

DOT--Pipeline and Hazardous Materials Safety Administration (PHMSA)

-----------

FINAL RULE STAGE

-----------

96. [rplus]PIPELINE SAFETY: DISTRIBUTION INTEGRITY MANAGEMENT

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

49 USC 5103; 49 USC 60102; 49 USC 60104; 49 USC 60108 to 60110; 49 USC
60113; 49 USC 60118; 49 CFR 1.53

CFR Citation:

49 CFR 192

Legal Deadline:

None

Abstract:

This rulemaking would establish integrity management program
requirements appropriate for gas distribution pipeline operators. This
rulemaking would require gas distribution pipeline operators to develop
and implement programs to better assure the integrity of their pipeline
systems.

Statement of Need:

This rule is necessary to comply with a Congressional mandate and to
enhance safety by managing and reducing risks associated with gas
distribution pipeline systems.

Summary of Legal Basis:

The Pipeline Inspection, Protection, Enforcement and Safety Act of 2006
(Public Law No. 109-468), requires PHMSA to prescribe minimum standards
for integrity management programs for gas distribution pipelines.

Alternatives:

PHMSA considered the following alternatives:

--No Action: No new requirements would be levied.

--Apply existing gas transmission pipeline IMP regulations to gas
distribution pipelines.

--Model State legislation by imposing requirements on excavators and
others outside the regulatory jurisdiction of pipeline safety
authorities.

[[Page 71241]]

--Develop guidance documents for adoption by states with the intent of
states mandating use of the guidance.

--Implement prescriptive Federal regulations, specifying in detail,
actions that must be taken to assure distribution pipeline integrity.

--Implement risk-based, flexible, performance-oriented Federal
regulations, establishing high-level elements that must be included in
integrity management programs--the alternative selected.

Anticipated Cost and Benefits:

The monetized benefits resulting from the rulemaking are estimated to
be $214 million per year. The costs of the rulemaking are estimated to
be $155.1 million in the first year and $104.1 million in each
subsequent year.

Risks:

These regulations will require operators to analyze their pipelines,
including unique situations; identify the factors that affect risk,
both risk to the pipeline and the risks posed by the pipeline; and
manage those factors.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 06/25/08 73 FR 36015
NPRM Comment Period End 09/23/08
NPRM Extension of Comment
Period 09/12/08 73 FR 52938
NPRM Extended Comment
Period End 10/23/08
Final Rule 06/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Businesses

Government Levels Affected:

None

Additional Information:

Docket Nos. PHMSA-04-18938 and PHMSA-04-19854.

URL For More Information:
www.regulations.gov

URL For Public Comments:
www.regulations.gov

Agency Contact:
Mike Israni
General Engineer
Department of Transportation
Pipeline and Hazardous Materials Safety Administration
1200 New Jersey Avenue SE.
Washington, DC 20590
Phone: 202 366-4571
Email: [email protected]
RIN: 2137-AE15
BILLING CODE 4910-9X-S

[[Page 71242]]

DEPARTMENT OF THE TREASURY (TREAS)

Statement of Regulatory Priorities
The primary missions of the Department of the Treasury are:
To promote prosperous and stable American and world economies,
including promoting domestic economic growth and
maintaining our Nation's leadership in global economic
issues, supervising national banks and thrift institutions,
and helping to bring residents of distressed communities
into the economic mainstream.
To manage the Government's finances by protecting the revenue
and collecting the correct amount of revenue under the
Internal Revenue Code, overseeing customs revenue
functions, financing the Federal Government and managing
its fiscal operations, and producing our Nation's coins and
currency.
To safeguard the U.S. and international financial systems from
those who would use these systems for illegal purposes or
to compromise U.S. national security interests, while
keeping them free and open to legitimate users.
Consistent with these missions, most regulations of the Department and
its constituent bureaus are promulgated to interpret and implement the
laws as enacted by the Congress and signed by the President. It is the
policy of the Department to comply with the requirement to issue a
notice of proposed rulemaking and carefully consider public comments
before adopting a final rule. Also, in particular cases, the Department
invites interested parties to submit views on rulemaking projects while
a proposed rule is being developed.
In response to the events of September 11, 2001, the President signed
the USA PATRIOT Act of 2001 into law on October 26, 2001. Since then,
the Department has accorded the highest priority to developing and
issuing regulations to implement the provisions in this historic
legislation that target money laundering and terrorist financing. These
efforts, which will continue during the coming year, are reflected in
the regulatory priorities of the Financial Crimes Enforcement Network
(FinCEN).
To the extent permitted by law, it is the policy of the Department to
adhere to the regulatory philosophy and principles set forth in
Executive Order 12866, and to develop regulations that maximize
aggregate net benefits to society while minimizing the economic and
paperwork burdens imposed on persons and businesses subject to those
regulations.
Emergency Economic Stabilization Act
On October 3, 2008, the President signed the Emergency Economic
Stabilization Act of 2008 (EESA) (Pub. L. 110-334). Section 101(a) of
EESA authorizes the Secretary of the Treasury to establish a Troubled
Assets Relief Program (TARP) to ``purchase, and to make and fund
commitments to purchase, troubled assets from any financial
institution, on such terms and conditions as are determined by the
Secretary, and in accordance with this Act and policies and procedures
developed and published by the Secretary.''
EESA provides authority to issue regulations and guidance to implement
the program. Regulations and guidance required by EESA include
conflicts of interest, executive compensation, and tax guidance. The
Secretary is also charged with establishing a program that will
guarantee principal of, and interest on, troubled assets originated or
issued prior to March 14, 2008.
To date, the Department has issued guidance and regulations and will
continue to provide program information through the next year. In
October 2008, the Department issued an interim final rule that set
forth executive compensation guidelines for the TARP Capital Purchase
Program (73 FR 62205). Related tax guidance on executive compensation
was announced in IRS Notice 2008-94. In addition, among other EESA tax
guidance, the IRS issued interim guidance regarding loss corporation
and ownership changes in Notice 2008-100, providing that any shares of
stock owned by the Department of the Treasury under the Capital
Purchase Program will not be considered to cause Treasury's ownership
in such corporation to increase. On October 14, 2008, the Department
released a request for public input on an insurance program for
troubled assets.
During the remainder of Fiscal Year 2009, the Department will continue
implementing the EESA authorities to restore capital flows to the
consumers and businesses that form the core of the nation's economy.
Terrorism Risk Insurance Program Office
On November 26, 2002, the President signed into law the Terrorism Risk
Insurance Act of 2002 (TRIA). The new law, which was enacted as a
consequence of the events of September 11, 2001, established a
temporary Federal reinsurance program under which the Federal
Government shares the risk of losses associated with certain types of
terrorist acts with commercial property and casualty insurers. The Act,
originally scheduled to expire on December 31, 2005, was extended to
December 31, 2007 by the Terrorism Risk Insurance Extension Act of 2005
(TRIEA). The Act has since been extended to December 31, 2014, by the
Terrorism Risk Insurance Program Reauthorization Act of 2007 (TRIPRA).
The Office of the Assistant Secretary for Financial Institutions is
responsible for developing and promulgating regulations implementing
TRIA, as extended and amended by TRIEA and TRIPRA. The Terrorism Risk
Insurance Program Office, which is part of the Office of the Assistant
Secretary for Financial Institutions, is responsible for operational
implementation of TRIA. The purposes of this legislation are to address
market disruptions, ensure the continued widespread availability and
affordability of commercial property and casualty insurance for
terrorism risk, and to allow for a transition period for the private
markets to stabilize and build capacity while preserving State
insurance regulation and consumer protections.
Over the past year, the Office of the Assistant Secretary has issued
guidance implementing changes authorized by TRIPRA. In addition, the
following priority regulation projects should be published by December
31, 2008:
Terrorism Risk Insurance Program Reauthorization Act
Implementation. This interim rule will implement certain
aspects of TRIPRA (the Reauthorization Act) including
mandatory availability, disclosure requirements, and
conforming changes.
Recoupments of Federal Share of Compensation for Insured
Losses. This proposed rule would implement and establish
requirements for determining amounts to be recouped and for
procedures insurers are to use for collecting terrorism
policy surcharges and remitting them to the Treasury.
Cap on Annual Liability and Pro Rata Share of Insured Losses.
This

[[Page 71243]]

proposed rule would establish, for purposes of the $100
billion cap on annual liability, how Treasury will
determine whether aggregate insured losses will exceed $100
billion and, if so, how Treasury will determine the pro
rata share of insured losses to be paid by each insurer
that incurs insured losses under the Program.
During 2009, Treasury will continue the ongoing work of implementing
TRIA and revising operations as a result of the TRIPRA related
regulation changes.
Customs Revenue Functions
On November 25, 2002, the President signed the Homeland Security Act
of 2002 (the Act), establishing the Department of Homeland Security
(DHS). The Act transferred the United States Customs Service from the
Department of the Treasury to the DHS, where it is was known as the
Bureau of Customs and Border Protection (CBP). Effective March 31,
2007, DHS changed the name of the Bureau of Customs and Border
Protection to the U.S. Customs and Border Protection (CBP) pursuant to
section 872(a)(2) of the Act (6 USC 452(a)(2)) in a Federal Register
notice (72 FR 20131) published on April 23, 2007. Notwithstanding the
transfer of the Customs Service to DHS, the Act provides that the
Secretary of the Treasury retains sole legal authority over the customs
revenue functions. The Act also authorizes the Secretary of the
Treasury to delegate any of the retained authority over customs revenue
functions to the Secretary of Homeland Security. By Treasury Department
Order No. 100-16, the Secretary of the Treasury delegated to the
Secretary of Homeland Security authority to prescribe regulations
pertaining to the customs revenue functions. This Order further
provided that the Secretary of the Treasury retained the sole authority
to approve any such regulations concerning import quotas or trade bans,
user fees, marking, labeling, copyright and trademark enforcement, and
the completion of entry or substance of entry summary including duty
assessment and collection, classification, valuation, application of
the U.S. Harmonized Schedules, eligibility or requirements for
preferential trade programs and the establishment of recordkeeping
requirements relating thereto.
During the past fiscal year, among the Treasury- retained CBP customs-
revenue function regulations issued were final rules adopting the
interim regulations which implemented the preferential trade benefit
provisions of the United States - Jordan Free Trade Agreement
Implementation Act, the United States - Bahrain Free Trade Agreement
Implementation Act and the United States - Morocco Free Trade Agreement
Implementation Act. CBP also published an interim rule regarding the
implementation of the preferential tariff treatment and other customs-
related provisions of the Dominican Republic-Central America-United
States Free Trade Agreement (also known as ``CAFTA-DR''). In addition,
during the past fiscal year, CBP amended the regulations on an interim
basis to implement the duty-free provisions of the Haitian Hemispheric
Opportunity Through Partnership Encouragement Act of 2006 (the ``HOPE
I'') Act of 2006 which concerned the extension of certain trade
benefits to Haiti in the Tax Relief and Health Care Act of 2006. As a
result of the changes necessitated by enactment of the Haitian
Hemispheric Opportunity through Partnership Encouragement (``HOPE II'')
Act of 2008 which is contained in the recent Food, Conservation and
Energy Act of 2008 (commonly referred to as the ``Farm Bill''
legislation), CBP published in one final rule both the HOPE I Act and
the HOPE II Act on September 30, 2008, the statutory deadline.
During this past year, CBP also finalized its interim regulations,
which established special entry requirements applicable to shipments of
softwood lumber products from Canada for purposes of monitoring the
2006 Softwood Lumber Agreement between the Governments of Canada and
the United States. As a result of the Softwood Lumber Act of 2008,
which is also part of the recent ``Farm Bill'' legislation, CBP
published implementing interim regulations which prescribe special
entry requirements as well as an importer declaration program
applicable to certain softwood lumber (SWL) and SWL products exported
from any country into the United States.
During fiscal year 2009, CBP and Treasury plan to give priority to the
following regulatory matters involving the customs revenue functions
not delegated to DHS:
Trade Act of 2002. Treasury and CBP plan to finalize several
interim regulations that implement the trade benefit
provisions of the Trade Act of 2002 including the Caribbean
Basin Economic Recovery Act and the African Growth and
Opportunity Act.
Preferential trade benefit provisions. Treasury and CBP also
plan to finalize interim regulations this fiscal year to
implement the preferential trade benefit provisions of the
United States-Singapore Free Trade Agreement Implementation
Act and the Dominican Republic -- Central America -- United
States Free Trade Agreement (CAFTA-DR) Implementation Act.
United States-Australia Free Trade Agreement. Treasury and CBP
expect to issue interim regulations implementing the United
States-Australia Free Trade Agreement Implementation Act
Country of Origin of Textile and Apparel Products. Treasury
and CBP also plan to publish a final rule adopting an
interim rule that was published on the Country of Origin of
Textile and Apparel Products, which implemented the changes
brought about, in part, by the expiration of the Agreement
on Textile and Clothing and the resulting elimination of
quotas on the entry of textile and apparel products from
World Trade Organizations (WTO) members.
North American Free Trade Agreement country of origin rules.
Treasury and CBP plan to finalize a proposal, which was
published in July 2008 seeking public comment regarding
uniform rules governing the determination of the country of
origin of imported merchandise. These uniform rules would
extend the application of the North American Free Trade
Agreement country of origin rules to all trade if this
proposal is finalized.
Customs Modernization provisions of the North American Free
Trade Implementation Act (Customs Mod Act). Treasury and
CBP also plan to continue moving forward with amendments to
improve its regulatory procedures began under the authority
granted by the Customs Mod Act. These efforts, in
accordance with the principles of Executive Order 12866,
have involved and will continue to involve significant
input from the importing public. CBP will also continue to
test new programs to see if they work before proceeding
with proposed rulemaking to establish permanently the
programs. Consistent with this practice, we expect to
finalize a proposal to establish permanently the remote
location filing program, which has been a test program
under the Customs Mod Act. This rule would allow remote
location filing of electronic entries of merchandise from a
location other

[[Page 71244]]

than where the merchandise will arrive.
Community Development Financial Institutions Fund
The Community Development Financial Institutions Fund (Fund) was
established by the Community Development Banking and Financial
Institutions Act of 1994 (12 U.S.C. 4701 et seq.). The primary purpose
of the Fund is to promote economic revitalization and community
development through the following programs: the Community Development
Financial Institutions (CDFI) Program, the Bank Enterprise Award (BEA)
Program, the Native American CDFI Assistance (NACA) Program, and the
New Markets Tax Credit (NMTC) Program.
In fiscal year (FY) 2009, subject to funding availability, the Fund
will provide the following financial assistance awards and technical
assistance grants through the CDFI Program.
Native American CDFI Assistance (NACA) Program. Through the
NACA Program, subject to funding availability, the Fund
will provide technical assistance grants and financial
assistance awards to promote the development of CDFIs that
serve Native American, Alaska Native, and Native Hawaiian
communities. In FY 2009, the Fund expects to revise the
CDFI Program regulations to include certain programmatic
policy changes and application processing streamlining
efforts.
Bank Enterprise Award (BEA). Subject to funding availability
for the BEA Program, the Fund will provide financial
incentives to encourage insured depository institutions to
engage in eligible development activities and to make
equity investments in CDFIs. In FY 2009, the Fund expects
to revise the BEA Program regulations to include certain
new programmatic policy changes and application processing
streamlining efforts.
New Markets Tax Credit (NMTC). Through the NMTC Program, the
CDFI Fund will provide allocations of tax credits to
qualified community development entities (CDEs). The CDEs
in turn provide tax credits to private sector investors in
exchange for their investment dollars; investment proceeds
received by the CDEs are be used to make loans and equity
investments in low-income communities. The Fund administers
the NMTC Program in coordination with the Office of Tax
Policy and the Internal Revenue Service.
Financial Crimes Enforcement Network
As chief administrator of the Bank Secrecy Act (BSA), FinCEN's
regulations constitute the core of the Department's anti-money
laundering and counter terrorism financing programmatic efforts.
FinCEN's responsibilities and objectives are linked to, and flow from,
that role. In fulfilling this role, FinCEN seeks to enhance U.S.
national security by making the financial system increasingly resistant
to abuse by money launderers, terrorists and their financial
supporters, and other perpetrators of crime.
The Secretary of the Treasury, through FinCEN, is authorized by the
BSA to issue regulations requiring financial institutions to file
reports and keep records that are determined to have a high degree of
usefulness in criminal, tax, or regulatory matters, or in the conduct
of intelligence or counter-intelligence activities to protect against
international terrorism. Those regulations also require designated
financial institutions to establish anti-money laundering programs and
compliance procedures. To implement and realize its mission, FinCEN has
established regulatory objectives and priorities to safeguard the
financial system from the abuses of financial crime, including
terrorist financing, money laundering, and other illicit activity.
These objectives and priorities include: (1) issuing, interpreting, and
enforcing compliance with regulations implementing the BSA; (2)
supporting, working with, and, as appropriate, overseeing compliance
examination functions delegated to other Federal regulators; (3)
managing the collection, processing, storage, and dissemination of data
related to the BSA; (4) maintaining a Government-wide access service to
that same data, and for network users with overlapping interests; (5)
conducting analysis in support of policymakers, law enforcement,
regulatory and intelligence agencies, and the financial sector; and (6)
coordinating with and collaborating on anti-terrorism and anti-money
laundering initiatives with domestic law enforcement and intelligence
agencies, as well as foreign financial intelligence units.
During fiscal year 2008, FinCEN issued the following final rules: a
final rule updating the list of financial institutions exempt from
establishing anti-money laundering programs to reflect previous actions
with regard to mutual funds and insurance companies; withdrawals of the
proposed rulemakings against one jurisdiction and one foreign financial
institution deemed to be of primary money laundering concern pursuant
to section 311 of the USA PATRIOT Act; and a renewal of a rule without
change imposing special measures against a foreign financial
institution deemed to be of primary money laundering concern pursuant
to section 311 of the USA PATRIOT Act. FinCEN issued 10 Administrative
Rulings and 10 written guidance pieces (as of August 2008) interpreting
the BSA and providing clarity to regulated industries.
In addition, FinCEN has been working on the following initiatives that
should be issued in September 2008, or (if not) prior to December 31,
2008:
Currency Transaction Reporting Exemptions. FinCEN published a
notice of proposed rulemaking in the Federal Register on
April 23, 2008 that would simplify the existing currency
transaction reporting exemption regulatory requirements.
The amendments were recommended by the Government
Accountability Office in GAO-08-355. By simplifying the
regulatory requirements regarding CTR exemptions, FinCEN
believes that more depository institutions will avail
themselves of the exemptions. FinCEN intends to finalize
the notice of proposed rulemaking prior to September 30,
2008.
Reorganization of BSA Rules. As part of Secretary Paulson's
BSA Effectiveness and Efficiency initiative, FinCEN is
proposing to re-designate and reorganize the BSA
regulations in a new chapter within the Code of Federal
Regulations. The re-designation and reorganization of the
regulations in a new chapter is not intended to alter
regulatory requirements. The regulations will be organized
in a more consistent and intuitive structure that more
easily allows financial institutions to identify their
specific regulatory requirements under the BSA. The new
chapter will replace 31 CFR Part 103. FinCEN intends to
issue the proposal prior to December 31, 2008.
Money Services Businesses. Also as part of Secretary Paulson's
BSA Effectiveness and Efficiency initiative, FinCEN intends
to issue a notice of proposed rulemaking addressing
definitional thresholds for Money

[[Page 71245]]

Services Businesses (MSBs), incorporating previously issued
Administrative Rules and guidance with regard to MSBs, and
addressing the issue of foreign-located MSBs. In addition,
FinCEN intends to issue an advance notice of proposed
rulemaking concerning MSB agents. FinCEN intends to issue
the proposal and advance notice prior to December 31, 2008.
Confidentiality of Suspicious Activity Reports. FinCEN intends
to issue a notice of proposed rulemaking clarifying the
non-disclosure provisions with respect to the existing
regulations pertaining to the confidentiality of suspicious
activity reports. FinCEN intends to issue the proposal
prior to December 31, 2008.
Mutual Funds. FinCEN intends to issue a notice of proposed
rulemaking addressing the definition of financial
institution in the BSA's implementing regulations to
include open-end investment companies (mutual funds).
Despite the fact that mutual funds are already required to
comply with anti-money laundering and customer
identification program requirements, file Suspicious
Activity Reports, comply with due diligence obligations
pursuant to rules implementing section 312 of the USA
PATRIOT Act, and perform other BSA compliance functions, a
mutual fund is not designated as a `financial institution'
under the BSA implementing regulations. The proposed rule
would address obligations to file Currency Transaction
Reports for cash transactions over $10,000 vis-[agrave]-vis
obligations to file Form 8300s. FinCEN intends to issue the
proposal prior to December 31, 2008.
Withdrawal of Proposed Rules. FinCEN plans to withdraw the
proposed rules (issued in 2002 and 2003) for investment
advisers, commodity trading advisors, and unregistered
investment companies. Withdrawing the proposed rules will
eliminate uncertainty associated with the existence of out-
of-date proposed rules. It will also allow FinCEN to issue
new notices of proposed rulemaking at a later date that
take into account industry regulatory developments with
respect to investment advisers, commodity trading advisors,
and unregistered investment companies since 2003. FinCEN
intends to withdraw the proposals prior to December 31,
2008.
FinCEN's regulatory priorities for fiscal year 2009 include concluding
any of the initiatives mentioned above that are not concluded as of
September 30, 2008, as well as the following projects:
Anti-Money Laundering Programs. Pursuant to section 352 of the
USA PATRIOT Act, certain financial institutions are
required to establish anti-money laundering programs.
FinCEN will propose rulemaking to require state-chartered
credit unions and other depository institutions without a
federal functional regulator to implement anti-money
laundering programs. FinCEN expects to finalize the anti-
money laundering program rule for dealers in precious
metals, precious stones, or jewels. FinCEN will continue to
research and analyze issues regarding potential regulation
of the loan and finance industry (including pawnbrokers).
Finally, FinCEN also will continue to consider regulatory
options regarding certain corporate and trust service
providers.
Regulatory Framework for Stored Value. FinCEN will evaluate
the current regulatory framework for stored value to take
into consideration the development and use of these
products, which has grown significantly over the last 10
years. Currently, issuers, sellers, and redeemers of stored
value are subject to a less comprehensive BSA/AML regime
than are other actors falling within the scope of FinCEN's
regulations. Suspicious activity is not reported and the
lack of transparency inherent in many products makes it
difficult to assess the money laundering risks and abuses.
FinCEN will explore options to address the existing
vulnerabilities without impeding continued development of
the industry and without imposing competitive
disadvantages.
Other Requirements. FinCEN will consider the need for regulatory
action in conjunction with the feasibility study prepared pursuant to
the Intelligence Reform and Terrorism Prevention Act of 2004 concerning
the issue of obtaining information about certain cross-border funds
transfers and transmittals of funds. FinCEN also will continue to issue
proposed and final rules pursuant to Section 311 of the USA PATRIOT
Act, as appropriate. Finally, FinCEN expects to propose various
technical and other regulatory amendments in conjunction with its
ongoing, comprehensive review of existing regulations to enhance
regulatory efficiency.
Internal Revenue Service
The Internal Revenue Service (IRS), working with the Office of the
Assistant Secretary (Tax Policy), promulgates regulations that
interpret and implement the Internal Revenue Code and related tax
statutes. The purpose of these regulations is to carry out the tax
policy determined by Congress in a fair, impartial, and reasonable
manner, taking into account the intent of Congress, the realities of
relevant transactions, the need for the Government to administer the
rules and monitor compliance, and the overall integrity of the Federal
tax system. The goal is to make the regulations practical and as clear
and simple as possible.
Most Internal Revenue Service regulations interpret tax statutes to
resolve ambiguities or fill gaps in the tax statutes. This includes
interpreting particular words, applying rules to broad classes of
circumstances, and resolving apparent and potential conflicts between
various statutory provisions.
During fiscal year 2009, the Internal Revenue Service will accord
priority to the following regulatory projects:
Unified Rule for Loss on Subsidiary Stock. Prior to the
opinion in Rite Aid Corp. v. United States, 255 F.3d 1357
(2001), Treas. Reg. Sec. 1.1502-20 (the loss disallowance
rule or LDR) addressed both noneconomic and duplicated loss
on subsidiary stock by members of consolidated groups. In
Rite Aid, the Federal Circuit rejected the validity of the
duplicated loss component of the LDR. Following Rite Aid,
the IRS and Treasury issued temporary regulations, Treas.
Reg. Sec. Sec. 1.337(d)-2T (to address noneconomic loss on
subsidiary stock) and 1.1502-35T (to address loss
duplication within consolidated groups). The regulations
were promulgated as an interim measure to address both
concerns while a broader study of the issues was conducted.
Both regulations were finalized, but the preamble to each
regulation alerted taxpayers of the ongoing nature of the
study and the intent to propose a new approach to both
issues. In January 2007, the IRS and Treasury proposed
regulations that addressed noneconomic and duplicated stock
loss, as well as certain related issues presented by the
investment adjustment system. During fiscal year 2009, the
IRS and Treasury intend to finalize those regulations.
Issue Price and Treatment of Qualified Hedges for a Tax-Exempt

[[Page 71246]]

Bond Issue. The arbitrage rules under section 148 generally
prohibit issuers of tax-exempt bonds from investing the
proceeds of those bonds in investments with a yield that is
materially higher than the bond yield. The yield on the
bonds is calculated using the issue price of the bonds,
which, in the case of publicly offered bonds, is based upon
the amount received from the sale of the bonds to the
public. Questions have arisen regarding the definition of
issue price, including whether sales to certain parties are
sales to the public for this purpose. The issue price
definition broadly affects all issuers of tax-exempt bonds.
Further, issuers often enter into qualified hedges, the
payments for and receipts from which are integrated with
the payments for and receipts from the bonds in calculating
the bond yield. Due to the restructuring or refunding of
auction rate bonds, many of these hedges have been
terminated or deemed to be terminated. The industry is
uncertain as to how the arbitrage rules under section 148
apply to these terminations. During fiscal year 2009, the
IRS and Treasury intend to issue proposed regulations to
clarify the definition of issue price, to clarify the
treatment of hedge terminations under the qualified hedging
rules, and to clarify and simplify selected other aspects
of the arbitrage regulations.
Financial Instruments and Products. In February 2004, the IRS
and Treasury issued proposed regulations regarding (i) the
timing of income or deduction of contingent nonperiodic
payments on notional principal contracts, and (ii) the
character of payments made pursuant to notional principal
contracts and other financial transactions. In July 2004,
the IRS and Treasury released Notice 2004-52, requesting
comments and information with respect to transactions
frequently referred to as credit default swaps. On December
7, 2007, the IRS and Treasury released Notice 2008-2,
requesting comments and information with respect to
transactions frequently referred to as prepaid forward
contracts. The IRS and Treasury intend to finalize the
regulations proposed in 2004 and issue other guidance
relating to credit default swaps and prepaid forward
contracts, in light of comments received.
Deduction and Capitalization of Costs for Tangible Assets.
Section 162 of the Internal Revenue Code allows a current
deduction for ordinary and necessary expenses paid or
incurred in carrying on any trade or business. Under
section 263(a) of the Code, no immediate deduction is
allowed for amounts paid out for new buildings or for
permanent improvements or betterments made to increase the
value of any property or estate. Those expenditures are
capital expenditures that generally may be recovered only
in future taxable years, as the property is used in the
taxpayer's trade or business. It often is not clear whether
an amount paid to acquire, produce, or improve property is
a deductible expense or a capital expenditure. Although
existing regulations provide that a deductible repair
expense is an expenditure that does not materially add to
the value of the property or appreciably prolong its life,
the IRS and Treasury believe that additional clarification
is needed to reduce uncertainty and controversy in this
area. In August 2006, the IRS and Treasury issued proposed
regulations in this area and received numerous comments. In
March 2008, the IRS and Treasury withdrew the 2006 proposed
regulations and issued new proposed regulations, which have
generated relatively few comments. In fiscal year 2009, the
IRS and Treasury intend to finalize those regulations.
Transfer Pricing Initiatives. In August 2005, the IRS and
Treasury issued proposed regulations providing guidance on
``cost sharing arrangements,'' where related parties agree
to share the costs and risks of intangible development in
proportion to their reasonable expectations of their share
of anticipated benefits from their separate exploitation of
the developed intangibles. The proposed regulations are
designed to prevent abuses possible under the existing
rules, and to ensure that Congressional intent underlying
section 482 of the Internal Revenue Code is fulfilled by
requiring that cost sharing arrangements between controlled
taxpayers produce results consistent with the arm's length
standard. In August 2006, the IRS and Treasury issued
temporary regulations that provide guidance regarding the
treatment of controlled services transactions under section
482 and the allocation of income from intangibles, in
particular with respect to contributions by a controlled
party to the value of an intangible owned by another
controlled party. The regulations provide much-needed
guidance on the transfer pricing methods to determine the
arm's length price in a services transaction, including a
new method that allows routine back-office services to be
charged at cost with no markup. As part of a continuing
effort to modernize the transfer pricing rules to keep them
current with changing business practices, the IRS and
Treasury intend to finalize both the cost-sharing and
services regulations during fiscal year 2009. The IRS and
Treasury also intend to issue proposed regulations
addressing the source and allocation of income and expense
related to the operation of a global dealing operation.
Foreign Tax Credit. In April 2006, the IRS and Treasury issued
temporary regulations addressing the elimination of the
separate foreign tax credit category for so-called 10-50
companies. In August 2006, the IRS and Treasury issued
proposed regulations to clarify who is considered to pay
foreign tax for purposes of determining the foreign tax
credit. On July 16, 2008, the IRS and Treasury issued
temporary regulations relating to the determination of the
amount of taxes paid for purposes of the foreign tax
credit. The IRS and Treasury intend to finalize all of
these regulations during fiscal year 2009. In addition, the
IRS and Treasury intend to continue issuing regulations and
other guidance implementing provisions of the American Jobs
Creation Act, including section 901(l), which relates to
minimum withholding taxes on gain and income other than
dividends.
Subpart F Anti-deferral Regime Initiatives. On February 27,
2008, the IRS and Treasury issued proposed regulations that
addressed the use of contract manufacturing arrangements
under the foreign base company sales income rules. The
proposed regulations would update regulations that have
been in effect since 1964, a time when the subpart F issues
raised by cross-border manufacturing were significantly
different than they are today. The IRS and Treasury intend
to finalize these regulations during fiscal year 2009. In
January 2007, the IRS and Treasury issued Notice 2007-13,
which announced that the IRS and Treasury will amend the
foreign base company services rules to limit the definition
of substantial assistance. During fiscal year 2009, the IRS
and Treasury intend to issue proposed regulations that will
limit the definition of substantial assistance, and
therefore limit the instances in

[[Page 71247]]

which foreign base company services income may result.
Classification of Series LLCs and Cell Companies. Series LLCs
were first introduced in Delaware in 1996, and since then,
series LLC statutes have been adopted in several other
states. In the insurance and foreign arena, similar
entities are sometimes referred to as cell companies. In
Notice 2008-19, the Service requested comments on when a
cell of a protected cell company should be treated as an
insurance company for federal income tax purposes. The
Service also requested comments on similar segregated
arrangements, such as series LLCs, that do not involve
insurance. It is likely that, over time, the use of series
LLCs and cell companies will increase. Accordingly, it is
important to provide timely guidance to clarify the
classification and other tax treatment of this new form of
organization. The use of series LLCs and cell companies may
facilitate the capital markets by providing more efficient
methods of formation and operation. The industry has
requested guidance on the federal tax classification of
these domestic and foreign entities. During fiscal year
2009, the IRS and Treasury intend to issue regulations
under section 7701 that will address whether these domestic
and foreign entities are single or multiple entities for
federal tax purposes.
Understatement of Taxpayer's Liability by Tax Return Preparer.
The Small Business and Work Opportunity Tax Act of 2007
amended the tax return preparer penalty under section 6694
of the Internal Revenue Code to include preparers of estate
and gift tax returns, employment tax returns, excise tax
returns, and returns of exempt organizations. The standard
of conduct under section 6694(a) for underpayments due to
unreasonable positions taken on tax returns was also
amended in two ways. First, for undisclosed positions, the
realistic possibility standard was replaced with a
requirement that there be a reasonable belief that the tax
treatment of a position taken on a tax return would more
likely than not be sustained on its merits. Second, for
disclosed positions, the not frivolous standard was
replaced with a requirement that there be a reasonable
basis for the tax treatment of a position taken on a tax
return. Finally, the penalty amounts under both section
6694(a) and 6694(b), relating to understatements due to
willful or reckless conduct, were increased. The amendments
to section 6694 were effective for tax returns prepared
after May 25, 2007. In June 2007, the IRS and Treasury
issued Notice 2007-54, which provided transitional relief
relating to the standard of conduct under section 6694(a).
Additional guidance relating to the tax return preparer
penalty, as amended, was provided in Notice 2008-11, Notice
2008-13 and Notice 2008-46. Proposed regulations were
published in June 2008. During fiscal year 2009, the IRS
and Treasury intend to finalize those regulations.
Withholding on Government Payments for Property and Services.
Section 3402(t) was added to the Internal Revenue Code by
the Tax Increase Prevention and Reconciliation Act of 2005
(TIPRA). Section 3402(t) requires all Federal, State and
local Government entities (except for certain small State
entities) to deduct and withhold an income tax equal to 3
percent from all payments (with certain enumerated
exceptions) the Government entity makes for property or
services. Section 3402(t) is effective for payments made
after December 31, 2010. On March 11, 2008, the Service
issued Notice 2008-38 soliciting public comments regarding
guidance to be provided to Federal, State and local
governments required to withhold under section 3402(t).
Many entities and vendors impacted by this provision
requested guidance on the scope of the provision both as to
the types of payments on which withholding is required and
as to the impact on payees. Many governmental entities
requested guidance describing the measures they must take
to comply with the requirements for withholding and
reporting. During fiscal year 2009, the IRS and Treasury
Department intend to issue proposed regulations under
section 3402(t) describing the scope of the provision and
steps required for compliance, as well as the method of
depositing the withheld tax and reporting the amount of the
payments and withheld tax to the IRS and to the payees.
Rules under the Pension Protection Act of 2006. Significant
new rules regarding the funding of qualified defined
benefit pension plans were enacted as part of the Pension
Protection Act of 2006 (PPA). The IRS and Treasury
Department prioritized the various pieces of guidance
required to comply with those rules and issued several
proposed regulations during fiscal year 2008. During fiscal
year 2009, the IRS and Treasury Department intend to
finalize those proposed regulations. Specifically, these
final regulations will include rules related to the
measurement of assets and liabilities and the determination
of the minimum required contributions under new section 430
of the Internal Revenue Code. The IRS and Treasury
Department also intend to issue final regulations on the
provisions of the PPA related to automatic enrollment in
salary deferral plans.
Office of the Comptroller of the Currency
The Office of the Comptroller of the Currency (OCC) was created by
Congress to charter national banks, to oversee a nationwide system of
banking institutions, and to assure that national banks are safe and
sound, competitive and profitable, and capable of serving in the best
possible manner the banking needs of their customers.
The OCC seeks to assure a banking system in which national banks
soundly manage their risks, maintain the ability to compete effectively
with other providers of financial services, meet the needs of their
communities for credit and financial services, comply with laws and
regulations, and provide fair access to financial services and fair
treatment of their customers.
The OCC's regulatory program furthers these goals. For example,
pursuant to the Economic Growth and Regulatory Paperwork Reduction Act
of 1996 (EGRPRA), the OCC, together with the Board of Governors of the
Federal Reserve System, the Federal Deposit Insurance Corporation, the
Office of Thrift Supervision, and the National Credit Union
Administration (the agencies), conducted a review of its regulations to
identify opportunities to streamline regulations and reduce unnecessary
regulatory burden. The agencies' review included: (1) issuing six
notices, published in the Federal Register, that solicit comment from
the industries they regulate and the public on ways to reduce
regulatory burden with respect to specific categories of regulations;
and (2) conducting outreach meetings with bankers and consumer groups
in cities across the country for the same purpose. The agencies have
fulfilled the statutory requirement to publish all categories of their
regulations for public comment. They also completed the summary of the
comments and recommendations

[[Page 71248]]

received, as the statute requires. The final report was published in
the Federal Register and submitted it to Congress on November 1, 2007.
62 FR 62036 (November 1, 2007).
Significant rules issued during fiscal year 2008 include:
Risk-Based Capital Guidelines: Implementation of New Basel
Capital Accord (Basel II) (12 CFR Part 3). The OCC, the
Board of Governors of the Federal Reserve System, the
Federal Deposit Insurance Corporation, and the Office of
Thrift Supervision (the banking agencies) issued a final
rule based on the International Convergence of Capital
Measurement and Capital Standards: A Revised Framework. The
new capital adequacy standards, commonly known as Basel II,
were published on December 7, 2007 at 72 FR 69288. In
particular, the rule described significant elements of the
Advanced Internal Ratings-Based approach for credit risk
and the Advanced Measurement Approaches for operational
risk (together, the advanced approaches). The rule
specified criteria that a banking organization must meet to
use the advanced approaches. Under the advanced approaches,
a banking organization would use internal estimates of
certain risk components as key inputs in the determination
of its regulatory capital requirements.
Risk-Based Capital Guidelines; Capital Adequacy Guidelines;
Capital Maintenance: Basel II Standardized Approach (12 CFR
Part 3). As part of the banking agencies' ongoing efforts
to develop and refine the capital standards to enhance
their risk sensitivity and ensure the safety and soundness
of the banking system, they issued a notice of proposed
rulemaking to amend various provisions of the capital rules
on July 29, 2008, at 73 FR 43982. The changes involve
amending the current capital rules for those banks that
will not be subject to the advanced internal ratings-based
approaches. The OCC has included this rulemaking project in
the Regulatory Plan (1557-AD07).
Lending Limits (12 CFR Part 32). In FY 2008, the OCC issued an
interim final rule with request for comment on March 20,
2008 (73 FR 14922), providing that, with the written
approval of the OCC, a national bank may make loans and
extensions of credit pursuant to a special temporary
lending limit established by the OCC. Use of such a lending
limit will be approved only when the OCC determines that it
is necessary to address an emergency situation, such as
critical financial markets stability, and where the loans
and extensions of credit will be of short duration, will be
reduced in amount in a timeframe and manner acceptable to
the OCC, and will not present unacceptable risk to the
lending national bank. In connection with the establishment
of a special temporary lending limit, the OCC will impose
supervisory oversight and reporting conditions that it
determines are appropriate to monitor compliance with the
standards contained in the interim final rule.
Identity Theft Red Flags and Address Discrepancies (12 CFR
Parts 30 and 41). The agencies and Federal Trade Commission
issued final rules and guidelines to implement section 114
and final rules to implement 315 of the Fair and Accurate
Credit Transactions Act of 2003 (FACT Act). The final rules
implementing section 114 require financial institutions and
creditors to develop and implement a written Identity Theft
Prevention Program to detect, prevent, and mitigate
identity theft in connection with the opening of certain
accounts and certain existing accounts. The rules contain a
separate provision for issuers of credit and debit cards
requiring that they develop and implement policies and
procedures to validate address changes when card holders
request an additional or replacement card shortly after
sending the issuer a notice of change of address.
Guidelines were also issued elaborating on these rules that
financial institutions and creditors must consider and
adopt if appropriate. The guidelines include a list of 26
examples of patterns, practices, and forms of activity that
indicate the possible existence of identity theft (``red
flags''). Rules were also issued implementing section 315
regarding reasonable policies and procedures that a user of
consumer reports must employ when the user receives a
notice of address discrepancy from a consumer reporting
agency informing the user of a substantial discrepancy
between the address for the consumer that the user provided
to request the consumer report and the address(es) in the
file for the consumer. The rules and guidelines were issued
on November 9, 2007 (72 FR 63718).
Fair Credit Reporting; Affiliate Marketing Regulations (12 CFR
Part 41). On November 7, 2007 (72 FR 62910), the agencies
issued a final rule to implement the affiliate marketing
provisions of section 214 of the FACT Act. The final rule
implements the consumer notice and opt-out provisions of
the FACT Act regarding the sharing of consumer information
among affiliates for making solicitations for marketing
purposes.
Regulatory Burden Reduction and Technical Amendments (12 CFR
Chapter I). The OCC issued a final rule to further the goal
of reducing regulatory burden for national banks. (73 FR
22216). The changes relieve burden by eliminating or
streamlining existing requirements or procedures, enhancing
national banks' flexibility in conducting authorized
activities, eliminating uncertainty by harmonizing a rule
with other OCC regulations or with the rules of another
agency, or by making technical revisions to update OCC
rules to reflect changes in the law or in other
regulations. In a few cases, revisions also add or enhance
requirements for safety and soundness reasons.
The OCC's regulatory priorities for fiscal year 2009 include the
following:
Fair Credit Reporting, Accuracy and Integrity of Information
Furnished to Consumer Reporting Agencies (12 CFR Part 41).
The agencies and the Federal Trade Commission ( FTC) plan
to issue a joint final rule to implement section 312 of the
FACT Act. Section 312 requires the issuance of guidelines
regarding the accuracy and integrity of information
entities furnish to a consumer reporting agency. Section
312 also requires the agencies and the FTC to issue
regulations requiring entities that furnish information to
a consumer reporting agency to establish reasonable
policies and procedures for the implementation of the
guidelines. In addition, section 312 requires the agencies
and the FTC to jointly prescribe regulations that identify
the circumstances under which a furnisher of information to
a consumer reporting agency shall be required to
investigate a dispute concerning the accuracy of
information contained in a consumer report on the consumer
based on the consumer's direct request to the furnisher. A
notice of proposed rulemaking was issued on December 13,
2007 (72 FR 70944).

[[Page 71249]]

Risk-Based Capital Standards: Market Risk (12 CFR Part 3). The
banking agencies plan to issue a second notice of proposed
rulemaking to amend the market risk capital requirements
for national banks. The banking agencies issued a notice of
proposed rulemaking on September 25, 2006 (71 FR 55958).
The rule would make the current market risk capital
requirements generally more risk sensitive with respect to
the capital treatment of trading activities in banks and
bank holding companies.
Interagency Proposal for Model Privacy Form under Gramm-Leach-
Bliley Act (GLB Act) (12 CFR Part 40). The agencies, along
with the Federal Trade Commission, the Commodity Futures
Trading Commission, and the Securities and Exchange
Commission, issued a joint notice of proposed rulemaking
pursuant to section 728 of the Financial Services
Regulatory Relief Act of 2006 (Pub. L. 109-351) on March
29, 2007 (72 FR 14940). Specifically, a safe harbor model
privacy form was proposed that financial institutions may
use to provide the disclosures under the privacy rules.
Work on a final rule is now underway.
Recordkeeping Requirements for Bank Exceptions from Securities
Broker or Dealer Registration. The banking agencies plan to
issue this rulemaking to implement section 204 of the GLB
Act. Section 204 directs the banking agencies to establish
recordkeeping requirements for banks relying on exceptions
to the definitions of ``broker'' and ``dealer'' contained
in paragraphs (4) and (5) of section 3(a) of the Securities
Exchange Act of 1934. Pursuant to section 101 of the
Financial Services Regulatory Relief Act of 2006, the SEC
and the FRB jointly published final rules to implement the
``broker'' provisions of the GLB Act on October 3, 2007.
The rulemaking to implement section 204 of the GLB Act
commenced upon the adoption of a final rule by the SEC and
the FRB.
Office of Thrift Supervision
As the primary Federal regulator of the thrift industry, the Office of
Thrift Supervision (OTS) has established regulatory objectives and
priorities to supervise thrift institutions effectively and
efficiently. These objectives include maintaining and enhancing the
safety and soundness of the thrift industry; a flexible, responsive
regulatory structure that enables savings associations to provide
credit and other financial services to their communities, particularly
housing mortgage credit; and a risk-focused, timely approach to
supervision.
OTS, the Office of the Comptroller of the Currency (OCC), the Board of
Governors of the Federal Reserve System (FRB), and the Federal Deposit
Insurance Corporation (FDIC) (collectively, the banking agencies)
continue to work together on regulations where they share the
responsibility to implement statutory requirements. For example, the
banking agencies are working jointly on several rules to update capital
standards to maintain and improve consistency in agency rules. These
rules implement revisions to the International Convergence of Capital
Management and Capital Standards: A Revised Framework (Basel II
Framework) and include:
Risk-Based Capital Guidelines: Implementation of Revised Basel
Capital Accord. The final Basel II rule was published by
the U.S. Banking Agencies on December 7, 2007 and effective
April 1, 2008. The OTS, in conjunction with the other
federal banking agencies, is working on implementing issues
supporting this extremely complex risk-based capital rule.
The banking agencies issued related proposed guidance on
credit risk and operation risk (72 FR 9084; Feb. 2, 2007).
The banking agencies will issue final guidance in fiscal
year (FY) 2009.
Risk-Based Capital Standards: Market Risk. On September 25,
2006, the Agencies issued an NPRM on Market Risk. In this
rule, OTS proposed to require savings associations to
measure and hold capital to cover their exposure to market
risk. The other banking agencies proposed to revise their
existing market risk capital rules to implement changes to
the market risk treatment contained in Basel II Framework.
These changes would enhance risk sensitivity of the
existing market risk capital rules and introduce
requirements for public disclosure of certain information
about market risk (71 FR 55958; Sept. 25, 2006). The
banking agencies will issue final market risk rules in FY
2009.
Risk-Based Capital Standards: Standardized Approach. The
banking agencies issued an NPRM implementing the
Standardized Approach to credit risk and approaches to
operational risk that are contained in the Basel II
Framework. 73 FR 43982 (July 29, 2008). Banking
organizations would be able to elect to adopt these
proposed revisions or remain subject to the agencies'
existing risk-based capital rules, unless the banking
organization uses the Advanced Capital Adequacy Framework
described above. This NPRM replaces the NPRM on Domestic
Capital Modifications, which was published at 71 FR 77446
on Dec. 26, 2006.
Significant final rules issued during fiscal year 2008 include:
Prohibited Service at Savings and Loan Holding Companies. This
interim final rule implemented new section 19(e) of the
Federal Deposit Insurance Act, which prohibits any person
who has been convicted of a criminal offense involving
dishonesty, breach of trust, or money laundering (or has
agreed to enter into a pretrial diversion or similar
program in connection with a prosecution for such an
offense) from holding certain positions with respect to a
savings and loan holding company. The interim final rule
incorporated the statutory restrictions, prescribed
procedures for applying for an OTS order granting case-by-
case exemptions from the restrictions, and included two
regulatory exemptions from the restrictions (72 FR 29548;
May 8, 2007). OTS expects to finalize the interim rule in
FY 2009.
OTS anticipates implementing the Fair and Accurate Credit Transactions
Act of 2003 (FACT Act) as follows:
Fair Credit Reporting -- Accuracy & Integrity of Information
Furnished to Consumer Reporting Agencies. The banking
agencies, NCUA, and Federal Trade Commission (FTC) plan to
issue a joint proposed rule and joint final rule to
implement section 312 of the FACT Act. Section 312 requires
the agencies to consult and coordinate with each other in
order to issue consistent and comparable regulations
requiring persons that furnish information to a consumer
reporting agency to establish reasonable policies and
procedures for the implementation of the agencies'
guidelines regarding the accuracy and integrity of
information relating to consumers. In addition, the
agencies are to jointly prescribe regulations that identify
the circumstances under which a furnisher of information to
a consumer reporting agency shall be required to
reinvestigate a dispute the accuracy of information
contained in a consumer report based on the consumer's
direct request to the

[[Page 71250]]

furnisher. The agencies published an Advance Notice of
Proposed Rulemaking (ANPR) on March 22, 2006, at 71 FR
14419.
Under the authority of section 5 of the Federal Trade Commission Act:
OTS, FRB and NCUA proposed to prohibit certain unfair or
deceptive acts or practices in the areas of credit cards
and overdrafts at 73 FR 28904 (May 19, 2008).
OTS anticipates implementing section 728 of the Financial Services
Regulatory Relief Act by amending its privacy rules under the Gramm-
Leach-Bliley Act to include a safe harbor model privacy form. The
banking agencies, NCUA, FTC, Commodity Futures Trading Commission
(FTC), and SEC published a proposed rule on March 29, 2007.
Alcohol and Tobacco Tax and Trade Bureau
The Alcohol and Tobacco Tax and Trade Bureau (TTB) issues regulations
to enforce the Federal laws relating to alcohol, tobacco, firearms, and
ammunition taxes and relating to commerce involving alcohol beverages.
TTB's mission and regulations are designed to:
1) Regulate with regard to permits to operate in the alcohol and
tobacco industries;
2) Assure the collection of all alcohol, tobacco, and firearms and
ammunition taxes, and obtain a high level of voluntary
compliance with all laws governing those industries; and
3) Suppress commercial bribery, consumer deception, and other
prohibited practices in the alcohol beverage industry.
In fiscal year 2009, the Bureau plans to give priority to the following
regulatory matters:
Modernization of title 27, Code of Federal Regulations. TTB
will continue to pursue its multi-year program of
modernizing its regulations in title 27 of the Code of
Federal Regulations. This program involves updating and
revising the regulations to be more clear, current, and
concise, with an emphasis on the application of plain
language principles. TTB laid the groundwork for this
program in 2002 when it started to recodify its regulations
in order to present them in a more logical sequence. In FY
2005, TTB evaluated all of the 36 CFR parts in title 27 and
prioritized them as ``high,'' ``medium,'' or ``low'' in
terms of the need for complete revision or regulation
modernization. TTB determined importance based on industry
member numbers, revenue collected, and enforcement and
compliance issues identified through field audits and
permit qualifications, statutory changes, significant
industry innovations, and other factors. The 10 CFR parts
that TTB ranked as ``high'' include the five parts
directing operation of the major taxpayers under the
Internal Revenue Code of 1986: Part 19 - Distilled Spirits
Plants; Part 24 - Wine; Part 25 - Beer; Part 40 -
Manufacture of Tobacco Products and Cigarette Papers and
Tubes; and Part 53 - Manufacturers Excise Taxes - Firearms
and Ammunition. These five CFR parts represent nearly all
the tax revenue that TTB collects, or $14.7 billion in FY
2007. The remaining five parts rated ``high'' consist of
regulations covering imports and exports (Part 27 -
Importation of Distilled Spirits, Wine and Beer; Part 28 -
Exportation of Alcohol; and Part 41 - Importation of
Tobacco Products and Cigarette Papers and Tubes), the
American Viticultural Area program (Part 9), and TTB
procedures (Part 70).
To date, related to the modernization plan, the Department of the
Treasury has published notices of proposed rulemaking on parts 9 and
19. The Bureau plans to review the comments received regarding these
notices and publish final rules on them. In addition, the Bureau will
put forward for Department of the Treasury publication an advance
notice of proposed rulemaking on part 25. In FY 2009, TTB plans to
review the comments received on this modernization document and to move
forward as appropriate. In FY 2009, TTB also plans to draft a
modernization notice of proposed rulemaking for part 28.
Serving Facts. In 2007, the Department published a notice of
proposed rulemaking soliciting comments on a proposal to
require a serving facts statement on alcohol beverage
labels. The proposed statement would include information
about the serving size, the number of servings per
container, and per-serving information on calories and
grams of carbohydrates, fat, and protein. The proposed rule
would also require information about alcohol content. TTB
plans to put forward for Department publication a final
rule on this matter.
Allergen Labeling. On July 26, 2006, TTB published interim
regulations setting forth standards for voluntary allergen
labeling of alcohol beverages. These regulatory changes
were an outgrowth of changes made to the Food, Drug and
Cosmetic Act by the Food Allergen Labeling and Consumer
Protection Act of 2004. At the same time, TTB published a
proposal to make those interim requirements mandatory. TTB
intends to put forward for Department publication a final
rule in this matter in 2009.
Multi-Region Appellations for Imported Wine. TTB will put
forward for Department publication a proposal to amend its
wine labeling regulations to allow the labeling of imported
wines with multi-region appellations of origin. The
proposed regulatory change would provide labeling treatment
for imported wines that is similar to what is currently
available for domestic wines, which may be labeled with a
multi-state or multi-county appellation of origin.
Specially Denatured and Completely Denatured Alcohol Formulas.
TTB will submit for publication by the Department a
proposal to reclassify some specially denatured alcohol
(SDA) formulas as completely denatured alcohol (CDA) for
which formula submission to TTB is not required. The
proposed regulatory changes would also allow other SDA
formulas to be used without the submission of article
formulas. These changes would allow TTB to shift its SDA-
dedicated resources from the current front-end pre-market
formula control approach to a post-market assessment of
actual compliance with SDA regulations.
Alcohol Fuel Plants. TTB intends to put forward for Department
publication proposed amendments to the alcohol fuel plant
regulations, in recognition of the significant growth in
this industry segment. The proposed changes would include
updated procedures for producers of distilled spirits
intended for fuel use that will enhance their operations
consistent with TTB's responsibility to protect the
revenue.
Special (Occupational) Tax Repeal. TTB will submit for
publication by the Department amendments to conform the TTB
regulations to the statutory repeal of the special
(occupational) taxes on producers and marketers of
alcoholic beverages. The regulatory changes will reflect
the replacement of tax payment by a registration procedure.

[[Page 71251]]

Bureau of the Public Debt
The Bureau of the Public Debt (BPD) has responsibility for borrowing
the money needed to operate the Federal Government and accounting for
the resulting debt, regulating the primary and secondary Treasury
securities markets, and ensuring that reliable systems and processes
are in place for buying and transferring Treasury securities.
BPD administers regulations: (1) Governing transactions in Government
securities by Government securities brokers and dealers under the
Government Securities Act of 1986 (GSA), as amended; (2) Implementing
Treasury's borrowing authority, including rules governing the sale and
issue of savings bonds, marketable Treasury securities, and State and
local Government securities; (3) Setting out the terms and conditions
by which Treasury may redeem (buy back) outstanding, unmatured
marketable Treasury securities through debt buyback operations; (4)
Governing securities held in Treasury's retail systems; and (5)
Governing the acceptability and valuation of all collateral pledged to
secure deposits of public monies and other financial interests of the
Federal Government.
Treasury's GSA rules govern financial responsibility, the protection of
customer funds and securities, record keeping, reporting, audit, and
large position reporting for all government securities brokers and
dealers, including financial institutions.
Treasury maintains regulations governing two retail systems for
purchasing and holding Treasury securities: Legacy Treasury Direct, in
which investors can purchase, manage, and hold marketable Treasury
securities in book-entry form, and TreasuryDirect, in which investors
may purchase, manage, and hold savings bonds, marketable Treasury
securities, and certificates of indebtedness in an Internet-based
system.
During fiscal year 2009, BPD will accord priority to the following
regulatory projects:
TreasuryDirect. To date, only individuals have been able to
open accounts in TreasuryDirect. BPD plans to issue a final
rule to permit a trustee of a trust, corporation, limited
liability company, partnership, sole proprietorship, legal
representative of a decedent's estate, and legal guardian
of the estate of an incompetent person or minor to open
accounts in TreasuryDirect and conduct transactions in
eligible Treasury securities. BPD will also take the
opportunity to make non-substantive technical corrections
to the regulations.
Series I Savings Bonds. BPD plans to issue a final rule
amending the regulations for Series I savings bonds to
clarify that the fixed rate of return and the composite
rate will always be greater than or equal to zero percent.
The amendment makes no substantive change to the
regulations but will benefit investors by clarifying that
the fixed rate and the composite rate will not be negative
under any market conditions.
Financial Management Service
The Financial Management Service (FMS) issues regulations to improve
the quality of Government financial management and to administer its
payments, collections, debt collection, and Government-wide accounting
programs. For fiscal year 2009, FMS's regulatory plan includes the
following priority:
Management of Federal Agency Disbursements. FMS is amending 31
CFR part 208 to increase the use of agency electronic
payments. Currently, 31 CFR - 208.6 requires that Federal
electronic payments other than vendor payments be directed
to a deposit account at the financial institution ``in the
name of'' the individual. Treasury waived this requirement
for Federal agencies issuing part or all of an employee's
travel reimbursement to the travel card issuing bank for
crediting to the employee's travel card account. In fiscal
year 2009, a proposed rule will codify the terms of the
waiver. In addition, the proposed rule would prohibit a
Federal agency from making a check payment to another
Federal agency, and would instead require that all agency-
to-agency payments be made through the Intra-Governmental
Payment and Collection System.
Domestic Finance - Office of the Fiscal Assistant Secretary (OFAS)
The Office of the Fiscal Assistant Secretary develops policy for and
oversees the operations of the financial infrastructure of the federal
government; including payments, collections, cash management,
financing, central accounting, and delinquent debt collection.
Treasury strongly encourages electronic payment of Federal benefits,
but electronic payments may cause problems in certain instances.
Specifically, individuals who have bank accounts and are subject to
garnishment actions may find direct deposit unattractive. Financial
institutions may freeze accounts that receive federal benefits as they
perform due diligence in complying with State garnishment orders, even
though Federal statues exempt most Federal benefits from garnishment.
In FY 2009, Treasury plans to promulgate a joint rule, with federal
benefit agencies, to address the practice of account freezes and holds
to ensure that benefit recipients have access to a certain amount of
lifeline funds while garnishment orders or other legal processes are
adjudicated.
The regulation will provide financial institutions with specific
instructions on the manner and extent to which accounts with exempt
funds can be frozen in the face of a garnishment order. It may also
include some provisions aimed at Federal benefit agencies necessary to
help financial institutions comply with the instructions. We do not
expect the policy to have specific provisions for consumers, States,
debt collectors, or banking regulators. However, the banking regulators
would enforce the policy in cases of non-compliance by means of their
general authorities.
The regulation will not specifically address the process for
adjudicating garnishment orders, State debt collection or claims laws
in a broader sense, or other banking practices and procedures. This
proposed regulation will be a new part in Title 31.
_______________________________________________________________________

TREAS--Comptroller of the Currency (OCC)

-----------

FINAL RULE STAGE

-----------

97. BASEL II STANDARDIZED APPROACH

Priority:

Economically Significant. Major under 5 USC 801.

Unfunded Mandates:

This action may affect the private sector under PL 104-4.

Legal Authority:

12 USC 93a; 12 USC 3907; 12 USC 3909

CFR Citation:

12 CFR 3

[[Page 71252]]

Legal Deadline:

None

Abstract:

The OCC, FRB, FDIC, and OTS have decided to withdraw the proposed
revisions to the existing domestic risk-based capital framework known
as Basel 1A. Instead, the Federal banking agencies proposed a new risk-
based capital framework based on the Standardized Approach for credit
risk and the Basic Indicator approach for operational risk described in
the capital adequacy framework titled ``International Convergence of
Capital Measures and Capital Standards: A Revised Framework,''
published by the Basel Committee on Banking Supervision.

Statement of Need:

This rulemaking is necessary to enhance the risk-sensitivity of the
risk-based capital rules for those banks that will not be subject to
the New Basel Capital Accord (Basel II) capital framework.

Summary of Legal Basis:

The OCC is implementing the Basel II Standardized Approach capital
framework for domestic financial institutions that choose to adopt it.
This initiative is based on the OCC's general rulemaking authority in
12 U.S.C. 93a and its specific authority under 12 U.S.C. 3907 and 3909.
12 U.S.C. 3907(a)(2) specifically authorizes the OCC to establish
minimum capital levels for financial institutions that the OCC, in its
discretion, deems necessary or appropriate.

Alternatives:

Please see the OCC's regulatory impact analysis, which can be found in
its entirety at http://www.occ.treas.gov/law/basel.htm under the link
of ``Regulatory Impact Analysis for Risk-Based Capital Guidelines;
Capital Adequacy Guidelines; Capital Maintenance: Standardized Risk-
Based Capital Rules (Basel II: Standardized Option), Office of the
Comptroller of the Currency, International and Economic Affairs
(2008).''

Anticipated Cost and Benefits:

Not yet determined.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 07/29/08 73 FR 43982
NPRM Comment Period End 10/27/08
Final Action 09/00/09

Regulatory Flexibility Analysis Required:

Government Levels Affected:

None

Agency Contact:
Carl Kaminski
Attorney
Department of the Treasury
Comptroller of the Currency
Legislative and Regulatory Activities Division
250 E Street SW.
Washington, DC 20219
Phone: 202 874-5090
Fax: 202 874-4889
Email: [email protected]
RIN: 1557-AD07
BILLING CODE 4810-25-S

[[Page 71253]]

DEPARTMENT OF VETERANS AFFAIRS (VA)

Statement of Regulatory Priorities
The Department of Veterans Affairs (VA) administers benefit programs
that recognize the important public obligations to those who served
this Nation. VA's regulatory responsibility is almost solely confined
to carrying out mandates of the laws enacted by Congress relating to
programs for veterans and their beneficiaries. VA's major regulatory
objective is to implement these laws with fairness, justice, and
efficiency.
Most of the regulations issued by VA involve at least one of three VA
components: The Veterans Benefits Administration, the Veterans Health
Administration, and the National Cemetery Administration. The primary
mission of the Veterans Benefits Administration is to provide high-
quality and timely nonmedical benefits to eligible veterans and their
beneficiaries. The primary mission of the Veterans Health
Administration is to provide high-quality health care on a timely basis
to eligible veterans through its system of medical centers, nursing
homes, domiciliaries, and outpatient medical and dental facilities. The
primary mission of the National Cemetery Administration is to bury
eligible veterans, members of the Reserve components, and their
dependents in VA National Cemeteries and to maintain those cemeteries
as national shrines in perpetuity as a final tribute of a grateful
Nation to honor the memory and service of those who served in the Armed
Forces.
VA's regulatory priorities include a special project to undertake a
comprehensive review and improvement of its existing regulations. The
first portion of this project is devoted to reviewing, reorganizing,
and rewriting the VA's compensation and pension regulations found in 38
CFR part 3. The goal of the Regulation Rewrite Project is to improve
the clarity and logical consistency of these regulations in order to
better inform veterans and their family members of their entitlements.
BILLING CODE 8320-01-S

[[Page 71254]]

ENVIRONMENTAL PROTECTION AGENCY (EPA)

Statement of Priorities
OVERVIEW
The mission of the Environmental Protection Agency (EPA) is to protect
and safeguard human health and the environment. Since 1970, EPA,
together with its partners and stakeholders, has been delivering a
cleaner, healthier environment to the public. EPA's achievements, from
regulating auto emissions to banning the use of DDT, from cleaning up
toxic waste to protecting the ozone layer, and from increasing
recycling to revitalizing inner-city brownfields, have resulted in
cleaner air, purer water, and better protected land. Our air is
cleaner, our water is purer, and our land is healthier than just a
generation ago.
Between 1970 and 2004, total emissions of the six major air pollutants
dropped by 54 percent. This is particularly impressive when noted that
the gross domestic product increased 187 percent, energy consumption
increased 47 percent, and U.S. population grew by 40 percent during the
same time. Through land restoration efforts, 600,000 acres of
contaminated land now provide ecological, economic, and recreational
benefits. In 2004, EPA and its partners took action to restore,
enhance, and protect nearly 830,000 acres of wetlands. EPA continues to
build on its past success by using regulatory and innovative approaches
to achieve effective results. In doing so, the Agency uses three
guiding principles to govern its work to maintain the strongest level
of environmental protection.
The Agency uses three guiding principles to govern its work to maintain
the strongest level of environmental protection:
Results and Accountability. EPA is committed to being a good
steward of our environment and a good steward of America's
tax dollars. To provide the public with the environmental
results it expects and deserves, we must operate as
efficiently and effectively as possible. Accountability for
results is a key component of the President's Management
Agenda, designed to make government citizen-centered,
results-oriented, and market-based.
Innovation and Collaboration. Our progress depends both on our
ability and continued commitment to identify and use
innovative tools, approaches, and solutions to address
environmental problems and to engage extensively with our
partners, stakeholders, and the public. Under each of our
goals, we are working to promote a sense of environmental
stewardship and a shared responsibility for addressing
today's challenges.
Best Available Science. EPA needs the best scientific
information available to anticipate potential environmental
threats, evaluate risks, identify solutions, and develop
protective standards. Sound science helps us ask the right
questions, assess information, and characterize problems
clearly to inform Agency decision makers.
Science guides EPA's identification and treatment of emerging issues
and advances our understanding of long-standing human health and
environmental challenges. EPA's research is typically crosscutting,
multidisciplinary, and at the cutting edge of environmental science;
reflects the dynamic nature of science; and brings scientific rigor to
the characterization of uncertainty and risk.
EPA applies these principles as it works with its Federal, State,
tribal, and local government partners to advance the mission of
protecting human health and the environment. As a result of these
collaborations, tremendous progress has been made in protecting and
restoring the Nation's air, water, and land:
EPA has strengthened the Nation's air quality standards for
ground-level ozone, revising the standards for the first
time since 1997. Ozone levels have dropped 21 percent
nationwide since 1980 as EPA, States, and local governments
have worked together to continue to improve the Nation's
air.
In FY 2007, 91.5 percent of the population served by community
water systems received drinking water that met all
applicable health-based drinking water standards.
EPA issued four national drinking water regulations to boost
public health and reduce risks from pathogens and other
contaminants: the Cryptosporidium Rule, the Disinfection
Byproducts Rule, the Ground Water Rule, and the Lead in
Drinking Water Rule.
EPA assessed over 8,000 properties while creating 28,500 new
jobs through the Brownfields and Land Revitalization
program since 2002.
EPA established a permanent National Homeland Security
Research Center in 2004 to provide scientific expertise,
advice and guidance on homeland security issues, including
how to respond to chemical and biological attacks.
EPA established the U.S. as the first country in the world to
reassess all pesticides used in food, removing unsafe
products from the marketplace and bringing about stronger
and more effective health protections for consumers.
EPA's ocean survey vessel, the BOLD, has conducted scientific
surveys from the Gulf of Mexico and the Caribbean, to the
waters of New England since 2005. The BOLD has researched
red tide, monitored coral reefs and most notably, assisted
in the Federal response to hurricanes Katrina and Rita --
testing the coastal impact of those storms and analyzing
the health of marine life. In 2007, the BOLD completed 40
oceanographic surveys while spending over 270 days at sea.
EPA released the first-ever, national Report on the
Environment in 2003 to educate the American people about
environmental trends in the condition of the air, water,
and land and related trends in human health and ecological
condition in the United States.
Over the past 6 years, EPA's climate change partnership
programs have prevented an estimated 500 million metric
tons of greenhouse gas emissions. That is equivalent to
taking 55 million cars off the road.
EPA also promotes international partnerships to reduce
greenhouse gasses and deploy clean technologies. Through
the Methane to Markets Partnership, we work with other
countries and the U.S. private sector to reduce global
methane emissions, enhance economic growth, promote energy
security, and improve the environment by using cost-
effective methane recovery technologies. In addition, the
United States has joined Australia, China, India, Japan,
and South Korea in the Asia-Pacific Partnership on Clean
Development and Climate), which will advance the
President's goal for cleaner and more efficient
technologies and practices.
EPA continues to accelerate its pace of environmental protection while
maintaining the Nation's economic competitiveness. To that end, the
Agency has a number of regulatory goals in order to meet the challenge
while demonstrating progress consistent with its principles of results
and accountability, innovation and collaboration, and the use of the
best

[[Page 71255]]

available science. Using these three principles as the foundation of
its activity, EPA is sharpening focus on achieving measurable
environmental results on the following five strategic goals:
Clean Air and Global Climate Change
Among the high-priority issues for EPA over the next year and beyond
are climate change, energy efficiency, and energy security. These
issues are closely related, and this Regulatory Plan describes current
efforts to address them.
EPA also continues to advance its efforts to control the more familiar
air pollutants, such as smog, soot, and oxides of nitrogen and sulfur.
While EPA has made tremendous progress toward achieving clean, healthy
air that is safe to breathe, air pollution continues to be a great
problem. The average adult breathes more than 3000 gallons of air every
day, and children breathe more air per pound of body weight. Air
pollutants, such as those that form urban smog can remain in the
environment for long periods of time and can be carried by the wind
hundreds of miles from their origin. This year's Regulatory Plan
describes efforts to review standards for oxides of nitrogen and oxides
of sulfur.
EPA's programs will allow the Nation to make substantial progress in
protecting human health and ecosystems from air pollution. For example,
by 2011, new motor vehicles, including trucks and buses, will emit 75
to 95 percent less particulate matter and nitrogen oxides than they did
in 2003. These programs, when fully implemented, may prevent tens of
thousands of premature deaths and hospitalizations, and may prevent
millions of lost work and school days each year. These national
programs will be supplemented by local control strategies designed to
ensure that the air quality standards are achieved and maintained.
EPA also works to address climate change. Since the beginning of the
industrial revolution, concentrations of several greenhouse gases
(particularly carbon dioxide) have increased substantially. EPA is
currently working with other Federal Agencies to implement the
President's 20 in 10 program, to reduce gasoline consumption up to 20%
in the next ten years.
Clean and Safe Water
EPA's ``Clean and Safe Water'' goal defines the improvements that EPA
expects to see in the quality of the Nation's drinking water and of
surface waters over the next 4 years. These goals include improving
compliance with drinking water standards, maintaining safe water
quality at public beaches, restoring more than 2,000 polluted
waterbodies, and improving the health of coastal waters.
In an effort to address the Nation's aging water infrastructure system,
EPA is developing and implementing more innovative, market-based
infrastructure financing tools for States, tribes, and communities.
These initiatives will increase and accelerate investment in water
infrastructure and offer greater flexibility and cost-effectiveness to
provide clean and safe water for every American. Through technology,
innovation, and collaboration, EPA makes better use of its resources to
help the Nation's water and wastewater systems be highly efficient and
to move infrastructure toward greater sustainability for many years to
come.
Land Preservation and Restoration
EPA's land preservation and restoration goal addresses the need for
managing waste, conserving and recovering the value of wastes,
preventing releases, responding to emergencies, and cleaning up
contaminated land. Uncontrolled wastes can cause acute illness or
chronic disease and can threaten healthy ecosystems.
Over the next 4 years, EPA will establish or update approved controls
to prevent dangerous releases at approximately 500 hazardous waste
treatment, storage, and disposal facilities and also will address 2
long-standing tribal waste management concerns: increasing the number
of tribes covered by integrated waste management plans and cleaning up
open dumps.
To reduce and control the risks posed by accidental and intentional
releases of harmful substances, EPA plans to maintain a high level of
readiness to respond to emergencies, lead or oversee the response at
more than 1,600 hazardous waste removals and reduce by 25 percent the
number of gallons of oil spilled by facilities subject to Facility
Response Plan regulations relative to previous levels. EPA and its
partners, and responsible parties will remediate contaminated land,
reduce risk to the public, and enable communities to return properties
to beneficial reuse. We will also apply leading-edge scientific
research to improve our capability to assess conditions and determine
relative risks posed by contamination at hazardous waste sites.
Healthy Communities and Ecosystems
With a mix of regulatory programs and partnership approaches the Agency
achieves results in ways that are efficient, innovative and
sustainable. EPA continues to work collaboratively with other nations
and international organizations to identify, develop, and implement
policy options to address global environmental issues of mutual
concern. Following this, EPA strives to build a community's capability
to make decisions that affect the environment.
EPA's efforts to share information and provide assistance offers the
tools needed to effectively address the myriad aspects of planned
development or redevelopment. These contributions are tailored to
circumstances spanning the issues of sensitive communities and
international cooperation. In a similar manner, EPA's ecosystem
protection programs encompass a wide range of approaches that address
specific at-risk regional areas, such as large waterbodies. EPA also
works with partners to protect larger categories of threatened systems,
such as estuaries and wetlands. In cooperation with the U.S. Army Corps
of Engineers, EPA will assure ``no net loss'' of wetlands.
Compliance and Environmental Stewardship
EPA ensures that government, business, and the public comply with
Federal laws and regulations by monitoring compliance and taking
enforcement actions that result in reduced pollution and improved
environmental management practices. To accelerate the Nation's
environmental protection efforts, EPA works to prevent pollution at the
source, to advance other forms of environmental stewardship, and to
employ the tools of innovation and collaboration.
Effective compliance assistance and strong, consistent enforcement are
critical to achieving the human health and environmental benefits
expected from the country's environmental laws. EPA monitors compliance
patterns and trends and focuses on priority problem areas identified in
consultation with States, tribes, and other partners. The Agency
supports the regulated community by assisting regulated entities in
understanding environmental requirements, helping them identify cost-
effective compliance options and strategies, and providing incentives
for compliance.

[[Page 71256]]

EPA promotes the principles of responsible environmental stewardship,
sustainability, and accountability to achieve its strategic goals.
Collaborating closely with other Federal agencies, States, and tribes,
the Agency identifies and promotes innovations that assist businesses
and communities in improving their environmental performance. EPA works
to improve and encourage pollution prevention and sustainable
practices, helping businesses and communities move beyond compliance
and become partners in protecting our national resources and improving
the environment and our citizens' health.
Performance Management
In 2007, the Environmental Protection Agency (EPA) was awarded the
President's Quality Award for Overall Management for operating a
results-oriented, data-driven, performance management system. In 2008,
EPA's management achievements included: EPA receiving ``all greens'' in
the five government-wide management initiatives under the President's
Management Agenda; the Government Accountability Office acknowledging
EPA as a positive ``outlier'' among Federal Agencies and Departments in
its use of performance management data; EPA leading development of
improved efficiency measures for research projects across government;
working with our State partners to align performance measures; creating
the Performance Management Council to provide guidance on incorporating
performance management into the Agency; establishing a division devoted
to improving Agency outcomes; and EPA's launch of the first Federal
`stat' program, EPAStat, to provide frequent information about how the
Agency performs and how our operations can be improved. As a result,
EPA is increasingly viewed not only as a well-managed organization, but
also as a model for making the government more effective and efficient.
You can find additional information on performance management and
indicators, as well as the EPA's Quarterly Management Report at http://
www.epa.gov/ocfo/qmr/index.htm
Timeliness and Transparency of Regulatory Actions
Completing actions on time or ahead of schedule means EPA keeps its
commitments, improves the quality of decisions, and the public and
environment benefit from EPA's key actions sooner. As part of EPAStat,
the Agency is focusing management attention on several dozen key
actions and tracking their adherence to an agreed-to schedule for the
completion of a standard set of development milestones leading to
promulgation of rules or finalization of other types of actions.
Actions that are completed on time or early are used by EPA as
potential exemplars of best practices; program offices that achieve
timely completion of actions are encouraged to share their success
stories and lessons learned. Actions that are off-track are identified
early and corrective steps are taken to expedite their completion.
The following shows the results of EPA's effort to track the timeliness
of the Deputy Administrator's priority actions since January 2007:

Of the 26 actions being tracked against internal milestones, 15 actions
accounted for the days behind schedule as of 10/24/08.
EPA is also making Federal environmental regulation more transparent by
providing on-line information as soon as the agency begins the
development of a new rule. EPA is using Action Initiation Lists (AILs)
to notify the public about new rules and other regulatory actions. AILs
will be posted on the EPA Web site at roughly the end of each month;
they will describe those actions that were approved for commencement
during the given month. Formerly, the public had to wait for EPA's
Semiannual Regulatory Agenda, which is updated only every six months,
to learn about new regulatory actions. Visit the AIL at http://
www.epa.gov/lawsregs/search/ail.html
Aggregate Costs and Benefits
Per the amendments to E.O. 12866, we are providing a combined aggregate
estimate of costs and benefits of regulations included in the
Regulatory Plan. Any aggregate estimate of total costs and benefits
must be highly qualified. Problems with aggregation arise due to
differing baselines, data gaps, and inconsistencies in methodology and
type of regulatory costs and benefits considered. The aggregate
estimates presented combine

[[Page 71257]]

annualized and annual numbers. Cost savings are treated as benefits.
Dollars were converted to 2001 using the GDP deflator. The ranges
presented below do not reflect the full range of uncertainty in the
benefit and cost estimates for these rules.
It is critical to note that the aggregate estimates omit important
benefits and costs that cannot be monetized. For example, the estimates
leave out many health and welfare benefits, such as ecosystem
functions, visibility, avoided cases of chronic respiratory damage,
hypertension, and coronary heart disease, among many others. In
addition, for many of the rules in the Plan, we were unable to estimate
costs and benefits at this time because the range of policy options
under consideration is wide and varied.
The monetized aggregate estimates provided below reflect the following
rules in the Regulatory Plan: (1) Monetized cost and benefit
information was provided for: Hazardous Waste Manifest Revisions --
Standards for Electronic Manifests Final Rule; and Expanding the
Comparable Fuels Exclusion under RCRA; (2) Monetized cost information
(but no monetized benefits) was provided for: Test Rule -- Certain High
Production Volume (HPV) Chemicals; (3) Monetized benefit information
(but no monetized costs) was provided for: Spill Prevention, Control
and Countermeasure (SPCC).
Aggregate annual monetized benefits range from $329 million to $422
million per year. Aggregate annual monetized costs are estimated to
range from $144 million to $153 million per year.
Rules Expected to Affect Small Entities
By better coordinating small business activities, EPA aims to improve
its technical assistance and outreach efforts, minimize burdens to
small businesses in its regulations, and simplify small businesses'
participation in its voluntary programs. A number of rules included in
this Plan might be of particular interest to small businesses
including:
Control of Emissions from Spark-Ignition Engines and Fuel
Systems from Marine Vessels and Small Equipment (2060-
AM34);
Renewable Fuel Standard Program (2060-AO810); and
Effluent Limitations Guidelines and Standards for the
Construction and Development Point Source Category (2040-
AE91).
Reducing States' Reporting Burden
In an effort to address State concerns over escalating reporting
requirements, EPA and the Environmental Council of the States (ECOS)
launched a joint Burden Reduction Initiative in October 2006. This
Initiative aimed to reduce States' low-value, high-burden reporting
requirements, thus conserving both States' and EPA's valuable resources
while maintaining a commitment to protecting human health and the
environment.
Each of the 50 States was asked to identify their top five reporting
requirements for potential streamlining or elimination. Thirty-eight
States responded, recommending more than 200 ways to reduce reporting
frequency and level of detail. States also recommended that EPA enable
States to submit more data electronically and, to the extent possible,
standardize regional differences in reporting requirements.
EPA has been steadily working to address the States' recommendations
since the Initiative began. In 2008, EPA has focused on:
1. Addressing priority areas identified by the States in summer 2007;
2. Improving the Initiative's transparency and accuracy; and
3. Creating tools for incorporating burden reduction into EPA's
standard operating procedures.
Examples of the priority areas include:
a. Integrated Compliance Information System for the National Pollutant
Discharge Elimination System (ICIS-NPDES) - States
recommended that EPA harmonize and reduce reporting
requirements.
b. Disadvantaged Business Enterprise (DBE) - States recommended that
EPA reduce DBE utilization reporting frequency.
c. National Emissions Inventory (NEI) - States recommended that EPA
streamline NEI reporting requirements.
More information about the Burden Reduction Initiative is available at
http://www.epa.gov/burdenreduction/.
Trade and Environment Policy
EPA is committed to encouraging the development of environmentally
sound international policy. In part, EPA pursues this goal by advancing
environmental objectives in international trade agreements, investment
projects, and financial ventures. In so doing, EPA supports the
realization of two of the three critical elements of sustainable
development: environmental and economic progress.
Recognizing that the relationship between trade and environmental
policy is complex, EPA helps ensure that trade agreements balance both
economic and environmental interests. EPA encourages the development of
agreements that: 1) encourage high levels of environmental protection;
2) include commitments to effective enforcement of environmental laws
and regulations; 3) provide capacity building in response to relevant
environmental needs and issues in the developing world; and, 4) do not
undercut domestic health, safety and environmental measures.
EPA promoted the development of environmental reviews of trade
agreements and that these reviews follow specific guidelines. EPA plays
a lead role in negotiating the environmental provisions of a number of
bilateral and regional trade agreements (e.g., with Jordan, Chile,
Singapore and Central America, among others).
EPA's Regulatory Plan
EPA's Regulatory Plan is an important element of the Agency's strategy
for achieving environmental results within the framework described
above. The Agency's regulatory program includes several efforts that
will reduce the burden placed on small businesses while ensuring the
integrity of the environment. Many of these have been nominated for
Agency action through the public nomination process initiated by the
Office of Management and Budget (OMB) in 2001, 2002, and 2004 and many
of these have been completed. Taken as a whole, the Agency's Regulatory
Plan will ensure that the Nation continues to achieve improvements in
environmental quality while minimizing burden to States and the
regulated community.
HIGHLIGHTS OF EPA'S REGULATORY PLAN
Office of Air and Radiation
This year EPA plans to take initial steps to address the interconnected
issues of climate change, energy efficiency, and energy security. In
taking these steps, EPA is carrying out two Congressional mandates.
Title II of the 2007 Energy Independence and Security Act amended
Section 211(o) of the Clean Air Act, directing EPA to set a modified
standard that will increase the quantities of renewable fuels available
to consumers. EPA is implementing this

[[Page 71258]]

mandate by developing the Renewable Fuels Standard Program outlined in
this Regulatory Plan. Moreover, in the FY 2008 Consolidated
Appropriations Act, Congress directed EPA to develop a rule to
establish monitoring, reporting and recordkeeping requirements on
facilities that produce, import or emit greenhouse gases above a
specific threshold in order to inform future regulatory policy options
related to greenhouse gases. EPA is fulfilling this mandate through the
Greenhouse Gas Reporting Rule currently under development and
summarized below in this Regulatory Plan.
Another important and ongoing OAR regulatory priority is to protect
public health and the environment from exposure to harmful pollutants.
In the coming year, EPA will reach important milestones in the
development of two rules that address the harmful effects of Oxides of
Nitrogen and Oxides of Sulfur. The first of these two efforts is a
review of the Primary National Ambient Air Quality Standard for
Nitrogen Dioxide, which can constrict the body's air passages and
impair pulmonary function, and also increase respiratory illness in
children. The second effort is a review of the Secondary National
Ambient Air Quality Standards for Oxides of Nitrogen and Oxides of
Sulfur. Reviews of these two pollutants are being combined due to the
fact that these two pollutants and their associated transformation
products are linked from an atmospheric chemistry perspective, as well
as from an environmental effects perspective, most notably through
aerosol formation and acidification in ecosystems. Both of these review
efforts are summarized below in this Regulatory Plan.
EPA continues to address toxic air pollution under authority of the
Clean Air Act Amendments of 1990. The largest part of this effort is
the ``Maximum Achievable Control Technology'' (MACT) program, which is
now well into its second phase consisting of evaluation of the
effectiveness of work done so far, assessment of the need for
additional controls, and assessment of advances in control technology.
These evaluations and assessments are grouped into rulemakings called
``Risk and Technology Reviews.'' The remaining MACT source categories
requiring Risk and Technology Reviews are being combined into several
groups to help meet statutory dates, raise and resolve programmatic
issues more effectively, minimize resources by using available data and
focusing on high risk sources, and provide consistent review and
analysis. One example of the rulemakings currently underway is
summarized in this Regulatory Plan. The example, called ``Risk and
Technology Review Phase II Group 2a,'' covers nine source categories
including rubber production, mineral wool production, pharmaceuticals
production, printing and publishing, and marine vessel loading
operations.
Since many air quality programs are administered through permitting and
monitoring programs, OAR continues to work toward improving these
programs to increase efficiency and reduce regulatory burden. OAR is
continuing to develop rulemakings to streamline and improve its New
Source Review (NSR) permitting program. This effort will clarify the
circumstances under which companies must obtain construction permits
before building new facilities or significantly modifying existing
facilities. These revisions will provide more regulatory certainty by
clarifying compliance requirements, and will also make the program
easier to administer while maintaining its environmental benefits. In
developing these NSR rule revisions, OAR is drawing upon many years of
intense involvement with major stakeholders, who have helped shape a
suite of reforms that are expected to both improve the environmental
effectiveness of these programs and make them easier to comply with.
One example of this effort is included in this Regulatory Plan,
entitled ``NSR: Electric Generating Units,'' addressing issues in
emission measurement.
Office of Solid Waste and Emergency Response
The Office of Solid Waste and Emergency Response (OSWER) contributes to
the Agency's overall mission of protecting public health and the
environment by focusing on preparing for, preventing and responding to
chemical and oil spills, accidents, and emergencies; enhancing homeland
security; increasing the beneficial use and recycling of secondary
materials, the safe management of wastes and cleaning up contaminated
property and making it available for reuse. EPA carries out these
missions in partnership with other Federal agencies, States, tribes,
local governments, communities, nongovernmental organizations, and the
private sector. To further these missions, OSWER has identified several
regulatory priorities for the upcoming fiscal year that will promote
stewardship and resource conservation and focus regulatory efforts on
risk reduction and statutory compliance.
Consistent with the Agency's goal to reduce unnecessary reports where
there would be no likely Federal, State or local emergency response to
such notice(s), the Agency is considering an administrative reporting
exemption from particular notification requirements under the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended. The exemption being considered is for releases of
hazardous substances to the air where the source of those hazardous
substances is animal waste at farms. If finalized, it is estimated that
the rule will reduce burden on farms associated with making
notifications under CERCLA section 103 by approximately 3,408,000 hours
over the ten year period beginning in 2009 and associated costs by
approximately $155,313,000 over the same period.
Under the Clean Air Act (CAA), EPA applies different standards to the
combustion of waste materials than to the combustion of fuels or
feedstocks which are not solid wastes. The definition of non-hazardous
solid waste can have a significant impact on whether certain materials
(including biomass, tires, etc.) are used as a fuel or feedstock or are
disposed. In this rulemaking, EPA will look to define which secondary
materials are fuels or feedstocks, and not considered ``solid wastes''
under RCRA subtitle D. Allowing for the legitimate use of secondary
materials as a fuel or feedstock can preserve natural resources,
conserve energy, reduce greenhouse emissions, as well as save money by
reducing costs for raw materials and disposal that would otherwise be
necessary.
EPA is continuing its pursuit to improve and modernize the hazardous
waste tracking system by developing an ``E-manifest.'' This system will
allow electronic processing of hazardous waste transactions that will
greatly enhance tracking capabilities, while significantly reducing
administrative burden and costs for governments and the regulated
community. The E-manifest will build on the new standardized manifest
form that took effect in September 2006, and will ensure the continued
safe management of hazardous waste. However, such regulations cannot be
promulgated until legislative authority is provided to implement such a
system.

[[Page 71259]]

Office of Prevention, Pesticides, and Toxic Substances
The primary goal of EPA's Office of Prevention, Pesticides, and Toxic
Substances (OPPTS) is to prevent and reduce pesticide and industrial
and commercial chemical risks to humans, communities and ecosystems.
OPPTS employs a mix of regulatory and non-regulatory methods to achieve
this goal. For more information about OPPTS's regulatory actions, as
well as information about our other programs and activities, please
visit our Web site at www.epa.gov/oppts.
In Spring of 2008, EPA received a section 21 petition to use section 6
of TSCA to adopt a recently promulgated California State regulation
concerning emissions of formaldehyde from certain composite wood
products. OPPTS has responded to the petition and has initiated the
development of an advanced notice of proposed rule-making (ANPRM) to
investigate whether and what type of regulatory or other action might
be appropriate to protect against risks posed by formaldehyde emitted
from pressed wood products. OPPTS is working to publish the ANPR and
plans to hold five stakeholder meetings to solicit comments by the end
of 2008. OPPTS is also working with ORD to develop a hazard
characterization for formaldehyde and to initiate peer review early in
2009. In addition, OPPTS has embarked on a study of substitutes to
formaldehyde used in pressed wood, and plans to initiate an industry
survey to better understand the use of formaldehyde within the pressed
wood market. OPPTS plans to determine the appropriate course of
regulatory action in 2009 based on the ANPRM and supporting work.
Office of Water
Among EPA's Office of Water's primary goals are to ensure that drinking
water is safe; to restore and maintain oceans, watersheds, and their
aquatic ecosystems; to protect human health; to support economic and
recreational activities; and to provide healthy habitat for fish,
plants, and wildlife. OW 's regulatory priority for the coming year is
a proposed rulemaking that will address erosion and sediment discharges
associated with construction and development activities. This
rulemaking and its schedule respond to a court order that requires the
Agency to promulgate final regulations by December of 2009.
_______________________________________________________________________

EPA

-----------

PRERULE STAGE

-----------

98. REVIEW OF THE PRIMARY NATIONAL AMBIENT AIR QUALITY STANDARD FOR
NITROGEN DIOXIDE

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

42 USC 7408; 42 USC 7409

CFR Citation:

40 CFR 50

Legal Deadline:

None

Abstract:

The Clean Air Act Amendments of 1977 require EPA to review and, if
appropriate, revise the primary (health-based) and secondary (welfare-
based) national ambient air quality standards (NAAQS) periodically. On
October 11, 1995, the EPA published a final rule not to revise either
the primary or secondary NAAQS for nitrogen dioxide (NO2). That action
provided the Administrator's final determination, after careful
evaluation of comments received on the October 1995 proposal, that
revisions to neither the primary nor the secondary NAAQS for NO2 were
appropriate at that time. On December 9, 2005, the EPA/ORD initiated
the current periodic review of NO2 air quality criteria, the scientific
basis for the NAAQS, with a call for information in the Federal
Register. This regulatory action is for the Agency's review of the
primary NO2 NAAQS. Review of the secondary NO2 NAAQS will be part of a
separate regulatory action combined with review of the sulfur dioxide
NAAQS. As part of the review process, the Agency will prepare an
Integrated Review Plan, an Integrated Science Assessment, and a Risk/
Exposure Assessment. These documents will be reviewed by the public and
by the Clean Air Scientific Advisory Committee (CASAC), an independent
science advisory committee established to review the scientific and
technical basis of the NAAQS. The final documents will reflect the
input received through these reviews. An Advance Notice of Proposed
Rulemaking (ANPRM) reflecting Agency views will then be published. This
ANPRM will also be reviewed by the public and by CASAC during a public
comment period. Input received through these reviews will inform the
development of a proposed rulemaking. The Administrator's proposal to
retain or revise the NO2 NAAQS will be published with a request for
public comment. Input received during the public comment period will be
considered in the Administrator's final decision.

Statement of Need:

As established in the Clean Air Act, the national ambient air quality
standards for NO2 are to be reviewed every five years.

Summary of Legal Basis:

Section 109 of the Clean Air Act (42 USC 7409) directs the
Administrator to propose and promulgate ``primary'' and ``secondary''
national ambient air quality standards for pollutants identified under
section 108 (the ``criteria'' pollutants). The ``primary'' standards
are established for the protection of public health, while
``secondary'' standards are to protect against public welfare or
ecosystem effects.

Alternatives:

The main alternatives for the Administrator's decision on the review of
the national ambient air quality standards for NO2 are whether to
reaffirm or revise the existing standards.

Anticipated Cost and Benefits:

The Clean Air Act makes clear that the economic and technical
feasibility of attaining standards are not to be considered in setting
or revising the NAAQS, although such factors may be considered in the
development of State plans to implement the standards. Accordingly, the
Agency prepares cost and benefit information in order to provide States
and Regional Planning Organizations information that may be useful in
considering different implementation strategies for meeting proposed or
final standards. Cost and benefit information is not developed to
support a NAAQS rulemaking until sufficient policy and scientific
information is available to narrow potential options for the form and
level associated with any potential revisions to the standard.
Typically, an analysis plan for preparing a regulatory impact plan for
a NAAQS proposed rulemaking will begin after CASAC has reviewed two
drafts of the Integrated Science Assessment (ISA) as well as the 1st
draft of the Agency's Risk/Exposure Assessment. Therefore, work on the

[[Page 71260]]

developing the plan for conducting the cost and benefit analysis will
generally start 1 1/2 to 2 years following the start of a NAAQS review.

Risks:

During the course of this review, risk assessments will be conducted to
evaluate health risks associated with retention or revision of the NO2
standards

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
ANPRM 12/00/08
NPRM 05/00/09
Final Action 12/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Federal, State, Local, Tribal

Additional Information:

SAN No. 5111; EPA Docket information: EPA-HQ-OAR-2006-0922

Agency Contact:
Scott Jenkins
Environmental Protection Agency
Air and Radiation
C445-01
RTP, NC 27711
Phone: 919 541-1167
Email: [email protected]

Karen Martin
Environmental Protection Agency
Air and Radiation
C504-06
Research Triangle Park, NC 27711
Phone: 919 541-5274
Fax: 919 541-0237
Email: [email protected]
RIN: 2060-AO19
_______________________________________________________________________

EPA

99. REVIEW OF THE SECONDARY NATIONAL AMBIENT AIR QUALITY STANDARDS FOR
OXIDES OF NITROGEN AND OXIDES OF SULFUR

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

42 USC 7408; 42 USC 7409

CFR Citation:

40 CFR 50

Legal Deadline:

NPRM, Judicial, February 12, 2010, No court schedule has been ordered
for this review as of yet. This date represents the date submitted by
EPA to the court.

Final, Judicial, October 19, 2010, No court schedule has been ordered
for this review as of yet. This date represents the date submitted by
EPA to the court.

Abstract:

The Clean Air Act Amendments of 1977 require EPA to review and, if
appropriate, revise air quality criteria, primary (health-based), and
secondary (welfare-based) national ambient air quality standards
(NAAQS) every five years. On October 11, 1995, the EPA published a
final rule not to revise either the primary or secondary NAAQS for
nitrogen dioxide (NO2). That action provided the Administrator's final
determination, after careful evaluation of comments, that revisions to
neither the primary nor the secondary NAAQS for NO2 were appropriate at
that time. On May 22, 1996, the EPA published a final decision that
revisions of the primary and secondary NAAQS for sulfur dioxide (SO2)
were not appropriate at that time, aside from several minor technical
changes. That action provided the Administrator's final determination,
after careful evaluation of comments, that signficant revisions to the
primary and the secondary NAAQS for SO2 would not be made at that time.
On December 9, 2005, the EPA/ORD initiated the current periodic review
of NO2 air quality criteria with a call for information in the Federal
Register. On May 3, 2006, the EPA/ORD initiated the current periodic
review of SO2 air quality criteria with a call for information in the
Federal Register. The decision was made to review the oxides of
nitrogen and the oxides of sulfur together, rather than individually,
as has been done in the past. This decision derives from the fact that
NOx, SOx, and their associated transformation products are linked from
an atmospheric chemistry perspective, as well as from an environmental
effects perspective (most notably in the case of secondary aerosol
formation and acidification in ecosystems).

A workshop was held in July 2007 to discuss key policy-relevant issues
around which EPA would structure the review and to provide an
opportunity for peer review of draft chapters of the Integrated Science
Assessment being prepared by ORD. In addition to providing input into
the Science Assessment, the workshop also provided important input as
OAR and ORD consider the appropriate design and scope of the major
elements that inform the Agency's Policy Assessment under the new NAAQS
process: an integrated plan highlighting the key policy-relevant issues
prepared by OAR and ORD, an Integrated Science Assessment prepared by
ORD, and a Risk/Exposure Assessment prepared by OAR.

The Policy Assessment prepared by OAR will evaluate the policy
implications of key information contained in the Integrated Science
Assessment and Risk/Exposure Assessment, as well as any appropriate
technical analyses. The Policy Assessment will be published as an ANPRM
that reflects Agency views regarding options to retain or revise the
NO2 and/or SO2 NAAQS. EPA will solicit comments from the Clean Air
Scientific Advisory Committee (CASAC), an independent science advisory
committee established to review the scientific and technical basis of
the NAAQS, and the public several times during the development of the
critical documents identified above, including the ANPRM. A Scope and
Methods Plan for the review was developed and released to CASAC and the
public for comment. CASAC provided comment on both the ISA (developed
by ORD) and the Scope and Methods Plan on April 2-3 2008. The second
draft ISA and first draft risk and exposure assessment will be released
to CASAC and the public in August, 2008 for a public meeting on October
1-2, 2008. Upon the completion of the risk assessments and the
development of the ANPR, the Administrator will propose to retain or
revise the secondary NO2 and/or SO2 NAAQS, as appropriate,taking into
consideration CASAC and public commenton the ANPR. Input received
during the public comment period for the proposed decision will be
considered in the Adminstrator's final decision.

Statement of Need:

As established in the Clean Air Act, the national ambient air quality
standards for oxides of nitrogen and oxides of sulfur are to be
reviewed every five years.

Summary of Legal Basis:

Section 109 of the Clean Air Act (42 USC 7409) directs the
Administrator to propose and promulgate ``primary'' and ``secondary''
national ambient air quality standards for pollutants

[[Page 71261]]

identified under section 108 (the ``criteria'' pollutants). The
``primary'' standards are established for the protection of public
health, while ``secondary'' standards are to protect against public
welfare or ecosystem effects.

Alternatives:

The main alternatives for the Administrator's decision on the review of
the national ambient air quality standards for oxides of nitrogen and
oxides of sulfur are whether to reaffirm or revise the existing
standards.

Anticipated Cost and Benefits:

Risks:

During the course of this review, risk assessments may be conducted to
evaluate public welfare risks associated with retention or revision of
the standards.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
ANPRM 08/00/09
NPRM 02/00/10
Final Action 11/00/10

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Federal, State, Local, Tribal

Additional Information:

SAN No. 5170; EPA Docket information: EPA-HQ-OAR-2007-1145

Agency Contact:
Anne Rea
Environmental Protection Agency
Air and Radiation
C539-02
Research Triangle Park, NC 27711
Phone: 919 541-0053
Fax: 919 541-0905
Email: [email protected]

Ginger Tennant
Environmental Protection Agency
Air and Radiation
C504-06
Research Triangle Park, NC 27711
Phone: 919 541-4072
Fax: 919 541-0237
Email: [email protected]
RIN: 2060-AO72
_______________________________________________________________________

EPA

100. FORMALDEHYDE EMISSIONS FROM PRESSED WOOD PRODUCTS

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Unfunded Mandates:

Undetermined

Legal Authority:

15 USC 2605 ``TSCA 6''

CFR Citation:

Not Yet Determined

Legal Deadline:

None

Abstract:

In response to a petition filed under TSCA section 21, EPA has
initiated a proceeding to investigate risks posed by formaldehyde
emitted from pressed wood products. As indicated in that response, EPA
plans to issue an advance notice of proposed rulemaking (ANPRM) in the
Fall of 2008. As part of the ANPRM process, EPA will engage
stakeholders to contribute to obtaining a better understanding of the
available control technologies and approaches, industry practices, and
the implementation of California's regulations. Concurrently, EPA plans
to develop and conduct an industry survey and initiate development of
an exposure assessment and a hazard characterization that could be used
for evaluating emissions standards or other approaches. Subsequently,
EPA plans to develop an irritation risk assessment and quantify costs
and benefits. At the conclusion of this work, OPPTS anticipates
determining whether it should take action, which may include action
under TSCA, or via the development of a voluntary consensus standard or
other approaches. As OPPTS evaluates risks and options under TSCA,
OPPTS intends to coordinate its efforts with other interested EPA
offices and agencies, as well as engage the public and stakeholders.

Statement of Need:

On March 24, 2008, 25 organizations/5,000 individuals petitioned EPA to
use TSCA Sec. 6 to adopt a California Air Resources Board regulation
as a national standard for formaldehyde emissions from composite wood
products. In response, EPA committed to initiate a proceeding to
investigate whether and what type of regulatory or other action might
be appropriate to protect against risks posed by formaldehyde emitted
from pressed wood products. This decision was based on the hazards of
formaldehyde, in combination with the potential for prolonged exposure
to potentially problematic levels of formaldehyde for occupants of
newly constructed housing.

Summary of Legal Basis:

The Agency has not decided to take any rulemaking action, but it is
evaluating potential actions under TSCA sections 6(a) and 6(b).

Alternatives:

The Agency has not yet determined that any action is necessary, but it
is evaluating potential actions under TSCA sections 6(a) and 6(b) as
well as voluntary action.

Anticipated Cost and Benefits:

The Agency has not determined that any action is necessary or evaluated
the costs and benefits of any possible actions.

Risks:

Formaldehyde is an eye, nose, throat, and skin irritant. At this time,
the Agency is primarily concerned with the irritation risks posed by
formaldehyde emissions from pressed wood products.

[[Page 71262]]

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
ANPRM 11/00/08
NPRM To Be Determined

Regulatory Flexibility Analysis Required:

Undetermined

Government Levels Affected:

Undetermined

Federalism:

Undetermined

Additional Information:

SAN No. 5287

Agency Contact:
Cindy Wheeler
Environmental Protection Agency
Office of Prevention, Pesticides and Toxic Substances
7404T
Washington, DC 20460
Phone: 202 566-0484
Fax: 202 566-0470
Email: [email protected]

Lynn Vendinello
Environmental Protection Agency
Office of Prevention, Pesticides and Toxic Substances
7404T
Washington, DC 20460
Phone: 202 566-0514
RIN: 2070-AJ44
_______________________________________________________________________

EPA

101. DEFINITION OF SOLID WASTE FOR NON-HAZARDOUS MATERIALS

Priority:

Other Significant

Unfunded Mandates:

Undetermined

Legal Authority:

42 USC 7429(a)(1)

CFR Citation:

Not Yet Determined

Legal Deadline:

None

Abstract:

The DC Circuit Court of Appeals vacated and remanded two EPA rules
promulgated under the Clean Air Act (CAA) - the Commercial and
Industrial Solid Waste Incineration (CISWI) definitions rule, issued
under section 129 of the CAA, and the Boiler MACT, issued under section
112. The court concluded that EPA erred by excluding units that combust
solid waste for the purpose of energy recovery from the CISWI rule and
including such units in the Boilers rule. In response to the court's
decision, EPA is now preparing to establish new standards under
sections 112 and 129 for the various units subject to each section.

Section 129 regulates solid waste incineration units, defining them as
units that combust ``any'' solid waste. It further defines ``solid
waste'' as having the meaning established by the Administrator pursuant
to the Solid Waste Disposal Act (SWDA). Thus, if a material is not a
solid waste as established by the Administrator pursuant to the SWDA,
the unit in which it is burned would not be covered under section 129.

Statement of Need:

The Office of Solid Waste and Emergency Response (OSWER) needs to
determine which non-hazardous materials are ``solid wastes'' under SWDA
so that the Office of Air and Radiation (OAR) can conduct appropriate
sampling and determine MACT standards.

Summary of Legal Basis:

Section 129 of the CAA directs EPA to promulgate emission standards for
``solid waste incineration units'' under the Act. 42 U.S.C. Section
7429(a)(1). Previous rulemaking was vacated by the Court, therefore it
is critical for OSWER to determine what constitutes a solid waste for
purposes of section 129 of the CAA.

Alternatives:

No alternatives exist at this time.

Anticipated Cost and Benefits:

Non-hazardous industrial materials, such a coal combustion products and
refuse materials, spent foundry sands, and construction and demolition
(C&D) materials, as well as scrap tires, wood/biomass, used oil, and
solvents, all represent examples of ``usable materials'' that are
generated by industry in the process of producing primary products.
These materials, when used as ``secondary materials'' for fuel or as
ingredients in production processes, can provide significant and wide-
spread benefits. The productive reuse of ``secondary materials'' for
these purposes is central to the very principles of conservation and
sustainability.

Risks:

Risks to human health and the environment, if any, will be addressed by
either Section 112 or Section 129 of the CAA.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
ANPRM 12/00/08

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Undetermined

Federalism:

Undetermined

Additional Information:

SAN No. 5266

Agency Contact:
Michael Galbraith
Environmental Protection Agency
Solid Waste and Emergency Response
5306P
Washington, DC 20460
Phone: 703-605-0567
Fax: 703 308-8686
Email: [email protected]

Jim Eddinger
Environmental Protection Agency
Solid Waste and Emergency Response
D24301
Durham, NC 20460
Phone: 919 541-5426
Fax: 919 541-5450
Email: [email protected]
RIN: 2050-AG44
_______________________________________________________________________

EPA

-----------

PROPOSED RULE STAGE

-----------

102. GREENHOUSE GAS MANDATORY REPORTING RULE

Priority:

Other Significant

Legal Authority:

42 USC 7401 et seq

CFR Citation:

Not Yet Determined

Legal Deadline:

NPRM, Statutory, September 26, 2008, FY08 Consolidated Appropriations

[[Page 71263]]

directed EPA to publish a proposal 9 months after enactment.

Final, Statutory, June 26, 2009, FY08 Consolidated Appropriations
directed EPA to publish final 18 months after enactment.

Abstract:

On December 26, 2007, President Bush signed the FY2008 Consolidated
Appropriations Amendment which authorized funding for EPA to ``develop
and publish a draft rule not later than 9 months after the date of
enactment of this Act, and a final rule not later than 18 months after
the date of enactment of this Act, to require mandatory reporting of
greenhouse gas emissions above appropriate thresholds in all sectors of
the economy of the United States.'' The accompanying joint explanatory
statement directed EPA to ``use its existing authority under the Clean
Air Act'' to develop a mandatory greenhouse gas reporting rule. The
joint explanatory statement went on to say that ``The Agency is further
directed to include in its rule reporting of emissions resulting from
upstream production and downstream sources, to the extent that the
Administrator deems it appropriate.'' Accordingly this rulemaking would
establish monitoring, reporting, and recordkeeping requirements on
facilities that produce, import, or emit greenhouse gases above a
specific threshold in order to provide comprehensive and accurate data
to support a range of future climate policy options.

Statement of Need:

This action is necessary because the FY2008 Consolidated Appropriations
Amendment signed by President Bush on December 26, 2007, authorized EPA
to ``develop and publish a draft rule not later than 9 months after the
date of enactment of this Act, and a final rule not later than 18
months after the date of enactment of this Act, to require mandatory
reporting of greenhouse gas emissions above appropriate thresholds in
all sectors of the economy of the United States.''

Summary of Legal Basis:

The legal basis is the Clean Air Act, 42 U.S.C. 7401, et seq.

Alternatives:

Not yet determined.

Anticipated Cost and Benefits:

Not yet determined.

Risks:

Not yet determined.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 02/00/09
Final Action 10/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

Additional Information:

SAN No. 5242

Agency Contact:
Suzanne Kocchi
Environmental Protection Agency
Air and Radiation
6207J
Washington, DC 20460
Phone: 202 343-9387
Email: [email protected]

Reid Harvey
Environmental Protection Agency
Air and Radiation
6207J
Washington, DC 20460
Phone: 202 343-9429
Email: [email protected]
RIN: 2060-AO79
_______________________________________________________________________

EPA

103. RENEWABLE FUELS STANDARD PROGRAM

Priority:

Economically Significant. Major under 5 USC 801.

Unfunded Mandates:

This action may affect the private sector under PL 104-4.

Legal Authority:

Clean Air Act Section 211(o)

CFR Citation:

40 CFR Part 86, 40 CFR Part 80

Legal Deadline:

Final, Statutory, December 19, 2008.

Abstract:

This action will implement certain provisions in Title II of the 2007
Energy Independence and Security Act that amend Section 211 (o) of the
Clean Air Act. The new law sets a modified standard for renewable fuels
increasing the national requirement to 9.0 billion gallons in 2008 and
rising to 36 billion gallons by 2022. Of the latter total, 21 billion
gallons is required to be obtained from cellulosic ethanol and other
advanced biofuels. Starting in 2016, all of the increase in the RFS
target must be met with advanced biofuels, defined as cellulosic
ethanol and other biofuels derived from feedstock other than corn
starch -- with explicit standards for cellulosic biofuels and biomass-
based diesel. Renewable fuels produced from new biorefineries will be
required to reduce by at least 20% the life cycle greenhouse gas (GHG)
emissions relative to life cycle emissions from gasoline and diesel.

Statement of Need:

This action will implement certain provisions in Title II of the 2007
Energy Independence and Security Act that amend Section 211 (o) of the
Clean Air Act. This new law sets a modified standard for renewable
fuels and directs EPA to implement that standard.

Summary of Legal Basis:

Clean Air Act Section 211(o)

Alternatives:

Alternatives are being developed and will be presented in the Preamble
to the proposed rule.

Anticipated Cost and Benefits:

We haven't completed the necessary ananlytical work that supports
calculating and developing the costs and benefits of this rule. Once
the analysis plan/work is completed, we can then compile and present
the information.

Risks:

This rule will increase energy security by increasing the domestic
supply of energy, and will reduce greenhouse gas emissions.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 11/00/08
Final Action 06/00/09

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses

Government Levels Affected:

None

Energy Effects:

Statement of Energy Effects planned as required by Executive Order
13211.

[[Page 71264]]

Additional Information:

SAN No. 5250

Agency Contact:
Paul Argyropoulos
Environmental Protection Agency
Air and Radiation
6520J ARN
Washington, DC 20460
Phone: 202 564-1123
Fax: 202 564-1686
Email: [email protected]

David Korotney
Environmental Protection Agency
Air and Radiation
AAFC
Ann Arbor, MI 48105
Phone: 734 214-4507
Email: [email protected]
RIN: 2060-AO81
_______________________________________________________________________

EPA

104. RISK AND TECHNOLOGY REVIEW PHASE II GROUP 2A

Priority:

Other Significant

Legal Authority:

CAA Section 112(f)(2); CAA Section 112(d)(6)

CFR Citation:

Not Yet Determined

Legal Deadline:

Final, Statutory, September 19, 2003, 5 MACT included in RTR Group 2A.
EPA required to complete RTR 8 yrs after promulgation. RTR due for this
rule: 09/2003 to 06/2007.

Abstract:

This action is the Risk and Technology Review (RTR) Group 2A and its
title is: National Emission Standards for Hazardous Air Pollutant
Emissions: Group I Polymers and Resins (Epichlorohydrin Elastomers
Production, HypalonTM Production, Nitrile Butadiene Rubber Production,
Polybutadiene Rubber Production, and Styrene Butadiene Rubber and Latex
Production); National Emission Standards for Marine Vessel Loading
Operations; National Emission Standards for Hazardous Air Pollutants
for Mineral Wool Production; National Emission Standards for
Pharmaceuticals Production; and National Emission Standards for the
Printing and Publishing Industry. It will address both EPA's obligation
to conduct a residual risk review and to conduct a technology review.
It includes nine source categories, each affected by one of five MACT
standards.

Statement of Need:

CAA section 112(f)(2) requires us to determine for source categories
subject to certain CAA section 112(d) standards whether the emissions
limitations provide an ample margin of safety to protect public health.
If the MACT standards for HAP ``classified as a known, probable, or
possible human carcinogen do not reduce lifetime excess cancer risks to
the individual most exposed to emissions from a source in the category
or subcategory to less than 1-in-1 million,'' EPA must promulgate
residual risk standards for the source category (or subcategory), as
necessary, to provide an ample margin of safety to protect public
health. EPA must also adopt more stringent standards, if necessary, to
prevent an adverse environmental effect, ``Adverse environmental
effect'' is defined in CAA section 112(a)(7) as any significant and
widespread adverse effect which may be reasonably anticipated to
wildlife, aquatic life, or natural resources, including adverse impacts
on populations of endangered or threatened species or significant
degradation of environmental quality over broad areas. but must
consider cost, energy, safety, and other relevant factors in doing so.
This residual risk review is due 8 years after MACT standard compliance
date. EPA is also required to review and revise the MACT standards
every 8 years with regard to practices, processes and control
technologies according to Section 112(d)(6) of the CAA.

Summary of Legal Basis:

Clean Air Act Sections 112(f)(2) and 112(d)(6).

Alternatives:

Alternatives are developed for residual risk to evaluate ample margin
of safety or if risk is unaccetable. Alternatives are developed for
technology review if there have been significant advances in practices,
processes and control technologies. For the Printing and Publishing
MACT, risks were acceptable and an ample margin of safety was achieved,
and no significant technological advances were identified. Therefore,
no alternatives were evaluated. For the other eight source categories
in RTR Group 2A, alternatives were considered; none was cost-effective
relative to the associated reduction in risk.

Anticipated Cost and Benefits:

No revisions to the MACT standards were proposed; therefore, there are
no associated costs or emissions reductions.

Risks:

The risk assessment found that after application of the MACT standards
the chronic cancer risks are below 100-in-1 million, which is
acceptable, and additional controls were not cost-effective; therefore,
the MACT standards provide an ample margin of safety to protect public
health and no further cancer risk reduction was required. The analysis
also found that non-cancer and acute risks to humans, as well as
ecological risks from these facilities, were low and that no further
controls were warranted.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 11/00/08
Final Action 01/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

Additional Information:

SAN No. 5093.2; Split from RIN 2060-AN85.

Agency Contact:
Mary Kissell
Environmental Protection Agency
Air and Radiation
E143-01
Research Triangle Park, NC 27711
Phone: 919 541-4516
Fax: 919 685-3219
Email: [email protected]

Ken Hustvedt
Environmental Protection Agency
Air and Radiation
E143-01
Research Triangle Park, NC 27711
Phone: 919 541-5395
Fax: 919 541-0246
Email: [email protected]
RIN: 2060-AO91

[[Page 71265]]

_______________________________________________________________________

EPA

105. EFFLUENT LIMITATIONS GUIDELINES AND STANDARDS FOR THE CONSTRUCTION
AND DEVELOPMENT POINT SOURCE CATEGORY

Priority:

Economically Significant. Major under 5 USC 801.

Unfunded Mandates:

This action may affect the private sector under PL 104-4.

Legal Authority:

CWA 301; CWA 304; CWA 306; CWA 501

CFR Citation:

Not Yet Determined

Legal Deadline:

Other, Judicial, December 1, 2007, Data collection, identification of
best options, and development of cost-benefit models completed.

NPRM, Judicial, December 1, 2008, FR Publication by 12/1/2008 as per
12/5/2006 Court Order.

Final, Judicial, December 1, 2009, FR Publication by 12/1/2009 as per
12/5/2006 Court Order.

Abstract:

This rulemaking will establish effluent limitations guidelines (ELG)
and new source performance standards (NSPS) for stormwater discharges
associated with construction and development activities. This
rulemaking and its schedule respond to a court order that requires the
Agency to promulgate final regulations by December 2009. The ELGs and
NSPSs will control the discharge of pollutants such as sediment in
stormwater discharges from construction and development activities and
will be implemented through the issuance of NPDES permits.

Statement of Need:

Despite substantial improvements in the nation's water quality since
the inception of the Clean Water Act, 45 percent of assessed river and
stream miles, 47 percent of assessed lake acres, and 32 percent of
assessed square miles of estuaries show impairments from a wide range
of sources. Improper control of stormwater discharges from construction
activity is among the many contributors to remaining water quality
problems throughout the United States. Sediment is the primary
pollutant that causes water quality impairment for streams and rivers.
Construction generates significantly higher loads of sediment per acre
than other sources. The rulemaking would constitute the nationally
applicable, technology-based ELGs and NSPS applicable to all
dischargers required to obtain a National Pollutant Discharge
Elimination System (NPDES) permit.

Summary of Legal Basis:

The Clean Water Act authorizes EPA to establish ELGs and NSPS to limit
the pollutants discharged from point sources. In addition, EPA is bound
by the district court decision, in NRDC v. EPA, 437 F.Supp.2d 1137,
(C.D. Cal.2006), to propose ELGs and NSPS for the construction and
development industry by December 1, 2008 and to promulgate ELGs and
NSPS as soon as practicable, but in no event later than December 1,
2009.

Alternatives:

The Clean Water Act directs EPA to establish a technology basis for the
ELGs and NSPS, which are based on the performance of specific
technology levels, such as the best available technology economically
achievable. EPA is considering a range of pollution control approaches
and technologies, and is also considering waivers based on construction
site size, rainfall, and soil erosivity to reduce the impact on small
dischargers.

Anticipated Cost and Benefits:

The annualized social costs of the rulemaking are estimated to range
from $141 million to $3.8 billion, and the annualized monetized
benefits are estimated to range from $11 million to $327 million. The
costs include compliance costs, administrative costs, and partial
equilibrium estimates of quantity effects and deadweight loss to
society. The monetized benefit categories include avoided costs of
dredging for navigation and water storage, avoided costs of drinking
water treatment, and monetizable water quality benefits.

Risks:

Sediment is currently one of the major pollutants that causes water
quality impairment for streams and rivers, and presents a risk to
aquatic life. The ELGs and NSPS are expected to result in a reduction
of the discharge of pollutants to surface waters, primarily as sediment
and turbidity.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 12/00/08
Final Action 12/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Businesses, Governmental Jurisdictions

Government Levels Affected:

Federal, Local, State

Additional Information:

SAN No. 5119

URL For More Information:
www.epa.gov/guide/construction

Agency Contact:
Jesse Pritts
Environmental Protection Agency
Water
4303T
Washington, DC 20460
Phone: 202 566-1038
Fax: 202 566-1053
Email: [email protected]

Ronald Jordan
Environmental Protection Agency
Water
4303T
Washington, DC 20460
Phone: 202 566-1003
Fax: 202 566-1053
Email: [email protected]
RIN: 2040-AE91
_______________________________________________________________________

EPA

-----------

FINAL RULE STAGE

-----------

106. PREVENTION OF SIGNIFICANT DETERIORATION AND NONATTAINMENT NEW
SOURCE REVIEW: EMISSION INCREASES FOR ELECTRIC GENERATING UNITS

Priority:

Other Significant

Legal Authority:

Clean Air Act, Title I Parts C and D and Section 111(a)(4)

CFR Citation:

40 CFR Part 51; 40 CFR Part 52

Legal Deadline:

None

Abstract:

This rulemaking would revise the emissions test for existing electric
generating units (EGUs) that are subject to the regulations governing
the Prevention of Significant Deterioration

[[Page 71266]]

(PSD) and nonattainment major New Source Review (NSR) programs mandated
by parts C and D of title I of the Clean Air Act (CAA). The existing
emissions test compares actual emissions to either potential emissions
or projected actual emissions. Under this rulemaking's revised NSR
emissions test (a maximum hourly test like that used in the NSPS
program), we would compare the EGU's maximum hourly emissions
(considering controls) before the change for the past 5 years to the
maximum hourly emissions after the change. The maximum hourly emissions
test will be based either on maximum achieved or maximum achievable
hourly emissions, measured on an input or an output basis. One proposed
option provides that the maximum hourly emissions increase test would
be followed by the annual emissions increase test in the current rules.

Statement of Need:

Utilization of this rulemaking's alternative NSR applicability test for
existing EGUs would encourage increased utilization at the more
efficient units by displacing energy production at less efficient ones.

Summary of Legal Basis:

Parts C and D of title I of the Clean Air Act; CAA section 111(a)(4)

Alternatives:

The proposed basis for the applicability test is a comparison of
maximum hourly emissions, which will enhance the implementation and
environmental benefits for existing EGUs.

Anticipated Cost and Benefits:

We are not able to provide quantitative estimates of the costs and
benefits of this rule because of the difficulty in identifying the
quantity and locations of sources that will utilize this rulemaking in
the future, and the difficulty in specifically quantifying the
difference in environmental outcomes that would result with and without
the rule. Qualitatively, our analysis indicates that we anticipate a
reduction in recordkeeping and reporting - and therefore a decrease in
cost - and we expect that the environmental benefits of the program
would not significantly change and may improve as a result of the
positive impact on the safety, reliability, and efficiency of EGUs as a
result of this rulemaking.

Risks:

We are not able to provide quantitative risk information because of the
difficulty in identifying the quantity and locations of sources that
will utilize this rulemaking in the future, and the difficulty in
specifically quantifying the difference in environmental outcomes that
would result with and without the rule.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 10/20/05 70 FR 61081
Supplemental NPRM 05/08/07 72 FR 26202
Notice of public hearing 06/07/07 72 FR 31491
Final Action 12/00/08

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Federal, State, Local, Tribal

Additional Information:

SAN No. 4794.2; EPA publication information: NPRM - http://www.epa.gov/
fedrgstr/EPA-AIR/2005/October/Day-20/a20983.htm; Split from RIN 2060-
AM95.; EPA Docket information: EPA-HQ-OAR-2005-0163

URL For More Information:
www.epa.gov/nsr

Agency Contact:
Lisa Sutton
Environmental Protection Agency
Air and Radiation
C339-03
Research Triangle Park, NC 27711
Phone: 919 541-3450
Fax: 919 541-1039
Email: [email protected]

Dave Svendsgaard
Environmental Protection Agency
Air and Radiation
C339-03
Washington, DC 20460
Phone: 919 541-2380
Email: [email protected]
RIN: 2060-AN28
_______________________________________________________________________

EPA

107. HAZARDOUS WASTE MANIFEST REVISIONS -- STANDARDS AND PROCEDURES FOR
ELECTRONIC MANIFESTS

Priority:

Other Significant

Legal Authority:

42 USC 6922; 42 USC 6923; 42 USC 6924; 42 USC 6926; PL 105-277

CFR Citation:

40 CFR 260; 40 CFR 262; 40 CFR 263; 40 CFR 264; 40 CFR 265; 40 CFR 271

Legal Deadline:

None

Abstract:

This action is aimed at finalizing the development of EPA's Resource
Conservation and Recovery Act (RCRA) regulatory standards and
procedures that will govern the initiation, signing, transmittal, and
retention of hazardous waste manifests using electronic documents and
systems. There are 2.4 million Federal-defined RCRA hazardous waste
paper manifests processed each year, and a total of 5.1 million
manifests processed each year including State-defined hazardous waste
paper manifests. EPA proposed electronic manifest standards in May 2001
as part of a more general manifest revision action that also addressed
standardizing the paper manifest form's data elements and procedures
for its use across all states (EPA Form 8700-22). The manifest form
revisions were decoupled from action on the electronic manifest, and
the Final Form Revisions Rule was published on June 16, 2005. The May
2001 proposed rule included: (1) Electronic file formats for the
manifest data elements; (2) electronic signature options; and (3)
computer security controls aimed at ensuring data integrity and
reliable commercial e-manifest systems. However, since publication of
the 2001 proposed rule, EPA found that there is a broad consensus in
favor of a single national ``eManifest'' system sponsored by EPA,
rather than assorted de-centralized commercial systems. Subsequently in
May 2004, EPA conducted a manifest stakeholder meeting to collect
additional stakeholder views on the future direction of eManifest.
Based on public comment on the 2001 proposed electronic standards and
stakeholder feedback at the May 2004 meeting, EPA published a Notice of
Data Availability (NODA) on 18 April 2006 announcing EPA's preferred
approach to develop a centralized web-based eManifest system to be
hosted on EPA's Central Data Exchange (CDX) computer hub. To that end,
in Autumn 2006 EPA provided technical assistance to the US Senate for
drafting S.3871 which would have authorized the CDX-based solution, as
well as authorized EPA to charge and retain user fees to fund a
``share-in-

[[Page 71267]]

revenue'' contracting approach to build and operate eManifest. EPA's
ability to publish a final rule in 2009 that will recognize this system
as a compliant voluntary alternative to the current paper manifest
form, and to pursue this centralized eManifest design and funding
solution will depend on new Congressional authority for EPA to collect
user fees.

Statement of Need:

This revision of the RCRA regulation is necessary to establish the
standards and procedures under which hazardous waste handlers will be
authorized to use electronic manifests in lieu of the existing paper
manifest form (EPA Form 8700-22). EPA's current RCRA regulations only
allow the use of the paper manifest form which must be carried
physically with the waste shipment, signed by hand with each change of
custody, and filed among each waste handler's operating records for
three years. This revision to the RCRA manifest regulation will specify
the conditions under which electronic manifests may be obtained,
completed, electronically signed, and transmitted, so that the
electronic manifests may be used and accepted as the legal equivalent
of the current paper manifest form.

Summary of Legal Basis:

There is currently not in place a statue or court order that requires
EPA to revise the RCRA manifest regulations to adopt the electronic
manifest regulation. However, on September 7, 2006 the U.S. Senate
introduced S.3871 that would mandate the development of an electronic
manifest system by EPA. The U.S. Senate also introduced a similiar bill
S.3109 on June 10, 2008. In addition to authorizing EPA to collect user
fees to build and annually operate and maintain the e-manifest
information technology (IT) system using a novel share-in-revenue
contracting approach, this new bill, also authorizes the collection of
user fees to process paper manifests, should EPA require their
collection and provides for the tracking of state regulated hazardous
wastes. The bill also clarifies what state governments would not be
subject to the user fees authorized by the bill. If enacted by the
Congress, the bill could include a deadline to EPA for promulgating
revisions to the RCRA manifest regulations to authorize the voluntary
use of electronic manifests. Whether or not there is such a statutory
mandate, EPA could develop a regulation prescribing the conditions for
electronic manifesting under the authority of RCRA Section 3002(a)(5),
which authorizes EPA to promulgate regulations establishing standards
for generators of hazardous waste, including standards on ``the use of
a manifest system and any other reasonable means necessary to assure
that all such hazardous waste generated is designated for treatment,
storage, or disposal in and arrives at'' permitted facilities.

Alternatives:

Based on public comments submitted on EPA's 2001 electronic manifest
proposed rule, and additional manifest stakeholder input received at
EPA's 2004 public meeting on eManifest, EPA's preferred alternative is
now the development of a centralized national eManifest system that EPA
would develop and operate under a share-in-revenue contract funded by
user fees, and hosted on EPA's Central Data Exchange (CDX) computer
hub. Other alternatives include (1) a national system that would be
developed entirely commercially and operated by the NGO; (2) a
decentralized option like the one suggested in the EPA's 2001 proposed
rule, under which various private entities would develop numerous
eManifest systems adhering to standards announced by EPA; and a no
action alternative, under which all manifesting would continue only
with paper manifests. Although too early for EPA to evaluate as of
2007, the 2006-2009 electronic manifesting pilot project hosted by the
Michigan state government may provide a new alternative for EPA to
consider scaling-up to become the national eManifest system.

Anticipated Cost and Benefits:

As initially estimated by an EPA contractor in 2002, the first-year
start-up (i.e., design, build, and installation) costs to EPA for a
centralized national eManifest system to be hosted on EPA's CDX
computer hub, are projected to be in the range of $2 million to $7
million. EPA's annual operation and maintenance (O&M) costs for such a
system are projected in the range $1.6 million to $3.2 million. EPA
updates and refines the system cost estimates but refrains from making
them publicly available because they constitute EPA's confidential
independent government cost estimate (IGCE) which EPA will use as a
benchmark to evaluate contractor bids to procure the system. In
addition to EPA system costs, (a) the regulated community consisting of
227,000 industrial facilities involved in shipping hazardous wastes
every year, may voluntarily need to purchase $60 million to $69 million
in computer equipment and services to connect to eManifest, and (b)
state governments may voluntary need to spend around $3 million to
integrate with the eManifest system, although EPA's over $100 million
in grants the past few years to integrate state governments with EPA's
CDX via EPA's National Environmental Information Exchange Network
(NEIEN) has nearly provided integration for all state governments and
many large industrial facilities with CDX via NEIEN nodes. National
economic benefits from eManifest are expected to provide 45% reduction
in paperwork burden costs to manifest useres and to RCRA-authorized
state government agencies of up to $233 million per year (relative to a
baseline national cost for paper manifest burden of $513 million per
year), assuming that 75% of manifests can be completed electronically.
These projected savings can also be expressed as a net unit paperwork
burden savings of $23 to $40 per manifest. Other expected benefits of
eManifest include: (1) better quality and more timely waste shipment
data; (2) nearly real time shipment tracking capabilities for users and
public safety agencies (rather than a 30-day wait); (3) enhanced
inspection and compliance monitoring capabilities for regulators; (4)
more rapid notification and response to problems or discrepancies with
waste shipments; (5) more efficient or ``one-stop'' submission of
manifest data to States; and (6) new possibilities to manage manifest
data and to simplify or consolidate existing systems for reporting and
tracking manifest and RCRA Biennial Report hazardous waste shipment
data.

Risks:

This action addresses administrative requirements for tracking
hazardous waste shipments and does not involve the control of ``risks''
in the sense that RCRA regulations typically address environmental,
human health, and public safety risks posed by the possible mis-
management of hazardous wastes. Consequently, EPA has developed a CPIC
Exhibit 300 business case ``Risk Management Plan'' for this action,
rather than a hazardous waste chemical exposure risk analysis. Since
the e-manifest regulation could authorize the voluntary use of an
information technology (IT) system that would be developed to create
and transmit electronic manifests, there would be information system

[[Page 71268]]

management risks and information security risks associated with
developing and operating such an IT system. EPA is assessing and
managing these IT risks as part of OMB's annual Capital Planning and
Investment Control (CPIC) process that governs the management of EPA's
IT investments.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM Original 05/22/01 66 FR 28240
Notice of Public Meeting 04/01/04 69 FR 17145
NODA 04/18/06 71 FR 19842
NODA 2 02/26/08 73 FR 10204
Final Action 09/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Federal, State

Additional Information:

SAN No. 3147.1; EPA publication information: NPRM Original - http://
www.gpo.gov/su--docs/aces/fr-cont.html; Split from RIN 2050-AE21.; EPA
Docket information: EPA-HQ-RCRA-2001-0032

Sectors Affected:

325 Chemical Manufacturing; 2211 Electric Power Generation,
Transmission and Distribution; 332 Fabricated Metal Product
Manufacturing; 2122 Metal Ore Mining; 2111 Oil and Gas Extraction; 326
Plastics and Rubber Products Manufacturing; 331 Primary Metal
Manufacturing; 323 Printing and Related Support Activities; 3221 Pulp,
Paper, and Paperboard Mills; 482 Rail Transportation; 484 Truck
Transportation; 5621 Waste Collection; 56221 Waste Treatment and
Disposal; 483 Water Transportation

URL For More Information:
www.epa.gov/epaoswer/hazwaste/gener/manifest/

Agency Contact:
Rich LaShier
Environmental Protection Agency
Solid Waste and Emergency Response
5304P
Washington, DC 20460
Phone: 703 308-8796
Fax: 703 308-0514
Email: [email protected]

Bryan Groce
Environmental Protection Agency
Solid Waste and Emergency Response
5304P
Washington, DC 20460
Phone: 703 308-8750
Fax: 703 308-0514
Email: [email protected]
RIN: 2050-AG20
_______________________________________________________________________

EPA

108. CERCLA--ADMINISTRATIVE REPORTING EXEMPTION FOR AIR RELEASES OF
HAZARDOUS SUBSTANCES FROM ANIMAL WASTE AT FARMS

Priority:

Other Significant

Legal Authority:

42 USC 9603; 42 USC 11004

CFR Citation:

40 CFR 302; 40 CFR 355

Legal Deadline:

None

Abstract:

EPA is considering finalizing an administrative reporting exemption
from particular notification requirements under the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), as
amended. This exemption would apply to releases of hazardous substances
to the air that meet or exceed their reportable quantity where the
source of those hazardous substances is animal waste at farms. The
proposed rule also included a parallel administrative reporting
exemption (also for the release of hazardous substances to the air that
meet or exceed their reportable quantity from animal waste at farms)
from the Emergency Planning and Community Right-to-Know Act (EPCRA).
EPA is not making a final decision on this part of the proposed rule at
this time. Persons still have an obligation to file reports under
EPCRA, as appropriate, until EPA makes a final decision and amends the
section 304 requirements. Nothing in the rule will change the
notification requirements if hazardous substances are released to the
air from any other source other than animal waste at farms (i.e.,
ammonia tanks), as well as releases of any hazardous substances from
animal waste to any other environmental media, (i.e., soil, ground
water, surface water) when the release of those hazardous substances is
at or above its reportable quantity. This administrative reporting
exemption is protective of human health and the environment and
consistent with the Agency's goal to reduce reporting burden where
there would likely be no Federal response to such release reports.
Eliminating such reporting will allow response officials to better
focus on releases where EPA is more likely to take a response action.
The administrative reporting exemption from the notification
requirements under CERCLA section 103(a) will not limit any of its
authorities under CERCLA sections 104 (response authorities), 106
(abatement actions), 107 (liability), or any other provisions of
CERCLA.

Statement of Need:

Under this action, the Agency is considering the primary purpose of
CERCLA and EPCRA notification requirements and is considering an
exemption based on the likelihood of whether there would or would not
be a governmental response to those notifications.

Summary of Legal Basis:

This action is not required by statute or court order. This action is
being done at the discretion of the Agency.

Alternatives:

Not applicable.

Anticipated Cost and Benefits:

If finalized, it is estimated that the rule will reduce burden on farms
associated with making modifications under CERCLA section 103 by
approximately 3,408,000 hours over the ten-year period beginning in
2009 and associated costs by approximately $155,313,000 over the same
period.

Risks:

Not estimated.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 12/28/07 72 FR 73700
Final Action 11/00/08

Regulatory Flexibility Analysis Required:

[[Page 71269]]

Small Entities Affected:

Government Levels Affected:

Federal, Local, State

Additional Information:

SAN No. 5117; EPA publication information: NPRM - http://www.epa.gov/
fedrgstr/EPA-AIR/2007/December/Day-28/a25231.pdf; EPA Docket
information: EPA-HQ-SFUND-2007-0469

Agency Contact:
Lynn Beasley
Environmental Protection Agency
Solid Waste and Emergency Response
5104A
Washington, DC 20460
Phone: 202 564-1965
Fax: 202 564-2625
Email: [email protected]
RIN: 2050-AG37
BILLING CODE 6560-50-S

[[Page 71270]]

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)

Statement of Regulatory and Deregulatory Priorities
The mission of the Equal Employment Opportunity Commission (EEOC,
Commission or agency) is to ensure equality of opportunity in
employment by vigorously enforcing six federal statutes. These statutes
are: Title VII of the Civil Rights Act of 1964, as amended (prohibits
employment discrimination on the basis of race, color, sex, religion,
or national origin); the Equal Pay Act of 1963, as amended; the Age
Discrimination in Employment Act of 1967 (ADEA), as amended; Title I of
the Americans with Disabilities Act of 1990, as amended, and sections
501 and 505 of the Rehabilitation Act of 1973, as amended (disability);
and the Government Employee Rights Act of 1991, which extends
protections against employment discrimination to certain Federal
employees who were not previously covered.
The first item in this Regulatory Plan is titled ``Disparate Impact
Under the Age Discrimination in Employment Act.'' In Smith v. City of
Jackson, 544 U.S. 228 (2005), the United States Supreme Court affirmed
that disparate impact is a cognizable theory of discrimination under
the Age Discrimination in Employment Act (``ADEA'') but indicated that
``reasonable factors other than age'' (``RFOA'' ) is the appropriate
model for the employers' defense against an impact claim.
Current EEOC regulations interpret the ADEA as prohibiting an
employment practice that has a disparate impact on individuals within
the protected age group unless it is justified as a business necessity.
The Supreme Court's holding in Smith v. City of Jackson validated the
Commission's position that disparate impact analysis applies in ADEA
cases. The holding, however, differed from the Commission's position
that the business necessity test was the appropriate standard for
determining the lawfulness of a practice that had an age-based
disparate impact. The EEOC is revising its regulation to reflect the
Smith decision.
The second item in this Regulatory Plan is titled the ``Genetic
Information Nondiscrimination Act'' and involves the use of genetic
information in the workplace. On May 21, 2008, the President signed
into law the Genetic Information Nondiscrimination Act of 2008 (GINA)
in light of achievements in the field of genetics such as decoding the
human genome and using genomic medicine. Many genetic tests now exist
that can inform individuals whether they may be at risk for developing
specific diseases or disorders.
Congress enacted GINA to address public concerns regarding
discrimination and misuse of genetic information. GINA prohibits
employment discrimination based on genetic information and restricts
acquisition and disclosure of such information. In particular, Title II
of the Act protects job applicants, current and former employees, labor
union members, and apprentices and trainees, from discrimination based
on their genetic information, whether acquired through genetic testing
or from an individual's family medical history. It also places strict
limits on the acquisition or disclosure of genetic information and
requires that information that is acquired be maintained in a
confidential medical file, separate and apart from personnel
information.
Consistent with section 4(c) of Executive Order 12866, this statement
was reviewed and approved by the Chair of the Agency. The statement has
not been reviewed or approved by the other members of the Commission.
_______________________________________________________________________

EEOC

-----------

PROPOSED RULE STAGE

-----------

109. GENETIC INFORMATION NONDISCRIMINATION ACT

Priority:

Other Significant

Legal Authority:

42 USC section 2000ff-10

CFR Citation:

29 CFR 1635

Legal Deadline:

Final, Statutory, May 21, 2009, As set forth in section 211 of the
Genetic Information Nondiscrimination Act.

Abstract:

Section 211 of the Genetic Information Nondiscrimination Act of 2008,
42 U.S.C. section 2000ff-10, requires the Equal Employment Opportunity
Commission to issue regulations implementing Title II of the Act. Title
II prohibits the use of genetic information in making employment
decisions and limits employer access to genetic information. The Act
also imposes confidentiality obligations on employers and other covered
entities (employment agencies, labor unions, and training programs)
that possess genetic information.

Statement of Need:

On May 21, 2008, the President signed into law the Genetic Information
Nondiscrimination Act of 2008(GINA). Congress enacted GINA in
recognition of, among many achievements in the field of genetics, the
decoding of the human genome and the creation and increased use of
genomic medicine. Many genetic tests now exist that can inform
individuals whether they may be at risk for developing a specific
disease or disorder. Congress enacted GINA to address public concerns
regarding the potential for misuse of genetic information.

GINA prohibits discrimination based on genetic information and
restricting acquisition and disclosure of such information. In
particular, Title II of the Act protects job applicants, current and
former employees, labor union members, and apprentices and trainees
from discrimination based on their genetic information. GINA prohibits
use of, and limits acquisition and disclosure of, genetic information,
whether acquired through genetic testing or from an individual's family
medical history. It also places strict limits on the acquisition or
disclosure of genetic information and requires that such information
that is acquired be maintained in a confidential medical file, separate
and apart from personnel information.

Summary of Legal Basis:

GINA section 211, 42 U.S.C. section 2000ff-10, requires the EEOC to
issue regulations implementing Title II of the Act within one year of
its enactment.

Alternatives:

None: Congress mandated issuance of regulations.

Anticipated Cost and Benefits:

The Commission does not anticipate that the rule will impose additional
costs to employers. The Genetic Information Nondiscrimination Act does
not impose any new employer reporting obligations or record keeping
obligations.

Risks:

The proposed rule imposes no new or additional risks to employers. This

[[Page 71271]]

proposal does not address risks to public safety or the environment.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 01/00/09
NPRM Comment Period End 03/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Federal, Local, State

Federalism:

Undetermined

Agency Contact:
Christopher Kuczynski
Assistant Legal Counsel, Office of Legal Counsel
Equal Employment Opportunity Commission
1801 L Street NW
Washington, DC 20507
Phone: 202 663-4665
Fax: 202 663-4639
Email: [email protected]
RIN: 3046-AA84
_______________________________________________________________________

EEOC

-----------

FINAL RULE STAGE

-----------

110. DISPARATE IMPACT UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT

Priority:

Other Significant

Legal Authority:

29 USC 628

CFR Citation:

29 CFR 1625.7(d)

Legal Deadline:

None

Abstract:

In Smith v. City of Jackson, 544 U.S. 228 (2005), the U.S. Supreme
Court affirmed that disparate impact is a cognizable theory of
discrimination under the Age Discrimination in Employment Act
(``ADEA'') but indicated that ``reasonable factors other than age''
(``RFOA''), not ``business necessity,'' is the appropriate model for
the employers' defense against an impact claim. Accordingly, the
Commission intends to revise its regulation on disparate impact,
currently codified at 29 CFR section 1625.7(d).

Statement of Need:

Current EEOC regulations interpret the ADEA as prohibiting an
employment practice that has a disparate impact on individuals within
the protected age group unless it is justified as a business necessity.
The Supreme Court's holding in Smith v. City of Jackson validated the
Commission's position that disparate impact analysis applies in ADEA
cases. The holding, however, differed from the Commission's position
that the business necessity test was the appropriate standard for
determining the lawfulness of a practice that had an age-based
disparate impact. The EEOC is revising its regulation to reflect the
Smith decision.

Summary of Legal Basis:

Section 9 of the ADEA authorizes the EEOC ``to issue such rules and
regulations it may consider necessary or appropriate for carrying out
this chapter . . ..'' 29 U.S.C. section 628.

Alternatives:

The Commission will consider all alternatives offered by the public
commenters.

Anticipated Cost and Benefits:

The proposed rule, which makes no change to covered entities'
compliance obligations under the ADEA, brings the Commission's
regulations into conformity with a recent Supreme Court interpretation
of the statute. This revision to EEOC's regulation, informed by the
comments of stakeholders, will be beneficial to courts, employers, and
employees seeking to interpret, understand, and comply with the ADEA.

Risks:

The proposed regulation will reduce the risks of liability for
noncompliance with the statute by clarifying the rights and
responsiblities of job applicants, employees, and covered entities. The
proposal does not address risks to public health, safety, or the
environment.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 03/31/08 73 FR 16807
NPRM Comment Period End 05/30/08
Final Action 05/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Businesses, Governmental Jurisdictions, Organizations

Government Levels Affected:

Federal, Local

Agency Contact:
Dianna B. Johnston
Assistant Legal Counsel, Office of Legal Counsel
Equal Employment Opportunity Commission
1801 L Street NW
Washington, DC 20507
Phone: 202 663-4638
TDD Phone: 202 663-7026
Fax: 202 663-4639
Email: [email protected]
RIN: 3046-AA76
BILLING CODE 6570-01-S

[[Page 71272]]

GENERAL SERVICES ADMINISTRATION (GSA)

Statement of Regulatory and Deregulatory Priorities
The General Services Administration (GSA) establishes agency
acquisition rules and guidance through the General Services Acquisition
Regulation (GSAR), which contains agency acquisition policies and
practices, contract clauses, solicitation provisions, and forms that
control the relationship between GSA and contractors and prospective
contractors.
GSA's fiscal year 2009 regulatory priority is to continue with the
complete rewrite of the GSAR. GSA is rewriting the GSAR to maintain
consistency with the Federal Acquisition Regulation (FAR), and to
implement streamlined and innovative acquisition procedures that
contractors, offerors, and GSA contracting personnel can utilize when
entering into and administering contractual relationships.
GSA will clarify the GSAR to--
Provide consistency with the FAR;
Eliminate coverage which duplicates the FAR or creates
inconsistencies within the GSAR;
Correct inappropriate references listed to indicate the basis
for the regulation;
Rewrite sections which have become irrelevant because of
changes in technology or business processes, or which place
unnecessary administrative burdens on contractors and the
Government;
Streamline or simplify the regulation;
Roll up coverage from the services and regions/zones which
should be in the GSAR;
Provide new and/or augmented coverage; and
Delete unnecessary burdens on small businesses.
BILLING CODE 6820-34-S

[[Page 71273]]

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA)

Statement of Regulatory Priorities
NASA's Mission, as stated in its 2006 Strategic Plan, is ``To pioneer
the future in space exploration, scientific discovery, and aeronautics
research.'' In the 50 years since Congress enacted the National
Aeronautics and Space Act of 1958, NASA has challenged its scientific
and engineering capabilities in pursuing its mission, generating
tremendous results, and benefits for all of humankind.
In the NASA Authorization Act of 2005, Congress endorsed the Vision for
Space Exploration and provided additional guidance for implementation.
NASA is committed to achieving this Vision through the six Strategic
Goals articulated in the 2006 Strategic Plan:
1. Fly the Shuttle as safely as possible until its retirement, not
later than 2010.
2. Complete the International Space Station in a manner consistent with
NASA's International Partner commitments and the needs of
human exploration.
3. Develop a balanced program of science, exploration, and aeronautics
consistent with the Agency's new exploration focus.
4. Bring a new Crew Exploration Vehicle into service as soon as
possible after Shuttle retirement.
5. Encourage the pursuit of appropriate partnerships with the emerging
commercial space sector.
6. Establish a lunar return program having the maximum possible utility
for later missions to Mars and other destinations.
In embracing a vision and mission for space exploration, and continued
scientific discovery and aeronautics research, NASA pledges to continue
the American tradition of pioneering. In pursuit of these activities,
NASA is increasing internal collaboration, leveraging personnel and
facilities, developing strong, healthy Centers, and fostering a safe
environment of respect and open communication. We also will ensure
clear accountability and solid program management and reporting
practices. Effective regulation supports NASA activities related to its
Vision, mission, and goals. The following are narrative descriptions of
the most important regulations being planned for publication in the
Federal Register during fiscal year (FY) 2009.
The Federal Acquisition Regulation (FAR), 48 CFR chapter 1, contains
procurement regulations that apply to NASA and other Federal agencies.
NASA implements and supplements FAR requirements through the NASA FAR
Supplement (NFS), 48 CFR Chapter 18. Major NFS revisions are not
expected in FY 2008, except to conform to the FAR implementation of
Earned Value Management, the revision of FAR Part 45, Government
Property, and the revision of FAR Part 27, Patents, Data, and
Copyrights. In a continuing effort to keep the NFS current with NASA
initiatives and Federal procurement policy, minor revisions to the NFS
will be published.
NASA is planning on adding a subpart to its regulations that will list
NASA's procedures for service of process on the Agency, including
subpoenas, summons, and complaints. NASA will be cancelling Subpart 5
to 14 CFR 1245 and will be providing notice of such cancellation in the
Federal Register. NASA will be revising 14 CFR Part 1240 Inventions and
Contributions. Such revisions will be not be substantive in nature.
BILLING CODE 7510-13-S

[[Page 71274]]

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION (NARA)

Statement of Regulatory Priorities
Overview
The National Archives and Records Administration (NARA) issues
regulations directed to other Federal agencies and to the public.
Records management regulations directed to Federal agencies concern the
proper management and disposition of Federal records. Through the
Information Security Oversight Office (ISOO), NARA also issues
Governmentwide regulations concerning information security
classification and declassification programs. NARA regulations directed
to the public address access to and use of our historically valuable
holdings, including archives, donated historical materials, Nixon
Presidential materials, and Presidential records. NARA also issues
regulations relating to the National Historical Publications and
Records Commission (NHPRC) grant programs.
NARA has one regulatory priority for fiscal year 2009, which is
included in The Regulatory Plan. We are revising and updating our
records management regulations in 36 CFR ch. XII, subchapter B. We
began work on this priority in fiscal year 2004 with a proposal for a
new organizational framework for the records management regulations to
make them easier to use. The proposed rule to revise subchapter B was
published in the Federal Register on August 4, 2008 (73 FR 45274).
Regulations with International Effects or Interest
None in fiscal year 2009.
_______________________________________________________________________

NARA

-----------

FINAL RULE STAGE

-----------

111. FEDERAL RECORDS MANAGEMENT

Priority:

Other Significant

Legal Authority:

44 USC 2104(a); 44 USC ch 21; 44 USC ch 29; 44 USC ch 33

CFR Citation:

36 CFR 1220 to 1238

Legal Deadline:

None

Abstract:

As part of its initiative to redesign Federal records management, NARA
is revising its records management regulations in 36 CFR ch. XII,
subchapter B to ensure that the regulations are appropriate, effective,
and clear.

Statement of Need:

NARA's records management program was developed in the 20th century in
a paper environment. This program has not kept up with a Federal
Government that creates and uses most of its records electronically.
Today's Federal records environment requires different management
strategies and techniques.

The revision of NARA's records disposition policies, processes, and
tools is necessary to meet a strategic goal identified in our Strategic
Plan: ``As the nation's record keeper, we will ensure the continuity
and effective operation of Federal programs by expanding our leadership
and services in managing the Government's records.'' Effective records
management ensures: That records are created and managed for agencies'
business needs; protection of citizens' rights; accountability; and the
ability to preserve and make available records of archival value.

Summary of Legal Basis:

Under the Federal Records Act, the Archivist of the United States is
responsible for: 1) Providing guidance and assistance to Federal
agencies to ensure adequate and proper documentation of the policies
and transactions of the Federal Government and ensuring proper records
disposition (44 USC 2904); 2) approving the disposition of Federal
records (44 USC 33); and 3) preserving and making available the Federal
records of continuing value that have been transferred to the National
Archives of the United States (44 USC 21).

The Federal Records Act also makes the heads of Federal agencies
responsible for making and preserving records containing adequate and
proper documentation of the organization, functions, policies,
decisions, procedures, and essential transactions of the agency and is
designed to furnish the information necessary to protect the legal and
financial rights of the Government and of persons directly affected by
the agency's activities (44 USC 3101). Agency heads must also have an
active, continuing records management program (44 USC 3102).

Alternatives:

None.

Anticipated Cost and Benefits:

The revision of NARA's records disposition policies and processes is
intended to reduce the burden on agencies and NARA in the area of
records management and disposition activities.

Risks:

None.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
Begin Review 09/17/02
ANPRM 03/15/04 69 FR 12100
ANPRM Comment Period End 05/14/04
NPRM 08/04/08 73 FR 45274
NPRM Comment Period End 10/03/08
Final Action 01/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Federal

URL For More Information:
www.archives.gov/records-mgmt/initiatives/rm-redesign-project.html

URL For Public Comments:
www.regulations.gov

Agency Contact:
Laura McCarthy
National Archives and Records Administration
8601 Adelphi Road
College Park, MD 20740
Phone: 301 837-3023
Email: [email protected]

Nancy Allard
Regulatory Contact
National Archives and Records Administration
8601 Adelphi Road
College Park, MD 20740-6001
Phone: 301 837-1477
Fax: 301 837-0319
Email: [email protected]
Related RIN: Related to 3095-AB05, Related to 3095-AB41, Related to
3095-AB43, Related to 3095-AB39
RIN: 3095-AB16
BILLING CODE 7515-01-S

[[Page 71275]]

OFFICE OF PERSONNEL MANAGEMENT (OPM)

Statement of Regulatory Priorities
The Office of Personnel Management's mission is to ensure the Federal
Government has an effective civilian workforce. OPM fulfills that
mission by, among other things, providing human capital advice and
leadership for the President and Federal agencies; delivering human
resources policies, products, and services; and holding agencies
accountable for their human capital practices. OPM's 2008 regulatory
priorities are designed to support these activities.
Adverse Actions
The Office of Personnel Management (OPM) proposes to amend its
regulations governing Federal adverse actions. The proposed amendments
would clarify the adverse action rules regarding reductions in pay and
indefinite suspension. In addition, OPM proposes to remove unnecessary
subparts pertaining to statutory requirements, make a number of
technical corrections, and utilize consistent language for similar
regulatory requirements. OPM also proposes various revisions to make
the regulations more readable.
Suitability and National Security
OPM is participating in a review of the Federal Government's
requirements for access to classified information and for suitability
for employment. This review covers relevant statutes, executive orders,
and Governmentwide regulations and is intended to determine whether a
reengineered system that is cohesive, simplified, and equitable as
possible can be developed. In particular, a reengineered system may
require adjustments to the following Government-wide regulations within
OPM's jurisdiction: (1) Suitability, 5 CFR part 731; (2) National
Security Positions, 5 CFR part 732; and (3) Personnel Investigations, 5
CFR part 736. OPM expects this review process and any potential
modifications of these regulations to be made by the end of FY 2008.
Training; Supervisory, Management, Executive Development
On October 30, 2004, the President signed the Federal Workforce
Flexibility Act of 2004 (Act), Public Law 108-411, into law. The Act
makes several significant changes in the law governing the training and
development of Federal employees, supervisors, managers, and
executives. It requires each agency to evaluate, on a regular basis,
its training programs and plans to ensure that its training activities
are linked to the accomplishment of its specific performance plans and
strategic goals, and to modify its training plans and programs as
needed to accomplish the agency's performance and strategic goals.
Another change requires agencies to work with OPM to establish
comprehensive management succession programs designed to develop future
mangers for the agency. It also requires agencies, in consultation with
OPM, to establish programs to provide training to managers regarding
how to relate to employees with unacceptable performance, mentor
employees, use various actions, options and strategies to improve
employee performance and productivity, and conduct employee performance
appraisals. Our proposed revision to the OPM regulations at parts 410
and 412 of 5 CFR have been designed to address the changes, and in
general to increase the emphasis on employee and executive development
in the Federal Government. These proposed regulations were approved by
OMB in August 2008 and published in the Federal Register in September
2008. Public comments have been received, and OPM is targeting 2009 for
publication of the final rule.
Leave for Employees Affected by a Pandemic Health Crisis or Other
Emergencies
In FY 2009, OPM will continue efforts to provide alternative methods
for agencies to assist their employees in the event of a pandemic
health crisis or other major disasters or emergencies as declared by
the President. Under current law and regulations, in the event of a
major disaster or emergency, as declared by the President, that results
in severe adverse effects for a substantial number of employees, the
President may direct OPM to establish an emergency leave transfer
program under which an employee may donate unused annual leave for
transfer to employees of his or her agency or to employees in other
agencies who are adversely affected by such disaster or emergency. OPM
anticipates issuing regulations that will enhance the emergency leave
transfer program by--
Allowing donated annual leave in a voluntary leave bank
administered by one agency to be transferred to an
emergency leave transfer program administered by another
agency. OPM's regulations currently permit a leave bank to
donate annual leave to an emergency leave transfer program
administered by the leave bank's employing agency. We
believe a broader authority, which several agencies
requested in the aftermath of Hurricane Katrina, would have
provided an immediate benefit to employees adversely
affected by Hurricane Katrina and could benefit employees
adversely affected by future major disasters or
emergencies.
Incorporating the inclusion of Judicial branch employees as
eligible participants in any emergency leave transfer
program as provided by Public Law 109-229, now codified at
5 U.S.C. 6391(f)).
Clarifying the rules for returning unused donated annual leave
to emergency leave donors, which includes leave banks.
Pay Flexibilities and Entitlements
In FY 2009, OPM will continue to enhance pay flexibilities and
entitlements to help Federal agencies better meet their strategic human
capital needs. OPM anticipates finalizing interim regulations that
implemented statutory changes dealing with pay setting for General
Schedule employees. These statutory and regulatory changes made the pay
setting rules more rational, consistent, and equitable. Also, OPM
anticipates finalizing proposed regulations governing student loan
repayment benefits, which agencies may offer to current Federal
employees or candidates for Federal jobs when necessary to recruit or
retain highly qualified personnel. These revisions will include certain
policy changes and clarifications to assist agencies in taking full
advantage of the Federal student loan repayment program.
BILLING CODE 6325-44-S

[[Page 71276]]

PENSION BENEFIT GUARANTY CORPORATION (PBGC)

Statement of Regulatory and Deregulatory Priorities
The Pension Benefit Guaranty Corporation (PBGC) protects the pensions
of over 44 million working men and women in about 30,500 private
defined benefit plans. PBGC receives no funds from general tax
revenues. Operations are financed by insurance premiums, investment
income, assets from pension plans trusteed by PBGC, and recoveries from
the companies formerly responsible for the trusteed plans.
To carry out these functions, PBGC issues regulations interpreting such
matters as the termination process, establishment of procedures for the
payment of premiums, reporting and disclosure, and assessment and
collection of employer liability. The Corporation is committed to
issuing simple, understandable, and timely regulations to help affected
parties do business.
PBGC's intent is to issue regulations that implement the law in ways
that do not impede the maintenance of existing defined benefit plans or
the establishment of new plans. Thus, the focus is to avoid placing
burdens on plans, employers, and participants, wherever possible. PBGC
also seeks to ease and simplify employer compliance whenever possible.
PBGC Insurance Programs
PBGC administers two insurance programs for private defined benefit
plans under title IV of the Employee Retirement Income Security Act of
1974 (ERISA): a single-employer plan termination insurance program and
a multiemployer plan insolvency insurance program.
Single-Employer Program. Under the single-employer program,
PBGC pays guaranteed and certain other pension benefits to
participants and beneficiaries if their plan terminates
with insufficient assets (distress and involuntary
terminations). The single-employer program had a $13.1
billion deficit at the end of fiscal year 2007.
Multiemployer Program. The smaller multiemployer program
covers about 1500 collectively bargained plans involving
more than one unrelated employer. PBGC provides financial
assistance (in the form of a loan) to the plan if the plan
is unable to pay benefits at the guaranteed level.
Guaranteed benefits are less than single-employer
guaranteed benefits. The multiemployer program, which is
separately funded from the single-employer program, had a
$955 million deficit at the end of fiscal year 2007.
Recent Legislation
Early in 2005, the Administration proposed reforms to improve funding
of plans and restore the financial health of the insurance program,
which had a $233.billion deficit at the end of fiscal year 2004.
Legislation signed into law in 2006 -- the Deficit Reduction Act of
2005 (DRA 2005) and the Pension Protection Act of 2006 (PPA 2006) --
contain various provisions intended to improve plan funding, enhance
pension-related reporting and disclosure, and strengthen the insurance
programs.
Regulatory Objectives and Priorities
PBGC's current regulatory objectives and priorities are to continue
implementation of the PPA 2006 changes by issuing simple,
understandable, and timely regulations that do not impose undue burdens
that could impede maintenance or establishment of defined benefit
plans. (PBGC has completed its implementation of DRA 2005.) These
regulatory objectives and priorities are developed in the context of
the Corporation's statutory purposes:
To encourage voluntary private pension plans;
To provide for the timely and uninterrupted payment of pension
benefits; and
To keep premiums at the lowest possible levels.
PBGC also attempts to minimize administrative burdens on plans and
participants, improve transparency, simplify filing, and provide relief
for small businesses. As mentioned below, the first set of rulemakings
concerns premiums, disclosure of termination information, annual
financial and actuarial reporting, treatment of bankruptcy filing date
as termination date for certain purposes, multiemployer plan withdrawal
liability, and missing participants.
The Corporation seeks to improve transparency of information to plan
participants, investors, and PBGC, in order to better inform them and
to encourage more responsible funding of pension plans. PPA 2006
contains provisions for disclosure of certain information to
participants regarding the termination of their underfunded plan. PBGC
published a proposed regulation on this disclosure of termination
information in December 2007 and expects to publish a final regulation
in October 2008.
PPA 2006 also makes changes to the plan actuarial and employer
financial information required under section 4010 of ERISA to be
reported to PBGC by employers with large amounts of pension
underfunding. PBGC published a proposed regulation implementing those
changes in February 2008 and expects to publish a final regulation in
October 2008.
PBGC also seeks to simplify filing with PBGC by increasing use of
electronic filing. Electronic filing of premium information has been
mandatory for all plans for plan years beginning on or after January 1,
2007. Filers have a choice of using private-sector software that meets
PBGC's published standards or using PBGC's software. Electronic premium
filing simplifies filers' paperwork, improves accuracy of PBGC's
premium records and database, and enables more prompt payment of
premium refunds.
In December 2007 and March 2008, PBGC published final rules
implementing most of the premium changes under PPA 2006. The
Corporation has incorporated the changes to the flat-rate and variable-
rate premiums into software so that it will be easy to comply with the
premium changes under the new law.
Plan actuarial and employer financial information required under
section 4010 of ERISA to be reported to PBGC by employers with large
amounts of pension underfunding is required to be filed electronically.
Electronic filing reduces the filing burden, improves accuracy, and
better enables PBGC to monitor and manage risks posed by these plans.
PBGC is incorporating the PPA 2006 changes to this reporting into
software so that it will be easy to comply with the reporting changes
under the new law.
In July 2008, PBGC published a proposed rule that would implement a PPA
2006 provision that treats the bankruptcy filing date as the plan
termination date for purposes of determining the amount of benefits
PBGC guarantees and the amount of assets allocated to participants who
retired or have been retirement-eligible for three years. The provision
applies to plans that terminate in a distress or involuntary
termination while the sponsor is a bankruptcy proceeding that was
initiated on or after September 16,

[[Page 71277]]

2006. PBGC expects to publish a final rule in 2009.
PPA 2006 provides for changes in the allocation of unfunded vested
benefits to withdrawing employers from a multiemployer pension plan and
requires adjustments in determining an employer's withdrawal liability
when a multiemployer plan is in critical status. In March 2008, PBGC
published a proposed rule to implement these provisions. The proposed
rule also would provide new modifications to the statutory methods for
determining an employer's allocable share of unfunded vested benefits
and improve the process of fully allocating a plan's total unfunded
vested benefits among liable employers in a plan terminated by mass
withdrawal. PBGC expects to issue a final rule in October 2008.
PBGC gives consideration to the special needs and concerns of small
businesses in making policy. A large percentage of the plans insured by
PBGC are small or maintained by small employers. The first proposed
rule PBGC published under PPA 2006 implemented the cap on the variable-
rate premium for plans of small employers. In 2009, the Corporation
expects to issue a proposed regulation implementing the expanded
missing participants program under PPA 2006, which will also benefit
small businesses.
PBGC will continue to look for ways to further improve its regulations.
BILLING CODE 7709-01-S

[[Page 71278]]

SMALL BUSINESS ADMINISTRATION (SBA)

Statement of Regulatory Priorities
Overview
The Small Business Administration's (SBA) mission is to maintain and
strengthen the Nation's economy by enabling the establishment and
viability of small businesses and by assisting in economic recovery of
communities after disasters. In order to accomplish this mission, SBA
focuses on improving the economic and regulatory environment for small
businesses, especially those in areas that have significantly higher
unemployment and lower income levels than the Nation's averages and
those in traditionally underserved markets. The agency also focuses on
providing timely, effective financial assistance to businesses,
including non-profit organizations, homeowners, and renters affected by
disasters.
SBA is committed to:
Working with its financial partners to improve small
businesses' access to capital through SBA's loan and
venture capital programs;
Providing technical assistance to small businesses through its
resource partners;
Increasing contracting and business opportunities for small
businesses;
Providing affordable, timely and easily accessible financial
assistance to businesses, homeowners and renters after a
disaster; and
Measuring outcomes, such as revenue growth, job creation,
business longevity, and recovery rate after a disaster, to
ensure that SBA's programs and services are delivered
efficiently and effectively.
SBA's regulatory actions reflect the goals and objectives of the agency
and are designed to provide the small business and residential
communities with the information and guidance they need to succeed as
entrepreneurs and restore their homes or other property after a
disaster. In the coming year, SBA's regulatory priorities will focus on
strengthening SBA's management of its business loan programs, including
issuing a final rule that would support lender oversight and improve
lender performance. This final rule would further the President's
priority of improved financial performance in government, and financial
institutions would benefit from performance feedback to the extent it
can assist them in improving their SBA operations and minimizing
losses. The estimated cost of the changes incorporated into this final
rule is $1.5 million.
_______________________________________________________________________

SBA

-----------

FINAL RULE STAGE

-----------

112. LENDER OVERSIGHT PROGRAM

Priority:

Other Significant

Legal Authority:

15 USC 634(b)(6),(b)(7),(b)(14),(h), and note; 687(f),697(e)(c)(8), and
650.

CFR Citation:

13 CFR 120

Legal Deadline:

None

Abstract:

This rule would implement the Small Business Administration's (SBA)
statutory authority under the Small Business Reauthorization and
Manufacturing Assistance Act of 2004 (Reauthorization Act) to regulate
Small Business Lending Companies (SBLCs) and non-federally regulated
lenders (NFRLs). It also would conform SBA rules to various changes in
the section 7(a) Business Loan Program and the Certified Development
Company (CDC) Program.

In particular, this rule would: (1) Define SBLCs and NFRLs; (2) clarify
SBA's authority to regulate SBLCs and NFRLs; (3) authorize SBA to set
certain minimum capital standards for SBLCs, to issue cease and desist
orders, and revoke or suspend lending authority of SBLCs and NFRLs; (4)
establish the Bureau of Premier Certified Lender Program Oversight in
the Office of Credit Risk management; (5) transfer existing SBA
enforcement authority over CDCs from the Office of Financial Assistance
to the appropriate official in the Office of Capital Access; and (6)
define SBA's oversight and enforcement authorities relative to all SBA
lenders participating in the 7(a) and CDC programs and intermediaries
in the Microloan program.

Statement of Need:

Section 7(a) of the Small Business Act states that SBA may provide
financing to small businesses ``directly or in cooperation with banks
or other financial institutions.'' Presently, SBA guarantees loans
through approximately 5,000 lenders. Of these lenders, about 14 are
SBLCs that are not otherwise regulated by Federal or State chartering/
licensing agencies. SBA examines these SBLCs periodically.
Congressional and Administration policy to delegate lending
responsibilities to SBLCs and other SBA lenders requires that SBA
increase its lender oversight. To that end, SBA has drafted regulations
that strengthen the Agency's management of its business loan and lender
oversight programs.

Summary of Legal Basis:

Small Business Act, section 5(b)(6)(7),(14),(h) and note 650.

Small Business Investment Act section 308(f) and 508(c)(8).

Alternatives:

This rulemaking amends and expands SBA's existing regulations on the
SBLC and lender oversight programs.

Anticipated Cost and Benefits:

This rulemaking is designed to strengthen SBA's regulations regarding
the SBLC Program and business loan and lender oversight programs. Some
additional costs associated with additional reporting by the SBLCs,
NFRLs, and other SBA lenders to the SBA are anticipated.

Risks:

This regulation poses no risks to the public health and safety or to
the environment.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 10/31/07 72 FR 61752
NPRM Comment Period
Extended 12/20/07 72 FR 72264
NPRM Comment Period End 02/29/08
Final Action 12/00/08

Regulatory Flexibility Analysis Required:

Yes

Small Entities Affected:

Businesses, Organizations

Government Levels Affected:

None

URL For Public Comments:
www.regulations.gov

[[Page 71279]]

Agency Contact:
Bryan Hooper
Director, Office of Credit Risk Management
Small Business Administration
409 3rd Street SW
Washington, DC 20416
Phone: 202 205-3049
Fax: 202 205-6831
Email: [email protected]
RIN: 3245-AE14
BILLING CODE 8025-01-S

[[Page 71280]]

SOCIAL SECURITY ADMINISTRATION (SSA)

Statement of Regulatory Priorities
The Social Security Administration (SSA) administers the retirement,
survivors, and disability insurance programs under title II of the
Social Security Act (the Act), the Supplemental Security Income (SSI)
program under title XVI of the Act and the Special Veterans Benefits
under title XVIII of the Act. As directed by Congress, we also assist
in administering portions of the Medicare program. Our regulations
codify the requirements for eligibility and entitlement to benefits
under these programs. Generally, SSA's regulations do not impose
burdens on the private sector or on State or local governments.
The 14 entries in SSA's Regulatory Plan represent the issues of major
importance to the Agency in the retirement, survivors, disability, SSI,
and Medicare programs. Several of these regulatory priorities reflect
recently enacted statutory provisions, including the Social Security
Protection Act of 2004 (Pub. L. 108-203). We describe the individual
initiatives more fully in the attached Regulatory Plan.
Improving the Disability Process
Because the continued improvement of the disability program is of vital
concern to SSA, we have 10 initiatives in the Plan addressing
disability-related issues. They include:
A proposed rule providing that SSA identify claimants with
serious medical conditions as soon as possible, allowing
the Agency to grant benefits expeditiously to those
claimants who meet SSA disability standards;
A proposed rule clarifying that the agency may set the time
and place for a hearing before an administrative law judge
(ALJ).
A proposed rule allowing casualty reports prepared by the
United States armed forces to serve as statement of intent
to claim benefits and preserving filing dates for all
benefits.
A proposed rule eliminating the Disability Service Initiative
processes in place in our Boston Region;
A proposed rule clarifying when previously decided claims or
issues are barred from further consideration to ensure
consistency of decisions at different levels of
adjudication and in different locations in the country;
and,
Six initiatives updating the medical listings used to
determine disability--two final rules evaluating hearing
loss and malignant neoplastic diseases, and four proposed
rules on evaluating respiratory system disorders, mental
disorders, hematological disorders and immune (HIV) system
disorders
Improved Stewardship
Also included in the Plan is a proposed rule that will strengthen our
stewardship and program integrity activities by specifying the
requirements certain non-citizen workers must meet to establish
entitlement to benefits under title II, as provided in the Social
Security Protection Act of 2004.
Enhanced Public Service
We are proposing to revise our rules concerning the representation of
claimants before the Social Security Administration. These proposed
rules include adding new language recognizing law firms and other
entities as claimant representatives, allowing representatives in
certain situations to charge and receive their fees from third parties,
and modifying our rules on fee agreement and representative sanctions.
_______________________________________________________________________

SSA

-----------

PROPOSED RULE STAGE

-----------

113. REVISED MEDICAL CRITERIA FOR EVALUATING RESPIRATORY SYSTEM
DISORDERS (859P)

Priority:

Other Significant. Major under 5 USC 801.

Legal Authority:

42 USC 402; 42 USC 405(a); 42 USC 405(b); 42 USC 405(d) to 42 USC
405(h); 42 USC 416(i); 42 USC 421(a); 42 USC 421(i); 42 USC 422(c); 42
USC 423; 42 USC 425; 42 USC 902(a)(5)

CFR Citation:

20 CFR 404.1500, app 1

Legal Deadline:

None

Abstract:

Sections 3.00 and 103.00, Respiratory System, of appendix 1 subpart P
of part 404 of our regulations describe respiratory system disorders
that are considered severe enough to prevent an individual from doing
any gainful activity, or for a child claiming SSI payments under title
XVI, that cause marked and severe functional limitations. We are
proposing revisions to these sections to ensure that the medical
evaluation criteria are up-to-date and consistent with the latest
advances in medical knowledge and treatment.

Statement of Need:

These regulations are necessary to update the respiratory system
listings to reflect advances in medical knowledge, treatment, and
methods of evaluating respiratory disorders. The changes will ensure
that determinations of disability have a sound medical basis and that
people who are disabled can be readily identified and awarded benefits
if all other factors of entitlement or eligibility are met.

Summary of Legal Basis:

Administrative--not required by statute or court order.

Alternatives:

We considered not revising the listings and continuing to use our
current criteria. However, we believe that proposing these revisions is
preferable because of the medical advances that have been made in
treating and evaluating respiratory diseases and because of our
adjudicative experience.

Anticipated Cost and Benefits:

Estimated costs - low.

Risks:

None.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
ANPRM 04/13/05 70 FR 19358
ANPRM Comment Period End 06/13/05
NPRM 03/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

URL For Public Comments:
www.regulations.gov

[[Page 71281]]

Agency Contact:
Cheryl A. Williams
Acting Director
Social Security Administration
Office of Compassionate Allowances and Listings Improvements
6401 Security Boulevard
Baltimore, MD 21235-6401
Phone: 410 965-1020

Suzanne DiMarino
Social Insurance Specialist
Social Security Administration
Office of Regulations
6401 Security Boulevard
Baltimore, MD 21225-6401
Phone: 410 965-1769
RIN: 0960-AF58
_______________________________________________________________________

SSA

114. REVISED MEDICAL CRITERIA FOR EVALUATING MENTAL DISORDERS (886P)

Priority:

Other Significant

Legal Authority:

42 USC 401(j); 42 USC 402; 42 USC 404(f); 42 USC 405(a); 42 USC 405(b);
42 USC 405(d) to 42 USC 405(h); 42 USC 405(j); 42 USC 416(i); 42 USC
421; 42 USC 421(a); 42 USC 421(i); 42 USC 421(m); 42 USC 422(c); 42 USC
423; 42 USC 423(i); 42 USC 425; 42 USC 902(a)(5); 42 USC 1382; 42 USC
1382(c); 42 USC 1382(h); 42 USC 1383; 42 USC 1383(a); 42 USC 1383(c);
42 USC 1383(d); 42 USC 1383(i); 42 USC 1383(p); 42 USC 1383b

CFR Citation:

20 CFR 404.941; 20 CFR 404.1500, app 1; 20 CFR 404.1503; 20 CFR
404.1520 to 404.1520a; 20 CFR 404.1528; 20 CFR 404.1615; 20 CFR
416.903; 20 CFR 416.920a; 20 CFR 416.928; 20 CFR 416.1015; 20 CFR
416.1441

Legal Deadline:

None

Abstract:

We propose to update and revise the rules that we use to evaluate
mental disorders of adults and children who apply for, or receive,
disability benefits under title II and Supplemental Security Income
payments based on disability under title XVI of the Social Security
Act. The rules we plan on revising are sections 12.00 and 112.00 in
appendix 1 to subpart P of part 404 of our regulations (the listings).
These listings include such impairments as affective disorders,
schizophrenic disorders, intellectual disabilities, and autistic
disorders.

Statement of Need:

These regulations are necessary to update the listings for evaluating
mental disorders to reflect advances in medical knowledge, treatment,
and methods of evaluating these diseases. The changes ensure that
determinations of disability have a sound medical basis, that claimants
receive equal treatment through the use of specific criteria, and that
individuals who are disabled can be readily identified and awarded
benefits if all other factors of entitlement or eligibility are met.

Summary of Legal Basis:

Administrative--not required by statute or court order.

Alternatives:

We considered not revising the listings or making only minor technical
changes. However, we believe that proposing these revisions is
preferable because of the medical advances that have been made in
treating and evaluating these types of diseases. We have not
comprehensively revised the current listings in over 15 years. Medical
advances in disability evaluation and treatment and our program
experience make clear that the current listings do not reflect state-
of-the-art medical knowledge and technology.

Anticipated Cost and Benefits:

Savings estimates for fiscal years 2010 - 2018: (in millions of
dollars) OASDI - 315, SSI - 370.

Risks:

None.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
ANPRM 03/17/03 68 FR 12639
ANPRM Comment Period End 06/16/03
NPRM 11/00/08
Final Action 12/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

URL For Public Comments:
www.regulations.gov

Rosemarie Greenwald
Social Insurance Specialist
Social Security Administration
Office of Regulations
6401 Security Boulevard
Baltimore, MD 21235-6401
Phone: 410 966-7813
RIN: 0960-AF69
_______________________________________________________________________

SSA

115. REVISED MEDICAL CRITERIA FOR EVALUATING HEMATOLOGICAL DISORDERS
(974P)

Priority:

Other Significant

Legal Authority:

42 USC 402; 42 USC 405(a); 42 USC 405(b); 42 USC 405(d) to 42 USC
405(h); 42 USC 416(i); 42 USC 421(a); 42 USC 421(i); 42 USC 422(c); 42
USC 423; 42 USC 425; 42 USC 902(a)5)

CFR Citation:

20 CFR 404.1500, app 1

Legal Deadline:

None

Abstract:

Sections 7.00 and 107.00 (hematological disorders) of appendix 1 to
subpart P of part 404 of our regulations describe hematological
disorders that are considered severe enough to prevent a person from
performing any gainful activity, or for a child claiming SSI payments
under title XVI, that cause marked and severe functional limitation. We
are proposing to revise these sections to ensure that the medical
evaluation criteria are up-to-date and consistent with the latest
advances in medical knowledge and treatment.

Statement of Need:

These regulations are necessary to update the hematological listings to
reflect advances in medical knowledge, treatment, and methods of
evaluating hematological disorders. The changes ensure that
determinations of disability have a sound medical basis, that claimants
receive equal treatment

[[Page 71282]]

through the use of specific criteria, and that people who are disabled
can be readily identified and awarded benefits if all other factors of
entitlement or eligibility are met.

Summary of Legal Basis:

Administrative--not required by statute or court order.

Alternatives:

Anticipated Cost and Benefits:

Estimated savings - low.

Risks:

None.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 02/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

URL For Public Comments:
www.regulations.gov

Richard M. Bresnick
Social Insurance Specialist
Social Security Administration
Office of Regulations
6401 Security Boulevard
Baltimore, MD 21235-6401
Phone: 410 965-1758
RIN: 0960-AF88
_______________________________________________________________________

SSA

116. ADDITIONAL INSURED STATUS REQUIREMENTS FOR CERTAIN ALIEN WORKERS
(2882P)

Priority:

Other Significant

Legal Authority:

42 USC 414(c); 42 USC 423(a)(1)(C); PL 108-203, sec 211

CFR Citation:

20 CFR 404.110; 20 CFR 404.120; 20 CFR 404.130; 20 CFR 404.315; 20 CFR
404.1912; 20 CFR 404.1931

Legal Deadline:

None

Abstract:

The proposed rule will revise our regulations on insured status to
include an additional requirement under section 211 of Public Law 108-
203 - the Social Security Protection Act of 2004 (SSPA).

An alien worker to whom we did not assign a Social Security Number
(SSN) before January 1, 2004, must meet one of two additional
requirements in order to be found entitled to title II benefits based
on that alien's earnings record. One is assignment of an SSN and
authorization to work in the United States. Alternatively, the work at
issue must have been performed while the alien was admitted to the
United States as a visitor for business (Department of Homeland
Security (DHS) nonimmigrant classification ``B-1'') or as a crewman on
a vessel or aircraft (DHS nonimmigrant classification ``D-1'' or ``D-
2''), and the business engaged in or service performed as a crewman was
within the scope of the terms of such individual's admission to the
United States.

If an alien worker whose SSN was originally assigned on or after
January 1, 2004, does not meet either of these requirements, then he or
she is not fully or currently insured and is not entitled to benefits
even if the alien worker appears to have the required number of
quarters of coverage in accordance with the other insured status
provisions. This additional insured status requirement affects the
entitlement of certain alien workers and any person seeking a benefit
on the record of an alien who is subject to this law.

An alien worker who was properly assigned an SSN before January 1,
2004, is not subject to section 211 of the SSPA.

Statement of Need:

By incorporating the changes mandated by the law in our regulations,
our program rules and operating instructions will be consistent with
the statute.

Summary of Legal Basis:

The proposed revisions to our regulations will reflect the Social
Security Act, as amended by section 211 of the SSPA.

Alternatives:

None

Anticipated Cost and Benefits:

Administrative start-up costs will be nominal since we have implemented
the law via operating instructions. No systems changes are needed.
Benefits include savings to the title II Trust Funds and in
administrative enumeration costs since some claimants who are denied
under this law will not be able to get an SSN card for non-work
purposes. We estimate that costs will be less than $500,000 per year
and total roughly $2,000,000 over a 10 year period.

Risks:

None.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 11/00/08
Final Action 10/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

URL For Public Comments:
www.regulations.gov

[[Page 71283]]

Agency Contact:
Jessica MacBride
Social Insurance Specialist
Social Security Administration
Office of Income Security Programs
6401 Security Boulevard
Baltimore, MD 21235-6401
Phone: 410 966-8481

Richard M. Bresnick
Social Insurance Specialist
Social Security Administration
Office of Regulations
6401 Security Boulevard
Baltimore, MD 21235-6401
Phone: 410 965-1758
RIN: 0960-AG22
_______________________________________________________________________

SSA

117. REVISIONS TO RULES ON REPRESENTATION OF PARTIES (3396F)

Priority:

Other Significant

Legal Authority:

42 USC 405(a); 42 USC 406(a)(1); 42 USC 810(a); 42 USC 902(a)(5); 42
USC 1010; 42 USC 1383(d)

CFR Citation:

20 CFR 404.612; 20 CFR 404.901; 20 CFR 404.903; 20 CFR 404.909; 20 CFR
404.910; 20 CFR 404.933; 20 CFR 404.934; 20 CFR 404.1700 to 404.1799;
20 CFR 408.1101; 20 CFR 416.315; 20 CFR 416.1401; 20 CFR 416.1403; 20
CFR 416.1409; 20 CFR 416.1410; 20 CFR 416.1433; 20 CFR 416.1434; 20 CFR
416.1500 to 416.1599; 20 CFR 422.203; 20 CFR 422.515

Legal Deadline:

None

Abstract:

We are proposing several revisions to our rules on representation of
parties in parts 404, 408, 416, and 422 to reflect changes in
representatives' business practices, beneficiaries' use of the
Internet, and to become more efficient in processing claims for
benefits. These rules propose to:

o Recognize entities as representatives;

o Mandate the use of Form SSA-1696 to appoint a representative or
revoke or withdraw an appointment of a representative;

o Mandate the use of Form SSA-1696 to waive a fee or direct payment of
the fee;

o Define the roles of a principal representative and a professional
representative;

o Require professional representatives to use our electronic services
as they become available;

o Authorize principal representatives to sign and file a claim for
benefits for a claimant with us;

o Require professional representatives to submit certain requests for
reconsideration and hearings before an administrative law judge
electronically;

o Require a representative to keep paper copies of certain documents
that we may require;

o Add new definitions or revise existing definitions for:
``disqualify,'' ``electronic media,'' ``Federal agency,'' ``Federal
program,'' ``fee petition,'' ``initial disability claim,'' ``person,''
``principal representative,'' ``professional representative,'' and
``representative;''

o Add new affirmative duties and prohibited actions for
representatives; and

o Change references in the representative sanctions rules to reflect a
recent delegation of authority and a recent agency reorganization.

Statement of Need:

We are proposing these revisions to reflect changes in representatives'
business practices and to improve our efficiency by enhancing use of
the Internet.

Summary of Legal Basis:

Section 206 of the Social Security Act, as amended by the Omnibus
Budget Reconciliation Act of 1990 (OBRA) and section 302 and 4303 of
the Social Security Protection Act of 2004 (SSPA) Public Law 108-203.

Alternatives:

None.

Anticipated Cost and Benefits:

Negligible.

Risks:

None.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 09/08/08 73 FR 51963
NPRM Comment Period End 11/07/08
Final Action 09/00/09

Regulatory Flexibility Analysis Required:

Government Levels Affected:

None

URL For Public Comments:
www.regulations.gov

Agency Contact:
Peter Kierpiec
Social Insurance Specialist
Social Security Administration
Office of Income Security Programs
6401 Security Boulevard
Baltimore, MD 21235-6401
Phone: 410 965-5734

Joshua B. Silverman
Social Insurance Specialist
Social Security Administration
Office of Regulations
6401 Security Boulevard
Baltimore, MD 21235-6401
Phone: 410 594-2128
RIN: 0960-AG56
_______________________________________________________________________

SSA

118. SETTING THE TIME AND PLACE FOR A HEARING BEFORE AN ADMINISTRATIVE
LAW JUDGE (3481P)

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

42 USC 401(j); 42 USC 404(f); 42 USC 405(a); 42 USC 405(b); 42 USC
405(d) to 405(h); 42 USC 405(j); 42 USC 405 note; 42 USC 421; 42 USC
421 note; 42 USC 423(i); 42 USC 425; 42 USC 902(a)(5); 42 USC 902 note;
42 USC 1383; 42 USC 1383b

CFR Citation:

20 CFR 404.932; 20 CFR 404.936; 20 CFR 404.938; 20 CFR 404.950; 20 CFR
416.1436; 20 CFR 416.1438; 20 CFR 416.1450(b)

Legal Deadline:

None

Abstract:

We propose to amend our rules to clarify that the agency is responsible
for setting the time and place for a hearing before an administrative
law judge (ALJ). Consistent with our regulations at other levels of the
administrative process, we propose to use ``we'' or ``us'' in the rules
addressing the scheduling of hearings. These changes will ensure
greater flexibility in scheduling both in person and video
teleconference hearings, increase efficiency in the hearing process,
and reduce the number of pending hearings. The number of cases awaiting
a hearing has reached historic

[[Page 71284]]

proportions, and efforts toward greater efficiency are critical to
addressing this problem.

Statement of Need:

SSA currently faces a considerable challenge in processing a large
backlog of requests for hearings at resource levels that have not kept
pace with the rising level of receipts. Our proposed rulemaking will
promote greater efficiency at the hearing level.

Summary of Legal Basis:

Administrative--not required by statute or court order.

Alternatives:

Undetermined at this time.

Anticipated Cost and Benefits:

Program benefit costs are estimated to increase for fiscal years 2008 -
2018 by $1.2 billion for OASDI and SSI.

Risks:

Undetermined at this time.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 11/00/08

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

URL For Public Comments:
www.regulations.gov

Agency Contact:
Brent Hillman
Social Insurance Specialist
Social Security Administration
Office of Disability Adjudication and Review
5107 Leesburg Pike
Falls Church, VA 22041-3260
Phone: 703 605-8280

Pamela Kultgen
Assistant Regional Counsel
Social Security Administration
Office of the General Counsel
601 E. 125th Street
Kansas City, MO 64106
Phone: 816 936-5078
RIN: 0960-AG61
_______________________________________________________________________

SSA

119. REVISED MEDICAL CRITERIA FOR EVALUATING IMMUNE (HIV) SYSTEM
DISORDERS (3466P)

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Unfunded Mandates:

Undetermined

Legal Authority:

42 USC 402; 42 USC 405(a); 42 USC 405(b); 42 USC 42 USC 405(d) to 42
USC 405(h); 42 USC 416(i); 42 USC 421(a); 42 USC 421(i); 42 USC 422(c);
42 USC 423; 42 USC 425; 42 USC 902(a)(5)

CFR Citation:

20 CFR 404.1500, app 1

Legal Deadline:

None

Abstract:

Sections 14.00 and 114.00, Immune System, of appendix 1 subpart P of
part 404 of our regulations describe immune system diseases that are
considered severe enough to prevent an individual from doing any
gainful activity, or for a child claiming SSI payments under title XVI,
that cause marked and severe functional limitations. With this ANPRM,
we are soliciting input on how best to update and revise listing
sections 14.00 and 114.00 to ensure that the medical evaluation
criteria are up-to-date and consistent with the latest advances in
medical knowledge and treatment.

Statement of Need:

This regulation is necessary in order to update the HIV evaluation
listings to reflect advances in medical knowledge, treatment, and
evaluation methods. It ensures that determinations of disability have a
sound medical basis, that claimants receive equal treatment through the
use of specific criteria, and that individuals who are disabled can be
readily identified and awarded benefits if all other factors of
entitlement or eligibility are met.

Summary of Legal Basis:

Administrative--not required by statute or court order.

Alternatives:

Undetermined at this time.

Anticipated Cost and Benefits:

Cost/Savings estimate - negligible.

Risks:

Undetermined at this time.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
ANPRM 03/18/08 73 FR 14409
ANPRM Comment Period End 05/19/08
NPRM 09/00/09

Regulatory Flexibility Analysis Required:

Government Levels Affected:

Undetermined

URL For Public Comments:
www.regulations.gov

Suzanne DiMarino
Social Insurance Specialist
Social Security Administration
Office of Regulations
6401 Security Boulevard
Baltimore, MD 21225-6401
Phone: 410 965-1769
RIN: 0960-AG71
_______________________________________________________________________

SSA

120. AMENDMENTS TO APPLICATION FILING DATE REQUIREMENTS FOR CERTAIN
MILITARY MEMBERS OF THE UNIFORMED SERVICE (3474P)

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Unfunded Mandates:

Undetermined

Legal Authority:

42 USC 402(i); 42 USC 402(j); 42 USC 402(o); 42 USC 402(p); 42 USC
402(r); 42 USC 405(a); 42 USC 416(i)(2); 42 USC 423(b); 42 USC 428(a);
42 USC 902(a)(5); 42 USCC 1382; 42 USC 1383(a); 42 USC 1383(d); 42 USC
1383(e)

CFR Citation:

20 CFR 404.340; 20 CFR 404.370; 20 CFR 404.621; 20 CFR 404.630; 20 CFR
404.802

[[Page 71285]]

Legal Deadline:

None

Abstract:

These proposed rules will allow casualty reports prepared by the United
States armed forces to serve as statements of intent to claim benefits
and preserve filing dates for all benefits. The changes to sections
404.630 and 416.340 shall apply to all servicemembers entitled to
receive benefits. These changes would simplify the benefits
determination process and ensure that veterans receive those benefits
to which they are entitled. Additionally, these rules provide a
technical correction replacing the Soldiers' and Sailors' Civil Relief
Act of 1940 with the Servicemembers' Civil Relief Act where applicable.
This proposed change would update our regulations to reflect
legislative changes.

Statement of Need:

Military servicemembers serving in today's armed forces face unique
obstacles due to the nature of their casualties. Unlike physical
wounds, cognitive and neurological disorders such as Traumatic Brain
Injury and Post Traumatic Stress Disorder dramatically affect the
emotional, psychological, and physical well being of servicemembers and
can have delayed onset. These effects often result in delayed benefit
applications and loss of benefits. It is important to consider the full
spectrum of issues related to disabilities and accommodate their
effects. This regulation would ensure that servicemembers, veterans,
and their families or survivors receive the full and timely benefits to
which they are entitled or eligible. Additionally, these rules would
update references to the Soldiers' and Sailors' Civil Relief Act of
1940 with its predecessor, the Servicemembers' Civil Relief Act.

Summary of Legal Basis:

Administrative - not required by statute or court order.

Alternatives:

None.

Anticipated Cost and Benefits:

To be determined.

Risks:

None.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 12/00/08

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

URL For Public Comments:
www.regulations.gov

Agency Contact:
Terry Dodson
Director
Social Security Administration
Office of Disability Programs
Office of Process Policy
6401 Security Blvd.
Baltimore, MD 21235-6401
Phone: 410 965-0143

Dean Dwight
Social Insurance Specialist
Social Security Administration
Office of Disability Programs
Office of Process Policy
6401 Security Boulevard
Baltimore, MD 21235-6401
Phone: 410 966-7161

Helen Droddy
Social Insurance Specialist
Social Security Administration
Office of Regulations
6401 Security Boulevard
Baltimore, MD 21235-6401
Phone: 410 965-1483
Email: [email protected]
RIN: 0960-AG73
_______________________________________________________________________

SSA

121. REESTABLISHING APPEALS COUNCIL LEVEL PROVISIONS IN THE BOSTON
REGION (3502P)

Priority:

Other Significant

Legal Authority:

42 USC 401(j); 42 USC 402; 42 USC 404(f); 42 USC 405; 42 USC 405(a); 42
USC 405(b); 42 USC 405(d)-(h); 42 USC 405(j); 42 USC 405(s); 42 USC 405
note; 42 USC 416(i); 42 USC 421; 42 USC 421(a); 42 USC 421(i); 42 USC
421(m); 42 USC 421 note; 42 USC 422(c); 42 USC 423; 42 USC 423(i); 42
USC 423 note; 42 USC 425; 42 USC 432; 42 USC 902(a)(5); 42 USC 902
note; 42 USC 1320b-1; 42 USC 1320b-13; 42 USC 1381; 42 USC 1381a; 42
USC 1382; 42 USC 1382c; 42 USC 1382h; 42 USC 1382h note; 42 USC 1383;
42 USC 1383(a); 42 USC 1383(c); 42 USC 1383(d)(1); 42 USC 1383(p); 42
USC 1383b

CFR Citation:

20 CFR 404.970; 20 CFR 404.976; 20 CFR 404.1502; 20 CFR 404.1512; 20
CFR 404.1513; 20 CFR 404.1519k; 20 CFR 404.1519s; 20 CFR 404.1520a; 20
CFR 404.1527; 20 CFR 404.1529; 20 CFR 404.1546; 20 CFR 404.1601; 20 CFR
404.1624; 20 CFR 405.1; 20 CFR 405.5; 20 CFR 405.20; 20 CFR 405.240; 20
CFR 405.360; 20 CFR 405.371; 20 CFR 405.372; 20 CFR 405.373; 20 CFR
405.381; 20 CFR 405.382; 20 CFR 405.383; 20 CFR 405.401; 20 CFR
405.405; 20 CFR 405.410; 20 CFR 405.415; 20 CFR 405.420; 20 CFR
405.425; 20 CFR 405.427; 20 CFR 405.430; 20 CFR 405.440; 20 CFR
405.445; 20 CFR 405.450; 20 CFR 405.501; 20 CFR 405.505; 20 CFR
405.510; 20 CFR 405.515; 20 CFR 416.902; 20 CFR 416.912; 20 CFR
416.913; 20 CFR 416.919k; 20 CFR 416.919s; 20 CFR 416.920a; 20 CFR
416.924; 20 CFR 416.926; 20 CFR 416.926a; 20 CFR 416.927; 20 CFR
416.929; 20 CFR 416.946; 20 CFR 416.1001; 20 CFR 416.1024; 20 CFR
416.1470; 20 CFR 416.1476; 20 CFR 422.130; 20 CFR 422.201

Legal Deadline:

None

Abstract:

We propose to eliminate the Decision Review Board (DRB) portion of part
405 of our rules, which we now use for initial disability claims
arising in our Boston region. Instead, we propose to allow claimants in
the Boston region who are dissatisfied with the decision of the
administrative law judge (ALJ) to request Appeals Council review, and,
if dissatisfied with the Appeals Council's action, to file a civil
action in Federal court. We will apply the existing provisions in parts
404 and 416 of our rules to provide for these steps in the appellate
process where those rules are directly applicable. We intend to make
the process for Appeals Council review of cases in the Boston region
parallel to the Appeals Council process in the rest of the country to
the greatest extent possible.

Statement of Need:

To provide more consistent processing of appeals level claims for all
regions.

Summary of Legal Basis:

Administrative - not required by statute or court order.

Alternatives:

Continue existing process.

[[Page 71286]]

Anticipated Cost and Benefits:

Cost estimates for fiscal year 2009 - 2018: (in millions of dollars)
OASDI - 55, SSI - 7.

Risks:

None.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 01/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

Agency Contact:
Dean Landis
Director, Office of Regulations
Social Security Administration
Office of Regulations
6401 Security Boulevard
Baltimore, MD 21235-6401
Phone: 410 965-0520
RIN: 0960-AG80
_______________________________________________________________________

SSA

122. DISABILITY DETERMINATIONS BY STATE AGENCY DISABILITY
EXAMINERS (3510P)

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Legal Authority:

42 USC 402; 42 USC 405(a); 42 USC 405(b); 42 USC 405(d) to 405(h); 42
USC 416(i); 42 USC 421; 42 USC 421 note; 42 USC 421(a); 42 USC 421(i);
42 USC 421(m); 42 USC 422(c); 42 USC 423; 42 USC 423 note; 42 USC 425;
42 USC 902(a)(5); 42 USC 1382; 42 USC 1382c; 42 USC 1382h; 42 USC 1382h
note; 42 USC 1383; 42 USC 1383(a); 42 USC 1383(c); 42 USC 1383(d)(1);
42 USC 1383(p); 42 USC 1383b

CFR Citation:

20 CFR 404.1527; 20 CFR 404.1529; 20 CFR 404.1546; 20 CFR 404.1615; 20
CFR 404.1619; 20 CFR 416.927; 20 CFR 416.929; 20 CFR 416.946; 20 CFR
416.1015; 20 CFR 416.1019

Legal Deadline:

None

Abstract:

We propose to amend our rules to permit disability examiners in our
State agencies to make fully favorable determinations without requiring
the input of a medical or psychological consultant in certain claims
for disability benefits under title II (Social Security Disability
Insurance) and title XVI (Supplemental Security Income) of the Social
Security Act.

Statement of Need:

This proposal would allow us to improve service to a vulnerable section
of the public by processing very specific disability claims faster.

Summary of Legal Basis:

Administrative - not required by statute or court order.

Alternatives:

None.

Anticipated Cost and Benefits:

To be determined.

Risks:

None.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 12/00/08

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Undetermined

URL For Public Comments:
www.regulations.gov

Agency Contact:
Nancy Schoenberg
Social Insurance Specialist
Social Security Administration
Office of Compassionate Allowances and Listings Improvements
6401 Security Boulevard
Baltimore, MD 21235-6401
Phone: 410 966-9408

Pamela Kultgen
Assistant Regional Counsel
Social Security Administration
Office of the General Counsel
601 E. 125th Street
Kansas City, MO 64106
Phone: 816 936-5078
RIN: 0960-AG87
_______________________________________________________________________

SSA

123. AMENDMENTS TO RULES ON FEE PAYMENTS AND SANCTIONS (3513P)

Priority:

Other Significant. Major status under 5 USC 801 is undetermined.

Unfunded Mandates:

Undetermined

Legal Authority:

Not Yet Determined

CFR Citation:

Not Yet Determined

Legal Deadline:

None

Abstract:

These proposed rules would modify our rules on fee payment, fee
agreements, and fee petitions. We plan to clarify how bankruptcy
proceedings and fee waivers affect claims. We also propose to
strengthen our sanctions process and to consolidate our rules on
Representation of Parties to make it easier for the public to
understand and use them.

Statement of Need:

We are proposing these revisions to reflect changes in our policies on
fees and to strengthen our sanctions process.

Summary of Legal Basis:

Section 206 of the Social Security Act, as amended by the Omnibus
Reconciliation Act of 1990 (OBRA) and Section 302 and 4303 of the
Social Security Protection Act of 2004 (SSPA) Pub. L. 108-203.

Alternatives:

None.

Anticipated Cost and Benefits:

Negligible

Risks:

None.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 09/00/09

Regulatory Flexibility Analysis Required:

Undetermined

Government Levels Affected:

Undetermined

Federalism:

Undetermined

[[Page 71287]]

Agency Contact:
Joshua B. Silverman
Social Insurance Specialist
Social Security Administration
Office of Regulations
6401 Security Boulevard
Baltimore, MD 21235-6401
Phone: 410 594-2128
RIN: 0960-AG90
_______________________________________________________________________

SSA

-----------

FINAL RULE STAGE

-----------

124. REVISED MEDICAL CRITERIA FOR EVALUATING HEARING LOSS (2862F)

Priority:

Other Significant

Legal Authority:

42 USC 402; 42 USC 405(a); 42 USC 405(b); 42 USC 405(d) to 42 USC
405(h); 42 USC 416(i); 42 USC 421(a); 42 USC 421(i); 42 USC 422(c); 42
USC 423; 42 USC 425; 42 USC 902(a)(5)

CFR Citation:

20 CFR 404.1500, app 1

Legal Deadline:

None

Abstract:

Sections 2.00 and 102.00, Special Senses and Speech, of appendix 1
subpart P of part 404 of our regulations describe hearing loss that is
considered severe enough to prevent a person from doing any gainful
activity, or for a child claiming Supplemental Security Income (SSI)
payments under title XVI, that causes marked and severe functional
limitations. We are revising these sections to ensure that the medical
evaluation criteria are up-to-date and consistent with the latest
advances in medical knowledge and treatment.

Statement of Need:

These regulations are necessary to update the hearing loss listings to
reflect advances in medical knowledge, treatment, and methods of
evaluating hearing impairments. The changes ensure that determinations
of disability have a sound medical basis, that claimants receive equal
treatment through the use of specific criteria, and that people who are
disabled can be readily identified and awarded benefits if all other
factors of entitlement or eligibility are met.

Summary of Legal Basis:

Administrative--not required by statute or court order.

Alternatives:

We considered not revising the listings or making only minor technical
changes and continuing to use our current criteria. However, we believe
that proposing these revisions is preferable because of the medical
advances that have been made in treating and evaluating these types of
impairments. The current listings are now over 15 years old. Medical
advances in disability evaluation and treatment and our program
experience make clear that the current listings do not reflect state-
of-the-art medical knowledge and technology.

Anticipated Cost and Benefits:

Cost estimates for fiscal years 2008 - 2018: (in millions of dollars)
OASDI - 105, SSI - 10.

Risks:

None.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
ANPRM 04/13/05 70 FR 19353
ANPRM Comment Period End 06/13/05
NPRM 08/13/08 73 FR 47103
NPRM Comment Period End 10/14/08
Final Action 09/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

URL For Public Comments:
www.regulations.gov

Rosemarie Greenwald
Social Insurance Specialist
Social Security Administration
Office of Regulations
6401 Security Boulevard
Baltimore, MD 21235-6401
Phone: 410 966-7813
RIN: 0960-AG20
_______________________________________________________________________

SSA

125. REVISED MEDICAL CRITERIA FOR MALIGNANT NEOPLASTIC DISEASES (3429F)

Priority:

Other Significant

Legal Authority:

42 USC 402; 42 USC 405(a); 42 USC 405(b); 42 USC 405(d) to 42 USC
405(h); 42 USC 416(i); 42 USC 421(a); 42 USC 421(i); 42 USC 422(c); 42
USC 423; 42 USC 425; 42 USC 902(a)(5)

CFR Citation:

20 CFR 404.1500, app 1

Legal Deadline:

None

Abstract:

Sections 13.00 and 113.00, Malignant Neoplastic Diseases, of appendix 1
in part 404, subpart P of our regulations describe malignant neoplastic
diseases that are considered severe enough to prevent a person from
doing any gainful activity, or for a child claiming SSI payments under
title XVI, that cause marked and severe functional limitations. We are
revising these sections to ensure that the medical evaluation criteria
are up-to-date and consistent with the latest advances in medical
knowledge and treatment.

Statement of Need:

These final regulations are necessary to update the Malignant
Neoplastic Diseases listings to reflect advances in medical knowledge,
treatment, and methods of evaluating Malignant Neoplastic Diseases
Impairments. They ensure that determinations of disability have a sound
medical basis, that claimants receive equal treatment

[[Page 71288]]

through the use of specific criteria, and that individuals who are
disabled can be readily identified and awarded benefits if all other
factors of entitlement or eligibility are met.

Summary of Legal Basis:

Administrative--not required by statute or court order.

Alternatives:

We considered not revising selected criteria of the listings or making
only minor technical changes and continuing to use our current
criteria. However, we believe that these revisions are preferable
because of the medical advances that have been made in treating and
evaluating these types of impairments. The current listings are three
years old. It was our intention to monitor these listings and to update
the criteria as the need arose. Medical advances in disability
evaluation and treatment and our program experience make clear that the
current listings do not reflect state-of-the-art medical knowledge and
technology.

Anticipated Cost and Benefits:

Savings estimates for fiscal years 2009 - 2018: (in millions of
dollars) OASDI - 46, SSI - 8.

Risks:

None

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 04/28/08 73 FR 22871
NPRM Comment Period End 06/27/08
Final Action 04/00/09

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

None

URL For Public Comments:
www.regulations.gov

Rosemarie Greenwald
Social Insurance Specialist
Social Security Administration
Office of Regulations
6401 Security Boulevard
Baltimore, MD 21235-6401
Phone: 410 966-7813
RIN: 0960-AG57
_______________________________________________________________________

SSA

126. AUTHORIZATION OF REPRESENTATIVE FEES (3508F)

Priority:

Other Significant

Legal Authority:

42 USC 405(a); 42 USC 406(a)(1); 42 USC 902(a)(5); 42 USC 1383(d)

CFR Citation:

20 CFR 404.1703; 20 CFR 404.1720; 20 CFR 416.1503; 20 CFR 416.1520

Legal Deadline:

None

Abstract:

We are proposing to revise our rules regarding payment of
representative fees to allow representatives, in certain cases, to
charge and receive a fee for their services from third parties without
requiring our approval. We are also proposing to eliminate the
requirement that we approve fees for legal guardians or court-appointed
representatives providing representational services in claims before us
if a court has already authorized their fees. Lastly, we propose to
define ``legal guardians or court-appointed representatives.''

Statement of Need:

We are proposing these revisions to reflect changes in representatives'
business practices, the ways in which claimants obtain representation,
and how we process representative fees. Specifically, we propose to
revise our rules regarding payment of representative fees to allow
representatives to charge and receive a fee from third parties without
requiring our authorization in certain instances. We also propose to
eliminate the requirement that we authorize fees for legal guardians or
court-appointed representatives who provide representational services
before us if a court has already authorized their fees.

Summary of Legal Basis:

Section 206 of the Social Security Act, as amended by the Omnibus
Budget Reconciliation Act of 1990 (OBRA) and section 302 and 303 of the
Social Security Protection Act of 2004 (SSPA) Public Law 108-203.

Alternatives:

None.

Anticipated Cost and Benefits:

Negligible.

Risks:

None.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 08/26/08 73 FR 50260
NPRM Comment Period End 09/25/08
Final Action 09/00/09

Regulatory Flexibility Analysis Required:

Government Levels Affected:

None

[[Page 71289]]

CONSUMER PRODUCT SAFETY COMMISSION (CPSC)

Statement of Regulatory Priorities
The U.S. Consumer Product Safety Commission is charged with protecting
the public from unreasonable risks of death and injury associated with
consumer products. To achieve this goal, the Commission:
develops mandatory product safety standards or banning rules
when other, less restrictive, efforts are inadequate to
address a safety hazard;
obtains repair, replacement, or refund of the purchase price
for defective products that present a substantial product
hazard;
develops information and education campaigns about the safety
of consumer products; and
staff participates in the development or revision of voluntary
product safety standards.
When deciding which of these approaches to take in any specific case,
the Commission gathers and analyzes the best available data about the
nature and extent of the risk presented by the product. The
Commission's rules require the Commission to consider, among other
factors, the following criteria when deciding the level of priority for
any particular project:
frequency and severity of injury;
causality of injury;
chronic illness and future injuries;
costs and benefits of Commission action;
unforeseen nature of the risk;
vulnerability of the population at risk;
probability of exposure to the hazard.
Additionally, if the Commission proposes a mandatory safety standard
for a particular product, the Commission is generally required to make
statutory cost/benefit findings and adopt the least burdensome
requirements that adequately protect the public.
In fiscal year 2009, the Commission will continue rulemaking activity
to address risks of fire associated with upholstered furniture. This
rulemaking may be economically significant, both domestically and with
respect to impact on international trade and investment. Pending
reauthorization legislation, the Consumer Product Safety Improvement
Act of 2008, will also have a significant impact on the Commission's
regulatory activities in fiscal year 2009.
_______________________________________________________________________

CPSC

-----------

FINAL RULE STAGE

-----------

127. FLAMMABILITY STANDARD FOR UPHOLSTERED FURNITURE

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

15 USC 1193, Flammable Fabrics Act; 5 USC 801

CFR Citation:

16 CFR 1640

Legal Deadline:

None

Abstract:

On October 23, 2003, the Commission issued an ANPRM to expand the scope
of the ongoing upholstered furniture flammability proceeding to include
both cigarette and small open flame-ignited fires. The staff developed
a draft standard addressing both cigarette and small open flame
ignition, and held public meetings in 2004 and 2005 to present and
discuss the draft. In January, 2006, the staff sent a briefing package
containing a revised draft standard and describing regulatory options
to the Commission and provided follow-up status reports on various
technical research efforts in November 2006 and December 2006. The
staff forwarded another options package to the Commission in November
2007. The Commission voted to propose a rule based on the 2007 draft
standard. The Commission's proposed standard would not require FR
chemicals in fabrics or fillings.

Statement of Need:

For 2001-2003, an annual average of approximately 4,000 residential
fires in which upholstered furniture was the first item to ignite
resulted in an estimated 330 deaths, 580 civilian injuries, and about
$115 million in property damage that could be addressed by a
flammability standard. The total annual societal cost attributable to
these upholstered furniture fire losses was approximately $1.9 billion.
This total includes fires ignited by small open-flame sources and
cigarettes.

Summary of Legal Basis:

Section 4 of the Flammable Fabrics Act (FFA) (15 U.S.C. 1193)
authorizes the Commission to issue a flammability standard or other
regulation for a product of interior furnishing if the Commission
determines that such a standard is ``needed to adequately protect the
public against unreasonable risk of the occurrence of fire leading to
death or personal injury, or significant property damage.'' The
Commission's regulatory proceeding could result in several actions, one
of which could be the development of a mandatory standard requiring
that upholstered furniture sold in the United States meet mandatory
labeling requirements, resist ignition, or meet other performance
criteria under test conditions specified in the standard.

Alternatives:

(1) The Commission could issue a mandatory flammability standard if the
Commission finds that such a standard is needed to address an
unreasonable risk of the occurrence of fire from ignition of
upholstered furniture; (2) the Commission could issue mandatory
requirements for labeling of upholstered furniture, in addition to, or
as an alternative to, the requirements of a mandatory flammability
standard; and (3) the Commission could terminate the proceeding for
development of a flammability standard and rely on a voluntary standard
if a voluntary standard would adequately address the risk of fire and
substantial compliance with such a standard is likely to result.

Anticipated Cost and Benefits:

The estimated annual cost of imposing a mandatory standard to address
ignition of upholstered furniture will depend upon the test
requirements imposed by the standard and the steps manufacturers take
to meet those requirements. Again, depending upon the test
requirements, a standard may reduce cigarette and small open flame-
ignited fire losses, the annual societal cost of which was $1.9 billion
for 2001-2003. Thus, the potential benefits of a mandatory standard to
address the risk of ignition of upholstered furniture could be
significant, even if the standard did not prevent all such fires.

Risks:

The estimated average annual cost to society from all residential fires
associated with upholstered furniture was $1.9 billion for 2001-2003.
Societal costs associated with upholstered furniture fires are among
the highest associated with any product subject to the Commission's
authority. A standard

[[Page 71290]]

has the potential to reduce these societal costs.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
ANPRM 06/15/94 59 FR 30735
Commission Hearing May 5
& 6, 1998 on Possible
Toxicity of Flame
Retardant Chemicals 03/17/98 63 FR 13017
Meeting Notice 03/20/02 67 FR 12916
Notice of September 24
Public Meeting 08/27/03 68 FR 51564
ANPRM 10/23/03 68 FR 60629
ANPRM Comment Period End 12/22/03
Staff Held Public Meeting 10/28/04
Staff Held Public Meeting 05/18/05
Staff Sends Status Report
to Commission 01/31/06
Staff Sends Status Report
to Commission 11/03/06
Staff Sends Status Report
to Commission 12/28/06
Staff Sends Options
Package to Commission 12/22/07
Commission Votes to
Direct Staff to
Prepare Draft NPRM 12/27/07
Staff Sends Draft NPRM to
Commission 01/22/08
Commission Decision to
Publish NPRM 02/01/08
NPRM 03/04/08 73 FR 11702
NPRM Comment Period Ends 05/19/08
Staff Sends Final Rule
Briefing Package to
Commission 05/00/09

Regulatory Flexibility Analysis Required:

Undetermined

Government Levels Affected:

Undetermined

Federalism:

Undetermined

International Impacts:

This regulatory action will be likely to have international trade and
investment effects, or otherwise be of international interest.

Agency Contact:
Dale R. Ray
Project Manager
Consumer Product Safety Commission
Directorate for Economic Analysis
4330 East-West Highway
Bethesda, MD 20814-4408
Phone: 301 504-7704
Email: [email protected]
RIN: 3041-AB35
BILLING CODE 6355-01-S

[[Page 71291]]

FEDERAL MARITIME COMMISSION (FMC)

Statement of Regulatory and Deregulatory Priorities
The Federal Maritime Commission's (``Commission'') regulatory
objectives are guided by the Agency's vision statement. The
Commission's vision is to administer the shipping statutes as
effectively as possible to provide fairness and efficiency in the
United States foreign maritime commerce. The Commission's regulations
are designed to implement each of the statutes the Agency administers
in a manner consistent with this vision in a way that minimizes
regulatory costs and fosters economic efficiencies.
The Commission recently finalized its Strategic Plan for Fiscal Years
2010 through 2015. As a result of the strategic planning process, the
Commission's mission statement, strategic goals and performance
measures have been refined to better focus the Agency's efforts in
achieving its mission and promote efficiency in the Commission's
business processes. Also during this process, the Commission
strengthened the link between its budgetary process and Agency
performance, consistent with the Government Performance and Results Act
of 1993 and Executive Order 13450 - Improving Government Program
Performance. In working toward these objectives, the Commission may
determine to initiate rulemakings to address changing industry
conditions or to implement technological advancements to minimize
regulatory costs.
The Commission is in the process of reviewing its regulations to
ensure alignment with emerging industry trends and business practices,
particularly as they relate to ocean transportation intermediaries,
marine terminal operators and vessel-operating common carriers. The
Commission also oversees the financial responsibility of passenger
vessel operators to indemnify passengers and other persons in cases of
death or injury and to indemnify passengers for nonperformance of
voyages. The Commission is presently evaluating the passenger vessel
operator program, particularly with regard to passenger vessel
financial responsibility requirements.
The principal priority of the Agency's current regulatory plan will be
to continue to assess major existing regulations for ongoing need,
burden on the regulated industry, and clarity. The Commission receives
requests from segments of the shipping industry with regard to their
tariff obligations under the Commission's regulations. The Commission
invites comments on such requests and evaluates those comments. If the
Commission determines to act favorably on the requests, it is possible
that there could be specific rulemaking proposals presented for the
Commission's consideration.
The Commission's review of existing regulations exemplifies its
objective to regulate fairly and effectively while imposing a minimum
burden on the regulated entities, following the principles stated by
the President in Executive Order 12866.
Description of the Most Significant Regulatory Actions
The Commission currently has no actions under consideration that
constitute ``significant regulatory actions'' under the definition in
Executive Order 12866.
BILLING CODE 6732-01-S

[[Page 71292]]

FEDERAL TRADE COMMISSION (FTC)

Statement of Regulatory Priorities
I. REGULATORY PRIORITIES
Background
The Federal Trade Commission (FTC or Commission) is an independent
agency charged with protecting American consumers from ``unfair methods
of competition'' and ``unfair or deceptive acts or practices'' in the
marketplace. The Commission strives to ensure that consumers benefit
from a vigorously competitive marketplace. The Commission's work is
rooted in a belief that free markets work -- that competition among
producers and information in the hands of consumers bring the best
products at the lowest prices for consumers, spur efficiency and
innovation, and strengthen the economy.
The Commission pursues its goal of promoting competition in the
marketplace through two different, but complementary, approaches. Fraud
and deception injure both consumers and honest competitors alike and
undermine competitive markets. Through its consumer protection
activities, the Commission seeks to ensure that consumers receive
accurate, truthful, and non-misleading information in the marketplace.
At the same time, for consumers to have a choice of products and
services at competitive prices and quality, the marketplace must be
free from anticompetitive business practices. Thus, the second part of
the Commission's basic mission--antitrust enforcement--is to prohibit
anticompetitive mergers or other anticompetitive business practices
without unduly interfering with the legitimate activities of
businesses. These two complementary missions make the Commission unique
insofar as it is the Nation's only Federal agency to be given this
combination of statutory authority to protect consumers.
The Commission is, first and foremost, a law enforcement agency. It
pursues its mandate primarily through case-by-case enforcement of the
Federal Trade Commission Act and other statutes. In addition, the
Commission is also charged with the responsibility of issuing and
enforcing regulations under a number of statutes. Pursuant to the FTC
Act, for example, the Commission currently has in place sixteen trade
regulation rules. The Commission also has adopted a number of voluntary
industry guides. Most of the regulations and guides pertain to consumer
protection matters and are generally intended to ensure that consumers
receive the information necessary to evaluate competing products and
make informed purchasing decisions.
Industry Self-Regulation and Compliance Partnerships With Industry
The Commission vigorously protects consumers through a variety of
tools including both regulatory and non-regulatory approaches. To that
end, it has encouraged industry self-regulation, developed a corporate
leniency policy for certain rule violations, and established compliance
partnerships where appropriate. The Commission has held workshops and
issued reports that encourage industry self-regulation and compliance
partnerships in several areas. As detailed below, consumer credit and
finance, privacy, information security, information sharing, and the
evolving nature of technology continue to be at the forefront of the
Commission's consumer protection and competition programs:
On July 29-30, 2008, the Commission held a Roundtable on ``FTC at 100:
Into Our Second Century.'' The sessions were composed of a series of
panels designed to examine 1) the FTC's Mission, Structure, and
Resources, 2) the Deployment of Agency Resources in the Enforcement
Area, 3) the Deployment of Agency Resources in the Policy Research and
Development Areas, 4) the Agency's External Relationships, 5)
Characteristics of a Successful Government Agency, 6) the Effectiveness
of the FTC's Competition Mission, 7) the Effectiveness of the FTC's
Consumer Protection Mission, and 8) How to Measure the Welfare Effects
of the FTC's Competition and Consumer Protection Efforts.
Other workshops and conferences concerning the FTC's mission are listed
below:
(a) The Commission staff held a workshop on September 25, 2008, to
explore the growth of the for-profit debt settlement industry and to
analyze how its model is affecting consumers and businesses. The
workshop assembled consumer advocates, industry representatives, both
state and federal regulators, and others with pertinent expertise to
discuss a wide range of topics, including regulation and legal
developments, advertising and marketing of debt relief services, role
of third party lead generators and other service providers, the history
and development of the industry and consumer education.
(b) The Commission also held three workshops or conferences following
its November 2006 hearings, ``Protecting Consumers in the next Tech-
Ade,'' which examined key technological and business developments that
will shape consumers' experiences over the next ten years.
-- On July 24, 2008, the Commission staff and the Technology Law and
Public Policy Clinic at the University of Washington hosted a Town Hall
meeting to explore the growth of contactless payment systems and their
implications for consumer protection policy.
--The Commission hosted a Town Hall meeting, titled ``Beyond Voice:
Mapping the Mobile Marketplace,'' on May 6-7, 2008, to explore the
evolving mobile commerce (M-commerce) marketplace and its implications
for consumer protection policy.
-- On November 1-2, 2007, the Commission hosted a Town Hall entitled
``Behavioral Advertising: Tracking, Targeting, and Technology.'' The
event brought together consumer advocates, industry representatives,
technology experts, and academics to address consumer protection issues
raised by the practice of tracking consumers' activities online to
target advertising -- or ``behavioral advertising.''
(c) The Commission held three public workshops relating to its review
of the Guides for the Use of Environmental Marketing Claims (16 CFR
Part 260) which the FTC previously announced in a Federal Register
Notice on November 27, 2007. 72 FR 66094.
-- On July 15, 2008, the FTC hosted a workshop to examine developments
in green building and textiles claims and consumer perception of such
claims.
-- The Commission held a public workshop on April 30, 2008, to examine
developments in green packaging claims and consumer perception of these
claims.
-- On January 8, 2008, the Commission held a public workshop to examine
the emerging market for carbon offsets (i.e., greenhouse gas emission
reduction products) and renewable energy certificates (RECs), and
related advertising claims. The workshop focused on consumer protection
issues in these markets, such as consumer perception of carbon offset
and REC advertising claims and substantiation for such claims.
(d) The FTC's Bureau of Economics hosted a conference on ``Consumer
Information & the Mortgage Market'' on May 29, 2008. The conference
assessed

[[Page 71293]]

the role of consumer information in the current mortgage crisis from an
economic perspective. Experts on real estate economics, information
economics, consumer behavior, and consumer information policy examined
why mortgage products and markets have changed over time, and the
effect of consumer information -- and information regulation -- on
mortgage choices and mortgage market outcomes.
(e) The Commission held a one-day public workshop on May 29, 2008, to
examine developments in the health care sector relating to ``clinical
integration'' among health care providers. Clinical integration is a
term used to describe certain types of collaborations among otherwise
independent health care providers to improve quality and contain costs.
The 1996 joint FTC/Department of Justice Statements of Antitrust
Enforcement Policy in Health Care expressly recognize the relevance of
such integration to the antitrust analysis of health care provider
networks that seek to collectively negotiate contracts with payers on
behalf of their members.
(f) The Commission, the International Association of Privacy
Professionals, and the Northwestern University School of Law co-hosted
a one-day public workshop on how businesses can secure the personal
information of consumers and employees on April 15, 2008. The workshop
featured business people, attorneys, government officials, privacy
officers, and other experts discussing data security in general, best
practices for developing an appropriate data security program, and how
businesses can respond to security problems, including data breaches.
(g) The FTC also assists newer competition authorities in foreign
countries to learn about and conform to international best practices in
competition policy and enforcement through our technical assistance
program and, along with consumer protection, through the U.S. SAFE WEB
Fellows Program. On February 6, 2008, the Commission and the Department
of Justice hosted a workshop on international technical assistance.
During this workshop, Commission and Department of Justice officials
described how their programs have worked and discuss ideas for
maximizing their future effectiveness. Through interactive panels, the
agencies also obtained the perspectives of other aid providers in the
field, academics, and private practitioners, with a view toward making
improvements and charting a course for the future.
(h) The Commission hosted a public workshop on February 12, 2008, to
examine the application of unilateral effects theory to mergers of
firms that sell competing, but differentiated products. ``Unilateral
effects'' as a formal theory of competitive harm was added to the joint
FTC/DOJ Horizontal Merger Guidelines in 1992. The theory recognizes
that, in some instances, mergers may create or enhance market power by
allowing the merged firm to profitably raise prices, without
accommodation of other rival market incumbents. While section 2.2 of
the Guidelines explains that unilateral competitive effects can arise
in a variety of different settings, the most common application of the
theory is in differentiated product markets, where the products sold by
different market participants are imperfect substitutes for one
another.
(i) On December 10-11, 2007, the Commission hosted a public workshop,
``Security in Numbers: SSNs and ID Theft,'' to explore the uses of
Social Security numbers (SSNs) in the private sector and the role of
SSNs in identity theft. This workshop continues the work of the
President's Identity Theft Task Force, and, in particular, its
recommendation to explore ways to reduce unnecessary uses of the SSN.
The workshop provided a forum for public-sector, private-sector, and
consumer representatives to discuss the various uses of SSNs by the
private sector, the necessity of those uses, alternatives available,
the challenges faced by the private sector in moving away from using
SSNs, and how SSNs are obtained and used by identity thieves.
(j) On October 25, 2007, national advertising experts gathered in
Houston for Green Lights & Red Flags: FTC-BBB Rules of the Road for
Advertisers, a ``back to basics'' workshop about complying with federal
and state truth-in-advertising standards. The workshop was sponsored by
the Better Business Bureau of Metropolitan Houston, Inc. and the
Federal Trade Commission, in partnership with Houston Bar Association
and the American Advertising Federation Houston.
(k) The Federal Trade Commission staff held a workshop October 10-11,
2007, to explore changes in the debt collection industry and examine
their impact on consumers and businesses. The event brought together
consumer advocates, industry representatives, state and federal
regulators, and others with relevant expertise to provide information
on a range of issues, including the effects of technological, economic,
and legal changes on the debt collection industry and whether the Fair
Debt Collection Practices Act (FDCPA) and other laws have kept pace
with the developments.
In other areas, like the entertainment industry, the Commission has
encouraged industry groups to improve their self-regulatory programs to
discourage the marketing to children of violent R-rated movies, Mature-
rated electronic games, and music labeled with a parental advisory. The
motion picture, electronic game and music industries have each
established self-regulatory systems that rate or label products in an
effort to help parents seeking to limit their children's exposure to
violent materials. Since 1999, the Commission has issued six reports on
these three industries, examining the industries' compliance with their
own voluntary marketing guidelines.
In April 2007, the Commission issued the latest of a series of reports
on entertainment industry practices. Although the Commission found that
violent R-rated movies and M-rated games were still being advertised on
television shows and Web sites with large teen audiences, the
Commission's review revealed that these industries continue to comply,
for the most part, with their self-regulatory limits on ad placement.
Because the music labeling system is not age-based, the industry has no
specific restrictions on advertising explicit-content labeled music in
media popular with children. In addition, the FTC found that while
video game retailers have made significant progress in limiting sales
of M-rated games to children, movie and music retailers have made only
modest progress limiting sales.
For the first time, the Commission tracked trends in viral marketing,
including social networking sites such as MySpace, and viral video
sites like YouTube. The report also flagged a new trend in gaming,
mobile phone games, and noted several challenges they pose. The report
recommended that all three industries consider adopting new, or
tightening existing, target marketing standards. It also suggested
retailers further implement and enforce point-of-sale policies
restricting sales of rated or labeled material to children under 17. In
particular, the report suggested the movie industry examine whether
marketing and selling of unrated or ``Director's Cut'' DVD versions of
R-rated movies, which may contain content that could warrant an even
more

[[Page 71294]]

restrictive rating, undermines the current self-regulatory system.
The report also suggested that the music industry provide more
information on packaging and in advertising about why certain
recordings receive a Parental Advisory. Finally, the report recommended
that the video game industry place content descriptors on the front of
product packaging and conduct research on why many parents believe that
the system could do a better job of informing them about the level of
violence in some games. See Federal Trade Commission, Marketing Violent
Entertainment to Children: A Fifth Follow-Up Review of Industry
Practices in the Motion Picture, Music Recording & Electronic Game
Industries A Report to Congress (April 2007), available at:
www.ftc.gov/reports/violence/070412MarketingViolentEChildren.pdf.
Following a reasonable period of monitoring industry practices and
consumer concerns, the Commission plans to issue another report.
In May 2008, the Commission released the results of its latest
nationwide undercover shop of movie theaters and movie, music, and
video game retailers. The survey found that 20 percent of underage
teenage shoppers were able to buy M-rated video games, a major
improvement from all prior surveys; roughly half were able to purchase
R-rated and Unrated movie DVDs and PAL music CDs; and 35 percent were
able to buy tickets to R-rated movies, demonstrating no statistically
significant improvement in ratings enforcement since 2003.
Staff is currently working on the development of a mall intercept
study of parental awareness and use of rating information on movie DVDs
and on a telephone survey on parental awareness and attitudes toward
the marketing and sale of Unrated ``Director's Cut'' DVDs. The results
of this research will be reported in the Commission's seventh media
violence report, with an anticipated release in the Fall of 2009.
Regarding advertising for alcoholic products, the Commission issued
its third report on June 26, 2008, titled Self Regulation in the
Alcohol Industry: Report of the Federal Trade Commission (June 2008),
available at http://www.ftc.gov/os/2008/06/080626alcoholreport.pdf.
This report is based on data provided by 12 major alcohol suppliers in
response to FTC Special Orders, is the first to present detailed
information about how alcohol companies allocate their promotional
dollars. It finds that about 42 percent of such expenditures are used
for traditional television, radio, print and outdoor advertising; about
40 percent are used to help wholesalers and retailers promote alcohol;
about 16 percent are used for sponsorships; and two percent are
directed to other efforts, such as Internet and digital advertising.\1\
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\1\ The Commission has previously encouraged three alcohol industry
trade associations; the Distilled Spirits Council of the United States,
the Beer Institute, and the Wine Institute; to develop and implement
voluntary advertising codes governing the placement and content of
alcohol advertising. In particular, the Commission encourages self-
regulatory efforts that reduce the likelihood that beverage alcohol
advertising will be directed, by its content or placement, at youth. In
its report, Federal Trade Commission, Alcohol Marketing and Advertising
A Report to Congress (Sept. 2003), available at: http://www.ftc.gov/os/
2003/09/alcohol08report.pdf, the Commission announced that industry had
adopted a new advertising placement standard, and the Commission made
additional recommendations about efforts to facilitate code compliance.
---------------------------------------------------------------------------
With regard to advertising placement, the FTC's 2003 report announced
that the alcohol industry had agreed to obtain audience data before
placing ads, and agreed to require that at least 70 percent of the
audience for print, radio, and television ads consist of adults over
the age of 21. The 2008 FTC report found that more that 92 percent of
radio, television and print ads disseminated by the 12 suppliers met
the 70 percent standard. Further, all three segments of the alcohol
industry have now adopted systems for third-party review of advertising
complaints. In addition, the report found that the industry has adopted
the 70 percent standard for Internet advertising at the agency's
request. The report recommends that the industry adopt the 70 percent
standard for event sponsorships, and that self-regulatory boards accept
complaints from competitors and anonymous complainants. Finally, the
report announces a new monitoring system to help the agency assess the
industry's efforts on a continuing basis.
The 2008 report also provided an update on the FTC's ``We Don't Serve
Teens'' alcohol consumer education program. In 2007, ``We Don't Serve
Teens'' public service announcements (PSAs) generated more than 1.1
billion advertising impressions, with a market value of over $9
million. In October 2006, the Commission also launched an alcohol
consumer education program, www.dontserveteens.gov. The program
communicates the message that responsible adults do not serve alcohol
to teens because it is unsafe, irresponsible, and illegal. It includes
a website, television and radio public service announcements and print
material to be posted in alcohol retail outlets. The Commission has
joined with public and private partners to spread this message. The
week of September 10, 2007 was ``We Don't Serve Teens Week.'' It
featured a variety of events held nationwide to focus attention on this
important message.
To address concerns about the nation's growing childhood obesity
problem, the Commission and the Department of Health and Human Services
(HHS) held a one-day forum on food marketing self-regulation. See
Weighing In: A Check-Up on Marketing, Self-Regulation, & Childhood
Obesity (July 2007) (materials available at http://www.ftc.gov/bcp/
workshops/childobesity/index.shtml). The forum allowed members of the
food and media industries and self-regulatory groups to report on their
progress in implementing initiatives addressing food and beverage
marketing to children that respond to the agencies' recommendations in
a 2006 joint report titled Perspectives on Marketing, Self-Regulation
and Childhood Obesity. Following up, the Commission released on July
29, 2008, a Report to Congress on Marketing Food to Children and
Adolescents: A Review of Industry Expenditures, Activities, and Self-
Regulation (found at http://www.ftc.gov/os/2008/07/
P064504foodmktingreport.pdf). The 2008 report was prepared at the
request of Congress \2\ and was based on the responses of 44 members of
the food and beverage industry to Special Orders issued by the
Commission on July 31, 2007, under Section 6(b) of the FTC Act. The
2006 data presented in the Report describe food and beverage marketing
early in the development of industry self-regulatory activities
designed to reduce the profile of such marketing to children. The
Report contains information not previously assembled or available to
the research community. The Report also assesses the status of self-
regulatory initiatives and makes additional recommendations for both
food and entertainment industry members, as well as the organizations
leading self-regulatory efforts.
---------------------------------------------------------------------------
\2\ Conference Report (H. Rep. No. 109-272 (2005) for the Commission's
Fiscal 2006 appropriation legislation (Pub. L. No. 109-108)
incorporated by reference language from the Senate Report directing the
FTC to submit a report to the Committee regarding ``marketing
activities and expenditures of the food industry targeted toward
children and adolescents.'' (S. Rep. No. 109-88 (2005) at 108).
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Additionally, in the industry self-regulation area, the Commission
continues to apply the Textile Corporate

[[Page 71295]]

Leniency Policy Statement for minor and inadvertent violations of the
Textile or Wool Rules that are self-reported by the company. 67 FR
71566 (Dec. 2, 2002). Generally, the purpose of the Textile Corporate
Leniency Policy is to help increase overall compliance with the rules
while also minimizing the burden on business of correcting (through
relabeling) inadvertent labeling errors that are not likely to cause
injury to consumers. Since the Textile Corporate Leniency Program was
announced, 142 companies have been granted ``leniency'' for self-
reported minor violations of FTC textile regulations.
Finally, the Commission also has engaged industry in compliance
partnerships in at least two areas involving the funeral and franchise
industries. Specifically, the Commission's Funeral Rule Offender
Program, conducted in partnership with the National Funeral Directors
Association, is designed to educate funeral home operators found in
violation of the requirements of the Funeral Rule, 16 CFR 453, so that
they can meet the rule's disclosure requirements. Approximately 273
funeral homes have participated in the program since its inception in
1996. In addition, the Commission established the Franchise Rule
Alternative Law Enforcement Program in partnership with the
International Franchise Association (IFA), a nonprofit organization
that represents both franchisors and franchisees. This program is
designed to assist franchisors found to have a minor or technical
violation of the Franchise Rule, 16 CFR 436, in complying with the
rule. Violations involving fraud or other section 5 violations are not
candidates for referral to the program. The IFA teaches the franchisor
how to comply with the rule and monitors its business for a period of
years. Where appropriate, the program offers franchisees the
opportunity to mediate claims arising from the law violations. Since
December 1998, twenty-one companies have agreed to participate in the
program.
Rulemakings That Have International Effects
This year, OMB has requested that agencies discuss the international
effects of their rulemakings in the regulatory plan narrative. The
Commission has statutory authority and implementing regulatory
authority to prevent unfair or deceptive acts or practices in commerce
among the states or with foreign nations. The Commission's Rules apply
to foreign-based corporations doing business in the United States. As
explained below, to the extent that foreign companies do business in
the United States or their conduct from outside causes or is likely to
cause reasonably foreseeable injury within the United States, these
foreign entities are required to comply with the applicable statutes
and rules.
The Commission enforces Section 5(a) of the FTC Act, which provides
that ``unfair or deceptive acts or practices in or affecting
commerce...are...declared unlawful.'' (15 USC 45(a)(1)). Recently, the
``Undertaking Spam, Spyware, And Fraud Enforcement With Enforcers
beyond Borders Act of 2006'' (or the ``U.S. SAFE WEB Act of 2006'' or
``SAFE WEB'') (Pub. L. No. 109-455, codified to the FTC Act, 15 USC 41
et seq.) amended Sec. 5(a)'s ``unfair or deceptive acts or practices''
to include such acts or practices involving foreign commerce that cause
or are likely to cause reasonably foreseeable injury within the United
States or involve material conduct occurring within the United States.
This amendment expressly confirmed the FTC's authority to redress harm
in the United States caused by foreign actors and harm abroad caused by
U.S. actors. This also clarified the factors for Commission
consideration in establishing Trade Regulation Rules to remedy unfair
or deceptive acts or practices that occur on an industry-wide basis.
Under Section 18 of the FTC Act, 15 USC 57a, the Commission is
authorized to prescribe ``rules which define with specificity acts or
practices which are unfair or deceptive acts or practices in or
affecting commerce'' within the meaning of Section 5(a)(1) of the Act.
Turning to specific rules and rulemakings and their international
effects or of potential international interest, the Premerger
Notification Rules, 16 CFR 801-803, for example, apply to mergers or
acquisitions reaching a certain size threshold and where one or both
parties are of a certain size. In addition, the Energy Independence and
Security Act of 2007 provided the Commission with authority to
promulgate a rule addressing manipulation of wholesale prices for
petroleum products and authorizes rule provisions prohibiting persons
from supplying misleading or deceptive information or data to certain
entities. As discussed within Rulemakings and Studies Required by
Statute below, the Commission has issued an NPRM for this rule. 73 FR
48317 (Aug. 19, 2008).
For the Commission's consumer protection mission, some of the rules
currently being reviewed may have effects on international companies
doing business in the United States or on U.S. businesses regarding
their dealings with foreigners. These include, among other things, the
rules mandated by the Energy Independence and Security Act of 2007
concerning biodiesel fuels and blends and provisions concerning two
types of lighting contained in the Appliance Labeling Rule, 16 CFR 305.
Other rules that are pending or under review and that may have an
effect on international commerce include: Rules adopted pursuant to the
provisions of the Telemarketing Sales Act, which prohibit calls to
persons listed on the Do-Not-Call list (16 CFR 310); Rules Implementing
the CAN-SPAM Act of 2003 (16 CFR 316) regarding sending unsolicited e-
mails; Trade Regulation Rules adopted pursuant to the Telephone
Disclosure and Dispute Resolution Act of 1992 (900 Number Rule) (16 CFR
308); Power Output Claims for Amplifiers Used in Home Entertainment
Systems; Regulations under the Comprehensive Smokeless Tobacco Health
Education Act of 1986 (16 CFR 307); the Trade Regulation Rule on Mail
or Telephone Order Merchandise, which covers purchases on the Internet
(16 CFR 435); the Rules adopted pursuant to the textile acts requiring
content labeling of clothing and fabric and furs sold in the U.S. (16
CFR 300, 301, and 303); and the Trade Regulation Rule requiring Care
Labeling of Textile Wearing Apparel and Certain Piece Goods as Amended
(16 CFR 423).
In addition, many of the FTC Guides also apply to foreign entities
doing business in the United States or are of interest to such foreign
entities. These include among others: Guides for the Jewelry, Precious
Metals, and Pewter Industries 16 CFR 23; Guides Concerning Fuel Economy
Advertising for New Automobiles, 16 CFR 259; Labeling Requirements for
Alternative Fueled Vehicles and Alternative Fuels, 16 CFR 309; and the
Guides for the Use of Environmental Marketing Claims, 16 CFR 260. The
FTC also issued and applies an Enforcement Statement on the use of Made
in USA and other U.S. origin claims in advertising and labeling. See
http://www.ftc.gov/os/statutes/usajump.shtm. The principles set forth
in this enforcement policy statement apply to U.S. origin claims
included in labeling, advertising, other promotional materials, and all
other forms of marketing, including marketing through

[[Page 71296]]

digital or electronic means such as the Internet or electronic mail.\3\
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\3\ The Made in USA Enforcement Statement does not cover products
specifically subject to the country-of-origin labeling requirements of
the Textile Fiber Products Identification Act, the Wool Products
Labeling Act, the Fur Products Labeling Act, or the American Automobile
Labeling Act.
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Rulemakings and Studies Required by Statute
The Congress has enacted several laws requiring the Commission to
undertake rulemakings and studies. These include at least 14 new
rulemakings and eight studies required by the Fair and Accurate Credit
Transactions Act of 2003, Pub. L. No. 108-159 (FACTA or the FACT Act);
additional rulemakings and reports required by the Controlling the
Assault of Non-Solicited Pornography and Marketing Act of 2003, Pub. L.
No. 108-187 (CAN-Spam Act); the rulemaking pursuant to the Federal
Deposit Insurance Corporation Improvements Act of 1991, Pub. L. No.
102-242 (FDICIA); model privacy notices under the Gramm-Leach-Bliley
Act; a report assessing the impact of laws on competition between the
United States Postal Service and private competitors as required by
Postal Accountability and Enhancement Act, Pub. L. 109-435; and the
rulemakings concerning gas price manipulation and labeling requirements
for bio-mass based diesel, biodiesel bio-mass diesel and biodiesel
blends required or authorized by the Energy Security and Independence
Act of 2007, Pub. L. No. 110-140. The Final Actions section below
describes any final actions taken on the rulemakings and studies.
The Commission has already issued nearly all of the rules required by
FACTA. These rules are codified in several parts of 16 CFR 600 et seq.
The active FACTA rulemakings include the following:
Credit Bureau Charge for Credit Scores-The Commission was required to
determine a fair and reasonable fee to be charged by a consumer
reporting agency for providing the credit score information required
under FACTA. On November 8, 2004, the Commission issued an NPRM on
reasonable fees for credit scores. 69 FR 64698. The comment period
ended on January 5, 2005. Staff has reviewed comments and is
considering what action is appropriate.
Furnisher Rules-The Commission is required, in coordination with the
banking agencies and National Credit Union Administration, to issue
guidelines and rules concerning the accuracy of information furnished
to consumer reporting agencies, and rules relating to the ability of
consumers to dispute information directly with furnishers of
information. The Commission and the other agencies issued an ANPRM for
public comment on March 22, 2006 (71 FR 14419) and an NPRM on December
10, 2007 (72 FR 69279). The agencies are reviewing the comments and
anticipate publishing final rules by the end of 2008.
Risk Based Pricing Rule-The Commission jointly with the Federal
Reserve published a risk-based pricing proposal for comment on May 19,
2008. (73 FR 28966). The comment period ended on August 18, 2008. Risk-
based pricing refers to the practice of setting or adjusting the price
and other terms of credit offered or extended to a particular consumer
to reflect the risk of nonpayment by that consumer. This statutorily-
required rulemaking would address the form, content, time, manner,
definitions, exceptions, and model of a risk-based pricing notice. The
agencies anticipate issuing a final rule in spring 2009.
During July 2007, the Federal Trade Commission released a FACTA-
required report presenting the results of a study concerning credit-
based insurance scores and automobile insurance. See Credit Based
Insurance Scores: Impacts on Consumers of Automobile Insurance: A
Report to Congress By the Federal Trade Commission (July 2007)
available at: http://www.ftc.gov/opa/2007/07/facta.shtm. The study
found that these scores are effective predictors of the claims that
consumers will file. It also determined that, as a group, African-
Americans and Hispanics tend to have lower scores than non-Hispanic
whites and Asians. Therefore, the use of scores likely leads to
African-Americans and Hispanics paying relatively more for automobile
insurance than non-Hispanic whites and Asians. Credit-based insurance
scores are calculated based on a consumer's credit history information.
Insurance companies use them to predict the claims that consumers are
likely to file, and to determine the premiums they are charged.
On May 19, 2008, pursuant to the requirement of FACTA Section 215, the
Commission issued a compulsory process resolution regarding the Federal
Trade Commission Study of the Effects of the Use of Credit Scores and
Credit-Based Insurance Scores on the Availability and Affordability of
A Range of Consumer Financial Products and Services: Draft Model Order
to File a Special Report and Compulsory Process. Orders issued pursuant
to this resolution would require certain insurance companies to produce
information for a study on the use and effect of credit-based insurance
scores on consumers of homeowner's insurance. Following a public
comment period which expired on June 18, 2008, the Commission intends
to serve orders on the nine largest private providers of homeowners
insurance that represent roughly 60 percent of the homeowners insurance
market.
The FDICIA assigns to the Commission responsibilities for certain non-
federally insured depository institutions (``DIs'') and private deposit
insurers of such DIs. The FTC is required to prescribe by regulation or
order, the manner and content of certain disclosures required of DIs
that lack federal deposit insurance. From 1993-2003, the Commission was
statutorily barred on an annual basis from appropriating funds for
purposes of complying with FDICIA. The Consolidated Appropriations Act
of 2004 and subsequent yearly appropriations have not imposed the same
funding prohibition and the Commission issued an NPRM on March 16,
2005. 70 FR 12823. The comment period closed on June 15, 2005. Staff is
reviewing comments and expects to forward a recommendation to the
Commission by the end of 2008.
Pursuant to Section 728 of the Financial Services Relief Act of 2006,
P. L. No. 109-351, which added section 503(e) to the Gramm-Leach-Bliley
Act (or GLB Act), the Commission together with seven other federal
agencies \4\ is directed to propose a model form that may be used at
the option of financial institutions for the privacy notices required
under GLB. The 2006 amendment provided that the agencies must propose
the model form within 280 days after enactment, or by April 11, 2007.
On March 29, 2007, the GLB agencies issued an NPRM proposing as the
model form the prototype privacy notice developed during the consumer
testing research project undertaken by first six, and then seven of
these agencies. (72 FR 14940). Staff of the agencies are reviewing the
comments

[[Page 71297]]

and expect to take action by spring 2009.
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\4\ The agencies are the Board of Governors of the Federal Reserve
System, the Federal Deposit Insurance Corporation, the Office of the
Comptroller of the Currency, the Office of Thrift Supervision, the
National Credit Union Administration, the Securities and Exchange
Commission, and the Commodity Futures Trading Corporation.
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The Energy Security and Independence Act of 2007, Pub. L. No. 110-140,
requires, among other things, that the Commission promulgate rules
concerning gas price manipulation and labeling requirements for bio-
mass based diesel, biodiesel bio-mass diesel and biodiesel blends as
well as energy labeling requirements for certain appliances including
light bulbs.
Section 811 of this Act prohibits any manipulative or deceptive device
or contrivance in connection with the wholesale purchase, or sale of
crude oil, gasoline, or other petroleum distillate in contravention of
rules or regulations the Commission may prescribe. Section 813
specifies the methods of enforcing such a rule. On May 1, 2008, the
Commission announced an ANPRM requesting comments on the manner in
which it should carry out its responsibilities to promulgate
regulations under this section. 73 FR 25614 (May 7, 2008). The extended
comment period ended on June 23, 2008. 73 FR 32259 (June 6, 2008).
After considering the comments, the Commission issued an NPRM on August
19, 2008 73 FR 48317. Staff anticipates making a recommendation to the
Commission by the end of 2008.
Section 321 of the Energy Independence and Security Act of 2007
requires the Commission to conduct a rulemaking to consider the
effectiveness of current energy labeling for lamps (commonly referred
to as ``light bulbs'') and to consider alternative labeling approaches.
In response to that directive, the Commission issued an ANPRM on July
17, 2008, seeking comments on the effectiveness of current labeling
requirements for lamp packages and possible alternatives to those
requirements. 73 FR 40988. As part of this effort, the Commission held
a public roundtable meeting on September 15, 2008. The comment period
ended on September 29, 2008, and, after considering the comments, staff
plans to forward its recommendation to the Commission by late fall
2008.
Ten-Year Review Program
In 1992, the Commission implemented a program to review its rules and
guides regularly. The Commission's review program is patterned after
provisions in the Regulatory Flexibility Act, 5 USC 601-612. Under the
Commission's program, rules have been reviewed on a ten-year schedule
as resources permit. For many rules, this has resulted in more frequent
reviews than is generally required by section 610 of the Regulatory
Flexibility Act. This program is also broader than the review
contemplated under the Regulatory Flexibility Act, in that it provides
the Commission with an ongoing systematic approach for seeking
information about the costs and benefits of its rules and guides and
whether there are changes that could minimize any adverse economic
effects, not just a ``significant economic impact upon a substantial
number of small entities.'' 5 USC 610. The program's goal is to ensure
that all of the Commission's rules and guides remain in the public
interest. It complies with the Small Business Regulatory Enforcement
Act of 1996, Pub. L. No. 104-121. This program is consistent with the
Administration's ``smart'' regulation agenda to streamline regulations
and reporting requirements and Section 5(a) of Executive Order 12866,
58 FR 51735 (Sept. 30, 1993).
As part of its continuing ten-year review plan, the Commission
examines the effect of rules and guides on small businesses and on the
marketplace in general. These reviews may lead to the revision or
rescission of rules and guides to ensure that the Commission's consumer
protection and competition goals are achieved efficiently and at the
least cost to business. In a number of instances, the Commission has
determined that existing rules and guides were no longer necessary nor
in the public interest. As a result of the review program, the
Commission has repealed 48 percent of its trade regulation rules and 57
percent of its guides since 1992.
Calendar Year 2007-08 Reviews
Most of the matters currently under review pertain to consumer
protection and are intended to ensure that consumers receive the
information necessary to evaluate competing products and make informed
purchasing decisions. On March 4, 2008, the Commission announced its
ten-year schedule of review and that it would initiate the review of
two rules and one guide during 2008: (1) the Rule Concerning Power
Output Claims for Amplifiers Utilized in Home Entertainment Products
(the Amplifier Rule), 16 CFR 432, (2) the Rule Concerning Cooling-Off
Period for Sales Made at Homes or at Certain Other Locations (the
Cooling-Off Rule), 16 CFR 429 and (3) the Guides Concerning the Use of
Environmental Marketing Claims (the Green Guides), 16 CFR 260. 73 FR
11844 (Mar. 5, 2008).
The Amplifier Rule, 16 CFR 432, promulgated in 1974 and last reviewed
within the last five years, assists consumers in purchasing by
standardizing the measurement and disclosure of various performance
attributes of power amplification equipment for home entertainment
purposes. The Rule makes it an unfair or deceptive act or practice for
manufacturers and sellers of sound power amplification equipment for
home entertainment purposes to fail to disclose certain performance
information in connection with direct or indirect representations of
power output, power band, frequency or distortion characteristics. The
Rule also sets out standard test conditions for performing the
measurements that support the required performance disclosures.
Further, the Rule prohibits representations of performance
characteristics if they are not obtainable when the equipment is
operated by the consumer in the usual and ordinary manner without the
use of extraneous aids. On February 27, 2008, the Commission published
a request for comments including a number of specific issues related to
changes in technology and products. 73 FR 10403. The comment period
ended on May 12, 2008, and staff anticipates sending a recommendation
to the Commission by the end of 2008.
The Cooling-Off Rule, 16 CFR 429, was last revised in 1995. The
Cooling-Off Rule requires that a consumer be given a three-day right to
cancel certain sales greater than $25.00 that occur at a place other
than a seller's place of business. The Rule also requires a seller to
notify buyers orally of the right to cancel; to provide buyers with a
dated receipt or copy of the contract containing the name and address
of the seller and notice of cancellation rights; and to provide buyers
with forms which buyers may use to cancel the contract. Staff
anticipates forwarding a recommendation for an ANPRM concerning the
review of this rule in December 2008.
On November 26, 2007, the Commission announced that it would review
the Green Guides, 16 CFR 260. 73 FR 66091 (Nov. 27, 2007). The
Commission has held three workshops described above and is continuing
the review of the Green Guides. Staff anticipates forwarding a
recommendation to the Commission concerning these Guides in Spring
2009. Please see subsection (c) under Industry Self-Regulation and
Compliance

[[Page 71298]]

Partnerships With Industry for further information about each workshop.
Ongoing Reviews
(a) Rules
The Commission staff is continuing its review of several rules and
guides.
First, for the Mail Order Rule, 16 CFR 435, the Commission plans to
issue a Federal Register notice during the Fall of 2008 requesting
comments on whether to retain or amend the Rule. Issued in 1975, and
last amended in 1995, the rule requires that, when sellers advertise
merchandise, they must have a reasonable basis for stating or implying
that they can ship within a certain time. The Commission also plans to
seek comments about non-substantive changes to the rule to bring it
into conformity with changing conditions; including consumers' usage of
means other than the telephone to access the Internet when ordering,
consumers paying for merchandise by demand draft or debit card, and
merchants using alternative methods to make prompt rule-required
refunds.
Second, the proposed Business Opportunity Rule stems from the recently
concluded review of the Franchise Rule, where staff recommended that
the Franchise Rule be split into two parts; one part addressing
franchise issues and another part addressing business opportunity
issues. Thereafter, the Commission published an NPRM seeking comments
on the proposed Business Opportunity Rule. 71 FR 19054 (Apr. 12, 2006).
This proposed rule would address fraud in the offer and sale of
business opportunity ventures by requiring business opportunity sellers
to furnish specific pre-sale disclosures to prospective purchasers, as
well as prohibiting specific conduct that the rulemaking record and the
Commission's law enforcement experience show are prevalent problems.
The NPRM comment period ended on July 17, 2006, and the rebuttal
comment period was extended to September 29, 2006. After reviewing the
comments, the Commission issued a revised NPRM on March 26, 2008, that
would require business opportunity sellers to furnish prospective
purchasers with specific information that is material to the consumer's
decision as to whether to purchase a business opportunity and which
should help the purchaser identify fraudulent offerings. 73 Fed. Reg.
16110. The NPRM comment period ended on May 27, 2008, and the rebuttal
comment period ended on June 16, 2008. Staff plans to forward a
recommendation to the Commission on the need for hearings or workshops
on the proposed amendments to the Business Opportunity Rule by the end
of 2008.
Third, for the Hart-Scott-Rodino Premerger Notification Rules (HSR
Rules), 16 CFR 801-803, Bureau of Competition staff is continuing to
review various HSR Rule provisions. Staff is also reviewing the HSR
Form and anticipates sending a recommendation to the Commission during
2009.
Fourth, for the Used Motor Vehicle Trade Regulation Rule (Used Car
Rule), 16 CFR 455, the Commission published a notice seeking public
comments on the effectiveness and impact of the Rule. 73 FR 42285 (July
21, 2008). The notice seeks comments on a range of issues including,
among others, whether a bilingual Buyers Guide would be useful or
practicable, as well as what form such a Buyers Guide should take.
Second, the notice seeks comments on possible changes to the Buyers
Guide that reflect new warranty products such as certified used car
warranties, that have become increasingly popular since the Rule was
last reviewed. Finally, the notice seeks comments on other issues
including the continuing need for the Rule and its economic impact, the
effect of the Rule on deception in the used car market, and the rule's
interaction with other regulations. Effective in 1985 and last reviewed
in 1995, this Rule sets out the general duties of a used vehicle
dealer, requiring that a completed Buyers Guide be posted at all times
on the side window of each used car a dealer offers for sale. Dealers
must disclose on the Buyers Guide whether the vehicle is covered by a
warranty, and if so, the type and duration of the warranty coverage, or
whether the vehicle is being sold ``as is - no warranty.'' The
information in the Buyers Guide also becomes part of the sales
contract, and overrides any contrary provisions contained in the
contract, under the FTC rule. The rule also prohibits the used vehicle
dealer from making statements contrary to those on the label. The
comment period, as extended, ended on November 19, 2008, and staff
anticipates sending its recommendation to the Commission by spring
2009.
Fifth, the Commission's review of the Pay-Per-Call Rule, 16 CFR 308,
is continuing. The Commission has held workshops to discuss proposed
amendments to this rule, including provisions to combat telephone bill
``cramming''--inserting unauthorized charges on consumers' phone
bills--and other abuses in the sale of products and services that are
billed to the telephone including voicemail, 900-number services, and
other telephone based information and entertainment services. The most
recent workshop focused on discussions of the use of 800 and other
toll-free numbers to offer pay-per-call services, the scope of the
rule, the dispute resolution process, the requirements for a pre-
subscription agreement, and the need for obtaining express
authorization from consumers before placing charges on their telephone
bills. The review record has remained open to encourage additional
comments on questions related to expansion of the rule's coverage.
Staff anticipates forwarding its recommendation to the Commission by
the end of 2009.
Finally, the Commission's review of the Regulations Under the
Comprehensive Smokeless Tobacco Health Education Act of 1986 (Smokeless
Regulations), 16 CFR 307, is ongoing. The Smokeless Regulations govern
the format and display of statutorily-mandated health warnings on all
packages and advertisements for smokeless tobacco. In fiscal year 2000,
the Commission undertook its periodic review of the Smokeless
Regulations to determine whether the Regulations continue to
effectively meet the goals of the Act and to seek information
concerning the Regulations' economic impact in order to decide whether
they should be amended. Staff is currently assessing the public
comments and anticipates forwarding its recommendations to the
Commission in late 2009.
(b) Guides
For the Fuel Economy Guide for new automobiles, 16 CFR 259, the
Commission issued a request for comments on May 9, 2007, on whether to
retain or amend the Guide. 72 FR 72328. The Fuel Economy Guide was
adopted in 1975 to prevent deceptive fuel economy advertising and to
facilitate the use of fuel economy information in advertising. The
Commission sought comments on, among other things, whether there is a
continuing need for the Guide and, if so, what changes should be made
to it, if any, in light of the recent Environmental Protection Agency
amendments to fuel economy labeling requirements for automobiles.
Comments were accepted through July 23, 2007. Staff anticipates sending
a recommendation to the Commission by late 2008.

[[Page 71299]]

After issuing a staff advisory opinion indicating that the
Commission's current Guides for Jewelry, Precious Metals and Pewter
Industries, 16 CFR 23, did not address descriptions of new platinum
alloy products, the Commission issued a Request for Public Comments on
whether the platinum section of the Guides for Jewelry, Precious Metals
and Pewter Industries, should be amended to provide guidance on how to
non-deceptively mark or describe products containing between 500 and
850 parts per thousand pure platinum and no other platinum group
metals. 70 FR 38834 (July 6, 2005). After an extension, the comment
period closed on October 12, 2005. On February 26, 2008, the Commission
issued a notice seeking comment on proposals to amend the platinum
section of the Guides to address the new platinum alloys. 73 FR 10190.
The extended comment period ended August 25, 2008. 73 FR 22848 (Apr.
28, 2008). Staff anticipates sending a recommendation to the Commission
by the end of 2008.
On January 16, 2007, the Commission requested public comment on the
overall costs, benefits, and regulatory and economic impact of its
Guides Concerning the Use of Endorsements and Testimonials in
Advertising, 16 CFR 255, as part of the agency's systematic review of
all current regulations and guides. The Commission also released
consumer research it commissioned regarding the messages conveyed by
consumer endorsements, and sought comment both on this research and
upon several other specific endorsement-related issues. 72 FR 2214
(Jan. 18, 2007). The initial comment period ended on March 19, 2007,
but was subsequently extended to June 18, 2007. 72 FR 13051 (Mar. 20,
2007). In 2008, the Commission may seek comment on proposed revisions
or updates to the Guides.
Finally, the Commission anticipates issuing a notice requesting
comments on the Statement of General Policy or Interpretations under
the Fair Credit Reporting Act (also known as FCRA Commentary) by
October 2009.
Final Actions
Since publication of the 2007 Regulatory Plan, the Commission has
taken final actions on several rulemakings and guides. First of all,
section 205 of the Energy Independence and Security Act of 2007
requires the Commission to promulgate biodiesel labeling requirements
for two categories of biomass-based diesel, ``biodiesel,'' ``biomass-
based diesel'' and ``biodiesel blends'' (collectively ``biodiesel
fuels''). On March 11, 2008, the Commission published an NPRM (73 FR
12916) that would amend the Commission's Octane Rule, 16 CFR part 306.
On June 16, 2008, the Commission published the final rule on biodiesel
fuels. (73 FR 40154). The rule is effective January 1, 2009.
Second, for the Telemarketing Sales Rule (TSR), 16 CFR 310, the
Commission issued a revised NPRM on October 4, 2006, proposing to make
explicit that the TSR's call abandonment prohibition bars sellers and
telemarketers from delivering a prerecorded message when a person
answers a telemarketing call, except in the very limited circumstances
permitted in the call abandonment safe harbor and when a consumer has
consented, in writing, to receive such calls. The revised NPRM also
proposes to change the method for measuring the maximum allowable call
abandonment rate in the call abandonment safe harbor provision from ``3
percent per day per calling campaign'' to ``3 percent per 30-day period
per calling campaign.'' The Commission also announced it would not
create a new safe harbor for prerecorded messages and would end its
previously announced forbearance policy permitting such messages
effective January 2, 2007. 71 FR 65762 (Oct. 4, 2006) (revised NPRM);
69 FR 67287 (Nov. 17, 2004) (initial NPRM). Then, in response to four
petitions requesting an extension of the forbearance policy, the
Commission announced that the forbearance policy would remain in effect
until the conclusion of the prerecorded call amendment proceeding. 71
FR 77634 (Dec. 27, 2006). On August 29, 2008, the Commission issued two
final rule amendments. 73 FR 51164 (Aug. 29, 2008). The amendments make
explicit a prohibition on telemarketing calls that deliver prerecorded
messages without express written consent from a consumer to receive
such calls and modify the method for measuring the TSR's call
abandonment safe harbor. 73 FR 51164. Finally, pursuant to the Do-Not-
Call Registry Fee Extension Act of 2007, Pub. L. No. 110-188, the
Commission revised the Final Amended Fee Rule, 16 CFR 310.8(c), to
incorporate the statutory changes to the fee structure and provides fee
increases pursuant to the Consumer Price Index (CPI). 73 FR 43354 (July
25, 2008). The Act also provides that DNC registrations will be
permanent rather than expiring after five years.
Third, for the Rules on the Controlling the Assault of Non-Solicited
Pornography and Marketing Act of 2003 (the CAN-SPAM Act Rules), the
Commission announced a final rule on May 12, 2008, that included: (1) a
definition of the term ``person,'' a term used repeatedly throughout
the Act but not defined there; (2) modifying the definition of
``sender'' to make it easier to determine which of multiple parties
advertising in a single e-mail message will be responsible for
complying with the Act's ``opt-out'' requirements; (3) clarifying that
a sender may comply with section 7704(a)(5(A)(iii) of the Act by
including in a commercial email message a post office box or private
mailbox established pursuant to United States Postal Service
regulations; and (4) clarifying that to submit a valid opt-out request,
a recipient cannot be required to pay a fee, provide information other
than his or her e-mail address and opt-out preferences, or take any
steps other than sending a reply e-mail message or visiting a single
Internet Web page. 73 FR 29654 (May 21, 2008). The final rules were
effective July 7, 2008. The Statement of Basis and Purpose also
explains the Commission's rationale for not adopting other proposals
contained in the Commission's May 12, 2005, Notice of Proposed
Rulemaking. 70 FR 25426.
The Commission completed its regulatory review of certain aspects of
the Funeral Industry Practices Rule (Funeral Rule), 16 CFR part 453.
The Funeral Rule, which became effective in 1984, and was amended in
1994, requires providers of funeral goods and services to give
consumers itemized lists of funeral goods and services that state
prices and descriptions and also contain specific disclosures. The rule
enables consumers to select and purchase only the goods and services
they want, except for those that may be required by law and a basic
services fee. Also, funeral providers must seek authorization before
performing some services, such as embalming. In addition to an
assessment of the rule's overall costs and benefits and continuing need
for the rule, the review examined whether changes in the funeral
industry warrant broadening the scope of the rule to include non-
traditional providers of funeral goods or services and revising or
clarifying certain prohibitions in the rule. 64 FR 24250 (May 5, 1999).
A public workshop conference was subsequently held to explore issues
raised in the comments submitted. After additional review, the
Commission announced that it is retaining the rule without any
amendments. 73 FR 13740

[[Page 71300]]

(Mar. 14, 2008). The Commission also announced that it would continue
to accept written comments and data to further the Commission's
understanding of the industry.
Since fall 2007 the Commission published two final rules mandated by
FACTA. The Commission jointly promulgated with the banking agencies and
the NCUA identity theft ``red flag'' guidelines and rules to implement
these guidelines (the ``ID theft red flag rule'') and an address change
rule (the ``address change rule''). The ID theft red flag rule, among
other things, requires card issuers to investigate requests for card
changes. The address change rule requires credit report users to
investigate when the address on a credit report differs from the
address on a credit application. The agencies jointly published
proposed rules on July 18, 2006. (71 FR 40786). The comment period
closed on September 18, 2006. After reviewing the comments the agencies
issued final rules on November 9, 2007. (72 FR 63718).
Under FACTA, the Commission also published the final Affiliate
Marketing Rule. The Commission, along with the banking agencies, the
NCUA, and the Securities and Exchange Commission (SEC), was required to
issue rules to implement the Act's provisions allowing consumers to opt
out of marketing by affiliates. The Commission issued an NPRM on June
15, 2004 (69 FR 33324). The extended comment period closed on August
16, 2004. The final rule was published on October 30, 2007. (72 FR
28966).
The Energy Policy Act of 2005 required the Commission to complete two
rulemakings while authorizing other discretionary rulemaking actions.
The statute directed the Commission to issue labeling requirements
within 18 months of enactment for ceiling fans concerning the
electricity used by the fans to circulate air in a room. After notice
and comment, the Commission published a final rule of ceiling fan
labeling on December 28, 2006, to be effective on January 1, 2009. 71
FR 78057. The statute also mandated that the Commission initiate a
rulemaking examining the effectiveness of the energy efficiency related
consumer product labeling program (also known as the appliance labeling
effectiveness rulemaking). Further, the Commission was required to
complete this rulemaking within two years of enactment. After notice
and comment, the Commission announced a final rule for appliance
labeling effectiveness on August 7, 2007. 72 FR 49947 (Aug. 29, 2007).
As required by The Postal Accountability and Enhancement Act, Pub. L.
109-435, 120 Stat. 3189 (Dec. 20, 2006), codified at 39 USC 101 et
seq., the Commission issued a report on January 16, 2008, titled
``Accounting for Laws that Apply Differently to the United States
Postal Service and its Private Competitors'' which can be found at
http://www.ftc.gov/os/2008/01/080116postal.pdf. The report identifies
and quantifies - to the extent possible - the Postal Service's economic
burdens and advantages that exist due to its status as a federal
government entity, as well as those benefits resulting from its postal
and mailbox monopolies. The report also examines the net economic
effect of the relevant laws governing the United States Postal Service
(USPS) and its private competitors, concluding that the USPS's burdens
and benefits both create marketplace distortions: legal constraints
increase the USPS's costs, disadvantaging it as a competitor; implicit
subsidies that the USPS enjoys partially mask the USPS's higher costs
from consumers, creating incentives for consumers to purchase more
competitive mail products from the USPS than they otherwise would.
Finally, on May 30, 2008, the Commission announced that it was
retaining the agency's Guides for Select Leather and Imitation Leather
Products, commonly known as the Leather Guides, 16 CFR 24, in their
current form. 73 FR 34626 (June 18, 2008). On May 23, 2007, the
Commission published a Federal Register notice soliciting comments on
the Leather Guides, which were adopted in 1996. 72 FR 28906. The
Leather Guides address misrepresentations regarding the composition and
characteristics of certain leather and imitation leather products, and
state that disclosure of non-leather content should be made for
material that appears to be leather but is not leather.
Summary
In both content and process, the FTC's ongoing and proposed regulatory
actions are consistent with the President's priorities. The actions
under consideration inform and protect consumers and reduce the
regulatory burdens on businesses. The Commission will continue working
toward these goals. The Commission's ten-year review program is
patterned after provisions in the Regulatory Flexibility Act and
complies with the Small Business Regulatory Enforcement Fairness Act of
1996. The Commission's ten-year program also is consistent with section
5(a) of E.O. 12866, 58 FR 51735 (Sept. 30, 1993), which directs
executive branch agencies to develop a plan to reevaluate periodically
all of their significant existing regulations. In addition, the final
rules issued by the Commission continue to be consistent with the
President's Statement of Regulatory Philosophy and Principles,
Executive Order 12866, section 1(a), which directs agencies to
promulgate only such regulations as are, inter alia, required by law or
are made necessary by compelling public need, such as material failures
of private markets to protect or improve the health and safety of the
public.
The Commission continues to identify and weigh the costs and benefits
of proposed actions and possible alternative actions, and to receive
the broadest practicable array of comment from affected consumers,
businesses, and the public at large. In sum, the Commission's
regulatory actions are aimed at efficiently and fairly promoting the
ability of ``private markets to protect or improve the health and
safety of the public, the environment, or the well-being of the
American people.'' E.O. 12866, section 1.

[[Page 71301]]

Rulemakings that Respond to Public Regulatory Reform Nominations
During March 2002, OMB requested public nominations for regulatory
reforms. The Office of Information and Regulatory Affairs (OIRA)
conducted a preliminary review of the public comments received and
found five FTC activities that one or more commenters had nominated for
reform. In a March 7, 2003 letter, the FTC responded that the agency
systematically reviews all regulations and guides on a ten-year basis
and explained how the agency had already reviewed or was about to
review the activity at issue or why some of the other activities were
not good candidates for reform as contemplated by the Smarter
Regulations Report. In 2004, OIRA requested recommendations for reform
in the manufacturing sector. OIRA received two nominations for FTC
action but determined not to include them in the Report to Congress on
agency responses to reform nominations in the manufacturing sector.\5\
---------------------------------------------------------------------------
\5\The two nominations were 1) a comment concerning the DOE and FTC
requirements for reporting water usage (the FTC's response indicated
that the agencies have accepted the requested data based on third party
reports since 1993); and 2) a comment that the DOE, FTC and EPA should
work with industry to streamline duplicative energy labels (the FTC's
response noted that since 2000, where appropriate, manufacturers have
been allowed to place the Energy Star logo on EnergyGuide Labels and
noted that the two labels provide different information to the
consumer).
---------------------------------------------------------------------------
II. REGULATORY ACTIONS
The Commission has no proposed rules that would be a ``significant
regulatory action'' under the definition in Executive Order 12866.\6\
---------------------------------------------------------------------------
\6\Section 3(f) of the Executive Order defines a regulatory action to
be ``significant'' if it is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates,
the President's priorities, or the principles set forth in this
Executive Order.
---------------------------------------------------------------------------
BILLING CODE 6750-01-S

[[Page 71302]]

NATIONAL INDIAN GAMING COMMISSION (NIGC)

Statement of Regulatory Priorities
The Indian Gaming Regulatory Act (IGRA or the Act), 25 U.S.C. 2701 et
seq., was signed into law on October 17, 1988. The Act established the
National Indian Gaming Commission (NIGC). The stated purpose of the
NIGC is to regulate the operation of gaming by Indian tribes as a means
of promoting tribal economic development, self-sufficiency, and strong
tribal governments. It is the NIGC's intention to provide regulation of
Indian gaming to adequately shield it from organized crime and other
corrupting influences, to ensure that each Indian tribe is the primary
beneficiary of its gaming operation(s), and to assure that gaming is
conducted fairly and honestly by both the operator and players.
Gaming technology and regulatory structures continue to evolve rapidly
in Indian gaming. These changes bring new risks and require a
distinction between the control standards for class II and class III
gaming. To that end, the NIGC is undertaking a review and revision of
its minimum internal control standards to ensure that they remain
relevant and continue to adequately minimize the risks associated with
the new technology.
The NIGC has been innovative in using active outreach efforts to
inform its policy development and its rulemaking efforts. For example,
the NIGC has had great success in using regional meetings, both formal
and informal, with tribal governments to gather views on current and
proposed NIGC initiatives. The NIGC anticipates that these
consultations with regulated tribes will continue to play an important
role in the development of the NIGC's rulemaking efforts.
_______________________________________________________________________

NIGC

-----------

FINAL RULE STAGE

-----------

128. TECHNICAL STANDARDS FOR GAMING MACHINES AND GAMING SYSTEMS

Priority:

Other Significant

Legal Authority:

25 USC 2706(b)(10)

CFR Citation:

25 CFR 547

Legal Deadline:

None

Abstract:

It is necessary for the National Indian Gaming Commission (NIGC) to
promulgate regulations establishing technical standards in order to
assure the integrity of electronic equipment used with the play of
class II games. Technical standards will address actual operation of
gaming machines and systems and the equipment related to their
operation.

Statement of Need:

Technical standards are needed to assure machine games are operated in
a manner that ensures uniformity and integrity in tribal gaming.

Summary of Legal Basis:

It is the goal of NIGC to provide regulation of Indian gaming to shield
it from organized crime and other corrupting influences as well as
assuring that gaming is conducted fairly and honestly. (25 U.S.C.
2702). The Commission is charged with the responsibility of monitoring
gaming conducted on Indian lands. (25 U.S.C. 2706(b)(1)). The Indian
Gaming Regulatory Act expressly authorizes the Commission to
``promulgate such regulations and guidelines as it deems appropriate to
implement the provisions of the (Act).'' (25 U.S.C. 2706(b)(10)). The
Commission relies on these sections of the statute to authorize the
promulgation of technical standards for gaming machines to ensure
uniformity and integrity in tribal gaming.

Alternatives:

If the Commission does not issue a rule establishing technical
standards for gaming machines, tribal gaming will not have the benefit
of a standard that can help promote the integrity of the equipment in
class II gaming.

Anticipated Cost and Benefits:

The development of technical standards will reduce the cost of
regulation to the Federal Government. Additionally, technical standards
will aid tribal governments in the regulation of their gaming
activities as well as prevent loss associated with defective or
substandard gaming devices. Anticipated costs will be to gaming machine
manufacturers and tribes.

Risks:

There are no known risks to this regulatory action.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
NPRM 08/11/06 71 FR 46336
NPRM Withdrawn 02/09/07 72 FR 7360
NPRM 10/24/07 72 FR 60508
NPRM Comment Period End 03/09/08 73 FR 3224
Final Action 12/00/08

Regulatory Flexibility Analysis Required:

Small Entities Affected:

Government Levels Affected:

Tribal

Agency Contact:
Michael Gross
Associate General Counsel
National Indian Gaming Commission
1441 L Street NW., Suite 9100
Washington, DC 20005
Phone: 202 632-7003
Fax: 202 632-7066
RIN: 3141-AA29
BILLING CODE 7565-01-S

[[Page 71303]]

POSTAL REGULATORY COMMISSION (PRC)

Statement of Regulatory Priorities
The Postal Accountability and Enhancement Act (PAEA) was signed into
law on December 20, 2006. This law gives the Postal Service additional
tools to meet the challenges of changing markets, and a new authority
to price its own products. It reaffirms the Postal Service's role as a
government service whose primary mission remains providing universal
postal services at affordable rates. Among other things, the PAEA re-
established the Postal Rate Commission as the Postal Regulatory
Commission (PRC or Commission). The PAEA gave the Commission enhanced
responsibilities and authority to meet the challenges of the new law.
It is the intention of the Commission to use its enhanced authority to
ensure accountability and transparency of the Postal Service to the
public it serves.
In fiscal year 2009, the Commission continues its comprehensive review
of its current regulations to ensure alignment with the PAEA. Toward
that end, many of its regulations will be rewritten to comply with the
mandates of the PAEA. The Commission's principal regulatory priorities
for fiscal year 2009 are (1) to develop and establish periodic
reporting requirements to support annual reports; (2) to develop and
establish regulations related to commercially sensitive documents
submitted to the Commission; (3) to develop revised procedural rules
for handling complaints; and (4) to develop rules establishing the
accounting practices and principles to govern the operation of the
Postal Service's Competitive Products Fund and for determining the
assumed Federal Income Tax on competitive products' income. The
Commission, in connection with the Postal Service's stakeholders, has
begun meeting these challenges and will continue to do so well into
fiscal year 2009.
_______________________________________________________________________

PRC

-----------

FINAL RULE STAGE

-----------

129. ACCOUNTING PRACTICES AND PRINCIPLES

Priority:

Economically Significant

Legal Authority:

39 USC 2011(h)(2)

CFR Citation:

39 CFR part 3060

Legal Deadline:

Final, Statutory, December 18, 2008, Statutory deadline for issuance
unless extended by agreement of Postal Service.

Pursuant to section 2011(h)(2)(B)(ii), the final regulations are to be
issued within 12 months of the date Treasury submitted its
recommendations or such later date as agreed to by the Commission and
the Postal Service. Treasury submitted its report on December 19, 2007.

Abstract:

Section 401 of the Postal Accountability and Enhancement Act requires
the Secretary of the Treasury to develop recommendations for accounting
practices and principles that will govern the operation of the Postal
Service's Competitive Products Fund and the determination of an assumed
Federal income tax to be imposed on competitive products' income. On
December 19, 2007, the Secretary of the Treasury submitted the report
and its recommendations to the Postal Regulatory Commission concerning
accounting principles and practices for the operation of the Postal
Service's Competitive Products Fund and the determination of an assumed
Federal income tax to be imposed on competitive products' income. Title
39 U.S.C. Sec. 2011(h) requires the Commission to give the public the
opportunity to comment on that report and tasks it with the
responsibility to develop regulations to establish the accounting
practices and principles to govern the operation of the Competitive
Products Fund and rules for determining the assumed Federal income tax
on competitive products' income. This regulation will fulfill the
Commission's statutory responsibility to prescribe rules and
regulations concerning accounting principles and practices for the
operation of the Competitive Products Fund and the determination of an
assumed Federal income tax on competitive products' income.

Statement of Need:

Establishing the accounting practices and principles to govern the
operation of the Postal Service's Competitive Products Fund and
determining the assumed income tax on competitive products' income is
required by the Postal Accountability and Enhancement Act. Congress
tasked the Postal Regulatory Commission with the job of implementing
those practices and principles. These regulations are the Commission's
implementation of that Congressional directive.

Summary of Legal Basis:

Title 39 U.S.C. 2011(h)(2) requires the Postal Regulatory Commission to
issue regulations to establish (1) the accounting practices and
principles to be followed by the Postal Service relating to the
operation of the Competitive Products Fund, and (2) rules for
determining the assumed Federal income tax on competitive products'
income.

Alternatives:

There are no alternative methods of complying with the requirements of
39 U.S.C. 2011(h)(2) other than by issuing regulations.

Anticipated Cost and Benefits:

The accounting practices and principles and the determination of an
assumed Federal income tax on competitive products' income are expected
to help ensure that a level playing field exists for the Postal Service
and its competitors with respect to competitive products.

Risks:

There are no known risks to this regulatory action.

Timetable:
_______________________________________________________________________
Action Date FR Cite

_______________________________________________________________________
ANPRM 02/01/08 73 FR 6081
ANPRM Comment Period End 04/01/08
ANPRM Reply Comment
Period End 05/01/08
NPRM 09/19/08 73 FR 54468
NPRM Comment Period End 10/20/08
NPRM Reply Comment Period
End 11/03/08
Final Action 12/00/08

Regulatory Flexibility Analysis Required:

Government Levels Affected:

Federal

URL For More Information:
www.prc.gov

URL For Public Comments:
www.prc.gov

[[Page 71304]]

Agency Contact:
Stephen L. Sharfman
General Counsel
Postal Regulatory Commission
Suite 200
901 New York Avenue NW
Washington, DC 20268-0001
Phone: 202 789-6820
Fax: 202 789-6861
Email: [email protected]
RIN: 3211-AA04
BILLING CODE 7710-FW-S