Vol. 77 Wednesday, No. 80 April 25, 2012 Pages 24575–24828

Vol. 77 Wednesday, No. 80 April 25, 2012

Pages 24575–24828

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 77, No. 80

Wednesday, April 25, 2012

Agency for Healthcare Research and Quality Commerce Department NOTICES See Census Bureau Scientific Information Requests: See Industry and Security Bureau Chronic Venous Ulcers Treatments, 24718–24719 See International Trade Administration Local Therapies for Treatment of Stage 1 Non-Small Cell See National Oceanic and Atmospheric Administration Lung Cancer, etc., 24717–24718 Medical Devices to Treat Otis Media with Effusion, Coordinating Council on Juvenile Justice and 24716–24717 Delinquency Prevention NOTICES Agricultural Marketing Service Meetings, 24687–24688 PROPOSED RULES Tart Cherries Grown in States of Michigan, et al.: Copyright Royalty Board Increasing Primary Reserve Capacity and Revising PROPOSED RULES Exemption Requirements, 24640–24643 Determination of Reasonable Rates and Terms for Agriculture Department Noncommercial Broadcasting, 24662–24667 See Agricultural Marketing Service See Food Safety and Inspection Service Defense Department See Forest Service See Navy Department See National Agricultural Statistics Service NOTICES See Rural Business-Cooperative Service Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Agency Information Collection Activities; Proposals, Federal Acquisition Regulation; Transportation Submissions, and Approvals, 24671 Requirements, 24713–24714 Arts and Humanities, National Foundation Delaware River Basin Commission See National Foundation on the Arts and the Humanities NOTICES Meetings: Bureau of Consumer Financial Protection Delaware River Basin Commission and Public Hearing, NOTICES 24688–24689 Impact of Overdraft Programs on Consumers, 24687 Education Department Census Bureau NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals: Submissions, and Approvals: Graduate Assistance in Areas of National Need 2013–2015 American Community Survey Methods Panel Performance Report, 24689 Testing, 24684–24685 Pell Grant, ACG, and National SMART Reporting under Centers for Disease Control and Prevention the Common Origination and Disbursement System, 24690 NOTICES Meetings: Exemplary Charter School Collaboration Awards: Board of Scientific Counselors, National Center for Proposed Definitions, Requirements, and Selection Environmental Health/Agency for Toxic Substances Criteria, 24690–24694 and Disease Registry, 24720 Disease, Disability, and Injury Prevention and Control Energy Department Special Emphasis Panel, 24719–24720 See Federal Energy Regulatory Commission NOTICES Children and Families Administration Meetings: PROPOSED RULES Environmental Management Site-Specific Advisory Temporary Assistance to Needy Families: Board, Nevada, 24694–24695 Assistance and Electronic Benefit Transfer Transactions; Environmental Management Site-Specific Advisory Request for Public Comment, 24667–24669 Board, Savannah River Site, 24695 Civil Rights Commission Environmental Protection Agency NOTICES RULES Meetings: Significant New Use Rules on Certain Chemical Substances, Florida Advisory Committee, 24683 24613–24628 PROPOSED RULES Coast Guard Approvals and Promulgations of Air Quality NOTICES Implementation Plans: Meetings: State of New York; Regional Haze State Implementation Great Lakes Pilotage Advisory Committee, 24729–24730 Plan and Federal Implementation Plan, 24794–24827

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Approvals and Promulgations of State Implementation Initial Market-Based Rate Filings Including Requests for Plans: Blanket Section 204 Authorizations: Albuquerque–Bernalillo County, NM; Interstate Transport Cayuga Operating Co., LLC, 24696 Affecting Visibility and Regional Haze Rule Cooper Mountain Solar 2, LLC, 24697 Requirements, etc., 24768–24792 Somerset Operating Co., LLC, 24697 NOTICES Verso Bucksport LLC, 24696 Access to Confidential Business Information by CGI Federal Inc. and Its Identified Subcontractor, FedConcepts/ Federal Highway Administration Jorge, 24697–24698 NOTICES Agency Information Collection Activities; Proposals, Buy America Waivers, 24760 Submissions, and Approvals, 24698–24700 Agency Information Collection Activities; Proposals, Federal Maritime Commission Submissions, and Approvals: NOTICES Microbial Rules, 24701–24702 Agreements Filed, 24712 National Emission Standards for Hazardous Air Ocean Transportation Intermediary Licenses; Applicants, Pollutants for Nine Metal Fabrication and Finishing 24712–24713 Area Sources, 24703–24705 Ocean Transportation Intermediary Licenses; Reissuances, NESHAP for Steel Pickling, HCl Process Facilities and 24713 Hydrochloric Acid Regeneration Plants, 24700–24701 Ocean Transportation Intermediary Licenses; Revocations, Part 70 State Operating Permit Program; and Part 71 24713 Federal Operating Permit Program, 24702–24703 Certain New Chemicals; Receipt and Status Information, Federal Railroad Administration 24705–24709 NOTICES Safety Advisories: Executive Office of the President Restricted Speed, 24760–24762 See Presidential Documents See Trade Representative, Office of United States Food and Drug Administration NOTICES Farm Credit System Insurance Corporation Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Meetings: Revisions to Labeling Requirements for Blood and Blood Farm Credit System Insurance Corporation Board, 24709 Components, Including Source Plasma, 24720–24721 Annual Food and Drug Administration–Orange County Federal Aviation Administration Regulatory Affairs Educational Conference: RULES Sustainable Regulatory Practices, Irvine, CA, 24721– Airworthiness Directives: 24722 Turbomeca S.A. Turboshaft Engines, 24585–24587 Draft Guidances for Industry: PROPOSED RULES Assessing Effects of Significant Manufacturing Process Airworthiness Directives: Changes, etc., 24722–24723 The Boeing Company Airplanes, 24643–24646 Safety of Nanomaterials in Cosmetic Products; NOTICES Availability, 24722 Meetings: Withdrawals of Approvals of New Drug Applications: Aviation Rulemaking Advisory Committee; Transport IRESSA; AstraZeneca Pharmaceuticals LP, 24723–24724 Airplane and Engine Issues, 24759–24760 OFORTA; Sanofi-aventis, U.S., LLC, 24724 Federal Communications Commission Food Safety and Inspection Service RULES Implementing the Provisions of the Communications Act as NOTICES Enacted by the Twenty-First Century Communications Compliance Guides; Availability: and Video Accessibility Act of 2010, 24632–24634 Residue Prevention and Agency Testing Policy for NOTICES Residues, 24671–24673 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24709–24711 Forest Service NOTICES Federal Deposit Insurance Corporation Delegations of Authority: NOTICES Regional Forester, Pacific Southwest Region, to Forest Agency Information Collection Activities; Proposals, Supervisor, Eldorado National Forest, 24673 Submissions, and Approvals, 24711–24712 Environmental Impact Statements; Availability, etc.: Grand Mesa, Uncompahgre and Gunnison National Federal Energy Regulatory Commission Forests; Colorado; Federal Coal Lease Modifications, RULES etc., 24673–24677 Version 4 Critical Infrastructure Protection Reliability Standards, 24594–24611 General Services Administration PROPOSED RULES NOTICES Open Access and Priority Rights on Interconnection Agency Information Collection Activities; Proposals, Facilities, 24646–24656 Submissions, and Approvals: NOTICES Federal Acquisition Regulation; Transportation Combined Filings, 24695–24696 Requirements, 24713–24714

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Health and Human Services Department Jurors Information Form, 24739–24740 See Agency for Healthcare Research and Quality Lodgings of Settlement Agreements: See Centers for Disease Control and Prevention Resource Conservation and Recovery Act; Emergency See Children and Families Administration Planning and Community Right-To-Know Act, 24740 See Food and Drug Administration See National Institutes of Health Labor Department RULES NOTICES World Trade Center Health Program Requirements: Agency Information Collection Activities; Proposals, Addition of New WTC-Related Health Conditions, 24628– Submissions, and Approvals: 24632 Senior Community Service Employment Program NOTICES Performance Measurement System, 24740–24741 Meetings: National Toxicology Program Board of Scientific Library of Congress Counselors, 24714–24715 See Copyright Royalty Board National Action Plan to Prevent Healthcare-Associated Infections, Roadmap to Elimination, 24715–24716 National Aeronautics and Space Administration NOTICES Healthcare Research and Quality Agency Agency Information Collection Activities; Proposals, See Agency for Healthcare Research and Quality Submissions, and Approvals: Federal Acquisition Regulation; Transportation Homeland Security Department Requirements, 24713–24714 See Coast Guard See U.S. Customs and Border Protection National Agricultural Statistics Service NOTICES NOTICES Meetings: Agency Information Collection Activities; Proposals, President’s National Security Telecommunications Submissions, and Approvals, 24677–24678 Advisory Committee, 24728–24729 National Foundation on the Arts and the Humanities Industry and Security Bureau NOTICES RULES Meetings; Sunshine Act, 24741–24742 Addition of Certain Persons to the Entity List: Implementation of Entity List Annual Review Changes, National Highway Traffic Safety Administration 24587–24594 NOTICES Decisions of Inconsequential Noncompliance: Interior Department Mitsubishi Motors North America, Inc.; Grant of Petition, See National Indian Gaming Commission 24762–24764 See National Park Service Visual–Manual Driver Distraction Guidelines for In-Vehicle See Ocean Energy Management Bureau Electronic Devices, 24764–24766 See Reclamation Bureau See Surface Mining Reclamation and Enforcement Office National Indian Gaming Commission NOTICES Internal Revenue Service Agency Information Collection Activities; Proposals, RULES Submissions, and Approvals, 24730–24734 Removal of Regulations Requiring 3% Withholding by Government Entities, 24611–24612 National Institutes of Health PROPOSED RULES NOTICES Local Lodging Expenses, 24657–24660 Meetings: Withholding on Payments by Government Entities to Center for Scientific Review, 24725–24726 Persons Providing Property or Services, 24660–24661 Fogarty International Center, 24725 National Eye Institute, 24727 International Trade Administration National Heart, Lung, and Blood Institute, 24728 NOTICES National Institute of General Medical Sciences, 24724– Agency Information Collection Activities; Proposals, 24725 Submissions, and Approvals: National Institute of Neurological Disorders and Stroke, Client Focus Groups and Qualitative Interviews, 24685– 24725–24728 24686 National Institute on Aging, 24727–24728 National Institute on Alcohol Abuse and Alcoholism, International Trade Commission 24726–24727 NOTICES Investigations: National Oceanic and Atmospheric Administration Certain Wireless Communication Devices and Systems, RULES Components Thereof, and Products Containing Same, Magnuson–Stevens Act Provisions; Fisheries off West Coast 24738–24739 States: Biennial Specifications and Management Measures; Justice Department Inseason Adjustments, 24634–24639 NOTICES PROPOSED RULES Agency Information Collection Activities; Proposals, Atlantic Highly Migratory Species: Submissions, and Approvals: Recreational Yellowfin Tuna Fishery Data Collection; Applications for Special Deputations, 24739 Public Conference Call, 24669–24670

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NOTICES Funding Availabilities: Meetings: Small, Socially-Disadvantaged Producer Grant Western Pacific Fishery Management Council, 24686 Application Deadlines in Fiscal Year 2012, 24678– Permits: 24683 Endangered Species; File No. 15634, 24686–24687 Securities and Exchange Commission National Park Service NOTICES NOTICES Agency Information Collection Activities; Proposals, Environmental Impact Statements; Availability, etc.: Submissions, and Approvals: White-tailed Deer Management Plan, Indiana Dunes Rule 17a–11, 24746–24747 National Lakeshore, 24734 Rule 17a–6, 24747–24748 Self-Regulatory Organizations; Proposed Rule Changes: Navy Department EDGA Exchange, Inc.; EDGX Exchange, Inc.; International RULES Securities Exchange, LLC, 24752–24756 Certifications and Exemptions Under the International Financial Industry Regulatory Authority, Inc., 24748– Regulations for Preventing Collisions at Sea, 1972, 24750 24612–24613 NYSE Arca, Inc., 24750–24752 NOTICES Meetings: Small Business Administration Secretary of Navy Advisory Panel, 24688 NOTICES Disaster Declarations: Nuclear Regulatory Commission Texas, 24756 RULES List of Approved Spent Fuel Storage Casks: Social Security Administration HI-STORM 100, Revision 8, 24585 NOTICES NOTICES Confirmatory Orders: Privacy Act; Computer Matching Programs, 24756–24758 ABSG Consulting Inc., 24742–24744 Meetings: State Department Advisory Committee on Reactor Safeguards, 24744 NOTICES Advisory Committee on Reactor Safeguards Charter Renewals: Subcommittee on Reliability and PRA, 24745 Advisory Committee on International Communications Advisory Committee on Reactor Safeguards and Information Policy, 24758 Subcommittee on Thermal Hydraulic Phenomena, Meetings: 24745 Advisory Committee International Postal and Delivery Regulatory Guides: Services, 24758–24759 Constraint on Releases of Airborne Radioactive Materials Waivers and Certifications of Statutory Provisions: to Environment for Licensees other than Power Palestine Liberation Organization Office, 24759 Reactors, 24746 Statistical Reporting Service Ocean Energy Management Bureau See National Agricultural Statistics Service NOTICES Environmental Assessments; Availability, etc.: Surface Mining Reclamation and Enforcement Office Renewable Energy Program Leasing for Marine PROPOSED RULES Hydrokinetic Technology Testing Offshore Florida, North Dakota Regulatory Program, 24661–24662 24734–24735 NOTICES Agency Information Collection Activities; Proposals, Office of United States Trade Representative Submissions, and Approvals, 24737–24738 See Trade Representative, Office of United States Trade Representative, Office of United States Presidential Documents NOTICES PROCLAMATIONS Implementation of United States–Colombia Trade Fort Ord National Monument; Establishment (Proc. 8803), Promotion Agreement: 24579–24583 Tariff-Rate Quota for Imports of Sugar, 24759 Special Observances: Earth Day (Proc. 8802), 24577–24578 Transportation Department National Park Week (Proc. 8801), 24575–24576 See Federal Aviation Administration See Federal Highway Administration Reclamation Bureau See Federal Railroad Administration NOTICES See National Highway Traffic Safety Administration Agency Information Collection Activities; Proposals, Submissions, and Approvals, 24735–24737 Treasury Department See Internal Revenue Service Rural Business-Cooperative Service NOTICES U.S. Customs and Border Protection Agency Information Collection Activities; Proposals, PROPOSED RULES Submissions, and Approvals, 24678 Extension of Port Limits of Indianapolis, IN, 24656–24657

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United States Institute of Peace Part III NOTICES Environmental Protection Agency, 24794–24827 Requests for Proposals: Micro Support Program on International Conflict Resolution and Peacebuilding, 24766 Reader Aids Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. Separate Parts In This Issue To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http:// Part II listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change Environmental Protection Agency, 24768–24792 settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

3 CFR Proclamations: 8801...... 24575 8802...... 24577 8803...... 24579 7 CFR Proposed Rules: 930...... 24640 10 CFR 72...... 24585 14 CFR 39...... 24585 Proposed Rules: 39...... 24643 15 CFR 744...... 24587 18 CFR 40...... 24594 Proposed Rules: 40...... 24646 19 CFR Proposed Rules: 101...... 24656 26 CFR 31...... 24611 Proposed Rules: 1...... 24657 31...... 24660 30 CFR Proposed Rules: 934...... 24661 32 CFR 706...... 24612 37 CFR Proposed Rules: 381...... 24662 40 CFR 9...... 24613 721...... 24613 Proposed Rules: 52 (2 documents) ...... 24768, 24794 42 CFR 88...... 24628 45 CFR Proposed Rules: 262...... 24667 265...... 24667 47 CFR 14...... 24632 50 CFR 660...... 24634 Proposed Rules: 635...... 24669

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Federal Register Presidential Documents Vol. 77, No. 80

Wednesday, April 25, 2012

Title 3— Proclamation 8801 of April 20, 2012

The President National Park Week, 2012

By the President of the United States of America

A Proclamation When President Theodore Roosevelt first took office over a century ago, he embarked on a tour of the American West that would change his life and the life of our Nation forever. He traveled from Yellowstone’s geysers, to Yosemite’s granite cliffs, to Dakota’s Badlands, ever moved by the natural wonders of which he and all Americans were proud inheritors. As he explored wild country, he heard a call to preserve our country’s heritage that echoed throughout our forests and river valleys. He remarked of the Grand Canyon, ‘‘the ages have been at work on it, and man can only mar it.’’ From that sense of commitment sprang five National Parks, 18 National Monuments, 51 Federal bird reservations, and 150 National Forests. From that commitment sprang an effort to save the great Redwoods of California and the Petrified Forest of Arizona, the great bird rocks of the Aleutian Islands and the Tongass of Alaska. President Roosevelt inspired a breath- taking legacy of conservation that has forever enriched our lives, and in the decades since his historic journey, millions have worked to build on his enduring mission. When the fate of our lands and waters has been cast into doubt, they have taken the long view—that as Americans and as inhabitants of this one small planet, it is up to us to preserve our national heritage for our children, grandchildren, and for the generations to come. That spirit drives my Administration today. Since I took office, we have set aside more than 2 million acres of Federal wilderness and thousands of miles of trails and rivers under the Omnibus Public Land Management Act. Last November, I was proud to establish the Fort Monroe National Monument, forever enshrining a site of profound historical and cultural significance. Today, I designated Fort Ord as a National Monument that will not only protect one of the crown jewels of California’s coast—a world- class destination for hikers, mountain bikers, and outdoor enthusiasts— but also honor the heroism and dedication of men and women who served our Nation during the major conflicts of the 20th century. And with the America’s Great Outdoors Initiative, we continue to advance a smarter, more community-driven conservation and recreation strategy. We are partnering with cities and States to make it easier for families to spend time outside no matter where they live, and we are working to create jobs, boost rural economies, and increase tourism by enhancing public lands that draw trav- elers from across the globe. To celebrate National Park Week, all 397 National Parks will offer free admission from April 21 through April 29, 2012. I encourage every American to visit www.NPS.gov to find a nearby park and discover the land passed down to us by our forebears. President Franklin Delano Roosevelt told us ‘‘There is nothing so American as our National Parks.’’ This week, we honor the uniquely American idea behind them: that each of us has an equal share in the land around us, and an equal responsibility to protect it. That call to conserve has echoed for generations—from Jefferson, to Lincoln, to Roosevelt, to all who have done their part to protect the land that they love. It is the call we hear

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today, and as we come together to celebrate our national heritage, let us reaffirm our promise to preserve America’s treasures for the generations yet to come. NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 21 through April 29, 2012, as National Park Week. I encourage all Americans to visit their national parks and be reminded of these unique blessings we share as a Nation. IN WITNESS WHEREOF, I have hereunto set my hand this twentieth day of April, in the year of our Lord two thousand twelve, and of the Independ- ence of the United States of America the two hundred and thirty-sixth.

[FR Doc. 2012–10099 Filed 4–24–12; 8:45 am] Billing code 3295–F2–P

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Proclamation 8802 of April 20, 2012

Earth Day, 2012

By the President of the United States of America

A Proclamation

On April 22, 1970, millions of Americans came together to celebrate the first Earth Day. Students, teachers, activists, elected officials, and countless others challenged our Nation to confront our most urgent environmental issues and rallied around a single message: the success of future generations depends upon how we act today. As we commemorate Earth Day this year, we reflect on the challenges that remain before us and recommit to the spirit of togetherness and shared responsibility that galvanized a movement 42 years ago. America rose to meet the call to action in the months and years that followed the first Earth Day. We passed the Clean Air, Clean Water, Endan- gered Species, and Marine Mammal Protection Acts; founded the Environ- mental Protection Agency; and ignited a spirit of stewardship that has driven progress for over four decades. Today, our air and water are cleaner, pollution has been greatly reduced, and Americans everywhere are living in a healthier environment. While we have made remarkable progress in protecting our health and our natural heritage, we know our work is not yet finished. Last July, my Administration proposed the toughest fuel economy standards in our Nation’s history—standards that will save families money at the pump, cut greenhouse gas emissions, and significantly reduce our dependence on oil. In December, we finalized the first-ever national standards to limit mercury and other toxic emissions from power plants, helping safeguard the health of millions. We have taken action to protect and restore our Nation’s precious ecosystems, from the Gulf Coast to the Great Lakes. And we continue to make landmark investments in batteries, biofuels, and renewable energy that are unlocking American innovation and ensuring our Nation stays on the cutting edge. Our country is on the path to economic recovery and renewal, and moving forward, my Administration will continue to fight for a healthy environment every step of the way. As we work to leave our children a safe, sustainable future, we must also equip them with the tools they need to take on tomorrow’s environmental challenges. Supporting environmental literacy and a strong foundation in science, technology, engineering, and math for every student will help ensure our youth have the skills and knowledge to advance our clean energy economy. Last year, we launched the Department of Education Green Ribbon Schools recognition award to encourage more schools to pursue sustain- ability, foster health and wellness, and integrate environmental literacy into the curriculum. In the days ahead, we look forward to awarding the first Green Ribbons and recognizing the accomplishments of green schools across our country. Forty-two years ago, a generation rallied together to protect the earth we would inherit. As we reflect on that historic day of activism and stewardship, let us embrace our commitment to the generations yet to come by leaving them a safe, clean world on which to make their mark.

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NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 22, 2012, as Earth Day. I encourage all Americans to participate in programs and activities that will protect our environment and contribute to a healthy, sustainable future. IN WITNESS WHEREOF, I have hereunto set my hand this twentieth day of April, in the year of our Lord two thousand twelve, and of the Independ- ence of the United States of America the two hundred and thirty-sixth.

[FR Doc. 2012–10107 Filed 4–24–12; 8:45 am] Billing code 3295–F2–P

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Proclamation 8803 of April 20, 2012

Establishment of the Fort Ord National Monument

By the President of the United States of America

A Proclamation

In the heart of California’s Central Coast, the former Fort Ord encompasses a sweeping landscape of vivid beauty and rich natural diversity. One of the few remaining expanses of large, contiguous open space in the increas- ingly developed Monterey Bay area, this area is a rolling landscape long treasured for recreation, scientific research, outdoor education, and historical significance. Originating in the Pleistocene Epoch, ancient dunes provide the foundation for this landscape’s unique array of plant and wildlife communities. The area is also notable for its historical significance, including its role in the Spanish settlement of California and in the military training of generations of American soldiers. Nearly two and a half centuries ago, as Americans fought for independence far to the east, these lands were traversed by a group of settlers led by Spanish Lieutenant Colonel Juan Bautista de Anza. In 1775–1776, Anza established the first overland route from ‘‘New Spain,’’ as Mexico was then known, to San Francisco, opening the way for expanded Spanish settlement of California. The diaries kept on this nearly 2,000-mile journey were used to identify the Juan Bautista de Anza National Historic Trail, approximately 6 miles of which pass through the Fort Ord area. Although much of the historic route currently passes through urban areas, the undeveloped expanse of the Fort Ord area is likely quite similar to the open landscape experienced by Anza and by the Costanoan (now commonly referred to as Ohlone) peoples who lived in what is now the Central Coast region of California. The area’s open, contiguous landscape owes its undeveloped state in large part to its role as a U.S. Army facility. From World War I through the early 1990s, the area’s rugged terrain served as a military training ground and introduced as many as a million and a half American soldiers to the rigors of military service. From its origins in 1917 as a training ground for troops stationed at the nearby Presidio of Monterey, Fort Ord had grown into a major Army installation by the beginning of World War II. During the Vietnam War, it served as a leading training center and deployment staging ground. While the former Fort Ord has few remaining historic structures, today thousands of veterans carry the memory of its dramatic landscape as their first taste of Army life, as a final stop before deploying to war, or as a home base during their military career. These lands are an historical link to the heroism and dedication of the men and women who served our Nation and fought in the major conflicts of the 20th century. Today, this expansive, historic landscape provides opportunities for solitude and adventure to nearly 100,000 visitors each year. By bicycle, horse, and foot visitors can explore the Fort Ord area’s scenic and natural resources along trails that wind over lush grasslands, between gnarled oaks, and through scrub-lined canyons. Within the boundaries of the Fort Ord area, visitors admire the landscape and scenery and are exposed to wildlife and a diverse group of rare and endemic plants and animals. Because visitors travel from areas near and far, these lands support a growing travel and tourism sector that is a source of economic opportunity for the community,

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especially businesses in the region. They also help to attract new residents, retirees, and businesses that will further diversify the local economy. Scientists are also drawn here, seeking out opportunities to better understand once-widespread species and vegetative communities, and their ongoing restoration. The Fort Ord area is significant because of its rich biodiversity and important Central Coast habitats, supporting a diverse group of rare and endemic species of plants and animals that are managed across the base through a multi-agency, community-led management plan. It is one of the few remaining places in the world where large expanses of coastal scrub and live oak woodland and savanna habitat, mixed with rare vernal pools, exist in a contiguous, interconnected landscape. The protection of the Fort Ord area will maintain its historical and cultural significance, attract tourists and recreationalists from near and far, and enhance its unique natural resources, for the enjoyment of all Americans. WHEREAS section 2 of the Act of June 8, 1906 (34 Stat. 225, 16 U.S.C. 431) (the ‘‘Antiquities Act’’), authorizes the President, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and to reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected; WHEREAS the 1991 Defense Base Closure and Realignment Commission recommended that Fort Ord cease to be used as an Army installation, and pursuant to the Defense Base Closure and Realignment Act of 1990 (Public Law 101–510), Fort Ord closed on September 30, 1994; WHEREAS it is in the public interest to reserve such lands as a national monument to be known as the Fort Ord National Monument; NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by the authority vested in me by section 2 of the Antiquities Act, hereby proclaim that all lands and interests in lands owned or controlled by the Government of the United States within the boundaries described on the map entitled ‘‘Fort Ord National Monument,’’ which is attached to and forms a part of this proclamation, are hereby set apart and reserved as the Fort Ord National Monument (monument) for the purpose of protecting and restoring the objects identified above. The reserved Federal lands and interests in lands consist of approximately 14,651 acres, which is the smallest area compatible with the proper care and management of the objects to be protected and restored. All Federal lands and interests in lands within the boundaries of this monument are hereby appropriated and withdrawn from all forms of entry, location, selection, sale, leasing, or other disposition under the public lands laws, including withdrawal from location, entry, and patent under the mining laws, and from disposition under all laws relating to mineral and geothermal leasing other than by exchange that furthers the protective purposes of the monument. The establishment of this monument is subject to valid existing rights. Lands and interests in lands within the monument boundaries not owned or controlled by the United States shall be reserved as part of the monument upon acquisition of ownership or control by the United States. Of the approximately 14,651 acres of Federal lands and interests in lands reserved by this proclamation, approximately 7,205 acres are currently managed by the Secretary of the Interior through the Bureau of Land Management (BLM) and approximately 7,446 acres are currently managed by the Secretary of the Army. The Secretary of the Army, in consultation with the Secretary of the Interior, through the BLM, shall continue to manage the lands and interests in lands under the Secretary’s jurisdiction within the monument

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boundaries until the Army transfers those lands and interests in lands to the BLM in accordance with the 1995 Memorandum of Understanding (MOU) between the Department of the Army and the BLM, as amended, that describes the responsibilities of each agency related to such lands and interests in lands, the implementing actions required of each agency, the process for transferring administrative jurisdiction over such lands and interests in lands to the Secretary of the Interior, and the processes for resolving interagency disputes. The Secretary of the Interior, through the BLM, shall manage that portion of the monument under the Secretary’s administrative jurisdiction, pursuant to applicable legal authorities and the MOU, to implement the purposes of this proclamation. For purposes of protecting and restoring the objects identified above, the Secretary of the Interior, through the BLM, shall prepare and maintain a transportation plan, in coordination with the Secretary of the Army and consistent with the MOU, that provides for visitor enjoyment and understanding of the scientific and historic objects on lands within the monument boundaries that are under the administrative jurisdiction of the Secretary of the Interior. The transportation plan shall include the designation of roads and trails for bicycling and other purposes. Except for emergency or authorized administrative purposes, under the transportation plan motorized vehicle use shall be permitted only on designated roads, and non- motorized mechanized vehicle use shall be permitted only on designated roads and trails. The plan shall be revised upon the transfer of lands now under the administrative jurisdiction of the Secretary of the Army to the Secretary of the Interior in accordance with the MOU. Nothing in this proclamation shall be deemed to enlarge or diminish the rights of any Indian tribe. Nothing in this proclamation shall affect the responsibility of the Department of the Army under applicable environmental laws, including the remediation of hazardous substances or munitions and explosives of concern within the monument boundaries; nor affect the Department of the Army’s statutory authority to control public access or statutory responsibility to make other measures for environmental remediation, monitoring, security, safety, or emergency preparedness purposes; nor affect any Department of the Army activities on lands not included within the monument. Nothing in this proclamation shall affect the implementation of the Installation-Wide Multi- species Habitat Management Plan for the former Fort Ord including interagency agreements implementing that plan. Nothing in this proclamation shall be deemed to enlarge or diminish the jurisdiction of the State of California with respect to fish and wildlife management. Nothing in this proclamation shall be deemed to revoke any existing withdrawal, reservation, or appropriation; however, the monument shall be the dominant reservation. Warning is hereby given to all unauthorized persons not to appropriate, injure, destroy, or remove any feature of this monument and not to locate or settle upon any of the lands thereof.

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IN WITNESS WHEREOF, I have hereunto set my hand this twentieth day of April, in the year of our Lord two thousand twelve, and of the Independ- ence of the United States of America the two hundred and thirty-sixth.

Billing code 3295–F2–P

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[FR Doc. 2012–10114 Filed 4–24–12; 8:45 am] Billing code 4310–10–C

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Rules and Regulations Federal Register Vol. 77, No. 80

Wednesday, April 25, 2012

This section of the FEDERAL REGISTER Library at http://www.nrc.gov/reading- DEPARTMENT OF TRANSPORTATION contains regulatory documents having general rm/adams.html. To begin the search, applicability and legal effect, most of which select ‘‘ADAMS Public Documents’’ and Federal Aviation Administration are keyed to and codified in the Code of then select ‘‘Begin Web-based ADAMS Federal Regulations, which is published under 14 CFR Part 39 50 titles pursuant to 44 U.S.C. 1510. Search.’’ For problems with ADAMS, please contact the NRC’s Public [Docket No. FAA–2012–0010; Directorate The Code of Federal Regulations is sold by Document Room (PDR) reference staff at Identifier 2012–NE–03–AD; Amendment 39– the Superintendent of Documents. Prices of 1–800–397–4209, 301–415–4737, or by 17035; AD 2012–08–18] new books are listed in the first FEDERAL email to [email protected]. REGISTER issue of each week. RIN 2120–AA64 • NRC’s PDR: You may examine and purchase copies of public documents at Airworthiness Directives; Turbomeca NUCLEAR REGULATORY the NRC’s PDR, Room O1–F21, One S.A. Turboshaft Engines COMMISSION White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. AGENCY: Federal Aviation 10 CFR Part 72 Administration (FAA), DOT. FOR FURTHER INFORMATION CONTACT: ACTION: Final rule. [NRC–2011–0221] Gregory Trussell, Office of Federal and RIN 3150–AJ05 State Materials and Environmental SUMMARY: We are adopting a new Management Programs, U.S. Nuclear airworthiness directive (AD) for all List of Approved Spent Fuel Storage Regulatory Commission, Washington, Turbomeca S.A. Arriel 2B and 2B1 Casks: HI-STORM 100, Revision 8 DC 20555–0001, telephone: 301–415– turboshaft engines. This AD was AGENCY: Nuclear Regulatory 6445, email: [email protected]. prompted by the discovery of non- conformities of certain power turbine Commission. SUPPLEMENTARY INFORMATION: On (PT) blade fir-tree roots. This AD ACTION: Direct final rule; confirmation of February 17, 2012 (77 FR 9515), the requires removing the affected PT effective date. NRC published a direct final rule blades from service on or before amending its regulations at Title 10 of SUMMARY: The U.S. Nuclear Regulatory reaching a new reduced life limit for the Code of Federal Regulations Commission (NRC or the Commission) those certain PT blades. We are issuing is confirming the effective date of May (10 CFR) 72.214, by revising the Holtec this AD to prevent PT blade rupture, 2, 2012, for the direct final rule that was International HI-STORM 100 System which could result in an uncommanded published in the Federal Register on listing within the ‘‘List of Approved in-flight engine shutdown, forced February 17, 2012. This direct final rule Spent Fuel Storage Casks’’ to include autorotation landing, or accident. amends the NRC’s spent fuel storage Amendment No. 8 to CoC Number 1014. DATES: This AD is effective May 30, regulations by revising the Holtec In the direct final rule, the NRC stated 2012. that if no significant adverse comments International HI-STORM 100 System ADDRESSES: For service information were received, the direct final rule listing within the ‘‘List of Approved identified in this AD, contact would become effective on May 2, 2012. Spent Fuel Storage Casks’’ to include Turbomeca, 40220 Tarnos, France; The NRC did not receive any comments Amendment No. 8 to Certificate of phone: 33 05 59 74 40 00; fax: 33 05 59 Compliance (CoC) Number 1014. on the direct final rule. Therefore, this 74 45 15. You may review copies of the DATES: The effective date for the direct rule will become effective as scheduled. referenced service information at the final rule published February 17, 2012, Dated at Rockville, Maryland, this 19th day FAA, Engine & Propeller Directorate, at 77 FR 9515, is confirmed as May 2, of April 2012. 12 New England Executive Park, 2012. For the Nuclear Regulatory Commission. Burlington, MA. For information on the ADDRESSES: Please refer to Docket ID Cindy Bladey, availability of this material at the FAA, NRC–2011–0221 when contacting the call 781–238–7125. NRC about the availability of Chief, Rules, Announcements, and Directives Branch, Division of Administrative Services, Examining the AD Docket information regarding this document. Office of Administration. You may access information related to You may examine the AD docket on this document, which the NRC [FR Doc. 2012–9834 Filed 4–24–12; 8:45 am] the Internet at http:// possesses and is publicly-available, BILLING CODE 7590–01–P www.regulations.gov; or in person at the using the following methods: Docket Management Facility between • Federal Rulemaking Web site: Go to 9 a.m. and 5 p.m., Monday through http://www.regulations.gov and search Friday, except Federal holidays. The AD for Docket ID NRC–2011–0221. Address docket contains this AD, the regulatory questions about NRC dockets to Carol evaluation, any comments received, and Gallagher; telephone: 301–492–3668; other information. The address for the email: [email protected]. Docket Office (phone: 800–647–5527) is • NRC’s Agencywide Documents Document Management Facility, U.S. Access and Management System Department of Transportation, Docket (ADAMS): You may access publicly- Operations, M–30, West Building available documents online in the NRC Ground Floor, Room W12–140, 1200

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New Jersey Avenue SE., Washington, Part A, Subpart III, Section 44701: (c) Applicability DC 20590. ‘‘General requirements.’’ Under that This AD applies to Turbomeca S.A. Arriel FOR FURTHER INFORMATION CONTACT: Rose section, Congress charges the FAA with 2B and 2B1 turboshaft engines with at least Len, Aerospace Engineer, Engine promoting safe flight of civil aircraft in one installed power turbine (PT) blade part Certification Office, FAA, Engine & air commerce by prescribing regulations number (P/N) 2 292 81 A01 0, serial numbers for practices, methods, and procedures (S/Ns) 102782 through 120230 inclusive, or, Propeller Directorate, 12 New England S/Ns 120293 through 120390 inclusive. Executive Park, Burlington, MA 01803; the Administrator finds necessary for phone: 781–238–7772; fax: 781–238– safety in air commerce. This regulation (d) Reason 7199; email: [email protected]. is within the scope of that authority This AD was prompted by the detection of SUPPLEMENTARY INFORMATION: because it addresses an unsafe condition geometric non-conformities on PT blade fir- that is likely to exist or develop on tree roots. We are issuing this AD to prevent Discussion products identified in this rulemaking PT blade rupture, which could result in an action. uncommanded in-flight engine shutdown, We issued a notice of proposed forced autorotation landing, or accident. rulemaking (NPRM) to amend 14 CFR Regulatory Findings part 39 to include an AD that would (e) Actions and Compliance apply to the specified products. That This AD will not have federalism Unless already done, do the following NPRM published in the Federal implications under Executive Order actions within 5,000 flight cycles-since-new Register on January 20, 2012 (77 FR 13132. This AD will not have a (CSN) on the PT blades, or within one month 2930). That NPRM proposed to require substantial direct effect on the States, on after the effective date of this AD, whichever occurs later. removing the affected PT blades from the relationship between the national government and the States, or on the (1) Replace the PT blades with PT blades service on or before reaching a new eligible for installation; or reduced life limit for those certain PT distribution of power and (2) Replace the M04 module with an M04 blades. responsibilities among the various module having PT blades eligible for levels of government. installation; or Comments For the reasons discussed above, I (3) Replace the PT wheel assembly with a We gave the public the opportunity to certify that this AD: PT wheel assembly having PT blades eligible participate in developing this AD. We (1) Is not a ‘‘significant regulatory for installation. received no comments on the NPRM action’’ under Executive Order 12866, (4) Guidance on the replacements specified (77 FR 2930, January 20, 2012). (2) Is not a ‘‘significant rule’’ under in paragraphs (e)(1) through (e)(3) can be DOT Regulatory Policies and Procedures found in Turbomeca S.A. Alert Mandatory Clarification of Compliance Time (44 FR 11034, February 26, 1979), Service Bulletin No. A292 72 2842, Version A, dated September 23, 2011. Since we issued the proposed AD, we (3) Will not affect intrastate aviation determined that we need to clarify the in Alaska, and (f) Definition compliance time. The proposed AD (4) Will not have a significant For the purposes of this AD, a PT blade stated 5,000 flight cycles. We changed economic impact, positive or negative, eligible for installation is one not listed in the AD to state 5,000 flight cycles-since- on a substantial number of small entities paragraph (c) of this AD or, one listed in new. under the criteria of the Regulatory paragraph (c) of this AD with fewer than Flexibility Act. 5,000 flight CSN. Conclusion List of Subjects in 14 CFR Part 39 (g) Installation Prohibition We reviewed the relevant data and From the effective date of this AD: determined that air safety and the Air transportation, Aircraft, Aviation (1) Do not install a PT blade as listed in public interest require adopting the AD safety, Incorporation by reference, paragraph (c) of this AD, that has 5,000 or with the change described previously. Safety. more flight CSN, into any engine. (2) Do not install any engine with a PT Costs of Compliance Adoption of the Amendment blade as listed in paragraph (c) of this AD, Based on the service information, we Accordingly, under the authority that has 5,000 or more flight CSN, onto a estimate that this AD will affect about delegated to me by the Administrator, helicopter. 150 engines installed on helicopters of the FAA amends 14 CFR part 39 as (h) Alternative Methods of Compliance U.S. registry. We also estimate that it follows: (AMOCs) will take about 4 work-hours per The Manager, Engine Certification Office, product to comply with this AD. The PART 39—AIRWORTHINESS may approve AMOCs for this AD. Use the average labor rate is $85 per work-hour. DIRECTIVES procedures found in 14 CFR 39.19 to make your request. A prorated replacement M04 module ■ 1. The authority citation for part 39 will cost about $20,000 per engine. continues to read as follows: (i) Related Information Based on these figures, we estimate the Authority: 49 U.S.C. 106(g), 40113, 44701. (1) For more information about this AD, cost of the AD on U.S. operators to be contact Rose Len, Aerospace Engineer, $3,051,000. § 39.13 [Amended] Engine Certification Office, FAA, Engine & Authority for This Rulemaking ■ 2. The FAA amends § 39.13 by adding Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; Title 49 of the United States Code the following new airworthiness phone: 781–238–7772; fax: 781–238–7199; specifies the FAA’s authority to issue directive (AD): email: [email protected]. rules on aviation safety. Subtitle I, 2012–08–18 Turbomeca S.A: Amendment (2) Refer to MCAI EASA Airworthiness section 106, describes the authority of 39–17035; Docket No. FAA–2012–0010; Directive 2011–0218, dated November 10, the FAA Administrator. Subtitle VII: Directorate Identifier 2012–NE–03–AD. 2011, and Turbomeca S.A. Alert Mandatory Service Bulletin No. A292 72 2842, Version Aviation Programs, describes in more (a) Effective Date A, dated September 23, 2011, for related detail the scope of the Agency’s This AD is effective May 30, 2012. information. authority. (3) For service information identified in We are issuing this rulemaking under (b) Affected ADs this AD, contact Turbomeca, 40220 Tarnos, the authority described in Subtitle VII, None. France; phone: 33 05 59 74 40 00; fax: 33 05

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59 74 45 15. You may review copies of the Germany, Iran, Lebanon, Syria, and the to the national security or foreign policy referenced service information at the FAA, U.A.E. sections of the Entity List. interests of the United States and those Engine & Propeller Directorate, 12 New The Entity List provides notice to the acting on behalf of such persons may be England Executive Park, Burlington, MA. For public that certain exports, reexports, added to the Entity List pursuant to information on the availability of this and transfers (in-country) to entities material at the FAA, call 781–238–7125. Section 744.11. Paragraphs (b)(1)–(b)(5) identified on the Entity List require a of Section 744.11 include an illustrative (j) Material Incorporated by Reference license from the Bureau of Industry and list of activities that could be contrary None. Security (BIS) and that availability of to the national security or foreign policy Issued in Burlington, Massachusetts, on license exceptions in such transactions interests of the United States. April 17, 2012. is limited. The ERC has reasonable cause to Peter A. White, DATES: Effective Date: This rule is believe that the two persons in France (one company and one individual, an Manager, Engine & Propeller Directorate, effective April 25, 2012. Aircraft Certification Service. FOR FURTHER INFORMATION CONTACT: employee of the company) have been involved, are involved, or pose a [FR Doc. 2012–9789 Filed 4–24–12; 8:45 am] Karen Nies-Vogel, Chair, End-User significant risk of being or becoming BILLING CODE 4910–13–P Review Committee, Office of the Assistant Secretary, Export involved in, activities that could be Administration, Bureau of Industry and contrary to the national security or foreign policy interests of the United DEPARTMENT OF COMMERCE Security, Department of Commerce, Phone: (202) 482–5991, Fax: (202) 482– States. Specifically, BIS’s investigation Bureau of Industry and Security 3911, Email: [email protected]. of the company, Toulouse Air Spares SUPPLEMENTARY INFORMATION: SAS, indicates direct physical and 15 CFR Part 744 corporate nexus with Aerotechnic Background France SAS, an Entity List person (76 [Docket No. 120416415–2415–01] The Entity List (Supplement No. 4 to FR 37632, 6/28/2011). Therefore, RIN 0694–AF57 Part 744) provides notice to the public pursuant to Section 744.11(b)(5) of the that certain exports, reexports, and EAR, the ERC determined that the Addition of Certain Persons to the transfers (in-country) to entities company Toulouse Air Spares SAS and Entity List; and Implementation of identified on the Entity List require a Laurence Mattiucci, the company’s Entity List Annual Review Changes license from the Bureau of Industry and president, are engaging in conduct that Security and that the availability of poses a risk of violating the EAR and AGENCY: Bureau of Industry and license exceptions in such transactions that such conduct raises sufficient Security, Commerce. is limited. Entities are placed on the concern that prior review of exports, ACTION: Final rule. Entity List on the basis of certain reexports or transfers (in-country) of items subject to the EAR involving SUMMARY: This rule amends the Export sections of part 744 (Control Policy: Administration Regulations (EAR) by End-User and End-Use Based) of the either of the two persons, and the adding to the Entity List two persons EAR. possible imposition of license who have been determined by the U.S. The ERC, composed of representatives conditions or license denials, will Government to be acting contrary to the of the Departments of Commerce enhance BIS’s ability to prevent national security or foreign policy (Chair), State, Defense, Energy and, violations of the EAR. For both of the persons added to the interests of the United States. These when appropriate, the Treasury, makes Entity List, the ERC specified a license persons will be listed on the Entity List all decisions regarding additions to, requirement for all items subject to the under the country of France. removals from, or other modifications to This rule also amends the Entity List the Entity List. The ERC makes all EAR and established a license on the basis of the annual review of the decisions to add an entry to the Entity application review policy of a Entity List conducted by the End-User List by majority vote and all decisions presumption of denial. The license Review Committee (ERC). The ERC to remove or modify an entry by requirement applies to any transaction conducts the annual review to unanimous vote. in which items are to be exported, reexported, or transferred (in-country) to determine if any entries on the Entity ERC Entity List Decisions List should be removed or modified. such persons or in which such persons This rule reflects the results of the ERC’s Additions to the Entity List act as purchaser, intermediate annual review of fifteen countries, i.e. This rule implements the decision of consignee, ultimate consignee, or end- Armenia, Belarus, Egypt, Germany, Iran, the ERC to add two persons, located in user. In addition, no license exceptions Ireland, Israel, Kuwait, Lebanon, France, to the Entity List on the basis of are available for exports, reexports, or Norway, Russia, South Korea, Syria, the Section 744.11 (license requirements transfers (in-country) to those persons United Arab Emirates (U.A.E.), and the that apply to entities acting contrary to being added to the Entity List. This final rule adds the following two United Kingdom (U.K.). As a result of the national security or foreign policy persons to the Entity List: these reviews, this rule makes interests of the United States) of the amendments to the Entity List EAR. The ERC reviewed Section France including: The removal of three entries 744.11(b) (Criteria for revising the Entity (1) Toulouse Air Spares SAS, 8 Rue de (one each in Germany, South Korea, and List) in making the determination to add la Bruyere, 31120 Pinsaguel, Toulouse, the United Arab Emirates (U.A.E.)); the the two persons located in France to the France; and addition of four entities (one each in Entity List. Under that paragraph, (2) Laurence Mattiucci, 8 Rue de la Canada, Egypt, France and the United persons for which there is reasonable Bruyere, 31120 Pinsaguel, Toulouse, Kingdom); and the amendments of cause to believe, based on specific and France. seventeen entries to provide alternate articulable facts, that the persons have addresses, alternate spellings of names, been involved, are involved, or pose a Annual Review of the Entity List and/or aliases for listed persons. The significant risk of being or becoming This rule also amends the Entity List amended entries are in Armenia, involved in, activities that are contrary on the basis of the annual review of the

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Entity List conducted by the ERC, in This rule, pursuant to the ERC’s Iran accordance with the procedures annual review, also removes a third (1) Atomic Energy Organization of outlined in Supplement No. 5 to part entity from the Entity List, consisting of Iran (AEOI), a.k.a., the following two 744 (Procedures for End-User Review one entry from the U.A.E. However, this aliases: Committee Entity List Decisions). The person’s name will be added as an alias changes from the annual review of the for another person listed on the Entity —Sazeman-e Energy Atomi; and —Sazeman-e Enerji-e Atomi. Entity List that are approved by the ERC List, also under the U.A.E. Therefore, P.O. Box 14144–1339, End of North are implemented in stages as the ERC this removal does not remove license Karegar Avenue, Tehran; and P.O. completes its review of entities listed requirements for this person. Instead, Box 14155–4494, Tehran, Iran; and all under different destinations on the the addition of the entry as an alias to locations in Iran. Entity List. This rule implements the another listed entity will more clearly results of the annual review for entities identify the relationship between these (2) Kalaye Electric Company, a.k.a., listed under Armenia, Germany, Iran, two persons listed on the Entity List. the following four aliases: Lebanon, South Korea, Syria, and the Specifically, this rule consolidates the —Kala Electric Company; U.A.E. entry for ‘‘S. Basheer’’ (i.e., removes and —Kalia; adds to another entry on the Entity List) —Kala Electric; and A. Removals From the Entity List Based as a new alias for the revised ‘‘Shaji —Kola Electric Company. on the Annual Review Muhammed Basheer’’ entry, as follows: 33 Fifteenth (15th) Street, Seyed-Jamal- This rule removes two entities from Eddin-Assad Abadi Avenue, Tehran, United Arab Emirates the Entity List, consisting of one entity Iran. from Germany and one entity from (1) Shaji Muhammed Basheer, a.k.a., (3) Mahdi Electronics, a.k.a., the South Korea, on the basis of the annual the following alias: following alias: review of the Entity List. Specifically, —S. Basheer. —Mahdi Electronic Trading Co. Ltd. this rule implements the decision of the Shop No. 3 & 4, Sharafia Ahmed Ali Ground Floor—No. 31 Alborz Alley, ERC to remove the following two Bldg., Al Nakheel St., Deira, P.O. Box Enghelab St, Tehran, Iran. entities: 171978, Dubai, U.A.E. (4) NBC Navegan Bar Co. Ltd., a.k.a., Germany B. Modifications to the Entity List Based the following alias: on the Annual Review (1) Akbar Ashraf Vaghefi, Koburgerstr —NBC Navegan Bar International 10, D–10825, Berlin, Germany. On the basis of decisions made by the Transport Co. Ltd. ERC during the annual review, in #135 Khorramshahr Ave., Tehran South Korea addition to modifying the U.A.E. entry 1533864163; and 101, Kohrramshahr (1) WASTEC, Inc., a.k.a., With as described above, this rule amends Ave., Tehran 1533864163. Advanced Systemic Technology, Room sixteen entries currently on the Entity (5) Rad Tavan Afza Company, 3303, 3304, Na-Dong Chungang List, consisting of one entry under 3rd Floor, No. 210, W. Fatemi, Tehran, Circulation Complex, #1258, Gurobon- Armenia, three entries under Germany, Iran, P.O. Box 14185–387; and 1st Dong, Guro-gu, Seoul, South Korea. ten entries under Iran, one entry under Pars Bldg., Beg. Pars Alley, Betw The removal of the above-referenced Lebanon, and one entry under Syria, to Khosh & Behboudi St., Azadi Ave., two entities from the Entity List provide alternate addresses, alternate Tehran, Iran. eliminates the existing license spellings for the names of the listed (6) Raht Aseman Co. Ltd., requirements in Supplement No. 4 to persons, and/or aliases, as follows: No. 1.2, Mosque Alley, Mohammadi St., part 744 for exports, reexports, and Armenia North Bahar Ave., Tehran, Iran. transfers (in-country) to the two entities. (7) Reza Zahedi Pour, (1) Bold Bridge International, LLC, However, the removal of these two 5 Yaas St., Unit 4, Tehran, Iran. a.k.a., the following alias: entities from the Entity List does not (8) Shahid Bakeri Industrial Group, relieve persons of other obligations —BB Bold Bridge International. a.k.a., the following nine aliases: under part 744 of the EAR or under Room 463, H. Hakobyan 3, Yerevan, —SBIG; other parts of the EAR. Neither the Armenia. —Shahid Baheri Industries Group; removal of an entity from the Entity List Germany —Shahid Bagheri Industries Group; nor the removal of Entity List-based —Shahid Bagheri Industrial Group; license requirements relieves persons of (1) Djamshid Nezhad, a.k.a., the —MEHR Trading Company; their obligations under General following alias: —Department 140/14; Prohibition 5 in section 736.2(b)(5) of —Nezhad Djamshid. —Mahtab Technical Engineering the EAR which provides that, ‘‘you may Poppentrade 25, D–24148 Kiel, Company; not, without a license, knowingly export Germany; and Moesemann 2, 24144, —Composite Propellant Missile or reexport any item subject to the EAR Hamburg, Germany. Industry; and to an end-user or end-use that is (2) IKCO Trading GmbH, —Sanaye Sokhte Morakab (SSM). prohibited by part 744 of the EAR.’’ Schadowplatz 5, 40212 Dusseldorf, Pasdaran Ave., Tehran, Iran. Additionally these removals do not Germany; and Kaiserswerther Str. (9) Shahid Hemmat Industrial Group, relieve persons of their obligation to 117, 40474, Du¨ sseldorf, Germany; and a.k.a., the following six aliases: apply for export, reexport or in-country (3) Nezhad Enterprise Company, —SHIG; transfer licenses required by other a.k.a., the following three aliases: —Shahid Hemat Industrial Group; provisions of the EAR. BIS strongly —Nezhad Co.; —Chahid Hemmat Industrial Group; urges the use of Supplement No. 3 to —Nezhad Enterprise; and —Shahid Hemmat Industrial Complex part 732 of the EAR, ‘‘BIS’s ‘Know Your —Nezhad Trading. (SHIC); Customer’ Guidance and Red Flags,’’ Poppentrade 25, D–24148 Kiel, —Shahid Hemmat Industrial Factories when persons are involved in Germany; and Moesemann 2, 24144, (SHIF); and transactions that are subject to the EAR. Hamburg, Germany. —Hemmat Missile Industries Factory.

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Damavand Tehran Highway, Tehran, person under General Order No. 3, Canada Iran; and Damavand Road 2, Abali which was first published on June 5, (1) EKT 2, Inc., Road, Tehran, Iran; and 2006, and subsequently amended on 371 Renforth Drive, Etobicoke M9C 2L8, (10) Simin Neda Industrial and September 6, 2006. General Order No. 3 Toronto, Ontario, Canada. Electrical Parts, a.k.a., the following listed persons concerning whom the alias: U.S. Government possessed information Egypt —TTSN. regarding the acquisition or attempted (1) AL-AMIR ELECTRONICS, No. 22, Second Floor, Amjad Bldg., acquisition of electronic components 46 Falaki St. BabLouk Area, Cairo, Jomhoori Ave., Tehran, Iran. and devices capable of being used in Egypt. improvised explosive devices (IEDs) Lebanon used against Coalition Forces in Iraq France (1) EKT Electronics, a.k.a. the and Afghanistan. These two persons (1) IKCO France, following four aliases: being added are not aliases of EKT 147 Avenue Charles de Gaulle, 92200, Katrangi Electronics; Electronics, but are believed to be Neuilly-Sur-Seine, France. —Katrangi Trading; affiliated and involved in the same —Katranji Labs; and types of activities of concern under United Kingdom —Electronics Systems. paragraphs (b)(1) and (b)(2) of Section (1) IKCO Finance, 1st floor, Hujij Building, Korniche 744.11 and therefore also warrant being 6 Lothbury, London, England, EC2R Street, P.O. Box 817 No. 3, Beirut, added to the Entity List. 7HH. Lebanon; P.O. Box: 8173, Beirut, Similarly, the two persons located in Savings Clause Lebanon; and #1 fl., Grand Hills Bldg., France and the U.K. are being added to Said Khansa St., Jnah (BHV), Beirut, the Entity List as a result of their Shipments of items removed from Lebanon. (See alternate addresses affiliation with IKCO Trading GmbH eligibility for a License Exception or under Syria.) (IKCO), a person currently on the Entity export or reexport without a license Syria List under Germany. The French and (NLR) as a result of this regulatory the U.K. persons are involved in the action that were en route aboard a (1) EKT Electronics, a.k.a., the same types of Section 744.11 activities carrier to a port of export or reexport, on following four aliases: that resulted in IKCO being added to the April 25, 2012, pursuant to actual orders —Katrangi Electronics; Entity List on September 22, 2008 (73 for export or reexport to a foreign —Katrangi Trading; FR 54507). BIS first included IKCO as a destination, may proceed to that —Katranji Labs; and listed person under General Order No. destination under the previous —Electronics Systems. 3, which was first published on June 5, eligibility for a License Exception or #1 floor, 11/A, Abbasieh Building, Hijaz 2006, and subsequently amended on export or reexport without a license Street, P.O. Box 10112, Damascus, September 6, 2006. As noted above, (NLR). Syria; and #1 floor, 02/A, Fares General Order No. 3 listed persons Although the Export Administration Building, Rami Street, Margeh, concerning whom the U.S. Government Act expired on August 20, 2001, the Damascus, Syria. (See alternate possessed information regarding the President, through Executive Order addresses under Lebanon.) acquisition or attempted acquisition of 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the C. Additions to the Entity List on the electronic components and devices Notice of August 12, 2011, 76 FR 50661 Basis of the Annual Review and Section capable of being used in IEDs used (August 16, 2011), has continued the 744.11 against Coalition Forces in Iraq and Afghanistan. These two persons being Export Administration Regulations in Finally, on the basis of decisions added are not aliases of IKCO, but are effect under the International made by the ERC during the annual believed to be affiliated and involved in Emergency Economic Powers Act. BIS review, this rule adds four persons to the same types of activities of concern continues to carry out the provisions of the Entity List, consisting of one person under paragraphs (b)(1) and (b)(2) of the Export Administration Act, as in Canada, one person in Egypt, one Section 744.11 and therefore also appropriate and to the extent permitted person in France, and one person in the warrant being added to the Entity List. by law, pursuant to Executive Order U.K. The decision to add these four 13222. persons was made during the annual For the four persons added to the review and is based on Section 744.11 Entity List on the basis of the annual Rulemaking Requirements of the EAR. Similar to the process review, the ERC specified a license 1. Executive Orders 13563 and 12866 outlined above for the other Section requirement for all items subject to the direct agencies to assess all costs and 744.11 additions described in this rule, EAR and established a license benefits of available regulatory the ERC as part of the annual review application review policy of a alternatives and, if regulation is process reviewed Section 744.11(b) in presumption of denial. The license necessary, to select regulatory making the determination to add these requirement applies to any transaction approaches that maximize net benefits four persons. in which items are to be exported, (including potential economic, These four persons are believed to reexported, or transferred (in-country) to environmental, public health and safety have been involved in activities such persons or in which such persons effects, distributive impacts, and described under paragraphs (b)(1) and act as purchaser, intermediate equity). Executive Order 13563 (b)(2) of Section 744.11. Specifically, the consignee, ultimate consignee, or end- emphasizes the importance of two persons located in Canada and user. In addition, no license exceptions quantifying both costs and benefits, of Egypt are being added because of their are available for exports, reexports, or reducing costs, of harmonizing rules, affiliation with EKT Electronics, a transfers (in-country) to those persons and of promoting flexibility. This rule person currently listed on the Entity List being added to the Entity List. has been determined to be not under Lebanon and Syria. BIS first This final rule adds the following four significant for purposes of Executive included EKT Electronics as a listed persons to the Entity List: Order 12866.

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2. Notwithstanding any other continue to be able to receive items CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR provision of law, no person is required without a license and to conduct 44025, 3 CFR, 2001 Comp., p. 783; E.O. to respond to nor be subject to a penalty activities contrary to the national 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. for failure to comply with a collection security or foreign policy interests of the 786; Notice of August 12, 2011, 76 FR 50661 (August 16, 2011); Notice of September 21, of information, subject to the United States. In addition, because these 2011, 76 FR 59001 (September, 22, 2011); requirements of the Paperwork parties may receive notice of the U.S. Notice of November 9, 2011, 76 FR 70319 Reduction Act of 1995 (44 U.S.C. 3501 Government’s intention to place these (November 10, 2011); Notice of January 19, et seq.) (PRA), unless that collection of entities on the Entity List once a final 2012, 77 FR 3067 (January 20, 2012). information displays a currently valid rule was published, it would create an Office of Management and Budget incentive for these persons to either ■ 2. Supplement No. 4 to part 744 is (OMB) Control Number. This regulation accelerate receiving items subject to the amended: involves collections previously EAR to conduct activities that are ■ (a) By revising under Armenia, in approved by the OMB under control contrary to the national security or alphabetical order, one Armenian entity; numbers 0694–0088, ‘‘Multi-Purpose foreign policy interests of the United ■ (b) By adding under Canada, in Application,’’ which carries a burden States, and/or to take steps to set up alphabetical order, one Canadian entity; hour estimate of 43.8 minutes for a additional aliases, change addresses, ■ (c) By adding under Egypt, in manual or electronic submission. Total and other measures to try to limit the alphabetical order, one Egyptian entity; burden hours associated with the PRA impact of the listing on the Entity List ■ (d) By adding under France, in and OMB control number 0694–0088 once a final rule was published. Further, alphabetical order, three French entities; are not expected to increase as a result no other law requires that a notice of ■ (e) By removing under Germany, the of this rule. You may send comments proposed rulemaking and an German entity: ‘‘Akbar Ashraf Vaghefi, regarding the collection of information opportunity for public comment be Koburgerstr 10, D–10825, Berlin, associated with this rule, including given for this rule. Because a notice of Germany;’’ suggestions for reducing the burden, to proposed rulemaking and an ■ (f) By revising under Germany, in Jasmeet K. Seehra, Office of opportunity for public comment are not alphabetical order, three German Management and Budget (OMB), by required to be given for this rule by 5 entities; email to U.S.C. 553, or by any other law, the ■ (g) By revising under Iran, in [email protected], or by analytical requirements of the alphabetical order, ten Iranian entities; fax to (202) 395–7285. Regulatory Flexibility Act, 5 U.S.C. 601 ■ (h) By revising under Lebanon, in 3. This rule does not contain policies et seq., are not applicable. alphabetical order, one Lebanese entity; with Federalism implications as that ■ (i) By removing the ‘‘Country’’ column List of Subjects in 15 CFR Part 744 term is defined in Executive Order for South Korea, including the South 13132. Exports, Reporting and recordkeeping Korean entity: ‘‘WASTEC, Inc., a.k.a., 4. The provisions of the requirements, Terrorism. With Advanced Systemic Technology, Administrative Procedure Act (5 U.S.C. Accordingly, part 744 of the Export Room 3303, 3304, Na-Dong Chungang 553) requiring notice of proposed Administration Regulations (15 CFR Circulation Complex, #1258, Gurobon- rulemaking, the opportunity for public parts 730–774) is amended as follows: Dong, Guro-gu, Seoul, South Korea;’’ comment and a delay in effective date ■ (j) By revising under Syria, in are inapplicable because this regulation PART 744—[AMENDED] alphabetical order, one Syrian entity; involves a military or foreign affairs ■ (k) By removing under the United ■ function of the United States. (See 5 1. The authority citation for 15 CFR Arab Emirates, the Emirati entry for ‘‘S. U.S.C. 553(a)(1)). BIS implements this part 744 continues to read as follows: Basheer, No. 3–4 Sharafia Ahmed Ali rule to protect U.S. national security or Authority: 50 U.S.C. app. 2401 et seq.; 50 Building, Al Nakheel, Deira, Dubai 396, foreign policy interests by preventing U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; U.A.E.;’’ items from being exported, reexported, 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 ■ (l) By revising under the United Arab or transferred (in country) to the persons U.S.C. 7210; E.O. 12058, 43 FR 20947, 3 CFR, Emirates, in alphabetical order, one 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, being added to the Entity List. If this 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 Emirati entity; and ■ rule were delayed to allow for notice FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. (m) By adding under United Kingdom, and comment and a delay in effective 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. in alphabetical order, one British entity. date, then entities being added to the 356; E.O. 13026, 61 FR 58767, 3 CFR, 1996 The additions and revisions read as Entity List by this action would Comp., p. 228; E.O. 13099, 63 FR 45167, 3 follows:

SUPPLEMENT NO. 4 TO PART 744—ENTITY LIST

Federal Register Country Entity License requirement License review policy citation

*******

ARMENIA ...... Bold Bridge International, LLC, a.k.a. the fol- For all items subject Presumption of denial 75 FR 1701, 1/13/10. lowing alias: to the EAR. (See 77 FR [INSERT FR —BB Bold Bridge International. § 744.11 of the PAGE NUMBER] Room 463, H. Hakobyan 3, Yerevan, Arme- EAR.). 4/25/2012. nia.

*******

CANADA

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SUPPLEMENT NO. 4 TO PART 744—ENTITY LIST—Continued

Federal Register Country Entity License requirement License review policy citation

******* EKT 2, Inc., 371 Renforth Drive, Etobicoke For all items subject Presumption of denial 77 FR [INSERT FR M9C 2L8, Toronto, Ontario, Canada. to the EAR. (See PAGE NUMBER] § 744.11 of the 4/25/2012. EAR).

*******

EGYPT ...... AL-AMIR ELECTRONICS, 46 Falaki St. For all items subject Presumption of denial 77 FR [INSERT FR BabLouk Area, Cairo, Egypt. to the EAR. (See PAGE NUMBER] § 744.11 of the 4/25/2012. EAR).

*******

FRANCE

******* IKCO France, 147 Avenue Charles de For all items subject Presumption of denial 77 FR [INSERT FR Gaulle, 92200, Neuilly-Sur-Seine, France. to the EAR. (See PAGE NUMBER] § 744.11 of the 4/25/2012. EAR). Laurence Mattiucci, 8 Rue de la Bruyere, For all items subject Presumption of denial 77 FR [INSERT FR 31120 Pinsaguel, Toulouse, France. to the EAR. (See PAGE NUMBER] § 744.11 of the 4/25/2012. EAR).

******* Toulouse Air Spares SAS, 8 Rue de la For all items subject Presumption of denial 77 FR [INSERT FR Bruyere, 31120 Pinsaguel, Toulouse, to the EAR. (See PAGE NUMBER] France. § 744.11 of the 4/25/2012. EAR).

GERMANY

******* Djamshid Nezhad, a.k.a. the following alias: For all items subject Presumption of denial 73 FR 54504, —Nezhad Djamshid. to the EAR. (See 9/22/08. § 744.11 of the 77 FR [INSERT FR EAR). PAGE NUMBER] 4/25/2012. Poppentrade 25, D–24148 Kiel, Germany; and Moesemann 2, 24144, Hamburg, Ger- many.

******* IKCO Trading GmbH, Schadowplatz 5, For all items subject Presumption of denial 73 FR 54504, 9/22/ 40212 Dusseldorf, Germany; and to the EAR. (See 08. Kaiserswerther Str. 117, 40474, § 744.11 of the 77 FR [INSERT FR Du¨sseldorf, Germany. EAR). PAGE NUMBER] 4/25/2012. Nezhad Enterprise Company, a.k.a. the fol- For all items subject Presumption of denial 73 FR 54504, 9/22/ lowing three aliases: to the EAR. (See 08. —Nezhad Co.; § 744.11 of the 77 FR [INSERT FR —Nezhad Enterprise; and EAR). PAGE NUMBER] —Nezhad Trading 4/25/2012. Poppentrade 25, D–24148 Kiel, Germany; and Moesemann 2, 24144, Hamburg, Ger- many.

*******

IRAN

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SUPPLEMENT NO. 4 TO PART 744—ENTITY LIST—Continued

Federal Register Country Entity License requirement License review policy citation

******* Atomic Energy Organization of Iran (AEOI), For all items subject Presumption of denial 72 FR 38008, 07/12/ a.k.a. the following two aliases: to the EAR. (See 07. —Sazeman-e Energy Atomi; and § 744.11 of the 77 FR [INSERT FR —Sazeman-e Enerji-e Atomi. EAR). PAGE NUMBER] 4/25/2012. P.O. Box 14144–1339, End of North Karegar Avenue, Tehran; and P.O. Box 14155– 4494, Tehran, Iran; and all locations in Iran.

******* Kalaye Electric Company, a.k.a. the following For all items subject Presumption of denial 72 FR 38008, 07/12/ four aliases: to the EAR. (See 07. —Kala Electric Company; § 744.11 of the 77 FR [INSERT FR —Kalia; EAR). PAGE NUMBER] —Kala Electric; and 4/25/2012. —Kola Electric Company. 33 Fifteenth (15th) Street, Seyed-Jamal- Eddin-Assad Abadi Avenue, Tehran, Iran.

******* Mahdi Electronics, a.k.a. the following alias: For all items subject Presumption of denial 73 FR 74001, 12/5/ —Mahdi Electronic Trading Co. Ltd. to the EAR. (See 08. § 744.11 of the 77 FR [INSERT FR EAR). PAGE NUMBER] 4/25/2012. Ground Floor—No. 31 Alborz Alley, Enghelab St., Tehran, Iran.

******* NBC Navegan Bar Co. Ltd., a.k.a. the fol- For all items subject Presumption of denial 73 FR 54507, 9/22/ lowing alias: to the EAR. (See 08. —NBC Navegan Bar International Transport § 744.11 of the 76 FR 21628, 4/18/ Co. Ltd. EAR). 11. 77 FR [INSERT FR PAGE NUMBER] 4/25/2012. #135 Khorramshahr Ave., Tehran 1533864163; and 101, Kohrramshahr Ave., Tehran 1533864163.

******* Rad Tavan Afza Company, 3rd Floor, No. For all items subject Presumption of denial 73 FR 54507, 9/22/ 210, W. Fatemi, Tehran, Iran, P.O. Box to the EAR. (See 08. 14185–387; and 1st Pars Bldg., Beg. Pars § 744.11 of the 77 FR [INSERT FR Alley, Betw Khosh & Behboudi St., Azadi EAR). PAGE NUMBER] Ave., Tehran, Iran. 4/25/2012. Raht Aseman Co. Ltd., No. 1.2, Mosque For all items subject Presumption of denial 73 FR 74001, 12/5/ Alley, Mohammadi St., North Bahar Ave., to the EAR. (See 08. Tehran, Iran. § 744.11 of the 77 FR [INSERT FR EAR). PAGE NUMBER] 4/25/2012.

******* Reza Zahedi Pour, 5 Yaas St., Unit 4, For all items subject Presumption of denial 73 FR 74001, 12/5/ Tehran, Iran. to the EAR. (See 08. § 744.11 of the 77 FR [INSERT FR EAR). PAGE NUMBER] 4/25/2012.

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SUPPLEMENT NO. 4 TO PART 744—ENTITY LIST—Continued

Federal Register Country Entity License requirement License review policy citation

******* Shahid Bakeri Industrial Group, a.k.a. the fol- For all items subject Presumption of denial 72 FR 38008, 07/12/ lowing nine aliases: to the EAR. (See 07. —SBIG; § 744.11 of the 77 FR [INSERT FR —Shahid Baheri Industries Group; EAR). PAGE NUMBER] —Shahid Bagheri Industries Group; 4/25/2012. —Shahid Bagheri Industrial Group; —MEHR Trading Company; —Department 140/14; —Mahtab Technical Engineering Company; —Composite Propellant Missile Industry; and —Sanaye Sokhte Morakab (SSM). Pasdaran Ave., Tehran, Iran. Shahid Hemmat Industrial Group, a.k.a. the For all items subject Presumption of denial 72 FR 38008, 07/12/ following six aliases: to the EAR. (See 07. —SHIG; § 744.11 of the 77 FR [INSERT FR —Shahid Hemat Industrial Group; EAR). PAGE NUMBER] —Chahid Hemmat Industrial Group; 4/25/2012. —Shahid Hemmat Industrial Complex (SHIC); —Shahid Hemmat Industrial Factories (SHIF); and —Hemmat Missile Industries Factory. Damavand Tehran Highway, Tehran, Iran; Damavand Tehran Highway, Tehran, Iran; and Damavand Road 2, Abali Road, Tehran, Iran.

******* Simin Neda Industrial and Electrical Parts, For all items subject Presumption of denial 72 FR 38008, 07/12/ a.k.a. the following alias: to the EAR. (See 07. —TTSN. § 744.11 of the 77 FR [INSERT FR No. 22, Second Floor, Amjad Bldg., EAR). PAGE NUMBER] Jomhoori Ave., Tehran, Iran. 4/25/2012.

*******

LEBANON ...... EKT Electronics, a.k.a. the following four For all items subject Presumption of denial 73 FR 54507, aliases: to the EAR. (See 9/22/08. —Katrangi Electronics; § 744.11 of the 77 FR [INSERT FR —Katrangi Trading; EAR). PAGE NUMBER] —Katranji Labs; and 4/25/2012. —Electronics Systems. 1st floor, Hujij Building, Korniche Street, P.O. Box 817 No. 3, Beirut, Lebanon; P.O. Box: 8173, Beirut, Lebanon; and #1 fl., Grand Hills Bldg., Said Khansa St., Jnah (BHV), Beirut, Lebanon. (See alternate addresses under Syria.).

*******

SYRIA

******* EKT Electronics, a.k.a. the following four For all items subject Presumption of denial 73 FR 54509, aliases: to the EAR. (See 9/22/08. —Katrangi Electronics; § 744.11 of the 76 FR 50407, 8/15/ —Katrangi Trading; EAR). 11. —Katranji Labs; and 77 FR [INSERT FR —Electronics Systems. PAGE NUMBER] 4/25/2012.

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SUPPLEMENT NO. 4 TO PART 744—ENTITY LIST—Continued

Federal Register Country Entity License requirement License review policy citation

#1 floor, 11/A, Abbasieh Building, Hijaz Street, P.O. Box 10112, Damascus, Syria; and #1 floor, 02/A, Fares Building, Rami Street, Margeh, Damascus, Syria (See alternate addresses under Lebanon).

*******

******* UNITED ARAB EMIR- Shaji Muhammed Basheer, a.k.a. the fol- For all items subject Presumption of denial 77 FR [INSERT FR ATES. lowing alias: to the EAR. (See PAGE NUMBER] —S. Basheer. § 744.11 of the 4/25/2012. EAR.). Shop No. 3 & 4, Sharafia Ahmed Ali Bldg., Al Nakheel St., Deira, P.O. Box 171978, Dubai, U.A.E.

*******

UNITED KINGDOM

******* IKCO Finance 6 Lothbury, London, England, For all items subject Presumption of denial 77 FR [INSERT FR EC2R 7HH. to the EAR. (See PAGE NUMBER] § 744.11 of the 4/25/2012. EAR).

*******

Dated: April 18, 2012. submitted to the Commission for First Street NE., Washington, DC Kevin J. Wolf, approval by the North American Electric 20426, (202) 502–6333, Assistant Secretary for Export Reliability Corporation (NERC), the [email protected]. Administration. Electric Reliability Organization Edward Franks (Technical Information), [FR Doc. 2012–9905 Filed 4–24–12; 8:45 am] certified by the Commission. The CIP Office of Electric Reliability, Division BILLING CODE 3510–33–P Reliability Standards provide a of Logistics and Security, Federal cybersecurity framework for the Energy Regulatory Commission, 888 identification and protection of ‘‘Critical First Street NE., Washington, DC DEPARTMENT OF ENERGY Cyber Assets’’ to support the reliable 20426, (202) 502–6311, operation of the Bulk-Power System. [email protected]. Federal Energy Regulatory Reliability Standard CIP–002–4 requires Commission the identification and documentation of Kevin Ryan (Legal Information), Office Critical Cyber Assets associated with of the General Counsel, Federal 18 CFR Part 40 ‘‘Critical Assets’’ that support the Energy Regulatory Commission, 888 reliable operation of the Bulk-Power First Street NE., Washington, DC [Docket No. RM11–11–000; Order No. 761] System and introduces ‘‘bright line’’ 20426, (202) 502–6840, criteria for the identification of Critical [email protected]. Version 4 Critical Infrastructure Assets. The Commission approves the Protection Reliability Standards Matthew Vlissides (Legal Information), related Violation Risk Factors, Violation Office of the General Counsel, Federal AGENCY: Federal Energy Regulatory Severity Levels with modifications, Energy Regulatory Commission, 888 Commission, DOE. implementation plan, and effective date First Street NE., Washington, DC ACTION: Final rule. proposed by NERC. 20426, (202) 502–8408, DATES: This rule will become effective [email protected]. SUMMARY: Under section 215 of the June 25, 2012. Federal Power Act, the Federal Energy SUPPLEMENTARY INFORMATION: FOR FURTHER INFORMATION CONTACT: Regulatory Commission (Commission) 139 FERC ¶ 61,058 approves eight modified Critical Jan Bargen (Technical Information), Infrastructure Protection (CIP) Office of Electric Reliability, Division Before Commissioners: Jon Wellinghoff, Reliability Standards, CIP–002–4 of Logistics and Security, Federal Chairman; Philip D. Moeller, John R. through CIP–009–4, developed and Energy Regulatory Commission, 888 Norris, and Cheryl A. LaFleur.

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Issued April 19, 2012. to meet the deadline and describe the Version 4 are found in CIP–002, where 1. Under section 215 of the Federal status of its CIP standard development NERC replaced the risk-based Power Act (FPA),1 the Commission efforts. assessment methodology for identifying approves modified Critical Critical Assets with 17 uniform ‘‘bright I. Background Infrastructure Protection (CIP) line’’ criteria for identifying Critical Reliability Standards, CIP–002–4 A. Mandatory Reliability Standards Assets. Concerning the process of through CIP–009–4. The ‘‘Version 4’’ 5. Section 215 of the FPA requires a identifying the associated Critical Cyber CIP Reliability Standards were Commission-certified ERO to develop Assets that are subject to the cyber developed and submitted for approval mandatory and enforceable Reliability security protections required by CIP– to the Commission by the North Standards, which are subject to 003 through CIP–009, NERC only made American Electric Reliability Commission review and approval. Once changes for certain generation Critical Corporation (NERC), which the approved, the Reliability Standards may Assets. NERC submitted proposed VRFs Commission certified as the Electric be enforced by the ERO, subject to and VSLs and an implementation plan Reliability Organization (ERO) Commission oversight, or by the governing the transition to Version 4. responsible for developing and Commission independently.4 NERC proposed that the Version 4 CIP enforcing mandatory Reliability 6. Pursuant to section 215 of the FPA, Reliability Standards become effective Standards. The CIP Reliability the Commission established a process to the first day of the eighth calendar Standards provide a cybersecurity select and certify an ERO,5 and quarter after applicable regulatory framework for the identification and subsequently certified NERC as the approvals have been received. protection of ‘‘Critical Cyber Assets’’ ERO.6 On January 18, 2008, the 8. On April 12, 2011, NERC made an that are associated with ‘‘Critical Commission issued Order No. 706 errata filing correcting certain errors in Assets’’ to support the reliable operation approving eight CIP Reliability the petition and furnishing corrected of the Bulk-Power System. Standards proposed by NERC. Pursuant exhibits and the standard drafting team 2. The Version 4 CIP Reliability to section 215(d)(5) of the FPA,7 the minutes. In the errata, NERC also Standards include ‘‘bright line’’ criteria Commission directed NERC to develop replaced the VRFs and VSLs in the for the identification of Critical Assets, modifications to the CIP Reliability February 10, 2011 petition with new 10 which replace the risk-based assessment Standards to address concerns proposed VRFs and VSLs. methodology developed and applied by discussed in Order No. 706. 9. Reliability Standard CIP–002–4 applicable entities under the Version 3 Subsequently, the Commission requires each responsible entity to use CIP Reliability Standards. Version 4 approved Version 2 and Version 3 of the the bright line criteria as a ‘‘checklist’’ includes other conforming CIP Reliability Standards, each version to identify Critical Assets, initially and modifications to the remaining CIP including changes responsive to some in an annual review, replacing the risk- Reliability Standards, CIP–003–4 but not all of the directives in Order No. based assessment methodology through CIP–009–4. 706.8 developed and applied by each 3. The Commission approves NERC’s registered entity required under the filing, as amended by its errata filing, B. NERC Petition currently-effective Version 3 CIP with regard to the related Violation Risk 7. On February 10, 2011, NERC filed Reliability Standards. As in past Factors (VRFs), the Violation Severity a petition seeking Commission approval versions, each responsible entity will Levels (VSLs) with modifications, the of the Version 4 CIP Reliability then identify the Critical Cyber Assets implementation plan, and effective date Standards, CIP–002–4 to CIP–009–4, associated with its updated list of proposed by NERC. The Commission and the concurrent retirement of the Critical Assets. If application of the also approves the concurrent retirement Version 3 CIP Reliability Standards, bright line criteria results in the of the currently effective Version 3 CIP CIP–002–3 to CIP–009–3.9 In the identification of Critical Cyber Assets, Reliability Standards, CIP–002–3 to petition, NERC states that the principal such assets become subject to the CIP–009–3. differences between Version 3 and remaining CIP Reliability Standards. 4. In addition, the Commission 10. In the petition, NERC states that determines that it is appropriate to 4 16 U.S.C. 824o(e). CIP–002–4 addresses some, but not all, impose a deadline by which time the 5 Rules Concerning Certification of the Electric of the directives in Order No. 706. NERC ERO will submit for approval CIP Reliability Organization; and Procedures for the explained that the standard drafting Reliability Standards that are fully Establishment, Approval, and Enforcement of team limited the scope of requirements 2 Electric Reliability Standards, Order No. 672, FERC compliant with Order No. 706. NERC Stats. & Regs. ¶ 31,204, order on reh’g, Order No. in the development of Version 4 ‘‘as an indicated that it anticipates filing the 672–A, FERC Stats. & Regs. ¶ 31,212 (2006). interim step’’ limited to the concerns ‘‘Version 5’’ CIP Reliability Standards 6 North American Electric Reliability Corp., 116 raised by the Commission regarding by the third quarter of 2012.3 FERC ¶ 61,062, order on reh’g and compliance, 117 Accordingly, we establish a deadline of FERC ¶ 61,126 (2006), aff’d sub nom. Alcoa, Inc. v. 10 NERC states that the Version 4 VRFs and VSLs FERC, 564 F.3d 1342 (D.C. Cir. 2009). 6 months from the end of the third are carried over in part from the VRFs and VSLs in 7 16 U.S.C. 824o(d)(5). the Version 3 CIP Reliability Standards. NERC quarter of 2012 (i.e., March 31, 2013). 8 North American Electric Reliability Corp., 128 Petition at 46. The Commission approved the NERC must also submit reports at the FERC ¶ 61,291 (2009), order denying reh’g and Version 2 and 3 VRFs and VSLs in Docket Nos. beginning of each quarter in which the granting clarification, 129 FERC ¶ 61,236 (2009) RD10–6–001 and RD09–7–003 on January 20, 2011 ERO is to explain whether it is on track (approving Version 2 of the CIP Reliability but required NERC to make modifications in a Standards); North American Electric Reliability compliance filing due by March 21, 2011. North Corp., 130 FERC ¶ 61,271 (2010) (approving Version American Electric Reliability Corporation, 134 1 16 U.S.C. 824o (2006). 3 of the CIP Reliability Standards). FERC ¶ 61,045 (2011). The February 10, 2011 2 Mandatory Reliability Standards for Critical 9 NERC Petition at 1. The proposed Reliability petition did not carry over the modified Version 3 Infrastructure Protection, Order No. 706, 122 FERC Standards are not attached to the final rule. They VRFs and VSLs since it was filed before the March ¶ 61,040, denying reh’g and granting clarification, are, however, available on the Commission’s 21, 2011 compliance filing. NERC submitted new Order No. 706–A, 123 FERC ¶ 61,174 (2008), order eLibrary document retrieval system in Docket No. Version 4 VRFs and VSLs that carried over the on clarification, Order No. 706–B, 126 FERC RM11–11–000 and are available on the ERO’s Web modified Version 3 VRFs and VSLs in the April 12, ¶ 61,229 (2009), order denying clarification, Order site, www.nerc.com. Reliability Standards approved 2012 errata. On June 6, 2011, NERC filed the March No. 706–C, 127 FERC ¶ 61,273 (2009). by the Commission are not codified in the Code of 21, 2011 compliance filing in the present docket, 3 NERC Reply Comments at 4. Federal Regulations. Docket No. RM11–11–000.

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CIP–002.11 NERC maintains that it has a deadline of 6 months from the end of line criteria to identify Critical Assets, taken a ‘‘phased’’ approach to meeting the third quarter of 2012 (i.e., March 31, eliminating the use of existing entity- the Commission’s directives from Order 2013), to provide the ERO with time to defined risk-based assessment No. 706 and, according to NERC, the address any unforeseen contingencies. methodologies that, as currently standard drafting team continues to In addition, the Commission directs the applied, generally do not adequately address the remaining Commission ERO to submit quarterly reports, at the identify Critical Assets; and provides a directives. According to NERC, the team beginning of each quarter, in which it is level of consistency and clarity will build on the CIP–002–4 standard’s to both confirm that it is on track to regarding the identification of Critical establishment of uniform criteria for the meet the deadline and describe the Assets lacking under Version 3.18 identification of Critical Assets.12 status of its CIP Reliability Standards Comments development efforts. C. Notice of Proposed Rulemaking 14. Below we discuss the 17. Most commenters and NERC 11. On September 15, 2011, the Commission’s basis for approving generally support the Commission’s Commission issued a Notice of Version 4 of the CIP Reliability proposal to approve the Version 4 CIP Proposed Rulemaking (NOPR) Standards. In addition, we discuss Reliability Standards.19 Hydro-Que´bec proposing to approve the Version 4 CIP comments regarding: (1) The bright line and NV Energy, however, oppose Reliability Standards.13 The NOPR also criteria used to identify Critical Assets approval of Version 4,20 while the G&T proposed to approve the related VRFs, that are contained in Attachment 1 of Cooperatives support Version 4 for VSLs with modifications, and Reliability Standard CIP–002–4; (2) the ‘‘guidance purposes’’ only pending implementation schedule proposed by identification of Critical Assets that fall submission of a ‘‘Version 5’’ of the CIP NERC. To underscore the need to outside the scope of Attachment 1 by Reliability Standards.21 achieve full compliance with the registered entities, Regional Entities, or 18. Hydro-Que´bec opposes the bright directives in Order No. 706, the NOPR ERO; (3) the implementation plan for line criteria because they capture assets proposed to set a deadline by which the Version 4 CIP Reliability Standards; based on factors such as voltages and date the ERO would be required to (4) compliance with Order No. 706; (5) amount of megawatts without assessing submit to the Commission for approval the deadline for submitting CIP the asset’s criticality to reliability. CIP Reliability Standards that are fully Reliability Standards that fully comply Hydro-Que´bec states that the compliant with Order No. 706. The with Order No. 706; and (6) the VRFs Commission should consider allowing NOPR also addressed certain directives and VSLs. the current risk-based assessment in Order No. 706 that have not yet been methodology and a bright line approach A. The Commission Adopts the NOPR to coexist.22 met, which would need to be satisfied Proposal To Approve the Version 4 CIP 14 19. NV Energy believes that Version 4 by the proposed deadline. Reliability Standards 12. In response to the NOPR, unnecessarily expands the scope of the comments were filed by 28 interested NERC Petition CIP Reliability Standards to facilities entities. NERC submitted reply whose protection may offer only 15. NERC states that CIP–002–4 marginal value in preventing comments clarifying its position on one establishes clear and uniform criteria for issue. Below, we address the issues widespread cyber attacks on the bulk identifying Critical Assets on the Bulk- electric system.23 NV Energy asserts that raised by these comments. The Power System.16 According to NERC, Appendix to this Final Rule lists the no technical justification exists for the CIP–002–4 achieves a specified bright line criteria and, accordingly, entities that filed comments on the reliability goal by requiring the NOPR. NERC does not provide a sufficient basis identification and documentation of to determine if Version 4 is just and II. Discussion Critical Cyber Assets associated with reasonable or more effective than Critical Assets that support the reliable Version 3.24 13. As discussed below, the operation of the Bulk-Power System. Commission approves the eight NERC maintains that the Reliability Commission Determination modified Version 4 CIP Reliability Standard ‘‘improves reliability by Standards, finding that they are just and 20. The Commission approves the establishing uniform criteria across all Version 4 CIP Reliability Standards reasonable, not unduly discriminatory Responsible Entities for the or preferential and in the public pursuant to section 215(d) of the FPA. identification of Critical Assets.’’ 17 The Commission concludes that the interest. In addition, the Commission Further, NERC states that CIP–002–4 approves NERC’s proposed VRFs, VSLs Version 4 CIP Reliability Standards are contains a technically sound method to just, reasonable, not unduly with modifications, and its proposed achieve its reliability goal by requiring implementation plan. The Commission discriminatory or preferential, and in the identification and documentation of the public interest. For the reasons has also determined that it is Critical Assets through the application identified in the NOPR, we approve appropriate to impose a deadline for the of the criteria set forth in Attachment 1 Version 4 because it: Identifies Critical ERO to achieve full compliance with of CIP–002–4. Assets that may not be identified under Order No. 706. NERC commented that it Version 3; will eliminate the use of anticipates filing the Version 5 CIP NOPR Reliability Standards by the third 16. In the NOPR, the Commission 18 NOPR, FERC Stats. & Regs. ¶ 32,679 at P 21. 15 quarter of 2012. We therefore establish proposed to approve the Version 4 CIP 19 See, e.g., Trade Associates Comments at 2; Reliability Standards. Giving due weight FirstEnergy Comments at 1; KCP&L Comments at 2; 11 NERC Petition at 6 (citing Order No. 706, 122 to the ERO’s petition, the NOPR stated PG&E Comments at 1; Tallahassee Comments at 1; FERC ¶ 61,040 at P 236). that the Version 4 CIP Standards will Exelon Comments at 2; Dominion Comments at 3; 12 NERC Comments at 3. NERC Petition at 6. result in the identification of certain 13 Version 4 Critical Infrastructure Protection 20 Hydro-Que´bec Comments at 6; NV Energy Reliability Standards, 76 FR 58,730 (Sept. 22, 2011), types of Critical Assets that may not be Comments at 2. FERC Stats. & Regs. ¶ 32,679 (2011) (NOPR). identified under Version 3; uses bright 21 G&T Cooperatives Comments at 3. 14 NOPR, FERC Stats. & Regs. ¶ 32,679 at PP 40– 22 Hydro-Que´bec Comments at 3–4. 61. 16 NERC Petition at 38. 23 NV Energy Comments at 2. 15 NERC Reply Comments at 4. 17 Id. at 4. 24 Id. at 3–4.

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existing entity-defined risk-based the identification of Critical Assets, designated as a Critical Asset. Criterion assessment methodologies that, as provides: 1.3 designates as Critical Assets: ‘‘Each applied, generally do not adequately The Responsible Entity shall develop a list generation Facility that the Planning identify Critical Assets; and provides a of its identified Critical Assets determined Coordinator or Transmission Planner level of consistency and clarity through an annual application of the criteria designates and informs the Generator regarding the identification of Critical contained in CIP–002–4 Attachment 1— Owner or Generator Operator as Assets lacking under Version 3. Critical Asset Criteria. The Responsible necessary to avoid BES Adverse 21. With respect to the objections Entity shall update this list as necessary, and Reliability Impacts in the long-term raised by Hydro-Que´bec and NV Energy, review it at least annually. planning horizon.’’ Criterion 1.8 we find them unpersuasive. Although Attachment 1 to Reliability Standard designates as Critical Assets: NV Energy asserts that Version 4 will CIP–002–4 provides seventeen criteria ‘‘Transmission Facilities at a single identify Critical Assets that do not to be used by all responsible entities for station or substation location that are require protection or whose protection the identification of Critical Assets identified by the Reliability only offers marginal benefits, as we pursuant to Requirement R1. The Coordinator, Planning Authority or stated in the NOPR, Version 4 will offer thresholds apply to specific types of Transmission Planner as critical to the an increase in the overall protection for facilities such as generating units, derivation of Interconnection Reliability bulk electric system components that transmission lines and control centers. Operating Limits (IROLs) and their clearly require protection, including Reliability Standard CIP–002–4, associated contingencies.’’ Criterion 1.9 25 control centers. Recognizing that Requirement R2 then requires designates as Critical Assets: ‘‘Flexible Version 4 is an ‘‘interim step,’’ our responsible entities to develop a list of AC Transmission Systems (FACTS), at a concern is that Version 4 does not Critical Cyber Assets associated with the single station or substation location, that provide enough protection to satisfy Critical Assets identified pursuant to are identified by the Reliability 26 Order No. 706. Requirement R1. Coordinator, Planning Authority or 22. We also find unpersuasive Hydro- Transmission Planner as critical to the Que´bec and NV Energy’s claim that the 1. Generation/Transmission derivation of Interconnection Reliability bright line criteria are based on arbitrary NERC Petition Operating Limits (IROLs) and their values (i.e., amounts of megawatts and associated contingencies.’’ voltages) without assessing the impact 24. Several of the proposed criteria on reliability, or otherwise lack a pertain to the identification of critical Comments technical justification. As discussed generation assets and critical 27. Hydro-Que´bec states that the term later in this final rule, the Commission transmission assets. Reliability Standard ‘‘group of generating units’’ used in finds that NERC offered an acceptable CIP–002–4, criterion 1.1 designates as criterion 1.1 is ambiguous because it technical justification for the bright line Critical Assets: ‘‘Each group of could mean a generating station or a criteria used to identify Critical Assets generating units (including nuclear group of units sharing the same in Version 4. As indicated in the NOPR, generation) at a single plant location transformer. Hydro-Que´bec also believes we believe that Version 4 is an interim with an aggregate highest rated net Real that the 15-minute period, established step towards full compliance with Order Power capability of the preceding 12 by CIP–002–4, Requirement R2, which No. 706 and that implementation of months equal to or exceeding 1500 MW states that ‘‘the only Cyber Assets that Version 4 and concurrent retirement of in a single Interconnection.’’ Reliability must be considered are those shared Version 3, as proposed in the petition Standard CIP–002–4, Requirement R2 Cyber Assets that could, within 15 and reaffirmed by the ERO in its qualifies criterion 1.1 by stating that: minutes, adversely impact the reliable comments, is a step towards full ‘‘For each group of generating units operation of any combination of units compliance with Order No. 706.27 For (including nuclear generation) at a that in aggregate equal or exceed the same reason, we reject the G&T single plant location identified in Attachment 1, criterion 1.1,’’ needs Cooperatives’ suggestion that Version 4 Attachment 1, criterion 1.1, the only further explanation because it is unclear be approved for ‘‘guidance purposes Cyber Assets that must be considered how to determine whether operation is only.’’ Nevertheless, we note that are those shared Cyber Assets that not reliable after 15 minutes. Finally, approval of the specific bright line could, within 15 minutes, adversely Hydro-Que´bec contends that the term approach to identifying Critical Assets impact the reliable operation of any ‘‘Flexible AC Transmission System adopted in Version 4 does not prejudge combination of units that in aggregate (FACTS)’’ in criterion 1.9 must be the manner in which cyber assets are equal or exceed Attachment 1, criterion defined in the NERC Glossary of identified for protection in Version 5 or 1.1.’’ Terms.28 subsequent revisions to the CIP 25. For transmission assets, criterion 28. NV Energy comments that the Reliability Standards. 1.6 designates as Critical Assets: bright line criteria lack technical ‘‘Transmission Facilities operated at 500 justification because they are primarily B. Bright Line Criteria for Identifying kV or higher.’’ Criterion 1.7 also based on asset size (e.g., megawatts and Critical Assets designates as Critical Assets: voltage levels) to determine criticality. 23. Reliability Standard CIP–002–4 ‘‘Transmission Facilities operated at 300 NV Energy maintains that size should establishes criteria for identifying kV or higher at stations or substations not be dispositive to determining Critical Assets on the Bulk-Power interconnected at 300 kV or higher with whether an asset is critical. NV Energy System. Requirement R1 of Reliability three or more other transmission cites the 500 kV or higher size threshold Standard CIP–002–4, which pertains to stations or substations.’’ for transmission facilities in criterion 26. Reliability Standard CIP–002–4, 1.6 as an example of a broad 25 NOPR, FERC Stats. & Regs. ¶ 32,679 at P 23 criterion 1.2 provides that ‘‘Each categorization that is likely to capture (‘‘[T]he number of control centers identified as reactive resource or group of resources elements, such as NV Energy’s radial Critical Assets increases from 425 under Version 3 to 553 under Version 4, the latter figure at a single location (excluding facilities, whose function are not representing 74 percent of all control centers.’’). generation Facilities) having aggregate essential to the reliable operation of the 26 NERC Petition at 6. net Reactive Power nameplate rating of 27 NOPR, FERC Stats. & Regs. ¶ 32,679 at P 3. 1000 MVAR or greater’’ shall be 28 Hydro-Que´bec Comments at 4–5.

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bulk electric system. NV Energy also Commission Determination may not have real-time operational identifies the 300 kV or higher threshold 31. The Commission finds that the impact within the specified real-time for transmission facilities bright line criteria for designating operations impact window of 15 interconnected at 300 kV or higher with generation and transmission assets as minutes,’’ such as a cyber asset three or more other transmission controlling the supply of coal fuel in a Critical Assets are acceptable and 38 stations or substations in criterion 1.7 as supported by the information contained generation facility. We believe that another example. NV Energy asserts that in NERC’s petition. NERC has provided adequate other parameters, beyond the number of 32. In response to Hydro-Que´bec’s explanation and justification of this interconnections, must be evaluated to comments, the Commission finds the provision. To the extent that Hydro- Que´bec seeks specific advice on how to determine criticality. Finally, NV term ‘‘group of generating units,’’ as used in criterion 1.1, to mean all implement the Requirement, Hydro- Energy states that the 1500 MW ´ generating units at a ‘‘single plant Quebec should raise the issue with the threshold in criterion 1.1 lacks technical relevant Regional Entity or NERC. 29 location,’’ as that term is defined in the justification. 34. With respect to Hydro-Que´bec’s ‘‘Rationale and Implementation 29. ISO/RTO Council states that comment that the term ‘‘Flexible AC Reference Document’’ for CIP–002–4 responsibility for identifying critical Transmission System (FACTS)’’ should cited in the petition.35 ‘‘Single plant be defined in the NERC Glossary of generation should not be shifted from location’’ refers to a ‘‘group of Terms, the Commission observes that generation owners under criterion 1.3, generating units occupying a defined which it maintains allows a planning the term is defined in the North physical footprint, often but not always, American Energy Standards Board coordinator or transmission planner to these units are surrounded by a designate critical generation facilities.30 (NAESB) Wholesale Electric Industry common fence, have a common entry Glossary,39 which is recognized in the Likewise, MISO maintains that criteria point, share common facilities such as 1.3, 1.8, and 1.9 place undue burden on NERC Rules of Procedure as a warehouses, water plants and cooling reference.40 Moreover, Hydro-Que´bec’s reliability coordinators, planning sources, follow a similar naming comment does not suggest a lack of authorities/coordinators, and convention (plant name—unit number) understanding of what the term means transmission planners by requiring them and fall under a common management such that Hydro-Que´bec could not 36 to designate facilities as Critical organization.’’ It is our understanding apply criterion 1.9. Assets.31 ISO/RTO Council and MISO that the transformer used by a 35. The Commission disagrees with believe that these authorities have generating unit has no bearing under NV Energy’s comments that the bright insufficient guidance or data to criterion 1.1 on whether a generating line criteria lack a technical justification designate facilities as Critical Assets in unit belongs to a ‘‘group of generating because they are primarily based on a uniform manner. MISO seeks remand units.’’ asset size. While it is true that the of these criteria or, in the alternative, 33. As for Hydro-Que´bec’s comments standard establishes thresholds based argues that these entities should be on the 15-minute trigger for CIP on asset size, NERC articulated a basis indemnified and have limited liability Reliability Standard coverage, NERC for those values. For example, for the for decisions to designate or not explains in its petition that ‘‘[i]n 1500 MW threshold in criterion 1.1, the designate facilities as Critical Assets. specifying a 15-minute qualification, petition states that the standard drafting MISO also encourages the Commission Requirement R2 includes only those team derived that number ‘‘from the to make clear that requiring these Cyber Assets that would have a real- most significant Contingency Reserves time impact on the reliable operation of entities to make designations does not operated in various Balancing the Bulk Electric System.’’ 37 Further, shift compliance obligations from the Authorities in all regions * * * [u]sing NERC explains that there may be registered entity that owns or operates a this number and data reported by the generation facilities that, ‘‘while facility identified under these criteria.32 U.S. Energy Information Administration essential to the reliability and [], the team determined that 30. Further, MISO and ISO/RTO operability of the generation facility, approximately 146 generators in the Council point to the lack of a United States would be classified as mechanism for registered entities to 35 NERC Petition at 9 (citing Rationale and Critical Assets using this criterion * * * challenge designations made by Implementation Reference Document, http:// [t]his accounts for 29 percent of the www.nerc.com/docs/standards/sar/Project_2008- planning coordinators and transmission 06_CIP-002-4_Guidance_clean_20101220.pdf). The installed generator capacity in the planners. MISO requests the Rationale and Implementation Reference Document, United States.’’ 41 Moreover, as establishment of such a mechanism.33 dated December 2010, was also submitted as part discussed above, the 15-minute trigger ISO/RTO Council states that the of the NERC filing. As found on the Commission’s in CIP–002–4, Requirement R2, is a eLibrary system in Docket No. RM11–11–00, the Commission ‘‘needs to consider how to Rationale and Implementation Reference Document qualification to the asset size thresholds address the rights of Generator Owners is found in Exhibit E (Development Record of the in criterion 1.1 and is meant to include or Generator Operators in the context of proposed CIP Reliability Standard and the only ‘‘Cyber Assets that would have a associated Implementation Plans) beginning at page real-time impact on the reliable designation under the CIP Standards, or 2141 of the PDF electronic file submitted by NERC. otherwise explain why the Generator This Final Rule refers to the page numbers used operation of the Bulk Electric Owner or Generator Operator has no within the Rationale and Implementation Reference System.’’ 42 Considering the ERO’s rights to challenge the Planning Document. The Rational and Implementation pleadings and affording due weight to Reference Document states that it ‘‘provides the ERO’s technical expertise, the Coordinator or Transmission Planner’s guidance for Responsible Entities in the application determination.’’ 34 of the criteria in CIP–002–4, Attachment 1. It provides clarifying notes on the intent and rationale 38 Id. of the Standards Drafting Team. It is not meant to 39 Available at www.naesb.org/pdf/ 29 NV Energy Comments at 3–4. augment, modify, or nullify any compliance weq_glossary072804w3.doc. 30 ISO/RTO Council at 6. requirements in the standard.’’ Rationale and 40 NERC Rules of Procedure, Appendix 3A 31 MISO Comments at 5. Implementation Reference Document at 1. Standards Process Manual, at 22 (effective date 32 Id. at 7. 36 Rationale and Implementation Reference January 31, 2012). 33 Id. at 8. Document at 8. 41 NERC Petition at 15. 34 ISO/RTO Council Comments at 13. 37 NERC Petition at 12. 42 Id. at 12.

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Commission accepts the ERO’s criterion 1.3].’’ 45 Similarly, the ‘‘critical to the derivation of justification for approval of the bright Rationale and Implementation Interconnection Reliability Operating line criteria in Attachment 1.43 Reference Document associates criteria Limits (IROLs) and their associated 36. The Commission disagrees with 1.8 and 1.9 with Reliability Standard contingencies’’ is associated with MISO’s and ISO/RTO Council’s FAC–014–2: ‘‘Parts 1.8 and 1.9 include existing Reliability Standards. However, comment that criteria 1.3, 1.8, and 1.9 those Transmission Facilities that have the Commission does agree with MISO require reliability coordinators, been identified as critical to the and ISO/RTO Council that additional planning coordinators/authorities, and derivation of IROLs and their associated clarity could be provided to ensure transmission planners to review a contingencies, as specified by FAC– uniformity in implementation of registered entity’s Critical Asset list or 014–2, Establish and Communicate criterion 1.3. To address the concerns of designate assets as Critical Assets. System Operating Limits, R5.1.1 and uniform implementation, the Instead, these criteria use the product of R5.1.3.’’ 46 Commission believes that responsible planning actions taken by reliability 39. Second, during development of entities would benefit from the ERO’s coordinators, planning coordinators/ the Version 4 CIP Reliability Standards, guidance. authorities, and transmission planners the standard drafting team addressed 42. We deny MISO and ISO/RTO pursuant to other non-CIP Reliability this issue in responding to a comment Council’s request that the Commission Standards—these planning actions are, concerning criteria 1.3 that ‘‘[n]o entity require an appeals process to challenge put simply, not made in conjunction should be able to simply ‘designate’ determinations made by planning 47 with the application of CIP–002–4. The another as having critical assets.’’ The coordinator and transmission planners Commission also disagrees with MISO standard drafting team responded by pursuant to other Reliability Standards. and ISO/RTO Council’s comments that stating that ‘‘[t]he burden for identifying An appeals process is neither necessary reliability coordinators, planning Critical Assets is with the Responsible nor appropriate because the coordinators, and transmission planners Entity that is the asset owner * * * determinations by planning coordinator should have the same liability [t]he Planning Authority and/or and transmission planners are made for protection as an entity externally Transmission Planner are not purposes unrelated to cybersecurity. It reviewing Critical Asset lists, as was designating the asset as critical for CIP is true that those determinations will be discussed in Order No. 706–A.44 purposes; they are determining the unit used by responsible entities when to be necessary to avoid Adverse 37. Criteria 1.3, 1.8, and 1.9 require a applying the bright line criteria in CIP– Reliability Impacts based on other NERC 002–4. However, as discussed above, the responsible entity to identify generation 48 reliability standards.’’ responsible entities, and not planning and transmission facilities as Critical 40. Third, transmission planners and Assets when they have been determined coordinators and transmission planners, planning authorities/coordinators are ultimately responsible for as ‘‘necessary to avoid BES Adverse cannot have a compliance obligation to compliance with the CIP Reliability Reliability Impacts in the long-term designate Critical Assets under Standards. Accordingly, we reject MISO planning horizon’’ (criterion 1.3) or Reliability Standard CIP–002–4 because and ISO/RTO Council’s suggestion to ‘‘critical to the derivation of they are not identified as Applicable direct NERC to develop an appeals Interconnection Reliability Operating Entities under the Reliability process for determinations made by Limits (IROLs) and their associated Standard.49 contingencies’’ (criteria 1.8 and 1.9). 41. In sum, under CIP–002–4, the planning coordinators and transmission 38. First, this is not a discretionary responsible entity is required, and thus planners in the context of other action based on what a reliability bears the compliance obligation, to Reliability Standards in this final rule coordinator, planning coordinator/ apply the bright line criteria in approving the Version 4 CIP Reliability authority, or transmission planner Attachment 1 of CIP–002–4 to designate Standards. subsequently considers ‘‘necessary’’ to Critical Assets. We therefore reject the 2. Blackstart/Must Run Units avoid adverse impacts. Rather, contention that reliability coordinators, reliability coordinators, planning planning coordinators/authorities, and NERC Petition coordinators/authorities, and transmission planners designate Critical 43. Reliability Standard CIP–002–4, transmission planners make these Assets under the bright line criteria. We criterion 1.3 designates as a Critical underlying determinations as part of also disagree that CIP–002–4 imposes an Asset: ‘‘Each generation Facility that the their compliance obligations associated undue burden on reliability Planning Coordinator or Transmission with other (non-CIP) Reliability coordinators, planning coordinators/ Planner designates and informs the Standards. NERC developed a Rationale authorities, and transmission planners Generator Owner or Generator Operator and Implementation Reference because, as discussed above, as necessary to avoid BES Adverse Document that provides guidance on determining whether an asset is Reliability Impacts in the long-term implementation of the Attachment 1 ‘‘necessary to avoid BES Adverse planning horizon.’’ Reliability Standard criteria and supports our finding. This Reliability Impacts in the long-term CIP–002–4, criterion 1.4 designates as a reference document associates criterion planning horizon’’ (criterion 1.3) or Critical Asset: ‘‘Each Blackstart 1.3 with Reliability Standards TPL–003 Resource identified in the Transmission and TPL–004: ‘‘If it is determined 45 Rationale and Implementation Reference Operator’s restoration plan.’’ through system studies that a unit must Document at 10. run in order to preserve the reliability 46 Id. at 13. Comments 47 NERC Petition, Exhibit E, at 1548 of PDF of the BES, such as due to a category C3 electronic file. 44. ISO/RTO Council comments that contingency as defined in TPL–003 or a 48 Id. criterion 1.4 pertaining to blackstart category D contingency as defined in 49 Section 302 of the NERC Rules of Procedure resources appears to conflict with the TPL–004, then that unit must be states that ‘‘Applicability—Each Reliability NERC Statement of Registry Criteria. classified as a Critical Asset [under Standard shall clearly identify the functional ISO/RTO Council observes that while classes of entities responsible for complying with the Reliability Standard, with any specific additions criterion 1.4 identifies as a Critical Asset 43 16 U.S.C. 824o(d)(2). or exceptions noted * * *.’’ NERC Rules of ‘‘[e]ach Blackstart Resource identified in 44 Order No. 706–A, 123 FERC ¶ 61,174 at P 53. Procedure at 3 (effective date January 31, 2012). the Transmission Operator’s restoration

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plan,’’ the Registry Criteria provide for for generation owners and generation the Trade Associations acknowledge the registration of ‘‘any generator, regardless operators to remove units from service NOPR’s concern that CIP Version 4 does of size, that is a blackstart unit material prior to their designation as Critical not protect some control centers/ to and designated as part of a Assets. The Commission is willing to common control systems, but they transmission operator entity’s consider rate filings to address this anticipate that a future Version 5 CIP restoration plan * * *’’ 50 ISO/RTO concern. For example, the Commission Reliability Standards will protect more Council suggests that ‘‘some Regional conditionally accepted a proposal filed Critical Assets.59 Entities may have determined that by PJM to allow generators to recover 51. G&T Cooperatives believe that the certain blackstart units are not material costs related to compliance with Version 4 bright line criteria need to the Transmission Operator’s mandatory NERC CIP Reliability additional work, which is why they restoration plan, and are therefore, Standards.55 Specifically, the support allowing a future Version 5 to presumably not covered’’ by the Commission conditionally approved supersede Version 4 before it becomes Reliability Standards.51 Thus, ISO/RTO PJM’s proposal in order to provide effective. Specifically, G&T Council seeks clarification whether additional means for blackstart service Cooperatives state that criteria 1.14, criterion 1.4 is meant to apply to providers to recover incremental costs 1.16, and 1.17 ‘‘sweep in control centers blackstart units ‘‘covered’’ by the associated with providing blackstart and backup control centers, without Registry Criteria or all blackstart service.56 Finally, MISO can regard to their size or potential impact resources and, if the latter, whether a compensate ‘‘must run’’ generation on the [bulk electric system].’’ 60 G&T revision to the Registry Criteria is units under System Support Agreements Cooperatives maintain that the bright appropriate. to prevent generators deemed as ‘‘must line criteria should be revisited to 45. MISO comments that designating run’’ from being removed from service. ensure that they capture only those must run units as Critical Assets assets that should be covered in order to pursuant to criterion 1.3 may create an 3. Control Centers/Control Systems protect bulk electric system reliability.61 incentive for generation owners and NERC Petition 52. SPP RE states that criteria 1.14– generation operators to remove such 48. Reliability Standard CIP–002–4, 1.17 are insufficient because they do not units from service prior to their criteria 1.14–1.17 define the control consider interconnectivity of control 52 designation as Critical Assets. centers and back up control centers that centers or address the possibility that a small network-connected control center Commission Determination are treated as Critical Assets. Specifically, criterion 1.14 identifies as not deemed a Critical Asset could be 46. With regard to ISO/RTO Council’s a bright line for Critical Assets ‘‘[e]ach used to compromise larger control comments, we note that NERC control center or backup control center centers. SPP RE believes that, at a developed the Registry Criteria to used to perform the functional minimum, all balancing authority and identify users, owners and operators of obligations of the Reliability transmission operator control centers the bulk electric system that are Coordinator.’’ Criterion 1.15 pertains to should be declared Critical Assets. SPP candidates for compliance registration. control centers or backup control RE also encourages the Commission to NERC does not apply the Registry centers used to control generation at consider requiring NERC to modify the Criteria to register particular assets.53 multiple plant locations, equal to or bright line criteria to classify a control Moreover, whether NERC should revise exceeding 1500 MW. Criteria 1.16 and center as a Critical Asset if it is network- the Registry Criteria is beyond the scope 62 1.17 include as Critical Assets control connected to other control centers. of this proceeding.54 That being said, it 53. With respect to common control centers or backup control centers used is not clear to us whether any systems, SPP RE believes that to perform the functional obligations of substantive distinction is to be made individual resources that do not qualify transmission operators and balancing between criterion 1.4, which implicates as Critical Assets under the bright line authorities, respectively. each blackstart resource identified in a criteria can still pose a reliability risk if restoration plan, and the Registry NOPR they have a common control system. Criteria, which identifies as a candidate 49. In the NOPR, the Commission SPP RE notes that under Version 4, a for registration the owner or operator of expressed concern, based on survey data registered entity must designate its ‘‘a blackstart unit material to and supplied by NERC, that the Reliability control center or generation facility as a designated as part of a * * * restoration Standard CIP–002–4 criteria would still Critical Asset in order to bring an plan.’’ We leave it to NERC to consider leave a significant number of control associated common control system into whether a blackstart unit identified in a centers unprotected.57 scope. SPP RE believes that the bright transmission operator’s restoration plan line criteria may not ensure that all could ever be considered immaterial to Comments common control systems are identified, that plan and, if so, whether a 50. Commenters hold diverging views however. Criterion 1.1 designates as clarification or revision to one or more on whether the Version 4 CIP Reliability Critical Assets groups of generating documents is appropriate. Standards adequately protect control units at a single plant location with an 47. We disagree with MISO that centers and control systems (i.e., control aggregate highest rated net Real Power designating a ‘‘must run’’ unit as a systems not housed in control centers). capability equal to or exceeding 1500 Critical Asset may create an incentive G&T Cooperatives believe that Version 4 MW. Criterion 1.15 designates as goes too far, while SPP RE and, to a Critical Assets: ‘‘Each control center or 50 NERC Statement of Compliance Registry lesser extent, MISO believe that it does backup control center used to control Criteria (Revision 5.0) at 8 (Oct. 16, 2008) (emphasis 58 generation at multiple plant locations, added). not go far enough. NERC, PG&E, and 51 ISO/RTO Council Comments at 14. for any generation Facility or group of 52 MISO Comments at 9. 55 PJM Interconnection, L.L.C., 138 FERC ¶ 61,020 53 Order No. 706, 122 FERC ¶ 61,040 at P 50 (‘‘the (2012). 59 NERC Comments at 14–15; PG&E Comments at NERC registry process is designed to identify and 56 Id. P 47. 14; Trade Associations Comments at 7–8. register entities for compliance with Reliability 57 NOPR, FERC Stats. & Regs. ¶ 32,679 at P 56. 60 G&T Cooperatives Comments at 11. Standards, and not identify lists of assets’’). 58 G&T Cooperatives Comments at 11–12; SPP RE 61 G&T Cooperatives Comments at 10–13. 54 Order No. 706, 122 FERC ¶ 61,040 at P 49. Comments at 5–6; MISO Comments at 11. 62 SPP RE Comments at 5–6.

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generation Facilities identified in 56. The Trade Associations likewise C. NOPR Questions on Critical Asset criteria 1.1, 1.3, or 1.4. Each control recognize the NOPR’s concern regarding Identification center or backup control center used to control centers but state that control 1. Flexibility To Identify Critical Assets control generation equal to or exceeding centers and control systems are being That Fall Outside of the CIP Version 4 1500 MW in a single Interconnection.’’ considered in the Version 5 project. The Bright Line Criteria SPP RE states that criterion 1.1 Trade Associations also state that adequately protects the common control appropriate prioritization and tailored NOPR systems of generating units at a single application of mandatory requirements 59. In the NOPR, the Commission plant location with aggregate real power will be needed in addressing control stated that under the currently-effective equal to or exceeding 1500 MW. centers and control systems given the Reliability Standard CIP–002–3, a However, SPP RE believes that criterion widely varying circumstances and responsible entity that applies its risk- 1.15 does not clearly apply to control configurations in which these facilities based assessment methodology centers and common control systems are used.67 considers specific types of assets that control generation that equals or identified in Requirement R1, as well as exceeds 1,500 MW in the aggregate Commission Determination ‘‘any additional assets that support the regardless of the individual plant size operation of the Bulk Electric System requirements set forth in criterion 1.1.63 57. The Commission recognizes the that the Responsible Entity deems diverging views among commenters 54. MISO expresses concern with appropriate to include its Version 4’s treatment of control centers. regarding the protection of control assessment.’’ 71 The Commission invited MISO asks for clarification whether centers and control systems afforded comment on whether a registered entity Version 4 intentionally omitted ‘‘data under the Version 4 CIP Reliability retains the same flexibility under centers’’ associated with control centers Standards. In Order No. 706, we stated Version 4 to identify assets that, from the bright line criteria and whether that ‘‘it is difficult to envision a scenario although outside of the bright line registered entities have the discretion to in which a reliability coordinator, criteria for identifying Critical Assets, designate them as Critical Assets. transmission operator or transmission are essential to Bulk-Power System Because control centers often work in owner control center or backup control reliability. tandem with an associated data center, center would not properly be identified Comments MISO recommends allowing registered as a critical asset.’’ 68 The Commission entities to designate data centers as maintains this view. However, as we 60. NERC states that, in developing Critical Assets.64 observed in the NOPR, the percentage of Version 4, the drafting team considered control centers to be identified as adding criteria that would allow entities 55. NERC and PG&E acknowledge the to identify additional facilities falling Critical Assets under Version 4 is 74 NOPR’s concern that Version 4 does not outside of the bright line criteria, but percent, which is an improvement over fully address the Order No. 706 determined not to include the provision. directives pertaining to control centers. the number currently identified under 69 However, NERC adds that ‘‘registered NERC and PG&E temper this concern, Version 3. Therefore, it is reasonable entities are permitted to apply any or all however, by pointing to the lack of an to approve Version 4 because it will of the requirements in the CIP standards accepted definition of ‘‘control centers’’ ensure that more control centers are to assets that do not meet the bright-line and the fact that some control centers in identified as Critical Assets than are thresholds.’’ 72 the generation context only identified under Version 3. However, 61. The Trade Associations and communicate with generators that fall we continue to expect comprehensive FirstEnergy believe that registered below the NERC Registration Criteria for protection of all control centers and entities do not have the flexibility to generators. NERC and PG&E suggest that control systems as NERC works to identify Critical Assets that fall outside cyber assets at these generator locations comply with the requirements of Order the bright line criteria such that they are unlikely to have a greater impact on No. 706. would be subject to mandatory and reliability than much larger single-unit 58. We agree with SPP RE that the CIP enforceable compliance obligations and generators merely because the smaller should not have such flexibility because units have a control center. In any case, Reliability Standards should consider interconnectivity of control centers and it would detract from the consistency NERC and PG&E explain that under a afforded by the bright line criteria.73 the strategy of classifying a control future Version 5 every control center The Trade Associations, however, state center as a Critical Asset if it is network- will be protected and will receive a that registered entities have the ‘‘medium’’ or ‘‘high’’ level of security connected to other control centers. The discretion to identify facilities as under a new three-tiered structure. Commission also finds merit in MISO’s Critical Assets provided those facilities Further, NERC and PG&E state that comment that responsible entities are not subject to compliance several Version 5 requirements will should be allowed to designate data obligations.74 apply to control centers regardless of centers as Critical Assets because of 62. PG&E comments that appropriate whether they are classified as medium their inherent connectivity to the flexibility exists under Version 4 to or high.65 NERC also states that ‘‘cyber control centers or control systems they allow the identification of Critical misuse’’ will be a consideration under support. Therefore, we expect NERC to Assets essential to the bulk electric the classification process in CIP Version address these approaches as it works to system. In particular, PG&E cites to 5 and that the CIP Version 5 drafting comply with the requirements of Order criterion 1.3, which would require a team has proposed a definition of No. 706.70 planning coordinator or transmission ‘‘control center.’’ 66 planner to identify a generation facility

67 63 Id. at 6–7. Trade Associations Comments at 7–8. 71 NOPR, FERC Stats. & Regs. ¶ 32,679 at P 31. 68 64 MISO Comments at 10–11. Order No. 706, 122 FERC ¶ 61,040 at P 280. 72 NERC Comments at 4. 65 NERC Comments at 14–15; PG&E Comments at 69 NOPR, FERC Stats. & Regs. ¶ 32,679 at P 23. 73 Trade Associations Comments at 4–5; 13–14. 70 See, e.g., Order No. 706, 122 FERC ¶ 61,040 at FirstEnergy Comments at 2. 66 NERC Comments at 15. PP 280–281. 74 Trade Association Comments at 5.

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as ‘‘critical’’ if ‘‘necessary to avoid BES be treated as critical but to not fall into by the bright line criteria render Version Adverse Reliability Impacts in the long- the CIP Version 4 criteria.’’ 80 4 an improvement over Version 3. 75 term planning horizon.’’ Likewise, 66. The Trade Associations, 69. We expect NERC to continue to PG&E indicates that criterion 1.8 Dominion, FirstEnergy and other work towards a version of the CIP provides that a reliability coordinator, commenters oppose identification of Reliability Standards that will largely planning authority, and transmission Critical Assets outside of the bright line eliminate the risk of gaps in the identification of Critical Assets.87 planner has authority to designate process by NERC or Regional Entities as In Section E of this Final Rule, we discuss certain transmission facilities critical to detracting from the clarity afforded by the directive in Order No. 706 regarding the derivation of IROLs as critical. PG&E the bright line criteria. The Trade external review in an effort to provide also believes that industry should be Associations and Tallahassee opine that the ERO with guidance in developing encouraged to apply any or all of the the Commission should not undermine future versions of the CIP Reliability CIP Reliability Standards to assets that the bright line criteria by granting Standards. do not meet the bright line criteria, Regional Entities discretion to designate ‘‘even beyond a compliance and audit Critical Assets that are otherwise D. Implementation Plan program.’’ 76 excluded by application of the bright NERC Petition 63. SPP RE encourages the line criteria.81 SPP RE states that it is Commission to require NERC to restore not appropriate to apply arbitrarily 70. NERC proposed an the ‘‘other’’ criterion to the bright line criteria not found in the CIP Reliability implementation plan for existing criteria.77 MISO likewise believes that Standards to require additional cyber Critical Assets and an implementation registered entities should have the systems to be subject to the CIP plan for newly identified Critical Assets flexibility to identify more Critical Reliability Standards.82 Dominion states and newly registered entities. For Assets because the bright line criteria that if such a mechanism is necessary, existing Critical Assets, NERC proposed create a minimum regulatory floor on it should not be done in the compliance an effective date for full compliance which to build.78 audit context.83 with the Version 4 CIP Standards of the first day of the eighth calendar quarter 2. NERC or Regional Entities’ Ability To 67. MISO supports review of Critical after applicable regulatory approvals Identify Critical Assets That Fall Asset designations by NERC and have been received. The Outside of the CIP Version 4 Bright-Line Regional Entities given its belief that implementation plan for newly Criteria criteria 1.3, 1.8, and 1.9 require identified Critical Assets and newly reliability coordinators, planning registered entities specifies how NOPR authorities/authorities and transmission responsible entities are to handle newly planners to identify certain Critical 64. In the NOPR, the Commission identified Critical Cyber Assets, as well Assets. MISO maintains that the lack of as how newly registered entities are to invited comment on whether NERC guidance for applying these criteria and/or Regional Entities would have the implement the CIP Reliability Standards leaves room for substantial discretion, after the effective date for Version 4. ability, either in an event-driven which may undermine the consistent investigation or compliance audit, to identification of Critical Assets absent NOPR identify specific assets that fall outside Regional Entity or NERC review.84 71. In the NOPR, the Commission the bright-line criteria yet are still proposed to approve both the effective essential to Bulk-Power System Commission Determination date and the implementation plan for reliability and should be subject CIP–002–4 based upon a belief that the prospectively to compliance with the 68. We agree with NERC and others proposed implementation plan CIP Reliability Standards, and if so, on that registered entities can voluntarily establishes reasonable deadlines for what basis should that decision be apply any or all of the requirements in industry compliance.88 made.79 the CIP Reliability Standards to assets that fall outside the bright line criteria.85 Comments Comments As MISO described it, Version 4’s bright line criteria establish a ‘‘regulatory 72. Comments varied regarding 65. NERC states that the Version 4 CIP floor’’ for cybersecurity, which must be NERC’s proposed implementation plan. NERC, PG&E and Exelon support the Reliability Standards are an interim step followed by all registered entities.86 CIP Version 4 implementation plan. and that the future Version 5 CIP Nothing in Version 4 prevents registered PG&E comments that the two year time Reliability Standards will refine the entities from applying the protections frame, commencing from Commission bright line criteria, with the intent of required by the CIP Reliability approval, is reasonable. The Trade categorizing assets (to be termed ‘‘BES Standards to additional assets that they Associations support the Cyber Systems’’) as low, medium or deem critical. At the same time, we implementation plan. However, they high impact to Bulk-Power System agree that assets not identified by the also urge the Commission to avoid a reliability. NERC states that, in the bright line criteria are not subject to a ‘‘one size fits all’’ approach, explaining interim, it has the authority under compliance obligation or to addition by that there are ‘‘complexities’’ of Section 810 of the NERC Rules of the Commission, NERC, or a Regional implementing ‘‘[CIP Versions] 3 to 4 to Procedure to issue an Alert to Entity. We are persuaded that the clarity 5.’’ 89 recommend specific actions. According and addition of Critical Assets effected According to the Trade to NERC, it can use the Alerts ‘‘as a tool Associations, some entities may face significant challenges as the result of to address assets that NERC and 80 NERC Comments at 4–7. approval of Version 4 potentially Regional Entities later determine should 81 Trade Association Comments at 5–6; Tallahassee Comments at 4–5. followed so closely in time by the 75 PG&E Comments at 5. 82 SPP RE Comments at 4. approval of Version 5. The Trade 76 Id. 83 Dominion Comments at 4–5. 77 SPP RE Comments at 5. 84 MISO Comments at 4. 87 NERC Petition at 4. 78 MISO Comments at 11. 85 NERC Comments at 4. 88 NOPR, FERC Stats. & Regs. ¶ 32,679 at P 39. 79 NOPR, FERC Stats. & Regs. ¶ 32,679 at P 31. 86 MISO Comments at 11. 89 Trade Associations Comments at 13.

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Associations ask for coordination among appropriate implementation plan is FERC Order No. 706, paragraph 236.’’ 97 NERC, the regions and registered fully vetted and approved by the NERC further stated that the standard entities to achieve compliance in an industry, the NERC Board of Trustees, drafting team is continuing its effort to efficient and orderly manner. NERC and and FERC, there is no basis to determine address the remaining outstanding Exelon acknowledge that there could be at this juncture that the CIP Version 4 Order No. 706 directives. NERC concerns with implementing CIP standards should not be explained that its phased approach to Version 5 soon after Version 4 becomes implemented.’’ 96 meeting the Order No. 706 directives effective, but note that CIP Version 5- has ‘‘consistently built upon prior Commission Determination related implementation issues could be versions of the CIP–002 through CIP– revisited after CIP Version 5 is filed.90 76. The Commission adopts the NOPR 009 standards to enhance the reliability 73. G&T Cooperatives, ISO/RTO proposal and approves both the effective of the Bulk Electric System.’’ 98 In that Council, SPP RE, ITC, Dominion, and date and the implementation plan for light, the Commission discussed certain FirstEnergy oppose and/or recommend CIP–002–4 as just, reasonable, not outstanding Order No. 706 directives in modifying the CIP Version 4 unduly discriminatory or preferential, the NOPR and proposed giving guidance implementation plan in anticipation of and in the public interest. The to aid in the development of the next a future CIP Version 5 filing. G&T comments opposing NERC’s proposed version of the CIP Reliability Standards. Cooperatives state that CIP Version 4 implementation plan for CIP–002–4 are 79. In their comments, the Trade should be approved for ‘‘guidance all based upon concerns that the Associations seek clarification as to purposes’’ only, thus delaying approval of CIP Version 4 may be whether the issues discussed in Section implementation, so that it may be followed very closely in time by a future B of the NOPR (i.e., connectivity, superseded by CIP Version 5.91 G&T Version 5 of the CIP Reliability control centers, and NERC and Regional Cooperatives believe that CIP Version 5 Standards. We understand the Entity review of Critical Asset lists) should become effective on the date that commenters’ interest in careful should be viewed merely as CIP Version 4 would otherwise become coordination, so that the industry can encouragement to address those issues effective. Therefore, G&T Cooperatives achieve compliance in an efficient and in CIP Version 5 or as new directives believe that NERC no longer intends orderly manner as the industry moves beyond what was required in Order No. 99 that CIP Version 4 should go into effect from Version 3 to Version 5, via the 706. The Trade Associations explain in advance of CIP Version 5. interim Version 4. These concerns, that it is their expectation that the final 74. ISO/RTO Council asks that the however, do not provide a basis on rule will not include any further Commission provide guidance to NERC which to reject the NOPR proposal. directives. Instead, the Trade on how to exercise discretion on 77. While G&T Cooperatives, ISO/ Associations encourage the Commission enforcement and implementation issues RTO Council, SPP RE, ITC, Dominion, to allow development of CIP Version 5 given the potential overlap and possible and FirstEnergy outline various to move forward without introducing conflict with CIP Version 5.92 SPP RE proposed solutions to a potential any new uncertainties in a final rule on suggests that the Commission allow overlap between CIP Version 4 and a CIP Version 4. Based on the comments entities to ‘‘early adopt’’ CIP Version future Version 5 of the CIP Reliability in response to the NOPR, we determine 5.93 ITC recommends keeping CIP Standards, the commenters ignore one not to issue new directives at this time Version 4 in effect for at least three critical fact—the only version of the CIP beyond what is required to comply with years so registered entities can collect a Reliability Standards at issue in this Order No. 706. Consistent with the full three-year audit cycle’s worth of proceeding is Version 4. There is no NOPR proposal, we provide guidance data, which would avoid ‘‘frequent and proposed Version 5 of the CIP for future versions of the CIP Reliability abrupt changes’’ and could help later Reliability Standards before the Standards regarding the issues of when implementing CIP Version 5.94 Commission at this time, so any connectivity, application of the National Dominion recommends allowing concerns raised about implementation Institute of Standards and Technology registered entities to discontinue of Version 5 are beyond the scope of this (NIST) Framework, and provision of a implementation of CIP Version 4, while proceeding. To the extent that the regional perspective. remaining compliant with CIP Version development of Version 5 raises actual 1. Connectivity 3, if CIP Version 5 is approved by the implementation concerns, such NOPR Commission before the CIP Version 4 concerns should be raised when NERC mandatory compliance date.95 submits Version 5 for approval. This 80. In the NOPR, the Commission 75. In its reply comments, NERC proceeding is not the appropriate forum stated that: reiterates that it supports to determine how to coordinate the In light of recent cybersecurity implementation of CIP Version 4 as implementation of the CIP Version 4 vulnerabilities, threats and attacks that have filed. NERC rejects the G&T Reliability Standards with possible exploited the interconnectivity of cyber Cooperatives’ suggestion that NERC no future versions of the CIP Reliability systems, the Commission seeks comments longer intends that CIP Version 4 should Standards that have not yet been regarding the method of identification of go into effect in advance of CIP Version Critical Cyber Assets to ensure sufficiency developed or submitted for approval to and accuracy. The Commission recognizes 5. NERC states that it recognizes the the Commission. concerns raised by industry regarding that control systems that support Bulk-Power E. Compliance With Order No. 706 System reliability are ‘‘only as secure as their the interplay between CIP Version 4 and weakest links,’’ and that a single CIP Version 5. However, NERC states 78. In the petition, NERC stated that vulnerability opens the computer network that ‘‘until CIP Version 5 and an the standard drafting team ‘‘limited the and all other networks with which it is scope of requirements in the interconnected to potential malicious 90 activity. Accordingly, the Commission NERC Comments at 10; Exelon Comments at 3. development of CIP–002–4 through 91 G&T Cooperatives Comments at 10. believes that any criteria adopted for the 92 ISO/RTO Council Comments at 15. CIP–009–4 as an interim step to address 93 SPP RE Comments at 7. the more immediate concerns raised in 97 NERC Petition at 6. 94 ITC Comments at 4. 98 Id. 95 Dominion Comments at 3. 96 NERC Reply Comments at 3. 99 Trade Association Comments at 10.

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purposes of identifying a Critical Cyber Asset CIP Version 5.108 The Trade all bulk electric system cyber under CIP–002 should be based upon a Cyber Associations state that they understand systems.113 Because electronic Asset’s connectivity and its potential to the Commission’s concerns regarding communications between functional compromise the reliable operation of the connectivity. But taken together with entities and their associated systems are Bulk-Power System, rather than focusing on essential to the operation of the Bulk- the operation of any specific Critical Asset(s). the NOPR’s ‘‘weakest link’’ statements, [Footnotes omitted.] 100 the Trade Associations are concerned Power System, it is important for each these views could imply that everything distinct system to be protected at its The Commission invited comment on needs to be protected.109 The Trade boundary by an electronic security this approach. Associations believe that the ‘‘weakest perimeter. The use of electronic security Comments link’’ concept articulated in the NOPR perimeters, as required under the CIP needs to be fleshed out in more detail Reliability Standards, is commonly 81. NERC comments that, while it and that Commission staff should work referred to as zoned security in the does not believe that the connectivity with the CIP Version 5 standard drafting information security industry.114 issue was raised in Order No. 706, the team to discuss these issues. The Trade Security zones are established to ensure CIP Version 5 standards drafting team Associations also maintain that the CIP that a compromise in one security zone recognizes the importance of the matter Version 5 standard drafting team is does not lead to a compromise in and is considering it in the development currently working on addressing the another security zone across a security 101 of Version 5. However, NERC does Commission’s directives in Order No. perimeter.115 The Commission is not believe that connectivity can be 706 and that no further directives encouraged by NERC’s comments that addressed in CIP Version 5 by the time regarding connectivity, or otherwise, its standard drafting team is considering it is submitted to the NERC Board of should be made in the final rule ways to address connectivity issues and 102 Trustees for approval. NERC notes approving CIP Version 4. According to electronic perimeter protections that CIP Version 5 will eliminate the the Trade Associations, any directives surrounding all BES Cyber Systems. blanket exemption for non-routably in the final rule would serve to prejudge 88. We also agree with SPP RE that connected cyber systems, ‘‘and instead CIP Version 5. the CIP Reliability Standards should move[s] the connectivity attribute to consider communication paths between specific requirements.’’ 103 NERC adds Commission Determination a given cyber asset and other assets that that the CIP Version 5 drafting team has 85. The Commission appreciates the support a reliability function.116 As proposed to apply electronic security comments on whether cyber noted by SPP RE, cyber security perimeter protections ‘‘of some form’’ to connectivity should be a basis for the standards that categorize cyber systems include all bulk electric system Cyber identification of Critical Cyber Assets, based upon the size or scope of the Systems.104 or their equivalent, in future versions of assets that they control ‘‘fail to consider 82. SPP RE states that neither CIP the CIP Reliability Standards. We have the interconnectivity of the BES Cyber Version 4 nor CIP Version 5 consider all raised concerns relating to the use of Systems and the potential for a small possible communication paths between cyber connectivity as a basis for control center system to be used as a a given cyber asset and any assets that applying the CIP Reliability Standards vector of attack against a larger control support a reliability function. According during and since the approval of center system.’’ 117 As noted by SPP RE, to SPP RE, the Version 4 standards Version 1. For example, in Order No. ‘‘[c]ontrol center BES Cyber Systems define bright line criteria based on size 706, we stated that ‘‘NERC’s compliance routinely exchange operational data of the asset, and the draft Version 5 [with the CIP Reliability Standards] is with each other as required by NERC standards would rate cyber systems necessary in light of its Reliability Standard TOP–005–2a.’’ 118 based on their span of control, but fail interconnectivity with other entities that As further noted by SPP RE, to consider interconnectivity and the own and operate critical assets.’’ 110 connectivity is important to address potential for a small system to be used Similarly, in finding that an ‘‘N minus because of the required communications as a vector of attack against other 1’’ criterion is not an appropriate risk- from control centers to and between systems.105 SPP RE explains that control based assessment methodology for reliability coordinators under the center cyber systems routinely exchange identifying Critical Assets, we noted Interconnection Reliability Operations data with reliability coordinators, over that a cyber attack can strike multiple and Coordination Standards.119 The wide area networks.106 assets simultaneously.111 The cyber Commission agrees that cyber 83. ISO/RTO Council states that the connectivity of Bulk-Power System connectivity is important to address Commission’s concerns with assets increases the risk of a multiple connectivity could be addressed by asset cyber attack. The CIP Reliability 113 Id. requiring certain asset owners and Standards should reflect this risk. 114 A ‘‘security zone’’ is defined by the ISA99 Committee on Industrial Automation and Control operators to take a ‘‘mutual distrust’’ 86. In that light, we support the Systems Security as a ‘‘grouping of logical or posture.107 MISO supports considering elimination of the blanket exemption for physical assets that share common security the connectivity issue but also non-routable connected cyber systems requirements.’’ Security for Industrial Automation encourages the Commission to evaluate as highlighted in NERC’s comments.112 and Control Systems Part 1: Terminology, Concepts, the costs and benefits of this approach. A continued blanket exemption in and Models, ISA–99.00.01–2007. 115 A ‘‘security perimeter’’ is defined by the 84. PG&E states that issues pertaining Version 5 would not adequately address ISA99 Committee on Industrial Automation and to connectivity are being addressed in risk. Control Systems Security as a ‘‘boundary (logical or 87. In addition, we support the physical) of the domain in which a security policy or security architecture applies, i.e. the boundary of 100 concept of applying electronic security NOPR, FERC Stats. & Regs. ¶ 32,679 at P 43. the space in which security services protect system 101 NERC Comments at 11. perimeter protections ‘‘of some form’’ to resources.’’ Security for Industrial Automation and 102 Id. Control Systems Part 1: Terminology, Concepts, and 103 Id. 108 PG&E Comments at 9. Models, ISA–99.00.01–2007. 104 Id. 109 Trade Associations Comments at 18. 116 SPP RE Comments at 3–4. 105 SPP RE Comments at 3–5. 110 Order No. 706, 122 FERC ¶ 61,040 at P 47. 117 Id. 106 Id. at 3–4. 111 Id. P 256. 118 Id. 107 ISO/RTO Council Comments at 17. 112 NERC Comments at 11. 119 Id.

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when developing future versions of the in depth strategy to limit the that the NIST Framework allows for CIP Reliability Standards. That being propagation of a threat.126 applicable NIST concepts to be tailored said, we acknowledge the concern of 91. Having considered the feedback to and incorporated into the CIP Reliability Trade Associations that the our question on cyber connectivity, we Standards, which has been the approach ‘‘connectivity’’ and ‘‘weakest link’’ continue to believe that criteria adopted of the standard drafting team in concepts could possess different for the purpose of identifying Critical developing CIP Version 5. meanings to various stakeholders.120 Cyber Assets under CIP–002 should Commission Determination Thus, addressing connectivity should include a cyber asset’s ‘‘connectivity’’ include reaching a common and its potential to compromise the 94. The Commission finds the understanding of the term. Further, we reliable operation of the Bulk-Power feedback provided on the potential understand and agree with the Trade System. Therefore, we expect Version 5 application of the NIST Framework to Associations’ concern that protection to address these issues. the CIP Reliability Standards to be should be applied in a reasonable 2. Application of NIST Framework useful. We agree with the commenters manner.121 that support applying applicable NOPR 89. Recognizing the importance of features of the NIST Framework to addressing cyber connectivity in future 92. In the NOPR, the Commission Version 5 of the CIP Reliability versions of the CIP Reliability elaborated on the Order No. 706 Standards. As stated in the NOPR, we Standards, we encourage NERC to guidance regarding the consideration of believe that the NIST Framework could the NIST Framework when developing provide beneficial input into the CIP consider the benefits of a ‘‘mutual 131 distrust’’ posture, or similar strategies, CIP Reliability Standards.127 The NOPR Reliability Standards. In its put forth by the ISO/RTO Council 122 explained that the NIST Framework comments, NERC states that a standards and as directed by the Commission in recognizes that all connected assets drafting team is incorporating four key Order No. 706.123 In Order No. 706, the require a baseline level of protection to features of the NIST Framework into the Commission used the term ‘‘mutual prevent attackers from gaining a Version 5 CIP Reliability Standards: (1) distrust’’ to denote how ‘‘outside world’’ foothold to launch further, even more Ensuring that all BES Cyber Systems systems are treated by those inside the devastating attacks on other critical associated with the Bulk-Power System, control system.124 Specifically, a mutual systems.128 The Commission invited based on their function and impact, distrust posture requires each comment on this approach. receive some level of protection; (2) customizing protection to the mission of responsible entity that has identified Comments critical cyber assets to protect itself and the cyber systems subject to protection; not trust any communication crossing 93. NERC, PG&E, SPP RE, and MISO (3) applying a tiered approach to an electronic security perimeter, support applying aspects of the NIST security controls that specifies the level regardless of where that communication Framework to the CIP Reliability of protection appropriate for systems Standards, which could lead to more originates.125 based upon their importance to the bulk electric system components being reliable operation of the Bulk-Power 90. Applying electronic security protected, though at different levels System; and (4) using the concept of the perimeter protections ‘‘of some form’’ to depending on their criticality. NERC BES Cyber System.132 We view the bulk electric system cyber systems and PG&E state that the CIP Version 5 approach of incorporating these covered by the CIP Reliability Standards standard drafting team has incorporated applicable features of the NIST will support the adoption of a ‘‘mutual four key features of the NIST Framework into the CIP Reliability distrust’’ posture. This posture will Framework into the draft CIP Version Standards as a positive step in encourage asset owners and operators to 5.129 NERC states, however, that the improving cyber security for the Bulk- employ sound network architectural NIST standards/guidelines should not Power System. design, thus segmenting their systems be adopted in total because elements of 95. NIST standards are used by into distinct security zones protected by the NIST standards/guidelines, which industry generally as a reference and managed interfaces that will allow only are meant to help federal agencies to can be applied by the ERO to the Bulk- trusted access. The managed interfaces, manage risks to their information Power System.133 Therefore, we or electronic security perimeter access systems in support of their unique points, are intended to restrict or missions, are inapplicable to the power 131 NOPR, FERC Stats. & Regs. ¶ 32,679 at P 46. prohibit network access and information sector.130 NERC and MISO point out 132 NERC Comments at 13–14. NERC comments flow to bulk electric system cyber that the next version of the CIP Reliability Standards replaces the identification of ‘‘Critical systems covered by the CIP Reliability 126 ‘‘Defense in depth’’ is defined by the ISA99 Assets’’ with the categorization of ‘‘BES Cyber Standards from unidentified, Committee on Industrial Automation and Control Systems.’’ Specifically, NERC states that ‘‘BES unauthenticated, and unauthorized Systems Security as the ‘‘provision of multiple Cyber Systems will be characterized as ‘High security provisions, especially in layers, with the Impact,’ ‘Medium Impact,’ or ‘Low Impact’ based on connectivity to ensure security. intent to delay if not prevent an attack. NOTE: Multiple electronic security perimeters the impact of the cyber system to the reliable Defense in depth implies layers of security and operation of the bulk power system * * * [t]his can be established to protect cyber detection, even on single systems, and provides the characterization makes use of a bright-line concept assets and adopted as part of a defense following features: attackers are faced with breaking similar to Version 4, but requires responsible through or bypassing each layer without being entities to determine the impact of loss, detected; a flaw in one layer can be mitigated by compromise or misuse of a given BES Cyber System 120 Trade Associations Comments at 18. capabilities in other layers; system security using a bright-line impact filter.’’ NERC Comments 121 Id. becomes a set of layers within the overall network at 7. 122 security.’’ Security for Industrial Automation and ISO/RTO Council Comments at 17. 133 For example, NIST SP800–82 provides a 123 Control Systems Part 1: Terminology, Concepts, and Order No. 706, 122 FERC ¶ 61,040 at P 412 detailed Guide to Industrial Control Systems Models, ISA–99.00.01–2007. (‘‘The Commission therefore directs the ERO to Security that is relevant to the electric power 127 provide guidance, regarding the issues and NOPR, FERC Stats. & Regs. ¶ 32,679 at PP 46– industry. Specifically, NIST SP800–82 includes concerns that a mutual distrust posture must 52. recommendations to assist in the protection of address in order to protect a responsible entity’s 128 Id. P 51. Supervisory Control and Data Acquisition systems, control system from the outside world.’’). 129 NERC Comments at 13; PG&E Comments at Distributed Control Systems, and other control 124 Id. P 33. 11–12. system configurations such as Programmable Logic 125 Id. n.24. 130 NERC Comments at 12–13. Continued

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continue to encourage NERC and NERC, ‘‘[t]his characterization makes methodologies to identify Critical industry to include aspects of the NIST use of a bright line concept similar to Assets.139 Further, as indicated in the Framework and standards into Version 4, but requires responsible NOPR in the immediate proceeding, the subsequent versions of the CIP entities to determine the impact of loss, Commission’s concerns are Reliability Standards to better protect compromise or misuse of a given BES ‘‘exacerbated by any future revisions to the Bulk-Power System. Similar to our Cyber System using a bright line impact the CIP Reliability Standards that opt to approach in Order No. 706, we continue filter.’’ 137 reserve a high level of independent to urge NERC to look to relevant NIST 98. The Trade Associations state that authority to the registered entity to standards for guidance in developing they cannot support the NOPR proposal categorize and prioritize its cyber effective cybersecurity standards for the on redesignation of assets based on a assets.’’ 140 electric industry.134 ‘‘regional view’’ without specific 102. We agree with commenters that information about the mechanics of the the adoption of appropriate, bright line 3. Regional Perspective proposal or the nature of the perceived criteria for Critical Asset identification NOPR reliability gap. According to the Trade may obviate the need for an external 96. In the NOPR, the Commission Associations, registered entities are in review. We believe that there is less highlighted the Order No. 706 directive the best position to determine which of need for external review where for NERC to ‘‘develop a process of their cyber assets are critical to the application of bright line criteria results external review and approval of critical operation of Critical Assets and in an objective, consistently applied asset lists based on a regional therefore subject to CIP compliance. The approach to the identification of cyber perspective.’’ 135 The NOPR explained Trade Associations contend that NERC assets. As discussed above, NERC and the Regional Entities have the the Commission’s concern that a lack of anticipates the development of tiered, opportunity to review a registered a regional review of a registered entity’s bright line criteria in the next version of entity’s approach to developing its list identification of cyber assets might the CIP Reliability Standards. Whether of Critical Cyber Assets in the context of result in a reliability gap. In addition, this development ultimately eliminates a compliance audit or other compliance the Commission discussed concerns the need for an external review process monitoring process. as directed in Order No. 706 will regarding cyber systems spanning 99. FirstEnergy states that the bright multiple regions: depend on the discretion allowed to line criteria should be the sole individual registered entities in This problem may be exacerbated by any methodology for identifying Critical identifying and characterizing assets or future revisions to the CIP Reliability Assets and that allowing the ERO or Standards that opt to reserve a high level of systems. Regional Entities the ability to add 103. However, even with the adoption independent authority to the registered entity assets that fall outside the bright line to categorize and prioritize its cyber assets. of clear and objective criteria, we Looking forward, it will be essential for criteria undermines the purpose of the believe that there remains a need for an NERC and the Regional Entities to actively bright line criteria.138 Tallahassee states entity with a regional perspective, review the designation of cyber assets that that the Commission should not presumably the ERO or a Regional are subject to the CIP Reliability Standards, undermine the value of the bright line Entity, to have the opportunity to including those which span regions, in order criteria by granting the Regional Entities identify or adjust the characterization of to determine whether additional cyber assets the discretion to designate assets as should be protected.136 cyber assets in some circumstances. For critical if the assets are not otherwise example, an event may reveal that a Comments identified by the bright line criteria. specific cyber asset has a greater impact 100. SPP RE, for its part, states that it 97. NERC states that the bright line than previously recognized. In such is not appropriate to apply arbitrarily circumstance, an objective third party criteria adopted under Version 4 of the criteria not listed in the CIP Reliability CIP Reliability Standards provide should have the opportunity to Standards to require additional cyber designate a cyber asset prospectively as certainty and clarity as to the assets that assets to be subject to the CIP Reliability should be identified as critical. NERC critical or recharacterize the impact of a Standards. SPP RE states that the cyber asset for compliance purposes.141 explains that the CIP Reliability appropriate way to address any concern Standard drafting team is further Likewise, it is possible that a that the bright line criteria do not technological development or newly refining the bright line criteria and capture all assets that should be anticipates that the next version of the discovered vulnerability could justify a protected is to modify the bright line case-specific adjustment. CIP Reliability Standards will criteria to address any deficiency. characterize ‘‘BES Cyber Systems’’ (in 104. We agree with SPP RE that a lieu of cyber assets) with ‘‘high,’’ Commission Determination modification of one or more of the ‘‘medium,’’ or ‘‘low’’ impact on Bulk- 101. In Order No. 706, the bright line criteria is an appropriate Power System reliability. According to Commission explained the need for response to a generic change in risk or external review of the Critical Asset lists impact of a category of cyber assets. Controllers. See National Institute of Standard and in the context of an earlier version of the Accordingly, as a reasonable application Technology, Guide to Industrial Control Systems CIP Reliability Standards that required of the Order No. 706 directive that an (ICS) Security (NIST SP900–82) (2011), http://csrc. registered entities to apply entity with a regional approach have nist.gov/publications/nistpubs/800-82/SP800-82- oversight of Critical Asset identification, final.pdf. individualized risk-based 134 Order No. 706, 122 FERC ¶ 61,040 at P 233 NERC and the regions—or another (directing the ERO ‘‘to consult with federal entities 137 NERC Comments at 7. NERC states in its designated third party—should have the that are required to comply with both CIP comments that the CIP standard drafting team is authority in some circumstances, such Reliability Standards and NIST standards on the considering the adoption of the term ‘‘BES Cyber as those discussed above, to designate a effectiveness of the NIST standards and on Systems’’ in the next version of the CIP Reliability cyber asset as critical or adjust the implementation issues and [to] report these findings Standards. Our discussion below uses the term to the Commission’’). ‘‘cyber assets’’ to include any cyber asset or systems 135 NOPR, FERC Stats. & Regs. ¶ 32,679 at PP 59– that the ERO eventually designates as needing cyber 139 Order No. 706, 122 FERC ¶ 61,040 at PP 298, 61 (citing Order No. 706, 122 FERC ¶ 61,040 at P security protections under the CIP Reliability 322. 329). Standards. 140 NOPR, FERC Stats. & Regs. ¶ 32,679 at P 61. 136 Id. P 61. 138 FirstEnergy Comments at 2. 141 Order No. 706, 122 FERC ¶ 61,040 at P 325.

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‘‘impact’’ characterization. In addressing developed through the normal NERC indicated that it anticipates filing the the Order No. 706 directives, NERC standard development process.148 Version 5 CIP Reliability Standards by should develop appropriate provisions 109. The Trade Associations, AMP, the third quarter of 2012.154 to implement this limited opportunity Exelon, FirstEnergy, and KCP&L do not Accordingly, to allow for sufficient time for review. support a hard deadline for filing CIP beyond what NERC estimates, we Version 5.149 The Trade Associations, establish a deadline that is 6 months F. Deadline for Addressing Order No. supported by FirstEnergy and KPC&L, from the end of the third quarter of 2012 706 Directives and AMP believe that the development (i.e., March 31, 2013). NERC must also NERC Petition schedule for CIP Version 5 is aggressive submit reports at the beginning of each 105. In the petition, NERC states that and may need to be revised. The Trade quarter in which the ERO is to explain the standard drafting team is continuing Associations caution that an artificial whether it is on track to meet the to address the outstanding Order No. deadline may increase the risk that deadline and describe the status of its 706 directives.142 NERC notes that the some complex technical issues may not standard development efforts. next version of the CIP Reliability be fully resolved in Version 5. The Trade Associations and Exelon support G. Violation Severity Levels and Standards ‘‘will build on the CIP–002– Violation Risk Factors 4 standards’ establishment of uniform a ‘‘realistic goal’’ or ‘‘target date’’ for filing CIP Version 5 coupled with criteria for the identification of Critical NERC Petition 143 periodic informational filings marking Assets.’’ 150 112. As amended on April 12, 2011, NERC’s progress. AMP supports the petition includes proposed VRFs NOPR requiring NERC to make periodic 151 and VSLs for each Requirement of the 106. In the NOPR, the Commission informational filings as well. The Version 4 CIP Reliability Standards, invited comment on whether a Trade Associations state that if the CIP–002–4 to CIP–009–4. reasonable deadline should be Commission deems a deadline established for NERC to satisfy the necessary, it should be set for the first NOPR outstanding directives in Order No. 706 quarter of 2013. 113. In the NOPR, the Commission pertaining to the CIP Reliability Commission Determination stated that the VSLs for Requirements Standards based on NERC’s current R1 and R2 of CIP–002–4 do not 110. We adopt our NOPR proposal to development timeline for CIP Version adequately address the failure to establish a deadline for compliance with 144 properly identify either Critical Assets 5. Based on the then current NERC the outstanding Order No. 706 CIP timeline, the NOPR proposed that the or Critical Cyber Assets.155 Specifically, directives. Given the elapse of time NERC proposed to assign a ‘‘Severe CIP Version 5 filing be made by the end since the issuance of Order No. 706, we of the third quarter of 2012. VSL’’ for a violation of Requirement R1 believe that it is appropriate to set a if a responsible entity does not develop Comments reasonable deadline for completion of a list of its identified Critical Assets 107. Comments varied as to the the next version of the CIP Reliability ‘‘even if such list is null.’’ NERC did not imposition of a deadline for NERC to Standards, which, according to NERC, is propose to assign a VSL for a violation expected to address the outstanding of Requirement R1 when a responsible file CIP Version 5. Most comments 152 support at least a soft filing date Order No. 706 directives. The setting entity fails to identify a Critical Asset coupled with periodic informational of a deadline responds to the finding in that falls within any of the Critical Asset filings on the status of CIP Version 5. the January 2011 Audit Report of the criteria in Attachment 1, or fails to While some comments support a hard Department of Energy’s Inspector include an identified Critical Asset in deadline, that support is qualified. General that ‘‘the CIP standards its Critical Asset list. NERC further 108. NERC, ISO/RTO Council, PG&E, implementation approach and schedule proposed to assign a ‘‘Severe VSL’’ to a and Dominion offer qualified support approved by the Commission were not responsible entity’s violation of for a deadline. NERC supports the adequate to ensure that systems-related Requirement R2 only when it fails to proposed deadline, provided: the CIP risks to the Nation’s power grid were include in its list of Critical Cyber Version 4 Final Rule does not add to or mitigated or addressed in a timely Assets a Critical Cyber Asset it has 153 expand on the Order No. 706 directives; manner.’’ identified. NERC did not propose to NERC is able to use its standard 111. We recognize, as numerous assign a VSL for a violation of development process; and CIP Version 5 commenters discuss, that the current Requirement R2 resulting from a only requires one successive ballot.145 schedule for completing CIP Version 5 responsible entity’s failure to identify as PG&E likewise believes that the is aggressive. We also understand that a Critical Cyber Asset a cyber asset that proposed deadline is attainable the volume of industry discussion is qualifies as a Critical Cyber Asset. The provided the CIP Version 4 Final Rule high and we agree that industry input Commission therefore proposed to does not expand on the Order No. 706 should not be artificially rushed or direct the ERO to modify the VSLs for directives.146 ISO/RTO Council states curtailed. In its reply comments, NERC CIP–002–4, Requirements R1 and R2, to that a deadline is reasonable as long as address a failure to identify either 148 there is sufficient time for stakeholder Dominion Comments at 4. Critical Assets or Critical Cyber Assets. 149 Trade Associations Comments at 13–14; AMP input.147 However, ISO/RTO Council is Comments at 4–5; Exelon Comments at 3–4; Comments skeptical about the current development FirstEnergy Comments at 3–4; KCP&L Comments at timeline. Dominion also supports a hard 2. 114. NERC and PG&E agree with the deadline as long as CIP Version 5 is 150 Trade Associations Comments at 15. NOPR proposal to direct modifications 151 AMP Comments at 5. to the VSLs for Requirements R1 and R2 152 NOPR, FERC Stats. & Regs. ¶ 32,679 at P 65 142 NERC Petition at 6. of CIP–002–4 to ensure that lists of n.65. 143 Id. identified Critical Assets are 153 NOPR, FERC Stats. & Regs. ¶ 32,679 at P 65 144 NOPR, FERC Stats. & Regs. ¶ 32,679 at P 67. (citing Department of Energy Inspector General 145 NERC Comments at 8–9. Audit Report, Federal Energy Regulatory 154 NERC Reply Comments at 4. 146 PG&E Comments at 8. Commission’s Monitoring if Power Grid 155 NOPR, FERC Stats. & Regs. ¶ 32,679 at pp. 35– 147 ISO/RTO Comments at 16. Cybersecurity at 2 (January 2011)). 36.

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complete.156 Accordingly, NERC states information, whether the information not revise current requirements that the VSLs for Requirements R1 and will have practical utility, the accuracy pertaining to background checking, R2 should be modified to include the of provided burden estimates, ways to personnel risk assessments, cyber word ‘‘complete’’ in front of the list in enhance the quality, utility, and clarity security training programs, and cyber the VSL language.157 of the information to be collected, and security perimeters. any suggested methods for minimizing Commission Determination 120. Burden Estimate: The principal the respondent’s burden, including the differences in the existing information 115. The Commission approves the use of automated information collection requirements and the burden VRFs and VSLs proposed by NERC techniques. The Commission received imposed by the Reliability Standards in subject to the modifications discussed two comments regarding burden and this Final Rule are triggered by the above. As NERC now agrees, the cost estimates. changes in Reliability Standard CIP– Commission directs modifications to the ‘‘Severe VSL’’ for Requirements R1 and Comments 002–4. The previous risk-based R2 to include the word ‘‘complete.’’ The 118. Hydro-Que´bec and NV Energy assessment methodology for identifying modified VSLs will address situations claim that the cost estimates included in Critical Assets is being replaced by 17 where a responsible entity fails to the NOPR for Version 4 are inaccurate uniform ‘‘bright line’’ criteria for identify or include one or more Critical and incomplete.161 NV Energy states identifying Critical Assets (in CIP–002– Assets that fall within the Critical Asset that the estimate does not include the 4, Attachment 1, ‘‘Critical Asset criteria in Attachment 1 in its Critical significant burden of the additional Criteria’’). Reliability Standard CIP– Assets list pursuant to Requirement R1, security requirements that will be 002–4 requires each responsible entity or where a Responsible Entity fails to required by the identification of more to use the bright line criteria as a identify or include one or more Critical Critical Assets and related Critical Cyber ‘‘checklist’’ to identify Critical Assets, Cyber Assets in its Critical Cyber Asset Assets. NV Energy comments that the initially and in an annual review, list pursuant to Requirement R2. cost estimate does not consider such instead of performing the more matters as increased background technical and individualized risk III. Information Collection Statement checking, personnel risk assessments, analysis involved in complying with the 116. The Office of Management and cyber security training programs, and previously-effective CIP Reliability Budget (OMB) regulations require increased complexity of cyber security Standards. As in past versions of these approval of certain information perimeters. Standards, each Responsible Entity will collection requirements imposed by then identify the Critical Cyber Assets agency rules.158 Upon approval of a Commission Determination associated with its updated list of collection(s) of information, OMB will 119. After a review of the comments Critical Assets. If application of the assign an OMB control number and on the Commission’s cost estimate, we bright line criteria results in the expiration date. Respondents subject to maintain the cost estimate provided in identification of new Critical Cyber the filing requirement of this rule will the NOPR. While we recognize that Assets, such assets become subject to not be penalized for failing to respond implementing the Reliability Standards the remaining standards (approved CIP– to these collections of information is not without cost, the benefits to 003–4, CIP–004–4, CIP–005–4, CIP– unless the collections of information reliability must be recognized. In 006–4, CIP–007–4, CIP–008–4, and CIP– display a valid OMB control number. response to Hydro-Que´bec and NV 009–4), and the information collection The Paperwork Reduction Act (PRA) 159 Energy’s concerns, we note that the requirements contained therein. requires each federal agency to seek and estimate provided in the NOPR 121. We estimate that the burden obtain OMB approval before addresses the potential for an associated with the annual review of the undertaking a collection of information incremental increase in costs across the assets (by the estimated 1,501 applicable directed to ten or more persons, or industry and does not address the full entities) will be simplified by the continuing a collection for which OMB cost of implementing the CIP Reliability ‘‘Critical Asset Criteria’’ in Reliability approval and validity of the control Standards by an entity. We anticipate Standard CIP–002–4. Rather than each number are about to expire.160 that the savings associated with the entity annually reviewing and updating 117. The Commission is submitting change from the entity-specific risk- a risk-based assessment methodology these reporting and recordkeeping based assessment methodology, which that frequently required technical requirements to OMB for its review and had to be reviewed and updated each analysis and judgment decisions, the approval under section 3507(d) of the year, to a bright-line approach will bright line criteria will provide a PRA. The Commission solicited offset some, if not all, of the incremental straightforward checklist for all entities comments on the need for this cost increase for entities that have to use. Thus, we estimate that the previously identified a Critical Cyber revised Reliability Standard will reduce 156 NERC Comments at 7–8; PG&E Comments at Asset. With regards to NV Energy’s the burden associated with the annual 6–7. comments, we note that the proposed review, as well as provide a consistent 157 The VSL for Requirement R1, for example, revisions to the Version 4 CIP Reliability would read: ‘‘The Responsible Entity did not and clear set of criteria for all entities to develop a complete list of its identified Critical Standards address the manner for the follow. Assets even if such list is null.’’ (emphasis added). identification of Critical Assets, and do 158 5 CFR 1320.11. 122. The estimated changes to burden 159 44 U.S.C. 3501–3520 (2006). 161 Hydro-Que´bec Comments at 6; NV Energy as contained in the Final Rule in RM11– 160 44 U.S.C. 3502(3)(A)(i), 44 U.S.C. 3507(a)(3). Comments at 6–7. 11 follow.

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Average Number of Average Number of Effect of Final Rule in Annual Burden Hrs. FERC–725B Number of Annual upon Data Collection 162 Burden Hours Per RM11–11, on Total Respondents Responses 163 Implementation of (per Version 4) Per Respondent Response Annual Hours RM11–11

(1) (2) (3) (1) × (2) × (3)

Entities that (previously 345 [no change] ...... 1 ...... 1,880 [reduction of 40 reduction of 13,800 648,600 and now) will identify hours from 1,920 to hours. at least one Critical 1,880 hours] hours. Cyber Asset [category a]. Entities that (previously 1,144 [reduction of 12 1 ...... 120 [no change] ...... reduction of 1,440 137,280 and now) will not entities from 1,156 hours [for the 12 identify any Critical to 1,144]. entities]. Cyber Assets [category b]. Entities that will newly increase of 12 [for- 1 ...... 3,840 165 ...... increase of 46,080 ..... 46,080 identify a Critical merly 0]. Asset/Critical Cyber Asset due to the requirements in RM11– 11 164 [category c]. Net Total ...... 1,501 ...... +30,840 ...... 831,960

The revisions to the cost estimates Æ A reduction of 120 hours and an Necessity of the Information: This based on requirements of this Final Rule increase of 3,840 hours (for a net Final Rule approves the requested are: increase of 3,720 annual hours), giving modifications to Reliability Standards • Each entity that has identified 12 entities × 3,720 hrs. @ $96/hour = pertaining to critical infrastructure Critical Cyber Assets has a reduction of $4,285,440. protection. The Reliability Standards 40 hours (345 entities × 40 hrs. @$96/ Æ Storage costs = 12 entities @ help ensure the reliable operation of the hour = $1,324,800 reduction). $15.25/entity = $183. Bulk-Power System by providing a • 12 Entities that formerly had not Total Net Annual Cost for the FERC– cybersecurity framework for the identified Critical Cyber Assets, but now 725B requirements contained in the identification and protection of Critical will have them, has Final Rule in RM11–11= $2,960,823 Assets and associated Critical Cyber ¥ ($4,285,440 + $183 $1,324,800). Assets. As discussed above, the 162 The NERC Compliance Registry as of The estimated hourly rate of $96 is Commission approves NERC’s proposed September 28, 2010 indicated that 2,079 entities the average cost of legal services ($230 Version 4 CIP Standards pursuant to were registered for NERC’s compliance program. Of per hour), technical employees ($40 per these, 2,057 were identified as being U.S. entities. section 215(d)(2) of the FPA because Staff concluded that of the 2,057 U.S. entities, hour) and administrative support ($18 they represent an improvement to the approximately 1,501 were registered for at least one per hour), based on hourly rates from previously-effective CIP Reliability CIP related function. According to an April 7, 2009 the Bureau of Labor Statistics (BLS) and Standards. memo to industry, NERC noted that only 31 percent the 2009 Billing Rates and Practices of entities responding to an earlier survey reported Internal Review: The Commission has 166 that they had at least one Critical Asset, and only Survey Report. The $15.25 per entity reviewed the proposed Reliability 23 percent reported having a Critical Cyber Asset. for storage costs is an estimate based on Standards and made a determination Staff applied the 23 percent (an estimate unchanged the average costs to service and store 1 that its action is necessary to implement for Version 4 standards) to the 1,501 figure to GB of data to demonstrate compliance estimate the number of entities that identified section 215 of the FPA. 167 Critical Cyber Assets under Version 3 CIP with the CIP Standards. 123. Interested persons may obtain Standards. Title: Mandatory Reliability information on the reporting 163 Calculations for figures prior to applying Standards, Version 4 Critical requirements by contacting the reductions: Infrastructure Protection Standards. Respondent category b: following: Federal Energy Regulatory Action: Revised Collection FERC– Commission, 888 First Street NE., 3 employees × (working 50 percent) × (40 hrs/ 725B. week) × (2 weeks) = 120 hours. Washington, DC 20426 [Attention: Ellen OMB Control No.: 1902–0248. Respondent category c: Respondents: Businesses or other for- Brown, Office of the Executive Director, 20 employees × (working 50 percent) × (40 hrs/ email: [email protected], phone: week) × (8 weeks) = 3200 hours (working 20 profit institutions; not-for-profit × institutions. (202) 502–8663, fax: (202) 273–0873]. percent) (3200 hrs) = 640 hours. 124. Comments concerning this Total = 3840. Frequency of Responses: On Respondent category a: Occasion. information collection can be sent to the 50 percent of 3840 hours (category d) = 1920. Office of Management and Budget, 164 We estimate 12 (or 1%) of the existing entities 166 Bureau of Labor Statistics figures were Office of Information and Regulatory that formerly had no identified Critical Cyber obtained from http://www.bls.gov/oes/current/ Affairs, Washington, DC 20503 Assets will have them under the Reliability naics2_22.htm, and 2009 Billing Rates figure were [Attention: Desk Officer for the Federal Standards. This Final Rule does not affect the obtained from http:// Energy Regulatory Commission, phone: burden for the 6 new U.S. Entities that were www.marylandlawyerblog.com/2009/07/ estimated to newly register or otherwise become average_hourly_rate_for_lawyer.html. Legal services (202) 395–4718, fax: (202) 395–7285]. subject to the CIP Standards each year in FERC– were based on the national average billing rate 725B, and therefore are not included in this chart. (contracting out) from the above report and BLS IV. Environmental Analysis 165 This estimated burden estimate applies only to hourly earnings (in-house personnel). It is assumed 125. The Commission is required to the first three-year audit cycle. In subsequent audit that 25 percent of respondents have in-house legal cycles these entities will move into category a, or personnel. prepare an Environmental Assessment be removed from the burden as an entity that no 167 Based on the aggregate cost of an advanced or an Environmental Impact Statement longer is registered for a CIP related function. data protection server. for any action that may have a

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significant adverse effect on the human entity). However, the Commission has to 5 p.m. Eastern time) at 888 First environment.168 The Commission has determined that 12 small entities is not Street NE., Room 2A, Washington, DC categorically excluded certain actions a ‘‘substantial number’’ in terms of the 20426. from this requirement as not having a total number of regulated small entities 131. From FERC’s Home Page on the significant effect on the human under this Final Rule. The Final Rule Internet, this information is available on environment. Included in the exclusion applies to the all NERC Registered eLibrary. The full text of this document are rules that are clarifying, corrective, Entities listed in the ‘‘Applicability’’ is available on eLibrary in PDF and or procedural or that do not section of Reliability Standard CIP–002– Microsoft Word format for viewing, substantially change the effect of the 4.173 This list includes reliability printing, and/or downloading. To access regulations being amended.169 The coordinators, balancing authorities, this document in eLibrary, type the actions taken here fall within this interchange authorities, transmission docket number excluding the last three categorical exclusion in the service providers, transmission owners, digits of this document in the docket Commission’s regulations. transmission operators, generator number field. owners, generator operators, load V. Regulatory Flexibility Act 132. User assistance is available for serving entities and regional entities. eLibrary and the FERC’s Web site during 126. The Regulatory Flexibility Act of Using the NERC registry, the normal business hours from FERC 1980 (RFA) 170 generally requires a Commission found that the number of Online Support at 202–502–6652 (toll description and analysis of final rules small entities applicable to this rule is free at 1–866–208–3676) or email at that will have significant economic 306. The Commission does not consider [email protected], or the impact on a substantial number of small 12 out of 306 (3.9%) to be a substantial Public Reference Room at (202) 502– entities. The RFA mandates number. 8371, TTY (202) 502–8659. Email the consideration of regulatory alternatives 128. In the September 15, 2011 NOPR, Public Reference Room at that accomplish the stated objectives of the Commission requested comment on [email protected]. a proposed rule and that minimize any the potential implementation cost and significant economic impact on a subsequent cost increases that could be VII. Effective Date and Congressional substantial number of small entities. experienced by such small entities. No Notification The Small Business Administration’s comments were received. 133. These regulations are effective (SBA) Office of Size Standards develops 129. Based on the foregoing, the June 25, 2012. The Commission has the numerical definition of a small Commission certifies that the modified determined, with the concurrence of the business.171 The SBA has established a Reliability Standards will not have a Administrator of the Office of size standard for electric utilities, significant impact on a substantial Information and Regulatory Affairs of stating that a firm is small if, including number of small entities. Accordingly, OMB, that this rule is not a ‘‘major rule’’ its affiliates, it is primarily engaged in no regulatory flexibility analysis is as defined in section 351 of the Small the transmission, generation and/or required. Business Regulatory Enforcement distribution of electric energy for sale Fairness Act of 1996. and its total electric output for the VI. Document Availability preceding twelve months did not exceed 130. In addition to publishing the full List of Subjects in 18 CFR Part 40 four million megawatt hours.172 text of this document in the Federal Electric power, Electric utilities, 127. This Final Rule may have a Register, the Commission provides all Reporting and recordkeeping significant economic impact on some interested persons an opportunity to requirements. small entities. The Commission view and/or print the contents of this By the Commission. estimates that 12 of the total small document via the Internet through Nathaniel J. Davis, Sr., entities applicable to this final rule will FERC’s Home Page (http://www.ferc.gov) Deputy Secretary. experience a total one-time impact of and in FERC’s Public Reference Room $4,285,623 (an average of $357,135 per during normal business hours (8:30 a.m. Appendix

COMMENTERS

Abbreviation Commenter

AMP ...... American Municipal Power, Inc. Constellation ...... Constellation Energy Group, Inc. (intervened w/o comment). Dominion ...... Dominion Resources Services, Inc. Exelon ...... Exelon Corporation. FirstEnergy ...... FirstEnergy Service Company. G&T Cooperatives ...... Associated Electric Cooperative, Inc.; Basin Electric Power Cooperative; and Tri-State Generation and Trans- mission Association, Inc. Hydro-Que´bec ...... Hydro-Que´bec TransE´ nergie. ISO/RTO Council ...... The ISO/RTO Council. ITC ...... International Transmission Company d/b/a ITCTransmission, Michigan Electric Company, LLC, ITC Midwest LLC and ITC Great Plains LLC. KCP&L ...... Kansas City Power & Light Company and KCP&L Greater Missouri Operations Company. MISO ...... Midwest Independent Transmission System Operator, Inc. NERC ...... North American Electric Reliability Corporation. PG&E ...... Pacific Gas and Electric Company. NV Energy ...... Sierra Pacific Power Company and Nevada Power Company.

168 Regulations Implementing the National 169 18 CFR 380.4(a)(2)(ii). 172 13 CFR 121.201, Sector 22, Utilities & n.1. Environmental Policy Act, 52 FR 47897 (Dec. 17, 170 5 U.S.C. 601–612. 173 See Reliability Standard CIP–002–4, http:// 1987), Order No. 486, FERC Stats. & Regs., 171 13 CFR 121.101. www.nerc.com/files/CIP-002-4.pdf. Regulations Preambles 1986–1990 ¶ 30,783 (1987).

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COMMENTERS—Continued

Abbreviation Commenter

SPP RE ...... Southwest Power Pool Regional Entity. Tallahassee ...... City of Tallahassee, Florida. Trade Associations ...... American Public Power Association; Electricity Consumers Resource Council; Edison Electric Institute; Electric Power Supply Association; National Rural Electric Cooperative Association; and Transmission Access Policy Study Group.

[FR Doc. 2012–9893 Filed 4–24–12; 8:45 am] property or services. Section 3402(t) of Drafting Information BILLING CODE 6717–01–P the Code was added by section 511 of The principal author of these final the Tax Increase Prevention and regulations is A. G. Kelley, Office of the Reconciliation Act of 2005, Public Law Division Counsel/Associate Chief DEPARTMENT OF THE TREASURY 109–222 (TIPRA), 120 Stat. 345, which Counsel (Tax Exempt and Government was enacted on May 17, 2006. The Entities). However, other personnel Internal Revenue Service Treasury Department and the IRS issued from the IRS and the Treasury final regulations under sections 3402(t), Department participated in their 26 CFR Part 31 3406, 6011, 6051, 6071, and 6302 of the development. [TD 9586] Code that were published in the Federal Register on May 9, 2011 (TD 9524, 76 List of Subjects in 26 CFR Part 31 RIN 1545–BK83 FR 26583, 2011–23 IRB 843) (the May Employment taxes, Fishing vessels, 2011 final regulations). Those Gambling, Income taxes, Penalties, Removal of Regulations Requiring 3% regulations were issued to implement Withholding by Government Entities Pensions, Railroad retirement, Reporting the requirements of section 3402(t) and and recordkeeping requirements, Social AGENCY: Internal Revenue Service (IRS), conform existing regulations to section Security, Unemployment compensation. Treasury. 3402(t). Adoption of Amendments to the ACTION: Final regulations. Section 102 of the 3% Withholding Repeal and Job Creation Act (Pub. L. Regulations SUMMARY: This document provides a 112–56, 125 Stat. 711), which was Accordingly, 26 CFR part 31 is Treasury decision that removes the final enacted on November 21, 2011, repealed amended as follows: regulations contained in TD 9524 section 3402(t) of the Code. Section relating to withholding by government 3402(t) was repealed before it became PART 31—EMPLOYMENT TAXES AND entities on payments to persons effective. COLLECTION OF INCOME TAX AT providing property or services, and This document, therefore, removes SOURCE makes conforming amendments to the regulatory provisions issued under ■ Paragraph 1. The authority citation regulations to reflect the removal of section 3402(t) and related sections, and these regulations. The final regulations for part 31 continues to read in part as makes conforming amendments to follows: are removed because the 3% certain regulations to reflect the removal Withholding Repeal and Job Creation of the section 3402(t) regulations. Authority: 26 U.S.C. 7805 * * * Act repealed the provision of the At the same time as the issuance of §§ 31.3402 and 31.3406 [Amended] Internal Revenue Code underlying the the May 2011 final regulations, the final regulations before the provision ■ Par. 2. The following sections and Treasury Department and the IRS also paragraphs are removed: became effective. The guidance affects issued proposed regulations under government entities that would have ■ 1. Remove section 31.3402(t)–0. section 3402(t), published in the ■ 2. Remove section 31.3402(t)–1. been required to withhold and report Federal Register on May 9, 2011 (REG– tax from payments to persons providing ■ 3. Remove section 31.3402(t)–2. 151687–10, 76 FR 26678, 2011–23 IRB ■ 4. Remove section 31.3402(t)–3. property or services and also affects the 867). A related document withdraws persons receiving payments for property ■ 5. Remove section 31.3402(t)–4. those proposed regulations in light of ■ 6. Remove section 31.3402(t)–5. or services from these government the repeal of section 3402(t). See REG– entities. ■ 7. Remove section 31.3402(t)–6. 151687–10. ■ 8. Remove section 31.3402(t)–7. DATES: Effective Date: These regulations Special Analyses ■ 9. Remove paragraphs (h) and (i) of are effective on April 25, 2012. section 31.3406(g)–2. Applicability Date: For dates of It has been determined that this ■ Par. 3. Section 31.6011(a)–4 is applicability, see §§ 31.6011(a)–4(d) and Treasury decision is not a significant amended by: 31.6302–1(n). regulatory action as defined in ■ 1. Revising paragraphs (b)(4), (b)(5), FOR FURTHER INFORMATION CONTACT: A. Executive Order 12866, as and (d). G. Kelley, (202) 622–6040 (not a toll-free supplemented by Executive Order ■ 2. Removing paragraph (b)(6). number). 13563. Therefore, a regulatory The revisions read as follows: SUPPLEMENTARY INFORMATION: assessment is not required. It also has been determined that section 553(b) of § 31.6011(a)–4 Returns of income tax Background the Administrative Procedure Act (5 withheld. This document contains amendments U.S.C. chapter 5) does not apply to this * * * * * to 26 CFR part 31 under section 3402(t) regulation, and because no notice of (b) * * * of the Internal Revenue Code (Code), proposed rule making is required for (4) Pensions, annuities, IRAs, and relating to three percent withholding by this rule, the Regulatory Flexibility Act certain other deferred income subject to government entities on payments for (5 U.S.C. chapter 6) does not apply. withholding under section 3405; and

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(5) Reportable payments subject to (iii) * * * (e) Effective/applicability date. backup withholding under section 3406. (C) Certain annuities described in Section 31.6302–4(d) applies to deposits * * * * * section 3402(o)(1)(B); and and payments made after December 31, (d) Effective/applicability dates. * * * * * 2010. Paragraphs (a)(1) and (a)(4)(i) of this (n) Effective/applicability dates. Steven T. Miller, section apply to taxable years beginning Sections 31.6302–1 through 31.6302–3 Deputy Commissioner for Services and on or after December 30, 2008. apply with respect to the deposit of Enforcement. Paragraph (a)(4)(ii) of this section employment taxes attributable to Approved: April 17, 2012. applies to taxable years beginning on or payments made after December 31, Emily S. McMahon, after January 1, 2010. The rules of 1992. To the extent that the provisions paragraph (a)(1) of this section that of §§ 31.6302–1 through 31.6302–3 are Acting Assistant Secretary of the Treasury (Tax Policy). apply to taxable years beginning before inconsistent with the provisions of December 30, 2008, are contained in §§ 31.6302(c)–1 and 31.6302(c)–2, a [FR Doc. 2012–9887 Filed 4–24–12; 8:45 am] § 31.6011(a)–4 as in effect prior to taxpayer will be considered to be in BILLING CODE 4830–01–P December 30, 2008. The rules of compliance with §§ 31.6302–1 through paragraph (a)(4)(ii) of this section that 31.6302–3 if the taxpayer makes timely apply to taxable years beginning before deposits during 1993 in accordance DEPARTMENT OF DEFENSE January 1, 2010, but on or after with §§ 31.6302(c)–1 and 31.6302(c)–2. December 30, 2008, are contained in Paragraphs (b)(4), (c)(5), (c)(6), (d) Department of the Navy § 31.6011(a)–4T as in effect on or after Example 6, (e)(2), (f)(4)(i), (f)(4)(iii), December 30, 2008. The rules of (f)(5) Example 3, and (g)(1) of this 32 CFR Part 706 paragraph (a)(4) of this section that section apply to taxable years beginning Certifications and Exemptions Under apply to taxable years beginning before on or after December 30, 2008. the International Regulations for December 30, 2008, are contained in Paragraph (f)(4)(ii) of this section Preventing Collisions at Sea, 1972 § 31.6011(a)–4T as in effect prior to applies to taxable years beginning on or December 30, 2008. after January 1, 2010. The rules of AGENCY: Department of the Navy, DoD. paragraphs (e)(2) and (g)(1) of this ACTION: Final rule. § 31.6051–5 [Removed] section that apply to taxable years ■ Par. 4. Section 31.6051–5 is removed. beginning before December 30, 2008, are SUMMARY: The Department of the Navy ■ Par. 5. Section 31.6071(a)–1 is contained in § 31.6302–1 as in effect (DoN) is amending its certifications and amended by: prior to December 30, 2008. The rules of exemptions under the International ■ 1. Revising paragraph (a)(3)(i). paragraphs (b)(4), (c)(5), (c)(6), (d) Regulations for Preventing Collisions at ■ 2. Removing paragraph (g). Example 6, (f)(4)(i), (f)(4)(iii), and (f)(5) Sea, 1972 (72 COLREGS), to reflect that The revision reads as follows: Example 3 of this section that apply to the Deputy Assistant Judge Advocate taxable years beginning on or after General (DAJAG) (Admiralty and § 31.6071(a)–1 Time for filing returns and Maritime Law) has determined that USS other documents. January 1, 2006, and before December 30, 2008, are contained in § 31.6302–1T ASHLAND (LSD 48) is a vessel of the (a) * * * Navy which, due to its special (3) Information returns–(i) General as in effect prior to December 30, 2008. The rules of paragraphs (b)(4) and (f)(4) construction and purpose, cannot fully rule. Each information return in respect comply with certain provisions of the 72 of wages as defined in Federal Insurance of this section that apply to taxable years beginning before January 1, 2006, COLREGS without interfering with its Contributions Act or of income tax special function as a naval ship. The withheld from wages as required under are contained in § 31.6302–1 as in effect prior to January 1, 2006. The rules of intended effect of this rule is to warn § 31.6051–2 must be filed on or before mariners in waters where 72 COLREGS the last day of February (March 31 if paragraph (g) of this section eliminating use of Federal tax deposit coupons apply. filed electronically) of the year DATES: This rule is effective April 25, following the calendar year for which it apply to deposits and payments made after December 31, 2010. 2012 and is applicable beginning April is made, except that, if a tax return 16, 2012. under § 31.6011(a)–5(a) is filed as a final ■ Par. 7. Section 31.6302–4 is amended FOR FURTHER INFORMATION CONTACT: return for a period ending prior to by: Lieutenant Jaewon Choi, JAGC, U.S. December 31, the information return ■ 1. Revising paragraphs (b)(4) and Navy, Admiralty Attorney, (Admiralty must be filed on or before the last day (b)(5). and Maritime Law), Office of the Judge of the second calendar month following ■ 2. Removing paragraph (b)(6). Advocate General, Department of the the period for which the tax return is ■ 3. Revising paragraph (e). Navy, 1322 Patterson Ave. SE., Suite filed. The revisions read as follows: 3000, Washington Navy Yard, DC * * * * * § 31.6302–4 Deposit rules for withheld 20374–5066, telephone 202–685–5040. ■ income taxes attributable to nonpayroll Par. 6. Section 31.6302–1 is amended SUPPLEMENTARY INFORMATION: Pursuant payments. by: to the authority granted in 33 U.S.C. ■ 1. Revising paragraph (e)(1)(iii)(C). * * * * * ■ 1605, the DoN amends 32 CFR part 706. 2. Removing paragraph (e)(1)(iii)(E). (b) * * * This amendment provides notice that ■ 3. Revising paragraph (n). (4) Annuities withheld under section the DAJAG (Admiralty and Maritime The revisions read as follows: 3405, relating to withholding on Law), under authority delegated by the § 31.6302–1 Deposit rules for taxes under pensions, annuities, IRAs, and certain Secretary of the Navy, has certified that the Federal Insurance Contributions Act other deferred income; and USS ASHLAND (LSD 48) is a vessel of (FICA) and withheld income taxes. (5) Amounts withheld under section the Navy which, due to its special * * * * * 3406, relating to backup withholding construction and purpose, cannot fully (e) * * * with respect to reportable payments. comply with the following specific (1) * * * * * * * * provisions of 72 COLREGS without

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interfering with its special function as a placement of lights on this vessel in a Authority: 33 U.S.C. 1605. naval ship: Annex I, paragraph 3(a), manner differently from that prescribed pertaining to the horizontal distance herein will adversely affect the vessel’s ■ 2. Section 706.2 is amended as between the forward and after masthead ability to perform its military functions. follows: lights; and Annex I, paragraph 2(k) as List of Subjects in 32 CFR Part 706 ■ A. In Table Three by adding, in alpha described in Rule 30 (a)(i), pertaining to numerical order, by vessel number, an Marine safety, Navigation (water), and the vertical separation between anchor entry for USS ASHLAND (LSD 48); and lights. The DAJAG (Admiralty and Vessels. ■ B. In Table Five by revising the entry Maritime Law) has also certified that the For the reasons set forth in the lights involved are located in closest preamble, amend part 706 of title 32 of for USS ASHLAND (LSD 48). possible compliance with the applicable the CFR as follows: § 706.2 Certifications of the Secretary of 72 COLREGS requirements. PART 706—CERTIFICATIONS AND the Navy under Executive Order 11964 and Moreover, it has been determined, in EXEMPTIONS UNDER THE 33 U.S.C. 1605. accordance with 32 CFR parts 296 and INTERNATIONAL REGULATIONS FOR * * * * * 701, that publication of this amendment PREVENTING COLLISIONS AT SEA, for public comment prior to adoption is 1972 impracticable, unnecessary, and contrary to public interest since it is ■ 1. The authority citation for part 706 based on technical findings that the continues to read: TABLE THREE

Anchor lights rela- Side lights dis- Stern light, dis- Forward anchor tion-ship of Masthead lights Side lights arc of Stern light arc of tance inboard of tance forward of light, height aft light to Vessel Number arc of visibility; visibility; rule visibility; rule ship’s sides in stern in meters; above hull in me- forward light rule 21(a) 21(b) 21(c) meters 3(b) Rule 21(c) ters; 2(k) Annex in meters Annex 1 1 2(k) Annex 1

******* USS ASHLAND ... LSD 48 ...... 2.60 below.

*******

* * * * *

TABLE FIVE

After masthead light less than Masthead lights not Forward masthead light 1/2 ship’s Percentage Vessel Number over all other lights and not in forward quarter of length aft horizontal obstructions. Annex ship. Annex I, sec. 3(a) of forward separation I,sec. 2(f) masthead attained light. Annex I, sec. 3(a)

******* USS ASHLAND ...... LSD 48 ...... X 63.6

*******

Approved: April 16, 2012. ENVIRONMENTAL PROTECTION SUMMARY: EPA is promulgating C.J. Spain, AGENCY significant new use rules (SNURs) under Deputy Assistant Judge Advocate, General the Toxic Substances Control Act (Admiralty and Maritime Law), Acting. 40 CFR Parts 9 and 721 (TSCA) for 23 chemical substances Dated: April 18, 2012. which were the subject of [EPA–HQ–OPPT–2012–0182; FRL–9345–4] premanufacture notices (PMNs). Nine of J.M. Beal, these chemical substances are subject to Lieutenant Commander, Judge Advocate RIN 2070–AB27 TSCA consent orders issued by EPA. General’s Corps, U.S. Navy, Federal Register This action requires persons who intend Liaison Officer. Significant New Use Rules on Certain to manufacture, import, or process any [FR Doc. 2012–9928 Filed 4–24–12; 8:45 am] Chemical Substances of these 23 chemical substances for an BILLING CODE 3810–FF–P AGENCY: Environmental Protection activity that is designated as a Agency (EPA). significant new use by this rule to notify EPA at least 90 days before commencing ACTION: Direct final rule. that activity. The required notification

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will provide EPA with the opportunity the docket and made available on the process, or use the chemical substances to evaluate the intended use and, if Internet. If you submit an electronic contained in this rule. Potentially necessary, to prohibit or limit that comment, EPA recommends that you affected entities may include, but are activity before it occurs. include your name and other contact not limited to: • DATES: This rule is effective on June 25, information in the body of your Manufacturers, importers, or 2012. For purposes of judicial review, comment and with any disk or CD–ROM processors of one or more subject this rule shall be promulgated at 1 p.m. you submit. If EPA cannot read your chemical substances (NAICS codes 325 (e.s.t.) on May 9, 2012. comment due to technical difficulties and 324110), e.g., chemical Written adverse or critical comments, and cannot contact you for clarification, manufacturing and petroleum refineries. or notice of intent to submit adverse or EPA may not be able to consider your This listing is not intended to be critical comments, on one or more of comment. Electronic files should avoid exhaustive, but rather provides a guide these SNURs must be received on or the use of special characters, any form for readers regarding entities likely to be before May 25, 2012 (see Unit VI. of the of encryption, and be free of any defects affected by this action. Other types of entities not listed in this unit could also SUPPLEMENTARY INFORMATION). or viruses. For additional information on related Docket: All documents in the docket be affected. The North American reporting requirement dates, see Units are listed in the docket index available Industrial Classification System (NAICS) codes have been provided to I.A., VI., and VII. of the SUPPLEMENTARY at http://www.regulations.gov. Although assist you and others in determining INFORMATION. listed in the index, some information is not publicly available, e.g., CBI or other whether this action might apply to ADDRESSES: Submit your comments, information whose disclosure is certain entities. To determine whether identified by docket identification (ID) restricted by statute. Certain other you or your business may be affected by number EPA–HQ–OPPT–2012–0182, by material, such as copyrighted material, this action, you should carefully one of the following methods: • will be publicly available only in hard examine the applicability provisions in Federal eRulemaking Portal: http:// copy. Publicly available docket § 721.5. If you have any questions www.regulations.gov. Follow the online materials are available electronically at regarding the applicability of this action instructions for submitting comments. • http://www.regulations.gov, or, if only to a particular entity, consult the Mail: Document Control Office available in hard copy, at the OPPT technical person listed under FOR (7407M), Office of Pollution Prevention Docket. The OPPT Docket is located in FURTHER INFORMATION CONTACT. and Toxics (OPPT), Environmental the EPA Docket Center (EPA/DC) at Rm. This action may also affect certain Protection Agency, 1200 Pennsylvania 3334, EPA West Bldg., 1301 entities through pre-existing import Ave. NW., Washington, DC 20460–0001. certification and export notification • Constitution Ave. NW., Washington, Hand Delivery: OPPT Document DC. The EPA/DC Public Reading Room rules under TSCA. Chemical importers Control Office (DCO), EPA East, Rm. hours of operation are 8:30 a.m. to 4:30 are subject to the TSCA section 13 (15 6428, 1201 Constitution Ave. NW., p.m., Monday through Friday, excluding U.S.C. 2612) import certification Washington, DC. Attention: Docket ID legal holidays. The telephone number of requirements promulgated at 19 CFR Number EPA–HQ–OPPT–2012–0182. the EPA/DC Public Reading Room is 12.118 through 12.127 and 19 CFR The DCO is open from 8 a.m. to 4 p.m., (202) 566–1744, and the telephone 127.28. Chemical importers must certify Monday through Friday, excluding legal number for the OPPT Docket is (202) that the shipment of the chemical holidays. The telephone number for the 566–0280. Docket visitors are required substance complies with all applicable DCO is (202) 564–8930. Such deliveries to show photographic identification, rules and orders under TSCA. Importers are only accepted during the DCO’s pass through a metal detector, and sign of chemicals subject to these SNURs normal hours of operation, and special the EPA visitor log. All visitor bags are must certify their compliance with the arrangements should be made for processed through an X-ray machine SNUR requirements. The EPA policy in deliveries of boxed information. and subject to search. Visitors will be support of import certification appears Instructions: Direct your comments to provided an EPA/DC badge that must be at 40 CFR part 707, subpart B. In docket ID number EPA–HQ–OPPT– visible at all times in the building and addition, any persons who export or 2012–0182. EPA’s policy is that all returned upon departure. intend to export a chemical substance comments received will be included in FOR FURTHER INFORMATION CONTACT: For that is the subject of this rule are subject the docket without change and may be technical information contact: Kenneth to the export notification provisions of made available online at http:// Moss, Chemical Control Division TSCA section 12(b) (15 U.S.C. 2611(b)) www.regulations.gov, including any (7405M), Office of Pollution Prevention (see § 721.20), and must comply with personal information provided, unless and Toxics, Environmental Protection the export notification requirements in the comment includes information Agency, 1200 Pennsylvania Ave. NW., 40 CFR part 707, subpart D. claimed to be Confidential Business Washington, DC 20460–0001; telephone Information (CBI) or other information B. What should I consider as I prepare number: (202) 564–9232; email address: whose disclosure is restricted by statute. my comments for EPA? [email protected]. Do not submit information that you For general information contact: The 1. Submitting CBI. Do not submit this consider to be CBI or otherwise TSCA-Hotline, ABVI-Goodwill, 422 information to EPA through protected through regulations.gov or South Clinton Ave., Rochester, NY regulations.gov or email. Clearly mark email. The regulations.gov Web site is 14620; telephone number: (202) 554– the part or all of the information that an ‘‘anonymous access’’ system, which 1404; email address: TSCA- you claim to be CBI. For CBI means EPA will not know your identity [email protected]. information in a disk or CD–ROM that or contact information unless you you mail to EPA, mark the outside of the provide it in the body of your comment. SUPPLEMENTARY INFORMATION: disk or CD–ROM as CBI and then If you send an email comment directly I. General Information identify electronically within the disk or to EPA without going through CD–ROM the specific information that regulations.gov, your email address will A. Does this action apply to me? is claimed as CBI. In addition to one be automatically captured and included You may be potentially affected by complete version of the comment that as part of the comment that is placed in this action if you manufacture, import, includes information claimed as CBI, a

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copy of the comment that does not that a use of a chemical substance is a statute authorized EPA to consider any contain the information claimed as CBI ‘‘significant new use.’’ EPA must make other relevant factors. must be submitted for inclusion in the this determination by rule after To determine what would constitute a public docket. Information so marked considering all relevant factors, significant new use for the 23 chemical will not be disclosed except in including the four bulleted TSCA substances that are the subject of these accordance with procedures set forth in section 5(a)(2) factors listed in Unit III. SNURs, EPA considered relevant 40 CFR part 2. Once EPA determines that a use of a information about the toxicity of the 2. Tips for preparing your comments. chemical substance is a significant new chemical substances, likely human When submitting comments, remember use, TSCA section 5(a)(1)(B) requires exposures and environmental releases to: persons to submit a significant new use associated with possible uses, and the i. Identify the document by docket ID notice (SNUN) to EPA at least 90 days four bulleted TSCA section 5(a)(2) number and other identifying before they manufacture, import, or factors listed in this unit. information (subject heading, Federal process the chemical substance for that IV. Substances Subject to This Rule Register date and page number). use. Persons who must report are ii. Follow directions. The Agency may described in § 721.5. EPA is establishing significant new ask you to respond to specific questions use and recordkeeping requirements for or organize comments by referencing a C. Applicability of General Provisions 23 chemical substances in 40 CFR part Code of Federal Regulations (CFR) part General provisions for SNURs appear 721, subpart E. In this unit, EPA or section number. in 40 CFR part 721, subpart A. These provides the following information for iii. Explain why you agree or disagree; provisions describe persons subject to each chemical substance: suggest alternatives and substitute the rule, recordkeeping requirements, • PMN number. language for your requested changes. exemptions to reporting requirements, • Chemical name (generic name, if iv. Describe any assumptions and and applicability of the rule to uses the specific name is claimed as CBI). • provide any technical information and/ occurring before the effective date of the Chemical Abstracts Service (CAS) or data that you used. rule. Provisions relating to user fees number (if assigned for non-confidential v. If you estimate potential costs or chemical identities). appear at 40 CFR part 700. According to • burdens, explain how you arrived at § 721.1(c), persons subject to these Basis for the TSCA section 5(e) your estimate in sufficient detail to SNURs must comply with the same consent order or, for non-section 5(e) allow for it to be reproduced. notice requirements and EPA regulatory SNURs, the basis for the SNUR (i.e., vi. Provide specific examples to procedures as submitters of PMNs under SNURs without TSCA section 5(e) illustrate your concerns and suggest TSCA section 5(a)(1)(A). In particular, consent orders). alternatives. • Tests recommended by EPA to vii. Explain your views as clearly as these requirements include the information submission requirements of provide sufficient information to possible, avoiding the use of profanity evaluate the chemical substance (see or personal threats. TSCA section 5(b) and 5(d)(1), the exemptions authorized by TSCA Unit VIII. for more information). viii. Make sure to submit your • CFR citation assigned in the sections 5(h)(1), 5(h)(2), 5(h)(3), and comments by the comment period regulatory text section of this rule. 5(h)(5), and the regulations at 40 CFR deadline identified. The regulatory text section of this rule part 720. Once EPA receives a SNUN, specifies the activities designated as II. Background EPA may take regulatory action under significant new uses. Certain new uses, TSCA section 5(e), 5(f), 6, or 7 to control A. What action is the agency taking? including production volume limits the activities for which it has received (i.e., limits on manufacture and EPA is promulgating these SNURs the SNUN. If EPA does not take action, importation volume) and other uses using direct final procedures. These EPA is required under TSCA section designated in this rule, may be claimed SNURs will require persons to notify 5(g) to explain in the Federal Register as CBI. Unit IX. discusses a procedure EPA at least 90 days before commencing its reasons for not taking action. the manufacture, import, or processing companies may use to ascertain whether of a chemical substance for any activity III. Significant New Use Determination a proposed use constitutes a significant designated by these SNURs as a Section 5(a)(2) of TSCA states that new use. significant new use. Receipt of such EPA’s determination that a use of a This rule includes nine PMN notices allows EPA to assess risks that chemical substance is a significant new substances (P–07–537, P–07–706, P–10– may be presented by the intended uses use must be made after consideration of 135, P–10–358, P–11–264, P–11–561, and, if appropriate, to regulate the all relevant factors, including: P–11–567, P–11–568, and P–11–569) proposed use before it occurs. • The projected volume of that are subject to ‘‘risk-based’’ consent Additional rationale and background to manufacturing and processing of a orders under TSCA section these rules are more fully set out in the chemical substance. 5(e)(1)(A)(ii)(I) where EPA determined preamble to EPA’s first direct final • The extent to which a use changes that activities associated with the PMN SNUR published in the Federal Register the type or form of exposure of human substances may present unreasonable issue of April 24, 1990 (55 FR 17376) beings or the environment to a chemical risk to human health or the (April 24, 1990 SNUR). Consult that substance. environment. Those consent orders preamble for further information on the • The extent to which a use increases require protective measures to limit objectives, rationale, and procedures for the magnitude and duration of exposure exposures or otherwise mitigate the SNURs and on the basis for significant of human beings or the environment to potential unreasonable risk. The so- new use designations, including a chemical substance. called ‘‘5(e) SNURs’’ on these PMN provisions for developing test data. • The reasonably anticipated manner substances are promulgated pursuant to and methods of manufacturing, § 721.160, and are based on and B. What is the agency’s authority for processing, distribution in commerce, consistent with the provisions in the taking this action? and disposal of a chemical substance. underlying consent orders. The 5(e) Section 5(a)(2) of TSCA (15 U.S.C. In addition to these factors SNURs designate as a ‘‘significant new 2604(a)(2)) authorizes EPA to determine enumerated in TSCA section 5(a)(2), the use’’ the absence of the protective

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measures required in the corresponding different from those described in the analysis of test data on structurally consent orders. premanufacture notice for the similar aliphatic amines, EPA predicts Where EPA determined that the PMN substance, including any amendments, toxicity to aquatic organisms may occur substance may present an unreasonable deletions, and additions of activities to at concentrations that exceed 700 parts risk of injury to human health via the premanufacture notice, and (ii) may per billion (ppb). The consent order was inhalation exposure, the underlying be accompanied by changes in exposure issued under TSCA sections 5(e)(1)(A)(i) TSCA section 5(e) consent order usually or release levels that are significant in and 5(e)(1)(A)(ii)(I) based on a finding requires, among other things, that relation to the health or environmental that this substance may present an potentially exposed employees wear concerns identified’’ for the PMN unreasonable risk of injury to human specified respirators unless actual substance. health and the environment. To protect measurements of the workplace air against these risks, the consent order PMN Number P–05–714 show that air-borne concentrations of requires: the PMN substance are below a New Chemical name: Polyether ester acid 1. Use of personal protective Chemical Exposure Limit (NCEL) that is compound with a polyamine amide equipment including impervious gloves established by EPA to provide adequate (generic). (when there is potential dermal protection to human health. In addition CAS number: Not available. exposure) and either a National Institute to the actual NCEL concentration, the Basis for action: The PMN states that for Occupational Safety and Health comprehensive NCELs provisions in the substance will be used as an (NIOSH)-certified respirator with an TSCA section 5(e) consent orders, additive for industrial paints, industrial assigned protection factor (APF) of at which are modeled after Occupational coatings, and architectural coatings. least 5, or compliance with a NCEL of Safety and Health Administration Based on test data on the PMN 70 mg/m3 as an 8-hour time-weighted (OSHA) Permissible Exposure Limits substance, EPA predicts toxicity to average (when there is potential (PELs) provisions, include requirements aquatic organisms may occur if releases inhalation exposure). addressing performance criteria for of the PMN substance to surface water, 2. Establishment and use of a hazard sampling and analytical methods, from uses other than described in the communication program. periodic monitoring, respiratory PMN, exceed the releases expected from 3. Manufacture and use of the PMN protection, and recordkeeping. the use described in the PMN. For the substance only as a site-limited However, no comparable NCEL use described in the PMN, significant intermediate. provisions currently exist in 40 CFR environmental releases are not 4. Submission of certain human part 721, subpart B, for SNURs. expected. Therefore, EPA has not health testing prior to exceeding the Therefore, for these cases, the determined that the proposed confidential production volume limit individual SNURs in 40 CFR part 721, manufacturing, processing, or use of the specified in the consent order. subpart E, will state that persons subject substance may present an unreasonable 5. Disposal of the PMN substance only to the SNUR who wish to pursue NCELs risk. EPA has determined, however, that by incineration or landfill. as an alternative to the § 721.63 any use of the substance other than as 6. No release of the PMN substance respirator requirements may request to described in the PMN may cause into the waters of the United States. do so under § 721.30. EPA expects that significant adverse environmental The SNUR designates as a ‘‘significant persons whose § 721.30 requests to use effects. Based on this information, the new use’’ the absence of these protective the NCELs approach for SNURs are PMN substance meets the concern measures. approved by EPA will be required to criteria at § 721.170(b)(4)(i). comply with NCELs provisions that are Recommended testing: EPA has Recommended testing: EPA has comparable to those contained in the determined that the results of a fish determined that the results of a corresponding TSCA section 5(e) acute toxicity mitigated by humic acid neurotoxicity study in rodents consent order for the same chemical test (Office of Pollution Prevention, (Organisation for Economic Co- substance. Pesticides and Toxic Substances operation and Development (OECD) This rule also includes SNURs on 14 (OPPTS) Test Guideline 850.1085) Test Guideline 424); a fish early-life PMN substances (P–05–714, P–11–128, would help characterize the stage toxicity test (OPPTS Test P–11–338, P–11–481, P–11–594, P–11– environmental effects of the PMN Guideline 850.1085); and a daphnid 654, P–12–22, P–12–23, P–12–24, P–12– substance. chronic toxicity test (OPPTS Test 25, P–12–26, P–12–33, P–12–51, and CFR citation: 40 CFR 721.10410. Guideline 850.1300) would help P–12–52) that are not subject to consent characterize the human health and orders under TSCA section 5(e). In these PMN Number P–07–537 environmental effects of the PMN cases, for a variety of reasons, EPA did Chemical name: Alkanenitrile, substance. The PMN submitter has not find that the use scenario described bis(cyanoalkyl)amino (generic). agreed not to exceed the confidential in the PMN triggered the determinations CAS number: Not available. production volume limit specified in set forth under TSCA section 5(e). Effective date of TSCA section 5(e) the consent order without performing However, EPA does believe that certain consent order: June 19, 2009. the neurotoxicity test. The consent order changes from the use scenario described Basis for TSCA section 5(e) consent does not require the submission of the in the PMN could result in increased order: The PMN states that the generic fish and daphnid testing at any exposures or releases, thereby (non-confidential) use of the PMN specified time or production volume. constituting a ‘‘significant new use.’’ substance will be as a chemical However, the order’s restrictions on These so-called ‘‘non-5(e) SNURs’’ are intermediate. Based on test data on the manufacture, import, processing, promulgated pursuant to § 721.170. EPA PMN substance, EPA identified distribution in commerce, use, and has determined that every activity concerns for neurotoxicity to workers disposal of the PMN will remain in designated as a ‘‘significant new use’’ in from dermal and inhalation exposures. effect until the consent order is all non-5(e) SNURs issued under The NCEL is 70 microgram/cubic meter modified or revoked by EPA based on § 721.170 satisfies the two requirements (mg/m3) as an 8-hour time-weighted submission of that or other relevant stipulated in § 721.170(c)(2), i.e., these average. In addition, based on ecological information. significant new use activities, ‘‘(i) are structure-activity relationship (EcoSAR) CFR citation: 40 CFR 721.10411.

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PMN Number P–07–706 is modified or revoked by EPA based on percent. Based on test data on the PMN Chemical name: Phosphonic acid submission of that or other relevant substance, EPA identified concerns for ester (generic). information. systemic toxicity, neurotoxicity, dermal CAS number: Not available. CFR citation: 40 CFR 721.10412. sensitization, acute toxicity and Effective date of TSCA section 5(e) PMN Number P–10–135 immunotoxicity from dermal exposure. consent order: April 8, 2009. The consent order was issued under Basis for TSCA section 5(e) consent Chemical name: Fluorinated dialkyl TSCA sections 5(e)(1)(A)(i) and order: The PMN states that the generic ketone (generic). 5(e)(1)(A)(ii)(I) based on a finding that CAS number: Not available. (non-confidential) use of the substance this substance may present an Effective date of TSCA section 5(e) will be as a chemical intermediate. unreasonable risk of injury to human consent order: October 21, 2011. health. To protect against these risks, Based on test data on the PMN Basis for TSCA section 5(e) consent substance and an analogous chemical, the consent order requires: order: The PMN states that the generic 1. Use of personal protective EPA identified concerns for (non-confidential) use of the substance oncogenicity, mutagenicity, equipment including dermal protection will be as a heat transfer fluid. Based on (when there is potential dermal reproductive/developmental toxicity, test data on the PMN substance and skin irritation, and sensitization to exposure). analogs, EPA identified concerns for 2. Establishment and use of a hazard workers from dermal and inhalation oncogenicity and liver effects from exposures. The NCEL is 1.0 milligram communication program. 3 dermal and inhalation exposures. The 3. Use of the PMN substance only as (mg)/m as an 8-hour time-weighted consent order was issued under TSCA average. The consent order was issued described in the PMN. sections 5(e)(1)(A)(i) and 5(e)(1)(A)(ii)(I) 4. That annual manufacture and under TSCA sections 5(e)(1)(A)(i) and based on a finding that this substance importation volume not exceed the 5(e)(1)(A)(ii)(I) based on a finding that may present an unreasonable risk of confidential limit specified in the this substance may present an injury to human health. To protect consent order. unreasonable risk of injury to human against this risk, the consent order 5. No manufacture, processing, or use health. To protect against this risk, the prohibits exceedance of the confidential of the PMN substance in the form of a consent order requires: annual production volume limit powder or a solid. 1. Use of personal protective specified in the consent order. The equipment including dermal protection The SNUR designates as a ‘‘significant SNUR designates as a ‘‘significant new new use’’ the absence of these protective (when there is potential dermal use’’ the absence of this protective exposure) and a NIOSH-certified measures. measure. Recommended testing: EPA has respirator with an assigned protection Recommended testing: EPA has determined that the results of an acute factor (APF) of at least 15, or determined that a 90-day inhalation oral toxicity test (OPPTS Test Guideline compliance with a NCEL of 1.0 mg/m3 toxicity test (OPPTS Test Guideline 870.1100) in rabbits would help as an 8-hour time-weighted average 870.3465) and a reproduction/ characterize the human health effects of (when there is potential inhalation developmental toxicity screening test the substance. The consent order does exposure). (OECD Test Guideline 421, with not require submission of the testing at 2. Establishment and use of a hazard modifications) would help characterize any specified time or production communication program. the human health effects of the PMN volume. However, the consent order’s 3. Submission of certain human substance. The consent order does not restrictions on manufacture, import, health testing prior to exceeding the require the submission of this testing at processing, distribution in commerce, confidential production volume limit any specified time or production use, and disposal of the PMNs will specified in the consent order. volume. However, the consent order’s remain in effect until the consent order The SNUR designates as a ‘‘significant restrictions on manufacture, import, is modified or revoked by EPA based on new use’’ the absence of these protective processing, distribution in commerce, submission of that or other relevant measures. use, and disposal of the PMN will information. Recommended testing: EPA has remain in effect until the consent order CFR citation: 40 CFR 721.10414. determined that the results of a is modified or revoked by EPA based on PMN Number P–11–128 combined repeated dose toxicity with submission of that or other relevant the reproduction/developmental information. Chemical name: 3H-indolium, 2-[2-[3- toxicity screening test (OECD Test CFR citation: 40 CFR 721.10413. [2-(1,3-dihydro-1,3,3-trimethyl-2H- Guideline 422) and a mammalian indol-2-ylidene)ethylidene]-2-[(1- erythrocyte micronucleus test (OECD PMN Number P–10–358 phenyl-1H-tetrazol-5-yl)thio]-1- Test Guideline 474) would help Chemical name: Iron(1+), chloro[rel- cyclohexen-1-yl]ethenyl]-1,3, 3- characterize possible human health 1,5-dimethyl (1R,2S,4R,5S)- 9,9- trimethyl-, chloride (1:1). risks of the PMN substance. The PMN dihydroxy-3-methyl-2,4-di(2-pyridinyl- CAS number: 440102–72–7. submitter has agreed not to exceed the .kappa.N)-7-[(2-pyridinyl- Basis for action: The PMN states that confidential production volume limit .kappa.N)methyl]-3,7- the substance will be used as a dye used specified in the consent order without diazabicyclo[3.3.1]nonane-1,5- in the manufacture of imaging media/ performing these tests. The consent dicarboxylate-.kappa.N3,.kappa.N7]-, products. Based on EcoSAR analysis of order does not require the submission of chloride (1:1), (OC-6–63)-. test data on cationic dyes, EPA predicts a genetic toxicology: rodent dominant CAS number: 478945–46–9. toxicity to aquatic organisms may occur lethal assay test (OECD Test Guideline Effective date of TSCA section 5(e) as a result of releases of the PMN 478) at any specified time or production consent order: February 7, 2011. substance to surface water from volume. However, the consent order’s Basis for TSCA section 5(e) consent manufacture or import in quantities restrictions on manufacture, import, order: The PMN states that the generic greater than the 10,000 kilograms (kg) processing, distribution in commerce, (non-confidential) use of the substance per year production volume stated in use, and disposal of the PMN will will be as a coatings additive at the PMN. At the annual production remain in effect until the consent order concentrations not to exceed 1.0 volume of 10,000 kg stated in the PMN,

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there were no significant environmental reasonably be anticipated to enter the is modified or revoked by EPA based on concerns. Therefore, EPA has not environment in substantial quantities, submission of that or other relevant determined that the proposed and there may be significant (or information. manufacturing, processing, or use of the substantial) human exposure to the CFR citation: 40 CFR 721.10416. substance may present an unreasonable substance. To protect against these risks PMN Number P–11–338 risk. EPA has determined, however, that the consent order requires: exceeding an annual manufacturing and 1. No exceedance of the maximum Chemical name: Biphenyl alkyl importation volume of 10,000 kg may levels of BDD and BDF in the PMN morpholino ketone (generic). cause significant adverse environmental substance as specified in the consent CAS number: Not available. effects. Based on this information, the order. Basis for action: The PMN states that PMN substance meets the concern 2. Manufacture of the PMN substance the substance will be used as a photo criteria at § 721.170(b)(4)(ii). only at the site specified in the PMN initiator. Based on EcoSAR analysis of Recommended testing: EPA has and only using the process described in test data on analogous aliphatic amines, determined that the results of a fish the PMN unless the dioxin/furan testing EPA predicts toxicity to aquatic early-life stage toxicity test (OPPTS Test required in the consent order is organisms may occur at concentrations Guideline 850.1400); a daphnid chronic conducted and the test results submitted that exceed 2 ppb of the PMN substance toxicity test (OPPTS Test Guideline to EPA within 16 months of in surface waters. As described in the 850.1300); and an algal toxicity test, commencement of manufacture at the PMN, the substance is not released to tiers I and II (OPPTS Test Guideline additional site or process. surface waters. Therefore, EPA has not 850.5400) would help characterize the 3. The molecular weight of the determined that the proposed environmental effects of the PMN manufactured PMN substance be equal manufacturing, processing, or use of the substance. to or greater than the weight reported in substance may present an unreasonable CFR citation: 40 CFR 721.10415. the PMN. risk. EPA has determined, however, that any use of the substance resulting in PMN Number P–11–264 The SNUR designates as a ‘‘significant surface water concentrations exceeding Chemical name: Brominated new use’’ the absence of these protective 2 ppb may cause significant adverse polyphenyl ether (generic). measures. environmental effects. Based on this CAS number: Not available. Recommended testing: EPA has information, the PMN substance meets Effective date of TSCA section 5(e) determined that the results of the the concern criteria at consent order: November 22, 2011. following tests would help characterize § 721.170(b)(4)(ii). Basis for TSCA section 5(e) consent the possible health and environmental Recommended testing: EPA has order: The PMN states that the generic effects of the PMN substance, its determined that the results of a ready (non-confidential) use of the PMN impurities and its degradation products. biodegradability test (OPPTS Test substance will be as a flame retardant. The consent order contains two Guideline 835.3110); a fish acute EPA expects that brominated (confidential) production limits. The toxicity test, freshwater and marine dibenzodioxins (BDD) and PMN submitter has agreed not to exceed (OPPTS Test Guideline 850.1075); an dibenzofurans (BDF) may be generated the first production limit without aquatic invertebrate acute toxicity test, during manufacture of the PMN performing an anaerobic aquatic freshwater daphnids (OPPTS Test substance and may be potential metabolism test (OPPTS Test Guideline Guideline 850.1010); and an algal decomposition products of the PMN 835.4400) and an amphibian toxicity test, tiers I and II test (OPPTS substance in the environment. Human metamorphosis assay (OECD Test Test Guideline 850.5400) would help health concerns from exposure to BDD Guideline 231). The PMN submitter has characterize the environmental effects of and BDF include cancer, reproductive also agreed not to exceed a second the PMN substance. EPA also and developmental toxicity, and production limit without performing a recommends that the special immunotoxicity. EPA expects the PMN dietary exposure bioaccumulation fish considerations for conducting laboratory to be highly persistent in the test (OECD Test Guideline 305, draft studies (OPPTS Test Guideline environment and that it may be dated October 14, 2011) and a test of the 850.1000) be followed to facilitate bioavailable based on data on related PMN substance for BDD and BDF solubility in the test media, because of substances. EPA also has environmental content by high-resolution gas the PMN’s low water solubility. concerns based on the high degree of chromatography/high-resolution mass CFR citation: 40 CFR 721.10417. bromination of the PMN substance and spectrometry (HRGC/HRMS) (EPA Test the potential presence of BDD/BDF Method 8290A). EPA has also PMN Number P–11–481 impurities that may form during determined that the following tests Chemical name: 1,2- manufacturing and may be would help characterize the Cyclohexanedicarboxylic acid, 1-butyl decomposition products in the environmental effects of the PMN 2-(phenylmethyl) ester. environment. Current knowledge of the substance. The consent order does not CAS number: 1200806–67–2. ecotoxicity of BDD and BDF indicate require the submission of the following Basis for action: The PMN states that adverse effects may occur in the parts information at any specified time or the generic (non-confidential) use of the per trillion range in rainbow trout production volume: A fish early-life substance is as an additive for polymers. embryos and juveniles. The consent stage toxicity test (OPPTS Test Based on EcoSAR analysis of test data order was issued under TSCA sections Guideline 850.1400), a daphnid chronic on analogous esters, EPA predicts 5(e)(1)(A)(i), 5(e)(1)(A)(ii)(I), and toxicity test (OPPTS Test Guideline toxicity to aquatic organisms may occur 5(e)(1)(A)(ii)(II), based on a finding that 850.1300), and an algal toxicity, tiers I at concentrations that exceed 2 ppb of this substance and potential impurities and II test (OPPTS Test Guideline the PMN substance in surface waters. As and degradants may present an 850.5400). However, the consent order’s described in the PMN, releases of the unreasonable risk of injury to human restrictions on manufacture, import, substance are not expected to result in health and the environment, the processing, distribution in commerce, surface water concentrations that exceed substance may be produced in use, and disposal of the PMN will 2 ppb. Therefore, EPA has not substantial quantities and may remain in effect until the consent order determined that the proposed

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manufacture, processing, or use of the health and the environment, the fluorinated polymers, suggesting that, substance may present an unreasonable substance may be produced in under some conditions, the PMN risk. EPA has determined, however, that substantial quantities and may substance could degrade in the any use of the substance resulting in reasonably be anticipated to enter the environment. EPA has concerns that surface water concentrations exceeding environment in substantial quantities, these degradation products will persist 2 ppb may cause significant adverse and there may be significant (or in the environment, could environmental effects. Based on this substantial) human exposure to the bioaccumulate or biomagnify, and could information, the PMN substance meets substance and its potential degradation be toxic to people, wild mammals, and the concern criteria at products. To protect against this birds. These concerns are based on data § 721.170(b)(4)(ii). exposure and risk, the consent order on analog chemicals, including PFOA Recommended testing: EPA has requires the PMN substance be and other perfluorinated carboxylates, determined that the results of a fish manufactured, processed, distributed in which include the presumed acute toxicity test (OPPTS Test commerce, and used only as a polymer environmental degradant of the PMN Guideline 850.1075); an aquatic in automotive fuel hoses and the substance. There is pharmacokinetic invertebrate acute toxicity test, submitter has agreed to analyze, report, and toxicological data in animals on freshwater daphnids (OPPTS Test and limit specific fluorinated impurities PFOA, as well as epidemiological and Guideline 850.1010); and an algal of the PMN substance where the carbon blood monitoring data in humans. toxicity test, tiers I and II (OPPTS Test chain meets or exceeds a specified Toxicity studies on PFOA indicate Guideline 850.5400) would help length. The SNUR designates as a developmental, reproductive, and characterize the environmental effects of ‘‘significant new use’’ the absence of systemic toxicity in various species, as the PMN substance. these protective measures. well as cancer. These factors, taken CFR citation: 40 CFR 721.10418. Recommended testing: EPA has together, raise concerns for potential PMN Number P–11–561 determined that the results of certain adverse chronic effects from the fate and physical/chemical property presumed degradation product in Chemical name: Tetrafluoroethylene testing identified in the consent order humans and wildlife. The consent order chlorotrifluoroethylene copolymer would help characterize possible effects was issued under TSCA sections (generic). of the substances and their degradation 5(e)(1)(A)(i), 5(e)(1)(A)(ii)(I), and CAS number: Not available. products. The consent order does not 5(e)(1)(A)(ii)(II), based on a finding that Effective date of TSCA section 5(e) require submission of the testing at any this substance may present an consent order: January 27, 2012. specified time or production volume. unreasonable risk of injury to human Basis for TSCA section 5(e) consent However, the consent order’s health and the environment, the order: The PMN states that the restrictions on manufacture, import, substance may be produced in substance will be used as a polymer processing, distribution in commerce, substantial quantities and may used in automotive fuel hoses. Based on use, and disposal of the PMN will reasonably be anticipated to enter the EPA analysis of the potential content of remain in effect until the consent order environment in substantial quantities, the polymer, EPA is concerned that is modified or revoked by EPA based on and there may be significant (or some long-chain perfluorinated submission of that or other relevant substantial) human exposure to the substances could be present and if information. substance and its potential degradation degraded, especially under thermal CFR citation: 40 CFR 721.10419. products. To protect against these risks, conditions, could be released into the the consent order requires the submitter PMN Numbers P–11–567, P–11–568, environment. EPA has concerns that the has agreed to analyze, report, and limit and P–11–569 PMN substance and its thermal specific fluorinated impurities of the degradation products will persist in the Chemical name: Fluoropolymers PMN substances where the carbon chain environment, could bioaccumulate or (generic). meets or exceeds a specified length and biomagnify, and could be toxic to CAS number: Not available. risk notification. The SNUR designates humans, wild mammals, and birds. Effective date of TSCA section 5(e) as a ‘‘significant new use’’ the absence These concerns are based on data on consent order: January 27, 2012. of these protective measures. analog chemicals, including Basis for TSCA section 5(e) consent Recommended testing: EPA has perfluorooctanoic acid (PFOA) and order: The PMNs state that the generic determined that the results of certain other perfluorinated carboxylates, (non-confidential) use of the PMN fate and physical/chemical property which include the presumed substances will be in the manufacture of testing identified in the consent order environmental degradant of the PMN elastomer containing materials (P–11– would help characterize possible effects substance. There is pharmacokinetic 567 and P–11–569), and a component of of the substances and their degradation and toxicological data in animals on film, wire, and cable (P–11–568). Based products. The consent order does not PFOA, as well as epidemiological and on SAR analysis of test data on require submission of the testing at any blood monitoring data in humans. analogous high molecular weight specified time or production volume. Toxicity studies on PFOA indicate polymers, EPA identified concerns for However, the consent order’s developmental, reproductive, and lung effects through lung overload if restrictions on manufacture, import, systemic toxicity in various species, as respirable particles of the intact PMN processing, distribution in commerce, well as cancer. These factors, taken substances are inhaled. In addition, EPA use, and disposal of the PMNs will together, raise concerns for potential has concerns for the formation of remain in effect until the consent order adverse chronic effects from the potential incineration or other is modified or revoked by EPA based on presumed degradation product in decomposition products from the PMN submission of that or other relevant humans and wildlife. The consent order substances. These perfluorinated information. was issued under TSCA sections products may be released to the CFR citation: 40 CFR 721.10420. 5(e)(1)(A)(i), 5(e)(1)(A)(ii)(I), and environment from incomplete 5(e)(1)(A)(ii)(II), based on a finding that incineration of the PMN substances at PMN Number P–11–594 this substance may present an low temperatures. EPA has preliminary Chemical name: unreasonable risk of injury to human evidence, including data on some Mercaptoalkoxysilane (generic).

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CAS number: Not available. 850.5400) would help characterize the determined that the proposed Basis for action: The PMN states that environmental effects of the PMN manufacturing, processing, or use of the the substance will be used as an epoxy substance. substance may present an unreasonable catalyst. Based on EcoSAR analysis of CFR citation: 40 CFR 721.10422. risk. EPA has determined, however, use test data on analogous alkoxysilanes, PMN Numbers: P–12–22, P–12–23, P– of the substance other than as an esters, and phenols, EPA predicts 12–24, P–12–25, and P–12–26 intermediate may cause serious health toxicity to aquatic organisms may occur effects. Based on this information, the at concentrations that exceed 2 ppb of Chemical names: Complex strontium PMN substance meets the concern the PMN substance in surface waters. As aluminum, rare earth doped (generic). criteria at § 721.170(b)(3)(ii). described in the PMN, the substance CAS numbers: Not available. Recommended testing: EPA has will not be released to water. Therefore, Basis for action: The PMNs state that determined that a combined repeated EPA has not determined that the the PMN substances will be used as dye dose toxicity with the reproduction/ proposed manufacturing, processing, or used in the manufacture of imaging developmental toxicity screening test use of the substance may present an media/products. Based on analogous (OPPTS Test Guideline 870.3650) would unreasonable risk. EPA has determined, respirable and poorly soluble help characterize the human health however, that any use of the substance substances, in particular, titanium effects of the PMN substance. resulting in surface water dioxide, EPA identified concerns for CFR citation: 40 CFR 721.10424. concentrations exceeding 2 ppb may potential lung overload to workers from cause significant adverse environmental inhalation exposure to the PMN PMN Numbers: P–12–51 and P–12–52 effects. Based on this information, the substances. Specifically, the Agency Chemical names: Substituted PMN substance meets the concern predicts potential toxicity to workers alkylamides (generic). criteria at § 721.170(b)(4)(ii). from inhalation when more than 5% of CAS numbers: Not available. Recommended testing: EPA has the PMN substances particles are less Basis for action: The PMNs state that determined that the results of a fish than 10 microns. For the uses described the generic (non-confidential) use of the acute toxicity test, freshwater and in the PMNs, significant worker substances will be as polymer foam marine (OPPTS Test Guideline exposure is unlikely, when no more additives. Based on test data on 850.1075); an aquatic invertebrate acute than 5% of particles are less than 10 analogous chemical substances and toxicity test, freshwater daphnids microns. Therefore, EPA has not information on the Material Safety Data (OPPTS Test Guideline 850.1010); and determined that the proposed Sheet (MSDS), the Agency identified an algal toxicity test, tiers I and II manufacturing, processing, or use of the concerns for irritation to all exposed (OPPTS Test Guideline 850.5400) would substances may present an unreasonable tissues, solvent irritation, and solvent help characterize the environmental risk. EPA has determined, however, that neurotoxicity to workers from dermal effects of the PMN substance. any use of the substances other than as exposure to the PMN substances. For CFR citation: 40 CFR 721.10421. described in the PMNs may cause the use described in the PMNs, serious health effects. Based on this PMN Number P–11–654 significant worker exposure is unlikely, information, the PMN substances meets as dermal exposure is not expected. Chemical name: Phenol, 2-[[[3-(1H- the concern criteria at Therefore, EPA has not determined that imidazol-1- § 721.170(b)(3)(ii). the proposed manufacturing, yl)propyl]imino]phenylmethyl]-5- Recommended testing: EPA has processing, or use of the substances may (octyloxy)-. determined that a 90-day inhalation present an unreasonable risk. EPA has CAS number: 1332716–20–7. toxicity test (OPPTS Test Guideline determined, however, use of the Basis for action: The PMN states that 870.3465) would help characterize the substances other than as described in the substance will be used as an epoxy human health effects of the PMN the PMNs may cause serious health catalyst. Based on EcoSAR analysis of substances. effects. Based on this information, the test data on analogous Schiff bases and CFR citation: 40 CFR 721.10423. PMN substances meet the concern phenols, EPA predicts toxicity to criteria at § 721.170(b)(3)(ii). aquatic organisms may occur at PMN Number P–12–33 Recommended testing: EPA has concentrations that exceed 1 ppb of the Chemical name: Benzoic acid, 4-(1,1- determined that the results of a PMN substance in surface waters. As dimethylethyl)-, methyl. combined repeated dose toxicity with described in the PMN, the substance CAS number: 26537–19–9. the reproduction/developmental will not be released to water. Therefore, Basis for action: The PMN states that toxicity screening test (OPPTS Test EPA has not determined that the the substance will be used as an Guideline 870.3650); a bacterial reverse proposed manufacturing, processing, or intermediate in the manufacture of an mutation test (OPPTS Test Guideline use of the substance may present an imaging product. Based on submitted 870.5100); and a mammalian unreasonable risk. EPA has determined, test data on p-tert-butyl benzoic acid, erythrocyte micronucleus test (OPPTS however, that any use of the substance EPA identified concerns for Test Guideline 870.5395) would help resulting in surface water neurotoxicity; reproductive toxicity characterize the human health effects of concentrations exceeding 1 ppb may (male); and adverse effects to the liver, the PMN substances. cause significant adverse environmental kidney, and lung. In addition, based on CFR citation: 40 CFR 721.10425. effects. Based on this information, the data on benzoic acid, EPA identified PMN substance meets the concern concerns for developmental toxicity and V. Rationale and Objectives of the Rule criteria at § 721.170(b)(4)(ii). hypersensitivity. These concerns are for Recommended testing: EPA has effects to workers from inhalation and A. Rationale determined that the results of a fish dermal exposures to the PMN substance. During review of the PMNs submitted early-life stage toxicity test (OPPTS Test For the chemical intermediate use for the chemical substances that are Guideline 850.1400); a daphnid chronic described in the PMN, significant subject to these SNURs, EPA concluded toxicity test (OPPTS Test Guideline worker exposure is unlikely, as dermal that for 9 of the 23 chemical substances, 850.1300); and an algal toxicity test, and inhalation exposures are not regulation was warranted under TSCA tiers I and II (OPPTS Test Guideline expected. Therefore, EPA has not section 5(e), pending the development

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of information sufficient to make accordance with § 721.160(c)(3)(ii) and 720.25 and § 721.11), the Agency reasoned evaluations of the health or § 721.170(d)(4)(i)(B), the effective date believes that it is highly unlikely that environmental effects of the chemical of this rule is June 25, 2012 without any of the significant new uses substances. The basis for such findings further notice, unless EPA receives described in the regulatory text of this is outlined in Unit IV. Based on these written adverse or critical comments, or rule are ongoing. findings, TSCA section 5(e) consent notice of intent to submit adverse or As discussed in the April 24, 1990 orders requiring the use of appropriate critical comments before May 25, 2012. SNUR, EPA has decided that the intent exposure controls were negotiated with If EPA receives written adverse or of TSCA section 5(a)(1)(B) is best served the PMN submitters. The SNUR critical comments, or notice of intent to by designating a use as a significant new provisions for these chemical submit adverse or critical comments, on use as of the date of publication of this substances are consistent with the one or more of these SNURs before May direct final rule rather than as of the provisions of the TSCA section 5(e) 25, 2012, EPA will withdraw the effective date of the rule. If uses begun consent orders. These SNURs are relevant sections of this direct final rule after publication were considered promulgated pursuant to § 721.160 (see before its effective date. EPA will then ongoing rather than new, it would be Unit II.). issue a proposed SNUR for the chemical difficult for EPA to establish SNUR In the other 14 cases, where the uses substance(s) on which adverse or notice requirements because a person are not regulated under a TSCA section critical comments were received, could defeat the SNUR by initiating the 5(e) consent order, EPA determined that providing a 30-day period for public significant new use before the rule one or more of the criteria of concern comment. became effective, and then argue that established at § 721.170 were met, as This rule establishes SNURs for a the use was ongoing before the effective discussed in Unit IV. number of chemical substances. Any date of the rule. Persons who begin person who submits adverse or critical commercial manufacture, import, or B. Objectives comments, or notice of intent to submit processing of the chemical substances EPA is issuing these SNURs for adverse or critical comments, must regulated through this SNUR will have specific chemical substances which identify the chemical substance and the to cease any such activity before the have undergone premanufacture review new use to which it applies. EPA will effective date of this rule. To resume because the Agency wants to achieve not withdraw a SNUR for a chemical their activities, these persons would the following objectives with regard to substance not identified in the have to comply with all applicable the significant new uses designated in comment. SNUR notice requirements and wait this rule: until the notice review period, • VII. Applicability of Rule to Uses EPA will receive notice of any Occurring Before Effective Date of the including any extensions expires. person’s intent to manufacture, import, Rule EPA has promulgated provisions to or process a listed chemical substance allow persons to comply with this for the described significant new use Significant new use designations for a SNUR before the effective date. If a before that activity begins. chemical substance are legally person meets the conditions of advance • EPA will have an opportunity to established as of the date of publication compliance under § 721.45(h), the review and evaluate data submitted in a of this direct final rule April 25, 2012. person is considered exempt from the SNUN before the notice submitter To establish a significant ‘‘new’’ use, requirements of the SNUR. begins manufacturing, importing, or EPA must determine that the use is not VIII. Test Data and Other Information processing a listed chemical substance ongoing. The chemical substances for the described significant new use. subject to this rule have undergone EPA recognizes that TSCA section 5 • EPA will be able to regulate premanufacture review. TSCA section does not require developing any prospective manufacturers, importers, 5(e) consent orders have been issued for particular test data before submission of or processors of a listed chemical 9 chemical substances and the PMN a SNUN. The two exceptions are: substance before the described submitters are prohibited by the TSCA 1. Development of test data is significant new use of that chemical section 5(e) consent orders from required where the chemical substance substance occurs, provided that undertaking activities which EPA is subject to the SNUR is also subject to a regulation is warranted pursuant to designating as significant new uses. In test rule under TSCA section 4 (see TSCA sections 5(e), 5(f), 6, or 7. cases where EPA has not received a TSCA section 5(b)(1)). • EPA will ensure that all notice of commencement (NOC) and the 2. Development of test data may be manufacturers, importers, and chemical substance has not been added necessary where the chemical substance processors of the same chemical to the TSCA Inventory, no other person has been listed under TSCA section substance that is subject to a TSCA may commence such activities without 5(b)(4) (see TSCA section 5(b)(2)). section 5(e) consent order are subject to first submitting a PMN. For chemical In the absence of a TSCA section 4 similar requirements. substances for which an NOC has not test rule or a TSCA section 5(b)(4) Issuance of a SNUR for a chemical been submitted at this time, EPA listing covering the chemical substance, substance does not signify that the concludes that the uses are not ongoing. persons are required only to submit test chemical substance is listed on the However, EPA recognizes that prior to data in their possession or control and TSCA Inventory. Guidance on how to the effective date of the rule, when to describe any other data known to or determine if a chemical substance is on chemical substances identified in this reasonably ascertainable by them (see 40 the TSCA Inventory is available on the SNUR are added to the TSCA Inventory, CFR 720.50). However, upon review of Internet at http://www.epa.gov/opptintr/ other persons may engage in a PMNs and SNUNs, the Agency has the existingchemicals/pubs/tscainventory/ significant new use as defined in this authority to require appropriate testing. index.html. rule before the effective date of the rule. In cases where EPA issued a TSCA However, 19 of the 23 chemical section 5(e) consent order that requires VI. Direct Final Procedures substances contained in this rule have or recommends certain testing, Unit IV. EPA is issuing these SNURs as a CBI chemical identities, and since EPA describes those tests. Unit IV. also lists direct final rule, as described in has received a limited number of post- recommended testing for non-5(e) § 721.160(c)(3) and § 721.170(d)(4). In PMN bona fide submissions (per 40 CFR SNURs. Descriptions of tests are

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provided for informational purposes. • Potential benefits of the chemical X. SNUN Submissions EPA strongly encourages persons, before substances. According to § 721.1(c), persons • performing any testing, to consult with Information on risks posed by the submitting a SNUN must comply with the Agency pertaining to protocol chemical substances compared to risks the same notice requirements and EPA selection and test reporting. To access posed by potential substitutes. regulatory procedures as persons the harmonized test guidelines IX. Procedural Determinations submitting a PMN, including referenced in this document submission of test data on health and electronically, please go to http:// By this rule, EPA is establishing environmental effects as described in 40 www.epa.gov/ocspp and select ‘‘Test certain significant new uses which have CFR 720.50. SNUNs must be submitted Methods and Guidelines.’’ The been claimed as CBI subject to Agency on EPA Form No. 7710–25, generated Organisation for Economic Co-operation confidentiality regulations at 40 CFR using e-PMN software, and submitted to and Development (OECD) test part 2 and 40 CFR part 720, subpart E. the Agency in accordance with the guidelines are available from the OECD Absent a final determination or other procedures set forth in § 721.25 and 40 Bookshop at http:// disposition of the confidentiality claim CFR 720.40. e-PMN software is available www.oecdbookshop.org or SourceOECD under 40 CFR part 2 procedures, EPA is electronically at http://www.epa.gov/ at http://www.sourceoecd.org. To access required to keep this information opptintr/newchems. EPA Method 8290A, please go to confidential. EPA promulgated a http://www.epa.gov/osw/hazard/ procedure to deal with the situation XI. Economic Analysis testmethods/sw846/pdfs/8290a.pdf. where a specific significant new use is EPA has evaluated the potential costs In the TSCA section 5(e) consent CBI, at § 721.1725(b)(1). of establishing SNUN requirements for orders for several of the chemical Under these procedures a potential manufacturers, importers, and substances regulated under this rule, manufacturer, importer, or processor processors of the chemical substances EPA has established production volume may request EPA to determine whether subject to this rule. EPA’s complete limits in view of the lack of data on the a proposed use would be a significant economic analysis is available in the potential health and environmental new use under the rule. The docket under docket ID number EPA– risks that may be posed by the manufacturer, importer, or processor HQ–OPPT–2012–0182. significant new uses or increased must show that it has a bona fide intent exposure to the chemical substances. XII. Statutory and Executive Order to manufacture, import, or process the These limits cannot be exceeded unless Reviews chemical substance and must identify the PMN submitter first submits the the specific use for which it intends to A. Executive Order 12866 results of toxicity tests that would manufacture, import, or process the permit a reasoned evaluation of the This rule establishes SNURs for chemical substance. If EPA concludes potential risks posed by these chemical several new chemical substances that that the person has shown a bona fide substances. Listings of the tests were the subject of PMNs, or TSCA intent to manufacture, import, or specified in the TSCA section 5(e) section 5(e) consent orders. The Office process the chemical substance, EPA consent orders are included in Unit IV. of Management and Budget (OMB) has The SNURs contain the same will tell the person whether the use exempted these types of actions from production limits as the TSCA section identified in the bona fide submission review under Executive Order 12866, 5(e) consent orders. Exceeding these would be a significant new use under entitled ‘‘Regulatory Planning and production limits is defined as a the rule. Since most of the chemical Review’’ (58 FR 51735, October 4, 1993). identities of the chemical substances significant new use. Persons who intend B. Paperwork Reduction Act to exceed the production limit must subject to these SNURs are also CBI, notify the Agency by submitting a manufacturers, importers, and According to the Paperwork SNUN at least 90 days in advance of processors can combine the bona fide Reduction Act (PRA), 44 U.S.C. 3501 et commencement of non-exempt submission under the procedure in seq., an Agency may not conduct or commercial manufacture, import, or § 721.1725(b)(1) with that under sponsor, and a person is not required to processing. § 721.11 into a single step. respond to a collection of information The recommended tests specified in If EPA determines that the use that requires OMB approval under PRA, Unit IV. may not be the only means of identified in the bona fide submission unless it has been approved by OMB addressing the potential risks of the would not be a significant new use, i.e., and displays a currently valid OMB chemical substance. However, the use does not meet the criteria control number. The OMB control submitting a SNUN without any test specified in the rule for a significant numbers for EPA’s regulations in title 40 data may increase the likelihood that new use, that person can manufacture, of the CFR, after appearing in the EPA will take action under TSCA import, or process the chemical Federal Register, are listed in 40 CFR section 5(e), particularly if satisfactory substance so long as the significant new part 9, and included on the related test results have not been obtained from use trigger is not met. In the case of a collection instrument or form, if a prior PMN or SNUN submitter. EPA production volume trigger, this means applicable. EPA is amending the table in recommends that potential SNUN that the aggregate annual production 40 CFR part 9 to list the OMB approval submitters contact EPA early enough so volume does not exceed that identified number for the information collection that they will be able to conduct the in the bona fide submission to EPA. requirements contained in this rule. appropriate tests. Because of confidentiality concerns, This listing of the OMB control numbers SNUN submitters should be aware EPA does not typically disclose the and their subsequent codification in the that EPA will be better able to evaluate actual production volume that CFR satisfies the display requirements SNUNs which provide detailed constitutes the use trigger. Thus, if the of PRA and OMB’s implementing information on the following: person later intends to exceed that regulations at 5 CFR part 1320. This • Human exposure and volume, a new bona fide submission Information Collection Request (ICR) environmental release that may result would be necessary to determine was previously subject to public notice from the significant new use of the whether that higher volume would be a and comment prior to OMB approval, chemical substances. significant new use. and given the technical nature of the

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table, EPA finds that further notice and have a significant economic impact on distribution, or use and because this comment to amend it is unnecessary. As a substantial number of small entities. action is not a significant regulatory a result, EPA finds that there is ‘‘good action under Executive Order 12866. D. Unfunded Mandates Reform Act cause’’ under section 553(b)(3)(B) of the I. National Technology Transfer and Administrative Procedure Act, 5 U.S.C. Based on EPA’s experience with Advancement Act 553(b)(3)(B), to amend this table without proposing and finalizing SNURs, State, further notice and comment. local, and Tribal governments have not In addition, since this action does not The information collection been impacted by these rulemakings, involve any technical standards, section requirements related to this action have and EPA does not have any reasons to 12(d) of the National Technology already been approved by OMB believe that any State, local, or Tribal Transfer and Advancement Act of 1995 pursuant to PRA under OMB control government will be impacted by this (NTTAA), Public Law 104–113, section number 2070–0012 (EPA ICR No. 574). rule. As such, EPA has determined that 12(d) (15 U.S.C. 272 note), does not This action does not impose any burden this rule does not impose any apply to this action. enforceable duty, contain any unfunded requiring additional OMB approval. If J. Executive Order 12898 an entity were to submit a SNUN to the mandate, or otherwise have any effect Agency, the annual burden is estimated on small governments subject to the This action does not entail special to average between 30 and 170 hours requirements of sections 202, 203, 204, considerations of environmental justice per response. This burden estimate or 205 of the Unfunded Mandates related issues as delineated by includes the time needed to review Reform Act of 1995 (UMRA) (Pub. L. Executive Order 12898, entitled instructions, search existing data 104–4). ‘‘Federal Actions To Address Environmental Justice in Minority sources, gather and maintain the data E. Executive Order 13132 needed, and complete, review, and Populations and Low-Income submit the required SNUN. This action will not have a substantial Populations’’ (59 FR 7629, February 16, Send any comments about the direct effect on States, on the 1994). relationship between the national accuracy of the burden estimate, and XIII. Congressional Review Act any suggested methods for minimizing government and the States, or on the respondent burden, including through distribution of power and Pursuant to the Congressional Review the use of automated collection responsibilities among the various Act, 5 U.S.C. 801 et seq., EPA will techniques, to the Director, Collection levels of government, as specified in submit a report containing this rule and Strategies Division, Office of Executive Order 13132, entitled other required information to the U.S. Environmental Information (2822T), ‘‘Federalism’’ (64 FR 43255, August 10, Senate, the U.S. House of Environmental Protection Agency, 1200 1999). Representatives, and the Comptroller General of the United States prior to Pennsylvania Ave. NW., Washington, F. Executive Order 13175 DC 20460–0001. Please remember to publication of the rule in the Federal include the OMB control number in any This rule does not have Tribal Register. This action is not a ‘‘major correspondence, but do not submit any implications because it is not expected rule’’ as defined by 5 U.S.C. 804(2). to have substantial direct effects on completed forms to this address. List of Subjects Indian Tribes. This rule does not C. Regulatory Flexibility Act significantly nor uniquely affect the 40 CFR Part 9 On February 18, 2012, EPA certified communities of Indian Tribal Environmental protection, Reporting pursuant to section 605(b) of the governments, nor does it involve or and recordkeeping requirements. Regulatory Flexibility Act (RFA) (5 impose any requirements that affect U.S.C. 601 et seq.), that promulgation of Indian Tribes. Accordingly, the 40 CFR Part 721 a SNUR does not have a significant requirements of Executive Order 13175, Environmental protection, Chemicals, economic impact on a substantial entitled ‘‘Consultation and Coordination Hazardous substances, Reporting and number of small entities where the With Indian Tribal Governments’’ (65 recordkeeping requirements. FR 67249, November 9, 2000), do not following are true: Dated: April 19, 2012. 1. A significant number of SNUNs apply to this rule. Ward Penberthy, would not be submitted by small G. Executive Order 13045 entities in response to the SNUR. Acting Director, Chemical Control Division, 2. The SNUN submitted by any small This action is not subject to Executive Office of Pollution Prevention and Toxics. entity would not cost significantly more Order 13045, entitled ‘‘Protection of Therefore, 40 CFR parts 9 and 721 are than $8300. Children from Environmental Health amended as follows: A copy of that certification is Risks and Safety Risks’’ (62 FR 19885, available in the docket for this rule. April 23, 1997), because this is not an PART 9—[AMENDED] This rule is within the scope of the economically significant regulatory ■ February 18, 2012 certification. Based action as defined by Executive Order 1. The authority citation for part 9 on the Economic Analysis discussed in 12866, and this action does not address continues to read as follows: Unit XI. and EPA’s experience environmental health or safety risks Authority: 7 U.S.C. 135 et seq., 136–136y; promulgating SNURs (discussed in the disproportionately affecting children. 15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671; certification), EPA believes that the 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 H. Executive Order 13211 following are true: U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, • A significant number of SNUNs This action is not subject to Executive 1321, 1326, 1330, 1342, 1344, 1345 (d) and would not be submitted by small Order 13211, entitled ‘‘Actions (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971–1975 Comp. p. 973; 42 U.S.C. 241, entities in response to the SNUR. Concerning Regulations That • 242b, 243, 246, 300f, 300g, 300g–1, 300g–2, Submission of the SNUN would not Significantly Affect Energy Supply, 300g–3, 300g–4, 300g–5, 300g–6, 300j–1, cost any small entity significantly more Distribution, or Use’’ (66 FR 28355, May 300j–2, 300j–3, 300j–4, 300j–9, 1857 et seq., than $8,300. Therefore, the 22, 2001), because this action is not 6901–6992k, 7401–7671q, 7542, 9601–9657, promulgation of the SNUR would not expected to affect energy supply, 11023, 11048.

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■ 2. In § 9.1, add the following sections apply to this section except as modified § 721.30 requests to use the NCELs in numerical order under the by this paragraph. approach are approved by EPA will undesignated center heading (1) Recordkeeping. Recordkeeping receive NCELs provisions comparable to ‘‘Significant New Uses of Chemical requirements as specified in those contained in the corresponding Substances’’ to read as follows: § 721.125(a), (b), (c), and (i) are TSCA section 5(e) consent order. applicable to manufacturers, importers, (B) [Reserved] § 9.1 OMB approvals under the Paperwork and processors of this substance. (ii) Hazard communication program. Reduction Act. (2) Limitations or revocation of Requirements as specified in * * * * * certain notification requirements. The § 721.72(a), (b), (c), (d), (e)(concentration provisions of § 721.185 apply to this set at 1.0 percent), (f), (g)(1)(i), (g)(1)(ii), OMB Control section. (g)(1)(iii), (g)(1)(iv), (g)(2)(i), (g)(2)(ii), 40 CFR Citation No. ■ 5. Add § 721.10411 to subpart E to (g)(2)(iii), (g)(2)(iv) (use respiratory read as follows: protection, or maintain workplace ***** airborne concentrations at or below an § 721.10411 Alkanenitrile, Significant New Uses of Chemical 8-hour time-weighted average of 70 mg/ bis(cyanoalkyl)amino (generic) (P–07–537). Substances m3), (g)(2)(v), (g)(3)(i), (g)(3)(ii), (g)(4)(i), (a) Chemical substance and (g)(4)(iii), and (g)(5). significant new uses subject to reporting. (iii) Industrial, commercial, and ***** (1) The chemical substance identified consumer activities. Requirements as 721.10410 ...... 2070–0012 generically as alkanenitrile, specified in § 721.80(h) and (q). 721.10411 ...... 2070–0012 bis(cyanoalkyl)amino (PMN P–07–537) 721.10412 ...... 2070–0012 (iv) Disposal. Requirements as is subject to reporting under this section specified in § 721.85(a)(1), (a)(2), (b)(1), 721.10413 ...... 2070–0012 for the significant new uses described in 721.10414 ...... 2070–0012 (b)(2), (c)(1), and (c)(2). 721.10415 ...... 2070–0012 paragraph (a)(2) of this section. The (v) Release to water. Requirements as 721.10416 ...... 2070–0012 requirements of this section do not specified in § 721.90(a)(1), (b)(1), and 721.10417 ...... 2070–0012 apply to quantities of the PMN (c)(1). 721.10418 ...... 2070–0012 substance after it has been completely (b) Specific requirements. The 721.10419 ...... 2070–0012 reacted (cured). provisions of subpart A of this part 721.10420 ...... 2070–0012 (2) The significant new uses are: apply to this section except as modified 721.10421 ...... 2070–0012 (i) Protection in the workplace. by this paragraph. 721.10422 ...... 2070–0012 Requirements as specified in 721.10423 ...... 2070–0012 (1) Recordkeeping. Recordkeeping § 721.63(a)(1), (a)(2)(i), (a)(3), (a)(4), requirements as specified in 721.10424 ...... 2070–0012 (a)(5), (a)(6)(i), (a)(6)(ii), (a)(6)(v), 721.10425 ...... 2070–0012 § 721.125(a) through (k) are applicable (a)(6)(vi), (b) (concentration set at 1.0 to manufacturers, importers, and ***** percent), and (c). The following processors of this substance. National Institute for Occupational (2) Limitations or revocation of * * * * * Safety and Health (NIOSH)-certified certain notification requirements. The respirator with an assigned protection provisions of § 721.185 apply to this PART 721—[AMENDED] factor (APF) of at least 5 meets the section. minimum requirements for (3) Determining whether a specific use ■ 3. The authority citation for part 721 § 721.63(a)(4): NIOSH-certified air- is subject to this section. The provisions continues to read as follows: purifying, tight-fitting full-face of § 721.1725(b)(1) apply to paragraph Authority: 15 U.S.C. 2604, 2607, and respirator equipped with N100 (if oil (a)(2)(iii) of this section. 2625(c). aerosols absent), R100, or P100 filters; ■ 6. Add § 721.10412 to subpart E to NIOSH-certified powered air-purifying read as follows: ■ 4. Add § 721.10410 to subpart E to respirator equipped with a loose- fitting read as follows: hood or helmet and high efficiency § 721.10412 Phosphonic acid ester particulate air (HEPA) filters; NIOSH- (generic) (P–07–706). § 721.10410 Polyether ester acid compound with a polyamine amide certified powered air-purifying (a) Chemical substance and (generic) (P–05–714). respirator equipped with a tight-fitting significant new uses subject to reporting. facepiece (full-face) and HEPA filters; or (1) The chemical substance identified (a) Chemical substance and NIOSH-certified supplied-air respirator generically as phosphonic acid ester significant new uses subject to reporting. operated in pressure demand or (PMN P–07–706) is subject to reporting (1) The chemical substance identified continuous flow mode and equipped under this section for the significant generically as polyether ester acid with a hood or helmet, or tight-fitting new uses described in paragraph (a)(2) compound with a polyamine amide facepiece (full-face) and HEPA filters. of this section. The requirements of this (PMN P–05–714) is subject to reporting (A) As an alternative to the respiratory section do not apply to quantities of the under this section for the significant requirements listed in paragraph PMN substance after it has been new uses described in paragraph (a)(2) (a)(2)(i), a manufacturer, importer, or completely reacted (cured). of this section. processor may choose to follow the new (2) The significant new uses are: (2) The significant new uses are: chemical exposure limit (NCEL) (i) Protection in the workplace. (i) Industrial, commercial, and provisions listed in the TSCA section Requirements as specified in consumer activities. Requirements as 5(e) consent order for this substance. § 721.63(a)(1), (a)(2), (a)(3), (a)(4), (a)(5), specified in § 721.80(j) (additive for The NCEL is 70 microgram/cubic meter (a)(6)(i), (a)(6)(v), (a)(6)(i), (a)(6)(ii), industrial paints, industrial coatings, (mg/m3) as an 8-hour time-weighted (a)(6)(v), (a)(6)(vi), (b) (concentration set and architectural coatings). average. Persons who wish to pursue at 0.1 percent) and (c). The following (ii) [Reserved] NCELs as an alternative to the § 721.63 National Institute for Occupational (b) Specific requirements. The respirator requirements may request to Safety and Health (NIOSH)-approved provisions of subpart A of this part do so under § 721.30. Persons whose respirators with an assigned protection

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factor (APF) of 15 meet the minimum (2) Limitations or revocation of § 721.63(a)(1), (a)(2), (a)(3), (a)(6)(i), requirements for § 721.63 (a)(4): NIOSH- certain notification requirements. The (a)(6)(ii), (a)(6)(iv), (a)(6)(v), (a)(6)(vi), (b) certified air-purifying, tight-fitting full- provisions of § 721.185 apply to this (concentration set at 1.0 percent), and face respirator equipped with the section. (c). appropriate gas/vapor cartridges (3) Determining whether a specific use (ii) Hazard communication program. (organic vapor, acid gas, or substance- is subject to this section. The provisions Requirements as specified in specific); NIOSH-certified powered air- of § 721.1725(b)(1) apply to paragraph § 721.72(a), (b), (c), (d), (e) purifying respirator equipped with a (a)(2)(iii) of this section. (concentration set at 1.0 percent), loose-fitting hood or helmet and the ■ 7. Add § 721.10413 to subpart E to (g)(1)(i), (g)(1)(iii), (g)(1)(iv), (g)(1)(viii), appropriate gas/vapor cartridges read as follows: (g)(2)(i), (g)(2)(v), (g)(3)(i), (g)(3)(ii), and (organic vapor, acid gas, or substance- (g)(5). § 721.10413 Fluorinated dialkyl ketone (iii) Industrial, commercial, and specific); NIOSH-certified powered air- (generic) (P–10–135). purifying respirator with a tight-fitting consumer activities. Requirements as facepiece (full-face) and equipped with (a) Chemical substance and specified in § 721.80(j), (t), (v)(1), (v)(2), the appropriate gas/vapor cartridges significant new uses subject to reporting. (w)(1), (w)(2), (x)(1), and (x)(2). (1) The chemical substance identified (organic vapor, acid gas, or substance- (b) Specific requirements. The generically as fluorinated dialkyl ketone specific); NIOSH-certified supplied-air provisions of subpart A of this part (PMN P–10–135) is subject to reporting respirator operated in pressure demand apply to this section except as modified under this section for the significant or continuous flow mode and equipped by this paragraph. new uses described in paragraph (a)(2) (1) Recordkeeping. Recordkeeping with a hood or helmet, or tight-fitting of this section. requirements as specified in facepiece (full-face); or NIOSH-certified (2) The significant new uses are: § 721.125(a) through (i) are applicable to supplied-air respirator operated in (i) Industrial, commercial, and manufacturers, importers, and pressure demand or continuous flow consumer activities. Requirements as processors of this substance. mode and equipped with a loose-fitting specified in § 721.80(t). (2) Limitations or revocation of hood or helmet or a tight-fitting (ii) [Reserved] certain notification requirements. The facepiece (full-face) if no cartridge (b) Specific requirements. The provisions of § 721.185 apply to this service life testing is available. provisions of subpart A of this part section. (A) As an alternative to the respiratory apply to this section except as modified (3) Determining whether a specific use requirements listed in paragraph by this paragraph. is subject to this section. The provisions (a)(2)(i), a manufacturer, importer, or (1) Recordkeeping. Recordkeeping of § 721.1725(b)(1) apply to paragraph processor may choose to follow the new requirements as specified in (a)(2)(iii) of this section. chemical exposure limit (NCEL) § 721.125(a), (b), (c), and (i) are ■ 9. Add § 721.10415 to subpart E to provisions listed in the TSCA section applicable to manufacturers, importers, read as follows: 5(e) consent order for this substance. and processors of this substance. The NCEL is 1.0 millgram/cubic meter (2) Limitations or revocation of § 721.10415 3H-indolium, 2-[2-[3-[2-(1,3- (mg/m3) as an 8-hour time-weighted- certain notification requirements. The dihydro-1,3,3-trimethyl-2H-indol-2- average. Persons who wish to pursue provisions of § 721.185 apply to this ylidene)ethylidene]-2-[(1-phenyl-1H-tetrazol- NCELs as an alternative to the § 721.63 section. 5-yl)thio]-1-cyclohexen-1-yl]ethenyl]-1, 3, 3- trimethyl-, chloride (1:1). respirator requirements may request to (3) Determining whether a specific use do so under § 721.30. Persons whose is subject to this section. The provisions (a) Chemical substance and § 721.30 requests to use the NCELs of § 721.1725(b)(1) apply to paragraph significant new uses subject to reporting. approach are approved by EPA will (a)(2)(i) of this section. (1) The chemical substance identified as receive NCELs provisions comparable to ■ 8. Add § 721.10414 to subpart E to 3H-indolium, 2-[2-[3-[2-(1,3-dihydro- those contained in the corresponding read as follows: 1,3,3-trimethyl-2H-indol-2- ylidene)ethylidene]-2-[(1-phenyl-1H- TSCA section 5(e) consent order. § 721.10414 Polycyclic polyamine diester (B) [Reserved] tetrazol-5-yl)thio]-1-cyclohexen-1- organometallic compound (generic) (P–10– yl]ethenyl]-1, 3, 3-trimethyl-, chloride (ii) Hazard communication program. 358). Requirements as specified in (1:1) (PMN P–11–128, CAS No. 440102– (a) Chemical substance and 72–7) is subject to reporting under this § 721.72(a), (b), (c), (d), (e) significant new uses subject to reporting. (concentration set at 0.1 percent), (f), section for the significant new uses (1) The chemical substance identified as described in paragraph (a)(2) of this (g)(1)(i), (g)(1)(vi), (g)(1)(vii), (g)(1)(ix), iron(1+), chloro[rel-1,5-dimethyl (g)(2)(i), (g)(2)(ii), (g)(2)(iii), (g)(2)(iv) section. (1R,2S,4R,5S)-9,9-dihydroxy-3-methyl- (2) The significant new uses are: (use respiratory protection or maintain 2,4-di(2-pyridinyl-.kappa.N)-7-[(2- (i) Industrial, commercial, and workplace airborne concentrations at or pyridinyl-.kappa.N)methyl]-3,7- consumer activities. Requirements as below an 8-hour time-weighted average diazabicyclo[3.3.1]nonane-1,5- 3 specified in § 721.80(s) (10,000 kilogram of 1.0 mg/m ), and (g)(5). dicarboxylate-.kappa.N3,.kappa.N7]-, (kg)). (iii) Industrial, commercial, and chloride (1:1), (OC–6–63)-(PMN P–10– (ii) [Reserved] consumer activities. Requirements as 358, CAS No. 478945–46–9) is subject to (b) Specific requirements. The specified in § 721.80(q). reporting under this section for the provisions of subpart A of this part (b) Specific requirements. The significant new uses described in apply to this section except as modified provisions of subpart A of this part paragraph (a)(2) of this section. The by this paragraph. apply to this section except as modified requirements of this section do not (1) Recordkeeping. Recordkeeping by this paragraph. apply to quantities of the PMN requirements as specified in (1) Recordkeeping. Recordkeeping substance after it has been completely § 721.125(a), (b), (c), and (i) are requirements as specified in reacted (cured). applicable to manufacturers, importers, § 721.125(a) through (i) are applicable to (2) The significant new uses are: and processors of this substance, manufacturers, importers, and (i) Protection in the workplace. (2) Limitations or revocation of processors of this substance. Requirements as specified in certain notification requirements. The

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provisions of § 721.185 apply to this (1) The chemical substance identified new uses described in paragraph (a)(2) section. generically as biphenyl alkyl of this section. The requirements of this ■ 10. Add § 721.10416 to subpart E to morpholino ketone (PMN P–11–338) is section do not apply to quantities of the read as follows: subject to reporting under this section PMN substance after it has been for the significant new uses described in completely reacted (cured). § 721.10416 Brominated polyphenyl ether paragraph (a)(2) of this section. (2) The significant new uses are: (generic) (P–11–264). (2) The significant new uses are: (i) Industrial, commercial, and (a) Chemical substance and (i) Release to water. Requirements as consumer activities. Requirements as significant new uses subject to reporting. specified in § 721.90(a)(4), (b)(4), and specified in § 721.80(k) (manufacture, (1) The chemical substance identified (c)(4) (N = 2). processing, distribution in commerce, generically as brominated polyphenyl (ii) [Reserved] and use of PMN P–11–561 substance ether (PMN P–11–264) is subject to (b) Specific requirements. The only as a polymer in automotive fuel reporting under this section for the provisions of subpart A of this part hoses; analysis and reporting and significant new uses described in apply to this section except as modified limitations of maximum impurity levels paragraph (a)(2) of this section. The by this paragraph. of certain fluorinated impurities). requirements of this section do not (1) Recordkeeping. Recordkeeping (ii) [Reserved] apply to quantities of the PMN requirements as specified in (b) Specific requirements. The substance after it has been completely § 721.125(a), (b), (c), and (k) are provisions of subpart A of this part reacted (cured). applicable to manufacturers, importers, apply to this section except as modified (2) The significant new uses are: and processors of this substance. by this paragraph. (i) Industrial, commercial, and (2) Limitations or revocation of (1) Recordkeeping. Recordkeeping consumer activities. Requirements as certain notification requirements. The requirements as specified in specified in § 721.80(j) (manufacture of provisions of § 721.185 apply to this § 721.125(a), (b), (c), and (i) are the substance at a molecular weight section. applicable to manufacturers, importers, greater than or equal to that described ■ 12. Add § 721.10418 to subpart E to and processors of this substance. in PMN P–11–264), § 721.80 (k) read as follows: (2) Limitations or revocation of (manufacture at the facility described in certain notification requirements. The PMN P–11–264 or by the process § 721.10418 1,2-Cyclohexanedicarboxylic provisions of § 721.185 apply to this described in PMN P–11–264 (changes in acid, 1-butyl 2-(phenylmethyl) ester. section. manufacturing processes include, but (a) Chemical substance and (3) Determining whether a specific use are not limited to, changes in feedstock, significant new uses subject to reporting. is subject to this section. The provisions reaction conditions, and/or product (1) The chemical substance is identified of § 721.1725(b)(1) apply to paragraph isolation and purification) unless the as 1,2-cyclohexanedicarboxylic acid, 1- (a)(2)(i) of this section. brominated dibenzodioxin (BDD)/ butyl 2-(phenylmethyl) ester (PMN P– ■ 14. Add § 721.10420 to subpart E to brominated dibenzofuran (BDF) testing 11–481, CAS No. 1200806–67–2) is read as follows: (EPA Test Method 8290A) required in subject to reporting under this section the consent order is conducted at the for the significant new uses described in § 721.10420 Fluoropolymers (generic) new facility or for the new paragraph (a)(2) of this section. (P–11–567, P–11–568, and P–11–569). manufacturing method and the test (2) The significant new uses are: (a) Chemical substance and results submitted to EPA within 16 (i) Release to water. Requirements as significant new uses subject to reporting. months of changing the manufacturing specified in § 721.90(a)(4), (b)(4), and (1) The chemical substances identified process or commencement of (c)(4) (N = 2). generically as fluoropolymers (PMNs manufacture at a different facility; (ii) [Reserved] P–11–567, P–11–568, and P–11–569) are manufacture of the substance where (b) Specific requirements. The subject to reporting under this section levels of the fifteen BDD/BDF congeners provisions of subpart A of this part for the significant new uses described in are detected at or below the Levels of apply to this section except as modified paragraph (a)(2) of this section. The Quantification (LOQs) published in by this paragraph. requirements of this section do not EPA’s Dioxin test rule (40 CFR 766.27)). (1) Recordkeeping. Recordkeeping apply to quantities of the PMN (ii) [Reserved] requirements as specified in substances after it has been completely (b) Specific requirements. The § 721.125(a), (b), (c), and (k) are reacted (cured). These PMN substances, provisions of subpart A of this part applicable to manufacturers, importers, which have been molded into final apply to this section except as modified and processors of this substance. articles and which are recycled into by this paragraph. (2) Limitations or revocation of non-virgin raw material are again (1) Recordkeeping. Recordkeeping certain notification requirements. The subject to the requirements of this requirements as specified in provisions of § 721.185 apply to this section. § 721.125(a), (b), (c), and (i) are section. (2) The significant new uses are: applicable to manufacturers, importers, ■ 13. Add § 721.10419 to subpart E to (i) Hazard communication program. A and processors of this substance. read as follows: significant new use of this substance is (2) Limitations or revocation of any manner or method of manufacture, certain notification requirements. The § 721.10419 Tetrafluoroethylene import, or processing associated with provisions of § 721.185 apply to this chlorotrifluoroethylene copolymer (generic) any use of this substance without section. (P–11–561). providing risk notification as follows: ■ 11. Add § 721.10417 to subpart E to (a) Chemical substance and (A) If as a result of the test data read as follows: significant new uses subject to reporting. required under the TSCA section 5(e) (1) The chemical substance identified consent order for this substance, the § 721.10417 Biphenyl alkyl morpholino generically as tetrafluoroethylene employer becomes aware that this ketone (generic) (P–11–338). chlorotrifluoroethylene copolymer substance may present a risk of injury (a) Chemical substance and (PMN P–11–561) is subject to reporting to human health, the employer must significant new uses subject to reporting. under this section for the significant incorporate this new information, and

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any information on methods for applicable to manufacturers, importers, § 721.125(a), (b), (c), and (i) are protecting against such risk, into a and processors of this substance. applicable to manufacturers, importers, Material Safety Data Sheet (MSDS) as (2) Limitations or revocation of and processors of this substance. described in § 721.72(c) within 90 days certain notification requirements. The (2) Limitations or revocation of from the time the employer becomes provisions of § 721.185 apply to this certain notification requirements. The aware of the new information. If this section. provisions of § 721.185 apply to this substance is not being manufactured, ■ 16. Add § 721.10422 to subpart E to section. imported, processed, or used in the read as follows: ■ 18. Add § 721.10424 to subpart E to employer’s workplace, the employer read as follows: must add the new information to a § 721.10422 Phenol, 2-[[[3-(1H-imidazol-1- yl)propyl]imino]phenylmethyl]-5-(octyloxy)-. § 721.10424 Benzoic acid, 4-(1,1- MSDS before the substance is dimethylethyl)-, methyl. reintroduced into the workplace. (a) Chemical substance and (B) The employer must ensure that significant new uses subject to reporting. (a) Chemical substance and persons who will receive this substance (1) The chemical substance identified as significant new uses subject to reporting. from the employer are provided a MSDS phenol, 2-[[[3-(1H-imidazol-1- (1) The chemical substance identified as as described in § 721.72(c) containing yl)propyl]imino]phenylmethyl]-5- benzoic acid, 4-(1,1-dimethylethyl)-, the information required under (octyloxy)- (PMN P–11–654, CAS No. methyl (PMN P–12–33, CAS No. 26537– paragraph (a)(2)(i)(A) of this section 1332716–20–7) is subject to reporting 19–9) is subject to reporting under this within 90 days from the time the under this section for the significant section for the significant new uses employer becomes aware of the new new uses described in paragraph (a)(2) described in paragraph (a)(2) of this information. of this section. section. (2) The significant new uses are: (ii) Industrial, commercial, and (2) The significant new uses are: (i) Release to water. Requirements as (i) Industrial, commercial, and consumer activities. Requirements as consumer activities. Requirements as specified in § 721.80(k) (analysis and specified in § 721.90(a)(4), (b)(4), and (c)(4) (N = 1). specified in § 721.80(g). reporting and limitations of maximum (ii) [Reserved] impurity levels of certain fluorinated (ii) [Reserved] (b) Specific requirements. The (b) Specific requirements. The impurities). provisions of subpart A of this part provisions of subpart A of this part (b) Specific requirements. The apply to this section except as modified provisions of subpart A of this part apply to this section except as modified by this paragraph. apply to this section except as modified by this paragraph. (1) Recordkeeping. Recordkeeping by this paragraph. (1) Recordkeeping. Recordkeeping requirements as specified in (1) Recordkeeping. Recordkeeping requirements as specified in § 721.125(a), (b), (c), and (i) are requirements as specified in § 721.125(a), (b), (c), and (k) are applicable to manufacturers, importers, § 721.125(a), (b), (c), and (i) are applicable to manufacturers, importers, and processors of this substance. applicable to manufacturers, importers, and processors of this substance. (2) Limitations or revocation of and processors of this substance. (2) Limitations or revocation of certain notification requirements. The (2) Limitations or revocation of certain notification requirements. The provisions of § 721.185 apply to this certain notification requirements. The provisions of § 721.185 apply to this section. section. provisions of § 721.185 apply to this ■ 19. Add § 721.10425 to subpart E to section. ■ 17. Add § 721.10423 to subpart E to read as follows: (3) Determining whether a specific use read as follows: is subject to this section. The provisions § 721.10425 Substituted alkylamides of § 721.1725(b)(1) apply to paragraph § 721.10423 Complex strontium aluminum, (generic) (P–12–51 and P–12–52). (a)(2)(ii) of this section. rare earth doped (generic) (P–12–22, P–12– (a) Chemical substance and 23, P–12–24, P–12–25, and P–12–26). ■ 15. Add § 721.10421 to subpart E to significant new uses subject to reporting. read as follows: (a) Chemical substances and (1) The chemical substances identified significant new uses subject to reporting. generically as substituted alkylamides § 721.10421 Mercaptoalkoxysilane (1) The chemical substances identified (PMNs P–12–51 and P–12–52) are (generic) (P–11–594). generically as complex strontium subject to reporting under this section (a) Chemical substance and aluminum, rare earth doped (PMNs for the significant new uses described in significant new uses subject to reporting. P–12–22, P–12–23, P–12–24, P–12–25, paragraph (a)(2) of this section. (1) The chemical substance identified and P–12–26) are subject to reporting (2) The significant new uses are: generically as mercaptoalkoxysilane under this section for the significant (i) Industrial, commercial, and (PMN P–11–594) is subject to reporting new uses described in paragraph (a)(2) consumer activities. Requirements as under this section for the significant of this section. specified in § 721.80(j). new uses described in paragraph (a)(2) (2) The significant new uses are: (ii) [Reserved] of this section. (i) Industrial, commercial, and (b) Specific requirements. The (2) The significant new uses are: consumer activities. Requirements as provisions of subpart A of this part (i) Release to water. Requirements as specified in § 721.80(j) (manufacture, apply to this section except as modified specified in § 721.90(a)(4), (b)(4), and processing, or use where no more than by this paragraph. (c)(4) (N = 2). 5% of particles are less than 10 (1) Recordkeeping. Recordkeeping (ii) [Reserved] microns). requirements as specified in (b) Specific requirements. The (ii) [Reserved] § 721.125(a), (b), (c), and (i) are provisions of subpart A of this part (b) Specific requirements. The applicable to manufacturers, importers, apply to this section except as modified provisions of subpart A of this part and processors of this substance. by this paragraph. apply to this section except as modified (2) Limitations or revocation of (1) Recordkeeping. Recordkeeping by this paragraph. certain notification requirements. The requirements as specified in (1) Recordkeeping. Recordkeeping provisions of § 721.185 apply to this § 721.125(a), (b), (c), and (k) are requirements as specified in section.

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(3) Determining whether a specific use submitted by email to Health Program within HHS. HHS is subject to this section. The provisions [email protected]. issued an interim final rule on July 1, of § 721.1725(b)(1) apply to paragraph SUPPLEMENTARY INFORMATION: This 2011 (76 FR 38914), which codified the (a)(2)(i) of this section. preamble is organized as follows: Program in 42 CFR Part 88. Sections [FR Doc. 2012–9965 Filed 4–24–12; 8:45 am] 88.1 through 88.16 were included in I. Public Participation that rulemaking; this final rule BILLING CODE 6560–50–P II. Background A. WTC Health Program Statutory establishing § 88.17 was developed in a Authority separate rulemaking. The WTC Health Program provides DEPARTMENT OF HEALTH AND B. Addition of New Health Conditions for Coverage in the WTC Health Program medical monitoring and treatment HUMAN SERVICES III. Summary of the Final Rule and Response benefits to eligible firefighters and [Docket No. CDC–2011–0010] to Comments related personnel, law enforcement IV. Regulatory Assessment Requirements officers, and rescue, recovery and 42 CFR Part 88 A. Executive Order 12866 and Executive cleanup workers (including those who Order 13563 are Federal employees) who responded RIN 0920–AA45 B. Regulatory Flexibility Act C. Paperwork Reduction Act to the September 11, 2001, terrorist World Trade Center Health Program D. Small Business Regulatory Enforcement attacks, and to eligible survivors of the Requirements for the Addition of New Fairness Act New York City attacks. The WTC Health WTC-Related Health Conditions E. Unfunded Mandates Reform Act of 1995 Program will expand to include eligible F. Executive Order 12988 (Civil Justice) firefighters and related personnel, law AGENCY: Centers for Disease Control and G. Executive Order 13132 (Federalism) enforcement officers, and rescue, Prevention, HHS. H. Executive Order 13045 (Protection of Children From Environmental Health recovery and cleanup workers who ACTION: Final rule. Risks and Safety Risks) responded to the September 11, 2001, I. Executive Order 13211 (Actions terrorist attacks at the Pentagon and SUMMARY: Title I of the James Zadroga Concerning Regulations That Shanksville, PA. The WTC Program 9/11 Health and Compensation Act of Significantly Affect Energy Supply, Administrator has gathered information 2010 amended the Public Health Service Distribution, or Use) that may serve as a basis for such Act (PHS Act) to establish the World J. Plain Writing Act of 2010 enrollment, and is working to develop Trade Center (WTC) Health Program. V. Final Rule eligibility criteria for these responder Sections 3311, 3312, and 3321 of Title I. Public Participation groups. XXXIII of the PHS Act require that the All references to the WTC Program HHS received comments from six WTC Program Administrator develop Administrator in this notice mean the individuals and organizations on the regulations to implement portions of the NIOSH Director or his or her designee. WTC Health Program established within notice of proposed rulemaking Title XXXIII of the PHS Act the Department of Health and Human published in the Federal Register on authorizes the WTC Program Services (HHS). The WTC Health July 1, 2011 (76 FR 38938). One Administrator to establish a process by Program, which is administered by the anonymous commenter expressed anger which health conditions, including Director of the National Institute for about the WTC Health Program’s cost to cancer, may be considered for addition Occupational Safety and Health American taxpayers; another individual to the list of WTC-related health (NIOSH), within the Centers for Disease asked that leukemia and other blood conditions. This final rule establishes Control and Prevention (CDC), provides cancers be added to the list of WTC- this process. medical monitoring and treatment to related health conditions; and a B. Addition of New Health Conditions eligible firefighters and related physician experienced with treating for Coverage in the WTC Health personnel, law enforcement officers, WTC-related health conditions Program and rescue, recovery and cleanup requested that a mental disorder be workers who responded to the added to the list of WTC-related health The list of WTC-related health September 11, 2001, terrorist attacks in conditions. Those comments are outside conditions defined in sections 3312 and New York City, Shanksville, PA, and at the scope of this rulemaking and could 3322 of Title XXXIII of the PHS Act may the Pentagon, and to eligible survivors not be considered. HHS received be amended in the future to add other of the New York City attacks. This final substantive comments from the New conditions for which exposure to rule establishes the processes by which York State Laborers’ Health & Safety airborne toxins, any other hazard, or any the WTC Program Administrator may Trust Fund, the Communication other adverse condition resulting from add a new condition to the list of WTC- Workers of America, and the WTC the September 11, 2001, terrorist related health conditions through Health Program Survivor Steering attacks, based on an examination by a rulemaking, including a process for Committee. Those comments are medical professional with experience in considering petitions by interested described and addressed below. treating or diagnosing the health parties to add a new condition. II. Background conditions included in the applicable list of WTC-related health conditions, is DATES: This final rule is effective May A. WTC Health Program Statutory 25, 2012. substantially likely to be a significant Authority factor in aggravating, contributing to, or FOR FURTHER INFORMATION CONTACT: Roy Title I of the James Zadroga 9/11 causing the illness or condition (Title M. Fleming, Sc.D., Senior Science Health and Compensation Act of 2010 XXXIII, Sec. 3312(a)(1)(A)(i)). Advisor, World Trade Center Health (Pub. L. 111–347), amended the Public Procedures for the addition of a new Program, Office of the Director, National Health Service Act (PHS Act) to add condition are established in this final Institute for Occupational Safety and Title XXXIII 1 establishing the WTC rule. The addition of a new condition Health, 1600 Clifton Road NE., MS–E74, Atlanta, GA 30329; telephone 866–426– 1 Title XXXIII of the Public Health Service Act is III of Public Law 111–347 do not pertain to the 3673 (this is a toll-free number). codified at 42 U.S.C. 300mm to 300mm–61. Those World Trade Center Health Program and are Information requests may also be portions of the Zadroga Act found in Titles II and codified elsewhere.

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could be initiated either by petition The provisions of § 88.17(a)(2) WTC Program Administrator has from an interested party or at the incorporate specifications in Title determined not to publish an NPRM or discretion of the WTC Program XXXIII of the PHS Act regarding the where the Administrator determines Administrator, as specified in this final addition of new conditions. Within 60 that insufficient evidence exists to take rule. days of receipt of the petition, the WTC action on a petition. Program Administrator will either: HHS response: According to the III. Summary of Final Rule and request a recommendation of the WTC requirements of Title XXXIII of the PHS Response to Comments Health Program Scientific/Technical Act, the Committee’s role is to review Section 88.1 Definitions Advisory Committee (STAC); open the evidence and make recommendations to proposed condition to public comment the WTC Program Administrator at the This amendment to Part 88 would add by publishing a notice of proposed request of the Administrator, not to the definition of ‘‘interested party’’ to rulemaking (NPRM) in the Federal provide unsolicited reviews. Any work the list of definitions established by Register; publish the WTC Program conducted by the STAC must be interim final rule on July 1, 2011 (76 FR Administrator’s determination not to consistent with the purposes for which 38914). publish an NPRM; or publish in the the Committee may be utilized as Comment: HHS received two Federal Register a determination that identified by the statute and the comments requesting that the definition not enough evidence exists to perform Committee charter. Therefore, this of ‘‘interested party’’ be expanded to any of the above actions. HHS has comment is not adopted. reference survivor organizations. amended the final rule text to Subsection (b) also incorporates the HHS response: The definition of acknowledge that a petition may request statutory requirement that the WTC ‘‘interested party’’ was taken directly the addition of more than one health Program Administrator may publish an from Title I of the James Zadroga 9/11 condition. NPRM concerning the addition of a Health and Compensation Act of 2010. HHS has also inserted § 88.17(a)(4) WTC-related health condition to the list. Although the statutory definition of into the final rule to clarify that the The Administrator would consider ‘‘interested party’’ does not explicitly Administrator shall be required to publishing an NPRM where the review mention ‘‘survivor organizations,’’ HHS reconsider a previously-considered (but of cancers required by Sec. 3312(a)(5)(A) believes that the definition includes not added) health condition for of Title XXXIII of the PHS Act indicates ‘‘survivor organizations.’’ HHS does not inclusion on the list of WTC-related that a type of cancer should be added, agree that amending the rule text is health conditions in response to a or where the review of WTC Health necessary and is therefore not amending petition only when the petition includes Program monitoring data reveals the the definition. a new medical basis for the association prevalence of a condition not previously Section 88.17 Addition of Health between the terrorist attacks and the identified by the statute or Program. The Conditions to the List of WTC-Related condition. A new medical basis could protocol for such a review will take into Health Conditions include a health study, whether original account an evaluation of the exposure or updated, not previously considered data associated with the terrorist In accordance with the requirements by the WTC Program Administrator. A attacks, and an evaluation of available specified in Title XXXIII of the PHS Act, new clinical case report on a particular epidemiologic, toxicologic, and medical § 88.17 establishes the process by which health condition which compiles data evidence relevant to evaluating the an interested party could petition the from one or more patients may not possible association between the health WTC Program Administrator to add a necessarily be considered a new condition under consideration and condition to the list of WTC-related medical basis if the Administrator has exposures associated with the health conditions identified in § 88.1. previously considered one or more cases September 11, 2001, terrorist attacks. Under the provisions of § 88.17(a)(1), of the health condition. The How these various relevant sources of the petition must include the name and Administrator retains the discretion, scientific and medical information will contact information of the interested however, to reconsider a health be evaluated, separately and in relation party; the name and description of the condition for any reason on his own to each other, will depend on the condition the party would like the WTC initiative, with or without the receipt of evidence available for a given health Program Administrator to add to the list a petition. condition under consideration. HHS of WTC-related health conditions; and Comment: One commenter requested notes that scientists generally look for an explanation of the reasons for adding that all submitted petitions be shared consistency in terms of disease- the condition, which must include the with the STAC regardless of whether the mechanism theories, toxicologic and medical basis for the association WTC Program Administrator seeks a epidemiologic findings, and medical between the September 11, 2001, formal recommendation from the observation. The addition of any health terrorist attacks and the condition to be Committee. condition requires rulemaking, and the added. HHS response: HHS appreciates this public will have the opportunity to HHS has received some suggestion and agrees that, in the consider and comment on the review communications for which it is unclear interest of keeping the STAC informed methods applied in any actual case. whether the author intends to petition of relevant public interest, petitions The WTC Program Administrator may for the addition of a health condition or received by the WTC Program extend the comment period described whether the author is expressing Administrator will be shared with the above based upon a finding of good personal concerns. Since a petition Committee and with the public via the cause. In the case of such an extension, results in Federal action, as specified Program’s Web site. HHS does not the Administrator shall publish notice under this rule, it is important that the believe that amending the rule text is in the Federal Register. intent to petition be unambiguous. warranted. Comment: HHS received several Accordingly, HHS has amended the Comment: A commenter also asked comments concerning deadlines not final rule text to clarify that the petition that a mechanism be developed to allow specified in the regulatory text. One must state the petitioner’s intent to at least two members of the STAC to commenter suggested that HHS did not petition for the addition of a health request to consider a petition and make include every deadline related to the condition. a recommendation in the event that the addition of a WTC-related health

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condition provided by the statute. Two IV. Regulatory Assessment this rule has ‘‘no significant economic comments asked that we specify a time Requirements impact upon a substantial number of small entities’’ within the meaning of frame for the publication of an NPRM or A. Executive Order 12866 and Executive the Regulatory Flexibility Act (5 U.S.C. a Federal Register notice indicating that Order 13563 the WTC Program Administrator has 601 et seq.). determined not to publish an NPRM; Executive Orders 12866 and 13563 This regulation has no impact on one asked that we specify the direct agencies to assess all costs and small businesses or other small entities publication of an NPRM 30 days benefits of available regulatory as specified under the RFA. The rule following a STAC recommendation. alternatives of significant regulatory establishes procedures by which the Comments also requested that we actions and, if regulation is necessary, to WTC Health Program Administrator specify a time frame for publication of select regulatory approaches that may consider the addition of health a final rule; one asked that we require maximize net benefits (including conditions to the current statutory list of publication within 60 days after the potential economic, environmental, WTC-related health conditions covered close of an NPRM comment period. public health and safety effects, by this program. These procedures do distributive impacts, and equity). not impose any requirements or direct HHS response: Each deadline Executive Order 13563 emphasizes the costs on small entities. They do not specified by the PHS Act with regard to importance of quantifying both costs involve small entities, except that a this matter has been incorporated into and benefits, of reducing costs, of small entity could potentially be the regulatory text. We have specified a harmonizing rules, and of promoting considered an ‘‘interested party’’ under time frame for the publication of an flexibility. these procedures, eligible to petition the NPRM following a STAC This final rule is considered a WTC Program Administrator for the recommendation in Sec. 88.17(b)(2) ‘‘significant regulatory action’’ within addition of a health condition. according to the time frame specified in the meaning of E.O. 12866. The rule The Secretary of HHS has certified to the statute. We agree with commenters establishes processes by which the WTC the Chief Counsel, Office of Advocacy of who pointed out that we neglected to Program Administrator may consider the Small Business Administration, that specify a time frame for publication of the addition of health conditions to the this rule does not have a significant a Federal Register notice indicating a current statutory list of WTC-related impact on a substantial number of small decision not to publish an NPRM health conditions covered by this entities. Accordingly, no regulatory following receipt of a STAC program. This strictly procedural rule impact analysis is required. recommendation, and have amended does not itself propose the addition of C. Paperwork Reduction Act the rule text accordingly. However, any conditions and hence it does not Congress did not specify a time frame provide for any benefits nor impose any HHS has determined that this final for publication of a final rule. HHS is costs, other than the minor incidental rule contains data collection and record concerned that establishing such administrative costs to HHS of keeping requirements that are subject to requirements by regulation could considering possible additions. Under review by the Office of Management and negatively impact the thorough review any circumstance, HHS would be Budget (OMB) under the Paperwork of scientific evidence supporting or required to conduct rulemaking to make Reduction Act of 1955 (44 U.S.C. 3501– opposing the inclusion of a specific an addition, as required by Title XXXIII 3420). A description of these provisions health condition. Because of the need to of the PHS Act. Accordingly, any is given below with an estimate of the ensure that a thorough review has been quantifiable costs and benefits annual reporting burden. Included in conducted in all cases, HHS is not associated with adding a condition the estimate of the annual reporting making changes to the rule based on would be addressed in such future burden is the time for reviewing these comments. Every effort will be rulemaking. instructions, searching existing data made to promptly review public This rule does not adversely affect in sources, gathering and maintaining the comments and STAC recommendations, a material way the economy, a sector of data needed, and completing and and that publication of a final rule will the economy, productivity, jobs, the reviewing each collection of occur in as efficient and timely a environment, public health or safety, or information. These data collection and manner as is possible. State, local, or Tribal governments or record keeping requirements have been communities; it does not create a approved under OMB control number Comment: One commenter requested serious inconsistency or otherwise 0920–0929, exp. April 30, 2015. that HHS develop procedures for the interfere with an action taken or Project: Adding a Health Condition to WTC Program Administrator to notify planned by another agency; it does not the Statutory List of WTC–Related an individual when a new condition is materially alter the budgetary impact of Health Conditions (42 CFR 88.17)— added, if the individual was previously entitlements, grants, user fees, or loan New—National Institute for denied coverage for that condition. programs or the rights and obligations of Occupational Safety and Health HHS response: Information about recipients thereof; nor does it raise (NIOSH), Centers for Disease Control newly-added WTC-related health novel legal or policy issues arising out and Prevention (CDC). conditions will be provided on the WTC of legal mandates, the President’s Background and Brief Description: Health Program Web site and shared priorities, or the principles set forth in Title I of the James Zadroga Health and with all Program physicians. Program E.O. 12866. Compensation Act of 2010 amended the physicians would be best placed to Public Health Service Act (PHS Act) to advise individuals on whether applying B. Regulatory Flexibility Act establish the World Trade Center (WTC) for certification of a newly-designated The Regulatory Flexibility Act (RFA), Health Program. Sections 3311, 3312, WTC-related health condition is 5 U.S.C. 601 et seq., requires each and 3321 of Title XXXIII of the PHS Act appropriate. The WTC Health Program agency to consider the potential impact require that the WTC Program will consider this request further to of its regulations on small entities Administrator develop regulations to identify other ways in which Program including small businesses, small implement portions of the WTC Health participants may be notified of a new governmental units, and small not-for- Program established within the WTC-related health condition. profit organizations. HHS believes that Department of Health and Human

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Services (HHS). This final rule Related Health Conditions,’’ describes certified-eligible survivors, or members establishes the processes by which the the process and data collection of groups who advocate on behalf of WTC Program Administrator may add a requirements that an interested party responders or survivors. We estimate new condition to the list of WTC-related should follow to petition the WTC that an individual will spend an average health conditions through rulemaking, Program Administrator to add a of 40 hours gathering information to including a process for considering condition to the list of WTC-related substantiate a request to add a health petitions by interested parties to add a health conditions. HHS expects to condition and assembling the petition. new condition; the process will be receive no more than 100 petitions HHS requests input from the public on codified at 42 CFR 88.17. annually. We assume that interested these estimates, which are reflected in Section 88.17, entitled ‘‘Addition of parties will be enrolled WTC the table below. The total burden on the Health Conditions to the List of WTC– responders, screening-eligible survivors, public is estimated to be 4,000 hours.

Number of Average Number of responses burden per Type of respondent Form name respondents per response respondent (in hours)

Responder/Survivor/Advocate ...... Petition for the addition of health conditions 100 1 40

D. Small Business Regulatory power and responsibilities among the Human Services amends 42 CFR part 88 Enforcement Fairness Act various levels of government.’’ as follows: ■ As required by Congress under the H. Executive Order 13045 (Protection of 1. The authority citation for part 88 Small Business Regulatory Enforcement Children From Environmental Health continues to read as follows: Fairness Act of 1996 (5 U.S.C. 801 et Risks and Safety Risks) Authority: 42 U.S.C. 300mm–300mm–61, seq.), HHS will report the promulgation Pub. L. 111–347, 124 Stat. 3623. In accordance with Executive Order of this rule to Congress prior to its 13045, HHS has evaluated the ■ 2. Amend § 88.1 by adding the effective date. environmental health and safety effects definition of ‘‘interested party’’ in E. Unfunded Mandates Reform Act of of this rule on children. HHS has alphabetical order to read as follows: 1995 determined that the rule would have no § 88.1 Definitions. environmental health and safety effect Title II of the Unfunded Mandates on children. * * * * * Reform Act of 1995 (2 U.S.C. 1531 et Interested party means a seq.) directs agencies to assess the I. Executive Order 13211 (Actions representative of any organization effects of Federal regulatory actions on Concerning Regulations That representing WTC responders, a State, local, and Tribal governments, Significantly Affect Energy Supply, nationally recognized medical and the private sector ‘‘other than to the Distribution, or Use) association, a WTC Health Program extent that such regulations incorporate In accordance with Executive Order Clinical Center of Excellence or Data requirements specifically set forth in 13211, HHS has evaluated the effects of Center, a State or political subdivision, law.’’ For purposes of the Unfunded this final rule on energy supply, or any other interested person. Mandates Reform Act, this final rule distribution or use, and has determined * * * * * does not include any Federal mandate that the rule will not have a significant ■ 3. Add § 88.17 to read as follows: that may result in increased annual adverse effect. expenditures in excess of $100 million § 88.17 Addition of health conditions to by State, local or Tribal governments in J. Plain Writing Act of 2010 the list of WTC-related health conditions. the aggregate, or by the private sector. Under Public Law 111–274 (October (a) Any interested party may petition For 2011, the inflation adjusted 13, 2010), executive Departments and the WTC Program Administrator to add threshold is $136 million. Agencies are required to use plain a condition to the list of WTC-related F. Executive Order 12988 (Civil Justice) language in documents that explain to health conditions. the public how to comply with a (1) Each petition shall state an intent This final rule has been drafted and requirement the Federal Government to petition and be sent to the WTC reviewed in accordance with Executive administers or enforces. HHS has Program Administrator. The petition Order 12988, ‘‘Civil Justice Reform,’’ attempted to use plain language in shall include: and will not unduly burden the Federal promulgating the final rule consistent (i) Name and contact information of court system. This rule has been with the Federal Plain Writing Act the interested party; reviewed carefully to eliminate drafting guidelines. (ii) Name and description of the errors and ambiguities. condition(s) to be added; and V. Final Rule G. Executive Order 13132 (Federalism) (iii) Reasons for adding the List of Subjects in 42 CFR Part 88 condition(s), including the medical HHS has reviewed this final rule in basis for the association between the accordance with Executive Order 13132 Aerodigestive disorders, Appeal September 11, 2001, terrorist attacks regarding federalism, and has procedures, Health care, Mental health and the condition(s) to be added. determined that it does not have conditions, Musculoskeletal disorders, (2) Not later than 60 days after the ‘‘federalism implications.’’ The rule Respiratory and pulmonary diseases. receipt of a petition, the WTC Program does not ‘‘have substantial direct effects Text of the Rule Administrator shall: on the States, on the relationship (i) Request a recommendation of the between the national government and For the reasons discussed in the WTC Health Program Scientific/ the States, or on the distribution of preamble, the Department of Health and Technical Advisory Committee; or

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(ii) Publish in the Federal Register a Dated: January 26, 2012. caused thereby, please contact Cathy proposed rule to add such health Kathleen Sebelius, Williams, Federal Communications condition; or Secretary, Department of Health and Human Commission, Room 1–C823, 445 12th (iii) Publish in the Federal Register Services. Street SW., Washington, DC 20554. Please include the OMB Control the WTC Program Administrator’s [FR Doc. 2012–9425 Filed 4–24–12; 8:45 am] Number, 3060–1167, in your determination not to publish a proposed BILLING CODE P correspondence. The Commission will rule and the basis for that also accept your comments via the determination; or FEDERAL COMMUNICATIONS Internet if you send them to (iv) Publish in the Federal Register a COMMISSION [email protected] . determination that insufficient evidence To request materials in accessible exists to take action under paragraph 47 CFR Part 14 formats for people with disabilities (a)(2)(i) through (iii) of this section. (Braille, large print, electronic files, [CG Docket No. 10–213 and 10–145, WT audio format), send an email to (3) The WTC Program Administrator Docket No. 96–198; FCC 11–151] [email protected] may consider more than one petition or call the Consumer and Governmental simultaneously when the petitions Implementing the Provisions of the Communications Act of 1934, as Affairs Bureau at (202) 418–0530 propose the addition of the same health (voice), (202) 418–0432 (TTY). condition. Scientific/Technical Enacted by the Twenty-First Century Advisory Committee recommendations Communications and Video Synopsis and Federal Register notices initiated Accessibility Act of 2010 As required by the Paperwork by the WTC Program Administrator AGENCY: Federal Communications Reduction Act of 1995 (44 U.S.C. 3507), pursuant to paragraph (a)(2) of this Commission. the FCC is notifying the public that it section may respond to more than one ACTION: Final rule; announcement of received OMB approval on April 16, petition. effective date. 2012, for the information collection requirements contained in the (4) The WTC Program Administrator SUMMARY: In this document, the Commission’s rules at 47 CFR 14.5, shall be required to consider a new Commission announces that the Office 14.20(d), 14.31, 14.32, and 14.34 petition for a health condition of Management and Budget (OMB) has through 14.52. previously reviewed by the WTC approved, for a period of three years, the Under 5 CFR 1320, an agency may not Program Administrator and determined information collection associated with conduct or sponsor a collection of not to qualify for addition to the list of the Commission’s document information unless it displays a current, WTC-related health conditions only if Implementing the Provisions of the valid OMB Control Number. the new petition presents a new medical Communications Act of 1934, as No person shall be subject to any basis (i.e., not previously reviewed) for Enacted by the Twenty-First Century penalty for failing to comply with a the association between the September Communications and Video collection of information subject to the 11, 2001, terrorist attacks and the Accessibility Act of 2010, (Report and Paperwork Reduction Act that does not condition to be added. Order). This notice is consistent with display a current, valid OMB Control the Report and Order, which stated that Number. The OMB Control Number is (b) The WTC Program Administrator 3060–1167. may propose to add a condition to the the Commission would publish a document in the Federal Register The foregoing notice is required by list of WTC-related health conditions by the Paperwork Reduction Act of 1995, publishing a proposed rule in the announcing the effective date of those rules. Pub. L. 104–13, October 1, 1995, and Federal Register and providing 44 U.S.C. 3507. interested parties a period of 30 days to DATES: The amendments to 47 CFR 14.5, The total annual reporting burdens submit written comments. The WTC 14.20(d), 14.31, 14.32, and 14.34 and costs for the respondents are as Program Administrator may extend the through 14.52, published at 76 FR follows: comment period for good cause. 82354, December 30, 2011, are effective OMB Control Number: 3060–1167. April 25, 2012. OMB Approval Date: April 16, 2012. (1) If the WTC Program Administrator FOR FURTHER INFORMATION CONTACT: OMB Expiration Date: April 30, 2015. requests a recommendation from the Rosaline Crawford, Disability Rights Title: Accessible Telecommunications WTC Health Program Scientific/ Office, Consumer and Governmental and Advanced Communications Technical Advisory Committee, the Affairs Bureau, at (202) 418–2075, or Services and Equipment. Advisory Committee shall submit its email [email protected]. Form Number: N/A. recommendation to the WTC Program Type of Review: New collection. SUPPLEMENTARY INFORMATION: This Administrator no later than 60 days Respondents: Individuals or document announces that, on April 16, after the date of the transmission of the households; businesses or other for- 2012, OMB approved, for a period of request or no later than a date specified profit entities; not-for-profit institutions. three years, the information collection Number of Respondents and by the Administrator (but not more than requirements contained in the 180 days after the request). If the WTC Responses: 9,454 respondents; 119,660 Commission’s Report and Order, FCC responses. Program Administrator decides to 11–151, published at 76 FR 82354, Estimated Time per Response: .50 to publish a proposed rule or a December 30, 2011. The OMB Control 40 hours. determination not to publish a proposed Number is 3060–1167. The Commission Frequency of Response: Annual, one rule in the Federal Register, he or she publishes this notice as an time, and on occasion reporting shall do so no later than 60 days after announcement of the effective date of requirements; recordkeeping the date of transmission of the Advisory the rules. If you have any comments on requirement; third-party disclosure Committee recommendation. the burden estimates listed below, or requirement. (2) [Reserved] how the Commission can improve the Obligation to Respond: Mandatory. collections and reduce any burdens Statutory authority for this information

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collection is contained in sections 1–4, achievable. See 47 U.S.C. 617. Section providers and equipment manufacturers 255, 303(r), 403, 503, 716, 717, and 718 717 of the Act establishes new are not required to keep records of their of the Act, 47 U.S.C. 151–154, 255, recordkeeping requirements and consideration of achievability or the 303(r), 403, 503, 617, 618, and 619. enforcement procedures for service implementation of accessibility, but Total Annual Burden: 408,695 hours. providers and equipment manufacturers they must be prepared to carry their Total Annual Cost: $110,588. that are subject to sections 255, 716, and burden of proof in any enforcement Nature and Extent of Confidentiality: 718 of the Act. See 47 U.S.C. 618. proceeding, which requires greater than Confidentiality is an issue to the extent Section 255 of the Act requires conclusory or unsupported claims. that individuals and households telecommunications and interconnected (c) The CVAA and the rules adopted provide personally identifiable VoIP services and equipment to be in document FCC 11–151 require an information, which is covered under the accessible, if readily achievable. See 47 officer of service providers and FCC’s system of records notice (SORN), U.S.C. 255. Section 718 of the Act equipment manufacturers that are FCC/CGB–1, ‘‘Informal Complaints and requires web browsers included on subject to sections 255, 716, or 718 of Inquiries.’’ As required by the Privacy mobile phones to be accessible to and the Act to certify annually to the Act, 5 U.S.C. 552a, the Commission also usable by individuals who are blind or Commission that records are kept in published a SORN, FCC/CGB–1 have a visual impairment, unless doing accordance with the recordkeeping ‘‘Informal Complaints and Inquiries,’’ in so is not achievable. See 47 U.S.C. 619. requirements. The certification must be the Federal Register on December 15, Specifically, the rules adopted in supported with an affidavit or 2009 (74 FR 66356) which became document FCC 11–151 have the declaration under penalty of perjury, effective on January 25, 2010. following possible related information signed and dated by an authorized In addition, upon the service of an collection requirements: officer of the entity with personal informal or formal complaint, a service (a) The rules adopted in document knowledge of the representations provider or equipment manufacturer FCC 11–151 establish procedures for provided in the company’s certification, must produce to the Commission, upon advanced communications service verifying the truth and accuracy of the request, records covered by 47 CFR providers and equipment manufacturers information. The certification must also to seek waivers from the accessibility 14.31 of the Commission’s rules and identify the name and contact details of obligations of section 716 of the Act may assert a statutory request for the person or persons within the and, in effect, waivers from the confidentiality for these records. All company that are authorized to resolve recordkeeping requirements and other information submitted to the accessibility complaints, and the agent enforcement procedures of section 717 Commission pursuant to Subpart D of designated for service of process. The of the Act. Waiver requests may be Part 14 of the Commission’s rules or to certification must be filed with the submitted for individual or class any other request by the Commission Consumer and Governmental Affairs offerings of services or equipment may be submitted pursuant to a request Bureau on or before April 1 each year which are designed for multiple for confidentiality in accordance with for records pertaining to the previous purposes, but are designed primarily for 47 CFR 0.459 of the Commission’s rules. purposes other than using advanced calendar year. The certification must be Privacy Impact Assessment: Yes. The communications services. All such updated when necessary to keep the Privacy Impact Assessment (PIA) was waiver petitions will be put on public contact information current. completed on June 28, 2007. It may be notice for comments and oppositions. (d) The Commission also established reviewed at: . The service providers and equipment informal complaints alleging violations Commission is in the process of manufacturers that are subject to of sections 255, 716, or 718 of the Act. updating the PIA to incorporate various sections 255, 716, or 718 of the Act to Those procedures include a revisions made to the SORN. maintain records of the following: (1) nondiscretionary pre-filing notice Note: The Commission will prepare a Their efforts to consult with people with procedure to facilitate dispute revision to the SORN and PIA to cover the disabilities; (2) descriptions of the resolution. As a prerequisite to filing an PII collected related to this information accessibility features of their products informal complaint, complainants must collection, as required by OMB’s and services; and (3) information about first request dispute assistance from the Memorandum M–03–22 (September 26, the compatibility of their products with Consumer and Governmental Affairs 2003) and by the Privacy Act, 5 U.S.C. 552a. peripheral devices or specialized Bureau’s Disability Rights Office. Needs and Uses: On October 7, 2011, customer premises equipment The rules adopted in document FCC in document FCC 11–151, the commonly used by individuals with 11–151 temporarily exempt advanced Commission released a Report and disabilities to achieve access. These communications service providers and Order adopting final rules to implement recordkeeping requirements are equipment manufacturers from the sections 716 and 717 of the necessary to facilitate enforcement of accessibility obligations of section 716 Communications Act of 1934 (the Act), accessibility obligations. Document FCC of the Act and, in effect, from the as amended, which were added to the 11–151 provides flexibility by allowing recordkeeping requirements and Act by the ‘‘Twenty-First Century covered entities to keep records in any enforcement procedures of section 717 Communications and Video format, recognizing the unique of the Act, if they qualify as small Accessibility Act of 2010’’ (CVAA). See recordkeeping methods of individual business concerns under the Small Public Law 111–260, § 104. Section 716 entities. Because complaints regarding Business Administration’s (SBA) rules of the Act requires providers of accessibility of a service or equipment and size standards for the industry in advanced communications services and may not occur for years after the release which they are primarily engaged. manufacturers of equipment used for of the service or equipment, covered These size standards are based on the advanced communications services to entities must keep records for two years maximum number of employees or make their services and equipment from the date the service ceases to be maximum annual receipts of a business accessible to individuals with offered to the public or the equipment concern. The SBA categorizes industries disabilities, unless doing so is not ceases to be manufactured. Service for its size standards using the North

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American Industry Classification Instructions: All comments received specifications and management System (NAICS). are a part of the public record and will measures are codified in the CFR Federal Communications Commission. generally be posted to http:// (50 CFR part 660, subparts C through G). Changes to current groundfish Marlene H. Dortch, www.regulations.gov without change. All Personal Identifying Information (for management measures implemented by Secretary, Office of the Secretary, Office of this action were recommended by the the Managing Director. example, name, address, etc.) voluntarily submitted by the commenter Council, in consultation with Pacific [FR Doc. 2012–9912 Filed 4–24–12; 8:45 am] may be publicly accessible. Do not Coast Treaty Indian Tribes and the BILLING CODE 6712–01–P submit Confidential Business States of Washington, Oregon, and Information or otherwise sensitive or California, at its April 1–April 6, 2012 protected information. meeting. The Council recommended DEPARTMENT OF COMMERCE NMFS will accept anonymous adjusting the biennial groundfish comments (enter N/A in the required management measures for the remainder National Oceanic and Atmospheric fields, if you wish to remain of the biennial period to respond to Administration anonymous). You may submit updated fishery information and attachments to electronic comments in additional inseason management needs. 50 CFR Part 660 Microsoft Word, Excel, WordPerfect, or The adjustment to fishery management [Docket No. 100804324–1265–02] Adobe PDF file formats only. measures are not expected to result in greater impacts to overfished species RIN 0648–BC11 FOR FURTHER INFORMATION CONTACT: Colby Brady (Northwest Region, NMFS), than originally projected through the Magnuson-Stevens Act Provisions; phone: 206–526–6117, fax: 206–526– end of 2012. Estimated mortality of Fisheries off West Coast States; 6736, [email protected]. overfished and target species are the result of management measures Biennial Specifications and SUPPLEMENTARY INFORMATION: Management Measures; Inseason designed to achieve, to the extent Adjustments Electronic Access possible, but not exceed, annual catch This final rule is accessible via the limits (ACLs) of target species while AGENCY: National Marine Fisheries Internet at the Office of the Federal fostering the rebuilding of overfished Service (NMFS), National Oceanic and Register’s Web site at http:// stocks by remaining within their Atmospheric Administration (NOAA), www.gpo.gov/fdsys/search/home.action. rebuilding ACLs. Commerce. Background information and documents Limited Entry Fixed Gear Fishery ACTION: Final rule; inseason adjustments are available at the Pacific Fishery Management Measures to biennial groundfish management Management Council’s Web site at measures; request for comments. http://www.pcouncil.org/. Sablefish Daily Trip Limit Fishery In 2011, the amount of sablefish SUMMARY: This final rule announces an Background harvested in the limited entry fixed gear inseason change to management The Pacific Coast Groundfish FMP sablefish daily trip limit (DTL) fishery measures in the Pacific Coast groundfish and its implementing regulations at title North of 36° N. lat. exceeded its fisheries. This action, which is 50 in the Code of Federal Regulations sablefish allocation by 60 mt above its authorized by the Pacific Coast (CFR), part 660, subparts C through G, collective target (the northern DTL fixed Groundfish Fishery Management Plan regulate fishing for over 90 species of gear share). This did not impact the (FMP), is intended to allow fisheries to groundfish off the coasts of Washington, northern sablefish ACL, since the access more abundant groundfish stocks Oregon, and California. Groundfish rationalized Individual Fishing Quota while protecting overfished and specifications and management (IFQ) trawl fishery left 148 mt of depleted stocks. This rule also measures are developed by the Pacific sablefish un-harvested in the northern implements changes to the incidental Fishery Management Council (Council), area. However, it is expected that since retention allowance for halibut in the and are implemented by NMFS. the IFQ fishery participants have one primary sablefish fishery under the On November 3, 2010, NMFS full year of experience in the IFQ authority of the Northern Pacific Halibut published a proposed rule to implement fishery, then higher sablefish allocation Act. the 2011–2012 harvest specifications attainments will be attained, in which DATES: Effective 0001 hours (local time) and management measures for most case another overage by the northern LE May 1, 2012. Comments on this final species of the Pacific Coast groundfish fixed gear could possibly exceed the rule must be received no later than May fishery (75 FR 67810). The final rule to northern sablefish ACL. To ensure that 25, 2012. implement the 2011–12 harvest harvest opportunities for this healthy ADDRESSES: You may submit comments, specifications and management stock do not exceed the northern LE identified by FDMS docket number measures for most species of the Pacific fixed gear share allocation, the Council NOAA–NMFS–2010–0194 by any one of Coast Groundfish Fishery was published considered decreases to trip limits for the following methods: on May 11, 2011 (76 FR 27508). This sablefish in this fishery and the • Electronic Submissions: Submit all final rule was subsequently amended by potential impacts on overall catch electronic public comments via the several inseason actions (76 FR 39313, levels. Landings projections were made Federal eRulemaking Portal http:// 76 FR 67092, 76 FR 79122, 77 FR 12503, by the Council advisory Groundfish www.regulations.gov. 77 FR 22679). On September 27, 2011, Management Team (GMT) for the • Fax: 206–526–6736, Attn: Colby NMFS published a proposed rule to northern LE fixed gear fishery under the Brady implement final 2012 specifications for current 2012 trip limit scenario, which • Mail: William W. Stelle, Jr., overfished species and assessed flatfish projected an overage in the LE North Regional Administrator, Northwest species pursuant to Secretarial fishery of 16%, or 43 mt. Projections for Region, NMFS, 7600 Sand Point Way Amendment 1 to the Groundfish FMP the other three fixed gear sablefish NE., Seattle, WA 98115–0070, Attn: (76 FR 59634). That final rule was fisheries were tracking within their Colby Brady. effective January 1, 2012. These targets for 2012.

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Therefore, the Council recommended halibut in the sablefish primary fishery, groundfish management measures under and NMFS is implementing trip limit and stay below the lower 2012 Pacific 5 U.S.C. 553(b) because notice and changes for the limited entry fixed gear halibut allocation. After the opportunity comment would be impracticable and fishery North of 36° N. lat. that decrease for public review and comment, the contrary to the public interest. Also, for sablefish DTL fishery limits from ‘‘1,300 Council, at their April meeting, made the same reasons, NMFS finds good lb (590 kg) per week, not to exceed their final recommendation for adjusting cause to waive the 30-day delay in 5,000 lb (2,268 kg) of per 2 months’’ to the incidental retention limits for effectiveness pursuant to 5 U.S.C. ‘‘1,000 lb (454 kg) per week, not to Pacific halibut in the sablefish primary 553(d)(3), so that this final rule may exceed 4,000 lb (1,814 kg) per 2 fishery in order to allow incidental take become effective May 1, 2012. months’’ beginning in period 3, May 1, and keep mortality of halibut below the For the following reasons, NMFS 2012 through the end of the year. This 2012 catch limit of 21,173 lb (9,604 kg). finds good cause to waive prior public decrease in trip limits is not anticipated In order to allow incidental halibut notice and comment on the revisions to to increase projected impacts to catch in the sablefish primary fishery, groundfish management measures under overfished species. which is currently not allowed, the 5 U.S.C. 553(b)(3)(B) because notice and Council recommended and NMFS is comment would be impracticable and Incidental Halibut Retention implementing incidental halibut contrary to the public interest. Also, for The International Pacific Halibut retention regulations at 50 CFR the same reasons, NMFS finds good Commission (IPHC) establishes total 660.231(b)(3)(iv) to read as follows: ‘‘50 cause to waive the 30-day delay in allowable catch (TAC) amounts for lb (23 kg) dressed weight of halibut for effectiveness pursuant to 5 U.S.C. Pacific halibut each year in January. every 1,000 pounds (454 kg) dressed 553(d)(3), so that this final rule may Under the authority of the Northern weight of sablefish landed and up to 2 become effective May 1, 2012. Pacific Halibut Act, and implementing additional halibut in excess of the 50- The recently available information regulations at 50 CFR 300.63, a catch pounds-per-1,000-pound ratio per upon which the changes to the sharing plan, developed by the Pacific landing.’’ NMFS in including incidental halibut retention in the Council and implemented by the enforcement related provisions sablefish primary fishery north of Pt. Secretary, allocates portions of the recommended by the Council in 2009, Chehalis, WA (46°53.30′ N. lat.), and the annual TAC among fisheries off the last time an incidental allowance subsequent proposed management Washington, Oregon, and California. was allowed. Consequently, the landing measure changes are based were The catch sharing plan for Pacific requirement applies also to possession, originally provided to the Council, and halibut fisheries in Area 2A (waters off and the term ‘‘dressed’’ is described to the Council made its potential the U.S. West coast) allows an mean halibut landed eviscerated with recommendations available for public incidental total catch limit for halibut their heads on. comment, at its March 2–7, 2012 for the 2012 sablefish primary season meeting. The Council considered the (i.e. tier limit fishery) of 21,173 lb (9,604 Classification public comments on this matter as well kg). This total catch limit of 21,173 lb These actions are taken under the as additional recently available (9,604 kg) in 2012 is higher than what authority of 50 CFR 660.60(c) and 50 information upon which the changes to has been available to the sablefish CFR 300.63(b)(3) and are exempt from the limited entry fixed gear sablefish primary fishery in recent years (2010– review under Executive Order 12866. trip limits North of 36° N. lat. at its 11), which was not high enough to These increases in sablefish limits are April 1–6, 2012 meeting. At the April justify an incidental catch limit of taken under the authority of the Council meeting, the Council halibut in the sablefish primary fishery Magnuson-Stevens Fishery recommended that these changes be north of Pt. Chehalis, WA (46°53.30′ N. Conservation and Management Act implemented by May 1, 2012. There was lat.). The retention limits for halibut (Magnuson-Stevens Act), and are in not sufficient time after that meeting to were not revised as part of the 2011– accordance with 50 CFR part 660, the draft this document and undergo 2012 harvest specifications and regulations implementing the FMP. The proposed and final rulemaking before management measures because the Total adjustment to the halibut incidental these actions need to be in effect. For Allowable Catch of halibut for 2012 was catch limit in the sablefish primary the actions to be implemented in this not determined until the IPHC meeting fishery is taken under the authority of final rule, affording the time necessary in January, 2012. Although the the Northern Pacific Halibut Act and for prior notice and opportunity for International Pacific Halibut implementing regulations, and is public comment would prevent NMFS Commission (IPHC) recommended consistent with the approved catch from managing fisheries using the best coast-wide catch limits for 2012 totaled sharing plan. These actions are based on available science to approach, without 33,540,000 lb (15,213,488 kg), which is the most recent data available. The exceeding, the ACLs for federally a coast-wide decrease of 18.3% from the aggregate data upon which these actions managed species in accordance with the 2011 catch limit of 41,070,000 lb. are based are available for public FMP and applicable laws. The (18,629,038 kg), the area 2A allocation inspection at the Office of the adjustments to management measures in increased 8% from 910,000 lb. (412,769 Administrator, Northwest Region, this document affect commercial kg) in 2011 to 989,000 lb. (448,603 kg) NMFS, (see ADDRESSES) during business fisheries off northern California to for 2012. Due to the increase in the hours. Washington State. These adjustments to Pacific halibut TAC for area 2A, and the This final rule makes routine inseason management measures must be resulting increase in the amount of adjustments to groundfish fishery implemented in a timely manner, by Pacific halibut available to the sablefish management measures based on the best May 1, 2012, to: Allow fishermen an primary fishery as incidental take, the available information and is taken opportunity to harvest their limits in Council considered options to revise the pursuant to the regulations 2012 for sablefish, and allow incidental catch ratio established in the groundfish implementing the Pacific Coast catch of halibut in the sablefish primary regulations at 50 CFR 660.231 at their Groundfish FMP. fishery to keep impacts below the 2012 first opportunity, the March 2012 For the following reasons, NMFS halibut Area 2A allocation. meeting. These options were developed finds good cause to waive prior public Decreases to the sablefish cumulative to reduce incidental impacts to Pacific notice and comment on the revisions to limits in the limited entry fixed gear

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fishery continue to allow fishermen be contrary to the public interest to wait Authority: 16 U.S.C. 1801 et seq., 16 opportunities to harvest available to implement these changes until after U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq. healthy stocks while staying within the public notice and comment, because a ■ 2. In § 660.231, paragraph (b)(3)(iv) is delay in reducing retention limits could ACLs for these species. Furthermore, revised to read as follows: these adjustments to management cause incidental halibut to be measures must be implemented in a unavailable for harvest for as long as § 660.231 Limited entry fixed gear timely manner to allow limited entry possible throughout the sablefish sablefish primary fishery management. primary sablefish fishermen North of Pt. primary season, which runs through * * * * * Chehalis, WA (46°53.30′ N. lat.) to October 31. prosecute their intended sablefish No aspect of this action is (b) * * * fishing strategies while accessing a controversial and no change in (3) * * * operating practices in the fishery is portion of incidental halibut bycatch in (iv) Incidental halibut retention north required from those intended in this a manner that is consistent with the 2A of Pt. Chehalis, WA (46°53.30′ N. lat.). catch sharing plan. If this rule is not inseason adjustment. Delaying these changes would also From May 1 through October 31, vessels implemented immediately, the public authorized to participate in the sablefish could have incorrect information keep management measures in place that are not based on the best available primary fishery, licensed by the regarding allowed limited entry fixed information. Such delay would impair International Pacific Halibut gear sablefish trip limits, and allowed achievement of the Pacific Coast Commission for commercial fishing in fishing activities for groundfish fisheries Groundfish FMP objectives of providing Area 2A (waters off Washington, management, which would cause for year-round harvest opportunities, Oregon, California), and fishing with confusion and be inconsistent with the extending fishing opportunities as long longline gear north of Pt. Chehalis, WA intent of the Council. It would be as practicable during the fishing year, or (46°53.30′ N. lat.) may possess and land contrary to the public interest to delay staying within ACLs or allocations for implementation of these changes until up to the following cumulative limits: Pacific halibut. after public notice and comment, 50 lb (23 kg) dressed weight of halibut Accordingly, for the reasons stated for every 1,000 pounds (454 kg) dressed because making this regulatory change above, NMFS finds good cause to by May 1, 2012, allows harvest as weight of sablefish landed and up to 2 partially waive prior notice and additional halibut in excess of the 50- intended by the Council in fisheries that comment and the delay in effectiveness. are important to coastal communities in pounds-per-1,000-pound ratio per a manner that prevents ACLs of List of Subjects in 50 CFR Part 660 landing. ‘‘Dressed’’ halibut in this area overfished and target species from being Fisheries, Fishing, Indian fisheries. means halibut landed eviscerated with exceeded. Furthermore, changes to the their heads on. Halibut taken and Dated: April 20, 2012. sablefish primary fishery regulations to retained in the sablefish primary fishery Galen Tromble, allow incidental halibut retention limits north of Pt. Chehalis may only be for the sablefish primary fishery are Acting Director, Office of Sustainable landed north of Pt. Chehalis and may Fisheries, National Marine Fisheries Service. necessary to reduce halibut impacts in For the reasons set out in the not be possessed or landed south of Pt. area 2A, keeping total mortality of preamble, 50 CFR part 660 is amended Chehalis. halibut below the 2012 area 2A as follows: * * * * * allocation. These changes must be ■ implemented in a timely manner by PART 660—FISHERIES OFF WEST 3. Table 2 (North) to part 660, Subpart May 1, 2012, to allow sablefish COAST STATES E, is revised to read as follows: fishermen sustainable incidental take in BILLING CODE 3510–22–P a manner that prevents early closure of ■ 1. The authority citation for part 660 the incidental halibut fishery. It would continues to read as follows:

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■ 4. Table 2 (South) to part 660, Subpart E, is revised to read as follows:

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[FR Doc. 2012–9963 Filed 4–20–12; 4:15 pm] BILLING CODE 3510–22–C

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Proposed Rules Federal Register Vol. 77, No. 80

Wednesday, April 25, 2012

This section of the FEDERAL REGISTER comments should reference the obligation imposed in connection with contains notices to the public of the proposed document number and the date and the order is not in accordance with law issuance of rules and regulations. The page number of this issue of the Federal and request a modification of the order purpose of these notices is to give interested Register and will be made available for or to be exempted therefrom. A handler persons an opportunity to participate in the public inspection in the Office of the is afforded the opportunity for a hearing rule making prior to the adoption of the final rules. Docket Clerk during regular business on the petition. After the hearing, USDA hours, or can be viewed at: http:// would rule on the petition. The Act www.regulations.gov. All comments provides that the district court of the DEPARTMENT OF AGRICULTURE submitted in response to this rule will United States in any district in which be included in the record and will be the handler is an inhabitant, or has his Agricultural Marketing Service made available to the public. Please be or her principal place of business, has advised that the identity of the jurisdiction to review USDA’s ruling on 7 CFR Part 930 individuals or entities submitting the the petition, provided an action is filed comments will be made public on the not later than 20 days after the date of [Doc. No. AMS–FV–11–0092; FV12–930–1 Internet at the address provided above. PR] the entry of the ruling. FOR FURTHER INFORMATION CONTACT: This rule invites comments on Tart Cherries Grown in the State of Jennie M. Varela, Marketing Specialist, proposed revisions to the primary Michigan, et al.; Increasing the Primary or Christian D. Nissen, Regional inventory reserve capacity and the Reserve Capacity and Revising Manager, Southeast Marketing Field exemption provisions applicable to Exemption Requirements Office, Marketing Order and Agreement handler diversion activities prescribed Division, Fruit and Vegetable Programs, under the order. This action would AGENCY: Agricultural Marketing Service, AMS, USDA; Telephone: (863) 324– increase the volume of tart cherries that USDA. 3775, Fax: (863) 325–8793, or Email: can be placed in the primary inventory ACTION: Proposed rule. [email protected] or reserve from 50 million pounds to 100 [email protected]. million pounds and would revise SUMMARY: This rule invites comments Small businesses may request exemption provisions by limiting on proposed revisions to the primary information on complying with this diversion credits for new market inventory reserve capacity and the regulation by contacting Laurel May, development and market expansion exemption provisions applicable to Marketing Order and Agreement activities to one year. These changes are handler diversion activities prescribed Division, Fruit and Vegetable Programs, intended to facilitate sales and lessen under the marketing order for tart AMS, USDA, 1400 Independence the impact of new market development cherries (order). The order regulates the Avenue SW., STOP 0237, Washington, and market expansion activities on handling of tart cherries grown in the DC 20250–0237; Telephone: (202) 720– volume restriction calculations. These States of Michigan, New York, 2491, Fax: (202) 720–8938, or Email: changes were recommended by the Pennsylvania, Oregon, Utah, [email protected]. Board at its meetings on September 15, Washington, and Wisconsin, and is SUPPLEMENTARY INFORMATION: This 2011, and November 2, 2011, administered locally by the Cherry respectively. Industry Administrative Board (Board). proposal is issued under Marketing Order No. 930, as amended (7 CFR part Section 930.55 of the order provides This action would increase the volume authority for the establishment of a of tart cherries that can be placed in the 930), regulating the handling of tart cherries grown in the States of primary inventory reserve as part of the primary inventory reserve from 50 order’s volume control provisions. million pounds to 100 million pounds Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Section 930.50(i) of the order establishes and would revise exemption provisions a cap of 50 million pounds on the by limiting diversion credits for new Wisconsin, hereinafter referred to as the ‘‘order.’’ The order is effective under the primary inventory reserve, but provides market development and market authority to raise that limit if necessary, expansion activities to one year. These Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601–674), provided that any recommendation for changes are intended to facilitate sales change is made by the Board on or and lessen the impact of market hereinafter referred to as the ‘‘Act.’’ The Department of Agriculture before September 30 to become effective expansion activities on volume (USDA) is issuing this rule in for the following crop year. restriction calculations. conformance with Executive Order Section 930.59 of the order authorizes DATES: Comments must be received by 12866. handler diversion. When volume May 10, 2012. This proposal has been reviewed regulation is in effect, handlers may ADDRESSES: Interested persons are under Executive Order 12988, Civil fulfill any restricted percentage invited to submit written comments Justice Reform. This rule is not intended requirement in full or in part by concerning this proposal. Comments to have retroactive effect. acquiring diversion certificates or by must be sent to the Docket Clerk, The Act provides that administrative voluntarily diverting cherries or cherry Marketing Order and Agreement proceedings must be exhausted before products in a program approved by the Division, Fruit and Vegetable Programs, parties may file suit in court. Under Board, rather than placing cherries in an AMS, USDA, 1400 Independence section 608c(15)(A) of the Act, any inventory reserve. These eligible Avenue SW., STOP 0237, Washington, handler subject to an order may file diversion activities include, in part, use DC 20250–0237; Fax: (202) 720–8938; or with USDA a petition stating that the for new market development and market Internet: http://www.regulations.gov. All order, any provision of the order, or any expansion activities.

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Section 930.159 of the order’s primary reserve, and it is rarely at zero, development and market expansion to administrative rules specifies methods making it difficult to release volume three years. of handler diversion, including using from the secondary reserve. The Board believes that new market cherries or cherry products for exempt Accessing reserves, particularly at the development and market expansion purposes prescribed under § 930.162. beginning of a crop year when the new activities have been successful in Section 930.162 establishes the terms crop has yet to be harvested, has become increasing sales. Some Board members and conditions of exemption that must more important in recent seasons. When expressed that these activities have been be satisfied for handlers to receive the order was promulgated, tart cherries very helpful in developing the dried diversion certificates for exempt uses. were primarily processed as ingredients cherry and juice segments. Earlier Section 930.162(b) defines the activities or into pie filling and a 50 million regulations limited the volume that which qualify for exemptions including pound primary reserve met the needs of could receive diversion credit to 10 new market development and market the industry. However, dried cherries, million pounds. However, the Board expansion. New market development juice, and juice concentrate are growing believed the limitation could be and market expansion activities include, segments of the industry, and some discouraging expansion and in 2006 but are not limited to, sales of cherries handlers are also manufacturing recommended removing the diversion into markets that are not yet finished products for retail. The credit volume limitations. Since that commercially established, product line additional processing steps for these time, the use of new market extensions, or segmentation of markets new products, as well as the growing development and market expansion along geographic or other definable variety of retail products have changed activities to meet restricted percentages characteristics. reserve needs. At any given time, has grown. The current three-year In July 2011, the Board established an handlers now hold more volume in average for diversion credit for market ad hoc committee (committee) to reserve. expansion activities is approximately 35 examine the volume regulation process Additionally, in years when a crop is million pounds a year. short or demand exceeds expectations, under the order and recommend In its discussions of this issue, the the Board can vote to issue a reserve changes that might benefit the industry. Board sought to find a solution that release. During the 2010–2011 season, The committee made a series of would continue to encourage new the Board found it necessary to issue recommendations, mostly market development and market two such releases. The Board believes administrative in nature, which were expansion projects, but reduce the increasing the capacity of the primary discussed by the entire Board at its impact these credits have on volume September and November meetings. The reserve to 100 million pounds would restriction calculations. While market recommended administrative changes facilitate the release of reserve cherries expansion activities designated for were approved by the Board and the when they are needed. Moving diversion credit represent about 15 proposed changes to the primary reserve additional reserve volume into the percent of gross sales, these sales are not and diversion credits for market primary pool, which is easier to access, included in the average sales figure used expansion activities, are the subject of should allow the industry to be more to determine optimum supply for this action. responsive to changes in demand and The order provides for the use of supply, and allow handlers more volume regulation. The Board estimates volume regulation to stabilize prices flexibility in how they utilize the that limiting credits to one year would and improve grower returns during reserve. The intent of this action is not lower the annual average credit for periods of oversupply. At the beginning to increase the volume of cherries in market expansion to 16 million pounds, of each season, the Board examines reserve, but to shift a greater volume or 19 million pounds below the current production and sales data to determine into the primary reserve where it is average. whether a volume regulation is more accessible to meet handler needs. With this action, it is anticipated that necessary and if so, announces free and This change should not impact volume the difference in volume between the restricted percentages to limit the restriction calculations. three-year credit and one year credit for volume of tart cherries on the market. Accordingly, at its meeting on market expansion would shift to free Free percentage cherries can be used to September 15, 2011, the Board sales helping to reduce the calculated supply any available market, including recommended increasing the capacity of restricted percentage. Using current domestic markets for pie filling, water the primary inventory reserve from 50 numbers, assuming that the difference packed, and frozen tart cherries. million pounds to 100 million pounds. of 19 million pounds would be counted Restricted percentage cherries can be Fifteen Board members voted for this as free sales, this change would reduce placed in reserve, marketed through change and two abstained. the calculated surplus. Reducing the exempt activities, including market In addition to discussing the primary calculated surplus would, in turn, help expansion, or diverted in orchard or at reserve, the Board also considered lower restricted percentages. The Board the processing plant. changes to diversion credits. These believes this change would help make When using reserves to meet their credits are a handler’s alternative to the calculations under volume restricted percentage, handlers have two placing fruit in reserve in order to regulation more reflective of industry inventory reserve pools available, a comply with their restricted percentage conditions. primary reserve currently limited to 50 under volume restriction. The order Accordingly, at its November 2, 2011, million pounds and an unlimited provides that fruit used for certain meeting, the Board voted unanimously secondary reserve. Reserves allow the exempt purposes, including new market to revise exemption provisions industry to mitigate the impact of development and market expansion, is applicable to handler diversion oversupply in large crop years, while eligible to receive diversion credits. activities by limiting diversion credits allowing the industry to supply markets Market expansion is defined as an for market expansion activities to one in years when production falls below activity that expands the sale of either year, with the time limit beginning with demand. Volume in the secondary tart cherries or the products in which the date of the first shipment. The Board reserve cannot be released unless the tart cherries are an ingredient. The also noted that projects approved prior primary reserve is empty. Most reserve Board currently limits the duration of to this action would be allowed to finish inventory flows in and out of the any diversion credit for new market their three-year cycle.

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Initial Regulatory Flexibility Analysis limit for the primary inventory reserve, to have this change in place by the next Pursuant to requirements set forth in and would revise § 930.162 of the season. In discussing the change to the Regulatory Flexibility Act (RFA) regulations regarding exemptions as diversion credits for market expansion, (5 U.S.C. 601–612), the Agricultural they pertain to handler diversion the Board considered phasing out Marketing Service (AMS) has activities. The authority for these diversion credits for market expansion considered the economic impact of this actions is provided in §§ 930.50 and altogether. However, some Board action on small entities. Accordingly, 930.59 of the order. The Board members believed that offering AMS has prepared this initial regulatory recommended these actions at meetings diversion credit for these activities had flexibility analysis. on September 15, 2011, and November been beneficial to the industry and thus The purpose of the RFA is to fit 2, 2011. should not be eliminated entirely. The The Board believes these changes regulatory actions to the scale of Board believes limiting credits to a would better align regulations with business subject to such actions in order maximum of one year would continue industry needs and practices, facilitate that small businesses will not be unduly to encourage handlers to enter new the release of restricted fruit, and help markets, but lessen the impact on or disproportionately burdened. avoid over-restriction. It is not volume restriction calculations. Marketing orders issued pursuant to the anticipated that this action would Therefore, these alternatives were Act, and rules issued thereunder, are impose additional costs on handlers or rejected. unique in that they are brought about growers, regardless of size. Handlers of In accordance with the Paperwork through group action of essentially all sizes could realize a cost savings by Reduction Act of 1995, (44 U.S.C. small entities acting on their own not having to store product relegated to Chapter 35), the order’s information behalf. the secondary reserve, which is difficult collection requirements have been There are approximately 40 handlers to access. previously approved by the Office of of tart cherries who are subject to Further, increasing the maximum Management and Budget (OMB) and regulation under the marketing order volume that can be held in the primary assigned OMB No. 0581–0177, (Tart and approximately 600 producers of tart reserve would allow handlers to be Cherries Grown in the States of cherries in the regulated area. Small more responsive to industry needs by Michigan, New York, Pennsylvania, agricultural service firms have been making reserves easier to access in Oregon, Utah, Washington, and defined by the Small Business periods of short supply or increased Wisconsin). No changes in those Administration (SBA) as those having demand, which could facilitate sales. requirements as a result of this action annual receipts of less than $7,000,000, Changes in processing and cherry are necessary. Should any changes and small agricultural producers are products have created a situation in become necessary, they would be defined as those having annual receipts which handlers may have more volume submitted to OMB for approval. of less than $750,000 (13 CFR 121.201). on hand at any given time, furthering Accordingly, this action would not According to the National the need to access reserves. Expanding impose any additional reporting or Agricultural Statistics Service, and the volume available in the primary recordkeeping requirements on either Board data, the average annual grower reserve would assist handlers in small or large tart cherry handlers. As price for tart cherries during the 2010– managing their stocks and would help with all Federal marketing order 11 season was $0.221 per pound, and maintain a steady inventory of finished programs, reports and forms are total shipments were around 270 products to supply retailers and periodically reviewed to reduce million pounds. Therefore, average consumers. information requirements and receipts for tart cherry producers were Additionally, the Board believes duplication by industry and public around $99,000, well below the SBA limiting diversion credits for market sector agencies. threshold for small producers. In 2010, expansion to one year would move more AMS is committed to complying with The Food Institute estimated an f.o.b. sales into the free sales category for the E-Government Act, to promote the price of $0.84 per pound for frozen tart purposes of computing volume use of the Internet and other cherries, which make up the majority of regulations. This would reduce the information technologies to provide processed tart cherries. Using this data, calculated surplus, and in turn lower increased opportunities for citizen average annual handler receipts were restrictions. Lower restrictions would access to Government information and about $5.7 million, also below the SBA allow handlers to have a greater portion services, and for other purposes. threshold for small agricultural service of their volume available for free sales. USDA has not identified any relevant firms. Assuming a normal distribution, This could facilitate additional sales Federal rules that duplicate, overlap or the majority of producers and handlers which could improve returns for conflict with this proposed rule. of tart cherries may be classified as growers and handlers. The Board formed a committee to small entities. This rule is expected to benefit review the order’s volume regulation This action would increase the producers, handlers, and consumers. procedures and suggest changes to the volume of tart cherries that can be The effects of this rule are not expected Board. This committee held meetings placed in the primary inventory reserve to be disproportionately greater or less where these issues were discussed in from 50 million pounds to 100 million for small handlers or producers than for detail. These meetings were public pounds and would revise the exemption larger entities. meetings and both large and small provisions pertaining to handler The Committee discussed alternatives entities were able to participate and diversion activities by limiting to these changes, including not express their views. In addition, the diversion credits for new market increasing the primary reserve capacity, Board’s meetings were widely development and market expansion as well as eliminating diversion credits publicized throughout the tart cherry activities to one year. These changes are for market expansion rather than industry and all interested persons were intended to facilitate sales and lessen limiting them to one year. Regarding the invited to attend and participate in the impact of such activities on volume change to primary reserve capacity, the Board deliberations on all issues. Like restriction calculations. This rule would Board agreed that changes in the all Board meetings, the September 15, add § 930.155 to the rules and industry necessitated this change and 2011, and November 2, 2011, meetings regulations to establish the increased that it was in the industry’s best interest were public meetings and all entities,

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both large and small, were able to handler diversion credit for a period of • Hand Delivery: Deliver to Mail express views on this issue. Finally, one year from the handler’s first date of address above between 9 a.m. and interested persons are invited to submit shipment into such outlets. 5 p.m., Monday through Friday, except comments on this proposed rule, * * * * * Federal holidays. including the regulatory and For service information identified in Dated: April 17, 2012. informational impacts of this action on this proposed AD, contact Boeing David R. Shipman, small businesses. Commercial Airplanes, Attention: Data A small business guide on complying Acting Administrator, Agricultural Marketing & Services Management, P.O. Box 3707, with fruit, vegetable, and specialty crop Service. MC 2H–65, Seattle, Washington 98124– marketing agreements and orders may [FR Doc. 2012–9860 Filed 4–24–12; 8:45 am] 2207; telephone 206–544–5000, be viewed at: www.ams.usda.gov/ BILLING CODE 3410–02–P extension 1; fax 206–766–5680; email MarketingOrdersSmallBusinessGuide. [email protected]; Internet Any questions about the compliance https://www.myboeingfleet.com. You guide should be sent to Laurel May at DEPARTMENT OF TRANSPORTATION may review copies of the referenced the previously mentioned address in the service information at the FAA, Federal Aviation Administration FOR FURTHER INFORMATION CONTACT Transport Airplane Directorate, 1601 section. Lind Avenue SW., Renton, Washington. 14 CFR Part 39 A 15-day comment period is provided For information on the availability of to allow interested persons to respond [Docket No. FAA–2012–0421; Directorate this material at the FAA, call 425–227– to this proposal. Fifteen days is deemed Identifier 2012–NM–042–AD] 1221. appropriate because the Board would RIN 2120–AA64 like to have this rule in place as soon Examining the AD Docket as possible so handlers can consider Airworthiness Directives; The Boeing You may examine the AD docket on these changes when making plans for Company Airplanes the Internet at http:// the upcoming season. Further, handlers www.regulations.gov; or in person at the are aware of these proposed changes, AGENCY: Federal Aviation Docket Management Facility between which were discussed and Administration (FAA), DOT. 9 a.m. and 5 p.m., Monday through recommended at public meetings and ACTION: Notice of proposed rulemaking Friday, except Federal holidays. The AD interested parties had the opportunity to (NPRM). docket contains this proposed AD, the regulatory evaluation, any comments provide input. All written comments SUMMARY: We propose to adopt a new received, and other information. The timely received will be considered airworthiness directive (AD) for certain before a final determination is made on Boeing Company Model 757 airplanes. street address for the Docket Office this matter. This proposed AD was prompted by a (phone: 800–647–5527) is in the ADDRESSES section. Comments will be List of Subjects in 7 CFR Part 930 report of in-flight fracture of the right windshield (window 1) on the flight available in the AD docket shortly after Marketing agreements, Reporting and deck and multiple reports of electrical receipt. recordkeeping requirements, Tart arcs at the terminal blocks of the flight FOR FURTHER INFORMATION CONTACT: cherries. deck windshields resulting in smoke Elias Natsiopoulos, Aerospace Engineer, For the reasons set forth in the and fire. This proposed AD would Systems and Equipment Branch, ANM– preamble, 7 CFR part 930 is proposed to require repetitive inspections of 130S, FAA, Seattle Aircraft Certification be amended as follows: electrical heat terminals on the left and Office (ACO), 1601 Lind Avenue SW., right windshields for damage, and Renton, Washington 98057–3356; PART 930—TART CHERRIES GROWN phone: 425–917–6478; fax: 425–917– IN THE STATES OF MICHIGAN, NEW corrective actions if necessary. This proposed AD would also allow for 6590; email: YORK, PENNSYLVANIA, OREGON, [email protected]. UTAH, WASHINGTON, AND replacing an affected windshield with a WISCONSIN windshield equipped with different SUPPLEMENTARY INFORMATION: electrical connections, which would 1. The authority citation for 7 CFR terminate the repetitive inspections for Comments Invited part 930 continues to read as follows: that windshield. We are proposing this We invite you to send any written Authority: 7 U.S.C. 601–674. AD to prevent smoke and fire in the relevant data, views, or arguments about flight deck, which can lead to loss of this proposal. Send your comments to 2. A new § 930.150 is added to read visibility, and injuries to or an address listed under the ADDRESSES as follows: incapacitation of the flight crew. section. Include ‘‘Docket No. FAA– § 930.150 Primary inventory reserve. DATES: We must receive comments on 2012–0421; Directorate Identifier 2012– Beginning July 1, 2012, the primary this proposed AD by June 11, 2012. NM–042–AD’’ at the beginning of your inventory reserve may not to exceed 100 ADDRESSES: You may send comments, comments. We specifically invite million pounds. using the procedures found in 14 CFR comments on the overall regulatory, 3. Section 930.162 is amended by 11.43 and 11.45, by any of the following economic, environmental, and energy adding a sentence at the end of section methods: aspects of this proposed AD. We will (b)(2) to read as follows: • Federal eRulemaking Portal: Go to consider all comments received by the http://www.regulations.gov. Follow the closing date and may amend this § 930.162 Exemptions. instructions for submitting comments. proposed AD because of those * * * * * • Fax: 202–493–2251. comments. (b) * * * • Mail: U.S. Department of We will post all comments we (2) * * * In addition, shipments of Transportation, Docket Operations, receive, without change, to http:// tart cherries or tart cherry products in M–30, West Building Ground Floor, www.regulations.gov, including any new market development and market Room W12–140, 1200 New Jersey personal information you provide. We expansion outlets are eligible for Avenue SE., Washington, DC 20590. will also post a report summarizing each

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substantive verbal contact we receive or incapacitation of the flight crew. need for the repetitive detailed about this proposed AD. Accomplishing the actions in this inspections for that windshield. proposed AD would terminate the Discussion Boeing Special Attention Service requirements of AD 2010–15–01 for Bulletin 757–30–0019, Revision 3, dated We have received nine reports from Model 757 airplanes. December 16, 2011 (for Model 757–200, eight operators that electrical arcs Relevant Service Information –200PF, and –200CB series airplanes); occurred at the lower terminal blocks of and Boeing Special Attention Service the flight deck windshields. AD 2010– We reviewed Boeing Special Bulletin 757–30–0020, Revision 3, dated 15–01, Amendment 39–16367 (75 FR Attention Service Bulletin 757–30– December 16, 2011 (for Model 757–300 39804, July 13, 2010), addresses the 0019, Revision 3, dated December 16, series airplanes); also specify repetitive lower electrical connections. We have 2011 (for Model 757–200, –200PF, and detailed inspections for damage of any also received reports of four failures of –200CB series airplanes); and Boeing windshield that is replaced with a upper terminal blocks on Model 757 Special Attention Service Bulletin 757– windshield that uses screws and lugs for airplanes. In more than one incident, 30–0020, Revision 3, dated December the heat connection, or if a windshield the arcs resulted in open flames. While 16, 2011 (for Model 757–300 series heat power connection is reassembled in flight, one Model 757–200 series airplanes). This service information on windshields that use screws and lugs airplane experienced smoke in the describes procedures for repetitive for the heat connection. cockpit, followed by the fracture of the detailed inspections for damage inner pane of the first officer’s (including, but not limited to, arcing, FAA’s Determination windshield (right window 1). This loose terminals, heat damage, cross- We are proposing this AD because we windshield fracture resulted in total loss threaded connections, and cracking) of evaluated all the relevant information of the first officer’s outside visibility the wiring and electrical terminals J1, and determined the unsafe condition and small shards of glass striking the J4, and J5 at the left and right flight deck described previously is likely to exist or first officer. Examination of the windshields; and corrective actions if develop in other products of the same fractured windshield revealed evidence necessary. type design. of arcing at the upper outboard (J1) and The corrective actions include the upper inboard (J4) windshield applying correct torque to a loose Proposed AD Requirements electrical heat terminal connections. electrical connection, replacing any The inner pane fracture initiated damaged terminal lug with a new lug, This proposed AD would require beneath the J4 terminal block. repairing damaged wiring, and replacing accomplishing the actions specified in The electrical connections on the an unserviceable windshield with a new the service information described windshields are made with lugs that or serviceable windshield. Boeing previously, except as discussed under attach with screws to the terminal block. Special Attention Service Bulletin 757– ‘‘Differences Between the Proposed AD A loose connection increases the heat at 30–0019, Revision 3, dated December and the Service Information.’’ the terminal, which can cause damage 16, 2011 (for Model 757–200, –200PF, Differences Between the Proposed AD to the internal joints (including solder, and –200CB series airplanes); and and the Service Information if present). Damaged solder joints are Boeing Special Attention Service the primary cause of the electrical arcs. Bulletin 757–30–0020, Revision 3, dated Although Boeing Special Attention The primary cause of loose connections December 16, 2011 (for Model 757–300 Service Bulletin 757–30–0019, Revision is the incorrectly torqued or incorrectly series airplanes); specify that the 3, dated December 16, 2011 (for Model installed screw. This condition, if not replacement windshield can be either a 757–200, –200PF, and –200CB series corrected, could result in smoke and fire new or serviceable windshield that uses airplanes); and Boeing Special Attention in the flight deck, which can result in screws and lugs for the electrical Service Bulletin 757–30–0020, Revision the loss of visibility, and injuries to or connection, or a new or serviceable 3, dated December 16, 2011 (for Model incapacitation of the flightcrew. windshield that uses pins and sockets 757–300 series airplanes); recommend for the electrical connections. accomplishing certain inspections, Other Related Rulemaking For airplanes on which a new window replacement, and reassembly of On July 6, 2010, the FAA issued AD windshield that uses pins and sockets is the electrical connections within 500 2010–15–01, Amendment 39–16367 (75 installed, Boeing Special Attention flight hours or 150 days, whichever FR 39804, July 13, 2010), applicable to Service Bulletin 757–30–0019, Revision occurs first, we have determined that a certain Boeing Model 757, 767, and 777 3, dated December 16, 2011 (for Model compliance time of within 500 flight series airplanes, which requires 757–200, –200PF, and –200CB series hours after the effective date of this AD repetitive inspections for damage of the airplanes); and Boeing Special Attention addresses the identified unsafe electrical terminal (J5 terminal) at the Service Bulletin 757–30–0020, Revision condition soon enough to ensure an left and right flight deck window 1 3, dated December 16, 2011 (for Model adequate level of safety for the affected windshield, and corrective actions if 757–300 series airplanes); also specify fleet. This difference has been necessary. The most forward flight deck changing the related wire bundle and coordinated with The Boeing Company. windows are referred to as windshields cutting the bulb seal to give clearance Costs of Compliance and named left and right window 1 for terminals on the replacement respectively. The actions required by windshield. This service information We estimate that this proposed AD that AD are intended to prevent smoke specifies that installing a windshield affects 664 airplanes of U.S. registry. and fire in the cockpit, which could that uses pins and sockets for the We estimate the following costs to lead to loss of visibility, and injuries to electrical connections eliminates the comply with this proposed AD:

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ESTIMATED COSTS

Cost on Action Labor cost Parts cost Cost per product U.S. operators

Detailed inspection of 3 work-hours × $85 per hour = $255 per in- $0 $255 per inspection $169,320 per inspection windshields. spection cycle. cycle. cycle.

We estimate the following costs to do of the proposed inspection. We have no aircraft that might need these corrective any necessary corrective actions that way of determining the number of actions. would be required based on the results

ON-CONDITION COSTS

Action Labor cost Parts cost Cost per product

Windshield replacement and changes to related wiring 9 work-hours × $85 per $19,687 per windshield ..... $20,452 per windshield. including lug replacement. hour = $765 per windshield.

Authority for This Rulemaking (4) Will not have a significant (2) Model 757–300 airplanes identified in economic impact, positive or negative, Boeing Special Attention Service Bulletin Title 49 of the United States Code on a substantial number of small entities 757–30–0020, Revision 3, dated December specifies the FAA’s authority to issue under the criteria of the Regulatory 16, 2011. rules on aviation safety. Subtitle I, Flexibility Act. section 106, describes the authority of (d) Subject the FAA Administrator. Subtitle VII: List of Subjects in 14 CFR Part 39 Joint Aircraft System Component (JASC)/ Aviation Programs, describes in more Air Transport Association (ATA) of America Air transportation, Aircraft, Aviation Code 30, Ice and Rain Protection. detail the scope of the Agency’s safety, Incorporation by reference, authority. Safety. (e) Unsafe Condition We are issuing this rulemaking under This AD was prompted by a report of in- the authority described in Subtitle VII, The Proposed Amendment flight fracture of the right windshield Part A, Subpart III, Section 44701: Accordingly, under the authority (window 1) on the flightdeck and multiple ‘‘General requirements.’’ Under that delegated to me by the Administrator, reports of electrical arcs at the terminal section, Congress charges the FAA with the FAA proposes to amend 14 CFR part blocks of the flight deck windshields promoting safe flight of civil aircraft in 39 as follows: resulting in smoke and fire. We are issuing air commerce by prescribing regulations this AD to prevent smoke and fire in the for practices, methods, and procedures PART 39—AIRWORTHINESS flight deck, which can lead to loss of DIRECTIVES visibility, and injuries to or incapacitation of the Administrator finds necessary for the flight crew. safety in air commerce. This regulation 1. The authority citation for part 39 (f) Compliance is within the scope of that authority continues to read as follows: because it addresses an unsafe condition Comply with this AD within the that is likely to exist or develop on Authority: 49 U.S.C. 106(g), 40113, 44701. compliance times specified, unless already done. products identified in this rulemaking § 39.13 [Amended] action. 2. The FAA amends § 39.13 by adding (g) Inspection and Repair Regulatory Findings the following new airworthiness Within 500 flight hours after the effective directive (AD): date of this AD, except as required by We determined that this proposed AD paragraph (h) of this AD: Do a detailed would not have federalism implications The Boeing Company: Docket No. FAA– inspection for damage of the wiring and 2012–0421; Directorate Identifier 2012– under Executive Order 13132. This electrical terminal blocks (J1, J4, and J5 NM–042–AD. proposed AD would not have a terminals) at the left and right flight deck substantial direct effect on the States, on (a) Comments Due Date window 1 windshield, and do all applicable the relationship between the national We must receive comments by June 11, corrective actions, by accomplishing all the Government and the States, or on the 2012. applicable actions specified in the distribution of power and Accomplishment Instructions of Boeing (b) Affected ADs Special Attention Service Bulletin 757–30– responsibilities among the various 0019, Revision 3, dated December 16, 2011 levels of government. This AD affects AD 2010–15–01, Amendment 39–16367 (75 FR 39804, July 13, (for Model 757–200, –200PF, and –200CB For the reasons discussed above, I 2010). series airplanes); or Boeing Special Attention certify this proposed regulation: Service Bulletin 757–30–0020, Revision 3, (1) Is not a ‘‘significant regulatory (c) Applicability dated December 16, 2011 (for Model 757–300 action’’ under Executive Order 12866, This AD applies to The Boeing Company series airplanes). Except as provided by (2) Is not a ‘‘significant rule’’ under airplanes, certificated in any category, as paragraph (j) of this AD, do all applicable the DOT Regulatory Policies and identified in paragraphs (c)(1) and (c)(2) of corrective actions before further flight. this AD. Repeat the detailed inspection thereafter at Procedures (44 FR 11034, February 26, (1) Model 757–200, –200PF, and –200CB the applicable interval specified in paragraph 1979), airplanes identified in Boeing Special (g)(1) or (g)(2) of this AD. Doing the (3) Will not affect intrastate aviation Attention Service Bulletin 757–30–0019, replacement specified in paragraph (k) of this in Alaska, and Revision 3, dated December 16, 2011. AD terminates the repetitive inspection

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requirements of this paragraph for that (1) If the terminal lug is loose and cannot or lacking a principal inspector, the manager replaced flight deck windshield. be tightened: Before further flight, replace of the local flight standards district office/ (1) For flight deck windshields that windshield, in accordance with the certificate holding district office. manufactured by GKN Aerospace (GKN) with Accomplishment Instructions of Boeing screw/lug electrical connections, repeat the Special Attention Service Bulletin 757–30– (o) Related Information detailed inspection thereafter at intervals not 0019, Revision 3, dated December 16, 2011 (1) For more information about this AD, to exceed 12,000 flight hours or 48 months, (for Model 757–200, –200PF, and –200CB contact Elias Natsiopoulos, Aerospace whichever occurs later. series airplanes); or Boeing Special Attention Engineer, Systems and Equipment Branch, (2) For flight deck windshields Service Bulletin 757–30–0020, Revision 3, ANM–130S, FAA, Seattle Aircraft manufactured by PPG Aerospace (PPG) with dated December 16, 2011 (for Model 757–300 Certification Office (ACO), 1601 Lind Avenue screw/lug electrical connections, repeat the series airplanes). SW., Renton, Washington 98057–3356; detailed inspection thereafter at intervals not (2) If the terminal lug is tight or can be phone: 425–917–6478; fax: 425–917–6590; to exceed 6,000 flight hours or 24 months, tightened: Replace that windshield within email: [email protected]. whichever occurs later. 500 flight hours after the inspection, in (2) For service information identified in accordance with the Accomplishment this AD, contact Boeing Commercial (h) Compliance Time Exception for Previous Instructions Boeing Special Attention Service Airplanes, Attention: Data & Services Inspection Bulletin 757–30–0019, Revision 3, dated Management, P.O. Box 3707, MC 2H–65, For airplanes on which inspections of the December 16, 2011 (for Model 757–200, Seattle, Washington 98124–2207; telephone J1, J4, and J5 terminals, as specified in the –200PF, and –200CB series airplanes); or 206–544–5000, extension 1; fax 206–766– Accomplishment Instructions of Boeing Boeing Special Attention Service Bulletin 5680; email [email protected]; Internet Special Attention Service Bulletin 757–30– 757–30–0020, Revision 3, dated December https://www.myboeingfleet.com. You may 0019, Revision 2, dated April 19, 2010 (for 16, 2011 (for Model 757–300 series review copies of the referenced service Model 757–200, –200PF, and –200CB series airplanes). information at the FAA, Transport Airplane airplanes); or Boeing Special Attention (k) Optional Terminating Action Directorate, 1601 Lind Avenue SW., Renton, Service Bulletin 757–30–0020, Revision 2, Washington. For information on the dated March 31, 2010 (for Model 757–300 Replacing a flight deck windshield that availability of this material at the FAA, call series airplanes); were accomplished before uses screws and lugs for the electrical 425–227–1221. the effective date of this AD: Do the actions connections with a flight deck windshield required by paragraph (g) of this AD at the that uses pins and sockets for the electrical Issued in Renton, Washington, on April 5, applicable compliance time specified in connections, in accordance with the 2012. paragraphs (h)(1) and (h)(2) of this AD. Accomplishment Instructions of Boeing Ali Bahrami, Repeat the inspection thereafter at the Special Attention Service Bulletin 757–30– Manager, Transport Airplane Directorate, applicable intervals specified in paragraphs 0019, Revision 3, dated December 16, 2011 Aircraft Certification Service. (g)(1) or (g)(2) of this AD. (for Model 757–200, –200PF, and –200CB [FR Doc. 2012–9916 Filed 4–24–12; 8:45 am] (1) For flight deck windshields series airplanes); or Boeing Special Attention manufactured by GKN with screw/lug Service Bulletin 757–30–0020, Revision 3, BILLING CODE 4910–13–P electrical connections: At the later of the dated December 16, 2011 (for Model 757–300 times specified in paragraphs (h)(1)(i) and series airplanes); ends the repetitive (h)(1)(ii) of this AD. inspection requirements of paragraph (g) of DEPARTMENT OF ENERGY (i) Within 12,000 flight hours or 48 this AD for that windshield. months, whichever occurs later, after (l) Related AD Termination Federal Energy Regulatory accomplishing the inspection. Commission (ii) Within 500 flight hours after the Accomplishing the actions required by this effective date of this AD. AD terminates the requirements of AD 2010– (2) For flight deck windshields 15–01, Amendment 39–16367 (75 FR 39804, 18 CFR Part 40 manufactured by PPG with screw/lug July 13, 2010), paragraphs (g), (j), and (k), for [Docket Nos. AD12–14–000 and AD11–11– electrical connections: At the later of the that airplane only. 000] times specified in paragraphs (h)(2)(i) and (m) Credit for Previous Actions (h)(2)(ii) of this AD. Open Access and Priority Rights on This paragraph provides credit for the (i) Within 6,000 flight hours or 24 months, Interconnection Facilities whichever occurs later, after accomplishing actions required by this AD, if those actions the inspection. were performed before the effective date of AGENCY: Federal Energy Regulatory (ii) Within 500 flight hours after the this AD using Boeing Special Attention Commission, DOE. effective date of this AD. Service Bulletin 757–30–0019, Revision 2, dated April 19, 2010 (for Model 757–200, ACTION: Notice of Inquiry. (i) Inspection for Replaced Windshield or –200PF, and –200CB series airplanes); or SUMMARY: Reassembled Heat Power Connection Boeing Special Attention Service Bulletin In this Notice of Inquiry, the For any windshield replaced after the 757–30–0020, Revision 2, dated March 31, Commission seeks comment on open effective date of this AD with a windshield 2010 (for Model 757–300 series airplanes). access and priority rights for capacity on that uses screws and lugs for electrical heat interconnection facilities. (n) Alternative Methods of Compliance connection, or if a windshield heat power (AMOCs) DATES: Comments are due June 11, 2012. connection is reassembled on windshields ADDRESSES: You may submit comments, that use screws and lugs for windshield heat (1) The Manager, Seattle Aircraft connections: Do the actions required in Certification Office, FAA, has the authority to identified by docket number and in paragraph (g) of this AD within 500 flight approve AMOCs for this AD, if requested accordance with the requirements hours after the windshield replacement or using the procedures found in 14 CFR 39.19. posted on the Commission’s Web site, connection reassembly, and thereafter at the In accordance with 14 CFR 39.19, send your http://www.ferc.gov. Comments may be applicable interval specified in paragraph request to your principal inspector or local submitted by any of the following (g)(1) or (g)(2) of this AD, as applicable. Flight Standards District Office, as methods: appropriate. If sending information directly • (j) Exception to Compliance Time for Certain Agency Web Site: Documents to the manager of the ACO, send it to the created electronically using word Windshield Replacement attention of the person identified in the If, during the inspection required by Related Information section of this AD. processing software should be filed in paragraph (g) or (i) of this AD, the screw is Information may be emailed to: 9–ANM– native applications or print-to-PDF found cross threaded: Do the applicable Seattle–ACO–AMOC–[email protected]. format and not in a scanned format, at actions specified in paragraph (j)(1) or (j)(2) (2) Before using any approved AMOC, http://www.ferc.gov/docs-filing/ of this AD. notify your appropriate principal inspector, efiling.asp.

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• Mail/Hand Delivery: Commenters transmission facilities for purposes of reflect the limited service available over unable to file comments electronically open access policies. However, the interconnection facilities and the must mail or hand-deliver an original Commission has permitted an owner of limited ability of generation developers and copy of their comments to: Federal interconnection facilities to have to support certain OATT ancillary Energy Regulatory Commission, priority to capacity over its facilities for services and requirements. Secretary of the Commission, 888 First its existing use at the time of a third- 3. Through this Notice of Inquiry, the Street NE., Washington, DC 20426. party request for service.2 In the Commission seeks comment on options These requirements can be found on the instance where an owner of for addressing priority rights on Commission’s Web site, see, e.g., the interconnection facilities has specific, interconnection facilities given the ‘‘Quick Reference Guide for Paper pre-existing generator expansion plans responses filed to the March 2011 Submissions,’’ available at http:// with milestones for construction of technical conference, which identified a www.ferc.gov/docs-filing/efiling.asp, or generation facilities and can number of concerns with the via phone from Online Support at (202) demonstrate that it has made material Commission’s current policy. As 502–6652 or toll-free at 1–866–208– progress toward meeting those discussed in the sections that follow, 3676. milestones, the Commission may grant the Commission seeks comments on Instructions: For detailed instructions priority rights for the capacity on the alternative approaches to govern third- on submitting comments and additional interconnection facilities to those future party requests for service and priority information on the rulemaking process, generation projects or expansions as rights: continued use of an OATT see the Comment Procedures Section of well.3 Further, an affiliate of the current framework with potential modification this document. interconnection facility owner that is and clarification, including the potential FOR FURTHER INFORMATION CONTACT: developing its own generator projects introduction of a safe harbor period, and also may obtain priority rights to the Becky Robinson (Technical a case-by-case determination on the capacity on the interconnection Information), Office of Energy Policy generation developer’s priority rights; facilities by meeting the ‘‘specific plans and Innovation, Federal Energy and use of a Large Generator and milestones’’ standard with respect Interconnection Agreement (LGIA)/ Regulatory Commission, 888 First to future use, provided that the plans Street NE., Washington, DC 20426, Large Generator Interconnection include a future transfer of ownership of Procedures (LGIP) framework in which (202) 502–8868. the interconnection facilities to such an Christopher Thomas (Technical the existing LGIA provisions that govern affiliate.4 This granting of priority rights third-party use of a transmission Information), Office of Energy Market preserves the ability of the generation Regulation, Federal Energy Regulatory provider’s interconnection facilities developer to deliver its output to the would be extended to interconnection Commission, 888 First Street NE., point of interconnection with the Washington, DC 20426, (202) 502– customer’s interconnection facilities transmission system, so long as it can (i.e., allowing parties to mutually agree 8412. make the relevant showing to the Olga Kolotushkina (Legal Information), to the use of and compensation for the Commission sufficient to justify facilities). The Commission also seeks Office of the General Counsel, Federal priority. The Commission requires that, Energy Regulatory Commission, 888 comment on the scope of our inquiry in upon receipt of a request for this proceeding and whether, as a First Street NE., Washington, DC transmission service from an 20426, (202) 502–6024. threshold matter, there is a need to unaffiliated third party, a pro forma reconsider the Commission policy as set SUPPLEMENTARY INFORMATION: Open Access Transmission Tariff forth in the recent series of cases.6 (OATT) must be filed by the owner of 139 FERC ¶ 61,051 4. We note that there are numerous the facilities considered interconnection and potentially detailed issues facilities under Order No. 2003 within embedded within the broad categories Docket Nos. 5 60 days of the date of the request. of this NOI. We encourage all interested 2. To date, the Commission has Open Access and Priority stakeholders to address the specific applied this policy on a case-by-case Rights on Interconnection questions for which the Commission Facilities ...... AD12–14–000 basis. The Commission’s current policy seeks comment and to include as Priority Rights to New Partic- is guided by the desire to prevent undue appropriate any proposed tariff language discrimination by ensuring that third ipant-Funded Transmission AD11–11–000 that should be considered.7 We also parties have open access to available encourage comments on how any transfer capability that is not being used Notice of Inquiry individual potential policy change by the owner of the interconnection discussed below would affect the April 19, 2012. facilities. In doing so, the Commission viability of other policies (e.g., if the 1. In this Notice of Inquiry (NOI), the has considered priority access to firm Commission were to adopt a safe harbor Commission seeks to explore whether, service, and granted waivers of certain period, what are the implications for the and, if so, how the Commission should provisions in the pro forma OATT to revise its current policy concerning current policy of demonstrating specific plans and milestones to secure priority priority rights and open access with 2 See Milford Wind Corridor, LLC, 129 FERC regard to certain interconnection ¶ 61,149, at P. 24 (2009) (Milford); Terra-Gen Dixie rights)? facilities. In a series of cases that have Valley, LLC, 132 FERC ¶ 61,215, at P. 49 (2010) come before the Commission in recent (Terra-Gen I). 6 See, e.g., Aero, 116 FERC ¶ 61,149; Milford, 129 3 Aero Energy LLC, 116 FERC ¶ 61,149, at P. 28 FERC ¶ 61,149; Terra-Gen I, 132 FERC ¶ 61,215; and years, the Commission has treated (2006) (Aero); Milford, 129 FERC ¶ 61,149 at P. 22; 1 Alta Wind, 134 FERC ¶ 61,109. certain interconnection facilities as and Alta Wind, 134 FERC ¶ 61,109, at P. 16–17 7 The Commission distinguishes this proceeding (2011) (Alta Wind). Such plans and initial progress from the North American Electric Reliability 1 As noted below, the Commission in the past has also must pre-date a valid request for service. Terra- Corporation’s (NERC) current investigation into the used the term ‘‘generator lead lines’’ to describe the Gen I, 132 FERC ¶ 61,215 at P. 53. applicability of Reliability Standards to class of facilities at issue in this proceeding. In this 4 See Milford, 129 FERC ¶ 61,149 at P. 5. interconnection facilities (Project 2010–07). NOI, we will use the term ‘‘interconnection 5 Black Creek Hydro, Inc., 77 FERC ¶ 61,232, at Comments related to NERC’s investigation are not facilities,’’ except when referencing comments on 61,941 (1996); Termoelectrica U.S., LLC, 105 FERC the subject of this Notice of Inquiry and should be generator lead lines. ¶ 61,087, at P. 11 (2003). directed to NERC.

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I. Background compensation for capital expenses it generator lead lines. Further, 5. Interconnection facilities are incurred to pay for the transmission commenters raise a number of concerns constructed to enable a generation provider’s interconnection facilities and with the Commission’s current practice facility or multiple generation facilities to compensation for the ongoing costs, of imposing an OATT Filing to transmit power from the generation including operation and maintenance requirement on generator lead line facility to the integrated transmission costs, based on a pro rata use among the developers. grid. They are radial in nature, with a parties. 9. Among the unique attributes of single point of interconnection with the 7. However, where a generation generator lead lines, commenters network grid, and power flows toward developer has funded and constructed a suggest the following features: (1) the network grid, with no electrical portion of the interconnection facilities, Generator lead lines are radial lines that loads between the generation facilities and does not transfer ownership or serve the limited and sole purpose of and the point of interconnection with operational control of those facilities to connecting generation facilities to the the network grid. Interconnection the transmission provider after transmission network, i.e., they are not facilities can be relatively short construction, under the pro forma LGIA an element of the integrated ancillary components to a single those facilities are classified as transmission network; (2) generator lead generation facility.8 Alternatively, they interconnection customer’s lines do not provide benefits to the may span much longer distances and interconnection facilities. That is, transmission system in terms of represent significant transmission interconnection customers’ capability or reliability, and cannot be capacity, being capable of interconnection facilities are located relied on for coordinated operation of interconnecting additional generation between the generation facility and the the transmission system; (3) an outage projects.9 point at which either the transmission on the generator lead lines would not 6. Ownership and operation of provider’s interconnection facilities affect the entire transmission system; (4) interconnection facilities may take begin or the point of interconnection generator lead lines do not provide several forms. Under Order No. 2003,10 with the transmission provider’s ancillary services; (5) generator lead generation developers that wish to transmission system. Section 9.9.2 of lines are often located in remote regions interconnect their generation facilities the pro forma LGIA is inapplicable to not in close proximity to load; (6) to the integrated transmission grid must third-party requests for use of an generator lead lines are owned by submit an interconnection request to the interconnection customer’s entities entirely different than those that relevant transmission provider pursuant interconnection facilities. These typically own transmission; and (7) to the transmission provider’s LGIP and interconnection customer’s generator lead lines are viewed by their develop an LGIA. Interconnection interconnection facilities are the types developers and banks providing facilities that are owned, controlled, or of facilities at issue in this proceeding. financing as an integral part of the operated by the transmission provider, whole, not as a project or business March 2011 Technical Conference 16 regardless of which party constructed separate from the generating facility. 8. The Commission held a technical 10. Among the main concerns raised, the facilities, are designated as 17 transmission provider’s interconnection conference in March 2011 to explore, commenters identify a ‘‘free rider’’ facilities under the LGIA. Third party among other things, the application of problem that, in their opinion, produces use of the transmission provider’s the Commission’s open access policies a disincentive to be the first developer 12 interconnection facilities is governed by to generator lead lines in the instance to build a generator lead line, while the provisions of the LGIA.11 This when affiliated or unaffiliated third- creating a relative advantage for other provision permits the parties to party generators also seek to use these generation developers to be second in 13 18 19 negotiate for a third party to use the facilities. Generally, commenters line. Several commenters argue that interconnection facilities and entitles assert that these policies may be unduly being subject to the open access the original interconnection customer to burdensome and ill-suited for generator requirements of Order Nos. 888, 889, lead lines, and may have detrimental and 890 (including the obligations to 8 See, e.g., Southern Company Serv., Inc., Docket implications for the future development file an OATT within 60 days of a No. ER12–554–000 (involving an approximately and financing of generator lead lines request for service and to administer an 2,000 foot interconnection facility). and their associated generation projects, OATT, Open Access Same Time 9 See, e.g., Bayonne Energy Center, 136 FERC especially renewable energy projects.14 Information System, Standards of ¶ 61,019 (2011) (involving a 345 kV interconnection 15 facility); Terra-Gen I, 132 FERC ¶ 61,215 (involving Specifically, commenters argue that Conduct, and Uniform System of a 212 mile interconnection facility). the Commission should recognize the Accounts) imposes significant costs and 10 Standardization of Generator Interconnection commercial, technological, legal, and difficulties for independent developers, Agreements and Procedures, Order No. 2003, FERC other differences between transmission especially small ones that are not Stats. & Regs. ¶ 31,146 (2003), order on reh’g, Order affiliated with large utilities.20 These No. 2003–A, FERC Stats. & Regs. ¶ 31,160, order on lines and these generator lead lines reh’g, Order No. 2003–B, FERC Stats. & Regs. when considering open access developers assert that complying with ¶ 31,171 (2004), order on reh’g, Order No. 2003–C, principles in the context of radial such responsibilities, in addition to the FERC Stats. & Regs. ¶ 31,190 (2005), aff’d sub nom. obligation to commence studies related Nat’l Ass’n of Regulatory Util. Comm’rs v. FERC, 12 475 F3d. 1277 (D.C. Cir. 2007), cert. denied, 552 The technical conference announcements and to a third-party request for service, may U.S. 1230 (2008). participants used the term ‘‘generator lead lines.’’ require expenditure of a significant While for this NOI we think it is appropriate to hold 11 Section 9.9.2 states ‘‘* * * if the Parties portion of their capital, and require the discussion in terms of interconnection facilities, mutually agree, such agreement not to be in the interest of being true to the comments, we unreasonably withheld, to allow one or more third will maintain the use of the term ‘‘generator lead 16 See, e.g., First Wind at 2–4; Invenergy at 1–2; parties to use Transmission Provider’s lines’’ in this section. Duke at 5–6; and NextEra at 12–13. Interconnection Facilities, or any part thereof, 13 17 Invenergy, CAHW, First Wind, Puget, and Interconnection Customer will be entitled to Priority Rights to New Participant-Funded MidAmerican. compensation for the capital expenses it incurred Transmission, March 15, 2011 Technical 18 in connection with the Interconnection Facilities Conference, AD11–11–000. See, e.g., Puget at 14–15; MidAmerican at 14– based upon the pro rata use of the Interconnection 14 The list of entities that filed comments or 15. Facilities by the Transmission Provider, all third- participated at this conference is in Appendix A of 19 SCE, BP, CAHW, Puget, National Grid, party users and the Interconnection Customer this NOI. MidAmerican, and Wenner. * * *.’’ 15 First Wind, Invenergy, Duke, and NextEra. 20 See, e.g., Puget at 7–8; AWEA at 10.

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additional expertise, hardware, privileged and confidential evidence, Commission continuing to evaluate software, and staffing resources.21 which could not be described in the such requests on a case-by-case basis, 11. Although these expenses may Commission orders or otherwise some commenters 35 suggest that the generally be considered normal costs of disclosed to the public.28 Also, Commission should establish a new pro operating in a regulated environment, commenters argue that, given the forma OATT to apply generically to all commenters argue that the costs are uncertainty of generation project generator lead lines. triggered by a relatively low threshold development due to financing, 15. As an alternative to the current event—a written request permitting, and various other factors, it Commission policy, some commenters unaccompanied by any deposit.22 Thus, may be neither possible for a generator suggest expanding section 9.9.2 of the commenters assert that the minimal developer to provide the needed detail LGIA, which addresses third-party commitment required for third-party about phases of generation that will be access to transmission provider’s requests for transmission service on constructed in the future, nor prudent interconnection facilities, to apply to generator lead lines may not sufficiently for developers to prematurely enter into interconnection customer’s distinguish serious customers from binding contractual commitments interconnection facilities as well, and those who may have merely a merely for purposes of attempting to argue that doing so would render speculative interest in taking demonstrate priority rights.29 unnecessary the requirement for the transmission service, while the 13. Commenters note that certain original interconnection customer to file generator lead line owner is sections of the pro forma OATT may be an OATT when a third party requests immediately affected by having to file inapplicable to generator lead lines on service on their interconnection an OATT, expend significant staff a generic basis. For instance, facilities.36 They argue that treating a resources, and incur significant costs to commenters argue that a single circuit generator requesting access to evaluate the feasibility of providing the generator lead line can only provide interconnection facilities as an requested service.23 firm or non-firm point-to-point service interconnection request is a pragmatic 12. Commenters also state that and cannot provide network service,30 approach that more accurately priority rights on their generator lead so the pro forma OATT’s standard terms characterizes the service being sought, line are essential for the financing of and conditions for network service are and eliminates the unduly burdensome generation projects because priority unnecessary.31 Additionally, several and costly obligations imposed upon rights provide lenders with assurance commenters assert that because generation developers under the that developers will still be able to use generator lead line owners do not have Commission’s current policies that the line for their planned generation the capability to supply many ancillary commenters assert impedes the facilities.24 Commenters assert that services to third parties, the ancillary development of location-constrained lenders are wary of financing generation services provisions of the pro forma renewable generation.37 projects without a guarantee that the OATT are likewise inapplicable.32 16. Further, commenters express generator lead line will have sufficient Further, commenters argue that the concern that the current policy does not capacity available to transmit the planning requirements included in adequately engage the transmission generation to the grid, for both early and Attachment K of the OATT may be an provider in the process of later phases of their generation unnecessary regulatory burden for interconnecting a third-party requestor projects.25 In addition, commenters 26 generator developers of generation lead of service on a generator lead line.38 To argue that generator developers are lines, as they have no native load reach load and serve customers under concerned with the policy of growth, they do not own network current policy, a third party may be demonstrating ‘‘specific plans and transmission facilities, will not typically required to make separate requests for milestones,’’ as it is unclear to them expand their lines absent a request for access to the original interconnection which milestones need to be described service, and the costs of such facilities customer’s interconnection facilities and which factors would adequately are not socialized or based on a regional and the transmission provider’s demonstrate material progress towards planning needs analysis.33 interconnection facilities, as well as a those milestones. They note that, 14. Commenters concede that transmission service request on the although the Commission has found generator lead line owners are free to interconnecting transmission provider’s certain evidence sufficient in prior propose non-rate terms and conditions transmission system.39 Commenters cases,27 its review was limited largely to that differ from the pro forma OATT, assert that this bifurcated process is where each deviation is supported by a inefficient.40 21 Id. demonstration that it is consistent with 17. Transmission providers,41 22 See, e.g., BP at 8; CAWH at 3; and NextEra at or superior to the pro forma OATT or however, caution the Commission 20–21. Commenters appear to be referring to against discriminating against existing sections 17.2, 18.2, or 29.2 of the pro forma OATT, does not apply given the particular which set forth information required for a generator lead line owner’s business transmission providers vis-a` -vis completed application. In addition, where the model.34 However, rather than the independent merchant transmission owner of the facilities does not have an OATT on developers with regard to priority rights file, a third-party customer does not need to submit 28 or other regulatory requirements. a deposit as part of its application for transmission NextEra at 22; BP Wind at 7. service to the interconnection facilities. See 29 See, e.g., NextEra at 24; First Wind at 4. Transmission providers argue that any Sagebrush, a California Partnership, 130 FERC 30 See, e.g., Sagebrush, 130 FERC ¶ 61,093 at P separate treatment for independent ¶ 61,093, at P 57, order on reh’g, 132 FERC ¶ 61,234 29 (waiving the pro forma OATT’s provisions for developers is not appropriate, as (2010) (Sagebrush). We note that the deposit is network service to a single transmission line that required once an OATT is filed. See also Sagebrush, does not have a control area or the generation transmission providers do not want to 132 FERC ¶ 61,234 at P 44; Terra-Gen I, 132 FERC resources necessary to provide network service). ¶ 61,215 at n.84. See also Terra-Gen Dixie Valley, LLC, 134 FERC 35 NextEra, AWEA, SCE, CAHW, NU/NSTAR, and 23 See, e.g., BP at 8; NextEra at 20–21. ¶ 61,027, at P 10–12 (2011) (Terra-Gen II). First Wind. 24 See, e.g., First Wind at 3–4. 31 See, e.g., First Wind at 6–7. 36 Puget at 8; Edison Mission at 17. 25 See, e.g., Allete at 2. 32 See, e.g., First Wind at 6–7; AWEA at 11; 37 Edison Mission at 19. 26 Allete, BP and NextEra. Edison Mission at 25; and NextEra at 13. 38 See, e.g., Puget at 11. 27 See Aero, 118 FERC ¶ 61,210 at P 22; Milford, 33 See, e.g., NextEra at 19–20. 39 Puget at 9. 129 FERC ¶ 61,149 at P 22; and Alta Wind, 134 34 See, e.g., Montana-Alberta Tie, Inc., 116 FERC 40 See, e.g., id. at 10. FERC ¶ 61,109 at P 17. ¶ 61,071, at P 60 (2006) (MATL). 41 SCE at 3; Puget at 7; and MidAmerican at 6.

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be disadvantaged or discouraged from 19. At the outset, however, the Commission should continue its current constructing generator lead lines. Commission also seeks comment on the policy? If not, should the Commission Instead, these commenters favor any scope of our inquiry in this proceeding respond to concerns expressed at the future policies or clarifications of and whether, as a threshold matter, Technical Conference with (a) potential there is a need to reconsider existing clarification of and modification to its existing policy to be based on the type current policy of treating interconnection of facility being constructed, not on the Commission policies. With the passage facilities under the OATT framework; or (b) entity that is proposing to own the of time, concerns raised at the March adoption of a framework under which it facility.42 2011 technical conference and in would consider issues of third-party access subsequent comments may have been and priority rights under its interconnection II. Discussion addressed as the industry has rules and procedures? A. Scope of Inquiry considered the Commission’s existing v. Should the Commission consider precedent. If not, additional views on different treatment for larger versus smaller 18. In this NOI, the Commission seeks what approach would be most effective interconnection facilities, e.g., treating larger comment on various options for in addressing third-party requests for interconnection facilities under the OATT framework and smaller interconnection addressing third-party access to and service and/or evaluating priority rights facilities under the LGIA/LGIP framework? If priority rights on interconnection on interconnection facilities would be so, what would be the appropriate threshold customer’s interconnection facilities. useful. The Commission encourages for separating large versus small Appendix B to this document provides commenters to discuss their views of interconnection facilities (e.g., voltage, miles, a schematic and explanation of what the the needs of their business models in or potential third party interconnection)? Commission believes to be a typical the context of the Commission’s open Should any distinctions be made among situation. Much of the discussion and access and interconnection policies, existing interconnection facilities, planned questions in this NOI derive from this which are designed to ensure that expansions of existing interconnection transmission service is made available facilities, and new interconnection facilities, understanding. As discussed above, for any of the options? Order No. 2003 addresses third party on terms that are just and reasonable vi. From commenters’ perspective, is there use of transmission provider and not unduly discriminatory. a meaningful distinction between the interconnection facilities, but not 20. As noted above, the Commission interconnection/operation of facilities interconnection customer intends that the focus of this proceeding proposed to provide independent interconnection facilities. With a goal of is on interconnection customers’ transmission service (e.g., Chinook 43) and ensuring that a third party generator interconnection facilities as a class of generator interconnection facilities of long (G2) may be able to interconnect to facilities. If commenters disagree that length and high voltage (e.g., Terra Gen I)? this is the set of facilities at issue, then vii. Are there circumstances under which interconnection customer it would be feasible and/or desirable to allow interconnection facilities that in some they should explain their understanding of the facilities at issue (referencing the the generation developer to choose whether instances have been 30, 50, or even its interconnection facilities would be hundreds of miles long, and up to 345 drawing in Appendix B) and respond to governed by the OATT framework or the kV, the Commission has in a series of the questions below in terms of the set LGIA/LGIP framework, with the attendant recent cases treated interconnection of facilities they believe is at issue, and rights and responsibilities of either choice? customer interconnection facilities as clarify that they are doing so. Similarly, viii. For purposes of access policies, transmission facilities for purposes of if commenters distinguish application of should the Commission distinguish between open access policies and required that certain policies based on the size of a affiliates and nonaffiliates even when parties facility or other characteristics, then have otherwise agreed to the terms and the original developer (G1) file an OATT conditions of access to the facilities? within 60 days of a request for service they should respond to the questions below in terms of the relevant ix. Are there additional approaches that the on these facilities. In light of comments Commission should consider? Be specific as received, and as discussed in the characteristics, and clarify that they are to details. For example, commenters mention sections that follow, the Commission doing so. common facilities agreements (CFAs) as a seeks comments on two alternative 21. Specifically, the Commission means for parties to agree on access to approaches to govern third-party use seeks comment on these issues: interconnection customer’s interconnection 44 and priority rights to use: (1) Continued i. To what specific set of facilities are facilities. Commenters also mention a use of an OATT framework with commenters’ concerns directed? That is, are rebuttable de minimis exception for small commenters’ concerns directed toward access interconnection customer’s interconnection potential modification and clarification, facilities. including the potential introduction of a to interconnection customer interconnection facilities, or to both interconnection customer x. To the extent that the concerns regarding safe harbor period, and a case-by-case interconnection facilities and transmission third-party use and priority rights do not determination on the generation provider interconnection facilities? exist for transmission provider’s developer’s priority rights; or (2) use of ii. Is requiring interconnection customer interconnection facilities, why would a a LGIA/LGIP framework in which the interconnection facilities to provide third- generation developer that builds its own existing LGIA provisions that govern party access under an OATT framework interconnection facilities choose to retain third-party use of transmission necessary to ensure against undue operational control of them as opposed to provider’s interconnection facilities discrimination and ensure just and 43 would be extended to interconnection reasonable rates, given that developers of Chinook Power Transmission, LLC, 126 FERC remote generation are building ¶ 61,134 (2009) (Chinook). customer’s interconnection facilities. In interconnection facilities of considerable 44 See, e.g., BP Wind Energy North America Inc., addition to the details of each approach, length and/or size? 129 FERC ¶ 61,207 (2009) (for an order accepting the Commission seeks comment on the iii. Has the Commission’s current policy a CFA among affiliated parties and granting waiver relative ability of each to meet customer blurred the pre-existing line between of the requirements of Order Nos. 888 and 890). See Sky River, LLC, 134 FERC ¶ 61,064, at P 13 (2011) needs while ensuring that the rates, interconnection service and transmission service with respect to providing for third- (for an order rejecting a CFA between unaffiliated terms, and conditions of jurisdictional parties and denying waiver of the requirements of services remain just and reasonable and party access to interconnection facilities in Order Nos. 888 and 890). But see Ashtabula Wind, such a way as to create unintended not unduly discriminatory. LLC, 127 FERC ¶ 61,215 at P 10 (2009) (granting consequences? waiver of the OATT requirements of Order Nos. 888 iv. Has industry largely adapted to current and 890 in the context of a Common Facilities 42 See, e.g., Puget at 3. Commission policy such that the Agreement between two unaffiliated parties).

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turning them over to the transmission b. OATT Filing Trigger and when to require an OATT to be provider? filed. Specifically: 25. The Commission’s current policy B. Alternative Approaches for Comment to grant waiver of the requirement to file i. Should the Commission alter the an OATT prior to the receipt of a third- standard for what constitutes a third-party 1. Open Access Transmission Tariff request for service on interconnection Framework party request for transmission is customer’s interconnection facilities? If so, designed to reduce the regulatory what should the standard be? What would be 22. If the Commission were to burden on entities that did not intend to maintain reliance on the existing OATT the advantages and disadvantages of doing be transmission providers. However, as so, compared to current policy? framework, should it be modified to noted above, several commenters ii. Should the standard that is required for recognize the characteristics of express concern with the existing a third-party request for service be the same interconnection customer’s standard for what constitutes a valid standard that is required for the original interconnection facilities and needs of third-party request for service on interconnection customer (or its affiliate) to generation developers? request priority rights, i.e., the specific plans interconnection customer’s and milestones demonstration discussed a. Clarification of Specific Plans and interconnection facilities. One panelist above? Why or why not? Would this raise Milestones Evaluation suggests that the standard for a third- confidentiality concerns, and if so, how 23. Our current case-by-case policy of party request should be at least to match could those be mitigated or avoided? the level of generation development that iii. Should the Commission alter the determining a generation developer’s requirement that a third-party request triggers priority rights to its interconnection has been demonstrated by the original interconnection customer,45 although an OATT Filing requirement by the original facilities provides a degree of flexibility interconnection customer within 60 days of and recognizes that there is not one commenter argues that this is an receipt of a request for service? If so, how? necessarily a standard method for impossible standard because a iv. If the Commission were to alter the development of generation projects. generation developer is limited in how requirement that a third-party request triggers far it can proceed with its project until an OATT Filing requirement by the original However, as mentioned above, some 46 commenters voice concerns that the it has secured transmission capacity. interconnection customer, should there be One commenter also argues that different approaches when affiliates gain Commission’s current case-by-case access to the interconnection facilities as evaluation of generation developers’ generation developers should be allowed to require that transmission opposed to when nonaffiliates gain access? requests for priority rights on their v. Would it enhance regulatory certainty interconnection facilities based on the customers satisfy more stringent for the Commission to amend the LGIA to demonstration of specific plans and creditworthiness standards than include contractual terms apprising the milestones for construction of their currently required, because generation interconnection customer that it will become generation projects is not clear. To developers, in forming their business a transmission provider if a third party address this concern, the Commission models and capital structure, do not requests transmission service over its interconnection customer interconnection could be more prescriptive on the contemplate taking on significant credit 47 facilities? ‘‘specific plans and milestones’’ risks of competing generators. 26. Some commenters suggest vi. Would the creation of a pro forma standard to provide direction to tailored OATT (discussed below) ease the generation developers seeking to modifying the rules for when and under burden on the generation developer to the establish their firm priority rights. Such what circumstances an OATT would point that the existing 60-day window for requirements could include the type of need to be filed. For example, filing an OATT would be sufficient? evidence that would be indicative of commenters argue that extending the vii. Some commenters argue that under sufficient ‘‘specific plans and current 60-day requirement to file an current Commission policy, third parties OATT is justified because of a must make up to four sequential requests for milestones,’’ and the factors to be service (for interconnection and transmission considered in determining whether possibility that a third party requesting service might withdraw after the services, from both the original ‘‘material progress has been made.’’ interconnection customer and the 24. The Commission seeks comment generation developer has incurred transmission provider) to deliver their power. on issues related to the evaluation of significant costs in putting an OATT These commenters use this as an argument in specific plans and milestones in into place, including the internal favor of using the LGIA/LGIP framework. Is requests for priority rights to use structure to administer it.48 One there a way under the OATT framework to capacity on interconnection customer’s commenter suggests requiring the coordinate the requests that a third party interconnection facilities. Specifically: generation developer to file a notice of would need to make? a request for service within a certain i. Should the Commission continue its c. Tailored OATT number of days after receiving a request, practice of evaluating requests for priority 28. Order No. 888 set forth a pro rights for interconnection customer’s and requiring them to file an OATT only after a generation interconnection forma tariff that provides standardized interconnection facilities on a case-by-case terms and conditions for the provision basis? If so, should the existing standards agreement or a transmission service used to evaluate sufficiency of evidence to agreement is executed. They argue that of open access transmission service. The demonstrate priority be clarified or modified? this process would allow the generation unique features of interconnection How? developer to focus on performing the facilities may warrant tailoring the ii. Should the Commission require necessary studies instead of filing an terms and conditions of the OATT to generation developers to meet a given set of OATT.49 correspond to these unique features for uniform criteria to secure priority rights? If providing open access transmission 27. The Commission seeks comment so, what are the necessary criteria and what service. One option for recognizing on issues related to third-party requests types of evidence are sufficient to these differences and for responding to demonstrate these criteria? Or, should the concerns laid out above may be to generation developers have the flexibility to 45 Transcript at 128 (citing Kurt Adams of First continue to use a pro forma OATT demonstrate the sufficiency of their plans Wind). based on various criteria, and what might 46 Gradient at 7. framework but, on a generic basis, these criteria be? In this regard, how should 47 Edison Mission at 24. modify the pro forma OATT to establish the Commission balance needs for regulatory 48 BP Wind at 8; NextEra at 20–21. a tailored set of terms and conditions for certainty and flexibility? 49 NextEra at 20–21. service, i.e., a pro forma ‘‘tailored

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OATT,’’ that would apply to a well- 32. Additionally, commenters argue increases the losses borne by earlier defined set of interconnection facilities. that some other provisions the users because losses increase as the line 29. The Commission has previously Commission has not waived are becomes fully used, and can render the granted waiver of specific provisions of inappropriate for interconnection power contracts of earlier users the pro forma OATT to accommodate facilities. Specifically, commenters uneconomical or interfere with their unique situations. For instance, as argue that requiring generation ability to supply contracted power.65 mentioned above, because developers to adopt comparable 34. The Commission seeks comments interconnection facilities are not Attachment K transmission planning on these issues. Specifically: networked facilities, the Commission process procedures makes little sense, has granted waiver of the pro forma and that instead the Commission should i. Would a pro forma tailored OATT OATT requirement to provide network direct the generation developer, after accomplish the Commission’s goals of ensuring non-discriminatory access? Is a pro 50 receiving a request for service, to services on interconnection facilities. forma tailored OATT appropriate in these participate in the interconnecting Also, because the transmission provider circumstances, or should the Commission to which the interconnection facilities transmission provider’s Attachment K continue to evaluate requests for waiver of 58 are interconnected is required to have process. Commenters also suggest that certain pro forma OATT provisions on an OATT that provides for ancillary the pro forma OATT requirement to interconnection facilities on a case-by-case services on a non-discriminatory basis, calculate Available Transfer Capability basis? and because of the physical limitations may be inapplicable to interconnection ii. Does a pro forma tailored OATT provide of interconnection facilities, the facilities.59 Additionally, one developers clarity beyond that which has Commission has granted waiver of the commenter argues that developing rates already been established by Commission pro forma OATT requirement to provide for point-to-point transmission service precedent on the applicability of the pro forma OATT to interconnection facilities? ancillary services.51 for Schedules 7 and 8 may be iii. How does a pro forma tailored OATT 30. Many generation developers argue particularly burdensome for generation developers not experienced with framework compare to the other options that the pro forma OATT is not well- presented here in terms of commercial suited for interconnection facilities and traditional rate regulation and that do viability? that these facilities should either be not usually follow the Uniform System iv. What are the relative benefits and 60 substantially or entirely exempt from of Accounts, and also suggests waiver drawbacks of the pro forma tailored OATT pro forma OATT requirements.52 Some of the Open Access Same-Time framework as compared to the existing of those commenters argue that using a Information System and the Standards policy? How should the Commission tailored OATT could address several of of Conduct.61 Another commenter distinguish use of a pro forma tailored OATT the concerns with existing policy by suggests allowing generation developers for interconnection facilities and use of the pro forma OATT for public utility lessening the time, expense, and other to use a single set of interconnection procedures and a single interconnection transmission providers that have divested burdens inherent in developing, filing, their generation and thus may have limited and administering an OATT. agreement for all generators, instead of separate procedures and agreements for ability to provide all OATT services, e.g., Proponents also argue that this ancillary services? Similarly, should the approach would reduce confusion and large and small generators, because Commission distinguish interconnection the risk of inconsistency, which is there is a limited set of potential facilities that may use a pro forma tailored 62 heightened by employing a case-by-case customers. Another commenter argues OATT from transmission facilities that may waiver approach.53 that generation developers should not typically receive waiver of some pro forma 31. Several participants in the have an obligation to expand their OATT provisions, such as merchant Technical Conference identify pro interconnection facilities if there is transmission lines? If so, how? forma OATT provisions they believe insufficient capacity for a third party’s v. Identify the pro forma OATT provisions 63 that should be excluded from a pro forma could be eliminated to create a pro intended use. 33. Commenters also identify tailored OATT. Why should these be forma tailored OATT. One commenter provisions in the pro forma OATT that excluded? submitted a proposed pro forma ‘‘Radial they think should be modified in a vi. What, if any, new or modified OATT.’’ 54 Commenters argue that the tailored OATT framework. For instance, provisions only applicable to interconnection network service provisions,55 the facilities should be added to a pro forma several commenters argue that, while tailored OATT? Why? requirement to provide scheduling the pro forma OATT requires the use of services,56 and the requirement to vii. If the Commission were to pursue a pro 57 average line losses, it is appropriate for forma tailored OATT, should the provide ancillary services, all interconnection facilities to use provisions which the Commission has Commission adopt the proposed pro forma incremental line losses, because they are 66 previously waived for interconnection Radial OATT submitted by NextEra? Please discrete facilities and do not form a explain and be specific as to any changes that customer’s interconnection facilities, network.64 One commenter asserts that would need to be made to that proposal. should be removed from a tailored allocating average line losses under viii. If a pro forma tailored OATT did not OATT framework. section 15.7 of the pro forma OATT fails include a requirement to provide ancillary to recognize that each successive user services, would relying on the public utility 50 See Sagebrush, 130 FERC ¶ 61,093 at P 29; transmission provider to provide these Terra-Gen Dixie Valley, LLC, 135 FERC ¶ 61,134, at 58 NextEra at 19–20; AWEA at 12; CAHW at 23; services create an undue burden on the P 12 (2011) (Terra-Gen III). and NU/NSTAR at 7–8. public utility transmission provider? 51 See Sagebrush, 130 FERC ¶ 61,093 at P 29; 59 See, e.g., CAHW at 23; NextEra at 9–11. ix. Should all interconnection customer’s Terra-Gen III, 135 FERC ¶ 61,134 at PP 31–33. 60 CAHW at 23–24. interconnection facilities be eligible to 52 See, e.g., SCE at 4; Edison Mission at 13–14; 61 Id. at 24. provide service under a tailored OATT? If Puget at 6; NextEra at 6; and First Wind at 7. 62 not, which facilities should be excluded? Is 53 Edison Mission at 27. They note the NextEra at 2–3. Commission rejected this idea in Sagebrush, 130 the size of the facilities (for example, length, 54 NextEra at Attachment 1. FERC ¶ 61,093 at P 52, but has allowed the use of capacity, voltage) relevant to being eligible 55 CAHW at 23–24; Edison Mission at 22; NextEra a single set of procedures and a single agreement for tailored OATT treatment? at 15–16; and First Wind at 6–7. by the Midwest ISO. 56 AWEA at 11; NextEra at 13. 63 Invenergy at 11. 57 AWEA at 11; Edison Mission at 25; and 64 See, e.g., NextEra at 14–15; CAHW at 23; and 65 CAHW at 23. NextEra at 11–12. Invenergy at 9–10. 66 NextEra at Attachment 1.

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d. Safe Harbor service date of the interconnection facilities)? generation developer) for access to If so, what should that milestone be? Or, 35. A variation on the OATT excess capacity on the interconnection should a developer be required to make a customer’s interconnection facilities at framework is a safe harbor period. demonstration before it qualifies for a safe Within a safe harbor the generation harbor (e.g., such as plans for phased the same time that they apply for service developer would have a grace period in generation development)? If the latter, what on the transmission provider’s which the open access rules determined should be required to make such interconnection facilities and 72 to be relevant for interconnection demonstration? transmission system. These customer’s interconnection facilities vi. What types of interconnection facilities commenters argue that this process should qualify, and how should a generation would be preferable to the would not apply, to allow for the developer identify itself as one that is phased development of generation Commission’s current policy, under pursuing phased generation development? which a new interconnection customer projects over that period. Accordingly, a Should there be an upper or lower limit on generation developer would be assumed physical characteristics of the could be required to negotiate separately to have priority rights to capacity on its interconnection facilities such as length, with the generation developer and the interconnection facilities during the safe voltage, capacity, etc. to qualify for safe transmission provider. Commenters harbor period. harbor treatment? further argue that involving the 36. The Commission previously vii. Should there be intermediate transmission provider at the onset of the development requirements to maintain safe rejected a proposal for a safe harbor process is more efficient because the harbor status? What would these transmission provider is critical to period of firm priority rights in Milford, requirements be? If requirements are not stating that such a period would be satisfied, what consequences are appropriate? assessing system impacts, providing inconsistent with Commission support such as ancillary services, and precedent granting waiver of open 2. LGIA/LGIP coordinating reliability issues.73 access requirements unless and until the 38. An alternative framework for 39. Commenters add that section 9.9.2 owner of the line receives a request for dealing with third-party requests for of the pro forma LGIA recognizes an transmission service.67 Nevertheless, service and priority rights on opportunity for interconnection many of the commenters 68 suggest this interconnection customer’s customers and the transmission option as a means to protect generation interconnection facilities would be to provider to negotiate a multi-party developers’ priority rights to use their rely on a modified version of the LGIA/ agreement to determine the amount of interconnection facilities for their LGIP. Some commenters suggest compensation owed to an phased generation project development. expanding section 9.9.2 of the pro forma interconnection customer for capital 37. The Commission seeks comments LGIA, which addresses third-party expenses related to the transmission on issues related to a safe harbor period. access to transmission provider’s provider’s interconnection facilities, as Specifically: interconnection facilities, to apply to well as the allocation of on-going expenses.74 Some commenters suggest i. Is a safe harbor period a viable approach? interconnection customer’s What are the benefits and drawbacks of the interconnection facilities as well, and that the Commission could develop a safe harbor period approach, as compared argue that doing so would render pro forma multi-party agreement to be with the current case by case demonstration unnecessary the requirement for the used by entities in negotiating under of specific plans and milestones, or the other generation developer to file an OATT.69 section 9.9.2.75 options presented herein? For instance, to They argue that this would provide 40. Generally, commenters argue that what extent could such a safe harbor period access to interconnection customer’s treating a third-party request for access be used as a means to prevent others from interconnection facilities in the same to interconnection customer’s accessing the transmission system? ii. If the Commission were to institute a manner that access to transmission interconnection facilities as an safe harbor period, should a generation provider’s interconnection facilities is interconnection request is a pragmatic developer be allowed to provide access to its now provided.70 One commenter approach that more accurately interconnection facilities to others during the suggests that the Commission could also characterizes the service being sought, safe harbor period? If so, how should the revise the definition of Affected System and eliminates the unduly burdensome Commission guard against discriminatory to include interconnection customer’s and costly obligations imposed upon access? interconnection facilities specifically, generation developers under the iii. If the Commission were to institute a which would mean that these facilities Commission’s current policies which safe harbor period, could the Commission would be studied as part of subsequent adopt for the safe harbor period the commenters assert impede the requirement, currently applicable where the interconnection studies performed by development of location-constrained Commission has granted priority rights, that the transmission provider for other renewable generation.76 Commenters a generation developer make any currently interconnection customers, because an characterize expanding section 9.9.2 of unused capacity available to third parties interconnection system impact study is the pro forma LGIA as an until such time as its future generation defined in the pro forma LGIA as ‘‘an administratively simple and less projects come on line, in a way that is engineering study that evaluates the onerous way to facilitate access to consistent with the objectives of a safe harbor impact of the proposed interconnection interconnection customer’s period? on the safety and reliability of interconnection facilities.77 iv. What would be the appropriate duration Transmission Provider’s Transmission for the safe harbor period? Should there be 41. The Commission seeks comment differences in the duration of the safe harbor System and, if applicable, an Affected on whether treating third-party use of 71 period based upon different resource types System.’’ Commenters also propose interconnection facilities as (geothermal, wind, solar, etc.)? If so, how can that, under an LGIA framework, third interconnection service is a workable such distinctions be justified? parties should apply directly to the v. Should a safe harbor period be transmission provider (and not the 72 Puget at 9–10. established to begin automatically from some 73 Id. fixed milestone date (e.g., such as the in- 69 Puget at 8; Edison Mission at 17; Allete at 2; 74 See, e.g., Edison Mission at 18. SCE at 3–4; and MidAmerican at 15–16. 75 Id. 67 Milford, 129 FERC ¶ 61,149 at P 23. 70 Puget at 15. 76 Edison Mission at 19. 68 AWEA, BP, CAHW, Edison Mission, First 71 Edison Mission at 18 (referencing definitions in 77 Puget at 8; Edison Mission at 19; and SCE at Wind, Gradient, Invenergy, NextEra, and Sempra. LGIA section 1). 3–4.

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alternative to current Commission concerns identified above? Are there other interconnection facilities. Rather, the policy. Specifically: concerns with current Commission policy on full capacity of the original access to interconnection customer’s interconnection customer’s request, i. If the Commission were to expand interconnection facilities that would remain section 9.9.2 to govern third party use of under an LGIA/LGIP framework? including capacity for future phases of interconnection customer’s interconnection viii. Should there be a limit (e.g., with generation if those are included in the facilities, what would prevent the original respect to voltage, capacity, or length) to the original LGIA that was developed, is interconnection customer from evading interconnection customer’s interconnection unavailable for use by any third party. negotiations with the third party (which is facilities that would qualify for treatment This is currently how the transmission likely its competitor), withholding capacity under the LGIA/LGIP framework discussed provider treats transmission provider for reasons other than a legitimate planned above? project, or putting excessive cost interconnection facilities when it ix. How would an LGIA/LGIP approach studies a new interconnection request. responsibilities on the third party? compare to the other options presented here ii. Would extending section 9.9.2 as in terms of commercial viability and The Commission seeks comment, discussed above be sufficient to enable the removing barriers to the development of however, on whether this is a viable and transmission provider to facilitate granting location-constrained generation? fair approach for demonstrating and third parties access to the interconnection 42. The Commission also seeks securing priority rights to capacity for customer’s interconnection facilities? Or phased generation projects. Specifically: would other arrangements or modifications comment on how priority rights to to the pro forma LGIA be needed to give the interconnection customer’s i. For generation projects that are built in transmission provider that ability? For interconnection facilities for phased phases, is it possible and/or typical to request example, what commercial arrangements generation development would work the interconnection facilities be constructed between the transmission provider and the within an LGIA/LGIP framework. In in such a manner as to accommodate the original interconnection customer would be making a valid interconnection request capacity for future phases in an initial interconnection request and/or LGIA? How required to enable third-party under the pro forma LGIP, an interconnection to the interconnection have developers been submitting customer’s interconnection facilities? interconnection customer must submit interconnection requests and executing iii. What are the benefits and drawbacks of (1) A $10,000 deposit, (2) a completed LGIAs for phased projects; i.e., have a third party requesting interconnection application with detailed generator data developers been including the capacity service from the transmission provider, (Appendix 1 of the LGIP), and (3) a necessary for future generation phases in the rather than from the original interconnection demonstration of site control or post an initial interconnection request under LGIP? customer? additional deposit of $10,000.78 ii. How would the LGIA/LGIP approach fit iv. Should the pro forma LGIA be modified Additionally, the LGIA stipulates with the current standard of demonstrating to include an obligation to expand the various milestones that must be logged plans and milestones on a case-by-case basis existing capacity of the interconnection to receive priority rights for future phases of customer’s interconnection facilities to with dates for completion in Appendix a generation project? Does the existing pro accommodate a third-party request for B of the LGIA. If future generation forma LGIA/LGIP contain a sufficiently clear interconnection service? If so, should the phases are included in an initial request procedure, e.g., in submitting and obligation apply to the original for interconnection service, then maintaining a valid interconnection request interconnection customer or the transmission meeting these milestones as a means to and meeting the milestones set forth in provider? Would such a modification be demonstrate intended future use of the Appendix B, such that this procedure might consistent with the roles and responsibilities facilities would arguably be similar in serve a similar purpose as the current established in the rest of the pro forma LGIA substance to the Commission’s current standard of demonstrating specific plans and for whichever party the obligation applies to policy of demonstrating plans and milestones? (i.e., either the original interconnection iii. If no separate priority rights request for customer or the transmission provider)? milestones to secure priority rights, a generation developer to establish capacity v. Are there other issues associated with though relying solely on the rights for its interconnection facilities would third-party use of the interconnection interconnection rules and procedures be necessary, what are the benefits and/or customer’s interconnection facilities that for securing priority rights would drawbacks of such an approach? would require other modifications to the pro nevertheless be a different approach iv. How would adopting an LGIA/LGIP forma LGIA? If so, what are the issues, and than the Commission’s current policy of framework otherwise affect generation what would these modifications be? For demonstrating plans and milestones. developers seeking priority rights on their example, as the term is defined in the pro interconnection customer’s interconnection forma LGIA, interconnection facilities are The LGIP stipulates that a generator with a higher queued interconnection facilities for their phased generation projects? ‘‘sole use’’ facilities. If the Commission were If the generation developer plans to to rely on the interconnection rules and request or an executed LGIA (or eventually use currently unused capacity on procedures to govern third party use of unexecuted LGIA that a party has interconnection facilities, should the pro interconnection facilities, would we need to requested be filed with the Commission) forma LGIA be modified to require that eliminate language in the LGIA/LGIP that is included in the base case for any capacity on interconnection facilities be refers to these as ‘‘sole use’’ facilities? If so, subsequent Interconnection Feasibility made available for third-party use until the what would be the collateral consequences? or System Impact Study.79 So as long as generation developer is ready to use that vi. In addition to the modifications to the capacity? pro forma LGIA/LGIP identified above, the initial interconnection request or would there be benefit in the Commission executed LGIA includes later phases of III. Comment Procedures developing other pro forma agreements to a generation project, under the facilitate third-party access to the interconnection rules and procedures 43. The Commission invites interested interconnection customer’s interconnection with a modified section 9.9.2 to include persons to submit comments on the facilities (e.g., pro forma multi-party agency interconnection customer matters, issues and specific questions agreements, service agreements, cost-sharing interconnection facilities, the generation identified in this notice. Comments are agreements, etc.), or should those agreements developer would not risk losing its due 45 days from publication in the be developed by the affected entities and Federal Register. Comments must refer reviewed by the Commission on a case-by- planned interconnection service simply case basis? because a third party also seeks to use to Docket No. AD12–14, and must vii. How would expanding the pro forma the interconnection customer include the commenter’s name, the LGIA to govern third-party requests for organization they represent, if service on the interconnection customer’s 78 LGIP section 3.3.1. applicable, and their address in their interconnection facilities otherwise solve the 79 See LGIP section 6.2 and 7.3. comments.

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44. The Commission encourages FERC’s Home Page (http://www.ferc. American Wind Energy Association (AWEA) comments to be filed electronically via gov) and in FERC’s Public Reference Anbaric Transmission (Anbaric) the eFiling link on the Commission’s Room during normal business hours BP Wind Energy North America (BP Wind) Web site at http://www.ferc.gov. The (8:30 a.m. to 5 p.m. Eastern time) at 888 California High Wind Partners (CAHW) Commission accepts most standard First Street NE., Room 2A, Washington, Clean Line Energy Partners (Clean Line) Duke Energy (Duke) word processing formats. Documents DC 20426. Edison Mission Energy (Edison Mission) created electronically using word 48. From FERC’s Home Page on the Electric Power Supply Association (EPSA) processing software should be filed in Internet, this information is available on First Wind Holdings (First Wind) native applications or print-to-PDF eLibrary. The full text of this document Gradient Resources (Gradient) format and not in a scanned format. is available on eLibrary in PDF and Grasslands Renewable Energy (Grasslands) Commenters filing electronically do not Microsoft Word format for viewing, Horizon Wind Energy LLC (Horizon) need to make a paper filing. printing, and/or downloading. To access Invenergy Wind & Invenergy Thermal 45. Commenters unable to file this document in eLibrary, type the (Invenergy) comments electronically must mail or docket number excluding the last three LS Power Transmission (LS Power) digits of this document in the docket MidAmerican Energy Holdings Co. hand deliver an original and copy of (MidAmerican) their comments to: Federal Energy number field. National Grid USA (National Grid) Regulatory Commission, Secretary of the 49. User assistance is available for NextEra Energy Resources (NextEra) Commission, 888 First Street NE., eLibrary and the FERC’s Web site during Northeast Utilities (Northeast) Washington, DC 20426. normal business hours from FERC Northwestern Energy (Northwestern) 46. All comments will be placed in Online Support at (202) 502–6652 (toll Pattern Transmission (Pattern) the Commission’s public files and may free at 1–866–208–3676) or email at Puget Sound Energy (Puget) be viewed, printed, or downloaded [email protected], or the San Diego Gas & Electric (SDG&E) Public Reference Room at (202) 502– Sempra Generation (Sempra) remotely as described in the Document Shell Wind Energy (Shell) Availability section below. Commenters 8371, TTY (202) 502–8659. Email the Public Reference Room at public. Southern California Edison (SCE) on this proposal are not required to Southern Co. (Southern) serve copies of their comments on other [email protected]. Tonbridge Power (Tonbridge) commenters. By direction of the Commission. Transmission Access Policy Study Group (TAPS) IV. Document Availability Nathaniel J. Davis, Sr., Deputy Secretary. Transmission Developers, Inc. (TDI) 47. In addition to publishing the full United Illuminating Co. (United) text of this document in the Federal Appendix A Western Independent Transmission Group (WITG) Register, the Commission provides all List of Commenters and Participants in Zephyr Power Transmission (Zephyr) interested persons an opportunity to Docket No. AD11–11–000 * Comments filed after due date. view and/or print the contents of this Adam Wenner * document via the Internet through Allete, Inc. d/b/a Minnesota Power Appendix B

Order No. 2003 addresses third party use control, and operate interconnection Facilities. With a goal of ensuring that a third of Transmission Provider Interconnection facilities, which are then defined as party generator (G2 in the above schematic) Facilities, which are those that are owned, Interconnection Customer Interconnection may be able to interconnect to controlled, or operated by the Transmission Facilities under the LGIP/LGIA, but Order Interconnection Customer Interconnection Provider. Order No. 2003 permits the No. 2003 does not address third party use of Facilities that in some instances have been interconnection customer to build, own, Interconnection Customer Interconnection 30, 50, or even hundreds of miles long, the

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Commission has in a series of recent cases www.regulations.gov. Comments pursuant to the Act of August 24, 1912 considered these Interconnection Customer submitted will be available for public (37 Stat. 434; 19 U.S.C. 1). Although Interconnection Facilities to be open access inspection in accordance with the CBP is not aware of any document transmission facilities and required that the Freedom of Information Act (5 U.S.C. which specifically sets forth the original developer (G1 in the above 552) and 19 CFR 103.11(b) on normal schematic) file an OATT within 60 days of geographical boundaries of the a request for service on these facilities. In business days between the hours of 9 Indianapolis port of entry, the port light of comments received, this NOI seeks a.m. and 4:30 p.m. at the Border limits are generally understood to be the feedback on whether the filing of an OATT, Security Regulations Branch, Office of corporate limits of the city of modifications to the LGIA/LGIP, or other International Trade, U.S. Customs and Indianapolis. means are better for addressing third-party Border Protection, 799 9th Street NW., In 1970, by act of the Indiana access to facilities at issue here. 5th Floor, Washington, DC. legislature, the city of Indianapolis [FR Doc. 2012–9848 Filed 4–24–12; 8:45 am] Arrangements to inspect submitted consolidated with the surrounding BILLING CODE 6717–01–P comments should be made in advance county of Marion. However, four by calling Mr. Joseph Clark at (202) 325– municipalities within Marion County 0118. remained excluded from the corporate DEPARTMENT OF HOMELAND FOR FURTHER INFORMATION CONTACT: limits of Indianapolis. Additionally, SECURITY Roger Kaplan, Office of Field members of the trade community have Operations, U.S. Customs and Border expressed a need for CBP services in U.S. Customs and Border Protection Protection, (202) 325–4543, or by email areas west and south of the city limits. at [email protected]. CBP would like to extend the 19 CFR Part 101 SUPPLEMENTARY INFORMATION: boundaries of the port of entry of Indianapolis, Indiana, to include all the [Docket No. USCBP–2012–0006] I. Public Participation territory within the boundaries of Extension of Port Limits of Interested persons are invited to Marion County, Indiana, as well as Indianapolis, IN participate in this rulemaking by portions of the neighboring counties of submitting written data, views, or Boone, Hendricks, and Johnson. This AGENCY: U.S. Customs and Border arguments on all aspects of the update is necessary to clarify the Protection, DHS. proposed rule. CBP also invites geographic limits of the port. The ACTION: Notice of proposed rulemaking. comments that relate to the economic, update will also allow CBP to better environmental, or federalism effects that serve the public in the greater SUMMARY: U.S. Customs and Border might result from this proposed rule. Indianapolis area, by providing regular Protection (CBP) is proposing to extend Comments that will provide the most service to (1) municipalities within the geographical limits of the port of assistance to CBP will reference a Indianapolis that are not technically entry of Indianapolis, Indiana. The specific portion of the proposed rule, within the city limits, and to (2) proposed extension will make the explain the reason for any locations to the immediate west and boundaries more easily identifiable to recommended change, and include data, south of the city. The proposed change the public and will allow for uniform information, or authority that support in the boundaries of the port of and continuous service to the extended such recommended change. Indianapolis, Indiana, will not result in area of Indianapolis, Indiana. The II. Background a change in the service that is provided proposed change is part of CBP’s to the public by the port and will not continuing program to use its personnel, As part of its continuing efforts to use require a change in the staffing or facilities, and resources more efficiently, CBP’s personnel, facilities, and workload at the port. and to provide better service to carriers, resources more efficiently, and to importers, and the general public. provide better service to carriers, III. Proposed Port Limits of importers, and the general public, CBP Indianapolis, Indiana DATES: Comments must be received on is proposing to extend the limits of the or before June 25, 2012. The new port limits of Indianapolis, Indianapolis, Indiana, port of entry. CBP ADDRESSES: Please submit comments, Indiana, are proposed as follows: ports of entry are locations where CBP In the State of Indiana, all of Marion identified by docket number, by one of officers and employees are assigned to the following methods: County; that part of Boone County • accept entries of merchandise, clear which is west of Interstate Route 65 and Federal eRulemaking Portal: http:// passengers, collect duties, and enforce www.regulations.gov. Follow the east of State Route 39; that part of the various provisions of customs, Hendricks County which is east of State instructions for submitting comments immigration, agriculture, and related via docket number USCBP–2012–0006. Route 39; and that part of Johnson • U.S. laws at the border. The term ‘‘port County which is east of State Route 37, Mail: Border Security Regulations of entry’’ is used in the Code of Federal Branch, Office of International Trade, north of State Route 144, and west of Regulations (CFR) in title 8 for Interstate Route 65. U.S. Customs and Border Protection, immigration purposes and in title 19 for Mint Annex, 799 9th Street NW., CBP has included a map of the customs purposes. For customs proposed port limits in the docket as Washington, DC 20229–1179. purposes, CBP regulations list Instructions: All submissions received ‘‘Attachment: Port of Entry of designated CBP ports of entry and the Indianapolis—Proposed Limits.’’ must include the agency name and limits of each port in section 101.3(b)(1) docket number for this rulemaking. All of title 19 (19 CFR 101.3(b)(1)).1 IV. Statutory and Regulatory Reviews comments received will be posted Indianapolis was designated as a A. Executive Orders 12866 and 13563 without change to http:// customs port of entry by the President’s www.regulations.gov, including any message of March 3, 1913, concerning a DHS does not consider this proposed personal information provided. reorganization of the customs service rule to be a ‘‘significant regulatory Docket: For access to the docket to action’’ under section 3(f) of Executive read background documents or 1 Ports of entry for immigration purposes are Order 12866, Regulatory Planning and comments received, go to http:// currently listed at 8 CFR 100.4. Review, as supplemented by Executive

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Order 13563. The proposed change is DEPARTMENT OF THE TREASURY Whether an expense is ordinary and intended to expand the geographical necessary is a question of fact. In boundaries of the Indianapolis, Indiana, Internal Revenue Service general, a trade or business expense is port of entry and make the boundaries ordinary if it is normal, usual, or more easily identifiable to the public. 26 CFR Part 1 customary in the taxpayer’s type of There are no new costs to the public [REG–137589–07] business. An expense is necessary if it associated with this rule, and the rule is appropriate and helpful for the RIN 1545–BH60 does not otherwise implicate the factors development of the taxpayer’s business. set forth in section 3(f) of Executive See Commissioner v. Heininger, 320 Local Lodging Expenses U.S. 467, 475 (1943). An expense that Order 12866. Accordingly, this rule has serves primarily to furnish the taxpayer not been submitted to the Office of AGENCY: Internal Revenue Service (IRS), with a social or personal benefit, and is Management and Budget for review. Treasury. ACTION: Notice of proposed rulemaking. only secondarily related to business, is B. Regulatory Flexibility Act not a necessary business expense under SUMMARY: This document contains section 162(a). The Regulatory Flexibility Act (5 proposed regulations relating to the Employee Expenses U.S.C. 601 et seq.) requires federal deductibility of expenses for lodging agencies to examine the impact a rule when not traveling away from home An expense that an employee must would have on small entities. A small (local lodging). The regulations affect bear as a condition of employment may entity may be a small business (defined taxpayers who pay or incur expenses for be a deductible employee business as any independently owned and local lodging. expense. See Sibla v. Commissioner, 611 F.2d 1260 (9th Cir. 1980), acq. operated business not dominant in its DATES: Comments or a request for a (1985–2 CB viii) (contributions to field that qualifies as a small business public hearing must be received by July firemen’s mess required as a condition per the Small Business Act); a small not- 24, 2012. of employment are deductible business for-profit organization; or a small ADDRESSES: Send submissions to expenses). However, expenses that governmental jurisdiction (locality with CC:PA:LPD:PR (REG–137589–07), room primarily are for the employee’s fewer than 50,000 people). 5203, Internal Revenue Service, P.O. personal benefit or convenience are not This proposed rule merely expands Box 7604, Ben Franklin Station, deductible employee business expenses. the limits of an existing port of entry Washington, DC 20044. Submissions See Commissioner v. Flowers, 326 U.S. and does not impose any new costs on may be hand delivered Monday through 465 (1946) (a taxpayer’s expenses for the public. Accordingly, we certify that Friday between the hours of 8 a.m. and lodging near his principal work this rule would not have a significant 4 p.m. to CC:PA:LPD:PR (REG–137589– location, to avoid a long commute to 07), Courier’s Desk, Internal Revenue economic impact on a substantial and from his primary residence, were Service, 1111 Constitution Avenue NW., number of small entities. nondeductible personal expenses Washington, DC. Alternatively, incurred solely because of the taxpayer’s C. Signing Authority taxpayers may submit comments decision to maintain his primary electronically via the Federal residence far from his work location). The signing authority for this eRulemaking Portal at http:// document falls under 19 CFR 0.2(a) www.regulations.gov (IRS REG–137589– Deductible Employee Expenses because the extension of port limits is 07). The tax consequences to an employee not within the bounds of those FOR FURTHER INFORMATION CONTACT: who is reimbursed by an employer for regulations for which the Secretary of Concerning the proposed regulations, R. an expense, or who receives property or the Treasury has retained sole authority. Matthew Kelley, (202) 622–7900; services resulting from an employer’s Accordingly, this notice of proposed concerning submission of comments or payment of an expense, depend on rulemaking may be signed by the a request for a hearing, Funmi Taylor, whether the expense is one that would Secretary of Homeland Security (or her (202) 622–7180 (not toll-free numbers). have been deductible if paid directly by delegate). SUPPLEMENTARY INFORMATION: the employee. For example, if an employee pays an V. Authority Background expense and an employer reimburses This change is proposed under the This document contains proposed the employee under a reimbursement or authority of 5 U.S.C. 301; 6 U.S.C. 203; amendments to 26 CFR part 1 relating other expense allowance arrangement, 19 U.S.C. 2 & note, 66, and 1624. to the deduction of local lodging the reimbursement is not includible in expenses. the employee’s income if it is made VI. Proposed Amendment to the Section 1.262–1 of the Income Tax under an accountable plan. A Regulations Regulations generally disallows a reimbursement is treated as made under deduction for local lodging expenses. an accountable plan only if it is made If the proposed port limits are The proposed regulations allow for an expense that would be deductible adopted, CBP will amend the list of CBP taxpayers to deduct local lodging by the employee under sections 161 ports of entry at 19 CFR 101.3(b)(1) to expenses as ordinary and necessary through 199. See sections 62(a)(2)(A) reflect the new description of the limits business expenses in appropriate and 62(c). of the Indianapolis, Indiana, port of circumstances. Similarly, if an employer provides entry. property or services to an employee in Business Expenses Generally Dated: April 10, 2012. the course of business, the value of the Section 162(a) of the Internal Revenue benefit to the employee is excludable Janet Napolitano, Code (Code) allows a deduction for all from the employee’s income if the Secretary of Homeland Security. of the ordinary and necessary expenses benefit constitutes a working condition [FR Doc. 2012–9996 Filed 4–24–12; 8:45 am] paid or incurred during the taxable year fringe under section 132(a)(3). A BILLING CODE 9111–14–P in carrying on any trade or business. working condition fringe is defined as

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property or services provided to an to enable the employee to avoid a long- local lodging under § 1.262–1(b)(5). The employee to the extent that, if the distance commute (Commissioner v. notice provides that, pending issuance employee paid for the property or Flowers); (3) because the employee is of additional published guidance, the services, the payment would be required to work overtime (Coombs v. IRS will not apply § 1.262–1(b)(5) to allowable as a deduction to the Commissioner, 608 F.2d 1269, 1273 (9th expenses for local lodging of an employee under section 162 or 167. Cir. 1979)); (4) as housing for a recently employee that an employer provides to relocated employee while the employee the employee or requires the employee Nondeductible Personal Expenses searches for permanent housing; or (5) to obtain, if: (1) The lodging is provided Section 262(a) provides that, except as for the employee’s indefinite personal on a temporary basis; (2) the lodging is otherwise provided in Chapter 1 of the use (International Artists, Ltd, v. necessary for the employee to Code, no deduction is allowed for Commissioner, 55 T.C. 94 (1970)). An participate in or be available for a bona personal, living, or family expenses. employer may deduct the costs the fide business meeting or function of the Section 1.262–1(b)(5) provides, as employer incurs in providing the employer; and (3) the expenses are examples of personal, living, and family lodging in each of these cases under otherwise deductible by the employee, expenses, that the costs of a taxpayer’s section 162(a) as compensation for or would be deductible if paid by the meals incurred when not traveling away services. See §§ 1.162–7(a) and 1.162– employee, under section 162(a). from home (local meals) are generally 25T. However, because the primary Explanation of Provisions nondeductible personal expenses. Local purpose of the lodging is to provide the meal expenses may be deducted, employee with a personal benefit, if the These regulations propose to amend however, if they otherwise qualify as employee pays the cost of the lodging the regulations under sections 162 and ordinary and necessary business directly, the employee may not deduct 262. The proposed regulations under expenses under section 162 or as the expense as an ordinary and section 162 provide that expenses paid expenses for the production of income necessary business expense under or incurred for local lodging may be under section 212. In contrast, lodging section 162(a). Therefore, a cash deductible as ordinary and necessary expenses incurred when not traveling reimbursement of the cost is not expenses of a taxpayer’s trade or away from home (local lodging) are excludible from the employee’s gross business, including the trade or nondeductible personal expenses. Thus, income under section 62(c) and the business of being an employee. The local lodging expenses that would value of the lodging is not excludible proposed regulations provide a safe otherwise qualify as trade or business from the employee’s gross income under harbor for certain local lodging at a expenses under section 162 or as section 132(d) as a working condition business meeting, conference, or other production of income expenses under fringe. activity or function. Other local lodging section 212 are not deductible under the Expenditures for local lodging may expenses may be deductible as business current general rule. qualify as deductible ordinary and expenses depending on the facts and Local Lodging Expenses necessary expenses under appropriate circumstances. circumstances if all other requirements The proposed regulations under The cost of local lodging that a of section 162 are met. For example, an section 262 provide that a taxpayer’s taxpayer pays or incurs primarily for the employer may require its employees to costs incurred for local lodging are taxpayer’s convenience or personal stay at a local hotel for the bona fide personal expenses unless the expenses benefit is not an ordinary and necessary purpose of facilitating training or team are deductible under section 162. expense of a business or income- building directly connected with the Comments are specifically requested on producing activity. Similarly, the cost of employer’s trade or business. Similarly, whether the section 262 regulations local lodging provided to an employee a professional sports team may require should be amended to provide that local by an employer for the employee’s its employees (players and coaches) to lodging expenses are not personal convenience or personal benefit would stay at a local hotel the night before a expenses if they are deductible under not be deductible by the employee if the home game to ensure physical section 212. employee paid the cost directly. preparedness and allow for last minute The proposed regulations also amend Therefore, the value of the lodging training. Under these circumstances, the the regulations under section 262 to under those circumstances is not cost of the lodging is primarily for the remove references to section 217 that excludible from the gross income of an business purposes of the employer and are obsolete. Section 217 was amended employee as a working condition fringe not to provide a personal benefit to the by the Revenue Reconciliation Act of under section 132(a)(3), and employees. The cost of the lodging 1993, Public Law 103–66 (107 Stat. reimbursement for the cost of the would be deductible by an employee 417). Under the amendments, lodging lodging under those circumstances is under section 162 if the employee paid when not traveling away from home and not a payment under an accountable the cost directly, and thus the value of meals are not deductible as moving plan under § 1.62–2(c). Consequently, the lodging may be excluded from the expenses. unless excludible on another basis, the employee’s gross income as a working Effective/Applicability Date value of the lodging or the amount of condition fringe if other requirements reimbursement under those are satisfied. Similarly, a payment from The regulations are proposed to apply circumstances is includible in the the employer reimbursing the employee to expenses paid or incurred on or after employee’s income under section 61 as for the cost of the lodging may be the date these regulations are published compensation for services. See §§ 1.61– excluded from the employee’s gross as final regulations in the Federal 21(a)(3), 1.62–2, and 1.132–1. income as a payment under an Register. However, until these The cost of local lodging is for the accountable plan if all the requirements regulations are published as final convenience or personal benefit of an of an accountable plan are met. regulations in the Federal Register, employee (or other recipient) if, for Notice 2007–47 (2007–1 CB 1393) (see taxpayers may apply the proposed example, the lodging is provided to the § 601.601(d)(2) of this chapter) advises regulations to expenses paid or incurred employee (1) as additional taxpayers that the IRS and the Treasury in taxable years for which the period of compensation, such as to provide a Department intend to amend the limitation on credit or refund under weekend at a luxury hotel or resort; (2) treatment of the costs of a taxpayer’s section 6511 has not expired.

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Effect on Other Documents Par. 2. Section 1.162–31 is added to connected with Employer’s trade or business. read as follows: Some employees attending the training are Notice 2007–47 is obsoleted as of traveling away from home and some April 25, 2012. § 1.162–31 Expenses paid or incurred for employees are not traveling away from home. Special Analyses lodging when not traveling away from Employer requires all employees attending home. the training to remain at the hotel overnight This notice of proposed rulemaking is (a) In general. Expenses paid or for the bona fide purpose of facilitating the not a significant regulatory action as incurred for lodging when not traveling training. Employer pays the costs of the defined in Executive Order 12866, as lodging at the hotel directly to the hotel and away from home (local lodging) does not treat the value as compensation to supplemented by Executive Order generally are personal, living, or family 13563. Therefore, a regulatory the employees. expenses that are nondeductible under (ii) Employer has a noncompensatory assessment is not required. It also has section 262(a). Under certain business purpose for paying the lodging been determined that section 553(b) of circumstances, however, expenses for expenses. Employer is not paying the the Administrative Procedure Act (5 local lodging may be deductible under expenses primarily to provide a social or U.S.C. chapter 5) does not apply to these section 162(a) as ordinary and necessary personal benefit to the employees. If the regulations and, because the regulations expenses paid or incurred in connection employees who are not traveling away from do not impose a collection of home had paid for their own lodging, the with carrying on a taxpayer’s trade or expenses would have been deductible under information on small entities, the business, including a trade or business Regulatory Flexibility Act (5 U.S.C. section 162(a) as ordinary and necessary as an employee. Whether local lodging business expenses of the employees. chapter 6) does not apply. Pursuant to expenses are paid or incurred in Therefore, the value of the lodging is section 7805(f) of the Code, this notice carrying on a taxpayer’s trade or excluded from the employees’ income as a of proposed rulemaking has been business is determined under all the working condition fringe under section submitted to the Chief Counsel for facts and circumstances. One factor is 132(a) and (d). Advocacy of the Small Business whether the taxpayer incurs the expense (iii) Employer may deduct the lodging Administration for comment on its because of a bona fide condition or expenses, including lodging for employees impact on small business. who are not traveling away from home, as requirement of employment imposed by ordinary and necessary business expenses Comments and Requests for a Public the taxpayer’s employer. Expenses paid under section 162(a). Hearing or incurred for local lodging that is Example 2. (i) The facts are the same as lavish or extravagant under the Before these proposed regulations are in Example 1, except that the employees pay circumstances or that primarily the cost of their lodging at the hotel directly adopted as final regulations, provides an individual with a social or to the hotel, Employer reimburses the consideration will be given to any personal benefit are not incurred in employees for the cost of the lodging, and comments that are submitted timely to carrying on a taxpayer’s trade or Employer does not treat the reimbursement the IRS as prescribed in this preamble business. as compensation to the employees. under the ‘‘Addresses’’ heading. The (b) Safe harbor for local lodging at (ii) Employer is reimbursing the lodging expenses for a noncompensatory business Treasury Department and the IRS invite business meetings and conferences. An comments on all aspects of the proposed purpose and not primarily to provide a social individual’s expenses for local lodging or personal benefit to the employees. The rules. All comments will be available for will be treated as ordinary and public inspection and copying. A public employees incur the expenses in performing necessary business expenses if— services for the employer. If Employer had hearing may be scheduled if requested (1) The lodging is necessary for the not reimbursed the employees who are not in writing by any person who timely individual to participate fully in or be traveling away from home for the cost of the submits comments. If a public hearing is available for a bona fide business lodging, the expenses would have been scheduled, notice of the date, time, and meeting, conference, training activity, or deductible under section 162(a) as ordinary place for the public hearing will be other business function; and necessary business expenses of the published in the Federal Register. (2) The lodging is for a period that employees. Therefore, the reimbursements to the employees are made under an Drafting Information does not exceed five calendar days and accountable plan and are excluded from the does not recur more frequently than The principal author of these employees’ gross income. once per calendar quarter; (iii) Employer may deduct the lodging regulations is R. Matthew Kelley of the (3) If the individual is an employee, Office of Associate Chief Counsel expense reimbursements, including the employee’s employer requires the reimbursements for employees who are not (Income Tax and Accounting). However, employee to remain at the activity or traveling away from home, as ordinary and other personnel from the IRS and function overnight; and necessary business expenses under section Treasury Department participated in (4) The lodging is not lavish or 162(a). their development. extravagant under the circumstances Example 3. (i) Employer is a professional sports team. Employer requires its employees List of Subjects in 26 CFR Part 1 and does not provide any significant element of personal pleasure, recreation, (players and coaches) to stay at a local hotel Income taxes, Reporting and the night before a home game to conduct last or benefit. recordkeeping requirements. minute training and ensure the physical (c) Examples. The provisions of this preparedness of the players. Employer pays Proposed Amendments to the section are illustrated by the following the lodging expenses directly to the hotel and Regulations examples. In each example the does not treat the value as compensation to employer and the employees meet all the employees. Accordingly, 26 CFR part 1 is other requirements (such as (ii) Employer has a noncompensatory proposed to be amended as follows: substantiation) for deductibility of the business purpose for paying the lodging expenses. Employer is not paying the lodging PART 1—INCOME TAXES expense and for exclusion from income as a working condition fringe or expenses primarily to provide a social or personal benefit to the employees. If the Paragraph 1. The authority citation payment under an accountable plan. for part 1 continues to read in part as employees had paid for their own lodging, Example 1. (i) Employer conducts training the expenses would have been deductible by follows: for its employees at a hotel near Employer’s the employees under section 162(a) as Authority: 26 U.S.C. 7805 * * * main office. The training is directly ordinary and necessary business expenses.

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Therefore, the value of the lodging is provide a social or personal benefit to the taxpayer’s meals not incurred in excluded from the employees’ income as a employees. If the employees had paid for traveling away from home are working condition fringe. their lodging, the expenses would have been nondeductible personal expenses. (iii) Employer may deduct the expenses for deductible by the employees under section lodging the players and coaches at the hotel 162(a) as ordinary and necessary business * * * * * expenses. Therefore, the value of the lodging as ordinary and necessary business expenses Steven T. Miller, under section 162(a). is excluded from the employees’ income as Example 4. (i) Employer hires Employee, a working condition fringe. Deputy Commissioner for Services and who currently resides 500 miles from (iii) Employer may deduct the lodging Enforcement. Employer’s business premises. Employer expenses as ordinary and necessary business [FR Doc. 2012–9885 Filed 4–24–12; 8:45 am] pays for temporary lodging for Employee expenses under section 162(a). BILLING CODE 4830–01–P near Employer’s business premises while (d) Effective/applicability date. This Employee searches for a residence. section applies to expenses paid or incurred (ii) Employer is paying the temporary on or after the date these regulations are DEPARTMENT OF THE TREASURY lodging expense primarily to provide a published as final regulations in the Federal personal benefit to Employee by providing Register. However, until these proposed Internal Revenue Service housing while Employee searches for a regulations are published as final regulations residence. Employer incurs the expense only in the Federal Register, taxpayers may apply as additional compensation and not for a the proposed regulations to local lodging 26 CFR Part 31 noncompensatory business purpose. If expenses that are paid or incurred in taxable [REG–151687–10] Employee paid the temporary lodging years for which the period of limitation on expense, the expense would not be an credit or refund under section 6511 has not RIN 1545–BJ98 ordinary and necessary employee business expired. Withholding on Payments by expense under section 162(a) because the Par. 3. In § 1.262–1, paragraph (b)(5) Government Entities to Persons lodging primarily provides a personal benefit is amended to read as follows: to Employee. Therefore, the value of the Providing Property or Services lodging is includible in Employee’s gross § 1.262–1 Personal, living, and family income as additional compensation. expenses. AGENCY: Internal Revenue Service (IRS), Treasury. (iii) Employer may deduct the lodging * * * * * expenses as ordinary and necessary business (b) * * * ACTION: Withdrawal of notice of expenses under section 162(a) and § 1.162– proposed rulemaking. 25T. (5) Expenses incurred in traveling away from home (which include Example 5. (i) Employee normally travels SUMMARY: This document withdraws a transportation expenses, meals, and two hours each way between her home and notice of proposed rulemaking relating lodging) and any other transportation her office. Employee is working on a project to withholding by government entities that requires Employee to work late hours. In expenses are not deductible unless they on payments to persons providing order to maximize Employee’s availability to qualify as expenses deductible under property or services. The proposed work on the project, Employer provides section 162 (relating to trade or business regulations are withdrawn because Employee with lodging at a hotel near the expenses), section 170 (relating to Public Law 112–56, ‘‘The 3% office. charitable contributions), section 212 (ii) Employer is paying the temporary Withholding Repeal and Job Creation (relating to expenses for production of lodging expense primarily to provide a Act,’’ repealed the provision of the income), section 213 (relating to personal benefit to Employee by relieving her Internal Revenue Code underlying the medical expenses), or section 217 of the daily commute to her residence. proposed rules. The guidance affects (relating to moving expenses), and the Employer incurs the expense only as government entities that would have additional compensation and not for a regulations under those sections. The been required to withhold and report noncompensatory business purpose. If taxpayer’s costs of commuting to his tax from payments to persons providing Employee paid the temporary lodging place of business or employment are property or services and also affects the expense, the expense would not be an personal expenses and do not qualify as persons receiving payments for property ordinary and necessary business expense deductible expenses. For expenses paid under section 162(a) because the lodging or services from these government or incurred before the date these primarily provides a personal benefit to entities. Employee. Therefore, the value of the lodging regulations are published as final is includible in Employee’s gross income as regulations in the Federal Register, a FOR FURTHER INFORMATION CONTACT: additional compensation. taxpayer’s expenses for lodging when A.G. Kelley, (202) 622–6040 (not a toll- (iii) Employer may deduct the lodging not traveling away from home (local free number). expenses as ordinary and necessary business lodging) are nondeductible personal SUPPLEMENTARY INFORMATION: expenses under section 162(a) and § 1.162– expenses. For expenses paid or incurred 25T. on or after the date these regulations are Background Example 6. (i) Employer requires an published as final regulations in the Section 3402(t) of the Internal employee to be ‘‘on duty’’ each night to respond quickly to emergencies that may Federal Register, a taxpayer’s expenses Revenue Code (Code) was added by occur outside of normal working hours. for local lodging are personal expenses section 511 of the Tax Increase Employees who work daytime hours each and are not deductible unless they Prevention and Reconciliation Act of serve a ‘‘duty shift’’ once each month in qualify as deductible expenses under 2005, Public Law 109–222 (TIPRA), 120 addition to their normal work schedule. section 162. However, until these Stat. 345, which was enacted on May Emergencies that require the duty shift regulations are published as final 17, 2006. employee to respond occur regularly. regulations in the Federal Register, Section 102 of the 3% Withholding Employer has no sleeping facilities on its taxpayers may deduct local lodging Repeal and Job Creation Act (Pub. L. business premises and pays for a hotel room expenses that qualify under section 162 112–56, 125 Stat. 711), which was nearby where the duty shift employee stays until called to respond to an emergency. and are paid or incurred in taxable years enacted on November 21, 2011, repealed (ii) Employer has a noncompensatory for which the period of limitation on section 3402(t) of the Code. business purpose for paying the lodging credit or refund under section 6511 has The Treasury Department and the IRS expenses. Employer is not providing the not expired. Except as permitted under issued proposed regulations under lodging to duty shift employees primarily to section 162 or 212, the costs of a section 3402(t), published in the

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Federal Register on May 9, 2011 (REG– rule under Administrative Code Section Commission, 600 East Boulevard, Dept. 151687–10, 76 FR 26678, 2011–23 IRB 69–5.2–12–04. The changes involve the 408, Bismarck, North Dakota 58505– 867). This document withdraws those financial information and notices that 0480, (701) 328–2251, [email protected]. proposed regulations in light of the banks issuing a letter of credit must FOR FURTHER INFORMATION CONTACT: repeal of section 3402(t). provide to the North Dakota Public Jeffrey Fleischman, Telephone: (307) At the same time as the issuance of Service Commission (hereinafter, the 261–6555. Internet: the proposed regulations, the Treasury ‘‘Commission’’). [email protected]. Department and the IRS issued final This document gives the times and SUPPLEMENTARY INFORMATION: regulations under sections 3402(t), 3406, locations that the North Dakota program 6011, 6051, 6071, and 6302 of the Code and proposed amendment to that I. Background on the North Dakota Program that were published in the Federal program are available for your II. Description of the Proposed Amendment Register on May 9, 2011 (TD 9524, 76 inspection, the comment period during III. Public Comment Procedures IV. Procedural Determinations FR 26583, 2011–23 IRB 843). A related which you may submit written document (TD 9586, REG–148417–11) comments on the amendment, and the I. Background on the North Dakota removes the final regulations under procedures that we will follow for the Program section 3402(t) and makes conforming public hearing, if one is requested. Section 503(a) of the Act permits a amendments to the regulations under DATES: We will accept written State to assume primacy for the other sections reflecting that removal. comments on this amendment until regulation of surface coal mining and List of Subjects in 26 CFR Part 31 4 p.m., m.d.t. May 25, 2012. If reclamation operations on non-Federal requested, we will hold a public hearing and non-Indian lands within its borders Employment taxes, Fishing vessels, on the amendment on May 21, 2012. We by demonstrating that its State program Gambling, Income taxes, Penalties, will accept requests to speak until includes, among other things, ‘‘a State Pensions, Railroad retirement, Reporting 4 p.m., m.d.t. on May 10, 2012. law which provides for the regulation of and recordkeeping requirements, Social ADDRESSES: You may submit comments surface coal mining and reclamation Security, Unemployment compensation. by either of the following two methods: operations in accordance with the Withdrawal of Notice of Proposed Federal eRulemaking Portal: requirements of this Act * * *; and Rulemaking www.regulations.gov. This proposed rules and regulations consistent with rule has been assigned Docket ID: OSM– Accordingly, under the authority of regulations issued by the Secretary 2012–0006. If you would like to submit 26 U.S.C. 7805, the notice of proposed pursuant to this Act.’’ See 30 U.S.C. comments through the Federal rulemaking (REG–151687–10) that was 1253(a)(1) and (7). On the basis of these eRulemaking Portal, go to published in the Federal Register on criteria, the Secretary of the Interior www.regulations.gov and follow the May 9, 2011 (76 FR 26678) is conditionally approved the North instructions. withdrawn. Dakota program on December 15, 1980. • Mail/Hand Delivery/Courier: You can find background information Steven T. Miller, Jeffrey Fleischman, Director, Casper on the North Dakota program, including Deputy Commissioner for Services and Field Office, Office of Surface Mining the Secretary’s findings, the disposition Enforcement. Reclamation and Enforcement, Dick of comments, and conditions of [FR Doc. 2012–9886 Filed 4–24–12; 8:45 am] Cheney Federal Building, POB 11018, approval of the North Dakota program in BILLING CODE 4830–01–P 150 East B Street, Casper, Wyoming the December 15, 1980 Federal Register 82601–1018. (45 FR 82214). You can also find later For detailed instructions on actions concerning North Dakota’s DEPARTMENT OF THE INTERIOR submitting comments and additional program and program amendments at 30 information on the rulemaking process, CFR 934.15 and 934.30. Office of Surface Mining Reclamation see the ‘‘III. Public Comment II. Description of the Proposed and Enforcement Procedures’’ in the SUPPLEMENTARY INFORMATION section of this document. Amendment 30 CFR Part 934 In addition to viewing the docket and By letter dated February 2, 2012, obtaining copies of documents at North Dakota sent us a proposed [SATS No. ND–053–FOR; Docket ID OSM– www.regulations.gov, you may review amendment to its program 2012–0006] copies of the North Dakota program, this (Administrative Record Document ID North Dakota Regulatory Program amendment, a listing of any public No. OSM–2012–0006–0002) under hearings, and all written comments SMCRA (30 U.S.C. 1201 et seq.). North AGENCY: Office of Surface Mining received in response to this document at Dakota sent the amendment to include Reclamation and Enforcement, Interior. the addresses listed below during changes made at its own initiative to the ACTION: Proposed rule; public comment normal business hours, Monday through North Dakota Administrative Code period and opportunity for public Friday, excluding holidays. You may (NDAC). The full text of the program hearing on proposed amendment. also receive one free copy of the amendment is available for you to read amendment by contacting OSM’s Casper at the locations listed above under SUMMARY: We are announcing receipt of Field Office. ADDRESSES. a proposed amendment to the North Jeffrey Fleischman, Director, Casper Specifically, North Dakota proposes to Dakota regulatory program (hereinafter, Field Office, Office of Surface Mining change letter of credit provisions in the the ‘‘North Dakota program’’) under the Reclamation and Enforcement, Dick collateral bond rule under NDAC 69– Surface Mining Control and Cheney Federal Building, PO Box 5.2–12–04. The financial information Reclamation Act of 1977 (‘‘SMCRA’’ or 11018, 150 East B Street, Casper, that banks issuing a letter of credit must ‘‘the Act’’). North Dakota proposes Wyoming 82601–1018, (307) 261–6555, provide to the Commission is changes to the North Dakota [email protected]. specifically addressed. An option is Administrative Code to address letter of James Deutsch, Director, Reclamation being added to let banks provide a credit provisions in the collateral bond Division, North Dakota Public Service certified copy of financial reports that

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are required by a Federal agency rather hearing, contact the person listed under List of Subjects in 30 CFR Part 934 than submit a balance sheet that is FOR FURTHER INFORMATION CONTACT. We Intergovernmental relations, Surface certified by a certified public accountant will arrange the location and time of the mining, Underground mining. (CPA). Additionally, a change that hearing with those persons requesting affects the provision requiring banks to the hearing. If no one requests an Dated: March 7, 2012. give the Commission notice of actions opportunity to speak, we will not hold Allen D. Klein, alleging insolvency or bankruptcy is the hearing. Director, Western Region. also being proposed. North Dakota is To assist the transcriber and ensure an [FR Doc. 2012–9869 Filed 4–24–12; 8:45 am] proposing these changes both in order to accurate record, we request, if possible, BILLING CODE 4310–05–P be compliant with state and Federal that each person who speaks at a public banking regulations and to assist banks hearing provide us with a written copy that could possibly have difficulty of his or her comments. The public LIBRARY OF CONGRESS submitting CPA certified balance sheets. hearing will continue on the specified date until everyone scheduled to speak Copyright Royalty Board III. Public Comment Procedures has been given an opportunity to be Under the provisions of 30 CFR heard. If you are in the audience and 37 CFR Part 381 732.17(h), we are seeking your have not been scheduled to speak and [Docket No. 2011–2 CRB NCEB II] comments on whether the amendment wish to do so, you will be allowed to satisfies the applicable program speak after those who have been Determination of Reasonable Rates approval criteria of 30 CFR 732.15. If we scheduled. We will end the hearing after and Terms for Noncommercial approve the amendment, it will become everyone scheduled to speak and others Broadcasting part of the North Dakota program. present in the audience who wish to AGENCY: Copyright Royalty Board, speak, have been heard. Electronic or Written Comments Library of Congress. If you submit written comments, they Public Meeting ACTION: Proposed rule. should be specific, confined to issues If only one person requests an SUMMARY: The Copyright Royalty Judges pertinent to the proposed regulations, opportunity to speak, we may hold a and explain the reason for any are publishing for comment proposed public meeting rather than a public rates and terms for use of certain works recommended change(s). We appreciate hearing. If you wish to meet with us to any and all comments, but those most in connection with noncommercial discuss the amendment, please request broadcasting for the period commencing useful and likely to influence decisions a meeting by contacting the person January 1, 2013, and ending on on the final regulations will be those listed under FOR FURTHER INFORMATION December 31, 2017. that either involve personal experience CONTACT. All such meetings are open to or include citations to and analyses of DATES: Comments and objections, if any, the public and, if possible, we will post are due no later than May 25, 2012. SMCRA, its legislative history, its notices of meetings at the locations ADDRESSES: Comments and objections implementing regulations, case law, listed under ADDRESSES. We will make may be sent electronically to other pertinent state or Federal laws or a written summary of each meeting a [email protected]. In the alternative, send an regulations, technical literature, or other part of the administrative record. relevant publications. original, five copies and an electronic We cannot ensure that comments IV. Procedural Determinations copy on a CD either by mail or by hand received after the close of the comment delivery. Please do not use multiple Executive Order 12866—Regulatory means of transmission. Comments and period (see DATES) or sent to an address Planning and Review other than those listed above (see objections may not be delivered by an ADDRESSES) will be included in the This rule is exempted from review by overnight delivery service other than the docket for this rulemaking and the Office of Management and Budget U.S. Postal Service Express Mail. If by considered. (OMB) under Executive Order 12866 mail (including overnight delivery), (Regulatory Planning and Review). comments and objections must be Public Availability of Comments addressed to: Copyright Royalty Board, Other Laws and Executive Orders P.O. Box. 70977, Washington, DC Before including your address, phone Affecting Rulemaking number, email address, or other 20024–0977. If hand delivered by a personal identifying information in your When a State submits a program private party, comments and objections comment, you should be aware that amendment to OSM for review, our must be brought to the Copyright Office, your entire comment—including your regulations at 30 CFR 732.17(h) require Public Information Office, Library of personal identifying information—may us to publish a notice in the Federal Congress, James Madison Memorial be made publicly available in the Register indicating receipt of the Building, Room LM–401, 101 electronic docket for this rulemaking at proposed amendment, its text or a Independence Avenue SE., Washington, www.regulations.gov. While you can ask summary of its terms, and an DC 20559–6000, between 8:30 a.m. and us in your comment to withhold your opportunity for public comment. We 5 p.m. If delivered by a commercial personal identifying information from conclude our review of the proposed courier, comments and objections must public review, we cannot guarantee that amendment after the close of the public be delivered between 8:30 a.m. and we will be able to do so. comment period and determine whether 4 p.m. to the Congressional Courier the amendment should be approved, Acceptance Site located at 2nd and D Public Hearing approved in part, or not approved. At Street NE., Washington, DC, and the If you wish to speak at the public that time, we will also make the envelope must be addressed to: hearing, contact the person listed under determinations and certifications Copyright Royalty Board, Library of FOR FURTHER INFORMATION CONTACT by required by the various laws and Congress, James Madison Memorial 4 p.m., m.d.t. on May 10, 2012. If you executive orders governing the Building, Room LM–403, 101 are disabled and need reasonable rulemaking process and include them in Independence Avenue SE., Washington, accommodations to attend a public the final rule. DC 20559–6000.

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FOR FURTHER INFORMATION CONTACT: no later than October 31, 2011. In 17 U.S.C. 801(b)(7)(A). The Judges LaKeshia Keys, Program Specialist, by response to the October 31 deadline, the received seven proposals within this telephone: (202) 707–7658 or email at Judges received written direct category from the following [email protected]. statements from CRA, BMI, ASCAP, and participants: (1) SESAC and ACE; (2) 2 SUPPLEMENTARY INFORMATION: Music Reports, Inc. as well as several BMI and ACE; (3) ASCAP and ACE; (4) notifications of settlement and proposed NMPA/HFA and NRBNMLC; (5) SESAC Background rates and terms for the Copyright and NRBNMLC, (6) ASCAP and Section 118 of the Copyright Act, title Royalty Judges to adopt. NRBNMLC; and (7) BMI and 17 of the United States Code, establishes There are two ways that copyright NRBNMLC.4 a statutory license for the use of certain owners and public broadcasting ACE Joint Proposals copyrighted works in connection with entities 3 may negotiate rates and terms noncommercial television and radio under the section 118 statutory license. The joint proposals entered into by broadcasting. Chapter 8 of the Copyright First, copyright owners may negotiate ACE and each of SESAC, BMI, and Act requires the Copyright Royalty rates and terms with specific public ASCAP propose to modify the royalty Judges (‘‘Judges’’) to conduct broadcasting entities for the use of all of rates set forth in § 381.5. The rates proceedings every five years to the copyright owners’ works covered by proposed in the ASCAP/ACE and BMI/ determine the rates and terms for the the license. Section 118(b)(2) provides ACE submissions reflect a change in section 118 license.1 17 U.S.C. 801(b)(1), that such license agreements ‘‘shall be both the fees and the fee structure, going 804(b)(6). In accordance with section given effect in lieu of any determination from a flat rate to tiered rates primarily 804(b)(6), the Judges commenced the by the * * * Copyright Royalty Judges,’’ based on the number of full-time proceeding to set rates and terms for the provided that copies of the agreement students enrolled in the educational period 2008–2012 on January 9, 2006, are submitted to the Judges ‘‘within 30 entity operating the station, with an 71 FR 1453, and published final days of execution.’’ 17 U.S.C. 118(b)(2). exception that looks to the college radio regulations setting those rates and terms The Judges received several agreements station’s authorized effective radiation on November 30, 2007. 72 FR 67646. in this category for which no further power (‘‘ERP’’) as set forth in its current Therefore, the next proceeding to action is required. FCC license. ASCAP/ACE Joint Proposal determine the rates and terms for the Second, copyright owners and public at 4; BMI/ACE Joint Proposal at 4. section 118 license was to be broadcasting entities may negotiate rates Moreover, the proposed rates for ASCAP commenced in January 2011 for the and terms for categories of copyrighted and BMI eliminate the need for the historic annual Consumer Price Index period 2013–2017. 17 U.S.C. 804(b)(6). works and uses that would be binding adjustments, as the proposed rates Accordingly, the Judges published in on all owners and entities and submit increase at the rate of two percent per the Federal Register a notice them to the Judges for approval. Section year. Id. at 5. commencing the proceeding to 801(b)(7)(A) provides that in such event: determine the rates and terms for the The SESAC/ACE submission retains a 2013–2017 period and requesting (i) The Copyright Royalty Judges shall flat rate which is then adjusted, starting provide those that would be bound by the interested parties to submit their in 2014, by the change in the Consumer terms, rates, or other determination set by Price Index or two percent, whichever is petitions to participate. 76 FR 591 any agreement in a proceeding to determine (January 5, 2011). Petitions to greater. SESAC/ACE Joint Proposal at royalty rates an opportunity to comment on 5 Participate were received from: The the agreement and shall provide to 2. American Society of Authors, participants in the proceeding under section Each joint proposal proposes to Composers and Publishers (‘‘ASCAP’’); 803(b)(2) that would be bound by the terms, require that each annual payment of the SESAC, Inc.; Broadcast Music, Inc. rates, or other determination set by the royalty rate be accompanied by a (‘‘BMI’’); Educational Media Foundation agreement to comment on the agreement and declaration stating the number of full- (‘‘EMF’’); Music Reports, Inc.; National object to its adoption as a basis for statutory time students enrolled in the Public Radio, the Public Broadcasting terms and rates; and educational entity operating the station (ii) the Copyright Royalty Judges may and/or the ERP as specified in the Service, and noncommercial radio and decline to adopt the agreement as a basis for television stations eligible to receive entity’s current FCC license. See statutory terms and rates for participants that proposed § 381.5(d). funding from the Corporation for Public are not parties to the agreement, if any Broadcasting jointly (‘‘NPR/PBS/CPB’’); participant described in clause (i) objects to NRBNMLC Joint Proposals National Religious Broadcasters the agreement and the Copyright Royalty Noncommercial Music License Judges conclude, based on the record before The joint proposals entered into by Committee (‘‘NRBNMLC’’); the Church them if one exists, that the agreement does NRBNMLC and each of NMPA/HFA, Music Publishers’ Association; the not provide a reasonable basis for setting ASCAP, BMI, and SESAC propose National Music Publishers’ Association, statutory terms and rates. carrying forward unchanged the current Inc. and the Harry Fox Agency, jointly provisions set forth in §§ 381.1 (except (‘‘NMPA/HFA’’); the Catholic Radio 2 Pursuant to 17 U.S.C. 803(b)(6)(C)(x), the Judges set the 60-day discovery period to run from 4 On October 31, 2011, EMF notified the Judges Association (‘‘CRA’’); and the American November 30, 2011, through January 30, 2012. that as a member of NRBNMLC it was a party to Council on Education (‘‘ACE’’). The During the discovery period, Music Reports, Inc., each of the joint proposals involving NRBNMLC. Judges set the timetable for the three- and CRA each withdrew from the proceeding on 5 The proposed elimination of the CPI month negotiation period, see 17 U.S.C. December 13, 2011, and January 27, 2012, adjustments for ASCAP and BMI necessitated a 803(b)(3), and directed the participants respectively. CRA also requested that the Judges change to § 381.10. However, no proposed language vacate their Order dated January 20, 2012, was provided with the initial proposals. to submit their written direct statements compelling CRA to produce certain discovery; the Consequently, the Judges issued an order requesting Judges deny this request as moot, given CRA’s proposed language to § 381.10, and the parties 1 Prior to the enactment of the Copyright Royalty withdrawal from the proceeding. provided the same. See Order Regarding and Distribution Reform Act of 2004, which 3 A ‘‘public broadcasting entity’’ is defined as a Submission of Settlement Proposals, Docket No. established the Copyright Royalty Judges, rates and ‘‘noncommercial educational broadcast station as 2011–3 CRB NCEB II (February 2, 2012). See also terms for the section 118 statutory license were set defined in section 397 of title 47 and any nonprofit Joint Submission of American Council on under the Copyright Arbitration Royalty Panel institution or organization engaged in the activities Education, the American Society of Composers, system, which was administered by the Librarian of described in paragraph (2) of subsection (c)’’ of Authors and Publishers, Broadcast Music, Inc., and Congress. section 118. 17 U.S.C. 118(f). SESAC, Inc. (filed March 16, 2012).

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to replace ‘‘2008’’ with ‘‘2013’’ and Fox Agency, Inc., National Music must be submitted no later than May 25, ‘‘2012’’ with ‘‘2017’’), 381.2, 381.9, and Publishers’ Association, Inc., National 2012. 381.11. Public Radio, Inc. and Public List of Subjects in 37 CFR Part 381 The joint proposal between NMPA/ Broadcasting Service, at 3 (April 4, HFA and NRBNMLC stated that the 2012). These parties proposed no Copyright, Music, Radio, Television, rates in § 381.7(b)(4) should remain the changes to §§ 381.7(c)–(e) and requested Rates. that these provisions be carried forward same as those currently set for 2008– Proposed Regulations 2012, ‘‘subject to the additional as is because they ‘‘are fair and provisions’’ of §§ 381.7(b)(3) and (5), reasonable in that they facilitate For the reasons set forth in the since they ‘‘are reasonable’’ and ‘‘no efficient, consistent and accurate preamble, the Copyright Royalty Judges circumstances exist that would warrant payments of royalties for uses governed propose to amend Part 381 to Chapter III modification of these fees.’’ NMPA/HFA by [§ ] 381.7.’’ Id. at 4. of title 37 of the Code of Federal and NRBNMLC Joint Proposal at 2. The Each of the joint proposals between Regulations to read as follows: proposal also stated that separate NRBNMLC and ASCAP, BMI, and PART 381—USE OF CERTAIN negotiations were ongoing between HFA SESAC propose modifications to COPYRIGHTED WORKS IN and NMPA and NPR and PBS with § 381.6. Under the proposals, CONNECTION WITH respect to provisions in § 381.7 other alternatives have been provided to a NONCOMMERCIAL EDUCATIONAL than § 381.7(b)(4). Id. at 2–3. When such Religious/Community Noncommercial Radio Station in determining its BROADCASTING proposal did not appear to be Population Count which is the basis of forthcoming, the Judges issued an order the rates paid. In addition, the proposals 1. The authority citation for part 381 requesting in part that such proposal, if include a new reduced rate for a continues to read as follows: finalized, be submitted by March 16, Religious/Community Noncommercial 2012, in order to allow for publication Authority: 17 U.S.C. 118, 801(b)(1) and Radio Station using a talk format 803. of all proposed rates and terms in a necessitating a number of newly defined single document. See Order Regarding § 381.1 [Amended] terms. Finally, the proposals address a Submission of Settlement Proposals, Religious/Community Noncommercial 2. Section 381.1 is amended by Docket No. 2011–2 CRB NCEB II Radio Station’s broadcast of in-band, on- removing ‘‘2008’’ and adding ‘‘2013’’ in (February 2, 2012); see also n.5. channel, digital radio (‘‘HD Radio’’) its place and by removing ‘‘2012’’ and However, after receiving no responsive signals. adding ‘‘2017’’ in its place. filings, the Judges issued a subsequent order requiring HFA, NMPA, NPR, and Other Provisions § 381.4 [Removed and Reserved] PBS to show cause why the provisions Finally, the Judges have removed and 3. Remove and reserve § 381.4. to be covered by their separate proposal reserved two sections for which no 4. Section 381.5 is amended by (§§ 381.7(b)(1)(i)–(iii), 381.7(b)(2)(i)–(iv), proposals were submitted. Specifically, revising paragraphs (c) and (d) to read 381.7(c), 381.7(d), and 381.7(e)) should § 381.4, which governed performance of as follows: not be removed from Part 381. See musical compositions by PBS, NPR and Order to Show Cause, Docket No. 2011– other public broadcasting entities § 381.5 Performance of musical 2 CRB NCEB II (March 28, 2012). In engaged in the activities of 17 U.S.C. compositions by public broadcasting response, HFA, NMPA, NPR and PBS entities licensed to colleges and 118(c), and § 381.8, which governed the universities. submitted their joint proposal covering terms and rates of royalty payments for the provisions specified in the March 28 the use of published pictorial, graphic, * * * * * order. Specifically, they proposed that and sculptural works in PBS-distributed (c) Royalty rate. A public broadcasting the rates set forth in §§ 381.7(b)(1) and programs as well as in other than PBS- entity within the scope of this section (2) ‘‘be changed to reflect a rate increase distributed programs, have been may perform published nondramatic consistent with the prior percentage removed and their section numbers musical compositions subject to the increase from the 2003–2007 license reserved. following schedule of royalty rates: period to the 2008–2012 license period’’ As noted above, the public may (1) For all such compositions in the as such increase ‘‘is fair and comment and object to any or all of the repertory of ASCAP, the royalty rates reasonable.’’ Response to Order to Show proposed regulations contained in this shall be as follows: Cause, and Joint Proposal of the Harry notice. Such comments and objections (i)

Number of full-time students 2013 2014 2015 2016 2017

Level 1 ...... <1,000 ...... $319 $325 $332 $339 $345 Level 2 ...... 1,000–4,999 ...... 369 376 384 392 399 Level 3 ...... 5,000–9,999 ...... 505 515 525 535 546 Level 4 ...... 10,000–19,999 ...... 655 668 681 695 708 Level 5 ...... 20,000 + ...... 822 838 855 872 890

(ii) Level 1 rates as set forth in 47 CFR 73.310(a), of 100 Watts or less, (2) For all such compositions in the paragraph (c)(1)(i) of this section, shall as specified on its current FCC license, repertory of BMI, the royalty rates shall also apply to College Radio Stations regardless of the size of the student be as follows: with an authorized effective radiated population. (i) power (ERP), as that term is defined in

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Number of full-time students 2013 2014 2015 2016 2017

(ii) Level 1 rates, as set forth in current FCC license. An exact copy of extends a public broadcasting entity’s paragraph (c)(2)(i) of this section, shall such declaration shall be furnished to signal beyond the contours of a station’s also apply to College Radio Stations each of ASCAP, BMI and SESAC. Predicted 60 dBu Contour. with an authorized effective radiated * * * * * (iii) In determining Population Count, power (ERP), as that term is defined in 5. Section 381.6 is amended as a station or a Translator or Booster 47 CFR 73.310(a), of 100 Watts or less, follows: Station may use and report the total as specified on its current FCC license, a. By redesignating paragraphs (b) population data, from a research regardless of the size of the student through (e) as paragraphs (c) through (f), company generally recognized in the population. respectively; broadcasting industry, for the radio (3) For all such compositions in the b. By adding a new paragraph (b); market within which the station’s repertory of SESAC, the royalty rates c. By revising newly redesignated community license is located. shall be as follows: paragraph (d); (3) Predicted 60 dBu Contour shall be (i) 2013: $140.00 per station; d. By revising newly redesignated calculated as set forth in 47 CFR 73.313. (ii) 2014: $140 per station, subject to paragraph (e); and (4) Talk Format Station shall mean a an annual cost of living adjustment in e. By removing current paragraph (f). noncommercial radio station: accordance with paragraph (c)(3)(vi) of The additions and revisions to § 381.6 (i) Whose program content primarily this section; read as follows: consists of talk shows, news programs, (iii) 2015: The 2014 rate, subject to an sports, community affairs or religious annual cost of living adjustment in § 381.6 Performance of musical sermons (or other non-music-oriented accordance with paragraph (c)(3)(vi) of compositions by other public broadcasting entities. programming); this section; (ii) That performs Feature Music in (iv) 2016: The 2015 rate, subject to an * * * * * less than 20% of its programming annual cost of living adjustment in (b) Definitions. As used in paragraphs annually; and (d) and (e) of this section, the following accordance with paragraph (c)(3)(vi) of (iii) That performs music-oriented terms and their variant forms mean the this section; programming for no more than four (4) (v) 2017: The 2016 rate, subject to an following: programming hours during the hours annual cost of living adjustment in (1) Feature Music shall mean any from 6 a.m. to 10 p.m. each weekday, accordance with paragraph (c)(3)(vi) of performance of a musical work, whether with no two (2) hours of such this section. live or recorded, that is the principal programming occurring consecutively, (vi) Such cost of living adjustment to focus of audience attention. Feature with the exception of up to five (5) be made in accordance with the greater Music does not include bridge, weekdays during the year. of background, or underscore music, (A) The change, if any, in the themes or signatures, interstitial music (5) Weekday shall mean the 24-hour Consumer Price Index (all consumers, between programs such as in public period starting at 12 a.m. through 11:59 all items) published by the U.S. service announcements or program p.m. on Mondays, Tuesdays, Department of Labor, Bureau of Labor sponsorship identifications, brief Wednesdays, Thursdays and Fridays Statistics during the twelve (12) month musical transitions in and out of occurring between January 1 of a given period from the most recent Index, program segments (not to exceed 60 year up to and including Thanksgiving published before December 1 of the year seconds in duration), incidental day of that year. immediately prior to the applicable performances of music during (6) Translator Station and Booster year, or broadcasts of public, religious, or sports Station shall have the same meanings as (B) Two percent (2%). events, or brief performances during set forth in 47 CFR 74.1201. (4) For the performance of any other news, talk, religious, and sports * * * * * such compositions: $1. programming of no more than 30 (d) Royalty rate. A public (d) Payment of royalty rate. The seconds in duration. broadcasting entity within the scope of public broadcasting entity shall pay the (2) Population Count. The this section may perform published required royalty rate to ASCAP, BMI combination of: nondramatic musical compositions and SESAC not later than January 31 of (i) The number of persons estimated subject to the following schedule of each year. Each annual payment to to reside within a station’s Predicted 60 royalty rates: ASCAP, BMI and SESAC shall be dBu Contour, based on the most recent (1) For all such compositions in the accompanied by a signed declaration available census data; and repertory of ASCAP, the royalty rates stating the number of full-time students (ii) The nonduplicative number of shall be as follows: enrolled in the educational entity persons estimated to reside in the (i) Music Fees (Stations with 20% or operating the station and/or the effective Predicted 60 dBu Contour of any more programming containing Feature radiated power (ERP) as specified in its Translator or Booster Station that Music):