9–1–10 Vol. 75 No. 169 Wednesday Sept. 1, 2010 Pages 53563–53840

9–1–10 Wednesday Vol. 75 No. 169 Sept. 1, 2010

Pages 53563–53840

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Contents Federal Register Vol. 75, No. 169

Wednesday, September 1, 2010

Actuaries, Joint Board for Enrollment Economic Development Administration See Joint Board for Enrollment of Actuaries NOTICES Space Coast Regional Innovation Cluster Competition, Agriculture Department 53667–53672 See Forest Service RULES Education Department Dairy Tariff-Rate Import Quota Licensing Regulation for the NOTICES 2010 Tariff-Rate Quota Year: Applications for New Awards for Fiscal Year 2011: Adjustment of Appendices, 53565–53567 Advanced Placement Test Fee Program, 53681–53684

Centers for Disease Control and Prevention Employment and Training Administration NOTICES RULES Meetings: Senior Community Service Employment Program, 53786– Advisory Committee to the Director, Health Disparities 53834 Subcommittee, 53703 Request for Nominations of Candidates to Serve on the Energy Department Board of Scientific Counselors, 53705 See Federal Energy Regulatory Commission NOTICES Coast Guard Meetings: RULES Biological and Environmental Research Advisory Safety Zones: Committee, 53685 Fireworks Displays, Potomac River, National Harbor, MD, Blue Ribbon Commission on America’s Nuclear Future, 53574–53577 53685–53686 Olympia Harbor Days Tug Boat Races, Budd Inlet, WA, Blue Ribbon Commission on America’s Nuclear Future, 53572–53574 Transportation and Storage Subcommittee, 53686 Commerce Department Secretary of Energy Advisory Board, 53684–53685 See Economic Analysis Bureau Environmental Protection Agency See Economic Development Administration RULES See Foreign-Trade Zones Board Exemptions from the Requirements of a Tolerance: See Industry and Security Bureau Choline hydroxide, 53577–53581 See International Trade Administration See National Oceanic and Atmospheric Administration Pesticide Tolerances: See Patent and Trademark Office Bifenazate, 53586–53593 Spiromesifen, 53581–53586 Consumer Product Safety Commission PROPOSED RULES NOTICES Federal Implementation Plans to Reduce Interstate Agency Information Collection Activities; Proposals, Transport of Fine Particulate Matter and Ozone; Data Submissions, and Approvals: Availability, 53613–53615 Safety Standard for Bicycle Helmets, 53680–53681 NOTICES Safety Standard for Multi-Purpose Lighters, 53678–53679 Creation of the Fiscal Year 2011 Environmental Workforce Standard for the Flammability of Mattresses and Mattress Development and Job Training Grants Program; etc., Pads, 53679–53680 53689 Issuances of Experimental Use Permits, 53689–53690 Department of Transportation Pesticide Petitions; Receipt: See Pipeline and Hazardous Materials Safety Residues of Potassium Peroxymonosulfate in or on Administration Various Commodities, 53690–53691 Pesticide Products: Drug Enforcement Administration Registration Applications for New Active Ingredient NOTICES Chemical Sedaxane, 53691–53692 Importer of Controlled Substances; Applications, 53718– Pesticide Products; Registration Applications, 53692–53694 53719 Settlements: Manufacturer of Controlled Substances; Applications, Florida Petroleum Reprocessors Superfund Site, Davie, 53719–53722 Broward County, FL, 53694 Manufacturer of Controlled Substances; Registrations, 53722 Executive Office of the President See Presidential Documents Economic Analysis Bureau PROPOSED RULES Federal Aviation Administration Direct Investment Surveys: PROPOSED RULES Quarterly Survey of U.S. Direct Investment Abroad, Airworthiness Directives: Direct Transactions of U.S. Reporter With Foreign Empresa Brasileira de Aeronautica S.A. (EMBRAER) Affiliate, 53611–53612 Model EMB–500 Airplanes, 53609–53610

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NOTICES Migratory Bird Hunting: Petitions for Exemption; Summary of Petition Received, Regulations on Certain Federal Indian Reservations and 53736–53737 Ceded Lands for the 2010–11 Early Season, 53774– 53784 Federal Communications Commission PROPOSED RULES NOTICES Endangered and Threatened Wildlife and Plants: Meetings: 12-Month Finding on a Petition to List the White-Sided Advisory Committee on Diversity for Communications in Jackrabbit as Threatened or Endangered, 53615– the Digital Age, 53694 53629 NOTICES Federal Deposit Insurance Corporation Endangered Species Recovery Permit Applications, 53708– NOTICES 53709 Updated Listing of Financial Institutions in Liquidation, 53694–53695 Food and Drug Administration NOTICES Federal Energy Regulatory Commission Clinical Studies of Safety and Effectiveness of Orphan NOTICES Products Research Project Grant; Correction, 53701 Applications: Meetings: Gresham Municipal Utilities, 53686–53687 Medical Device User Fee Act, 53702 Complaint: Public Workshops: Southern Montana Electric Generation v. NorthWestern Medical Devices and Nanotechnology: Manufacturing, Corporation, 53687 Characterization, and Biocompatibility Environmental Impact Statements; Availability, etc.: Considerations; Correction, 53704 Pacific Gas and Electric Co.; Correction, 53687–53688 Initial Market-Based Rate Filings Including Requests for Foreign-Trade Zones Board Blanket Section 205 Authorizations: NOTICES Constellation Mystic Power, LLC, 53688 Applications for Reorganization under Alternative Site Technical Conferences: Framework: Southern LNG Company, LLC, 53688 Foreign-Trade Zone 104, Savannah, GA, 53637–53638 Approval for Manufacturing Authority: Federal Highway Administration Foreign-Trade Zone 22; LG Electronics Mobilecomm NOTICES USA, Inc.; Chicago, IL, 53638 Environmental Impact Statements; Availability, etc.: Opportunity Corridor, City of Cleveland, Cuyahoga Forest Service County, OH, 53735 NOTICES Final Federal Agency Actions on East Lake Sammamish Meetings: Master Plan Trail, King County, WA, 53735–53736 Cherokee National Forest Resource Advisory Committee, Federal Maritime Commission 53630 El Dorado County Resource Advisory Committee, 53630 NOTICES Agreements Filed, 53696 Ocean Transportation Intermediary Licenses; Applicants, Health and Human Services Department 53696 See Centers for Disease Control and Prevention Ocean Transportation Intermediary Licenses; Revocations, See Food and Drug Administration 53696–53697 See Health Resources and Services Administration See National Institutes of Health Federal Reserve System NOTICES Health Resources and Services Administration Formations of, Acquisitions by, and Mergers of Bank NOTICES Holding Companies, 53695 Health Center Program, 53701–53702 Proposals to Engage in Permissible Nonbanking Activities or to Acquire Companies Engaged in Permissible Homeland Security Department Nonbanking Activities, 53695–53696 See Coast Guard NOTICES Federal Trade Commission Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 53705–53707 Agency Information Collection Activities; Proposals, Meetings: Submissions, and Approvals, 53697–53699 Homeland Security Advisory Council, 53707–53708 Granting of Request for Early Termination of the Waiting Period Under the Premerger Notification Rules, 53699– Industry and Security Bureau 53701 NOTICES Best Practices for Transit, Transshipment, and Reexport of Fish and Wildlife Service Items Subject to the Export Administration Regulations, RULES 53639–53640 Endangered and Threatened Wildlife and Plants: Threatened Status for Shovelnose Sturgeon under the Interior Department Similarity of Appearance Provisions of the See Fish and Wildlife Service Endangered Species Act, 53598–53606 See National Park Service

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Internal Revenue Service Prospective Grant of Exclusive License: NOTICES Use of Pentosan Polysulfate to Treat Certain Conditions Agency Information Collection Activities; Proposals, of the Prostate, 53704 Submissions, and Approvals, 53737–53742 National Oceanic and Atmospheric Administration International Trade Administration RULES NOTICES Fisheries in the Western Pacific: Antidumping Duty Orders: Bottomfish and Seamount Groundfish Fisheries; 2010–11 Narrow Woven Ribbons with Woven Selvedge from Main Hawaiian Islands Bottomfish Total Allowable Taiwan and the People’s Republic of China, 53632– Catch, 53606 53635 Fisheries of the Exclusive Economic Zone Off Alaska: Antidumping or Countervailing Duty Order, Finding, or Atka Mackerel in the Bering Sea and Aleutian Islands Suspended Investigation: Management Area; Closures and Openings, 53606– Advance Notification of Sunset Reviews, 53637 53608 Opportunity to Request Administrative Review, 53635– Pacific Ocean Perch in the West Yakutat District of the 53637 Gulf of Alaska; Closure, 53608 Call for Applications for the International Buyer Program Gulf of the Farallones, Monterey Bay and Cordell Bank Calendar Year 2012, 53640–53642 National Marine Sanctuaries Technical Corrections, Countervailing Duty Orders: 53567–53572 Narrow Woven Ribbons with Woven Selvedge from NOTICES People’s Republic of China, 53642–53643 Meetings: Final Results of Antidumping Duty Administrative Hydrographic Services Review Panel, 53665 Reviews, Final Results of Changed-Circumstances National Sea Grant Advisory Board; Cancellation, 53665 Review, etc: Public Workshops: Ball Bearings and Parts Thereof From France, Germany, Atlantic Shark Identification and Protected Species Safe Italy, Japan, and the United Kingdom, 53661–53664 Handling, Release, and Identification, 53665–53667 Takes of Marine Mammals Incidental to Specified Initiation of Five-Year (Sunset) Reviews, 53664–53665 Activities: International Trade Commission Operations of a Liquified Natural Gas Port Facility in NOTICES Massachusetts Bay, 53672–53678 Complaints, 53710–53711 National Park Service Determinations: NOTICES Narrow Woven Ribbons with Woven Selvedge from National Register of Historic Places: China and Taiwan, 53711 Pending Nominations and Related Actions, 53709–53710 Institutions of Five-Year Reviews Concerning Antidumping Pending Removal of Listed Property, 53709 Duty Orders: Polyethylene Terephthalate Film from Korea, 53711– National Science Foundation 53714 NOTICES Stainless Steel Butt-Weld Pipe Fittings from Japan, Korea, Meetings: and Taiwan, 53714–53716 Proposal Reviews, 53722–53723 Permit Applications Received Under the Antarctic Joint Board for Enrollment of Actuaries Conservation Act of 1978, 53723 NOTICES Invitation for Membership on Advisory Committee, 53716– Nuclear Regulatory Commission 53717 NOTICES Materials License Amendment: Justice Department Prairie Island Independent Spent Fuel Storage See Drug Enforcement Administration Installation, Northern States Power Co., 53723–53724 NOTICES Request for Comments: Lodging of Consent Decree Under the Resource Staff Guidance Regarding the Nuclear Criticality Safety Conservation and Recovery Act, 53717–53718 Analysis for Spent Fuel Pools, 53724 Lodging of Consent Decrees under CERCLA, 53718 Patent and Trademark Office Labor Department NOTICES See Employment and Training Administration Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Highway Traffic Safety Administration Missing Parts Practice, 53631–53632 NOTICES Examination Guidelines Update: Agency Information Collection Activities; Proposals, Developments in the Obviousness Inquiry after KSR v. Submissions, and Approvals, 53734 Teleflex, 53643–53660 National Institutes of Health Personnel Management Office NOTICES NOTICES Meetings: Agency Information Collection Activities; Proposals, Center for Scientific Review, 53702–53703 Submissions, and Approvals: National Human Genome Research Institute, 53703– Equal Employment Opportunity Commission Form, 53704 Demographic Information on Applicants; Correction, National Institute of Mental Health, 53702 53724–53725

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Pipeline and Hazardous Materials Safety Administration Meetings: RULES National Grain Car Council, 53736 Hazardous Materials; Minor Editorial Corrections and Clarifications, 53593–53598 Transportation Department NOTICES See Federal Aviation Administration Agency Information Collection Activities; Proposals, See Federal Highway Administration Submissions, and Approvals, 53733 See National Highway Traffic Safety Administration See Pipeline and Hazardous Materials Safety Presidential Documents Administration PROCLAMATIONS See Surface Transportation Board Special Observances: National Preparedness Month (Proc. 8549), 53563–53564 Treasury Department EXECUTIVE ORDERS See Internal Revenue Service North Korea; Blocking Property of Certain Persons (EO 13551), 53835–53840 Veterans Affairs Department PROPOSED RULES Securities and Exchange Commission Service–Connected and Other Disability Compensation, NOTICES 53744–53771 Self–Regulatory Organizations; Proposed Rule Changes: NASDAQ OMX PHLX, Inc., 53725–53730 Separate Parts In This Issue State Department NOTICES Part II Culturally Significant Objects Imported for Exhibition Veterans Affairs Department, 53744–53771 Determinations: Contemporary Argentine Masterworks, 53731 Part III Richard Hawkins; Third Mind, 53730–53731 Interior Department, Fish and Wildlife Service, 53774– Sheila Hicks; 50 Years, 53731 53784 The Roman Mosaic from Lod, Israel, 53730 Delegations of Authority from the Secretary in Certain Part IV Maritime Law Enforcement Functions, 53731 Labor Department, Employment and Training Designations as Foreign Terrorist Organizations: Administration, 53786–53834 Tehrik-e Taliban Pakistan (TTP), also known as Tehrik-I- Taliban Pakistan, et al., 53732 Part V Individuals Specially Designated as Global Terrorists: Presidential Documents, 53835–53840 Hakimullah Mehsud, also known as Hakeemullah Mehsud, also known as Zulfiqar, 53732 Tehrik-e Taliban Pakistan (TTP), also known as Tehrik-I- Taliban Pakistan, et al., 53732 Reader Aids Wali Ur Rehman, 53732 Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, Surface Transportation Board and notice of recently enacted public laws. NOTICES To subscribe to the Federal Register Table of Contents Continuances in Control Exemptions: LISTSERV electronic mailing list, go to http:// Patriot Rail, LLC, Patriot Rail Holdings LLC, and Patriot listserv.access.gpo.gov and select Online mailing list Rail Corp.; Piedmont & Northern Railway, Inc., archives, FEDREGTOC-L, Join or leave the list (or change 53734–53735 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: 8549...... 53563 Executive Orders: 13551...... 53837 7 CFR 6...... 53565 14 CFR Proposed Rules: 39...... 53609 15 CFR 922...... 53567 Proposed Rules: 806...... 53611 20 CFR 641...... 53786 33 CFR 165 (2 documents) ...... 53572, 53574 38 CFR Proposed Rules: 5...... 53744 40 CFR 180 (3 documents) ...... 53577, 53581, 53586 Proposed Rules: 51...... 53613 52...... 53613 72...... 53613 78...... 53613 97...... 53613 49 CFR 107...... 53593 171...... 53593 172...... 53593 173...... 53593 176...... 53593 177...... 53593 179...... 53593 180...... 53593 50 CFR 17...... 53598 20...... 53774 665...... 53606 679 (2 documents) ...... 53606, 53608 Proposed Rules: 17...... 53615

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Federal Register Presidential Documents Vol. 75, No. 169

Wednesday, September 1, 2010

Title 3— Proclamation 8549 of August 27, 2010

The President National Preparedness Month, 2010

By the President of the United States of America

A Proclamation During National Preparedness Month, we stress the importance of strengthening the security and resiliency of our Nation through systematic preparation for the full range of hazards threatening the United States in the 21st century, including natural disasters, cyber attacks, pandemic disease, and acts of terrorism. This year marks the fifth anniversary of Hurricane Katrina, one of the most tragic and destructive disasters in American history. In remembrance of this national tragedy, we must reaffirm our commitment to readiness and the necessity of preparedness. By empowering Americans with information about the risks we face, we can all take concrete actions to protect ourselves, our families, our communities, and our country. The Federal Emergency Management Agency’s (FEMA) Ready Campaign provides simple and practical steps every American can take to be better prepared. At the community level, Citizen Corps enables volunteers to contribute to homeland security efforts by educating, training, and coordinating local activities that help make us safer, better prepared, and more responsive during emergencies. I encourage all Americans to visit Ready.gov and CitizenCorps.gov for more information and resources on emergency preparedness, including how to prepare a family emergency plan, create an emergency supply kit, and get involved in community preparedness efforts. My Administration has made emergency and disaster preparedness a top priority, and is dedicated to a comprehensive approach that relies upon the responsiveness and cooperation of government at all levels, the private and nonprofit sectors, and individual citizens. I also encourage Americans to get involved with the thousands of organizations in the National Prepared- ness Month Coalition, which will share preparedness information and hold preparedness events and activities across the United States. By strengthening citizen preparedness now, we can be ready when disaster strikes. 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 September 2010 as National Preparedness Month. I encourage all Americans to recognize the importance of preparedness and observe this month by working together to enhance our national security, resilience, and readiness.

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IN WITNESS WHEREOF, I have hereunto set my hand this twenty-seventh day of August, in the year of our Lord two thousand ten, and of the Independence of the United States of America the two hundred and thirty- fifth.

[FR Doc. 2010–21976 Filed 8–31–10; 8:45 am] Billing code 3195–W0–P

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Rules and Regulations Federal Register Vol. 75, No. 169

Wednesday, September 1, 2010

This section of the FEDERAL REGISTER Independence Avenue, SW., Stop 1021, amount of such license will be contains regulatory documents having general Washington, DC 20250–1021; or by transferred to Appendix 2.’’ Section applicability and legal effect, most of which telephone at (202) 720–9439; or by 6.34(b) provides that the cumulative are keyed to and codified in the Code of e-mail at: abdelsalam.el- annual transfers will be published in the Federal Regulations, which is published under [email protected]. Federal Register. Accordingly, this 50 titles pursuant to 44 U.S.C. 1510. SUPPLEMENTARY INFORMATION: The document sets forth the revised The Code of Federal Regulations is sold by Foreign Agricultural Service, under a Appendices for the 2010 tariff-rate quota the Superintendent of Documents. Prices of delegation of authority from the year. new books are listed in the first FEDERAL Secretary of Agriculture, administers the REGISTER issue of each week. List of Subjects in 7 CFR Part 6 Dairy Tariff-Rate Import Quota Agricultural commodities, Cheese, Licensing Regulation codified at 7 CFR Dairy products, Imports, Reporting and 6.20–6.37 that provides for the issuance DEPARTMENT OF AGRICULTURE recordkeeping requirements. of licenses to import certain dairy Office of the Secretary articles under tariff-rate quotas (TRQs) Issued at Washington, DC, on August 11, as set forth in the Harmonized Tariff 2010. 7 CFR Part 6 Schedule of the United States. These Ronald Lord, dairy articles may only be entered into Licensing Authority. Adjustment of Appendices to the Dairy the United States at the low-tier tariff by ■ Accordingly, 7 CFR part 6 is amended Tariff-Rate Import Quota Licensing or for the account of a person or firm to as follows: Regulation for the 2010 Tariff-Rate whom such licenses have been issued Quota Year and only in accordance with the terms PART 6—IMPORT QUOTAS AND FEES and conditions of the regulation. AGENCY: Office of the Secretary, USDA. Licenses are issued on a calendar year ■ 1. The authority citation for Part 6, ACTION: Final rule. basis, and each license authorizes the Subpart—Dairy Tariff-Rate Import license holder to import a specified Quota Licensing continues to read as SUMMARY: This document sets forth the quantity and type of dairy article from follows: revised appendices to the Dairy Tariff- a specified country of origin. The Import Authority: Additional U.S. Notes 6, 7, 8, Rate Import Quota Licensing Regulation Policies and Export Reporting Division, 12, 14, 16–23 and 25 to Chapter 4 and for the 2010 quota year reflecting the Foreign Agricultural Service, U.S. General Note 15 of the Harmonized Tariff cumulative annual transfers from Department of Agriculture, issues these Schedule of the United States (19 U.S.C. Appendix 1 to Appendix 2 for certain licenses and, in conjunction with U.S. 1202), Pub. L. 97–258, 96 Stat. 1051, as amended (31 U.S.C. 9701), and secs. 103 and dairy product import licenses Customs and Border Protection, U.S. permanently surrendered by licensees 404, Pub. L. 103–465, 108 Stat. 4819 (19 Department of Homeland Security, U.S.C. 3513 and 3601). or revoked by the Licensing Authority. monitors their use. ■ 2. Appendices 1, 2 and 3 to Subpart— DATES: Effective September 1, 2010. The regulation at 7 CFR 6.34(a) states: Dairy Tariff-Rate Import Quota FOR FURTHER INFORMATION CONTACT: ‘‘Whenever a historical license Licensing are revised to read as follows: Abdelsalam El-Farra, Dairy Import (Appendix 1) is not issued to an Licensing Program, Import Policies and applicant pursuant to the provisions of Appendices 1, 2 and 3 to Subpart— Export Reporting Division, U.S. § 6.23, is permanently surrendered or is Dairy Tariff-Rate Import Quota Department of Agriculture, 1400 revoked by the Licensing Authority, the Licensing

ARTICLES SUBJECT TO: APPENDIX 1, HISTORICAL LICENSES; APPENDIX 2, NONHISTORICAL LICENSES; AND APPENDIX 3, DESIGNATED IMPORTER LICENSES FOR QUOTA YEAR 2010 [Quantities in kilograms]

Appendix 3 Article by Additional U.S. Note Number and Country of Origin Appendix 1 Appendix 2 Tokyo Round Uruguay Round

NON-CHEESE ARTICLES

BUTTER (NOTE 6) ...... 5,217,229 1,759,771 ...... EU–25 ...... 75,000 21,161 ...... New Zealand ...... 111,671 38,922 ...... Other Countries ...... 49,246 24,689 ...... Any Country ...... 4,981,312 1,674,999 ...... DRIED SKIM MILK (NOTE 7) ...... 5,261,000 ...... Australia ...... 600,076 ...... Canada ...... 219,565 ...... Any Country ...... 4,441,359 ...... DRIED WHOLE MILK (NOTE 8) ...... 3,175 3,318,125 ...... New Zealand ...... 3,175 ...... Any Country ...... 3,318,125 ...... DRIED BUTTERMILK/WHEY (NOTE 12) ...... 11,000 213,981 ......

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ARTICLES SUBJECT TO: APPENDIX 1, HISTORICAL LICENSES; APPENDIX 2, NONHISTORICAL LICENSES; AND APPENDIX 3, DESIGNATED IMPORTER LICENSES FOR QUOTA YEAR 2010—Continued [Quantities in kilograms]

Appendix 3 Article by Additional U.S. Note Number and Country of Origin Appendix 1 Appendix 2 Tokyo Round Uruguay Round

Canada ...... 161,161 ...... New Zealand ...... 11,000 52,820 ...... BUTTER SUBSTITUTES CONTAINING OVER 45 PERCENT OF BUTTERFAT AND/OR BUTTER OIL (NOTE 14) ...... 6,080,500 ...... Any Country ...... 6,080,500 ......

TOTAL: NON-CHEESE ARTICLES ...... 5,231,404 16,633,377 ......

CHEESE ARTICLES

CHEESE AND SUBSTITUTES FOR CHEESE (EXCEPT: SOFT RIPENED COW’S MILK CHEESE; CHEESE NOT CON- TAINING COW’S MILK; CHEESE (EXCEPT COTTAGE CHEESE) CONTAINING 0.5 PERCENT OR LESS BY WEIGHT OF BUTTERFAT; AND, ARTICLES WITHIN THE SCOPE OF OTHER IMPORT QUOTAS PROVIDED FOR IN THIS SUB- CHAPTER) (NOTE 16) ...... 22,649,216 8,820,515 9,661,128 7,496,000 Argentina ...... 7,690 ...... 92,310 ...... Australia ...... 535,628 5,542 758,830 1,750,000 Canada ...... 1,013,777 127,223 ...... Costa Rica ...... 1,550,000 EU–25 ...... 15,509,492 7,758,164 1,132,568 3,446,000 Of which Portugal is ...... 65,838 63,471 223,691 ...... Israel ...... 79,696 ...... 593,304 ...... Iceland ...... 294,000 ...... 29,000 ...... New Zealand ...... 4,389,093 426,379 6,506,528 ...... Norway ...... 124,982 25,018 ...... Switzerland ...... 593,952 77,460 548,588 500,000 Uruguay ...... 250,000 Other Countries ...... 100,906 100,729 ...... Any Country ...... 300,000 ...... BLUE-MOLD CHEESE (EXCEPT STILTON PRODUCED IN THE UNITED KINGDOM) AND CHEESE AND SUBSTITUTES FOR CHEESE CONTAINING, OR PROCESSED FROM, BLUE- MOLD CHEESE (NOTE 17) ...... 2,283,647 197,354 ...... 430,000 Argentina ...... 2,000 ...... EU–25 ...... 2,281,646 197,354 ...... 350,000 Chile ...... 80,000 Other Countries ...... 1 ...... CHEDDAR CHEESE, AND CHEESE AND SUBSTITUTES FOR CHEESE CONTAINING, OR PROCESSED FROM, CHEDDAR CHEESE (NOTE 18) ...... 3,566,716 717,140 519,033 7,620,000 Australia ...... 893,583 90,916 215,501 1,250,000 Chile ...... 220,000 EU–25 ...... 52,404 210,596 ...... 1,050,000 New Zealand ...... 2,520,800 275,668 303,532 5,100,000 Other Countries ...... 99,929 39,960 ...... Any Country ...... 100,000 ...... AMERICAN-TYPE CHEESE, INCLUDING COLBY, WASHED CURD AND GRANULAR CHEESE (BUT NOT INCLUDING CHEDDAR) AND CHEESE AND SUBSTITUTES FOR CHEESE CONTAINING OR PROCESSED FROM SUCH AMERICAN-TYPE CHEESE (NOTE 19) ...... 2,625,401 540,152 357,003 ...... Australia ...... 771,134 109,864 119,002 ...... EU–25 ...... 64,077 289,923 ...... New Zealand ...... 1,639,549 122,450 238,001 ...... Other Countries ...... 150,641 17,915 ...... EDAM AND GOUDA CHEESE, AND CHEESE AND SUB- STITUTES FOR CHEESE CONTAINING, OR PROCESSED FROM, EDAM AND GOUDA CHEESE (NOTE 20) ...... 5,104,403 501,999 ...... 1,210,000 Argentina ...... 110,495 14,505 ...... 110,000 EU–25 ...... 4,878,638 410,362 ...... 1,100,000 Norway ...... 114,318 52,682 ...... Other Countries ...... 952 24,450 ......

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ARTICLES SUBJECT TO: APPENDIX 1, HISTORICAL LICENSES; APPENDIX 2, NONHISTORICAL LICENSES; AND APPENDIX 3, DESIGNATED IMPORTER LICENSES FOR QUOTA YEAR 2010—Continued [Quantities in kilograms]

Appendix 3 Article by Additional U.S. Note Number and Country of Origin Appendix 1 Appendix 2 Tokyo Round Uruguay Round

ITALIAN-TYPE CHEESES, MADE FROM COW’S MILK, (RO- MANO MADE FROM COW’S MILK, REGGIANO, PARMESAN, PROVOLONE, PROVOLETTI, SBRINZ, AND GOYA—NOT IN ORIGINAL LOAVES) AND CHEESE AND SUBSTITUTES FOR CHEESE CONTAINING, OR PROCESSED FROM, SUCH ITALIAN-TYPE CHEESES, WHETHER OR NOT IN ORIGINAL LOAVES (NOTE 21) ...... 6,411,744 1,108,803 795,517 5,165,000 Argentina ...... 3,915,276 210,207 367,517 1,890,000 EU–25 ...... 2,496,468 885,532 ...... 2,025,000 Romania ...... 500,000 Uruguay ...... 428,000 750,000 Other Countries ...... 13,064 ...... SWISS OR EMMENTHALER CHEESE OTHER THAN WITH EYE FORMATION, GRUYERE-PROCESS CHEESE AND CHEESE AND SUBSTITUTES FOR CHEESE CONTAINING, OR PROC- ESSED FROM, SUCH CHEESES (NOTE 22) ...... 5,322,872 1,328,442 823,519 380,000 EU–25 ...... 4,053,682 1,098,312 393,006 380,000 Switzerland ...... 1,235,692 183,795 430,513 ...... Other Countries ...... 33,498 46,335 ...... CHEESE AND SUBSTITUTES FOR CHEESE, CONTAINING 0.5 PERCENT OR LESS BY WEIGHT OF BUTTERFAT (EXCEPT ARTICLES WITHIN THE SCOPE OF OTHER TARIFF-RATE QUOTAS PROVIDED FOR IN THIS SUBCHAPTER), AND MARGARINE CHEESE (NOTE 23) ...... 1,134,195 3,290,723 1,050,000 ...... EU–25 ...... 1,134,194 3,290,723 ...... Israel ...... 50,000 ...... New Zealand ...... 1,000,000 ...... Other Countries ...... 1 ...... SWISS OR EMMENTHALER CHEESE WITH EYE FORMATION (NOTE 25) ...... 15,953,229 6,344,102 9,557,945 2,620,000 Argentina ...... 9,115 70,885 ...... Australia ...... 209,698 ...... 290,302 ...... Canada ...... 70,000 ...... EU–25 ...... 11,160,390 5,316,438 4,003,172 2,420,000 Iceland ...... 149,999 ...... 150,001 ...... Israel ...... 27,000 ...... Norway ...... 3,181,685 473,625 3,227,690 ...... Switzerland ...... 1,178,377 505,728 1,745,895 200,000 Other Countries ...... 46,080 39,196 ......

TOTAL: CHEESE ARTICLES ...... 65,051,423 22,849,230 22,764,145 24,921,000

TOTAL: NON–CHEESE ARTICLES ...... 5,231,404 16,633,377 ......

TOTAL: CHEESE ARTICLES & NON–CHEESE ARTI- CLES ...... 70,282,827 39,482,607 ......

[FR Doc. 2010–21777 Filed 8–31–10; 8:45 am] DEPARTMENT OF COMMERCE (NOAA), Department of Commerce BILLING CODE 3410–10–P (DOC). National Oceanic and Atmospheric Administration ACTION: Final rule; technical correction.

15 CFR Part 922 SUMMARY: On November 20, 2008, the National Oceanic and Atmospheric [Docket No. 0908201245–0217–01] Administration (NOAA) published a final rule in the Federal Register for the RIN 0648–AY20 Gulf of the Farallones, Monterey Bay and Cordell Bank national marine Gulf of the Farallones, Monterey Bay sanctuaries (referred to jointly as the and Cordell Bank National Marine Sanctuaries Technical Corrections joint management plan review or JMPR). Some sets of coordinates in that final AGENCY: Office of National Marine rule contained technical errors or Sanctuaries (ONMS), National Oceanic omissions that need to be corrected for and Atmospheric Administration the zones to be properly mapped. Other

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minor corrections are also included in NOAA established the Cordell Bank geodetic line towards Point 32 this rule. National Marine Sanctuary (CBNMS) in (37.88225N and 122.62753W) until it DATES: Effective Date: This final rule is 1989 to protect and preserve the intersects the mean high water line effective on September 1, 2010. extraordinary ecosystem, including (MHWL). Because the southern Implementation Dates: With regard to marine birds, mammals, and other boundary of the GFNMS is the same as the corrections to the coordinate tables, natural resources of Cordell Bank and the northern boundary for the MBNMS, implementation of this final rule begins its surrounding waters. The CBNMS NOAA is also reprinting the boundary on October 1, 2010. With regard to the protects an area of 529 square statute coordinates for the MBNMS (Appendix other corrections, implementation of miles (399 square nautical miles) of A for part M of section 922) with this this final rule begins September 1, 2010. marine waters, and the submerged lands same point (point 32) replacing the FOR FURTHER INFORMATION CONTACT: John thereunder, off the northern California existing Point 1 with the same Armor, Office of National Marine coast. The main feature of the sanctuary coordinate listed above (37.88225N and Sanctuaries, 1305 East-West Highway, is Cordell Bank, an offshore granite bank 122.62753W). Additional points were Silver Spring, MD 20910, or by phone located on the edge of the continental changed to correct for a non-stationary at 301–713–3125. shelf, about 23 statute miles (20 nmi) intersection of the transient MHWL and west of the Point Reyes lighthouse. The the lines connecting offshore and SUPPLEMENTARY INFORMATION: CBNMS is entirely offshore and shares onshore points, and therefore required I. Background its southern and eastern boundary with several points to be moved shoreward, NOAA established the Gulf of the the GFNMS. The western boundary is including: Point 35 (35.55483N and Farallones National Marine Sanctuary the 1000 fathom isobath on the edge of 121.10399W), Point 36 (37.59421N and the continental slope. The CBNMS is 122.52001W), and Point 39 (37.81777N (GFNMS) in 1981 to protect and located in one of the world’s four major and 122.53008W). These corrections do preserve a unique and fragile ecological coastal upwelling systems. The not alter the existing boundaries of community, including the largest combination of oceanic conditions and either sanctuary, but rather provide data seabird colony in the contiguous United undersea topography provides for a points that facilitate the correct States, and diverse and abundant highly productive environment in a depiction of the boundaries as defined marine mammals. The GFNMS lies off discrete, well-defined area. For more by the rule when the points are mapped. the coast of California, to the west and information about the CBNMS, please The November 20, 2008 final rule also north of San Francisco, and is composed see http://cordellbank.noaa.gov. included a provision to prohibit vessels of 1,279 square statute miles (966 square Pursuant to section 304(e) of the from anchoring in designated seagrass nautical miles) of offshore waters, and National Marine Sanctuaries Act (16 protection zones in Tomales Bay (with the submerged lands thereunder, U.S.C. 1434 et seq.) (NMSA), the Office an exception for mariculture operations extending out to and around the of National Marine Sanctuaries (ONMS) conducted pursuant to a valid lease, Farallon Islands and nearshore waters conducted a joint review of the permit, or license). This prohibition was (up to the mean high tide line) from management plans for the Gulf of the designed to protect the important and Bodega Head to Rocky Point in Marin. Farallones, Monterey Bay and Cordell fragile seagrass found in several areas of For more information about the GFNMS, Bank national marine sanctuaries Tomales Bay from the effects of vessel see http://farallones.noaa.gov. between 2001 and 2008. This review anchor damage. In publishing the NOAA established the Monterey Bay resulted in revised management plans, boundary coordinates for two of the National Marine Sanctuary (MBNMS) in regulations, and terms of designation for seven seagrass protection zones, NOAA 1992 for the purposes of protecting and all three sanctuaries. On November 20, omitted points that made accurate managing the conservation, ecological, 2008, NOAA published the associated mapping difficult. NOAA erroneously recreational, research, educational, final rule and terms of designation (73 omitted one point in the table for Zone historical, and esthetic resources and FR 70488) and released the revised 2 and one coordinate in the table for qualities of the area. The MBNMS is management plans. Zone 4. As such, NOAA is republishing located offshore of California’s central the coordinate tables for zones 2 and 4 II. Technical Corrections coast, adjacent to and south of the to allow accurate GPS plotting. GFNMS. It encompasses a shoreline In the November 20, 2008 Federal Inclusion of these previously missing length of approximately 276 statute Register notice, NOAA published the data points does not change the miles (240 nmi) between Rocky Pt. in coordinates for the outer boundary of boundaries of either protection zone Marin County and Cambria in San Luis GFNMS and certain zones within the established in the final rule but rather Obispo County. The sanctuary spans outer boundary. Both sets of coordinates allows the boundaries of these zones to approximately 6,094 square statute contained technical omissions that need be correctly delineated on a map. miles (4,602 square nautical miles) of to be corrected so that the digital The final rule in 2008 also ocean and coastal waters, and the representation of these boundaries on a inadvertently failed to expressly except submerged lands thereunder, extending map would more accurately represent from the discharge requirements an average distance of 30 statute miles the boundaries as they are described in applicable to cruise ships ‘‘vessel engine (26 nmi) from shore. The distant the language of the rule. or generator exhaust’’ emitted in order to Davidson Seamount is also part of the The outer boundary coordinate table operate the ship. Through this rule, sanctuary, though it does not share a for GFNMS (Appendix A) published on NOAA is correcting this omission by contiguous boundary. Supporting some November 20, 2008 did not contain the explicitly excepting from the discharge of the world’s most diverse marine final coordinate of the shoreward point. requirements for cruise ships vessel ecosystems, the MBNMS is home to Through this action, NOAA is making a engine or generator exhaust. numerous mammals, seabirds, fishes, technical correction by reprinting the This action does not change the intent invertebrates, sea turtles and plants in a outer boundary table in Appendix A in of the final rule. Historically, cruise remarkably productive coastal its entirety, with the omitted coordinate, ships have regularly transited through environment. For more information point 32. With this correction, from the sanctuaries. Given their means of about the MBNMS, please see http:// Point 31, the boundary follows the propulsion, cruise ships must discharge montereybay.noaa.gov. MBNMS boundary northeastward in a vessel engine and generator exhaust to

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operate. In recognition of this, coordinate tables, implementation of PART 922—NATIONAL MARINE regulations in place prior to this rule- this final rule will not begin until SANCTUARY PROGRAM making specifically authorized the October 1, 2010 in order to give the REGULATIONS discharge of vessel exhaust from all public reasonable time to take note of types of vessels, including cruise ships. the mapping refinements. ■ 1. The authority citation for part 922 continues to read as follows: As is evident from the 2006 proposed B. National Environmental Policy Act rules, the 2008 final rule and Final Authority: 16 U.S.C. 1431 et seq. Environmental Impact Statement (FEIS) NOAA prepared a final environmental ■ 2. Amend section 922.82 by revising associated with the rule-making, impact statement (FEIS) to evaluate the paragraph (a)(3) to read as follows: NOAA’s intent was to allow the regulatory changes for the JMPR. This continued operation of cruise ships rule does not change that assessment, as § 922.82 Prohibited or otherwise regulated within sanctuaries, but subject to greater this rule contains strictly technical activities. limitations on certain discharges or corrections and does not change the (a) * * * deposits, particularly sewage and intent of the original regulations. (3) Discharging or depositing from graywater. Indeed, both the proposed C. Executive Order 12866: Regulatory within or into the Sanctuary any and final rules specifically allow cruise Impact material or other matter from a cruise ships to discharge clean engine cooling ship except clean vessel engine cooling This regulatory action has been water, which is produced incidental to water, clean vessel generator cooling determined to be not significant within vessel operations. Absent an exception water, vessel engine or generator the meaning of Executive Order 12866. for engine and generator exhaust, which exhaust, clean bilge water, or anchor under the final rule remains expressly D. Executive Order 13132: Federalism wash. permissible to all other vessels that Assessment * * * * * operate within the sanctuaries, the rule NOAA has concluded that this ■ 3. Appendix A to Subpart H of Part would inadvertently ban all cruise ships regulatory action does not fall within 922 is revised to read as follows: from operating in the sanctuaries. the definition of ‘‘policies that have Appendix A to Subpart H of Part 922— The final rule in 2008 contained an federalism implications’’ within the erroneous and possibly confusing Gulf of the Farallones National Marine meaning of Executive Order 13132. The Sanctuary Boundary Coordinates duplication in the description of changes will not preempt State law. Appendix B to Subpart M for the Coordinates listed in this Appendix are MBNMS Overflight Restriction Zones. E. Regulatory Flexibility Act unprojected (Geographic) and based on the The description as it is currently written Because notice and opportunity for North American Datum of 1983. in paragraphs 1 and 2 includes both the comment are not required for this action words ‘‘heading’’ and ‘‘bearing.’’ NOAA Point ID No. pursuant to 5 U.S.C. 553 or any other Sanctuary Latitude Longitude is correcting this error by eliminating law, the analytical requirements of the Boundary the word ‘‘heading’’ from each Regulatory Flexibility Act (5 U.S.C. 601 description. The revised Appendix B to et seq.) are inapplicable. Therefore, a 1 ...... 38.29896 ¥123.05989 Subpart M is printed with the regulatory flexibility analysis is not 2 ...... 38.26390 ¥123.18138 corrections in the regulatory text below. required and has not been prepared. 3 ...... 38.21001 ¥123.11913 Last, the final rule contained the 4 ...... 38.16576 ¥123.09207 redundant use of the word ‘‘true’’ in the F. Paperwork Reduction Act 5 ...... 38.14072 ¥123.08237 ¥ Mavericks motorized personal This correction amendment does not 6 ...... 38.12829 123.08742 7 ...... 38.10215 ¥123.09804 watercraft (MPWC) zone description in contain information collections that are ¥ Appendix E to Subpart M for the 8 ...... 38.09069 123.10387 subject to the requirements of the 9 ...... 38.07898 ¥123.10924 MBNMS—Motorized Personal Paperwork Reduction Act. 10 ...... 38.06505 ¥123.11711 Watercraft Zones and Access Routes Notwithstanding any other provision of 11 ...... 38.05202 ¥123.12827 Within the Sanctuary. NOAA is the law, no person is required to 12 ...... 37.99227 ¥123.14137 correcting this error and removing the respond to, nor shall any person be 13 ...... 37.98947 ¥123.23615 redundant words in paragraphs 2 and 5 subject to a penalty for failure to comply 14 ...... 37.95880 ¥123.32312 under this heading. The revised with, a collection of information subject 15 ...... 37.90464 ¥123.38958 ¥ Appendix E to Subpart M is printed to the requirements of the PRA, unless 16 ...... 37.83480 123.42579 17 ...... 37.76687 ¥123.42694 with the corrections in the regulatory that collection of information displays a ¥ text below. 18 ...... 37.75932 123.42686 currently valid OMB Control Number. 19 ...... 37.68892 ¥123.39274 III. Classification List of Subjects in 15 CFR Part 922 20 ...... 37.63356 ¥123.32819 21 ...... 37.60123 ¥123.24292 A. Administrative Procedure Act Administrative practice and 22 ...... 37.59165 ¥123.22641 procedure, Boundary coordinates, ¥ The Acting Assistant Administrator 23 ...... 37.56305 123.19859 Harbors, Motorized personal watercraft ¥ finds good cause pursuant to 5 U.S.C. 24 ...... 37.52001 123.12879 (MPWC), Recreation and recreation 25 ...... 37.50819 ¥123.09617 553(b)(B) and (d)(3), respectively, to areas, Research, Seagrass protection, 26 ...... 37.49418 ¥123.00770 waive the requirements of public notice Water resources, Wildlife, Zones. 27 ...... 37.50948 ¥122.90614 and comment and 30-day delay in 28 ...... 37.52988 ¥122.85988 effectiveness because they are Dated: August 19, 2010. 29 ...... 37.57147 ¥122.80399 unnecessary. This rule makes technical Holly Bamford, 30 ...... 37.61622 ¥122.76937 non-substantive corrections to errors in Acting Deputy Assistant Administrator for 31 ...... 37.66641 ¥122.75105 the regulations of November 20, 2008 to Ocean Services and Coastal Zone 32 ...... 37.88225 ¥122.62753 clarify the intent of that rule. The intent Management. of the final rule published in 2008 is not ■ Accordingly, for the reasons set forth ■ 4. Table C–2 and table C–4 in affected by these corrections. With above, 15 CFR part 922 is amended as Appendix C to Subpart H of Part 922 are regard to the corrections to the follows: revised and Appendix C is republished

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in its entirety, with the aforementioned System relative to the North American Datum Zone 5 Point revisions, to read as follows: of 1983. ID Latitude Longitude Appendix C to Subpart H of Part 922— ¥ Zone 3 Point Latitude Longitude 3 ...... 38.20938 122.94153 No-Anchoring Seagrass Protection ID 4 ...... 38.20366 ¥122.93246 Zones in Tomales Bay 5 ...... 38.20515 ¥122.92453 1 ...... 38.16031 ¥122.89442 6 ...... 38.20073 ¥122.92181 Coordinates listed in this appendix are ¥ 2 ...... 38.15285 122.88991 7 ...... 38.19405 ¥122.93477 unprojected (Geographic) and based on the ¥ 3 ...... 38.15250 122.89042 8 ...... 38.20436 ¥122.94305 North American Datum of 1983. ¥ 4 ...... 38.15956 122.89573 9 ...... 38.21727 ¥122.96225 Table C–1: Zone 1: 5 ...... Same as 1. Same as 1. 10 ...... Same as 1. Same as 1. Zone 1 is an area of approximately 39.9 hectares offshore south of Millerton Point. Table C–4: Zone 4: Table C–6: Zone 6: The eastern boundary is a straight line that Zone 4 is an area of approximately 61.8 Zone 6 is an area of approximately 3.94 connects points 1 and 2 listed in the hectares that begins just north of Nicks Cove hectares in the vicinity of Indian Beach along coordinate table below. The southern and extends approximately 5 kilometers the western shore of Tomales Bay. The boundary is a straight line that connects south along the eastern shore of Tomales Bay points 2 and 3, the western boundary is a western boundary follows the mean high to just south of Cypress Grove. The eastern water (MHW) line from point 1 northward to straight line that connects points 3 and 4 and boundary is the mean high water (MHW) line the northern boundary is a straight line that point 2 listed in the coordinate table below. from point 1 to point 2 listed in the The northern boundary is a straight line that connects point 4 to point 5. All coordinates coordinate table below. The southern are in the Geographic Coordinate System connects point 2 to point 3. The eastern boundary is a straight line that connects boundary is a straight line that connects relative to the North American Datum of point 2 to point 3. The western boundary is 1983. point 3 to point 4. The southern boundary is a series of straight lines that connect points a straight line that connects point 4 to point 3 through 10 in sequence. The northern 5. All coordinates are in the Geographic Zone 1 Point boundary is a straight line that connects Latitude Longitude Coordinate System relative to the North ID point 10 to point 11. All coordinates are in American Datum of 1983. the Geographic Coordinate System relative to ¥ 1 ...... 38.10571 122.84565 the North American Datum of 1983. ¥ 2 ...... 38.09888 122.83603 Zone 6 Point Latitude Longitude ¥ ID 3 ...... 38.09878 122.84431 Zone 4 Point 4 ...... 38.10514 ¥122.84904 Latitude Longitude ID ¥ 5 ...... Same as 1. Same as 1. 1 ...... 38.13811 122.89603 2 ...... 38.14040 ¥122.89676 1 ...... 38.20073 ¥122.92181 3 ...... 38.14103 ¥122.89537 Table C–2: Zone 2: 2 ...... 38.16259 ¥122.89627 4 ...... 38.13919 ¥122.89391 3 ...... 38.16227 ¥122.89650 Zone 2 is an area of approximately 50.3 5 ...... Same as 1. Same as 1. hectares that begins just south of Marconi 4 ...... 38.16535 ¥122.90308 and extends approximately 3 kilometers 5 ...... 38.16869 ¥122.90475 Table C–7: Zone 7: south along the eastern shore of Tomales Bay. 6 ...... 38.17450 ¥122.90545 The eastern boundary is the mean high water 7 ...... 38.17919 ¥122.91021 Zone 7 is an area of approximately 32.16 (MHW) line from point 1 to point 2 listed in 8 ...... 38.18651 ¥122.91404 hectares that begins just south of Pebble the coordinate table below. The southern 9 ...... 38.18881 ¥122.91740 Beach and extends approximately 3 boundary is a straight line that connects 10 ...... 38.20004 ¥122.92315 kilometers south along the western shore of point 2 to point 3. The western boundary is 11 ...... Same as 1. Same as 1. Tomales Bay. The western boundary is the a series of straight lines that connect points mean high water (MHW) line from point 1 to 3 through 7 in sequence and then connects Table C–5: Zone 5: point 2 listed in the coordinate table below. point 7 to point 8. All coordinates are in the Zone 5 is an area of approximately 461.4 The northern boundary is a straight line that Geographic Coordinate System relative to the hectares that begins east of Lawsons Landing connects point 2 to point 3. The eastern North American Datum of 1983. and extends approximately 5 kilometers east boundary is a series of straight lines that and south along the eastern shore of Tomales connect points 3 through 7 in sequence. The southern boundary is a straight line that Zone 2 Point Latitude Longitude Bay but excludes areas adjacent ID (approximately 600 meters) to the mouth of connects point 7 to point 8. All coordinates Walker Creek. The boundary follows the are in the Geographic Coordinate System ¥ 1 ...... 38.14071 122.87440 mean high water (MHW) mark from point 1 relative to the North American Datum of ¥ 2 ...... 38.11601 122.85820 and trends in a southeast direction to point 1983. ¥ 3 ...... 38.11386 122.85851 2 listed in the coordinate table below. From ¥ 4 ...... 38.11899 122.86731 point 2 the boundary trends westward in a Zone 7 Point ¥ Latitude Longitude 5 ...... 38.12563 122.86480 straight line to point 3, then trends ID ¥ 6 ...... 38.12724 122.86488 southward in a straight line to point 4 and ¥ ¥ 7 ...... 38.13326 122.87178 then trends eastward in a straight line to 1 ...... 38.11034 122.86544 ¥ 8 ...... Same as 1. Same as 1. point 5. The boundary follows the mean high 2 ...... 38.13008 122.88742 ¥ water line from point 5 southward to point 3 ...... 38.13067 122.88620 ¥ Table C–3: Zone 3: 6. The southern boundary is a straight line 4 ...... 38.12362 122.87984 ¥ Zone 3 is an area of approximately 4.6 that connects point 6 to point 7. The eastern 5 ...... 38.11916 122.87491 ¥ hectares that begins just south of Marshall boundary is a series of straight lines that 6 ...... 38.11486 122.86896 ¥ and extends approximately 1 kilometer south connect points 7 to 9 in sequence and then 7 ...... 38.11096 122.86468 along the eastern shore of Tomales Bay. The connects point 9 to point 10. All coordinates 8 ...... Same as 1. Same as 1. eastern boundary is the mean high water are in the Geographic Coordinate System (MHW) line from point 1 to point 2 listed in relative to the North American Datum of ■ 5. Amend section 922.112 by revisng the coordinate table below. The southern 1983. paragraph (a)(1)(ii) to read as follows: boundary is a straight line that connects point 2 to point 3, the western boundary is Zone 5 Point Latitude Longitude § 922.112 Prohibited or otherwise a straight line that connects point 3 to point ID regulated activities. 4, and the northern boundary is a straight line that connects point 4 to point 5. All 1 ...... 38.23122 ¥122.96300 (a) * * * coordinates are in the Geographic Coordinate 2 ...... 38.21599 ¥122.93749 (1) * * *

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(ii) Discharging or depositing from Point ID No. Latitude Longitude Point ID No. Latitude Longitude within or into the Sanctuary any material or other matter from a cruise 34 ...... 35.55327 ¥121.63048 1 (flashing 5- 37.49395 ¥122.48477 ship except clean vessel engine cooling 35 ...... 35.55483 ¥121.10399 second water, clean vessel generator cooling 36 ...... 37.59421 ¥122.52001 breakwater water, vessel engine or generator 37 ...... 37.61367 ¥122.61673 entrance 38 ...... 37.76694 ¥122.65011 light and exhaust, clean bilge water, or anchor horn located 39 ...... 37.81777 ¥122.53008 wash. at the seaward end of * * * * * Harbor Exclusions ■ 6. Amend section 922.132 by revising the outer west break- paragraph (a)(2)(ii) to read as follows: 40 ...... 37.49414 ¥122.48483 water). 41 ...... 37.49540 ¥122.48576 § 922.132 Prohibited or otherwise 2 (bell buoy) ... 37.48167 ¥122.48333 42 ...... 36.96082 ¥122.00175 regulated activities. 3 ...... 37.48000 ¥122.46667 43 ...... 36.96143 ¥122.00112 4 ...... 37.49333 ¥122.46667 (a) * * * 44 ...... 36.80684 ¥121.79145 (2) * * * 45 ...... 36.80133 ¥121.79047 (2) The approximately five [5.0] nmi2 area (ii) Discharging or depositing from 46 ...... 36.60837 ¥121.88970 off of Santa Cruz Small Craft Harbor from within or into the Sanctuary any 47 ...... 36.60580 ¥121.88965 harbor launch ramps, through the harbor material or other matter from a cruise entrance, and then along a 100-yard wide ship except clean vessel engine cooling access route southwest along a bearing of water, clean vessel generator cooling ■ 8. Appendix B to Subpart M of Part approximately 196° true (180° magnetic) to water, vessel engine or generator 922 is revised to read as follows: the red and white whistle buoy at 36.93833 exhaust, clean bilge water, or anchor N, 122.01000 W. Zone Two is bounded by: Appendix B to Subpart M of Part 922— wash. Zones Within the Sanctuary Where Point ID No. Latitude Longitude * * * * * Overflights Below 1000 Feet Are ¥ ■ 7. Appendix A to Subpart M of Part Prohibited 1 ...... 36.91667 122.03333 922 is revised to read as follows: 2 ...... 36.91667 ¥121.96667 The four zones are: 3 ...... 36.94167 ¥121.96667 ¥ Appendix A to Subpart M of Part 922— (1) From mean high water to 3 nautical 4 ...... 36.94167 122.03333 Monterey Bay National Marine miles (nmi) offshore between a line 2 Sanctuary Boundary Coordinates extending from Point Santa Cruz on a (3) The approximately six [6.0] nmi area off of Moss Landing Harbor from harbor southwesterly bearing of 220° true and a line Coordinates listed in this Appendix are launch ramps, through harbor entrance, and unprojected (Geographic) and based on the extending from 2.0 nmi north of Pescadero then along a 100-yard wide access route ° North American Datum of 1983. Point on a southwesterly bearing of 240 true; southwest along a bearing of approximately (2) From mean high water to 3 nmi offshore 230° true (215° magnetic) to the red and Point ID No. Latitude Longitude between a line extending from the Carmel white bell buoy at the eastern boundary of River mouth on a westerly bearing of 270° Zone Three bounded by: Seaward Boundary true and a line extending due west along latitude parallel 35.55488 N off of Cambria; Point ID No. Latitude Longitude 1 ...... 37.88225 ¥122.62753 (3) From mean high water and within a 5 2 ...... 37.66641 ¥122.75105 1 ...... 36.83333 ¥121.82167 nmi seaward arc drawn from a center point 3 ...... 37.61622 ¥122.76937 2 ...... 36.83333 ¥121.84667 4 ...... 37.57147 ¥122.80399 of 36.80129 N, 121.79034 W (the end of the 3 ...... 36.77833 ¥121.84667 5 ...... 37.52988 ¥122.85988 Moss Landing ocean pier as it appeared on 4 ...... 36.77833 ¥121.81667 6 ...... 37.50948 ¥122.90614 the most current NOAA nautical charts as of 5 (red and 36.79833 ¥121.80167 7 ...... 37.49418 ¥123.00770 January 1, 1993); and white bell 8 ...... 37.50819 ¥123.09617 (4) Over the Sanctuary’s jurisdictional buoy). 9 ...... 37.52001 ¥123.12879 waters of Elkhorn Slough east of the Highway 6 ...... 36.81500 ¥121.80333 10 ...... 37.45304 ¥123.14009 One bridge to Elkhorn Road. 11 ...... 37.34316 ¥123.13170 (4) The approximately five [5.0] nmi2 area ¥ 12 ...... 37.23062 123.10431 ■ 9. Appendix E to Subpart M of Part off of Monterey Harbor from harbor launch 13 ...... 37.13021 ¥123.02864 922 is revised to read as follows: ramps to the seaward end of the U.S. Coast 14 ...... 37.06295 ¥122.91261 Guard Pier, and then along a 100-yard wide 15 ...... 37.03509 ¥122.77639 Appendix E to Subpart M of Part 922— access route northeast along a bearing of ¥ ° ° 16 ...... 36.92155 122.80595 Motorized Personal Watercraft Zones approximately 15 true (0 magnetic) to the 17 ...... 36.80632 ¥122.81564 southern boundary of Zone Four bounded by: 18 ...... 36.69192 ¥122.80539 and Access Routes Within the 19 ...... 36.57938 ¥122.77416 Sanctuary Point ID No. Latitude Longitude ¥ 20 ...... 36.47338 122.72568 [Coordinates in this appendix are 21 ...... 36.37242 ¥122.65789 1 ...... 36.64500 ¥121.92333 unprojected (Geographic Coordinate System) 22 ...... 36.27887 ¥122.57410 2 ...... 36.61500 ¥121.87500 23 ...... 36.19571 ¥122.47699 and are calculated using the North American 3 ...... 36.63833 ¥121.85500 24 ...... 36.12414 ¥122.36527 Datum of 1983] 4 ...... 36.66667 ¥121.90667 25 ...... 36.06864 ¥122.24438 The five zones and access routes are: 26 ...... 36.02451 ¥122.11672 (1) The approximately one [1.0] nmi2 area (5) The approximately one-tenth [0.10] 27 ...... 35.99596 ¥121.98232 off Pillar Point Harbor from harbor launch nmi2 area near Pillar Point from the Pillar 28 ...... 35.98309 ¥121.84069 ramps, through the harbor entrance to the Point Harbor entrance along a 100-yard wide 29 ...... 35.98157 ¥121.75634 northern boundary of Zone One: access route southeast along a bearing of 30 ...... 35.92933 ¥121.71119 approximately 174° true (159° magnetic) to 31 ...... 35.83773 ¥121.71922 the green bell buoy (identified as ‘‘Buoy 3’’) 32 ...... 35.72063 ¥121.71216 at 37.48154 N, 122.48156 W and then along 33 ...... 35.59497 ¥121.69030 a 100-yard wide access route northwest along

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a bearing of approximately 284° true (269° rule, call or e-mail LTJG Ashley M. operators from entering, transiting or magnetic) to the green gong buoy (identified Wanzer, Sector Puget Sound, Waterways remaining within this safety zone while as ‘‘Buoy 1’’) at 37.48625 N, 122.50603 W, the Management Division, Coast Guard; enforced. southwest boundary of Zone Five. Zone Five telephone 206–217–6175, e-mail exists only when a High Surf Warning has Discussion of Rule [email protected]. If you been issued by the National Weather Service Olympia Harbor Days is an annual and is in effect for San Mateo County and have questions on viewing the docket, only during December, January, and call Renee V. Wright, Program Manager, tugboat race in Budd Inlet, WA February. Zone Five is bounded by: Docket Operations, telephone 202–366– involving three classes of tugboat races. 9826. Each class of vessel will compete in a Point ID No. Latitude Longitude SUPPLEMENTARY INFORMATION: heat which will take place in the navigation channel. This safety zone 1 (gong buoy 37.48625 ¥122.50603 Regulatory Information restricts vessel movement in the identified as The Coast Guard is issuing this navigation channel during each heat of ‘‘Buoy 1’’). temporary final rule without prior racing. This rule is effective from 8 a.m. 2 ...... 37.49305 ¥122.50603 3 (Sail Rock) ... 37.49305 ¥122.50105 notice and opportunity to comment until 8 p.m. on September 5th, 2010. 4 ...... 37.48625 ¥122.50105 pursuant to authority under section 4(a) The safety zone will encompass all of the Administrative Procedure Act waters of Budd Inlet, WA the width of [FR Doc. 2010–21878 Filed 8–31–10; 8:45 am] (APA) (5 U.S.C. 553(b)). This provision the navigation channel south of a line BILLING CODE 3510–NK–P authorizes an agency to issue a rule connecting the following points: without prior notice and opportunity to 47°05′34″ N 122°55′53″ W and 47°05′34″ comment when the agency for good N 122°55′28″ W, until reaching the DEPARTMENT OF HOMELAND cause finds that those procedures are northernmost end of the navigation SECURITY ‘‘impracticable, unnecessary, or contrary channel at a line connecting the to the public interest.’’ Under 5 U.S.C. following points 47°05′06″ N 122°55′28″ Coast Guard 553(b)(B), the Coast Guard finds that W and 47°05′03″ N, 122°55′44″ W then good cause exists for not publishing a southeasterly until reaching the 33 CFR Part 165 notice of proposed rulemaking (NPRM) southernmost entrance of the navigation with respect to this rule because it is channel at a line connecting the [Docket No. USCG–2010–0799] contrary to the public interest to delay following points 47°04′00″ N 122°54′28″ RIN 1625–AA00 the effective date of this rule. Delaying N 122°54′35″ W. Access to the zone will the effective date by first publishing an be restricted during the specified date Safety Zone; Olympia Harbor Days Tug NPRM would be contrary to the safety and time. Entry into, transit through, Boat Races, Budd Inlet, WA zone’s intended objectives because mooring or anchoring within this zone AGENCY: Coast Guard, DHS. immediate action is needed to restrict is prohibited unless authorized by the vessel movement during racing activity ACTION: Temporary final rule. Captain of the Port, Puget Sound or in order to ensure the safety of Designated Representative. SUMMARY: The Coast Guard is participants, spectators, and the Regulatory Analyses establishing a temporary safety zone maritime public. within the navigation channel in Budd Under 5 U.S.C. 553(d)(3), the Coast We developed this rule after Inlet, WA during Olympia Harbor Days Guard finds that good cause exists for considering numerous statutes and tug boat races. This safety zone is making this rule effective less than 30 executive orders related to rulemaking. necessary to restrict vessel movement days after publication in the Federal Below we summarize our analyses during racing activity in order to ensure Register. Due to the need for immediate based on 13 of these statutes or the safety of participants, spectators, action, the restriction of vessel traffic is executive orders. necessary to protect life and property; and the maritime public. This action is Regulatory Planning and Review intended to restrict vessel traffic therefore, a 30-day notice is movement on specified waters of the impracticable. Delaying the effective This rule is not a significant Budd Inlet, WA during Olympia Harbor date would be contrary to the safety regulatory action under section 3(f) of Days tug boat races. zone’s intended objectives of protecting Executive Order 12866, Regulatory persons and vessels involved in the Planning and Review, and does not DATES: This rule is effective from 8 a.m. event, and enhancing public and require an assessment of potential costs until 8 p.m. on September 5th, 2010. maritime safety. and benefits under section 6(a)(3) of that ADDRESSES: Documents indicated in this Order. The Office of Management and Basis and Purpose preamble as being available in the Budget has not reviewed it under that docket are part of docket USCG–2010– This temporary rule addresses safety Order. This rule is not a significant 0799 and are available online by going concerns associated with the Olympia regulatory action because it is short in to http://www.regulations.gov, inserting Harbor Days tugboat races. Tugboat duration and vessels will be able to USCG–2010–0799 in the ‘‘Keyword’’ races result in vessel and spectator transit the navigation channel between box, and then clicking ‘‘Search.’’ They congestion in the proximity of the race heats of racing. are also available for inspection or course. Additionally, the draft of these copying at the Docket Management vessels creates a large wake when Small Entities Facility (M–30), U.S. Department of accelerating at fast speeds during races. Under the Regulatory Flexibility Act Transportation, West Building Ground This safety zone is necessary to ensure (5 U.S.C. 601–612), we have considered Floor, Room W12–140, 1200 New Jersey spectators remain an adequate distance whether this rule would have a Avenue, SE., Washington, DC 20590, from the race course and to provide significant economic impact on a between 9 a.m. and 5 p.m., Monday unencumbered access for emergency substantial number of small entities. through Friday, except Federal holidays. response craft in the event of a race- The term ‘‘small entities’’ comprises FOR FURTHER INFORMATION CONTACT: If related emergency. This safety zone will small businesses, not-for-profit you have questions on this temporary do so by prohibiting persons and vessel organizations that are independently

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owned and operated and are not Unfunded Mandates Reform Act require a Statement of Energy Effects dominant in their fields, and The Unfunded Mandates Reform Act under Executive Order 13211. governmental jurisdictions with of 1995 (2 U.S.C. 1531–1538) requires Technical Standards populations of less than 50,000. Federal agencies to assess the effects of The National Technology Transfer The Coast Guard certifies under their discretionary regulatory actions. In and Advancement Act (NTTAA) (15 5 U.S.C. 605(b) that this rule will not particular, the Act addresses actions U.S.C. 272 note) directs agencies to use have a significant economic impact on that may result in the expenditure by a State, local, or Tribal government, in the voluntary consensus standards in their a substantial number of small entities. regulatory activities unless the agency This rule will affect the following aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or provides Congress, through the Office of entities, some of which may be small Management and Budget, with an entities: the owners or operators of more in any one year. Though this rule will not result in such an expenditure, explanation of why using these vessels intending to transit this zone standards would be inconsistent with during periods of enforcement. This we do discuss the effects of this rule elsewhere in this preamble. applicable law or otherwise impractical. safety zone will not have a significant Voluntary consensus standards are economic impact on a substantial Taking of Private Property technical standards (e.g., specifications number of small entities for the This rule will not cause a taking of of materials, performance, design, or following reasons. This rule will be private property or otherwise have operation; test methods; sampling enforced for a short duration and vessels taking implications under Executive procedures; and related management will be able to navigate the channel Order 12630, Governmental Actions and systems practices) that are developed or between heats with the permission of Interference with Constitutionally adopted by voluntary consensus the patrolling event committee crafts. Protected Property Rights. standards bodies. Assistance for Small Entities This rule does not use technical Civil Justice Reform standards. Therefore, we did not Under section 213(a) of the Small This rule meets applicable standards consider the use of voluntary consensus Business Regulatory Enforcement in sections 3(a) and 3(b)(2) of Executive standards. Order 12988, Civil Justice Reform, to Fairness Act of 1996 (Pub. L. 104–121), Environment we offer to assist small entities in minimize litigation, eliminate understanding the rule so that they can ambiguity, and reduce burden. We have analyzed this rule under Department of Homeland Security better evaluate its effects on them and Protection of Children participate in the rulemaking process. Management Directive 023–01 and We have analyzed this rule under Commandant Instruction M16475.lD, Small businesses may send comments Executive Order 13045, Protection of which guide the Coast Guard in on the actions of Federal employees Children from Environmental Health complying with the National who enforce, or otherwise determine Risks and Safety Risks. This rule is not Environmental Policy Act of 1969 compliance with, Federal regulations to an economically significant rule and (NEPA) (42 U.S.C. 4321–4370f), and the Small Business and Agriculture does not create an environmental risk to have concluded this action is one of a Regulatory Enforcement Ombudsman health or risk to safety that may category of actions that do not and the Regional Small Business disproportionately affect children. individually or cumulatively have a Regulatory Fairness Boards. The Indian Tribal Governments significant effect on the human Ombudsman evaluates these actions environment. This rule is categorically annually and rates each agency’s This rule does not have Tribal excluded, under figure 2–1, paragraph responsiveness to small business. If you implications under Executive Order (34)(g.), of the Instruction. This rule wish to comment on actions by 13175, Consultation and Coordination involves the establishment of a safety employees of the Coast Guard, call with Indian Tribal Governments, zone. An environmental analysis 1–888–REG–FAIR (1–888–734–3247). because it does not have a substantial checklist and a categorical exclusion The Coast Guard will not retaliate direct effect on one or more Indian determination will be made available in against small entities that question or Tribes, on the relationship between the the docket where indicated under Federal Government and Indian Tribes, complain about this rule or any policy ADDRESSES. or action of the Coast Guard. or on the distribution of power and responsibilities between the Federal List of Subjects in 33 CFR Part 165 Collection of Information Government and Indian Tribes. Harbors, Marine safety, Navigation This rule calls for no new collection Energy Effects (water), Reporting and recordkeeping requirements, Security measures, of information under the Paperwork We have analyzed this rule under Waterways. Reduction Act of 1995 (44 U.S.C. 3501– Executive Order 13211, Actions 3520). Concerning Regulations That ■ For the reasons discussed in the preamble, the Coast Guard amends 33 Federalism Significantly Affect Energy Supply, Distribution, or Use. We have CFR part 165 as follows: A rule has implications for federalism determined that it is not a ‘‘significant PART 165—REGULATED NAVIGATION under Executive Order 13132, energy action’’ under that order because AREAS AND LIMITED ACCESS AREAS Federalism, if it has a substantial direct it is not a ‘‘significant regulatory action’’ effect on State or local governments and under Executive Order 12866 and is not ■ 1. The authority citation for part 165 would either preempt State law or likely to have a significant adverse effect continues to read as follows: impose a substantial direct cost of on the supply, distribution, or use of Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. compliance on them. We have analyzed energy. The Administrator of the Office Chapters 701, 3306, 3703; 50 U.S.C. 191, 195; this rule under that Order and have of Information and Regulatory Affairs 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; determined that it does not have has not designated it as a significant Pub. L. 107–295, 116 Stat. 2064; Department implications for federalism. energy action. Therefore, it does not of Homeland Security Delegation No. 0170.1.

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■ 2. Add temporary § 33 CFR 165.T13– specified waters of the Potomac River. applies, and provide a reason for each 159 to read as follows: This action is necessary to provide for suggestion or recommendation. You the safety of life on navigable waters may submit your comments and § 165.T13–159 Safety Zone; Olympia during five fireworks displays launched material online (via http:// Harbor Days Tug Boat Races, Budd Inlet, WA. from a discharge barge located at www.regulations.gov) or by fax, mail or National Harbor, in Prince Georges hand delivery, but please use only one (a) Safety Zones. The following area is County, Maryland. This safety zone is of these means. If you submit a designated as a safety zone: comment online via http:// 1. Location. All waters of Budd Inlet, intended to protect the maritime public www.regulations.gov, it will be WA the width of the navigation channel in a portion of the Potomac River. considered received by the Coast Guard south of a line connecting the following DATES: This rule is effective from when you successfully transmit the points: 47°05′34″ N 122°55′53″ W and September 1, 2010 through November comment. If you fax, hand delivery, or 47°05′34″ N 122°55′28″ W until reaching 19, 2010. Comments and related mail your comment, it will be the northernmost end of the navigation material must reach the Coast Guard on or before October 1, 2010. considered as having been received by channel at a line connecting the the Coast Guard when it is received at ° ′ ″ ° ′ ″ ADDRESSES: You may submit comments following points 47 05 06 N 122 55 28 the Docket Management Facility. We W and 47°05′03″ N 122°55′44″ W then identified by docket number USCG– 2010–0776 using any one of the recommend that you include your name southeasterly until reaching the and a mailing address, an e-mail following methods: southernmost entrance of the navigation address, or a telephone number in the channel at a line connecting the (1) Federal eRulemaking Portal: ° ′ ″ ° ′ ″ http://www.regulations.gov. body of your document so that we can following points 47 04 00 N 122 54 28 contact you if we have questions N 122°54′35″ W. (2) Fax: 202–493–2251. (3) Mail: Docket Management Facility regarding your submission. (b) Effective Period. This regulation is To submit your comment online, go to effective from 8 a.m. until 8 p.m. on (M–30), U.S. Department of Transportation, West Building Ground http://www.regulations.gov, click on the September 5th, 2010. ‘‘submit a comment’’ box, which will (c) Regulations. In accordance with Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590– then become highlighted in blue. In the the general regulations in 33 CFR Part ‘‘Document Type’’ drop down menu 165, Subpart C, no person or vessel may 0001. (4) Hand Delivery: Same as mail select ‘‘Proposed Rule’’ and insert enter, transit, moor, or anchor within ‘‘USCG–2010–0776’’ in the ‘‘Keyword’’ this safety zone unless authorized by the address above, between 9 a.m. and 5 p.m., Monday through Friday, except box. Click ‘‘Search’’ then click on the Captain of the Port or Designated ‘‘ ’’ Federal holidays. The telephone number balloon shape in the Actions column. Representative. If you submit your comments by mail or (d) Authorization. All persons or is 202–366–9329. To avoid duplication, please use only hand delivery, submit them in an vessels who desire to enter the safety 1 one of these four methods. See the unbound format, no larger than 8 ⁄2 by zone created in this section must obtain 11 inches, suitable for copying and permission from the Captain of the Port ‘‘Public Participation and Request for Comments’’ portion of the electronic filing. If you submit them by or Designated Representative by mail and would like to know that they SUPPLEMENTARY INFORMATION section contacting either the event sponsor on reached the Facility, please enclose a VHF Ch 06, the on-scene patrol craft on below for instructions on submitting comments. stamped, self-addressed postcard or VHF Ch 13 or Ch 16 or the Coast Guard envelope. We will consider all Sector Puget Sound Joint Harbor FOR FURTHER INFORMATION CONTACT: If comments and material received during Operations Center (JHOC) via telephone you have questions on this temporary the comment period and may change at 206–217–6002. interim rule, call or e-mail Ronald L. this rule based on your comments. Dated: August 17, 2010. Houck, Sector Baltimore Waterways Viewing Comments and Documents: S.W. Bornemann, Management Division, Coast Guard; To view comments, as well as Captain, U.S. Coast Guard, Captain of the telephone 410–576–2674, e-mail documents mentioned in this preamble Port, Puget Sound. [email protected]. If you have as being available in the docket, go to [FR Doc. 2010–21779 Filed 8–31–10; 8:45 am] questions on viewing or submitting http://www.regulations.gov, click on the BILLING CODE 9110–04–P material to the docket, call Renee V. ‘‘read comments’’ box, which will then Wright, Program Manager, Docket become highlighted in blue. In the Operations, telephone 202–366–9826. ‘‘Keyword’’ box insert ‘‘USCG–2010– DEPARTMENT OF HOMELAND SUPPLEMENTARY INFORMATION: 0776’’ and click ‘‘Search.’’ Click the SECURITY ‘‘Open Docket Folder’’ in the ‘‘Actions’’ Public Participation and Request for column. You may also visit the Docket Coast Guard Comments Management Facility in Room W12–140 We encourage you to participate in on the ground floor of the Department 33 CFR Part 165 this rulemaking by submitting of Transportation West Building, 1200 [Docket No. USCG–2010–0776] comments and related materials. All New Jersey Avenue, SE., Washington, comments received will be posted, DC 20590, between 9 a.m. and 5 p.m., RIN 1625–AA00 without change, to http:// Monday through Friday, except Federal www.regulations.gov and will include holidays. We have an agreement with Safety Zone; Fireworks Displays, any personal information you have the Department of Transportation to use Potomac River, National Harbor, MD provided. the Docket Management Facility. AGENCY: Coast Guard, DHS. Submitting Comments: Privacy Act: ACTION: Temporary interim rule with If you submit a comment, please Anyone can search the electronic request for comments. include the docket number for this form of comments received into any of rulemaking (USCG–2010–0776), our dockets by the name of the SUMMARY: The Coast Guard is indicate the specific section of this individual submitting the comment (or establishing a safety zone upon document to which each comment signing the comment, if submitted on

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behalf of an association, business, labor and to protect mariners transiting the Order. The Office of Management and union, etc.). You may review a Privacy area from the potential hazards Budget has not reviewed it under that Act notice regarding our public dockets associated with a fireworks display, Order. Although this safety zone will in the January 17, 2008 issue of the such as the accidental discharge of restrict some vessel traffic, there is little Federal Register (73 FR 3316). fireworks, dangerous projectiles, and vessel traffic associated with Public Meeting: falling hot embers or other debris. This commercial fishing in the area, and We do not now plan to hold a public rule is needed to ensure safety on the recreational boating in the area can meeting. But you may submit a request waterway during the scheduled events. transit waters outside the safety zone. In for one using one of the four methods addition, the effect of this rule will not Discussion of Rule specified under ADDRESSES. Please be significant because the safety zone is explain why you believe a public Pyrotecnico, of New Castle, of limited duration and limited size. For meeting would be beneficial. If we Pennsylvania, will conduct five separate the above reasons, the Coast Guard does determine that one would aid this fireworks displays launched from a not anticipate any significant economic rulemaking, we will hold one at a time barge located in the Potomac River at impact. and place announced by a later notice National Harbor, Maryland scheduled in the Federal Register. on September 1, 2010 at 9:30 p.m., Small Entities September 21, 2010 at 9:30 p.m., Under the Regulatory Flexibility Act Regulatory Information October 1, 2010 at 9:30 p.m., October 9, (5 U.S.C. 601–612), we have considered The Coast Guard is issuing this 2010 at 9:30 p.m. and November 18, whether this rule would have a temporary interim rule without prior 2010 at 6:45 p.m., and if necessary due significant economic impact on a notice and opportunity to comment to inclement weather, on November 19, substantial number of small entities. pursuant to authority under section 4(a) 2010 at 6:45 p.m. The term ‘‘small entities’’ comprises of the Administrative Procedure Act The Coast Guard is establishing a small businesses, not-for-profit (APA) (5 U.S.C. 553(b)). This provision temporary safety zone on certain waters organizations that are independently authorizes an agency to issue a rule of the Potomac River, within an area owned and operated and are not without prior notice and opportunity to bounded by a line drawn from the dominant in their fields, and comment when the agency for good following points: Latitude 38°47′18″ N, governmental jurisdictions with cause finds that those procedures are longitude 077°01′01″ W; thence to populations of less than 50,000. ‘‘impracticable, unnecessary, or contrary latitude 38°47′11″ N, longitude The Coast Guard certifies under 5 to the public interest.’’ Under 5 U.S.C. 077°01′26″ W; thence to latitude U.S.C. 605(b) that this rule will not have 553(b)(B), the Coast Guard finds that 38°47′25″ N, longitude 077°01′33″ W; a significant economic impact on a good cause exists for not publishing a thence to latitude 38°47′32″ N, substantial number of small entities. notice of proposed rulemaking (NPRM) longitude 077°01′08″ W; thence to the This rule will affect the following with respect to this rule because it is point of origin, located at National entities, some of which may be small contrary to public interest to delay the Harbor, Maryland (NAD 1983). The entities: the owners or operators of effective date of this rule. Delaying the temporary safety zone will be enforced vessels intending to operate, transit, or effective date by first publishing an from 6 p.m. through 11 p.m. on anchor in a portion of the Potomac NPRM would be contrary to the safety September 1, 2010, September 21, 2010, River, located at National Harbor, MD, zone’s intended objectives since October 1, 2010, October 9, 2010 and from 6 p.m. through 11 p.m. on immediate action is necessary to protect November 18, 2010, and if necessary September 1, 2010, September 21, 2010, persons and vessels against the hazards due to inclement weather, from 6 p.m. October 1, 2010, October 9, 2010 and associated with a fireworks display on through 11 p.m. on November 19, 2010. November 18, 2010, and if necessary navigable waters. Such hazards include The effect of this temporary safety zone due to inclement weather, from 6 p.m. premature detonations, dangerous will be to restrict navigation in the through 11 p.m. on November 19, 2010. projectiles and falling or burning debris. regulated area during the fireworks This safety zone will not have a Under 5 U.S.C. 553(d)(3), the Coast displays. No person or vessel may enter significant economic impact on a Guard finds that good cause exists for or remain in the safety zone. Vessels substantial number of small entities for making this rule effective less than 30 will be allowed to transit the waters of the following reasons. The safety zone is days after publication in the Federal the Potomac River outside the safety of limited size and duration. In Register. Due to the need for immediate zone. Notification of the temporary addition, before the effective periods, action, the restriction of vessel traffic is safety zone will be provided to the the Coast Guard will issue maritime necessary to protect life, property and public via marine information advisories widely available to users of the environment. Therefore, a 30-day broadcasts. the waterway to allow mariners to make notice is impracticable. Delaying the alternative plans for transiting the effective date would be contrary to the Regulatory Analyses affected area. safety zone’s intended objectives of We developed this interim rule after protecting persons and vessels involved considering numerous statutes and Assistance for Small Entities in the event, and enhancing public and executive orders related to rulemaking. Under section 213(a) of the Small maritime safety. Below we summarize our analyses Business Regulatory Enforcement based on 13 of these statutes or Fairness Act of 1996 (Pub. L. 104–121), Basis and Purpose executive orders. we offer to assist small entities in Fireworks displays are frequently understanding the rule so that they can held from locations on or near the Regulatory Planning and Review better evaluate its effects on them and navigable waters of the United States. This rule is not a significant participate in the rulemaking process. The potential hazards associated with regulatory action under section 3(f) of Small businesses may send comments fireworks displays are a safety concern Executive Order 12866, Regulatory on the actions of Federal employees during such events. The purpose of this Planning and Review, and does not who enforce, or otherwise determine rule is to promote public and maritime require an assessment of potential costs compliance with, Federal regulations to safety during five fireworks displays, and benefits under section 6(a)(3) of that the Small Business and Agriculture

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Regulatory Enforcement Ombudsman health or risk to safety that may category of actions that do not and the Regional Small Business disproportionately affect children. individually or cumulatively have a Regulatory Fairness Boards. The significant effect on the human Indian Tribal Governments Ombudsman evaluates these actions environment. This rule is categorically annually and rates each agency’s This rule does not have tribal excluded, under figure 2–1, paragraph responsiveness to small business. If you implications under Executive Order (34)(g), of the Instruction. This rule wish to comment on actions by 13175, Consultation and Coordination involves establishing a temporary safety employees of the Coast Guard, call with Indian Tribal Governments, zone. 1–888–REG–FAIR (1–888–734–3247). because it does not have a substantial An environmental analysis checklist The Coast Guard will not retaliate direct effect on one or more Indian and a categorical exclusion against small entities that question or tribes, on the relationship between the determination are available in the complain about this rule or any policy Federal Government and Indian tribes, docket where indicated under or action of the Coast Guard. or on the distribution of power and ADDRESSES. responsibilities between the Federal List of Subjects in 33 CFR Part 165 Collection of Information Government and Indian tribes. This rule calls for no new collection Harbors, Marine safety, Navigation Energy Effects of information under the Paperwork (water), Reporting and recordkeeping Reduction Act of 1995 (44 U.S.C. 3501– We have analyzed this rule under requirements, Security measures, 3520). Executive Order 13211, Actions Waterways. Concerning Regulations That ■ For the reasons discussed in the Federalism Significantly Affect Energy Supply, preamble, the Coast Guard amends 33 A rule has implications for federalism Distribution, or Use. We have CFR part 165 as follows: under Executive Order 13132, determined that it is not a ‘‘significant Federalism, if it has a substantial direct energy action’’ under that order because PART 165—REGULATED NAVIGATION effect on State or local governments and it is not a ‘‘significant regulatory action’’ AREAS AND LIMITED ACCESS AREAS would either preempt State law or under Executive Order 12866 and is not ■ 1. The authority citation for part 165 impose a substantial direct cost of likely to have a significant adverse effect continues to read as follows: compliance on them. We have analyzed on the supply, distribution, or use of energy. The Administrator of the Office Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. this rule under that Order and have Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; determined that it does not have of Information and Regulatory Affairs 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. implications for federalism. has not designated it as a significant 107–295, 116 Stat. 2064; Department of energy action. Therefore, it does not Unfunded Mandates Reform Act Homeland Security Delegation No. 0170.1. require a Statement of Energy Effects ■ 2. Add § 165.T05–0776 to read as The Unfunded Mandates Reform Act under Executive Order 13211. follows: of 1995 (2 U.S.C. 1531–1538) requires Technical Standards Federal agencies to assess the effects of § 165.T05–0776 Safety Zone; Fireworks their discretionary regulatory actions. In The National Technology Transfer Displays, Potomac River, National Harbor, particular, the Act addresses actions and Advancement Act (NTTAA) (15 MD. that may result in the expenditure by a U.S.C. 272 note) directs agencies to use (a) Regulated area. The following area State, local, or tribal government, in the voluntary consensus standards in their is a safety zone: All waters in the aggregate, or by the private sector of regulatory activities unless the agency Potomac River, within an area bounded $100,000,000 (adjusted for inflation) or provides Congress, through the Office of by a line drawn from the following more in any one year. Though this rule Management and Budget, with an points: Latitude 38°47′18″ N, longitude will not result in such an expenditure, explanation of why using these 077°01′01″ W; thence to latitude we do discuss the effects of this rule standards would be inconsistent with 38°47′11″ N, longitude 077°01′26″ W; elsewhere in this preamble. applicable law or otherwise impractical. thence to latitude 38°47′25″ N, Voluntary consensus standards are longitude 077°01′33″ W; thence to Taking of Private Property technical standards (e.g., specifications latitude 38°47′32″ N, longitude This rule will not cause a taking of of materials, performance, design, or 077°01′08″ W; thence to the point of private property or otherwise have operation; test methods; sampling origin, located at National Harbor, taking implications under Executive procedures; and related management Maryland (NAD 1983). Order 12630, Governmental Actions and systems practices) that are developed or (b) Regulations. The general safety Interference with Constitutionally adopted by voluntary consensus zone regulations found in 33 CFR Protected Property Rights. standards bodies. 165.23 apply to the safety zone created This rule does not use technical by this temporary section, § 165.T05– Civil Justice Reform standards. Therefore, we did not 0776. This rule meets applicable standards consider the use of voluntary consensus (1) All vessels and persons are in sections 3(a) and 3(b)(2) of Executive standards. prohibited from entering this zone, Order 12988, Civil Justice Reform, to except as authorized by the Coast Guard Environment minimize litigation, eliminate Captain of the Port Baltimore. ambiguity, and reduce burden. We have analyzed this rule under (2) Persons or vessels requiring entry Department of Homeland Security into or passage within the zone must Protection of Children Management Directive 023–01 and request authorization from the Captain We have analyzed this rule under Commandant Instruction M16475.lD, of the Port or his designated Executive Order 13045, Protection of which guide the Coast Guard in representative by telephone at 410–576– Children from Environmental Health complying with the National 2693 or on VHF–FM marine band radio Risks and Safety Risks. This rule is not Environmental Policy Act of 1969 channel 16. an economically significant rule and (NEPA) (42 U.S.C. 4321–4370f), and (3) All Coast Guard assets enforcing does not create an environmental risk to have concluded this action is one of a this safety zone can be contacted on

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VHF–FM marine band radio channels petition to EPA under the Federal Food, This listing is not intended to be 13 and 16. Drug, and Cosmetic Act (FFDCA), exhaustive, but rather provides a guide (4) The operator of any vessel within requesting establishment of an for readers regarding entities likely to be or in the immediate vicinity of this exemption from the requirement of a affected by this action. Other types of safety zone shall: tolerance. This regulation eliminates the entities not listed in this unit could also (i) Stop the vessel immediately upon need to establish a maximum be affected. The North American being directed to do so by any permissible level for residues of choline Industrial Classification System commissioned, warrant or petty officer hydroxide. (NAICS) codes have been provided to on board a vessel displaying a Coast DATES: This regulation is effective assist you and others in determining Guard Ensign, and September 1, 2010. Objections and whether this action might apply to (ii) Proceed as directed by any requests for hearings must be received certain entities. If you have any commissioned, warrant or petty officer on or before November 1, 2010, and questions regarding the applicability of on board a vessel displaying a Coast must be filed in accordance with the this action to a particular entity, consult Guard Ensign. instructions provided in 40 CFR part the person listed under FOR FURTHER (c) Definitions. Captain of the Port 178 (see also Unit I.C. of the INFORMATION CONTACT. Baltimore means the Commander, Coast SUPPLEMENTARY INFORMATION). B. How Can I Get Electronic Access to Guard Sector Baltimore or any Coast ADDRESSES: EPA has established a Other Related Information? Guard commissioned, warrant or petty docket for this action under docket officer who has been authorized by the identification (ID) number EPA–HQ– You may access a frequently updated Captain of the Port to act on his behalf. OPP–2010–0233. All documents in the electronic version of 40 CFR part 180 Designated representative means any docket are listed in the docket index through the Government Printing Coast Guard commissioned, warrant, or available at http://www.regulations.gov. Office’s e-CFR site at http:// petty officer who has been authorized Although listed in the index, some www.gpoaccess.gov/ecfr. by the Captain of the Port Baltimore to information is not publicly available, C. How Can I File an Objection or assist in enforcing the safety zone e.g., Confidential Business Information Hearing Request? described in paragraph (a) of this (CBI) or other information whose Under FFDCA section 408(g), 21 section. disclosure is restricted by statute. U.S.C. 346a, any person may file an (d) Enforcement. The U.S. Coast Certain other material, such as objection to any aspect of this regulation Guard may be assisted by Federal, State copyrighted material, is not placed on and may also request a hearing on those and local agencies in the patrol and the Internet and will be publicly enforcement of the zone. available only in hard copy form. objections. You must file your objection (e) Enforcement periods. This section Publicly available docket materials are or request a hearing on this regulation will be enforced from 6 p.m. through available in the electronic docket at in accordance with the instructions 11 p.m. on September 1, 2010, http://www.regulations.gov, or, if only provided in 40 CFR part 178. To ensure September 21, 2010, October 1, 2010, available in hard copy, at the OPP proper receipt by EPA, you must October 9, 2010 and November 18, 2010, Regulatory Public Docket in Rm. S– identify docket ID number EPA–HQ– and if necessary due to inclement 4400, One Potomac Yard (South Bldg.), OPP–2010–0233 in the subject line on weather, from 6 p.m. through 11 p.m. on 2777 S. Crystal Dr., Arlington, VA. The the first page of your submission. All November 19, 2010. Docket Facility is open from 8:30 a.m. objections and requests for a hearing must be in writing, and must be Dated: August 16, 2010. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket received by the Hearing Clerk on or Mark P. O’Malley, Facility telephone number is (703) 305– before November 1, 2010. Addresses for Captain, U.S. Coast Guard, Captain of the 5805. mail and hand delivery of objections Port Baltimore. and hearing requests are provided in 40 FOR FURTHER INFORMATION CONTACT: [FR Doc. 2010–21781 Filed 8–31–10; 8:45 am] Mark Dow, Registration Division CFR 178.25(b). In addition to filing an objection or BILLING CODE 9110–04–P (7505P), Office of Pesticide Programs, hearing request with the Hearing Clerk Environmental Protection Agency, 1200 as described in 40 CFR part 178, please Pennsylvania Ave., NW., Washington, submit a copy of the filing that does not ENVIRONMENTAL PROTECTION DC 20460–0001; telephone number: contain any CBI for inclusion in the AGENCY (703) 305–5533; e-mail address: public docket. Information not marked [email protected]. 40 CFR Part 180 confidential pursuant to 40 CFR part 2 SUPPLEMENTARY INFORMATION: [EPA–HQ–OPP–2010–0233; FRL–8841–6] may be disclosed publicly by EPA I. General Information without prior notice. Submit a copy of Choline hydroxide; Exemption from your non-CBI objection or hearing the Requirement of a Tolerance A. Does this Action Apply to Me? request, identified by docket ID number You may be potentially affected by EPA–HQ–OPP–2010–0233, by one of AGENCY: Environmental Protection this action if you are an agricultural the following methods: Agency (EPA). producer, food manufacturer, or • Federal eRulemaking Portal: http:// ACTION: Final rule. pesticide manufacturer. Potentially www.regulations.gov. Follow the on-line affected entities may include, but are instructions for submitting comments. • SUMMARY: This regulation establishes an not limited to: Mail: Office of Pesticide Programs exemption from the requirement of a • Crop production (NAICS code 111). (OPP) Regulatory Public Docket (7502P), tolerance for residues of choline • Animal production (NAICS code Environmental Protection Agency, 1200 hydroxide (CAS Reg. No. 123–41–1) 112). Pennsylvania Ave., NW., Washington, when used as an inert ingredient that • Food manufacturing (NAICS code DC 20460–0001. acts as a neutralizer in food use, acidic, 311). • Delivery: OPP Regulatory Public preharvest herbicide products. The Dow • Pesticide manufacturing (NAICS Docket (7502P), Environmental AgroSciences, LLC, has submitted a code 32532). Protection Agency, Rm. S–4400, One

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Potomac Yard (South Bldg.), 2777 S. from the requirement for a tolerance (the considered available information Crystal Dr., Arlington, VA. Deliveries legal limit for a pesticide chemical concerning the variability of the are only accepted during the Docket residue in or on a food) only if EPA sensitivities of major identifiable Facility’s normal hours of operation determines that the tolerance is ‘‘safe.’’ subgroups of consumers, including (8:30 a.m. to 4 p.m., Monday through Section 408(b)(2)(A)(ii) of FFDCA infants and children. Specific Friday, excluding legal holidays). defines ‘‘safe’’ to mean that ‘‘there is a information on the studies received and Special arrangements should be made reasonable certainty that no harm will the nature of the adverse effects caused for deliveries of boxed information. The result from aggregate exposure to the by choline hydroxide as well as the no- Docket Facility telephone number is pesticide chemical residue, including observed-adverse-effect-level (NOAEL) (703) 305–5805. all anticipated dietary exposures and all and the lowest-observed-adverse-effect- other exposures for which there is level (LOAEL) from the toxicity studies II. Petition for Exemption reliable information.’’ This includes are discussed in this unit. In the Federal Register of May 19, exposure through drinking water and in No toxicity data are available for 2010 (75 FR 28009)(FRL–9153–1), EPA residential settings, but does not include choline hydroxide. Upon contact with issued a notice pursuant to section 408 occupational exposure. Section water, choline hydroxide is expected to of FFDCA, 21 U.S.C. 346a, announcing 408(b)(2)(C) of FFDCA requires EPA to dissociate into the cationic form the filing of a pesticide petition (PP give special consideration to exposure (choline) and the anionic form 0E7686)(75 FR 28012) by Dow of infants and children to the pesticide (hydroxide ions). Choline hydroxide AgroSciences, LLC, 9330 Zionsville chemical residue in establishing a added to an acidic herbicide, forms an Road, Indianapolis, IN, 46268. The tolerance and to ‘‘ensure that there is a herbicide-choline salt product which petition requested that 40 CFR 180.920 reasonable certainty that no harm will will be sold in concentrate form. When be amended by establishing an result to infants and children from the concentrate is mixed with water exemption from the requirement of a aggregate exposure to the pesticide prior to application, the salt dissociates tolerance for residues of choline chemical residue....’’ to the cationic form (choline). Choline hydroxide (CAS Reg. No. 123–41–1) EPA establishes exemptions from the cation therefore, is the moiety of when used as an inert ingredient (a requirement of a tolerance only in those interest. Since no toxicological studies neutralizer) in acidic herbicide cases where it can be clearly are available in the literature, studies on formulations applied preharvest. That demonstrated that the risks from choline chloride and other salts were notice referenced a summary of the aggregate exposure to pesticide used for evaluating the risk from petition prepared by Dow AgroSciences, chemical residues under reasonably exposure to choline hydroxide. the petitioner, which is available in the foreseeable circumstances will pose no According to the Organisation for docket, http://www.regulations.gov. appreciable risks to human health. In Economic Co-operation and There were no comments received in order to determine the risks from Development (OECD) due to its caustic response to the notice of filing. aggregate exposure to pesticide inert nature (pH 14), acute toxicity testing of Based upon review of the data ingredients, the Agency considers the choline hydroxide would not be supporting the petition, EPA has toxicity of the inert in conjunction with appropriate (OECD Guidelines for the modified the exemption requested to possible exposure to residues of the Testing of Chemicals, Procedure 404 pesticide formulations rather than inert ingredient through food, drinking (2002); OECD Guideline for testing of herbicide formulations. water, and through other exposures that Chemicals, Procedure, 405, 2002). occur as a result of pesticide use in Choline hydroxide is known as a skin, III. Inert Ingredient Definition residential settings. If EPA is able to eye and respiratory irritant. It should be Inert ingredients are all ingredients determine that a finite tolerance is not noted here that there will be essentially that are not active ingredients as defined necessary to ensure that there is a no contact with choline hydroxide in an in 40 CFR 153.125 and include, but are reasonable certainty that no harm will end-use product. not limited to, the following types of result from aggregate exposure to the As was discussed above, the hydroxy ingredients (except when they have a inert ingredient, an exemption from the moiety dissociates and essentially pesticidal efficacy of their own): requirement of a tolerance may be ceases to exist upon mixing with water Solvents such as alcohols and established. in preparation for application and in the hydrocarbons; surfactants such as Consistent with section 408(c)(2)(A) body. The choline cation is what is left polyoxyethylene polymers and fatty of FFDCA, and the factors specified in to be considered. The Agency has acids; carriers such as clay and FFDCA section 408(c)(2)(B), EPA has extensively assessed the effects of diatomaceous earth; thickeners such as reviewed the available scientific data choline upon human systems and the carrageenan and modified cellulose; and other relevant information in environment. A summary of the wetting, spreading, and dispersing support of this action. EPA has Agency’s findings are recorded in: Final agents; propellants in aerosol sufficient data to assess the hazards of Rule, Choline Chloride; Exemption from dispensers; microencapsulating agents; and to make a determination on the Requirement of a Tolerance, EPA– and emulsifiers. The term ‘‘inert’’ is not aggregate exposure for choline HQ–OPP–2008–0671; FRL–8802–4 (75 intended to imply nontoxicity; the hydroxide including exposure resulting FR 760, January 6, 2010). Details of the ingredient may or may not be from the exemption established by this Agency’s assessment are found in: chemically active. Generally, EPA has action. EPA’s assessment of exposures Decision Document for Petition Number exempted inert ingredients from the and risks associated with choline 8E7387; Choline Chloride, CAS Reg. No requirement of a tolerance based on the hydroxide follows. 67–48–1; Memorandum, D. Sunderland, low toxicity of the individual inert RD/OPP, 16 OCT 2009. A. Toxicological Profile ingredients. Choline is an essential component of EPA has evaluated the available the human diet and acts as a precursor IV. Aggregate Risk Assessment and toxicity data and considered their to acetylcholine, phospholipids, and the Determination of Safety validity, completeness, and reliability as methyl donor betaine. It is important for Section 408(c)(2)(A)(i) of FFDCA well as the relationship of the results of the structural integrity of cell allows EPA to establish an exemption the studies to human risk. EPA has also membranes, cholinergic

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neurotransmission, transmembrane minimum concentration of 7 mg for assessed dietary exposures from choline signaling, methyl metabolism, and lipid every 100 kilocalories (21 CFR 107.100). hydroxide in food as follows: and cholesterol transport and Although one study did show Choline is a natural component of a metabolism. developmental effects, they were only variety of commonly consumed foods Choline was officially made an seen at very high doses (≥ 4,160 mg/kg/ (e.g. (per 100 g food) - eggs (251 mg), ‘‘essential nutrient’’ in 1998 and day) and only in the presence of wheat germ (152 mg), bacon (125 mg), adequate intake (AI) levels were maternal toxicity. There were no dried soybeans (116 mg), pork (103 mg), established (women - 425 milligrams/ observed adverse effects for both cod (83 mg), beef (80 mg), chicken (70 day (mg/day), pregnant women - 450 mothers and pups exposed to 1,250 mg/ mg), and salmon (65 mg)) United States mg/day, men and lactating women - 550 kg/day. Based on this information the Department of Agriculture (USDA, mg/day). The Daily Upper Intake Level Agency concluded that choline 2004). It has been added as a for choline is 3.5 grams (g) for adults. chloride, when used as an inert supplement to infant formula in the Research indicates that many ingredient, will not cause reproductive United States for decades (Politizer individuals are not getting enough or developmental toxicity and therefore, Shronts, 1997). In addition to dietary choline, with daily intake levels far does not anticipate an increased risk to consumption, choline is made below the AI. infants and children. endogenously in the human body. One study in mice evaluated the Humans are currently exposed to impact of 200 milligram/kilogram/day B. Toxicological Points of Departure/ choline on a daily basis through (mg/kg/day) choline chloride given Levels of Concern commonly eaten foods (both naturally orally or intranasally for 28 days. No Once a pesticide’s toxicological occurring and when added as a nutrient) adverse effects were observed with profile is determined, EPA identifies and through the bodies natural ability to regards to body weight, food and water toxicological points of departure (POD) synthesize the nutrient. It is unlikely consumption, hematology, clinical and levels of concern to use in that the exposure from choline chloride, biochemistry, or histopathology of evaluating the risk posed by human when used as an inert ingredient various organs (lung, heart, liver, exposure to the pesticide. For hazards applied preharvest to food commodities, spleen, and kidney). Results from that have a threshold below which there will significantly increase the natural intranasal exposure to choline chloride is no appreciable risk, the toxicological concentration of choline present in were comparable with their respective POD is used as the basis for derivation foods. Because of its high water controls and to other treatment groups. of reference values for risk assessment. solubility it is expected that most of the The no-observed-adverse-effect-level PODs are developed based on a careful inert will be washed from the plant (NOAEL) for oral and intranasally analysis of the doses in each prior to consumption. Once in water, it administered choline chloride is ≥ 200 toxicological study to determine the will be broken into in a quaternary mg/kg/day. dose at which the NOAEL and the hydroxyl alkylammonium ion and a A 72–week feeding study was LOAEL of concern are identified. chloride ion. conducted in rats administered 500 mg/ Uncertainty/safety factors are used in 2. Dietary exposure from drinking kg/day of choline chloride; the animals conjunction with the POD to calculate a water. A quantitative drinking water were observed for 30 weeks post safe exposure level – generally referred assessment was not performed because exposure. There were no significant to as a population-adjusted dose (PAD) it is expected that upon contact with differences between the control and or a reference dose (RfD) – and a safe water choline chloride will be broken treated group in relation to body margin of exposure (MOE). For non- into a quaternary hydroxyl weights, relative liver weight, survival threshold risks, the Agency assumes alkylammonium ion and a chloride ion. rates, and the number of neoplastic liver that any amount of exposure will lead Therefore, direct contact with choline nodules, hepatocellular carcinomas, to some degree of risk. Thus, the Agency hydroxide is not expected through lung tumors, leukemia, or other tumors. estimates risk in terms of the probability drinking water. This study resulted in a NOAEL of 500 of an occurrence of the adverse effect 3. From non-dietary exposure. The mg/kg/day (the highest dose tested). expected in a lifetime. For more term ‘‘residential exposure’’ is used in Choline is a precursor to the vital information on the general principles this document to refer to non- neurotransmitter acetylcholine. Studies EPA uses in risk characterization and a occupational, non-dietary exposure show that choline has beneficial effects complete description of the risk (e.g., textiles (clothing and diapers), on the nervous system and memory. assessment process, see http:// carpets, swimming pools, and hard Choline is necessary to promote proper www.epa.gov/pesticides/factsheets/ surface disinfection on walls, floors, development in the fetus and infant and riskassess.htm. tables). prevent cognitive problems. Choline No toxicological endpoints have been Occupational exposure to choline chloride is not expected to cause identified in the available toxicological chloride is expected via dermal and neurotoxicity and it is not a known database. Considering the low toxicity inhalation routes of exposure. Since an endocrine disruptor nor are its of choline chloride, its natural endpoint for risk assessment was not metabolites related to any class of occurrence, the body’s ability to identified, a quantitative occupational known endocrine disruptors. Based on synthesize the nutrient, and the and residential exposure assessment for the results of the in vitro and in vivo relatively small amount in the choline hydroxide was not conducted. studies the Agency concluded that formulation, it is not necessary to Residential (dermal and inhalation) choline chloride is not expected to be conduct a quantitative risk assessment. exposures from home garden uses are carcinogenic or mutagenic. possible. Since the 1930’s choline chloride has C. Exposure Assessment 4. Cumulative effects from substances been used as a widespread nutrient in 1. Dietary exposure from food and with a common mechanism of toxicity. animal feed without adverse effects feed uses. In evaluating dietary Section 408(b)(2)(D)(v) of FFDCA reported on fertility or teratogenicity. exposure to choline hydroxide, EPA requires that, when considering whether The Food and Drug Administration considered exposure under the to establish, modify, or revoke a (FDA) requires choline be added to non- proposed exemption from the tolerance, the Agency consider milk based infant formulas at a requirement of a tolerance. EPA ‘‘available information’’ concerning the

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cumulative effects of a particular limited. The expected exposure hydroxide (CAS Reg. No. 123–41–1) pesticide’s residues and ‘‘other pathway is via the oral and the dermal when used as an inert ingredient (in substances that have a common routes. Humans are currently exposed to acidic herbicides to act as a neutralizer]) mechanism of toxicity.’’ choline on a daily basis through in pesticide formulations applied to EPA has not found choline hydroxide commonly eaten foods (both naturally preharvest applications. to share a common mechanism of occurring and when added as a nutrient) toxicity with any other substances, and VII. Statutory and Executive Order and through the bodies natural ability to Reviews choline hydroxide does not appear to synthesize the nutrient. It is unlikely produce a toxic metabolite produced by that the exposure from choline This final rule establishes a tolerance other substances. For the purposes of hydroxide, when used as an inert under section 408(d) of FFDCA in this tolerance action, therefore, EPA has ingredient applied preharvest to food response to a petition submitted to the assumed that choline hydroxide does commodities, will significantly increase Agency. The Office of Management and not have a common mechanism of the natural concentration of choline and Budget (OMB) has exempted these types toxicity with other substances. For chloride in foods. Choline is also found of actions from review under Executive information regarding EPA’s efforts to naturally in the environment. Order 12866, entitled Regulatory determine which chemicals have a Taking into consideration all available Planning and Review (58 FR 51735, common mechanism of toxicity and to information on choline hydroxide, it has October 4, 1993). Because this final rule evaluate the cumulative effects of such been determined that there is a has been exempted from review under chemicals, see EPA’s website at http:// reasonable certainty that no harm to any Executive Order 12866, this final rule is www.epa.gov/pesticides/cumulative. population subgroup, including infants not subject to Executive Order 13211, and children, will result from aggregate entitled Actions Concerning Regulations D. Safety Factor for Infants and That Significantly Affect Energy Supply, Children exposure to this chemical. Therefore, the establishment of an exemption from Distribution, or Use (66 FR 28355, May There is no evidence of increased tolerance under 40 CFR 180.920 for 22, 2001) or Executive Order 13045, susceptibility in the available residues of choline hydroxide when entitled Protection of Children from developmental toxicity study in mice. used as an inert ingredient in pesticide Environmental Health Risks and Safety Choline is a natural component of a formulations applied to preharvest Risks (62 FR 19885, April 23, 1997). variety of commonly consumed foods. It applications of pesticides, is safe under This final rule does not contain any has been added as a supplement to information collections subject to OMB FFDCA section 408. infant formula in the United States for approval under the Paperwork decades. In addition to dietary V. Other Considerations Reduction Act (PRA), 44 U.S.C. 3501 et consumption of choline, choline is seq., nor does it require any special A. Analytical Enforcement Methodology made endogenously in the human body. considerations under Executive Order Choline is a precursor to the vital An analytical method is not required 12898, entitled Federal Actions to neurotransmitter acetylcholine. Studies for enforcement purposes since the Address Environmental Justice in show that choline has beneficial effects Agency is establishing an exemption Minority Populations and Low-Income on the nervous system and memory. from the requirement of a tolerance Populations (59 FR 7629, February 16, Choline is necessary to promote proper without any numerical limitation. 1994). Since tolerances and exemptions that development in the fetus and infant and B. International Residue Limits prevent cognitive problems. Choline are established on the basis of a petition hydroxide is not expected to cause In making its tolerance decisions, EPA under section 408(d) of FFDCA, such as neurotoxicity. Exposure to choline seeks to harmonize U.S. tolerances with the tolerance in this final rule, do not hydroxide is not expected to international standards whenever require the issuance of a proposed rule, significantly increase the pre-existing possible, consistent with U.S. food the requirements of the Regulatory levels found in commonly eaten foods. safety standards and agricultural Flexibility Act (RFA) (5 U.S.C. 601 et Due to the negligible anticipated crop practices. EPA considers the seq.) do not apply. residues and subsequent exposure, the international maximum residue limits This final rule directly regulates low toxicity of the chemical and its (MRLs) established by the Codex growers, food processors, food handlers, metabolites, and the body’s need for Alimentarius Commission (Codex), as and food retailers, not States or tribes, choline from a dietary source, EPA has required by FFDCA section 408(b)(4). nor does this action alter the determined that a quantitative risk The Codex Alimentarius is a joint U.N. relationships or distribution of power assessment using safety factors is Food and Agriculture Organization/ and responsibilities established by unnecessary. For the same reason, no World Health Organization food Congress in the preemption provisions additional safety factor for the standards program, and it is recognized of section 408(n)(4) of FFDCA. As such, protection of infants and children is as an international food safety the Agency has determined that this needed. standards-setting organization in trade action will not have a substantial direct agreements to which the United States effect on States or tribal governments, E. Aggregate Risks and Determination of is a party. EPA may establish a tolerance on the relationship between the national Safety that is different from a Codex MRL; government and the States or tribal Taking into consideration all available however, FFDCA section 408(b)(4) governments, or on the distribution of information on choline hydroxide, EPA requires that EPA explain the reasons power and responsibilities among the has determined that there is a for departing from the Codex level. various levels of government or between reasonable certainty that no harm to any The Codex has not established a MRL the Federal Government and Indian population subgroup will result from for choline hydroxide. tribes. Thus, the Agency has determined aggregate exposure to choline hydroxide that Executive Order 13132, entitled VI. Conclusions under reasonably foreseeable Federalism (64 FR 43255, August 10, circumstances. Therefore, an exemption from the 1999) and Executive Order 13175, In addition to its low toxicity, requirement of a tolerance is established entitled Consultation and Coordination exposure to choline hydroxide will be under 40 CFR 180.920 for choline with Indian Tribal Governments (65 FR

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67249, November 9, 2000) do not apply agency promulgating the rule must Dated: August 20, 2010. to this final rule. In addition, this final submit a rule report to each House of Lois Rossi, rule does not impose any enforceable the Congress and to the Comptroller Director, Registration Division, Office of duty or contain any unfunded mandate General of the United States. EPA will Pesticide Programs. as described under Title II of the submit a report containing this rule and Unfunded Mandates Reform Act of 1995 other required information to the U.S. ■ Therefore, 40 CFR part 180 is (UMRA) (Public Law 104–4). Senate, the U.S. House of amended as follows: This action does not involve any Representatives, and the Comptroller technical standards that would require General of the United States prior to PART 180—[AMENDED] Agency consideration of voluntary publication of this final rule in the ■ consensus standards pursuant to section Federal Register. This final rule is not 1. The authority citation for part 180 12(d) of the National Technology a ‘‘major rule’’ as defined by 5 U.S.C. continues to read as follows: Transfer and Advancement Act of 1995 804(2). Authority: 21 U.S.C. 321(q), 346a and 371. (NTTAA), Public Law 104–113, section List of Subjects in 40 CFR Part 180 ■ 2. In §180.920 add alphabetically the 12(d) (15 U.S.C. 272 note). following inert ingredient to the table to Environmental protection, read as follows: VIII. Congressional Review Act Administrative practice and procedure, The Congressional Review Act, 5 Agricultural commodities, Pesticides § 180.920 Inert ingredients used pre- U.S.C. 801 et seq., generally provides and pests, Reporting and recordkeeping harvest; exemptions from the requirement that before a rule may take effect, the requirements. of a tolerance.

Inert ingredients Limits Uses

******* Choline hydroxide (CAS Reg No. 123–41–1) Without limitation Neutralizer *******

[FR Doc. 2010–21544 Filed 8–31–10; 8:45 am] e.g., Confidential Business Information • Animal production (NAICS code BILLING CODE 6560–50–S (CBI) or other information whose 112). disclosure is restricted by statute. • Food manufacturing (NAICS code Certain other material, such as 311). ENVIRONMENTAL PROTECTION copyrighted material, is not placed on • Pesticide manufacturing (NAICS AGENCY the Internet and will be publicly code 32532). available only in hard copy form. This listing is not intended to be 40 CFR Part 180 Publicly available docket materials are exhaustive, but rather to provide a guide [EPA–HQ–OPP–2009–0682; FRL–8841–9] available in the electronic docket at for readers regarding entities likely to be http://www.regulations.gov, or, if only affected by this action. Other types of Spiromesifen; Pesticide Tolerances available in hard copy, at the OPP entities not listed in this unit could also Regulatory Public Docket in Rm. S– be affected. The North American AGENCY: Environmental Protection 4400, One Potomac Yard (South Bldg.), Industrial Classification System Agency (EPA). 2777 S. Crystal Dr., Arlington, VA. The (NAICS) codes have been provided to ACTION: Final rule. Docket Facility is open from 8:30 a.m. assist you and others in determining to 4 p.m., Monday through Friday, whether this action might apply to SUMMARY: This regulation establishes tolerances for residues of spiromesifen excluding legal holidays. The Docket certain entities. If you have any in or on leaf petioles subgroup 4B, dry Facility telephone number is (703) 305– questions regarding the applicability of pea seed, spearmint tops, and 5805. this action to a particular entity, consult the person listed under FOR FURTHER peppermint tops. The Interregional FOR FURTHER INFORMATION CONTACT: Research Project Number 4 (IR-4) and Andrew Ertman, Registration Division, INFORMATION CONTACT. Bayer CropScience requested these Office of Pesticide Programs, B. How Can I Get Electronic Access to tolerances under the Federal Food, Environmental Protection Agency, 1200 Other Related Information? Drug, and Cosmetic Act (FFDCA). Pennsylvania Ave., NW., Washington, You may access a frequently updated DC 20460–0001; telephone number: DATES: This regulation is effective electronic version of EPA’s tolerance (703) 308–9367; e-mail address: September 1, 2010. Objections and regulations at 40 CFR part 180 through [email protected]. requests for hearings must be received the Government Printing Office’s e-CFR on or before November 1, 2010, and SUPPLEMENTARY INFORMATION: site at http://www.gpoaccess.gov/ecfr. must be filed in accordance with the instructions provided in 40 CFR part I. General Information C. How Can I File an Objection or Hearing Request? 178 (see also Unit I.C. of the A. Does this Action Apply to Me? SUPPLEMENTARY INFORMATION). Under FFDCA section 408(g), 21 ADDRESSES: EPA has established a You may be potentially affected by U.S.C. 346a, any person may file an docket for this action under docket this action if you are an agricultural objection to any aspect of this regulation identification (ID) number EPA–HQ– producer, food manufacturer, or and may also request a hearing on those OPP–2009–0682. All documents in the pesticide manufacturer. Potentially objections. You must file your objection docket are listed in the docket index affected entities may include, but are or request a hearing on this regulation available at http://www.regulations.gov. not limited to those engaged in the in accordance with the instructions Although listed in the index, some following activities: provided in 40 CFR part 178. To ensure information is not publicly available, • Crop production (NAICS code 111). proper receipt by EPA, you must

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identify docket ID number EPA–HQ– (ppm); spearmint, tops at 25 ppm; and sensitivities of major identifiable OPP–2009–0682 in the subject line on peppermint, tops at 25 ppm (PP 0E7684) subgroups of consumers, including the first page of your submission. All and vegetable, leafy petiole, crop infants and children. objections and requests for a hearing subgroup 4B at 6.0 ppm (PP 9F7602). Spiromesifen shows low acute must be in writing, and must be The notice referenced summaries of the toxicity via the oral, dermal and received by the Hearing Clerk on or petitions prepared by Bayer inhalation routes of exposure. It was before November 1, 2010. Addresses for CropScience, the registrant, which is neither an eye nor dermal irritant, but mail and hand delivery of objections available in the docket, http:// showed moderate potential as a contact and hearing requests are provided in 40 www.regulations.gov. There were no sensitizer. In short- and long-term CFR 178.25(b). comments received in response to the animal toxicity tests, the critical effects In addition to filing an objection or notice of filing. observed were loss of body weight, hearing request with the Hearing Clerk Based upon review of the data adrenal effects (discoloration, decrease as described in 40 CFR part 178, please supporting the petition, EPA has in fine vesiculation, and the presence of submit a copy of the filing that does not recommended for tolerances levels cytoplasmic eosinophilia in zona contain any CBI for inclusion in the different from those proposed in the fasciculata cells), thyroid effects public docket. Information not marked petitions for dry pea seed, spearmint (increased thyroid stimulating hormone, confidential pursuant to 40 CFR part 2 tops, and peppermint tops. The reason increased thyroxine binding capacity, may be disclosed publicly by EPA for these changes are explained in Unit decreased T3 and T4 levels, colloidal without prior notice. Submit a copy of IV.D. alteration and thyroid follicular cell your non-CBI objection or hearing hypertrophy), liver effects (increased III. Aggregate Risk Assessment and request, identified by docket ID number alkaline phosphatase, ALT and Determination of Safety EPA–HQ–OPP–2009–0682, by one of decreased cholesterol, triglycerides), the following methods: Section 408(b)(2)(A)(i) of FFDCA and spleen effects (atrophy, decreased • Federal eRulemaking Portal: http:// allows EPA to establish a tolerance (the spleen cell count, and increased www.regulations.gov. Follow the on-line legal limit for a pesticide chemical macrophages). Spiromesifen shows no instructions for submitting comments. residue in or on a food) only if EPA significant developmental or • Mail: Office of Pesticide Programs determines that the tolerance is ‘‘safe.’’ reproductive effects, is not likely to be (OPP) Regulatory Public Docket (7502P), Section 408(b)(2)(A)(ii) of FFDCA carcinogenic based on bioassays in rats Environmental Protection Agency, 1200 defines ‘‘safe’’ to mean that ‘‘there is a and mice, and lacks in vivo and in vitro Pennsylvania Ave., NW., Washington, reasonable certainty that no harm will mutagenic effects. Spiromesifen is not DC 20460–0001. result from aggregate exposure to the considered a neurotoxic chemical based • Delivery: OPP Regulatory Public pesticide chemical residue, including on the chemical’s mode of action and Docket (7502P), Environmental all anticipated dietary exposures and all the available data from multiple studies, Protection Agency, Rm. S–4400, One other exposures for which there is including acute and subchronic Potomac Yard (South Bldg.), 2777 S. reliable information.’’ This includes neurotoxicity studies. Crystal Dr., Arlington, VA. Deliveries exposure through drinking water and in Specific information on the studies are only accepted during the Docket residential settings, but does not include received and the nature of the adverse Facility’s normal hours of operation occupational exposure. Section effects caused by spiromesifen as well (8:30 a.m. to 4 p.m., Monday through 408(b)(2)(C) of FFDCA requires EPA to as the no-observed-adverse-effect-level Friday, excluding legal holidays). give special consideration to exposure (NOAEL) and the lowest-observed- Special arrangements should be made of infants and children to the pesticide adverse-effect-level (LOAEL) from the for deliveries of boxed information. The chemical residue in establishing a toxicity studies can be found at http:// Docket Facility telephone number is tolerance and to ‘‘ensure that there is a www.regulations.gov in the document (703) 305–5805. reasonable certainty that no harm will titled ‘‘Spiromesifen: Human-Health Risk Assessment for Proposed Section 3 II. Summary of Petitioned-For result to infants and children from Uses on Leaf Petioles Subgroup 4B; Pea, Tolerance aggregate exposure to the pesticide chemical residue....’’ Dry, Seed; Spearmint, Tops; and In the Federal Register of March 24, Consistent with section 408(b)(2)(D) Peppermint, Tops’’ on pages 22 to 26 in 2010 (75 FR 14156) (FRL–8815–6), EPA of FFDCA, and the factors specified in docket ID number EPA–HQ–OPP–2009– issued a notice pursuant to section section 408(b)(2)(D) of FFDCA, EPA has 0682. 408(d)(3) of FFDCA, 21 U.S.C. reviewed the available scientific data B. Toxicological Points of Departure/ 346a(d)(3), announcing the filing of a and other relevant information in Levels of Concern pesticide petition (PP) 0E7684 by IR-4, support of this action. EPA has 500 College Road East, Suite 201 W, sufficient data to assess the hazards of Once a pesticide’s toxicological Princeton, NJ 08540 and PP 9F7602 by and to make a determination on profile is determined, EPA identifies Bayer CropScience, 2 T.W. Alexander aggregate exposure for spiromesifen toxicological points of departure (POD) Drive, P.O. Box 12014, Research including exposure resulting from the and levels of concern to use in Triangle Park, NC 27709. The petitions tolerances established by this action. evaluating the risk posed by human requested that 40 CFR 180.607 be EPA’s assessment of exposures and risks exposure to the pesticide. For hazards amended by establishing tolerances for associated with spiromesifen follows. that have a threshold below which there residues of the insecticide spiromesifen, is no appreciable risk, the toxicological 2-oxo-3-(2,4,6-trimethylphenyl)-1- A. Toxicological Profile POD is used as the basis for derivation oxaspiro[4.4]non-3-en-4-yl 3,3- EPA has evaluated the available of reference values for risk assessment. dimethylbutanoate, and its enol toxicity data and considered its validity, PODs are developed based on a careful metabolite, 4-hydroxy-3-(2,4,6- completeness, and reliability as well as analysis of the doses in each trimethylphenyl)-1-oxaspiro[4.4]non-3- the relationship of the results of the toxicological study to determine the en-2-one, calculated as parent studies to human risk. EPA has also dose at which no adverse effects are compound equivalents, in or on pea, considered available information observed (the NOAEL) and the lowest dry, seed at 0.15 parts per million concerning the variability of the dose at which adverse effects of concern

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are identified (the LOAEL). Uncertainty/ amount of exposure will lead to some assessment process, see http:// safety factors are used in conjunction degree of risk. Thus, the Agency www.epa.gov/pesticides/factsheets/ with the POD to calculate a safe estimates risk in terms of the probability riskassess.htm. exposure level – generally referred to as of an occurrence of the adverse effect A summary of the toxicological a population-adjusted dose (PAD) or a expected in a lifetime. For more endpoints for spiromesifen used for reference dose (RfD) – and a safe margin information on the general principles human risk assessment is shown in the of exposure (MOE). For non-threshold EPA uses in risk characterization and a risks, the Agency assumes that any complete description of the risk Table of this unit.

TABLE —SUMMARY OF TOXICOLOGICAL DOSES AND ENDPOINTS FOR SPIROMESIFEN FOR USE IN HUMAN HEALTH RISK ASSESSMENT

Point of Departure and Uncertainty/ Exposure/Scenario Safety Factors RfD, PAD, LOC for Risk Assessment Study and Toxicological Effects

Acute dietary (general population and all population subgroups An endpoint of concern attributable to a single dose was not identified. An aRfD was not established.

Chronic dietary (All populations) NOAEL= 2.2 mg/kg/day UFA = 10x Chronic RfD = 0.022 mg/kg/day 2-generation reproduction study in UFH = 10x cPAD = 0.022 mg/kg/day rats. FQPA SF = 1x The parental systemic LOAEL: 13.2 mg/kgbw/day based on significantly decreased spleen weight (absolute and relative in parental females and F1 males) and significantly decreased growing ovarian follicles in females.

Cancer (Oral, dermal, inhalation) Spiromesifen has been classified as ‘‘not likely to be carcinogenic to humans.’’

UFA = extrapolation from animal to human (interspecies). UFH = potential variation in sensitivity among members of the human population (intraspecies). UFL = use of a LOAEL to extrapolate a NOAEL. UFS = use of a short-term study for long-term risk assessment. UFDB = to account for the absence of data or other data deficiency. FQPA SF = Food Quality Protection Act Safety Factor. PAD = population adjusted dose (a = acute, c = chronic). RfD = reference dose. MOE = margin of exposure. LOC = level of concern.

C. Exposure Assessment greens and leafy Brassica greens for spiromesifen. As discussed above, 1. Dietary exposure from food and subgroups (4A and 5B). The tolerance for the leafy-greens and leafy Brassica feed uses. In evaluating dietary values for leafy vegetables and greens subgroups (4A and 5B) and exposure to spiromesifen, EPA spearmint and peppermint tops and oil spearmint and peppermint tops and oil, considered exposure under the were adjusted upward to account for the the residue values were adjusted petitioned-for tolerances as well as all metabolite BSN 2060-4-hydroxymethyl upward to account for the metabolite existing spiromesifen tolerances in 40 (free and conjugated), which is a residue BSN 2060-4-hydroxymethyl (free and CFR 180.607. EPA assessed dietary of concern in leafy vegetables for risk conjugated). exposures from spiromesifen in food as assessment purposes only. EPA used 2. Dietary exposure from drinking follows: data from the lettuce metabolism studies water. The Agency used screening level i. Acute exposure. Quantitative acute to create a tolerance-equivalent value for water exposure models in the dietary dietary exposure and risk assessments the parent spiromesifen and the BSN exposure analysis and risk assessment are performed for a food-use pesticide, 2060-4-hydroxymethyl metabolite to for spiromesifen in drinking water. if a toxicological study has indicated the estimate residues in leafy crops. Dietary These simulation models take into possibility of an effect of concern Exposure Evaluation Model (DEEM) account data on the physical, chemical, occurring as a result of a 1–day or single 7.81 default processing factors and 100 and fate/transport characteristics of exposure. No such effects were percent crop treated were assumed for spiromesifen. Further information identified in the toxicological studies all commodities. regarding EPA drinking water models for spiromesifen; therefore, a iii. Cancer. Based on the data used in pesticide exposure assessment quantitative acute dietary exposure summarized in Unit III.A., EPA has can be found at http://www.epa.gov/ assessment is unnecessary. concluded that spiromesifen does not oppefed1/models/water/index.htm. ii. Chronic exposure. In conducting pose a cancer risk to humans. Therefore, Based on the Pesticide Root Zone the chronic dietary exposure assessment a dietary exposure assessment for the Model /Exposure Analysis Modeling EPA used the food consumption data purpose of assessing cancer risk is System (PRZM/EXAMS) and Screening from the USDA 1994-1996 and 1998 unnecessary. Concentration in Ground Water (SCI- Cummulative Survey of Food Intake by iv. Anticipated residue and percent GROW) models the estimated drinking Individuals. As to residue levels in food, crop treated (PCT) information. EPA did water concentrations (EDWCs) of EPA assumed tolerance-level residues not use anticipated residue and/or PCT spiromesifen for chronic exposures for for all commodities except for the leafy- information in the dietary assessment non-cancer assessments are estimated to

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be 188 ppb for surface water and 86 ppb susceptibility of rats or rabbits to in will not underestimate the exposure and for ground water. utero and/or postnatal exposure to risks posed by spiromesifen. Modeled estimates of drinking water spiromesifen. In the prenatal E. Aggregate Risks and Determination of concentrations were directly entered developmental toxicity studies in rats Safety into the dietary exposure model. For and rabbits and in the 2-generation chronic dietary risk assessment, the reproduction study in rats, EPA determines whether acute and water concentration of value 188 ppb developmental toxicity to the offspring chronic dietary pesticide exposures are was used to assess the contribution to occurred at equivalent or higher doses safe by comparing aggregate exposure drinking water. than parental toxicity. estimates to the acute PAD (aPAD) and 3. From non-dietary exposure. The 3. Conclusion. EPA has determined chronic PAD (cPAD). For linear cancer term ‘‘residential exposure’’ is used in that reliable data show the safety of risks, EPA calculates the lifetime this document to refer to non- infants and children would be probability of acquiring cancer given the occupational, non-dietary exposure adequately protected if the FQPA SF estimated aggregate exposure. Short-, (e.g., for lawn and garden pest control, were reduced to 1X. That decision is intermediate-, and chronic-term risks indoor pest control, termiticides, and based on the following findings: are evaluated by comparing the flea and tick control on pets). i. The toxicity database for estimated aggregate food, water, and Spiromesifen is not registered for any spiromesifen is complete and no residential exposure to the appropriate specific use patterns that would result additional immunotoxicity or PODs to ensure that an adequate MOE in residential exposure. neurotoxicty testing is required. The exists. 4. Cumulative effects from substances rationale is described below: 1. Acute risk. An acute aggregate risk with a common mechanism of toxicity. a. Because spleen effects were seen in assessment takes into account acute Section 408(b)(2)(D)(v) of FFDCA several toxicity studies, the registrant exposure estimates from dietary requires that, when considering whether pursued specialized immunotoxicity consumption of food and drinking to establish, modify, or revoke a studies in rats and mice that were both water. No adverse effect resulting from tolerance, the Agency consider negative. These studies satisfy the a single oral exposure was identified ‘‘available information’’ concerning the revised 40 CFR part 158 requirement for and no acute dietary endpoint was cumulative effects of a particular immunotoxicity testing. In addition, the selected. Therefore, spiromesifen is not pesticide’s residues and ‘‘other endpoints selected for the risk expected to pose an acute risk. substances that have a common assessment are considered protective of 2. Chronic risk. Using the exposure mechanism of toxicity.’’ any possible immunotoxic effects. assumptions described in this unit for EPA has not found spiromesifen to b. There is no concern for chronic exposure, EPA has concluded share a common mechanism of toxicity neurotoxicity resulting from exposure to that chronic exposure to spiromesifen with any other substances, and spiromesifen. Neurotoxic effects such as from food and water will utilize 78% of spiromesifen does not appear to reduced motility, spastic gait, increased the cPAD for all infants <1 year old, the produce a toxic metabolite produced by reactivity, tremors, clonic-tonic population group receiving the greatest other substances. For the purposes of convulsions, reduced activity, labored exposure. There are no residential uses this tolerance action, therefore, EPA has breathing, vocalization, avoidance for spiromesifen. assumed that spiromesifen does not reaction, piloerection, limp, cyanosis, 3. Short- and intermediate-term risk. have a common mechanism of toxicity squatted posture, and salivation were Short-term and intermediate-term with other substances. For information observed in two studies (5–day aggregate exposure takes into account regarding EPA’s efforts to determine inhalation and subchronic oral rat) at short-term and intermediate-term which chemicals have a common high doses (134 and 536 milligrams/ residential exposure plus chronic mechanism of toxicity and to evaluate kilogram/day (mg/kg/day), respectively). exposure to food and water (considered the cumulative effects of such These effects were neither reflected in to be a background exposure level). chemicals, see EPA’s website at http:// neurohistopathology nor in other A short-term and intermediate-term www.epa.gov/pesticides/cumulative. studies. Because these effects were not adverse effect was identified; however, observed in the acute and subchronic spiromesifen is not registered for any D. Safety Factor for Infants and neurotoxicity studies, they were not use patterns that would result in short- Children considered reproducible. Thus, based term or intermediate-term residential 1. In general. Section 408(b)(2)(C) of on the chemical’s mode of action and exposure. Short-term and intermediate- FFDCA provides that EPA shall apply the available data from multiple studies, term risk is assessed based on short- an additional tenfold (10X) margin of the chemical is not considered term and intermediate-term residential safety for infants and children in the neurotoxic. exposure plus chronic dietary exposure. case of threshold effects to account for ii. There is no evidence that Because there is no short-term or prenatal and postnatal toxicity and the spiromesifen results in increased intermediate-term residential exposure completeness of the database on toxicity susceptibility in in utero rats or rabbits and chronic dietary exposure has and exposure unless EPA determines in the prenatal developmental studies or already been assessed under the based on reliable data that a different in young rats in the 2-generation appropriately protective cPAD (which is margin of safety will be safe for infants reproduction study. A developmental at least as protective as the POD used to and children. This additional margin of neurotoxicity study is not required. assess short-term and intermediate-term safety is commonly referred to as the iii. There are no residual uncertainties risk), no further assessment of short- FQPA Safety Factor (SF). In applying identified in the exposure databases. term or intermediate-term risk is this provision, EPA either retains the The dietary food exposure assessments necessary, and EPA relies on the default value of 10X, or uses a different were performed based on 100 PCT and chronic dietary risk assessment for additional safety factor when reliable tolerance-level residues. EPA made evaluating short-term and intermediate- data available to EPA support the choice conservative (protective) assumptions in term risk for spiromesifen. of a different factor. the ground and surface water modeling 4. Aggregate cancer risk for U.S. 2. Prenatal and postnatal sensitivity. used to assess exposure to spiromesifen population. Based on the lack of There is no evidence of increased in drinking water. These assessments evidence of carcinogenicity in two

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adequate rodent carcinogenicity studies, SOP to determine the appropriate This final rule does not contain any spiromesifen is not expected to pose a tolerance level. The tolerance information collections subject to OMB cancer risk to humans. spreadsheet recommended a tolerance approval under the Paperwork 5. Determination of safety. Based on of 0.20 ppm for total residues of Reduction Act (PRA), 44 U.S.C. 3501 et these risk assessments, EPA concludes spiromesifen in/on dry peas. seq., nor does it require any special that there is a reasonable certainty that Spearmint, tops and peppermint, considerations under Executive Order no harm will result to the general tops: The Agency is modifying the 12898, entitled Federal Actions to population, or to infants and children tolerances from the proposed level of 25 Address Environmental Justice in from aggregate exposure to spiromesifen ppm to 45 ppm. The adjusted field trial Minority Populations and Low-Income residues. data for mint were evaluated using the Populations (59 FR 7629, February 16, Agency’s MRL tolerance spreadsheet as 1994). IV. Other Considerations described in the Guidance for Setting Since tolerances and exemptions that A. Analytical Enforcement Methodology Pesticide Tolerances Based on Field are established on the basis of a petition Trial Data SOP to determine the under section 408(d) of FFDCA, such as Adequate enforcement methodology appropriate tolerance level. The the tolerance in this final rule, do not (high-performance liquid tolerance spreadsheet recommended a require the issuance of a proposed rule, chromatography/mass spectroscopy tolerance of 45 ppm for total residues of the requirements of the Regulatory (HPLC/MS/MS)/Method 00631/M001 spiromesifen for both spearmint and Flexibility Act (RFA) (5 U.S.C. 601 et and Method 110333) is available to peppermint tops. seq.) do not apply. enforce the tolerance expression. The Finally, EPA has revised the tolerance This final rule directly regulates method may be requested from: Chief, expression to clarify: growers, food processors, food handlers, Analytical Chemistry Branch, 1. That, as provided in FFDCA section and food retailers, not States or tribes, Environmental Science Center, 701 408(a)(3), the tolerance covers nor does this action alter the Mapes Rd., Ft. Meade, MD 20755–5350; metabolites and degradates of relationships or distribution of power telephone number: (410) 305–2905; e- spiromesifen not specifically and responsibilities established by mail address: [email protected]. mentioned; and Congress in the preemption provisions B. International Residue Limits 2. That compliance with the specified of section 408(n)(4) of FFDCA. As such, tolerance levels is to be determined by the Agency has determined that this In making its tolerance decisions, EPA measuring only the specific compounds action will not have a substantial direct seeks to harmonize U.S. tolerances with mentioned in the tolerance expression. effect on States or tribal governments, international standards whenever on the relationship between the national V. Conclusion possible, consistent with U.S. food government and the States or tribal safety standards and agricultural Therefore, tolerances are established governments, or on the distribution of practices. EPA considers the for residues of the insecticide/miticide power and responsibilities among the international maximum residue limits spiromesifen, including its metabolites various levels of government or between (MRLs) established by the Codex and degradates, determined by the Federal Government and Indian Alimentarius Commission (Codex), as measuring only the sum of spiromesifen tribes. Thus, the Agency has determined required by FFDCA section 408(b)(4). [2-oxo-3-(2,4,6-trimethylphenyl)-1- that Executive Order 13132, entitled The Codex Alimentarius is a joint U.N. oxaspiro[4.4]non-3-en-4-yl 3,3- Federalism (64 FR 43255, August 10, Food and Agriculture Organization/ dimethylbutanoate], its enol metabolite 1999) and Executive Order 13175, World Health Organization food (4-hydroxy-3-(2,4,6-trimethylphenyl)-1- entitled Consultation and Coordination standards program, and it is recognized oxaspiro[4.4]non-3-en-2-one), calculated with Indian Tribal Governments (65 FR as an international food safety as the stoichiometric equivalent of 67249, November 9, 2000) do not apply standards-setting organization in trade spiromesifen, in or on pea, dry, seed at to this final rule. In addition, this final agreements to which the United States 0.20 ppm; spearmint, tops at 45 ppm; rule does not impose any enforceable is a party. EPA may establish a tolerance peppermint, tops at 45 ppm; and leaf duty or contain any unfunded mandate that is different from a Codex MRL; petiole subgroup 4B at 6.0 ppm. as described under Title II of the however, FFDCA section 408(b)(4) Unfunded Mandates Reform Act of 1995 requires that EPA explain the reasons VI. Statutory and Executive Order Reviews (UMRA) (Public Law 104–4). for departing from the Codex level. This action does not involve any No Codex or Canadian MRLs have This final rule establishes tolerances technical standards that would require been established for spiromesifen in/on under section 408(d) of FFDCA in Agency consideration of voluntary leaf petioles subgroup 4B; pea, dry, response to a petition submitted to the consensus standards pursuant to section seed; spearmint, tops; and peppermint, Agency. The Office of Management and 12(d) of the National Technology tops. Budget (OMB) has exempted these types Transfer and Advancement Act of 1995 of actions from review under Executive C. Revisions to Petitioned-For (NTTAA), Public Law 104–113, section Order 12866, entitled Regulatory 12(d) (15 U.S.C. 272 note). Tolerances Planning and Review (58 FR 51735, Pea, dry, seed: The Agency is October 4, 1993). Because this final rule VII. Congressional Review Act modifying the tolerance from the has been exempted from review under The Congressional Review Act, 5 proposed level of 0.15 to 0.20. The Executive Order 12866, this final rule is U.S.C. 801 et seq., generally provides adjusted field trial data for dry peas not subject to Executive Order 13211, that before a rule may take effect, the were evaluated using the Agency’s entitled Actions Concerning Regulations agency promulgating the rule must maximum-likelihood estimation (MLE) That Significantly Affect Energy Supply, submit a rule report to each House of spreadsheet and then the Agency’s Distribution, or Use (66 FR 28355, May the Congress and to the Comptroller maximum-residue limit (MRL) tolerance 22, 2001) or Executive Order 13045, General of the United States. EPA will spreadsheet as described in the entitled Protection of Children from submit a report containing this rule and Guidance for Setting Pesticide Environmental Health Risks and Safety other required information to the U.S. Tolerances Based on Field Trial Data Risks (62 FR 19885, April 23, 1997). Senate, the U.S. House of

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Representatives, and the Comptroller below is to be determined by measuring ENVIRONMENTAL PROTECTION General of the United States prior to only the sum of spiromesifen [2-oxo-3- AGENCY publication of this final rule in the (2,4,6-trimethylphenyl)-1- Federal Register. This final rule is not oxaspiro[4.4]non-3-en-4-yl 3,3- 40 CFR Part 180 a ‘‘major rule’’ as defined by 5 U.S.C. dimethylbutanoate] and its metabolites [EPA–HQ–OPP–2009–0890; FRL–8840–9] 804(2). containing the 4-hydroxy-3-(2,4,6- List of Subjects in 40 CFR Part 180 trimethylphenyl)-1-oxaspiro[4.4]non-3- Bifenazate; Pesticide Tolerances en-2-one and 4-hydroxy-3-[4- Environmental protection, AGENCY: Environmental Protection Administrative practice and procedure, (hydroxymethyl)-2,6-dimethylphenyl]- Agency (EPA). 1-oxaspiro[4.4]non-3-en-2-one moieties, Agricultural commodities, Pesticides ACTION: Final rule. and pests, Reporting and recordkeeping calculated as the stoichiometric requirements. equivalent of spiromesifen, in the SUMMARY: This regulation establishes following livestock commodities: Dated: August 20, 2010. tolerances for residues of bifenazate in or on multiple commodities which are Lois Rossi, * * * * * identified and discussed later in this Director, Registration Division, Office of (b) Section 18 emergency exemptions. document. Interregional Research Pesticide Program. Time-limited tolerances specified in the Project #4 (IR-4) requested these ■ following table are established for Therefore, 40 CFR chapter I is tolerances under the Federal Food, amended as follows: residues of the insecticide/miticide Drug, and Cosmetic Act (FFDCA). This spiromesifen, including its metabolites PART 180—[AMENDED] regulation additionally deletes the time- and degradates, in or on the limited tolerance for potato, as the ■ 1. The authority citation for part 180 commodities listed below. Compliance tolerance expired on December 31, continues to read as follows: with the tolerance levels specified 2006, and deletes the time-limited Authority: 21 U.S.C. 321(q), 346a and 371. below is to be determined by measuring tolerances for tart cherry, soybean hulls, only the sum of spiromesifen [2-oxo-3- soybean meal, soybean refined oil, and (2,4,6-trimethylphenyl)-1- ■ 2. Section 180.607 is amended by soybean seed, as the tolerances expired alphabetically adding the following oxaspiro[4.4]non-3-en-4-yl 3,3- on December 31, 2009. commodities to the table in paragraph dimethylbutanoate] and 4-hydroxy-3- DATES: This regulation is effective (a)(1) and revising paragraphs (a)(1) (2,4,6-trimethylphenyl)-1- September 1, 2010. Objections and introductory text, (a)(2) introductory oxaspiro[4.4]non-3-en-2-one, calculated requests for hearings must be received text, (b) introductory text, and (d) as the stoichiometric equivalent of on or before November 1, 2010, and introductory text to read as follows: spiromesifen, in or on the specified must be filed in accordance with the agricultural commodities, resulting from instructions provided in 40 CFR part § 180.607 Spiromesifen; tolerances for use of the pesticide pursuant to FIFRA 178 (see also Unit I.C. of the residues. section 18 emergency exemptions. The SUPPLEMENTARY INFORMATION). (a) General. (1) Tolerances are tolerances expire and are revoked on the ADDRESSES: EPA has established a established for residues of the date specified in the table. docket for this action under docket insecticide/miticide spiromesifen, identification (ID) number EPA–HQ– including its metabolites and * * * * * OPP–2009–0890. All documents in the degradates, in or on the commodities (d) Indirect or inadvertent residues. docket are listed in the docket index listed below. Compliance with the Tolerances are established for the available at http://www.regulations.gov. tolerance levels specified below is to be inadvertent or indirect residues of the Although listed in the index, some determined by measuring only the sum insecticide/miticide spiromesifen, information is not publicly available, of spiromesifen [2-oxo-3-(2,4,6- including its metabolites and e.g., Confidential Business Information trimethylphenyl)-1-oxaspiro[4.4]non-3- degradates, in or on the commodities (CBI) or other information whose en-4-yl 3,3-dimethylbutanoate] and 4- listed below. Compliance with the disclosure is restricted by statute. hydroxy-3-(2,4,6-trimethylphenyl)-1- tolerance levels specified below is to be Certain other material, such as oxaspiro[4.4]non-3-en-2-one, calculated determined by measuring only the sum copyrighted material, is not placed on as the stoichiometric equivalent of of spiromesifen [2-oxo-3-(2,4,6- the Internet and will be publicly spiromesifen, in or on the following trimethylphenyl)-1-oxaspiro[4.4]non-3- available only in hard copy form. primary crop commodities: en-4-yl 3,3-dimethylbutanoate], 4- Publicly available docket materials are Commodity Parts per million hydroxy-3-(2,4,6-trimethylphenyl)-1- available in the electronic docket at oxaspiro[4.4]non-3-en-2-one, and its http://www.regulations.gov, or, if only ***** metabolites containing the 4-hydroxy-3- available in hard copy, at the OPP Leaf petiole sub- [4-(hydroxymethyl)-2,6- Regulatory Public Docket in Rm. S– group 4B ...... 6.0 dimethylphenyl]-1-oxaspiro[4.4]non-3- 4400, One Potomac Yard (South Bldg.), ***** en-2-one moiety, calculated as the 2777 S. Crystal Dr., Arlington, VA. The Pea, dry, seed ...... 0.20 Docket Facility is open from 8:30 a.m. Peppermint, tops .. 45 stoichiometric equivalent of Spearmint, tops .... 45 spiromesifen, in the following rotational to 4 p.m., Monday through Friday, ***** crop commodities: excluding legal holidays. The Docket Facility telephone number is (703) 305– * * * * * 5805. (2) Tolerances are established for [FR Doc. 2010–21686 Filed 8–31–10; 8:45 am] residues of the insecticide/miticide FOR FURTHER INFORMATION CONTACT: BILLING CODE 6560–50–S spiromesifen, including its metabolites Andrew Ertman, Registration Division and degradates, in or on the (7505P), Office of Pesticide Programs, commodities listed below. Compliance Environmental Protection Agency, 1200 with the tolerance levels specified Pennsylvania Ave., NW., Washington,

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DC 20460–0001; telephone number: as described in 40 CFR part 178, please changed the tolerances for sugar apple, (703) 308–9367; e-mail address: submit a copy of the filing that does not cherimoya, atemoya, custard apple, [email protected]. contain any CBI for inclusion in the ilama, soursop, and biriba from the SUPPLEMENTARY INFORMATION: public docket. Information not marked proposed level of 1.5 ppm to 1.6 ppm confidential pursuant to 40 CFR part 2 and for fruit, small, vine climbing I. General Information may be disclosed publicly by EPA subgroup 13–07F, except fuzzy kiwi A. Does this Action Apply to Me? without prior notice. Submit a copy of tolerance from the proposed level of .75 your non-CBI objection or hearing ppm to 1.0 ppm. The reason for these You may be potentially affected by request, identified by docket ID number changes is explained in Unit IV.D. this action if you are an agricultural EPA–HQ–OPP–2009–0890, by one of III. Aggregate Risk Assessment and producer, food manufacturer, or the following methods: pesticide manufacturer. Potentially • Federal eRulemaking Portal: http:// Determination of Safety affected entities may include, but are www.regulations.gov. Follow the on-line Section 408(b)(2)(A)(i) of FFDCA not limited to those engaged in the instructions for submitting comments. allows EPA to establish a tolerance (the following activities: • Mail: Office of Pesticide Programs legal limit for a pesticide chemical • Crop production (NAICS code 111). (OPP) Regulatory Public Docket (7502P), residue in or on a food) only if EPA • Animal production (NAICS code Environmental Protection Agency, 1200 determines that the tolerance is ‘‘safe.’’ 112). Pennsylvania Ave., NW., Washington, Section 408(b)(2)(A)(ii) of FFDCA • Food manufacturing (NAICS code DC 20460–0001. defines ‘‘safe’’ to mean that ‘‘there is a 311). • Delivery: OPP Regulatory Public reasonable certainty that no harm will • Pesticide manufacturing (NAICS Docket (7502P), Environmental result from aggregate exposure to the code 32532). Protection Agency, Rm. S–4400, One pesticide chemical residue, including This listing is not intended to be Potomac Yard (South Bldg.), 2777 S. all anticipated dietary exposures and all exhaustive, but rather to provide a guide Crystal Dr., Arlington, VA. Deliveries other exposures for which there is for readers regarding entities likely to be are only accepted during the Docket reliable information.’’ This includes affected by this action. Other types of Facility’s normal hours of operation exposure through drinking water and in entities not listed in this unit could also (8:30 a.m. to 4 p.m., Monday through residential settings, but does not include be affected. The North American Friday, excluding legal holidays). occupational exposure. Section Industrial Classification System Special arrangements should be made 408(b)(2)(C) of FFDCA requires EPA to (NAICS) codes have been provided to for deliveries of boxed information. The give special consideration to exposure assist you and others in determining Docket Facility telephone number is of infants and children to the pesticide whether this action might apply to (703) 305–5805. chemical residue in establishing a certain entities. If you have any II. Summary of Petitioned-For tolerance and to ‘‘ensure that there is a questions regarding the applicability of Tolerance reasonable certainty that no harm will this action to a particular entity, consult result to infants and children from the person listed under FOR FURTHER In the Federal Register of February 4, aggregate exposure to the pesticide INFORMATION CONTACT. 2010 (75 FR 5790) (FRL–8807–5), EPA chemical residue....’’ issued a notice pursuant to section Consistent with section 408(b)(2)(D) B. How Can I Get Electronic Access to 408(d)(3) of FFDCA, 21 U.S.C. of FFDCA, and the factors specified in Other Related Information? 346a(d)(3), announcing the filing of a section 408(b)(2)(D) of FFDCA, EPA has You may access a frequently updated pesticide petition (PP 9E7642) by reviewed the available scientific data electronic version of EPA’s tolerance Interregional Research Project #4 (IR-4), and other relevant information in regulations at 40 CFR part 180 through 500 College Road East, Suite 201W, support of this action. EPA has the Government Printing Office’s e-CFR Princeton, NJ 08540. The petition sufficient data to assess the hazards of site at http://www.gpoaccess.gov/ecfr. requested that 40 CFR 180.572 be and to make a determination on amended by establishing tolerances for aggregate exposure for bifenazate C. How Can I File an Objection or residues of the the insecticide Hearing Request? including exposure resulting from the bifenazate, (1-methylethyl 2-(4- tolerances established by this action. Under FFDCA section 408(g), 21 methoxy[1,1′-biphenyl]-3- EPA’s assessment of exposures and risks U.S.C. 346a, any person may file an yl)hydrazinecarboxylate) and associated with bifenazate follows. objection to any aspect of this regulation diazinecarboxylic acid, 2-(4-methoxy- and may also request a hearing on those [1,1′-biphenyl]-3-yl), 1-methylethyl ester A. Toxicological Profile objections. You must file your objection (expressed as bifenazate), in or on sugar EPA has evaluated the available or request a hearing on this regulation apple, cherimoya, atemoya, custard toxicity data and considered its validity, in accordance with the instructions apple, ilama, soursop, and biriba at 1.5 completeness, and reliability as well as provided in 40 CFR part 178. To ensure parts per million (ppm); avocado at 7.0 the relationship of the results of the proper receipt by EPA, you must ppm; fruit, small, vine climbing studies to human risk. EPA has also identify docket ID number EPA–HQ– subgroup 13–07F, except fuzzy kiwi considered available information OPP–2009–0890 in the subject line on fruit at 0.75 ppm; and berry, low concerning the variability of the the first page of your submission. All growing, subgroup 13–07G at 1.5 ppm. sensitivities of major identifiable objections and requests for a hearing That notice referenced a summary of the subgroups of consumers, including must be in writing, and must be petition prepared by Chemtura infants and children. received by the Hearing Clerk on or Corporation, the registrant, which is Bifenazate is not acutely toxic by the before November 1, 2010. Addresses for available in the docket, http:// oral, inhalation, or dermal routes of mail and hand delivery of objections www.regulations.gov. There were no exposure. It is minimally irritating to and hearing requests are provided in 40 comments received in response to the the eye and slightly-irritating to the CFR 178.25(b). notice of filing. skin. Bifenazate is a dermal sensitizer by In addition to filing an objection or Based upon review of the data the Magnusson/Kligman method, but hearing request with the Hearing Clerk supporting the petition, EPA has not the Buehler method. Subchronic

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and chronic studies in rats and dogs or neuropathology) in any of the that have a threshold below which there indicate that the liver and toxicology studies conducted with is no appreciable risk, the toxicological hematopoietic system (spleen and/or bifenazate. Therefore, a bifenazate POD is used as the basis for derivation bone marrow with associated developmental neurotoxicity (DNT) of reference values for risk assessment. hematological findings) are the primary study was not required by the Agency. PODs are developed based on a careful target organs in these species, with Specific information on the studies analysis of the doses in each additional toxicity in the kidney received and the nature of the adverse toxicological study to determine the (chronic dog) and adrenal gland (male effects caused by bifenazate as well as dose at which the NOAEL and the rats) also identified. Similarly, the the no-observed-adverse-effect-level LOAEL of concern are identified. hematopoietic system (spleen) was the (NOAEL) and the lowest-observed- Uncertainty/safety factors (U/SF) are primary target organ in the repeat-dose adverse-effect-level (LOAEL) from the used in conjunction with the POD to dermal toxicity study. Also associated toxicity studies can be found at http:// calculate a safe exposure level – with this toxicity in several studies were www.regulations.gov in the document generally referred to as a population- titled ‘‘Bifenazate (000586); Petition to decreased body weight, body-weight adjusted dose (PAD) or a reference dose Add New Uses on: Avocado, Tropical gain, and food consumption. No (RfD) – and a safe margin of exposure Fruits (Sugar Apple, Cherimoya, evidence of carcinogenicity was seen in (MOE). For non-threshold risks, the Atemoya, Custard Apple, Ilama, the rat and mouse studies and the Agency assumes that any amount of Soursop, and Biriba), Small Vine exposure will lead to some degree of Agency has classified bifenazate as ‘‘not Climbing Fruit (Subgroup 13–07F), and likely’’ to be a human carcinogen by any risk. Thus, the Agency estimates risk in Low-Growing Berry (Subgroup 13–07G). terms of the probability of an occurrence relevant route of exposure. A full battery HED Human-Health Risk Assessment,’’ of the adverse effect expected in a of mutagenicity studies were negative pp. 26–27 in docket ID number EPA– lifetime. For more information on the for mutagenic or clastogenic activity. HQ–OPP–2009–0890. The developmental studies in rats and general principles EPA uses in risk rabbits did not demonstrate increased B. Toxicological Points of Departure/ characterization and a complete sensitivity of fetuses to bifenazate. Levels of Concern description of the risk assessment Similarly, increased qualitative or Once a pesticide’s toxicological process, see http://www.epa.gov/ quantitative susceptibility to offspring profile is determined, EPA identifies pesticides/factsheets/riskassess.htm. were not observed with bifenazate toxicological points of departure (POD) A summary of the toxicological during pre- or postnatal development in and levels of concern (LOC) to use in endpoints for bifenazate used for human the reproduction study. There was no evaluating the risk posed by human risk assessment is shown in the Table of evidence of neurotoxicity (clinical signs exposure to the pesticide. For hazards this unit.

TABLE—SUMMARY OF TOXICOLOGICAL DOSES AND ENDPOINTS FOR BIFENAZATE FOR USE IN HUMAN HEALTH RISK ASSESSMENT

Point of Departure and Uncertainty/ RfD, PAD, LOC for Risk Assess- Exposure/Scenario Safety Factors ment Study and Toxicological Effects

Acute dietary An acute dietary endpoint was not selected based on the absence of an appropriate endpoint attributed to (all populations) a single dose.

Chronic dietary NOAEL= 1.0 milligrams/kilogram/ Chronic RfD = 0.01 mg/kg/day Chronic Toxicity in Dogs (All populations) day (mg/kg/day) UFA = 10x cPAD = 0.01 mg/kg/day LOAEL = 8.9/10.4 mg/kg/day UFH = 10x Male/Female (M/F) based on FQPA SF = 1x changes in hematological and clinical chemistry parameters, and histopathology in bone marrow, liver, and kidney in the 1–year dog feeding study.

Incidental oral short-term NOAEL= 10 mg/kg/day UFA = 10x LOC for MOE ≤100 Prenatal Developmental in Rats (1 to 30 days) UFH = 10x Maternal LOAEL = 100 mg/kg/ FQPA SF = 1x day based on clinical signs, decreased body weight and food consumption during the dosing period in the rat developmental study.

Incidental oral intermediate-term NOAEL= 0.9 mg/kg/day UFA= 10x LOC for MOE ≤100 90–Day Oral Toxicity non-Ro- (1 to 6 months) UFH= 10x dents-Dog FQPA SF = 1x LOAEL = 10.4/10.7 mg/kg/day (M/F) based on changes in hematologic parameters in the 90–day subchronic dog study.

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TABLE—SUMMARY OF TOXICOLOGICAL DOSES AND ENDPOINTS FOR BIFENAZATE FOR USE IN HUMAN HEALTH RISK ASSESSMENT—Continued

Point of Departure and Uncertainty/ RfD, PAD, LOC for Risk Assess- Exposure/Scenario Safety Factors ment Study and Toxicological Effects

Short-, Intermediate- and Long- Dermal study NOAEL = 80 mg/kg/ LOC for MOE ≤100 21–Day Dermal Toxicity-Rat Term Dermal (1–30 days, 30 day UFA = 10x LOAEL = 400 mg/kg/day based days– 6 months, and 6 months UFH = 10x on decreased body weight and to lifetime) FQPA SF = 1x food consumption, hematologic effects, increased spleen weight and extramedullary he- mapoiesis in the spleen in the 21–day dermal toxicity study in rats.

Inhalation short-term Oral study NOAEL= 10 mg/kg/day LOC for MOE ≤100 Prenatal Developmental in Rats (1 to 30 days) (inhalation absorption rate = Maternal LOAEL = 100 mg/kg/ 100%) day based on clinical signs, UFA = 10x decreased body weight and UFH = 10x food consumption during the FQPA SF = 1x dosing period in the rat developmental study.

Cancer Bifenazate is classified as ‘‘not likely’’ to be a human carcinogen. (Oral, dermal, inhalation)

C. Exposure Assessment tomato puree. The processing factors for metabolism study, EPA concluded that these commodities were based on data the formation of free hydrazines is 1. Dietary exposure from food and from processing studies. The chronic unlikely. This conclusion is further feed uses. In evaluating dietary analysis also incorporated average supported by the lack of carcinogenic exposure to bifenazate, EPA considered percent crop treated (PCT) information effects in the bifenazate carcinogenicity exposure under the petitioned-for for some registered commodities but studies. tolerances as well as all existing assumed 100 PCT for the new uses. bifenazate tolerances in 40 CFR 180.572. iv. Anticipated residue and PCT iii. Cancer. Based on the data information. Section 408(b)(2)(E) of EPA assessed dietary exposures from summarized in Unit III.A., EPA has bifenazate in food as follows: FFDCA authorizes EPA to use available concluded that bifenazate does not pose data and information on the anticipated i. Acute exposure. Quantitative acute a cancer risk to humans. Therefore, a residue levels of pesticide residues in dietary exposure and risk assessments dietary exposure assessment for the food and the actual levels of pesticide are performed for a food-use pesticide, purpose of assessing cancer risk is residues that have been measured in if a toxicological study has indicated the unnecessary. food. If EPA relies on such information, possibility of an effect of concern Bifenazate contains hydrazine as part EPA must require pursuant to FFDCA occurring as a result of a 1–day or single of its chemical structure. This side section 408(f)(1) that data be provided 5 exposure. No such effects were chain is structurally similar to years after the tolerance is established, identified in the toxicological studies unsymmetrical dimethyl hydrazine modified, or left in effect, demonstrating for bifenazate; therefore, a quantitative (UDMH), a category B2 animal that the levels in food are not above the acute dietary exposure assessment is carcinogen and possible human levels anticipated. For the present unnecessary. carcinogen. However, EPA has action, EPA will issue such data call-ins ii. Chronic exposure. In conducting concluded that formation of free as are required by FFDCA section the chronic dietary exposure assessment biphenyl hydrazine or other hydrazines 408(b)(2)(E) and authorized under EPA used the food consumption data is unlikely based on the results of FFDCA section 408(f)(1). Data will be from the United States Department of submitted metabolism studies. The rat, required to be submitted no later than Agriculture (USDA) 1994–1996 and livestock, and plant metabolism studies 5 years from the date of issuance of 1998 Continuing Survey of Food Intake indicate that metabolism of bifenazate these tolerances. by Individuals (CSFII). As to residue proceeds via oxidation of the hydrazine levels in food, EPA assumed that all moiety of bifenazate to form D3598 Section 408(b)(2)(F) of FFDCA states commodities, except squash, peach, (diazene). The D3598 is then that the Agency may use data on the tomato and milk, contained tolerance- metabolized to D1989 (methoxy actual percent of food treated for level residues. For squash, peach and biphenyl) and to bound residues by assessing chronic dietary risk only if: tomato, EPA assumed residues were reaction with natural products. A radish • Condition a: The data used are present at average field trial levels. For metabolism study which specifically reliable and provide a valid basis to milk, the tolerance level was adjusted monitored for the formation of biphenyl show what percentage of the food upward to account for all of the residues hydrazine found none. Based on the derived from such crop is likely to of concern for risk assessment. Default results of the metabolism studies, contain the pesticide residue. processing factors were assumed for all especially the absence of biphenyl • Condition b: The exposure estimate commodities except apple juice, grape hydrazine in the radish metabolism does not underestimate exposure for any juice, wine/sherry, tomato paste, and study or in the excreta of rats in the rat significant subpopulation group.

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• Condition c: Data are available on subpopulation group and allows the regarding EPA standard assumptions pesticide use and food consumption in Agency to be reasonably certain that no and generic inputs for residential a particular area, the exposure estimate regional population is exposed to exposures may be found at http:// does not understate exposure for the residue levels higher than those www.epa.gov/pesticides/trac/science/ population in such area. estimated by the Agency. Other than the trac6a05.pdf. In addition, the Agency must provide data available through national food 4. Cumulative effects from substances for periodic evaluation of any estimates consumption surveys, EPA does not with a common mechanism of toxicity. used. To provide for the periodic have available reliable information on Section 408(b)(2)(D)(v) of FFDCA evaluation of the estimate of PCT as the regional consumption of food to requires that, when considering whether required by FFDCA section 408(b)(2)(F), which bifenazate may be applied in a to establish, modify, or revoke a EPA may require registrants to submit particular area. tolerance, the Agency consider data on PCT. 2. Dietary exposure from drinking ‘‘available information’’ concerning the The Agency estimated the PCT for water. The Agency used screening level cumulative effects of a particular existing uses as follows: water exposure models in the dietary pesticide’s residues and ‘‘other Almond 5%; apple 5%; apricot 1%; exposure analysis and risk assessment substances that have a common cherry 1%; cucumber 1%; grape 5%; for bifenazate in drinking water. These mechanism of toxicity.’’ nectarine 5%; peach 10%; pear 10%; simulation models take into account EPA has not found bifenazate to share pecan 1%; pepper 1%; pistachio 1%; data on the physical, chemical, and fate/ a common mechanism of toxicity with plum 5%; strawberry 30%; tomato 1%; transport characteristics of bifenazate. any other substances, and bifenazate walnut 1%; and watermelon 1%. One Further information regarding EPA does not appear to produce a toxic hundred PCT was assumed for all new drinking water models used in pesticide metabolite produced by other uses and the remaining currently exposure assessment can be found at substances. For the purposes of this registered uses. http://www.epa.gov/oppefed1/models/ tolerance action, therefore, EPA has In most cases, EPA uses available data water/index.htm. assumed that bifenazate does not have from USDA/National Agricultural Based on the First Index Reservoir a common mechanism of toxicity with Statistics Service (USDA/NASS), Screening Tool (FIRST) and Screening other substances. For information proprietary market surveys, and the Concentration in Ground Water (SCI- regarding EPA’s efforts to determine National Pesticide Use Database for the GROW) models, the estimated drinking which chemicals have a common chemical/crop combination for the most water concentrations (EDWCs) of mechanism of toxicity and to evaluate recent 6–7 years. EPA uses an average bifenazate for chronic exposures for the cumulative effects of such PCT for chronic dietary risk analysis. non-cancer assessments are estimated to chemicals, see EPA’s website at http:// The average PCT figure for each existing be 11.2 parts per billion (ppb) for www.epa.gov/pesticides/cumulative. use is derived by combining available surface water and 0.044 ppb for ground D. Safety Factor for Infants and public and private market survey data water. for that use, averaging across all Modeled estimates of drinking water Children observations, and rounding to the concentrations were directly entered 1. In general. Section 408(b)(2)(C) of nearest 5%, except for those situations into the dietary exposure model. For FFDCA provides that EPA shall apply in which the average PCT is less than chronic dietary risk assessment, the an additional tenfold (10X) margin of one. In those cases, 1% is used as the water concentration of value 11.2 ppb safety for infants and children in the average PCT and 2.5% is used as the was used to assess the contribution to case of threshold effects to account for maximum PCT. EPA uses a maximum drinking water. prenatal and postnatal toxicity and the PCT for acute dietary risk analysis. The 3. From non-dietary exposure. The completeness of the database on toxicity maximum PCT figure is the highest term ‘‘residential exposure’’ is used in and exposure unless EPA determines observed maximum value reported this document to refer to non- based on reliable data that a different within the recent 6 years of available occupational, non-dietary exposure margin of safety will be safe for infants public and private market survey data (e.g., for lawn and garden pest control, and children. This additional margin of for the existing use and rounded up to indoor pest control, termiticides, and safety is commonly referred to as the the nearest multiple of 5%. flea and tick control on pets). Bifenazate FQPA SF. In applying this provision, The Agency believes that the three is currently registered for the following EPA either retains the default value of conditions discussed in Unit III.C.1.iv. residential non-dietary sites: 10X, or uses a different additional safety have been met. With respect to Ornamental plants, including bedding factor when reliable data available to Condition a, PCT estimates are derived plants, flowering plants, foliage plants, EPA support the choice of a different from Federal and private market survey bulb crops, perennials, trees, and factor. data, which are reliable and have a valid shrubs. There is a potential for short- 2. Prenatal and postnatal sensitivity. basis. The Agency is reasonably certain term dermal and inhalation exposure of The prenatal and postnatal toxicology that the percentage of the food treated homeowners applying bifenazate on database for bifenazate includes rat and is not likely to be an underestimation. these sites. However, post-application rabbit developmental toxicity studies As to Conditions b and c, regional exposures of adults and children from and a 2–generation reproduction consumption information and this use are expected to be negligible. toxicity study in rats. There was no consumption information for significant Therefore, EPA assessed only short-term quantitative or qualitative evidence of subpopulations is taken into account dermal and inhalation residential increased susceptibility of rats or rabbit through EPA’s computer-based model handler exposures for adults. Handler fetuses to in utero exposure in the for evaluating the exposure of exposures were estimated assuming developmental studies, nor of rats significant subpopulations including applications would be made using hose- following prenatal/postnatal exposure several regional groups. Use of this end sprayers, since this application in the 2–generation reproduction study. consumption information in EPA’s risk method is expected to result in higher 3. Conclusion. EPA has determined assessment process ensures that EPA’s exposures than other application that reliable data show the safety of exposure estimate does not understate methods, such as pump sprayers or infants and children would be exposure for any significant similar devices. Further information adequately protected if the FQPA SF

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were reduced to 1X. That decision is Further information regarding EPA aggregate chronic exposure through food based on the following findings: standard assumptions and generic and water with short-term residential • There are no residual uncertainties inputs for residential exposures may be exposures to bifenazate. in the toxicity database. The bifenazate found at http://www.epa.gov/pesticides/ Using the exposure assumptions toxicological database is complete with trac/science/trac6a05.pdf. described in this unit for short-term the exception of an inhalation study, • There is no quantitative or exposures, EPA has concluded that acute and subchronic neurotoxicity qualitative evidence of increased food, water, and residential exposures studies and an immunotoxicity study. susceptibility of rats or rabbit fetuses to aggregated result in aggregate MOEs The immunotoxicity and acute and in utero exposure in developmental greater than or equal to 1,800 for the subchronic neurotoxicity studies are studies, nor following prenatal/ U.S. population. The aggregate MOEs now required as a part of new data postnatal exposure to rats in the 2– for adults take into consideration food requirements in the 40 CFR part 158 for generation reproduction study. and drinking water exposures as well as conventional pesticide registration and • A DNT is not required because there dermal and inhalation exposures of a 28–day inhalation study has not been is no evidence of neurotoxicity or adults applying bifenazate to submitted. However, the Agency does neuropathology in the bifenazate ornamentals in residential areas. Since not believe that conducting these database. residential exposure of infants and • studies will result in a lower POD than The dietary food and drinking water children is not expected, short-term that currently used for overall risk exposure assessments will not aggregate risk for infants and children is assessment, and therefore, a database underestimate the potential exposures the sum of the risk from food and water, uncertainty factor (UFDB) is not needed for infants and children; and the which does not exceed the Agency’s to account for lack of these studies for residential use (ornamentals) is not LOC. the following reasons: expected to result in post-application 4. Intermediate-term risk. i. The toxicology database for exposure to infants and children. Intermediate-term aggregate exposure bifenazate does not indicate that the takes into account intermediate-term immune system is the primary target E. Aggregate Risks and Determination of Safety residential exposure plus chronic organ. The observed effects on the exposure to food and water (considered immune system have been well EPA determines whether acute and to be a background exposure level). characterized and were seen at dose(s) chronic dietary pesticide exposures are An intermediate-term adverse effect that produce evidence of overt systemic safe by comparing aggregate exposure was identified; however, bifenazate is toxicity. These effects included estimates to the aPAD and cPAD. For not registered for any use patterns that increased spleen weight in females and linear cancer risks, EPA calculates the would result in intermediate-term histopathological changes in the spleen lifetime probability of acquiring cancer residential exposure. Intermediate-term in males in a 90–day oral rat toxicity given the estimated aggregate exposure. risk is assessed based on intermediate- study, extramedullary hematopoiesis in Short-, intermediate-, and chronic-term term residential exposure plus chronic the both sexes in a 21–day dermal risks are evaluated by comparing the dietary exposure. Because there is no toxicity study in rats, and changes in estimated aggregate food, water, and intermediate-term residential exposure hematological parameters, clinical residential exposure to the appropriate and chronic dietary exposure has chemistry parameters in both sexes and PODs to ensure that an adequate MOE already been assessed under the histopathological effects in bone exists. appropriately protective cPAD (which is marrow (compensatory hyperplasia) in 1. Acute risk. An acute aggregate risk at least as protective as the POD used to both sexes in a 1–year chronic toxicity assessment takes into account acute assess intermediate-term risk), no study. exposure estimates from dietary further assessment of intermediate-term ii. The overall weight of evidence consumption of food and drinking risk is necessary, and EPA relies on the suggests that bifenazate does not water. No adverse effect resulting from chronic dietary risk assessment for directly target the immune system, and a single oral exposure was identified evaluating intermediate-term risk for these findings may be due to secondary and no acute dietary endpoint was bifenazate. effect of overt systemic toxicity. Further, selected. Therefore, bifenazate is not 5. Aggregate cancer risk for U.S. there is no evidence of neurotoxicity or expected to pose an acute risk. population. Based on the lack of neuropathology in the bifenazate 2. Chronic risk. Using the exposure evidence of carcinogenicity in two database. assumptions described in this unit for adequate rodent carcinogenicity studies, iii. A 28–day inhalation study is not chronic exposure, EPA has concluded bifenazate is not expected to pose a available; however, the EPA has that chronic exposure to bifenazate from cancer risk to humans. determined that the additional FQPA SF food and water will utilize 81% of the 6. Determination of safety. Based on is not needed. Residential inhalation cPAD for children 1 to 2 years old, the these risk assessments, EPA concludes risk was estimated by calculating population group receiving the greatest that there is a reasonable certainty that exposure using the Agency’s Residential exposure. Based on the explanation in no harm will result to the general Standard Operational Procedure (SOPs). Unit III.C.3., regarding residential use population, or to infants and children For chemicals with low vapor pressure patterns, chronic residential exposure to from aggregate exposure to bifenazate (7.5 x 10–5 mmHg or below for outdoor residues of bifenazate is not expected. residues. uses at 20–30°C) these standard 3. Short-term risk. Short-term assumptions are expected to aggregate exposure takes into account IV. Other Considerations overestimate the exposure via the short-term residential exposure plus A. Analytical Enforcement Methodology inhalation route. Bifenazate is such a chronic exposure to food and water compound and exposure through the (considered to be a background Adequate enforcement methodology inhalation route is expected to be exposure level). is available to enforce the tolerance minimal. Therefore, the risk estimate is Bifenazate is currently registered for expression. High-performance liquid conservative and is considered uses that could result in short-term chromatography (HPLC) Method UCC- protective and the additional FQPA SF residential exposure, and the Agency D2341 is available as a primary is not needed. has determined that it is appropriate to enforcement method for determination

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of the combined residues of bifenazate appropriate tolerance level. The results and food retailers, not States or tribes, and its metabolite, diazinecarboxylic of this determination indicate that a nor does this action alter the acid, 2-(4-methoxy-[1,1′-biphenyl]-3-yl), tolerance level of 1.6 ppm is adequate relationships or distribution of power 1-methylethyl ester (expressed as for residues of bifenazate and its and responsibilities established by bifenazate), in/on crop matrices. The metabolite (expressed as bifenazate) in/ Congress in the preemption provisions method has undergone a successful on sugar apple rather than 1.5 ppm as of section 408(n)(4) of FFDCA. As such, validation and has been forwarded to originally proposed. This determination the Agency has determined that this the Food and Drug Administration is translated to cherimoya, atemoya, action will not have a substantial direct (FDA) for inclusion in the Pesticide custard apple, ilama, soursop, and effect on States or tribal governments, Analytical Manual (PAM) Volume II. In biriba for tolerance setting purposes. on the relationship between the national addition, a method utilizing a liquid V. Conclusion government and the States or tribal chromatographic system with tandem governments, or on the distribution of mass spectrometers (LC/MS/MS) was Therefore, tolerances are established power and responsibilities among the recently submitted as a confirmatory for residues of bifenazate, (1- various levels of government or between ′ method (Method NCL ME 245) and has methylethyl 2-(4-methoxy[1,1 - the Federal Government and Indian been forwarded to FDA. The method biphenyl]-3-yl)hydrazinecarboxylate) tribes. Thus, the Agency has determined may be requested from: Chief, and diazinecarboxylic acid, 2-(4- ′ that Executive Order 13132, entitled Analytical Chemistry Branch, methoxy-[1,1 -biphenyl]-3-yl), 1- Federalism (64 FR 43255, August 10, Environmental Science Center, 701 methylethyl ester (expressed as 1999) and Executive Order 13175, Mapes Rd., Ft. Meade, MD 20755–5350; bifenazate), in or on sugar apple, entitled Consultation and Coordination telephone number: (410) 305–2905; e- cherimoya, atemoya, custard apple, with Indian Tribal Governments (65 FR mail address: [email protected]. ilama, soursop, and biriba at 1.6 ppm; 67249, November 9, 2000) do not apply avocado at 7.0 ppm; fruit, small, vine B. International Residue Limits to this final rule. In addition, this final climbing subgroup 13–07F, except fuzzy rule does not impose any enforceable In making its tolerance decisions, EPA kiwi fruit at 1.0 ppm; and berry, low duty or contain any unfunded mandate seeks to harmonize U.S. tolerances with growing, subgroup 13–07G at 1.5 ppm. as described under Title II of the international standards whenever VI. Statutory and Executive Order Unfunded Mandates Reform Act of 1995 possible, consistent with U.S. food Reviews (UMRA) (Public Law 104–4). safety standards and agricultural practices. EPA considers the This final rule establishes tolerances This action does not involve any international maximum residue limits under section 408(d) of FFDCA in technical standards that would require (MRLs) established by the Codex response to a petition submitted to the Agency consideration of voluntary Alimentarius Commission (Codex), as Agency. The Office of Management and consensus standards pursuant to section required by FFDCA section 408(b)(4). Budget (OMB) has exempted these types 12(d) of the National Technology The Codex Alimentarius is a joint of actions from review under Executive Transfer and Advancement Act of 1995 United Nations Food and Agriculture Order 12866, entitled Regulatory (NTTAA), Public Law 104–113, section Organization/World Health Planning and Review (58 FR 51735, 12(d) (15 U.S.C. 272 note). Organization food standards program, October 4, 1993). Because this final rule VII. Congressional Review Act and it is recognized as an international has been exempted from review under food safety standards-setting Executive Order 12866, this final rule is The Congressional Review Act, 5 organization in trade agreements to not subject to Executive Order 13211, U.S.C. 801 et seq., generally provides which the United States is a party. EPA entitled Actions Concerning Regulations that before a rule may take effect, the may establish a tolerance that is That Significantly Affect Energy Supply, agency promulgating the rule must different from a Codex MRL; however, Distribution, or Use (66 FR 28355, May submit a rule report to each House of FFDCA section 408(b)(4) requires that 22, 2001) or Executive Order 13045, the Congress and to the Comptroller EPA explain the reasons for departing entitled Protection of Children from General of the United States. EPA will from the Codex level. Environmental Health Risks and Safety submit a report containing this rule and There are currently no established Risks (62 FR 19885, April 23, 1997). other required information to the U.S. Codex or Mexican MRLs for bifenazate This final rule does not contain any Senate, the U.S. House of on the commodities included in the information collections subject to OMB Representatives, and the Comptroller subject petition; however, Canadian approval under the Paperwork General of the United States prior to MRLs are established for residues of Reduction Act (PRA), 44 U.S.C. 3501 et publication of this final rule in the bifenazate and its metabolite seq., nor does it require any special Federal Register. This final rule is not diazinecarboxylic acid, 2-(4-methoxy- considerations under Executive Order a ‘‘major rule’’ as defined by 5 U.S.C. [1,1′-biphenyl]-3-yl, 1-methylethyl ester 12898, entitled Federal Actions to 804(2). in or on strawberry at 1.5 ppm, grapes Address Environmental Justice in List of Subjects in 40 CFR Part 180 at 1.0 ppm and raisins at 1.2 ppm. Thus, Minority Populations and Low-Income the tolerance expression is harmonized; Populations (59 FR 7629, February 16, Environmental protection, and the MRL/tolerance levels for 1994). Administrative practice and procedure, residues in strawberry, raisins and Since tolerances and exemptions that Agricultural commodities, Pesticides grapes are harmonized. are established on the basis of a petition and pests, Reporting and recordkeeping under section 408(d) of FFDCA, such as requirements. C. Revisions to Petitioned-For the tolerance in this final rule, do not Dated: August 20, 2010. Tolerances require the issuance of a proposed rule, Lois Rossi, The residue data for sugar apple were the requirements of the Regulatory entered into the Agency’s tolerance Flexibility Act (RFA) (5 U.S.C. 601 et Director, Registration Division, Office of Pesticide Programs. spreadsheet using the Guidance for seq.) do not apply. Setting Pesticide Tolerances Based on This final rule directly regulates ■ Therefore, 40 CFR chapter I is Field Trial Data SOP to determine an growers, food processors, food handlers, amended as follows:

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PART 180—[AMENDED] Commodity Parts per million Commodity Parts per million ■ 1. The authority citation for part 180 ***** ***** continues to read as follows: Atemoya ...... 1.6 Fruit, small, vine climbing Authority: 21 U.S.C. 321(q), 346a and 371. Avocado ...... 7.0 subgroup 13–07F, ex- ■ 2. Section 180.572 is amended by: ***** cept fuzzy kiwifruit ...... 1.0 ■ i. Alphabetically adding commodities Berry, low-growing sub- ***** to the table in paragraph (a)(1), and group 13–07G ...... 1.5 Ilama ...... 1.6 ■ ii. Revising the table in paragraph (b), Biriba ...... 1.6 ***** Soursop ...... 1.6 ***** so the amendments to paragraphs (a)(1) ***** Cherimoya ...... 1.6 and (b) read as follows: Sugar apple ...... 1.6 ***** ***** § 180.572 Bifenazate; tolerance for Custard apple ...... 1.6 residues. (a)(1)*** (b)***

Expiration/Rev- Commodity Parts per million ocation Date

Timothy, forage ...... 50 12/31/10 Timothy, hay ...... 150 12/31/10

[FR Doc. 2010–21719 Filed 8–31–10; 8:45 am] annually reviews the Hazardous 5101 et seq., and violations of BILLING CODE 6560–50–S Materials Regulations (HMR; 49 CFR regulations issued pursuant to that law. parts 171–180) to identify typographical Those maximum and minimum and other errors, outdated addresses or penalties were most recently adjusted DEPARTMENT OF TRANSPORTATION other contact information, and similar on December 29, 2009 (74 FR 68701) to errors. In this final rule, we are consider the effects of inflation since Pipeline and Hazardous Materials correcting typographical errors, reauthorization of the Federal hazardous Safety Administration incorrect CFR references and citations, material transportation law in August inconsistent use of terminology, 2005. We found that the inflation 49 CFR Parts 107, 171, 172, 173, 176, misstatements of certain regulatory adjustment in the Federal Civil 177, 179, and 180 requirements and inadvertent omissions Penalties Inflation Adjustment Act (28 [Docket No. PHMSA–2010–0195 (HM–244C)] of information. Because these U.S.C. 2461 note) (the Act)—the change amendments do not impose new in the CPI–U over the prescribed RIN 2137–AE61 requirements, notice and public period—was 12.5%, but that the Act comment procedures are unnecessary. limited the adjustment of the maximum Hazardous Materials: Minor Editorial By making these amendments effective and minimum civil penalties to 10%. Corrections and Clarifications without the customary 30-day delay These adjusted maximum and minimum AGENCY: Pipeline and Hazardous following publication, the changes will civil penalties apply to any violation Materials Safety Administration appear in the next revision of the 49 occurring on or after January 1, 2010. (PHMSA), DOT. CFR. More recently, it has been called to ACTION: Final rule. II. Section by Section Review our attention that we did not apply the ‘‘rounding’’ requirement in Section 5 of SUMMARY: This final rule corrects The following is a summary by the Act in making adjustments to the editorial errors, makes minor regulatory section of the minor editorial minimum civil penalty amounts. changes and, in response to requests for corrections and clarifications made in Applying the 12.5% increase in the clarification, improves the clarity of this final rule. The summary does not CPI–U to the $450 minimum penalty for certain provisions in the Hazardous include minor editorial corrections such a violation related to training produces Materials Regulations. The intended as punctuation errors or similar minor an increase of $56.25, which would be effect of this rule is to enhance the revisions. rounded to $100—except for the accuracy and reduce misunderstandings Part 107 limitation in the Act that the initial of the regulations. The amendments adjustment may not exceed 10%. Thus, contained in this rule are non- Section 107.117 the adjusted minimum penalty of $495 substantive changes and do not impose This section sets forth conditions and for a violation related to training was new requirements. procedures for emergency processing for correct. However, when the $250 DATES: Effective Date: October 1, 2010. an application for a special permit. The minimum penalty amount for other FOR FURTHER INFORMATION CONTACT: daytime telephone number for the violations is increased by 12.5%, the Deborah Boothe, Office of Hazardous Federal Motor Carrier Administration in result would be an increase of $31.25, Materials Standards, 202–366–8553, paragraph (d)(3) is no longer correct. which must be rounded to the nearest PHMSA, East Building, PHH–10, 1200 Accordingly, we are revising this $100—or $0. Thus, we should have left New Jersey Avenue, SE., Washington, contact number. the minimum civil penalty for other DC 20590. violations at $250. Accordingly, we are Section 107.329 SUPPLEMENTARY INFORMATION: correcting this error in both § 107.329 This section sets forth the maximum and § 171.1(g). PHMSA does not believe I. Background and minimum civil penalties for that the improper $275 civil penalty The Pipeline and Hazardous Materials violations of the Federal hazardous amount has been used in any Safety Administration (PHMSA) material transportation law, 49 U.S.C. enforcement case arising out of

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violations that occurred on or after reported in columns 5, 6, 7, 8a, 8b, and and Division 4.1 would apply to January 1, 2010, and we will continue 9a. quantities that require placarding under to use the proper $250 amount in such § 172.504(c). This reference is not clear Section 172.604 enforcement cases that have arisen since and is inconsistent with previous that date. This section prescribes requirements references to ‘‘quantities that require for providing the emergency response placarding under the provisions of Part 171 telephone number on hazardous Subpart F of Part 172.’’ Therefore, to Section 171.6 materials shipping papers. As amended clarify the first two errors, we are in the final rule, ‘‘Revision of revising § 172.800(b)(2) and (b)(7) to Section 171.6 consolidates and Requirements for Emergency Response remove the reference to ‘‘§ 172.504(c)’’ displays the control numbers assigned Telephone Numbers,’’ HM–206F, and replacing it to read ‘‘subpart F of to the HMR collections of information published October 19, 2009 (74 FR this part.’’ by the Office of Management and 53413), we are correcting § 172.604(b)(1) The third error is closely related to Budget (OMB) under the Paperwork by adding the word ‘‘information’’ to the the first two errors. We indicated, in the Reduction Act of 1995. This section phrase ‘‘emergency response provider’’ final rule, that the security planning complies with the requirements of 5 so that it reads ‘‘emergency response requirements for Division 4.3 materials CFR 1320.7(f), 1320.12, 1320.13 and information provider (ERI provider).’’ In would continue to require security 1320.14 (OMB regulations the October 19, 2009 final rule, the word plans for ‘‘any quantity’’ of Division 4.3 implementing the Paperwork Reduction ‘‘information’’ was inadvertently omitted materials. Again, this reference is not Act of 1995) for the display of control during the printing of the regulatory clear and is inconsistent with previous numbers assigned by OMB to text. references to ‘‘quantities that require In paragraphs (b)(1) and (b)(2), we are collections of information of the HMR. placarding under the provisions of clarifying the term ‘‘contract number’’ by In paragraph (b)(2), the table of OMB Subpart F of Part 172.’’ Therefore, to adding the wording ‘‘or other unique control numbers is revised to update correct this error we are revising identifier assigned by the ERI provider’’ affected sections for OMB control § 172.800(b)(9) to read ‘‘any quantity of to clarify that the term ‘‘contract numbers 2137–0022 and 2137–0572. a Division 4.3 material requiring number’’ identifies the registrant to the placarding in accordance with subpart F Section 171.7 ERI provider. This clarification should of this part,’’ as intended in the final serve to avoid confusion when an ERI Paragraph (b) of § 171.7 lists materials rule to HM–232F. that are ‘‘informational materials not provider may be using the term requiring incorporation by reference’’ ‘‘contract number’’ for another purpose. Part 173 In paragraph (b)(2), we are also into the HMR. In the preamble to the Section 173.27 HM–244A final rule published in the clarifying that the person who is Federal Register on October 1, 2008 registered with the emergency response This section specifies general (73 FR 57001), we stated that the provider must be identified by name or requirements for packaging hazardous Compressed Gas Association’s (CGA) contract number on the shipping paper materials for transportation by aircraft. publication CGA C–1.1, Personnel immediately before, after, above, or The reference to § 171.11 in paragraph Training and Certification Guidelines below the emergency response (f) is no longer valid. Therefore, PHMSA for Cylinder Requalification By the telephone number in a prominent, is correcting this error by revising Volumetric Expansion Method, could be readily identifiable, and clearly visible paragraph (f) to remove the reference to used as guidance material to assist manner that allows the information to § 171.11 and replacing it with a cylinder requalifiers in setting up their be easily and quickly found unless the reference to § 171.22. name or identifier is entered elsewhere training procedures and was not to be Section 173.171 considered as a stand alone tool for in a prominent manner in accordance training persons on how to perform with paragraph (b)(1). This section prescribes requirements for smokeless powder for small arms. requalification of cylinders using the Section 172.800 volumetric expansion test method. In The entry ‘‘Smokeless powder for small that final rule, we also stated we were This section prescribes hazardous arms (100 pounds or less),’’ NA3178 is removing the entries in §§ 171.7(b) and materials security plan requirements. In only applicable to U.S. transportation as ‘‘ 180.205(g)(6) that refer to the a final rule, Risk-Based Adjustment of indicated by the ‘‘D’’ in column 1 of the publication. However, due to an Transportation Security Plan HMT. Therefore, in § 173.171, the ’’ oversight, the amendatory language was Requirements, HM–232F, published introductory text is revised to clarify inadvertently omitted. Therefore, in this March 9, 2010 (75 FR 10974), there were that the provisions of this section final rule, we are removing the entry for three drafting errors. First, we indicated applies to domestic transportation only. that ‘‘the security planning requirement CGA C–1.1 from § 171.7(b) and Section 173.314 paragraph (g)(6) from § 180.205. will apply, as it does now, to all Division 1.4 explosives transported in This section prescribes requirements Part 172 quantities that require placarding under for transporting compressed gases in ’’ Section 172.101 Subpart F of Part 172 of the HMR. tank cars and multi-unit tank cars. For However, in the regulatory text to the the entry ‘‘Chlorine,’’ column 2 of the This section contains the Hazardous final rule we referenced § 172.504(c) in table entitled ‘‘Outage and filling limits’’ Materials Table (HMT) and explanatory place of Subpart F of Part 172. As a refers to ‘‘Note 13’’. There is no ‘‘Note text for each of the columns in the table. result, the changes may be interpreted to 13.’’ To correct this error, the reference Some of the information for the entry require placards for certain Division to ‘‘Note 13’’ in column 2 of the table, ‘‘Helium, compressed, UN1046’’ in the 1.4S materials that fall under is removed. In addition, for the entries HMT was reported under the incorrect § 172.504(f)(6). This was not our intent. ‘‘Hydrogen Sulphide’’ and ‘‘Hydrogen columns. In this final rule, we are Second, we indicated, in the final rule, sulphide, liquefied’’ column 1 of the revising the entry ‘‘Helium, compressed, that the security planning requirement table reflects the international spelling UN1046’’ by correcting the information for desensitized explosives in Class 3 while the proper shipping name entries

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in the § 172.101 HMT reflect the commerce. The purpose of this final a substantial number of small entities. domestic spelling of ‘‘Hydrogen sulfide.’’ rule is to remove unnecessary cross This rule makes minor editorial changes Both spellings are authorized in references to the hazardous materials which will not impose any new accordance with § 172.101(c)(1). table, correct mailing addresses, requirements on persons subject to the However, we are revising the entries in grammatical and typographical errors, HMR; thus, there are no direct or the § 173.314 table to read ‘‘Hydrogen and, in response to requests for indirect adverse economic impacts for Sulfide’’ and ‘‘Hydrogen sulfide, clarification, improve the clarity of small units of government, businesses, liquefied’’ to be consistent with the certain provisions in the Hazardous or other organizations. spelling in the § 172.101 HMT. Materials Regulations. F. Unfunded Mandates Reform Act of Part 176 B. Executive Order 12866 and DOT 1995 Regulatory Policies and Procedures Section 176.54 This rule does not impose unfunded This section prescribes requirements This final rule is not considered a mandates under the Unfunded for repairs involving welding, burning, significant regulatory action under Mandates Reform Act of 1995. It does and power-actuated tools and section 3(f) of Executive Order 12866 not result in costs of $141.3 million or appliances. We are revising paragraph and, therefore, was not reviewed by the more to either State, local, or Tribal (b)(1) to correct the reference to 33 CFR Office of Management and Budget. This governments, in the aggregate, or to the 126.15(c) to read 33 CFR 126.30. rule is not significant under the private sector, and is the least Regulatory Policies and Procedures of burdensome alternative that achieves Part 177 the Department of Transportation (44 FR the objectives of the rule. Section 177.843 11034). This final rule does not impose new or revised requirements for G. Paperwork Reduction Act This section prescribes requirements hazardous materials shippers or carriers; for surveying for contamination on There are no new information therefore, it is not necessary to prepare collection requirements in this final motor vehicles used to transport Class 7 a regulatory impact analysis. radioactive materials under exclusive rule. use conditions. We are revising C. Executive Order 13132 H. Environmental Impact Analysis paragraph (a) to correct the reference to This final rule has been analyzed in ‘‘§ 173.427(b)(3) or (c) or § 173.443(c)’’ to accordance with the principles and There are no environmental impacts read ‘‘§ 173.427(b)(4) or (c) or criteria in Executive Order 13132 associated with this final rule. § 173.443(c)’’ to correct a typographical (‘‘Federalism’’). This final rule does not I. Regulation Identifier Number (RIN) error. adopt any regulation that: (1) Has A regulation identifier number (RIN) Part 179 substantial direct effects on the States, the relationship between the national is assigned to each regulatory action Appendix B government and the States, or the listed in the Unified Agenda of Federal 49 CFR part 179, appendix B distribution of power and Regulations. The Regulatory Information prescribes procedure for the ‘‘Simulated responsibilities among the various Service Center publishes the Unified Pool and Torch Fire Test.’’ PHMSA is levels of government; or (2) imposes Agenda in April and October of each correcting an error in the pool and torch substantial direct compliance costs on year. The RIN number contained in the fire test requirements. The conversion State and local governments. PHMSA is heading of this document can be used that was used to establish the tolerances not aware of any State, local, or Indian to cross-reference this action with the for the flame temperatures was Tribe requirements that would be Unified Agenda. incorrect. A temperature conversion was preempted by correcting editorial errors List of Subjects made. However, a factor of 1.8 should and making minor regulatory changes. have been used to convert between This final rule does not have sufficient 49 CFR Part 107 degrees Fahrenheit and degrees Celsius. federalism impacts to warrant the Administrative practice and The temperature requirements should preparation of a federalism assessment. procedure, Hazardous materials ° ° ¥ ° read 871 C (1600 F) +/ 55.6 C D. Executive Order 13175 transportation, Penalties, Reporting and (132.08 °F). recordkeeping requirements. This final rule has been analyzed in Part 180 accordance with the principles and 49 CFR Part 171 Section 180.213 criteria contained in Executive Order 13175 (‘‘Consultation and Coordination Exports, Hazardous materials This section prescribes requirements with Indian Tribal Governments’’). transportation, Hazardous waste, for requalification markings for Because this final rule does not have Imports, Reporting and recordkeeping cylinders. Tribal implications, does not impose requirements. We are revising paragraph (d)(2) to substantial direct compliance costs on correct the reference to § 173.301(l) to 49 CFR Part 172 Indian Tribal governments, and does not read § 171.23(a)(4). preempt Tribal law, the funding and Education, Hazardous materials III. Regulatory Analyses and Notices consultation requirements of Executive transportation, Hazardous waste, Order 13175 do not apply, and a Tribal Labeling, Packaging and containers, A. Statutory Authority summary impact statement is not Reporting and recordkeeping This final rule is published under required. requirements. authority of 49 U.S.C. 5103(b), which 49 CFR Part 173 authorizes the Secretary of E. Regulatory Flexibility Act, Executive Transportation to prescribe regulations Order 13272, and DOT Procedures and Hazardous materials transportation, for the safe transportation, including Policies Packaging and containers, Radioactive security, of hazardous material in I certify that this final rule will not materials, Reporting and recordkeeping intrastate, interstate, and foreign have a significant economic impact on requirements, Uranium.

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49 CFR Part 176 PART 107–HAZARDOUS MATERIALS PART 171—GENERAL INFORMATION, PROGRAM PROCEDURES REGULATIONS, AND DEFINITIONS Hazardous materials transportation, Segregation, Handling and stowage, ■ 1. The authority citation for part 107 ■ 4. The authority citation for part 171 Maritime carriers. continues to read as follows: continues to read as follows: 49 CFR Part 177 Authority: 49 U.S.C. 5101–5129, 44701; 49 Authority: 49 U.S.C. 5101–5128, 44701; 49 CFR 1.45 and 1.53; Pub. L. 101–410 section CFR 1.45 and 1.53; Pub. L. 101–410 section Hazardous materials transportation, 4 (28 U.S.C. 2461 note); Pub. L. 104–134 4 (28 U.S.C. 2461 note), Pub. L. 104–134 Loading and unloading, Segregation and section 31001. section 31001. separation. § 171.1 [Amended] 49 CFR Part 179 § 107.117 [Amended] ■ 5. In § 171.1, in paragraph (g), the ■ 2. In § 107.117, in paragraph (d)(3), Hazardous materials transportation, wording ‘‘$275’’ is removed and the ‘‘ ’’ Rail car specifications. the phone number 202–366–6121 is wording ‘‘$250’’ is added. removed and the phone number ‘‘202– ■ 6. In § 171.6, the table in paragraph 49 CFR Part 180 385–2400’’ is added in its place. (b)(2) is amended by revising the entries Hazardous materials transportation, § 107.329 [Amended] for ‘‘2137–0022’’ and ‘‘2137–0572’’ to Motor carriers, Motor vehicle safety, read as follows: Packaging and containers, Railroad ■ 3. In § 107.329, in paragraphs (a) and ‘‘ ’’ § 171.6 Control numbers under the safety, Reporting and recordkeeping (b), the figure $275 is removed and the Paperwork Reduction Act. requirements. figure ‘‘$250’’ is added in its place. * * * * * ■ In consideration of the foregoing, 49 (b) * * * CFR chapter I is amended as follows: (2) Table.

Current OMB control No. Title Title 49 CFR part or section where identified and described

******* 2137–0022 ...... Testing, Inspection, and Marking Re- §§ 173.5b, 173.302a, 173.303, 173.304, 173.309, 178.2, 178.3, 178.35, 178.44, quirements for Cylinders. 178.45, 178.46, 178.57, 178.59, 178.60, 178.61, 178.68, 180.205, 180.207, 180.209, 180.211, 180.213, 180.215, 180.217, Appendix C to Part 180.

******* 2137–0572 ...... Testing requirements for non-bulk pack- §§ 173.168, 178.2, 178.601, Appendix C to Part 178, Appendix D to Part 178. ages.

§ 171.7 [Amended] PART 172—HAZARDOUS MATERIALS Authority: 49 U.S.C. 5101–5128; 44701; 49 ■ 7. In the table in paragraph (b) of TABLE, SPECIAL PROVISIONS, CFR 1.53. § 171.7, the entry ‘‘Compressed Gas HAZARDOUS MATERIALS ■ 9. In § 172.101, in the Hazardous Association, Inc., 4221 Walney Road, COMMUNICATIONS, EMERGENCY Materials Table, the entry for ‘‘Helium, 5th Floor, Chantilly, Virginia 20151, RESPONSE INFORMATION, TRAINING compressed’’ is revised to read as REQUIREMENTS, AND SECURITY CGA C–1.1, Personnel Training and follows. Certification Guidelines for Cylinder PLANS Requalification By the Volumetric * * * * * Expansion Method, 2004, First Edition’’ ■ 8. The authority citation for part 172 is removed. continues to read as follows:

(8) Packaging (§ 173.***) (9) Quantity limitations (10) Vessel Hazardous mate- (see §§ 173.27 and stowage rials descriptions Hazard Identifica- Label Special 175.75) Symbols and proper shipping class or tion Nos. PG codes provisions Excep- Non- names division (§ 172.102) tions bulk Bulk Passenger Cargo air- Location Other aircraft/rail craft only

(1) (2) (3) (4) (5) (6) (7) (8A) (8B) (8C) (9A) (9B) (10A) (10B)

******* Helium, com- 2.2 UN1046 ...... 2.2 ...... 306 302 302, 75 kg ...... 150 kg ..... A ...... 85 pressed. 314

*******

* * * * * October 22, 2009, paragraphs (b)(1) and (b) * * * (b)(2) are revised to read as follows: (1) The number of the person offering ■ 10. In § 172.604, as amended October the hazardous material for 19, 2009, at 74 FR 53422, effective § 172.604 Emergency response telephone transportation when that person is also November 18, 2009, and delayed until number. the emergency response information October 1, 2010, at 74 FR 54489, * * * * * provider (ERI provider). The name of

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the person, or contract number or other ■ 13. In § 173.27, paragraph (f) § 177.843 Contamination of vehicles. unique identifier assigned by an ERI introductory text is revised to read as (a) Each motor vehicle used for provider, identified with the emergency follows: transporting Class 7 (radioactive) response telephone number must be materials under exclusive use entered on the shipping paper § 173.27 General requirements for transportation by aircraft. conditions in accordance with immediately before, after, above, or § 173.427(b)(4) or (c) or § 173.443(c) of below the emergency response * * * * * this subchapter must be surveyed with telephone number unless the name is (f) Combination packaging. Unless radiation detection instruments after entered elsewhere on the shipping otherwise specified in this part, or in each use. A vehicle may not be returned paper in a prominent, readily § 171.22 of this subchapter, when to service until the radiation dose rate identifiable, and clearly visible manner combination packaging are offered for at every accessible surface is 0.005 mSv that allows the information to be easily transportation aboard aircraft, inner per hour (0.5 mrem per hour) or less and and quickly found; or packaging must conform to the quantity the removable (non-fixed) radioactive (2) The number of an agency or limitations set forth in table 1 of this surface contamination is not greater organization capable of, and accepting paragraph for transport aboard than the level prescribed in § 173.443(a) responsibility for, providing the detailed passenger-carrying aircraft and table 2 of of this subchapter. information required by paragraph (a)(2) this paragraph for transport aboard * * * * * of this section. The person who is cargo aircraft only, as follows: registered with the ERI provider must * * * * * PART 179—SPECIFICATIONS FOR ensure that the agency or organization ■ 14. In § 173.171, the introductory text TANK CARS has received current information on the is revised to read as follows: material before it is offered for ■ 20. The authority citation for part 179 transportation. The person who is § 173.171 Smokeless powder for small continues to read as follows: registered with the ERI provider must be arms. Authority: 49 U.S.C. 5101–5127; 49 CFR identified by name, or contract number Smokeless powder for small arms part 1.53. or other unique identifier assigned by which has been classed in Division 1.3 ■ 21. In Appendix B to Part 179, the ERI provider, on the shipping paper may be reclassed in Division 4.1, for immediately before, after, above, or paragraph 2. a. (1) is revised to read as domestic transportation by motor follows: below the emergency response vehicle, rail car, vessel, or cargo-only telephone number in a prominent, aircraft, subject to the following Appendix B to Part 179, Procedures for readily identifiable, and clearly visible conditions: Simulated Pool and Torch Fire Testing manner that allows the information to * * * * * * * * * * be easily and quickly found, unless the 2. Simulated pool fire test. name or identifier is entered elsewhere § 173.314 [Amended] a. * * * in a prominent manner as provided in ■ (1) The source of the simulated pool fire paragraph (b)(1) of this section. 15. In § 173.314, in the table in paragraph (c), in column 1, the entries must be hydrocarbon fuel with a flame * * * * * temperature of 871 °C (1600 °F) plus-or- for ‘‘Hydrogen Sulphide’’ and ‘‘Hydrogen ° ° ■ 11. In § 172.800, paragraphs (b)(2), (7), minus 55.6 C (132.08 F), throughout the sulphide, liquefied’’ are removed and duration of the test. and (9), as amended March 9, 2010, at ‘‘Hydrogen sulfide’’ and ‘‘Hydrogen 75 FR 10988, effective October 1, 2010, sulfide, liquefied’’ are added in their PART 180—CONTINUING are revised to read as follows: place; and in column 2 of the table, for QUALIFICATION AND MAINTENANCE § 172.800 Purpose and applicability. the entry ‘‘Chlorine’’, the reference to OF PACKAGINGS ‘‘Notes 6, 13’’ is removed and the * * * * * reference ‘‘Note 6’’ is added in its place. ■ 22. The authority citation for part 180 (b) * * * continues to read as follows: (2) A quantity of a Division 1.4, 1.5, PART 176—CARRIAGE BY VESSEL or 1.6 material requiring placarding in Authority: 49 U.S.C. 5101–5128; 49 CFR 1.53. accordance with subpart F of this part; ■ 16. The authority citation for part 176 * * * * * continues to read as follows: ■ 23. In § 180.205, paragraph (g)(6) is (7) A quantity of desensitized Authority: 49 U.S.C. 5101–5128; 49 CFR revised to read as follows: explosives meeting the definition of part 1.53. Division 4.1 or Class 3 material § 180.205 General requirements for requiring placarding in accordance with § 176.54 [Amended] requalification of specification cylinders. subpart F of this part; ■ 17. In § 176.54, in paragraph (b)(1), * * * * * * * * * * the reference ‘‘33 CFR 126.15(c)’’ is (g) * * * (9) A quantity of a Division 4.3 removed and the reference ‘‘33 CFR (6) Training materials may be used for material requiring placarding in 126.30’’ is added. training persons who requalify cylinders accordance with subpart F of this part; using the volumetric expansion test * * * * * PART 177—CARRIAGE BY PUBLIC method. HIGHWAY * * * * * PART 173—SHIPPERS—GENERAL ■ 24. In § 180.213, paragraph (d)(2) is REQUIREMENTS FOR SHIPMENTS ■ 18. The authority citation for part 177 revised to read as follows: AND PACKAGINGS continues to read as follows: § 180.213 Requalification markings. ■ 12. The authority citation for part 173 Authority: 49 U.S.C. 5101–5127; 49 CFR part 1.53. * * * * * continues to read as follows: (d) * * * Authority: 49 U.S.C. 5101–5128, 44701; 49 ■ 19. In § 177.843, paragraph (a) is (2) Exception. A cylinder subject to CFR 1.45, 1.53. revised to read as follows: the requirements of § 171.23(a)(4) of this

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subchapter may not be marked with a are immediately released to the wild at allowed (Sheehan et al. 1997, p. 3; RIN. the point where taken with roe intact. Service 2007, pp. 45–48; Bettoli et al. * * * * * DATES: This rule becomes effective on 2009, p. 3). Incidental and illegal October 1, 2010. harvest of pallid sturgeon is a significant Issued in Washington, DC, on August 26, impediment to the survival and 2010 under authority delegated in 49 CFR FOR FURTHER INFORMATION CONTACT: part 1. George Jordan, Pallid Sturgeon Recovery recovery of this species in some parts of its range (Service 2007, p. 45). Our Cynthia L. Quarterman, Coordinator, 2900 4th Avenue North, Room 301, Billings, Montana 59101 recent 5-year status review Administrator, Pipeline and Hazardous recommended that we identify and Materials Safety Administration. (telephone (406) 247–7365; facsimile implement measures to eliminate or [FR Doc. 2010–21759 Filed 8–31–10; 8:45 am] (406) 247–7364). Public comments and literature referenced in association with significantly reduce illegal and BILLING CODE 4910–60–P this rule are available at http:// accidental harvest of pallid sturgeon www.regulations.gov at Docket No. (Service 2007, p. 59). FWS–R6–ES–2009–0027 and at the Previous Federal Actions DEPARTMENT OF THE INTERIOR above office, by appointment, during On September 6, 1990, the pallid normal business hours. Persons who use Fish and Wildlife Service sturgeon was listed as endangered under a telecommunications device for the the Act (55 FR 36641). At the time of deaf (TDD) may call the Federal 50 CFR Part 17 listing, the primary threats and Information Relay Service (FIRS) at 800/ vulnerabilities for pallid sturgeon were 877–8339, 24 hours a day, 7 days a [Docket No. FWS–R6–ES–2009–0027; curtailment of range, habitat destruction week. 92220–1113–0000; ABC Code: C3] and modification, low population size, RIN 1018–AW27 SUPPLEMENTARY INFORMATION: lack of recruitment, commercial harvest, Background pollution and contaminants, and Endangered and Threatened Wildlife hybridization (55 FR 36641, September and Plants; Threatened Status for In 1990, the U.S. Fish and Wildlife 6, 1990; Service 1993, pp. 10–15). Since Shovelnose Sturgeon Under the Service (Service) listed the pallid listing, we worked cooperatively with Similarity of Appearance Provisions of sturgeon (Scaphirhynchus albus) as State partners to address the threat the Endangered Species Act endangered under the Endangered posed by commercial harvest. A recent Species Act of 1973, as amended (Act) status review found that restrictions AGENCY: Fish and Wildlife Service, (16 U.S.C. 1531 et seq.) (55 FR 36641, imposed through State fishing Interior. September 6, 1990). The pallid sturgeon regulations had helped, but that ACTION: Final rule. has a flattened, shovel-shaped snout, incidental and illegal take during possesses a long and slender and commercial harvest of shovelnose SUMMARY: We, the U.S. Fish and completely armored caudal peduncle, sturgeon was still having a substantial Wildlife Service, determine it necessary and lacks a spiracle and belly scutes and detrimental effect on the pallid to treat shovelnose sturgeon (Forbes and Richardson 1905, pp. 38– sturgeon (Service 2007, pp. 45–48). To (Scaphirhynchus platorynchus) as 41). The pallid sturgeon is a bottom- address this issue, on September 22, threatened due to similarity of oriented species found only in portions 2009, we published in the Federal appearance to the endangered pallid of the Missouri and Mississippi River Register a proposed rule to treat the sturgeon (Scaphirhynchus albus) under basins (Kallemeyn 1983, p. 4). The shovelnose sturgeon as a threatened the similarity of appearance provisions species can be long-lived (40 plus species due to its similarity of of the Endangered Species Act of 1973, years), with females reaching sexual appearance to the endangered pallid as amended. The shovelnose sturgeon maturity later than males (Keenlyne and sturgeon (74 FR 48215). and the endangered pallid sturgeon are Jenkins 1993, pp. 393, 395). Pallid difficult to differentiate in the wild and sturgeon at the northern end of their Public Comments Solicited inhabit overlapping portions of the range can attain sizes (both length and As part of the September 22, 2009, Missouri and Mississippi River basins. weight) much larger than pallid proposed rule (74 FR 48215), we Commercial harvest of shovelnose sturgeon at the southern end of their requested interested parties to provide sturgeon has resulted in the range (Service 1993, p. 3). Current comments and materials concerning the documented take of pallid sturgeon known threats to the pallid sturgeon proposed rule during a 60-day public where the two species coexist and is a include habitat modification, small comment period. We contacted all threat to the pallid sturgeon. This population size, limited natural appropriate State and Federal agencies, determination to treat shovelnose reproduction, hybridization, pollution county governments, elected officials, sturgeon due to similarity of appearance and contamination, entrainment, and scientific organizations, and other will substantially facilitate law commercial harvest (Service 2007, pp. interested parties and invited them to enforcement actions to protect and 38–59). comment. During the public comment conserve pallid sturgeon. This rule The pallid sturgeon and the period, we received several requests for extends take prohibitions to shovelnose shovelnose sturgeon are both members a public hearing. On January 14, 2010, sturgeon, shovelnose-pallid sturgeon of the genus Scaphirhynchus. These we published a Federal Register notice hybrids, and their roe when associated sturgeon can be difficult to differentiate announcing a 21-day reopening of the with a commercial fishing activity in in the wild and inhabit overlapping comment period and an informational areas where pallid sturgeon and portions of the Missouri and Mississippi meeting and public hearing on January shovelnose sturgeon commonly coexist. River basins. Within these areas of 28, 2010, in Cape Girardeau, Missouri Accidental or incidental capture of overlap, four States continue to allow (75 FR 2102). pallid or shovelnose sturgeon, or commercial harvest of shovelnose shovelnose-pallid sturgeon hybrids, in sturgeon. Take of the endangered pallid Peer Review commercial fishing gear will not be sturgeon has been documented to occur In accordance with our policy for peer considered take provided the sturgeon where this commercial fishery is review (59 FR 34270, July 1, 1994), and

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the Office of Management and Budget’s shovelnose sturgeon harvest, where harvest size limits for shovelnose (OMB) Final Information Quality permitted by the States or tribes, in sturgeon on the Mississippi River (81.3 Bulletin for Peer Review, dated waters where pallid sturgeon do not cm (32 in.)) and the Missouri River (76.2 December 16, 2004, we solicited review commonly occur (i.e., those areas not cm (30 in.)) are inadequate to protect all of the science in this rule from five identified under § 17.44, Special rules— gravid female pallid sturgeon. independent specialists. That review fishes, in this rule). Issue 4: Several commenters indicated process was conducted to ensure the use Issue 2: A few commenters felt the that protection for shovelnose-pallid of the best scientific and commercial methods used to estimate mortality of sturgeon hybrids was unwarranted and information available and to ensure and both pallid and shovelnose sturgeon in that allowing harvest of hybrid sturgeon maximize the quality, objectivity, the proposed rule (74 FR 48215, would be a benefit to pallid sturgeon. utility, and integrity of the information September 22, 2009) were flawed Response: The evolutionary upon which this action is based. We because the methods of both Killgore et relationship between pallid and received written responses from three of al. (2007) and Colombo et al. (2007) shovelnose sturgeon is poorly the peer reviewers. All three reviewers used a catch curve to estimate mortality. understood and additional data and indicated: (1) The data presented were Specifically, the commenters asserted analyses are necessary to fully relevant and accurate; (2) the that the assumption that there is understand the relationship between conclusions in the proposed rule were consistent reproduction and recruitment putative hybrids and pallid and logically supported by the data among years is not consistent with the shovelnose sturgeon (Service 2007, pp. presented; (3) necessary and pertinent life-history characteristics of shovelnose 25–26). In one study, morphometric- information was included; and (4) the and pallid sturgeon. only indices assigned study specimens action will help conserve pallid Response: In both the Killgore et al. to the pallid sturgeon, shovelnose sturgeon. Specific issues raised are (2007) and Colombo et al. (2007) peer- sturgeon, and putative hybrid groups discussed below. reviewed publications, the authors (Murphy et al. 2007, p. 319). However, describe their methods to account for sheared principal component analysis of Summary of Public Comments inconsistent reproduction and the same study specimens resulted in During the comment periods, we recruitment. Killgore et al. (2007, some putative hybrid specimens received approximately 40 comments p. 453) pooled their data among years clustering with the pallid sturgeon (written and oral) representing 8 State and examined their data for variability group and other hybrid specimens agencies, 1 Federal agency, and 20 among year-classes. Colombo et al. clustering with the shovelnose sturgeon individuals representing themselves or (2007, p. 445) also pooled their data by group (Murphy et al. 2007, p. 319). In their businesses and/or organizations, as age class among years. Pooling annual another study, genetic identification well as responses from three peer data from successive sample years is an revealed that pallid sturgeon identified reviewers. All comments are now acceptable method to account for using the character index (CI) and available for inspection at http:// moderate and random fluctuations in morphometric character index (mCI) www.regulations.gov in Docket No. recruitment when employing catch were miscategorized (Schrey 2007, pp. FWS–R6–ES–2009–0027. curves to estimate survival (Ricker 1975, 74–75, 120). Thus, some sturgeon that We reviewed and considered all p. 36). We believe these studies present appear intermediate in character based comments in this final decision. Written the best available data and use accepted on the CI or the mCI (presumed hybrids) comments and oral statements methodologies. may actually be pallid sturgeon. Given presented at the public hearing and Issue 3: One commenter believed that these uncertainties, law enforcement received during the comment periods existing harvest length regulations are personnel would have substantial are addressed in the following summary protective of gravid female pallid difficulty enforcing regulations allowing or incorporated directly into this final sturgeon. These regulations set a harvest of shovelnose-pallid sturgeon rule. Comments of a similar nature are maximum harvest limit for shovelnose hybrids. Thus, extending protections to grouped together under subject headings sturgeon on the Mississippi River in shovelnose sturgeon and to shovelnose- in a series of ‘‘Issues’’ and ‘‘Responses.’’ Missouri and Illinois at 81.3 centimeters pallid sturgeon hybrids is the only way Issue 1: Several commenters indicated (cm) (32.0 inches (in.)) fork length. The to ensure that pallid sturgeon are not that treating shovelnose sturgeon as commenter had never observed a gravid inadvertently harvested from areas threatened due to similarity of pallid sturgeon smaller than this limit where these two species co-occur. appearance to pallid sturgeon will close and thought gravid female pallid Issue 5: Several commenters indicated commercial sturgeon fishing resulting in sturgeon should be readily identifiable that treating shovelnose sturgeon as a negative economic impact on those based on length. threatened due to similarity of engaged in this activity. Response: Since 1992, 11 wild-caught appearance to pallid sturgeon is not Response: We recognize that treating female pallid sturgeon were spawned in warranted. These commenters shovelnose sturgeon as threatened due captivity at Missouri’s Blind Pony State referenced recent regulation changes to similarity of appearance with pallid Fish Hatchery (Drecktrah 2009). Of implemented by the Illinois Department sturgeon will close commercial harvest these, five were less than 81.3 cm (32.0 of Natural Resources and a study of the of shovelnose sturgeon from waters in.) fork length, one measured 81.5 cm new regulation’s effectiveness commonly occupied by pallid sturgeon. (32.1 in.) fork length, and five were sanctioned by the Mississippi Interstate Under section 4(e), the Act allows us to longer than 98.8 cm (38.9 in.) (Drecktrah Cooperative Resources Association regulate commerce and take to the 2009). The two smallest gravid female (Maher et al. 2009). These commenters extent advisable when it is considered pallid sturgeon spawned were 77.5 cm state that in this study 946 sturgeon necessary to protect a listed species. In (30.5 in.) fork length. In 2009, at Neosho carcasses were collected from order to comply with the Act and National Fish Hatchery, one gravid commercial fishermen, and none were reduce potential negative economic female pallid sturgeon was spawned determined by genetic analysis to be impacts, this rule covers the minimal that was 75.7 cm (29.8 in.) (Herzog pallid sturgeon. Based on those data, geographic extent necessary to 2010). These data illustrate the fact that commenters contend that differentiation effectively conserve pallid sturgeon. that size alone cannot be used to between pallid and shovelnose sturgeon This rule will not affect commercial identify species and current maximum could occur with a 100 percent level of

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accuracy with proper training and but 37 carcasses had partial or small Consideration of this error does not implementation. scales on their bellies indicative of change our determination. The available Response: In 2007, the Illinois shovelnose-pallid sturgeon hybrids data demonstrate a substantial level of Department of Natural Resources (Maher et al. 2009, pp. 4–5). Finally, commercial harvest of shovelnose, instituted additional protective State none of the specimens’ ratio of head including both flesh and roe, is regulations intended to eliminate pallid length to barbel length were indicative occurring in areas where both pallid and sturgeon harvest. These regulations of pallid sturgeon (Maher et al. 2009, shovelnose sturgeon coexist. This prohibited take of or harm to pallid pp. 4–5). harvest is resulting in incidental and sturgeon and mandated their immediate As these data demonstrate, field-level illegal harvest of pallid sturgeon release upon capture. These regulations identification based solely on character (Sheehan et al. 1997, p. 3; Bettoli et al. also prohibited commercial harvest of indices is subjective and not without 2009, p. 3), which is a significant shovelnose-pallid sturgeon hybrids some uncertainty. This subjectivity and impediment to the survival and downstream from Lock and Dam 26 on uncertainty is reflected in the 2007 recovery of the pallid sturgeon. the Mississippi River. Specifically, these Illinois regulations. These regulations Issue 7: One commenter was unable to regulations prohibited take and indicate that it is illegal to harvest any find any evidence that we conducted an mandated immediate release of any sturgeon that has ‘‘bases of outer barbels environmental impact study to Scaphirhynchus that had any of the located slightly farther behind bases of determine the economic impact to following: (1) Belly completely lacking inner barbels.’’ The word ‘‘slightly’’ is fishermen and associated communities in scales; (2) bases of outer barbels subjective and difficult to apply as a result of this decision. located slightly behind bases of inner consistently among observers (Maher et Response: An Environmental barbels; or (3) length of inner barbels at al. 2009, p. 4). For instance, 28 of the Assessment or Environmental Impact least 6.3 times the length of head. 78 sturgeon caught in Illinois had barbel Statement, as defined under the The new Illinois regulations as well as alignment consistent with pallid authority of the National Environmental the existing Missouri and Kentucky sturgeon; however, because the outer Policy Act of 1969 (NEPA) (42 U.S.C. regulations were evaluated to determine barbels inserted only ‘‘slightly’’ behind 4331 et seq.), need not be prepared in if they were effective in preventing the inner barbels, the data were connection with listing regulations bycatch of pallid sturgeon in the harvest analyzed with and without the 28 adopted pursuant to section 4 of the of shovelnose sturgeon (Maher et al. specimens (Maher et al. 2009, p. 4). In Act. We published a notice outlining 2009, p. 2). This study examined 946 this case, the word ‘‘slightly’’ introduced our reasons for this determination in the carcasses from commercial fisherman ambiguity into identification efforts. Federal Register on October 25, 1983 including 513 collected in Illinois under In total, more than 10 percent of the (48 FR 49244). We determined that this their new regulations (Maher et al. 2009, specimens harvested in Illinois were rationale also applies to the associated pp. 3–4). Specimens were evaluated harvested in violation of Illinois section 4(d) rule. based on CI, mCI, barbel alignment, the regulations as they showed Issue 8: Several States and one not- presence or absence of belly scales, and characteristics intermediate between for-profit organization observed that the ratio of head length to barbel length pallid and shovelnose sturgeon (Maher closing commercial shovelnose sturgeon (Maher et al. 2009, p. 3). Based on et al. 2009, pp. 5–6). Because some fishing in waters where they commonly professional judgment, the authors did sturgeon that appear intermediate (i.e., coexist with pallid sturgeon could result not believe any of the carcasses were presumed hybrids) may actually be in increased shovelnose sturgeon pallid sturgeon (Maher et al. 2009, p. 4). pallid sturgeon (Wills et al. 2002, pp. harvest pressures in waters that remain However, the data were less clear. 255–256; Schrey 2007, pp. 74, 120), we open. The concern raised is that this The CI and mCI scores yielded remain concerned that even in a highly shift in pressure could result in different results when applied to the regulated arena, harvest of shovelnose overharvest of shovelnose sturgeon same carcasses. The CI scores indicated sturgeon and their roe results in the take populations in areas outside the range of 4 of the carcasses were pallid sturgeon of pallid sturgeon where the two species pallid sturgeon. including 2 harvested by Illinois are sympatric. Response: Twenty-four States fishermen; 31 specimens were likely One of the requirements of treating comprise the historical range of shovelnose-pallid sturgeon hybrids any species as endangered or threatened shovelnose sturgeon. Of these, eight including 24 harvested by Illinois under Section 4(e) of the Act is related allow for commercial harvest of fishermen (Maher et al. 2009, pp. 4, to law enforcement difficulties with shovelnose sturgeon; this action will 8–11). None of these 946 carcasses were differentiating between a listed and halt commercial harvest of shovelnose deemed to be pallid sturgeon based on unlisted species. The available data sturgeon in four of these eight where mCI scores, but 30 specimens were demonstrate that both fishermen and shovelnose and pallid sturgeon coexist. likely shovelnose-pallid sturgeon enforcement personnel are having and Shovelnose sturgeon that occupy waters hybrids including 9 harvested by will continue to have substantial outside the areas regulated by this rule Illinois fishermen (Maher et al. 2009, difficulty in differentiating between are subject to State commercial fishing pp. 4, 14–17). Genetic testing on 84 these species where they coexist. regulations. Those States that sturgeon (44 from Illinois, 20 from Issue 6: A few commenters acknowledged that a probable shift in Kentucky, and 20 from Missouri) with highlighted an error in Table 1 of the harvest pressures is likely as a result of the lowest CI values (most pallid proposed rule (74 FR 48215, September this rule indicated that their existing sturgeon like) indicated that several of 22, 2009). Specifically, we reported regulations are adequate to conserve the carcasses were likely shovelnose- 3,808 kilograms (8,395 pounds) of roe shovelnose sturgeon. We believe that a pallid sturgeon hybrids (Heist and Boley being harvested in Illinois’ Mississippi combination of existing State 2009, p. 3). Eighty-five of the specimens River below Melvin Price Lock and Dam regulations and the additional had barbel alignment consistent with (Lock and Dam 26) in 2005, when the protections provided under this rule pallid sturgeon including 78 in Illinois actual number was 166 kilograms (365 will facilitate conservation of both (Maher et al. 2009, pp. 4–5). None of the pounds). shovelnose and pallid sturgeon. specimens had bellies that were absent Response: This error has been However, we acknowledge this rule scales consistent with pallid sturgeon, corrected in Table 1 of this rule. does not afford additional protections to

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shovelnose sturgeon outside of its sturgeon in waters where both species commercial shovelnose sturgeon harvest sympatric range of the pallid sturgeon. commonly coexist. There are several is permitted. Should future data Thus, we will continue to work and States identified in this table that are indicate the shovelnose sturgeon meets cooperate with State resource agencies, not within the documented historical the Act’s definition of threatened or the Mississippi Interstate Cooperative range of pallid sturgeon. endangered, we would initiate a status Resources Association and the Upper Response: The table in Part 17 review and propose listing the species if Mississippi River Conservation delineates the historic range of the warranted. Committee, and other interested parties shovelnose sturgeon and identifies the Similarity of Appearance to help manage and monitor shovelnose population where treated as endangered Determination sturgeon harvest where it occurs. or threatened is over the entire range of Issue 9: Several commenters the species. However, section 4(e) Section 4(e) of the Act and highlighted other threats to pallid allows for regulation of commerce and implementing regulations (50 CFR sturgeon, including non-native invasive take as deemed advisable. The special 17.50–17.52) authorize the Secretary of species and habitat alteration. These rule described under § 17.44(aa) the Interior to treat a species as an comments imply we should focus on articulates the portions of the range in endangered or threatened species even these other threat factors rather than the which take will be regulated under this though it is not itself listed if: (a) The take issue being addressed by this rule. rule. In this case, the shovelnose species so closely resembles in Response: This rule is being sturgeon’s historic range occurs in 24 appearance a listed endangered or undertaken to address documented take States; however, shovelnose and threatened species that law enforcement of an endangered species, the pallid shovelnose–pallid sturgeon hybrid personnel would have substantial sturgeon, due to similarity of populations covered by this special rule difficulty in attempting to differentiate appearance to shovelnose sturgeon. The occur in portions of 13 States. between the listed and unlisted species; take is occurring through commercial Therefore, Wyoming and several other (b) the effect of this substantial harvest of shovelnose sturgeon where States that historically or currently difficulty is an additional threat to an allowed. Through the provisions of support shovelnose sturgeon endangered or threatened species; and section 4(e) of the Act, we are populations but not pallid sturgeon are (c) such treatment of an unlisted species employing a mechanism to help address not identified in this rule and will not will substantially facilitate the this take, which is an identified threat be regulated and subject to shovelnose enforcement and further the purposes of to the pallid sturgeon (55 FR 36641; sturgeon take prohibitions as a result of the Act. With regard to shovelnose Service 2007, pp. 45–48, 57). We are not this rule. sturgeon, we believe all of these factors assessing the pallid sturgeon in this rule Issue 11: One commenter encouraged apply. in accordance with section 4(a) of the us to conduct a review of shovelnose The shovelnose sturgeon Act. However, we concur with the sturgeon to determine if threatened (Scaphirhynchus platorynchus) is commenter that habitat destruction or status is warranted for this species similar in appearance to the pallid alteration is a threat to this species as range-wide. This commenter provided sturgeon and inhabits overlapping we described in our 2007 5-year review references to several publications that portions of the Missouri and Mississippi (Service 2007, pp. 38–45, 56). We are suggest shovelnose sturgeon are being River basins (Bailey and Cross 1954, pp. actively working with State and Federal over-harvested in the middle and upper 175–190). Morphological characteristics partners to implement restoration Mississippi Rivers (Colombo et al. 2007; (i.e., body measurements) and meristic activities to address habitat issues Koch et al. 2007; Tripp et al. 2009). The counts (i.e., number of fin rays) have throughout the range of the pallid commenter also recommended that if been used to distinguish between the sturgeon. Examples include the efforts additional protections were not two Scaphirhynchus species. However, of the Upper and Lower Mississippi warranted, we should work with State those characters were based on a limited River Conservation Committees and agencies to implement strict size limits number of pallid sturgeon (15) and of U.S. Army Corps of Engineers Missouri on commercial harvest to better protect shovelnose sturgeon (16) specimens River Recovery Program. These shovelnose sturgeon where they are (Bailey and Cross 1954, pp. 177–179). partnerships and programs have commercially harvested. Two indices, CI and mCI, were restored side channel connectivity and Response: This action was initiated to developed to help differentiate between modified existing in-channel structures address documented take occurring of the species and account for putative (i.e., dike notching) to increase habitat an existing listed species and provide hybrid individuals (Wills et al. 2002, complexity. We are currently reviewing for the conservation of that listed pp. 249–258). The CI uses both available data to better evaluate effects species—the endangered pallid morphometric ratios and meristic from invasive species. While these are sturgeon. We are not assessing the status counts (number of fin rays in both the important efforts, we also determined of the shovelnose sturgeon in this rule. dorsal and anal fins); mCI is based only that the mortality of reproductive- We have a separate petition process and on the five morphometric ratios and was condition female pallid sturgeon our own internal candidate assessment developed because the meristic counts associated with commercial fishing process to elevate species for listing can be difficult to accurately obtain must be addressed in order to conserve consideration. In the context of this from live specimens (Wills et al. 2002, the species and achieve recovery. regulation, we have considered this p. 250). Both indices utilized five ratios Issue 10: The State of Wyoming comment and believe that the of morphometric measurements based identified potential confusion combination of existing State on careful length measurements of both associated with the word ‘‘entire’’ found regulations and the protections the inner and outer barbels, the head under the column heading ‘‘Vertebrate provided in this rule address many of length, the interrostrum length, and the population where endangered or the concerns highlighted in the cited mouth-to-inner-barbel distance. While threatened’’ in § 17.11 Endangered and literature (Colombo et al. 2007; Koch et both indices did a good job of properly Threatened Wildlife. The confusion is al. 2007; Tripp et al. 2009). We also classifying pallid sturgeon (Wills et al. associated with the rule treating intend to continue working with the 2002, p. 253), errors occurred when shovelnose sturgeon as threatened due States and various committees to ensure putative hybrids overlapped the to similarity of appearance to pallid adequate regulations exist where parental forms (Wills et al. 2002, pp.

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253–254). Both indices had an error rate illegal (Curtis 2008). This similarity (21 years) (Killgore et al. 2007, p. 454). of approximately 10 percent (Wills et poses a problem for Federal and State Harvested and protected populations al., pp. 255–256). Thus, Wills et al. law enforcement agents trying to should have considerably different (2002, p. 257) recommended address illegal trade in pallid sturgeon mortality rates (and, therefore, incorporating molecular genetic roe. corresponding different maximum ages); techniques to verify species While harvest of pallid sturgeon is however, the endangered pallid delineations. prohibited by section 9 of the Act and sturgeon have similar mortality rates as Genetic analysis of Scaphirhynchus by State regulations throughout its the harvested shovelnose sturgeon in specimens to test the performance of range, commercial harvest of shovelnose the middle Mississippi River (Colombo several character indices, including CI sturgeon has resulted in the et al. 2007, p. 449). This information and mCI suggest that at least 1.9 percent documented take of pallid sturgeon provides further evidence that illegal of sampled individuals were (Sheehan et al. 1997, p. 3; Bettoli et al. harvest of pallid sturgeon is occurring. misidentified (Schrey 2007, p. 75). 2009, p. 3; Service 2007, pp. 45–48). Because female sturgeon do not begin Specifically, CI appeared to perform Four States allow commercial harvest of egg development until ages 9–12 years, better than the other indices by not shovelnose sturgeon from waters may not spawn until ages 15–20 years, classifying genetic pallid sturgeon as commonly occupied by pallid sturgeon and may not spawn every year shovelnose or shovelnose-pallid (Service 1993, pp. 3–5). These are (Keenlyne and Jenkins 1993, p. 395), sturgeon hybrids, but did classify Tennessee (Tennessee 2008, pp. 4–5), mortality associated with commercial genetic shovelnose sturgeon as pallid Missouri (except on the Missouri River fishing activity is likely substantially sturgeon (Schrey 2007, pp. 75–76). upstream of the Kansas River to the lowering recruitment, negatively Similarly, mCI did not classify genetic Iowa border) (Missouri 2008, pp. 10– impacting population growth, and pallid sturgeon as shovelnose sturgeon, 11), Kentucky (Kentucky 2008, pp. 1–2), ultimately affecting recovery. and Illinois (below Mel Price Locks and but did classify genetic shovelnose as Much of the domestic sturgeon fishing Dam) (Illinois 2007, pp. 3–5; Illinois pallid sturgeon (Schrey 2007, p. 75). pressure has been driven by 2008, p. 2). To protect pallid sturgeon, However, mCI misclassified genetic international sturgeon supply and fishing seasons with maximum pallid sturgeon as shovelnose-pallid increasing price trends. International harvestable size limits for shovelnose sturgeon hybrids (Schrey 2007, p. 75). sturgeon catch declined from the record sturgeon have been established (Bettoli The CI performs better than the other peak of 32,078 metric tons (70,719,884 et al. 2009, pp. 1–2). However, indices because it relies on dorsal and pounds) in 1978 to 2,658 metric tons harvestable size limits for shovelnose anal fin ray counts. However, dorsal and (5,859,886 pounds) in 2000 (FAO sturgeon cannot protect pallid sturgeon anal fin ray counts can be difficult to Fisheries Circular 2004, executive that fall within the harvestable size obtain from live specimens (Wills et al. summary). This reduction in supply limits if pallid sturgeon cannot be 2002, p. 250; Schrey 2007, p. 76); mCI resulted in exponential increase in reliably differentiated from shovelnose was developed in recognition of this caviar prices subsequent to the 1978 sturgeon. difficulty. In order to provide the peak (Bardi and Yaxley 2005, p. 2). greatest confidence in species Along the Tennessee portion of the Mississippi River, commercial fishers Since 1998, international trade in all identification, both genetic and species of sturgeon has been regulated morphological analyses are required misidentified 29 percent of the encountered pallid sturgeon (Bettoli et under the Convention on International (Schrey 2007, p. 80). Trade in Endangered Species of Wild Other recent analyses confirm limited al. 2009, p. 3) and a minimum of 1.8 Fauna and Flora (CITES) owing to success applying character indices percent of total sturgeon harvest was concerns over the impact of universally across the geographic range endangered pallid sturgeon (Bettoli et international trade on sturgeon of the species (Kuhajda et al. 2007, pp. al. 2009, p. 3). Applying this minimum populations in the wild. Recent CITES 344–346; Murphy et al. 2007, p. 322). harvest estimate to the 2005–2007 sturgeon quotas have further limited Furthermore, available data indicate commercial shovelnose fishing seasons supply and exacerbated price pressures character indices do not work well on within Tennessee results in a minimum (CITES 2005, pp. 1–5, 8–9; CITES 2006, smaller sized specimens (Kuhajda et al. harvest estimate of 169 adult pallid pp. 1, 5–6, 10–11; CITES 2007, pp. 1, 3– 2007, pp. 324, 344). sturgeon (Bettoli et al. 2009, p. 1). Currently, biologists use an approach Extrapolating this minimum estimate of 5, 8–9; CITES 2008, pp. 3, 7, 8, 11, 14). requiring up to 13 morphometric body pallid sturgeon take across the four We expect commercial pressures on measurements, multivariate analysis, States that allow for commercial harvest domestic sturgeon to remain constant or meristic counts (i.e., the number of of shovelnose sturgeon where the two possibly increase due, in part, to current dorsal and anal fin rays), and genetic species commonly coexist implies restrictions on importation of beluga data to reliably differentiate between the annual incidental take is a substantial sturgeon (Huso huso) caviar into the 2 species. Many of these methods source of pallid sturgeon mortality and United States (70 FR 57316, September require data collection and analysis that a threat to the species’ survival and 30, 2005; 70 FR 62135, October 28, are not easily implemented in field-level recovery. 2005) due to its status as a threatened applications and are not immediately Furthermore, total annual pallid species and the general trend toward available to commercial fishermen at the sturgeon mortality rates are higher reduced caviar exports from the Caspian time of harvest or to law enforcement where commercial harvest of shovelnose Sea and Black Sea sturgeon stocks. personnel at the time of determining sturgeon occurs compared to areas State commercial fishing data (Table whether a violation has occurred. without commercial harvest (30 percent 1) demonstrate a substantial level of Finally, while genetic tests can versus 7–11 percent) (Killgore et al. commercial harvest of shovelnose differentiate Scaphirhynchus eggs from 2007, pp. 454–455). Maximum sturgeon, including both flesh and roe, those of other genera, at this time, identified ages of pallid sturgeon are from areas where both shovelnose and processed roe cannot be differentiated substantially lower in commercially pallid sturgeon coexist (Williamson as having been derived from shovelnose fished reaches of the Mississippi River 2003, pp. 118–120; Maher 2008; sturgeon, harvest of which may be legal, (14 years) than in noncommercially Scholten 2008a; Scholten 2008b; or pallid sturgeon, harvest of which is fished reaches of the Mississippi River Travnichek 2008; Illinois DNR 2009).

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TABLE 1—REPORTED COMMERCIAL HARVEST OF SHOVELNOSE STURGEON FLESH AND ROE IN POUNDS FROM 1995–2007 FROM THE PORTIONS OF ILLINOIS, KENTUCKY, MISSOURI, AND TENNESSEE WHERE BOTH SHOVELNOSE STURGEON AND PALLID STURGEON COEXIST [Illinois DNR 2009; Scholten 2008a, 2008b; Travnichek 2008; Williamson 2003]

1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

Flesh

Illinois ...... 405 3,475 6,115 2,855 3,798 1,576 3,074 1,541 600 2,931 2,599 * * Kentucky ...... * * * * 25 9,938 13,059 8,324 1,413 5,167 16,324 14,130 10,043 Missouri ...... 6,201 10,142 8,231 9,089 19,655 23,394 77,498 43,211 23,956 28,818 10,002 6,526 5,220 Tennessee ...... * * * * * 4,178 2,178 3,519 5,759 4,005 17,297 12,926 7,812

Total ...... 6,606 13,617 14,346 11,944 23,478 39,086 95,809 56,595 31,728 40,921 46,222 33,582 23,075

Roe

Illinois ...... 0 28 65 87 0 16 208 402 136 585 365 554 * Kentucky ...... * * * * * 527 1,021 731 258 554 1,844 1,648 1,738 Missouri ...... * * * * * * * * 4,490 3,504 2,356 1,907 1,420 Tennessee ...... * * * * * * * 660 1,001 665 2,290 2,027 1,366

Total ...... 0 28 65 87 0 543 1,229 1,793 5,883 5,308 6,855 6,136 4,524 Illinois shovelnose harvest includes Mississippi River catch downstream of Mel Price Locks and Dam; Missouri shovelnose harvest includes both Mississippi River (downstream of Mel Price Locks and Dam) and Missouri River (except on the Missouri River upstream of the Kansas River to the Iowa border) catches; and Tennessee and Kentucky shovelnose harvest includes Mississippi River catch. Tennessee’s flesh data were ex- trapolated using length-weight relationships from total fish harvested. An asterisk (*) indicates no data reported or data otherwise unavailable.

Incidental, illegal harvest of pallid authorized by section 4(d) of the Act. Effects of These Rules sturgeon is a significant impediment to These rules, commonly referred to as Treating the shovelnose sturgeon as the survival and recovery of this species ‘‘ ’’ special rules, are found in part 17 of threatened under the ‘‘similarity of in some portions of its range (Service title 50 of the Code of Federal appearance’’ provisions of the Act 2007, p. 45). We recommended in our Regulations (CFR) in sections 17.40– extends take prohibitions to shovelnose 2007 5-year status review that we 17.48. This special rule for § 17.44, sturgeon, shovelnose-pallid sturgeon should identify and implement which deals with fishes, prohibits take hybrids, and their roe when associated measures to eliminate or significantly of any shovelnose sturgeon, shovelnose- with a commercial fishing activity. reduce illegal and accidental harvest of pallid sturgeon hybrids, or their roe Capture of shovelnose sturgeon or pallid sturgeon (Service 2007, p. 59). when associated with or related to a shovelnose-pallid sturgeon hybrids in Treating the shovelnose sturgeon as a commercial fishing activity in those threatened species, under section 4(e) of commercial fishing gear is not portions of its range that commonly prohibited if it is accidental or the Act, will result in termination of overlap with the range of the commercial harvest of shovelnose incidental to otherwise legal endangered pallid sturgeon. In this sturgeon and shovelnose-pallid sturgeon commercial fishing activities, such as context, commercial fishing purposes is hybrids where they commonly coexist commercial fishing targeting considered as any activity where with pallid sturgeon. This action will nonsturgeon species, provided the shovelnose sturgeon and shovelnose- facilitate the enforcement of take animal is released immediately upon protections for pallid sturgeon and pallid sturgeon hybrid roe or flesh is discovery, with all roe intact, at the substantially reduce or eliminate take of attempted to be, or is intended to be, point of capture. All otherwise legal pallid sturgeon associated with traded, sold, or exchanged for financial activities within the areas identified that commercial harvest of shovelnose compensation, goods, or services. may involve shovelnose sturgeon and sturgeon and their roe. Reduction of Capture of shovelnose sturgeon or shovelnose-pallid sturgeon hybrids and take of pallid sturgeon will facilitate the shovelnose-pallid sturgeon hybrids in which are conducted in accordance species’ survival, reproduction, and, commercial fishing gear is not with applicable State, Federal, tribal, ultimately, its recovery. For these prohibited if it is accidental or and local laws and regulations will not reasons, we will treat the shovelnose incidental to otherwise legal be considered take under this sturgeon as threatened due to similarity commercial fishing activities, such as regulation. of appearance to the pallid sturgeon in commercial fishing targeting Under this special 4(d) rule, take is those areas where the two species nonsturgeon species, provided the prohibited where shovelnose and pallid commonly coexist, in accordance with animal is released immediately upon sturgeons’ range commonly overlap section 4(e) of the Act. discovery, with all roe intact, at the (Service 1993, pp. 3–5, 16–17). point of capture. All otherwise legal Specifically, this includes: (1) The Section 4(d) ‘‘Special Rule’’ Regulating activities involving shovelnose sturgeon portion of the Missouri River in Iowa, Take and shovelnose-pallid sturgeon hybrids Kansas, Missouri, Montana, North When a species is considered that are conducted in accordance with Dakota, Nebraska, and South Dakota; (2) threatened under the Act, the Secretary applicable State, Federal, tribal, and the portion of the Mississippi River may specify regulations that he deems local laws and regulations are not downstream from the Melvin Price necessary to provide for the considered to be take under this Locks and Dam (Lock and Dam 26) in conservation of that species under a rule regulation. Arkansas, Illinois, Kentucky, Louisiana,

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Missouri, Mississippi, and Tennessee; or more persons. Furthermore, 5 CFR the Pallid Sturgeon Recovery (3) the Platte River downstream of the 1320.3(c)(4) specifies that ‘‘10 or more Coordinator (see FOR FURTHER Elkhorn River confluence in Nebraska; persons’’ refers to the persons to whom INFORMATION CONTACT section above). (4) the portion of the Kansas River a collection of information is addressed List of Subjects in 50 CFR Part 17 downstream from the Bowersock Dam by the agency within any 12-month in Kansas; (5) the Yellowstone River period. For purposes of this definition, Endangered and threatened species, downstream of the Bighorn River employees of the Federal Government Exports, Imports, Reporting and confluence in North Dakota and are not included. A Federal agency may recordkeeping requirements, Montana; and (6) the Atchafalaya River not conduct or sponsor and a person is Transportation. in Louisiana. See the map in the rule not required to respond to a collection Regulation Promulgation portion of this document. of information unless it displays a This designation of similarity of currently valid OMB control number. ■ Accordingly, we hereby amend part appearance under section 4(e) of the Act This rule does not contain collections of 17, subchapter B of chapter I, title 50 of would not extend any other protections information other than those permit the Code of Federal Regulations, as of the Act, such as the requirements to application forms already approved follows: designate critical habitat, the recovery under the Paperwork Reduction Act and planning provisions under section 4(f), assigned OMB control number 1018– PART 17—[AMENDED] or consultation requirements for Federal 0094. ■ agencies under section 7, to shovelnose 1. The authority citation for part 17 sturgeon. Therefore, Federal agencies National Environmental Policy Act continues to read as follows: are not required to consult with us on We have determined that an Authority: 16 U.S.C. 1361–1407; 16 U.S.C. activities they authorize, fund, or carry Environmental Assessment or 1531–1544; 16 U.S.C. 4201–4245; Public Law out that may affect shovelnose sturgeon. Environmental Impact Statement, as 99–625, 100 Stat. 3500; unless otherwise defined under the authority of the noted. Paperwork Reduction Act NEPA, need not be prepared in The OMB regulations at 5 CFR part connection with listing regulations ■ 2. Amend § 17.11(h) by adding an 1320 implement provisions of the adopted pursuant to section 4, including entry for ‘‘Sturgeon, shovelnose’’, in Paperwork Reduction Act (44 U.S.C. section 4(a), of the Act. We published a alphabetical order under ‘‘FISHES,’’ to 3501 et seq.). The OMB regulations at 5 notice outlining our reasons for this the List of Endangered and Threatened CFR 1320.3(c) define a ‘‘collection of determination in the Federal Register Wildlife to read as follows: information’’ as the obtaining of on October 25, 1983 (48 FR 49244). information by or for an agency by § 17.11 Endangered and threatened means of identical questions posed to, References Cited wildlife. or identical reporting, recordkeeping, or A complete list of references cited in * * * * * disclosure requirements imposed on, 10 this rule is available upon request from (h) * * *

Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

******* FISHES

******* Sturgeon, Scaphirhynchus U.S.A. (AL, AR, IA, Entire ...... T (S/A) 778 N/A 17.44(aa) shovelnose. platorynchus. IL, IN, KS, KY, LA, MN, MO, MS, MT, ND, NE, NM, OH, OK, PA, SD, TN, TX, WI, WV, WY).

*******

■ 3. Amend § 17.44 by adding a new is prohibited. Capture of shovelnose portions of Arkansas, Iowa, Illinois, paragraph (aa) to read as follows: sturgeon or shovelnose-pallid sturgeon Kansas, Kentucky, Louisiana, Missouri, hybrids in commercial fishing gear is Mississippi, Montana, North Dakota, § 17.44 Special rules—fishes. not prohibited if it is accidental or Nebraska, South Dakota, and Tennessee. * * * * * incidental to otherwise legal The specific areas are: (aa) Shovelnose sturgeon commercial fishing activities, such as (i) The portion of the Missouri River commercial fishing targeting (Scaphirhynchus platorynchus). in Iowa, Kansas, Missouri, Montana, nonsturgeon species, provided the (1) Within the geographic areas set North Dakota, Nebraska, and South animal is released immediately upon forth in paragraph (aa)(2) of this section, Dakota; except as expressly noted in this discovery, with all roe intact, at the (ii) The portion of the Mississippi paragraph, take of any shovelnose point of capture. sturgeon, shovelnose-pallid sturgeon (2) The shovelnose and shovelnose- River downstream from the Melvin hybrids, or their roe associated with or pallid sturgeon hybrid populations Price Locks and Dam (Lock and Dam 26) related to a commercial fishing activity covered by this special rule occur in in Arkansas, Illinois, Kentucky,

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Louisiana, Missouri, Mississippi, and (iv) The portion of the Kansas River (vi) The Atchafalaya River in Tennessee; downstream from the Bowersock Dam Louisiana. (iii) The Platte River downstream of in Kansas; (3) A map showing the area covered the Elkhorn River confluence in (v) The Yellowstone River by this special rule (the area of shared Nebraska; downstream of the Bighorn River habitat between shovelnose and pallid confluence in North Dakota and sturgeon) follows: Montana; and BILLING CODE 4310–55–C

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Dated: August 25, 2010. fishing year of 254,050 lb (115,235 kg), the Magnuson-Stevens Fishery Will Shafroth, as recommended by the Council, based Conservation and Management Act and Acting Assistant Secretary for Fish and on the best available scientific, other applicable laws. Wildlife and Parks. commercial, and other information, The Chief Counsel for Regulation of [FR Doc. 2010–21861 Filed 8–31–10; 8:45 am] taking into account the associated risk the Department of Commerce certified BILLING CODE 4310–55–P of overfishing. The MHI Management to the Chief Counsel for Advocacy of the Subarea is the portion of U.S. Exclusive Small Business Administration during Economic Zone around the Hawaiian the proposed rule stage that this action ° DEPARTMENT OF COMMERCE Archipelago lying to the east of 161 20’ would not have a significant economic W. longitude. The Deep 7 bottomfish are impact on a substantial number of small National Oceanic and Atmospheric onaga (Etelis coruscans), ehu (E. entities. The factual basis for the Administration carbunculus), gindai (Pristipomoides certification was published in the zonatus), kalekale (P. sieboldii), proposed rule and is not repeated here. 50 CFR Part 665 opakapaka (P. filamentosus), lehi No comments were received regarding (Aphareus rutilans), and hapuupuu this certification. As a result, a [Docket No. 100630283–0388–02] (Epinephelus quernus). regulatory flexibility analysis was not RIN 0648–XX15 When the TAC is projected to be required, and none was prepared. reached, NMFS will close the non- This action is exempt from review Fisheries in the Western Pacific; commercial and commercial Deep 7 under Executive Order 12866. Bottomfish and Seamount Groundfish bottomfish fisheries until the end of the Authority: 16 U.S.C. 1801 et seq. Fisheries; 2010–11 Main Hawaiian fishing year (August 31, 2010). During a Islands Bottomfish Total Allowable fishery closure for Deep 7 bottomfish, Dated: August 27, 2010. Catch no person may fish for, possess, or sell Samuel D. Rauch III, any of these fish in the MHI, except as Deputy Assistant Administrator for AGENCY: National Marine Fisheries otherwise authorized by law. Regulatory Programs, National Marine Service (NMFS), National Oceanic and Specifically, fishing for, and the Fisheries Service. Atmospheric Administration (NOAA), resultant possession or sale of, Deep 7 [FR Doc. 2010–21829 Filed 8–31–10; 8:45 am] Commerce. bottomfish by vessels legally registered BILLING CODE 3510–22–S ACTION: Final specification. to Pacific Remote Island Areas bottomfish fishing permits, and SUMMARY: In this rule, NMFS specifies a conducted in compliance with all laws DEPARTMENT OF COMMERCE total allowable catch (TAC) of 254,050 and regulations, are not affected by the lb (115,235 kg) of Deep 7 bottomfish in National Oceanic and Atmospheric closure. There is no prohibition on the main Hawaiian Islands (MHI) for the Administration fishing for or selling other non-Deep 7 2010–11 fishing year. The expected bottomfish species throughout the year. impact of the TAC is long-term All other management measures 50 CFR Part 679 sustainability of Hawaii bottomfish. continue to apply in the MHI bottomfish [Docket No. 0910131363–0087–02] DATES: This final specification is fishery. The MHI bottomfish fishery effective October 1, 2010. reopens on September 1, 2010, and will RIN 0648–XY62 ADDRESSES: Copies of the Fishery continue until August 31, 2010, unless Ecosystem Plan for the Hawaiian the fishery is closed prior to August 31 Fisheries of the Exclusive Economic Archipelago and associated as a result of the TAC being reached. Zone Off Alaska; Atka Mackerel in the Environmental Impact Statement are Additional background information Bering Sea and Aleutian Islands available from the Western Pacific on this final specification may be found Management Area Fishery Management Council (Council), in the preamble to the proposed AGENCY: National Marine Fisheries 1164 Bishop St., Suite 1400, Honolulu, specification published on August 2, Service (NMFS), National Oceanic and HI 96813, tel 808–522–8220, fax 808– 2010 (75 FR 45085), and is not repeated Atmospheric Administration (NOAA), 522–8226, or www.wpcouncil.org. here. Commerce. A supplemental environmental Comments and Responses assessment (EA), was prepared that ACTION: Temporary rule; closures and describes the impact of this final On August 2, 2010, NMFS published openings. specification on the human a proposed specification and request for public comments on the MHI Deep 7 SUMMARY: NMFS is prohibiting directed environment. Based on the fishing for Atka mackerel in the Eastern environmental impact analysis bottomfish TAC (75 FR 45085). The comment period ended on August 17, Aleutian District and the Bering Sea presented in the EA, NMFS prepared a subarea of the Bering Sea and Aleutian finding of no significant impact 2010. NMFS did not receive any public comments. Islands management area (BSAI) by (FONSI). Copies of the EA and FONSI vessels participating in the BSAI trawl are available from www.regulations.gov, Changes from the Proposed limited access fishery. This action is or Michael D. Tosatto, Acting Regional Specification necessary to prevent exceeding the 2010 Administrator, NMFS Pacific Islands total allowable catch (TAC) of Atka Region (PIR), 1601 Kapiolani Blvd. There are no changes in the final specification. mackerel in these areas by vessels 1110, Honolulu, HI 96814. participating in the BSAI trawl limited FOR FURTHER INFORMATION CONTACT: Classification access fishery. NMFS is also Jarad Makaiau, Sustainable Fisheries The Regional Administrator, NMFS announcing the opening and closing Division, NMFS PIR, 808–944–2108. PIR, determined that this final dates of the first and second directed SUPPLEMENTARY INFORMATION: NMFS specification is necessary for the fisheries within the harvest limit area hereby specifies a TAC of Deep 7 conservation and management of MHI (HLA) in areas 542 and 543. These bottomfish in the MHI for the 2010–11 bottomfish, and that it is consistent with actions are necessary to conduct

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directed fishing for Atka mackerel in the subarea was established as 1,264 metric In accordance with HLA in areas 542 and 543. tons (mt) by the final 2010 and 2011 § 679.20(a)(8)(iii)(C), the Regional DATES: The effective dates are provided harvest specifications for groundfish in Administrator is opening the first in Table 1 under the SUPPLEMENTARY the BSAI (75 FR 11778, March 12, directed fisheries for Atka mackerel INFORMATION section of this temporary 2010). within the HLA in areas 542 and 543, action. In accordance with § 679.20(d)(1)(i) 48 hours after prohibiting directed and (d)(1)(ii)(B), the Administrator, fishing for Atka mackerel in the Eastern FOR FURTHER INFORMATION CONTACT: Alaska Region, NMFS (Regional Aleutian District and the Bering Sea Obren Davis, 907–586–7228. Administrator), has determined that 5 subarea. The Regional Administrator SUPPLEMENTARY INFORMATION: NMFS mt of the 2010 Atka mackerel TAC has established the opening dates for the manages the groundfish fishery in the allocated to vessels participating in the second HLA directed fisheries as BSAI exclusive economic zone BSAI trawl limited access fishery in the immediately after the last closure of the according to the Fishery Management Eastern Aleutian District and the Bering first HLA fisheries in either area 542 or Plan for Groundfish of the Bering Sea Sea subarea will be necessary as 543 for those vessels participating in the and Aleutian Islands Management Area incidental catch to support other Amendment 80 cooperative. The (FMP) prepared by the North Pacific anticipated groundfish fisheries. Regional Administrator also has Fishery Management Council under Therefore, the Regional Administrator is established the opening dates for the authority of the Magnuson-Stevens establishing a directed fishing second HLA directed fisheries as 48 Fishery Conservation and Management allowance of 1,259 mt. In accordance hours after the last closure of the first Act. Regulations governing fishing by with § 679.20(d)(1)(iii), the Regional HLA fisheries in either area 542 or 543 U.S. vessels in accordance with the FMP Administrator finds that this directed for those vessels participating in the appear at subpart H of 50 CFR part 600 fishing allowance has been reached. Amendment 80 limited access sector. and 50 CFR part 679. Consequently, NMFS is prohibiting Consequently, NMFS is opening and The 2010 TAC of Atka mackerel for directed fishing for Atka mackerel in the closing directed fishing for Atka vessels participating in the BSAI trawl Eastern Aleutian District and the Bering mackerel in the HLA of areas 542 and limited access fishery in the Eastern Sea subarea by vessels participating in 543 in accordance with the periods Aleutian District and the Bering Sea the BSAI trawl limited access fishery. listed under Table 1 of this notice.

TABLE 1—EFFECTIVE DATES AND TIMES

Effective date 1 Action Area From To

Prohibiting Atka mackerel by vessels partici- Eastern Aleutian Dis- 1200 hrs, September 1, 2010 ..... 1200 hrs, November 1, 2010. pating in the BSAI trawl limited access fish- trict and the Bering ery. Sea subarea. Opening the first and second directed fisheries 542 and 543 ...... 1200 hrs, September 3, 2010 ..... 1200 hrs, September 17, 2010. in the HLA for the Amendment 80 cooperative. 542 and 543 ...... 1200 hrs, September 17, 2010 ... 1200 hrs, October 1, 2010. Opening the first and second directed fisheries 542 and 543 ...... 1200 hrs, September 3, 2010 ..... 1200 hrs, September 11, 2010. in the HLA for vessels participating in the Amendment 80 limited access sector. 542 and 543 ...... 1200 hrs, September 13, 2010 ... 1200 hrs, September 21, 2010. Opening the first directed fishery in the HLA for 542 ...... 1200 hrs, September 3, 2010 ..... 1200 hrs, September 17, 2010. vessels participating in the BSAI trawl limited access sector. 1 Alaska local time.

In accordance with TACs in areas 542 and 543 are 4,474 mt Consequently, NMFS is prohibiting § 679.20(a)(8)(iii)(A) and and 3,393 mt, respectively, for vessels directed fishing for Atka mackerel in the § 679.20(a)(8)(iii)(B), vessels using trawl participating in the Amendment 80 HLA of areas 542 and 543 in accordance gear for directed fishing for Atka limited access fishery. The HLA limits with the dates and times listed in Table mackerel have previously registered of the B season allowance of the 2010 1 of this notice. with NMFS to fish in the HLA fisheries TACs in areas 542 and 543 are 2,959 mt After the effective dates of these in areas 542 and 543. NMFS has and 2,111 mt, respectively, for closures, the maximum retainable randomly assigned each vessel to the Amendment 80 cooperatives. The HLA amounts at § 679.20(e) and (f) apply at directed fishery or fisheries for which limit of the B season allowance of the any time during a trip. they have registered. NMFS has notified 2010 TAC in area 542 is 474 mt for the Classification each vessel owner as to which fishery BSAI trawl limited access fishery. In each vessel has been assigned by NMFS accordance with § 679.20(a)(8)(iii)(E), This action responds to the best (75 FR 49422, August 13, 2010). the Regional Administrator has available information recently obtained In accordance with the final 2010 and established the closure dates of the Atka from the fishery. The Assistant 2011 harvest specifications for mackerel directed fisheries in the HLA Administrator for Fisheries, NOAA, groundfish in the BSAI (75 FR 11778, for areas 542 and 543 based on the (AA) finds good cause to waive the March 12, 2010) and amount of the harvest limit and the requirement to provide prior notice and § 679.20(a)(8)(ii)(C)(1), the HLA limits of estimated fishing capacity of the vessels opportunity for public comment the B season allowance of the 2010 assigned to the respective fisheries. pursuant to the authority set forth at 5

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U.S.C. 553(b)(B) as such a requirement DEPARTMENT OF COMMERCE Therefore, the Regional Administrator is is impracticable and contrary to the establishing a directed fishing public interest. This requirement is National Oceanic and Atmospheric allowance of 1,904 mt, and is setting impracticable and contrary to the public Administration aside the remaining 100 mt as bycatch interest as it would prevent NMFS from to support other anticipated groundfish responding to the most recent fisheries 50 CFR Part 679 fisheries. In accordance with data in a timely fashion and would [Docket No. 0910131362–0087–02] § 679.20(d)(1)(iii), the Regional delay the closure of the Atka mackerel Administrator finds that this directed RIN 0648–XY66 fishery in the Eastern Aleutian District fishing allowance has been reached. Consequently, NMFS is prohibiting and the Bering Sea subarea for vessels Fisheries of the Exclusive Economic directed fishing for Pacific ocean perch participating in the BSAI trawl limited Zone Off Alaska; Pacific Ocean Perch in the West Yakutat District of the GOA. access fishery and the opening and in the West Yakutat District of the Gulf After the effective date of this closure closing of the fisheries for the HLA of Alaska the maximum retainable amounts at limits established for area 542 and area AGENCY: National Marine Fisheries § 679.20(e) and (f) apply at any time 543 pursuant to the 2010 Atka mackerel Service (NMFS), National Oceanic and during a trip. TAC. The fisheries opening and closure Atmospheric Administration (NOAA), Classification dates associated with the HLA limits are Commerce. established based on the Regional ACTION: Temporary rule; closure. This action responds to the best Administrator’s estimate of fishing available information recently obtained capacity and effort for the vessels SUMMARY: NMFS is prohibiting directed from the fishery. The Assistant registered to fish in the HLA in area 542 fishing for Pacific ocean perch in the Administrator for Fisheries, NOAA and area 543, per § 679.20(a)(8)(iii)(E). West Yakutat District of the Gulf of (AA), finds good cause to waive the NMFS was unable to publish a notice Alaska (GOA). This action is necessary requirement to provide prior notice and providing time for public comment to prevent exceeding the 2010 total opportunity for public comment because the most recent, relevant allowable catch (TAC) of Pacific ocean pursuant to the authority set forth at 5 information about operational aspects of perch in the West Yakutat District of the U.S.C. 553(b)(B) as such requirement is the vessels registered to fish in the HLA GOA. impracticable and contrary to the public only became available as of August 23, DATES: Effective 1200 hrs, Alaska local interest. This requirement is 2010. The AA also finds good cause to time (A.l.t.), August 28, 2010, through impracticable and contrary to the public waive the 30-day delay in the effective 2400 hrs, A.l.t., December 31, 2010. interest as it would prevent NMFS from date of this action under 5 U.S.C. FOR FURTHER INFORMATION CONTACT: responding to the most recent fisheries 553(d)(3). This finding is based upon Steve Whitney, 907–586–7269. data in a timely fashion and would the reasons provided above for waiver of SUPPLEMENTARY INFORMATION: NMFS delay the closure of Pacific ocean perch prior notice and opportunity for public manages the groundfish fishery in the in the West Yakutat District of the GOA. comment. GOA exclusive economic zone NMFS was unable to publish a notice according to the Fishery Management providing time for public comment This action is required by § 679.20 Plan for Groundfish of the Gulf of because the most recent, relevant data and is exempt from review under Alaska (FMP) prepared by the North only became available as of August 26, Executive Order 12866. Pacific Fishery Management Council 2010. Authority: 16 U.S.C. 1801 et seq. under authority of the Magnuson- The AA also finds good cause to waive the 30–day delay in the effective Dated: August 27, 2010. Stevens Fishery Conservation and Management Act. Regulations governing date of this action under 5 U.S.C. Carrie Selberg, fishing by U.S. vessels in accordance 553(d)(3). This finding is based upon Acting Director, Office of Sustainable with the FMP appear at subpart H of 50 the reasons provided above for waiver of Fisheries, National Marine Fisheries Service. CFR part 600 and 50 CFR part 679. prior notice and opportunity for public [FR Doc. 2010–21831 Filed 8–31–10; 8:45 am] The 2010 TAC of Pacific ocean perch comment. BILLING CODE 3510–22–P in the West Yakutat District of the GOA This action is required by § 679.20 is 2,004 metric tons (mt) as established and is exempt from review under by the final 2010 and 2011 harvest Executive Order 12866. specifications for groundfish of the GOA Authority: 16 U.S.C. 1801 et seq. (75 FR 11749, March 12, 2010). In accordance with § 679.20(d)(1)(i), Dated: August 27, 2010. the Administrator, Alaska Region, Carrie Selberg, NMFS (Regional Administrator), has Acting Director, Office of Sustainable determined that the 2010 TAC of Pacific Fisheries, National Marine Fisheries Service. ocean perch in the West Yakutat District [FR Doc. 2010–21860 Filed 8–27–10; 4:15 pm] of the GOA will soon be reached. BILLING CODE 3510–22–S

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Proposed Rules Federal Register Vol. 75, No. 169

Wednesday, September 1, 2010

This section of the FEDERAL REGISTER Room W12–140, 1200 New Jersey dated September 3, 2010 (referred to contains notices to the public of the proposed Avenue, SE., Washington, DC 20590. after this as ‘‘the MCAI’’), to correct an issuance of rules and regulations. The • Hand Delivery: U.S. Department of unsafe condition for the specified purpose of these notices is to give interested Transportation, Docket Operations, products. The MCAI states: persons an opportunity to participate in the M–30, West Building Ground Floor, rule making prior to the adoption of the final It has been found the occurrences of failure rules. Room W12–140, 1200 New Jersey of the Flow Control Shutoff Valve (FCSOV) Avenue, SE., Washington, DC 20590, in the closed position. Failure of the two between 9 a.m. and 5 p.m., Monday valves (left and right) can cause the loss of DEPARTMENT OF TRANSPORTATION through Friday, except Federal holidays. the pneumatic source, and lead to loss of the cabin pressurization. Examining the AD Docket Federal Aviation Administration Since this condition affects flight safety, a You may examine the AD docket on corrective action is required. Thus, sufficient the Internet at http:// reason exists to request compliance with this 14 CFR Part 39 AD. www.regulations.gov; or in person at the [Docket No. FAA–2010–0870; Directorate Docket Management Facility between The MCAI requires replacing both Identifier 2010–CE–045–AD] 9 a.m. and 5 p.m., Monday through FCSOVs with new and improved Friday, except Federal holidays. The AD FCSOVs. You may obtain further RIN 2120–AA64 docket contains this proposed AD, the information by examining the MCAI in the AD docket. Airworthiness Directives; Empresa regulatory evaluation, any comments Brasileira de Aeronautica S.A. received, and other information. The Relevant Service Information street address for the Docket Office (EMBRAER) Model EMB–500 Airplanes ´ (telephone (800) 647–5527) is in the Empresa Brasileira de Aeronautica S.A. (EMBRAER) has issued Service AGENCY: Federal Aviation ADDRESSES section. Comments will be Administration (FAA), Department of available in the AD docket shortly after Bulletin 500–21–0001, dated December Transportation (DOT). receipt. 9, 2009. The actions described in this service information are intended to ACTION: Notice of proposed rulemaking FOR FURTHER INFORMATION CONTACT: Karl correct the unsafe condition identified (NPRM). Schletzbaum, Aerospace Engineer, FAA, in the MCAI. Small Airplane Directorate, 901 Locust, SUMMARY: We propose to adopt a new Room 301, Kansas City, Missouri 64106; FAA’s Determination and Requirements airworthiness directive (AD) for the telephone: (816) 329–4146; fax: (816) of the Proposed AD products listed above. This proposed 329–4090. This product has been approved by AD results from mandatory continuing SUPPLEMENTARY INFORMATION: the aviation authority of another airworthiness information (MCAI) country, and is approved for operation originated by an aviation authority of Comments Invited in the United States. Pursuant to our another country to identify and correct We invite you to send any written bilateral agreement with this State of an unsafe condition on an aviation relevant data, views, or arguments about Design Authority, they have notified us product. The MCAI describes the unsafe this proposed AD. Send your comments of the unsafe condition described in the condition as: to an address listed under the MCAI and service information It has been found the occurrences of failure ADDRESSES section. Include ‘‘Docket No. referenced above. We are proposing this of the Flow Control Shutoff Valve (FCSOV) FAA–2010–0870; Directorate Identifier AD because we evaluated all in the closed position. Failure of the two 2010–CE–045–AD’’ at the beginning of information and determined the unsafe valves (left and right) can cause the loss of your comments. We specifically invite condition exists and is likely to exist or the pneumatic source, and lead to loss of the comments on the overall regulatory, cabin pressurization. develop on other products of the same Since this condition affects flight safety, a economic, environmental, and energy type design. corrective action is required. Thus, sufficient aspects of this proposed AD. We will consider all comments received by the Differences Between This Proposed AD reason exists to request compliance with this and the MCAI or Service Information AD. closing date and may amend this proposed AD because of those We have reviewed the MCAI and The proposed AD would require actions comments. related service information and, in that are intended to address the unsafe We will post all comments we general, agree with their substance. But condition described in the MCAI. receive, without change, to http:// we might have found it necessary to use DATES: We must receive comments on www.regulations.gov, including any different words from those in the MCAI this proposed AD by October 18, 2010. personal information you provide. We to ensure the AD is clear for U.S. ADDRESSES: You may send comments by will also post a report summarizing each operators and is enforceable. In making any of the following methods: substantive verbal contact we receive these changes, we do not intend to differ • Federal eRulemaking Portal: Go to about this proposed AD. substantively from the information http://www.regulations.gov. Follow the provided in the MCAI and related Discussion instructions for submitting comments. service information. • Fax: (202) 493–2251. The AGEˆ NCIA NACIONAL DE We might also have proposed • Mail: U.S. Department of AVIAC¸A˜ O CIVIL—BRAZIL (ANAC), different actions in this AD from those Transportation, Docket Operations, which is the aviation authority for in the MCAI in order to follow FAA M–30, West Building Ground Floor, Brazil, has issued AD No. 2010–08–01, policies. Any such differences are

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highlighted in a Note within the 3. Will not have a significant Actions and Compliance proposed AD. economic impact, positive or negative, (f) Unless already done, at the next on a substantial number of small entities Costs of Compliance scheduled maintenance check or within 12 under the criteria of the Regulatory months after the effective date of this AD or We estimate that this proposed AD Flexibility Act. within 600 hours time-in-service after the will affect 79 products of U.S. registry. We prepared a regulatory evaluation effective date of this AD, whichever occurs We also estimate that it would take of the estimated costs to comply with first, replace both flow control shutoff valves, about 4 work-hours per product to this proposed AD and placed it in the part number (P/N) 1300230–13 and P/N comply with the basic requirements of AD docket. 1300230–23, with P/N 1300230–15 and P/N this proposed AD. The average labor 1300230–25. Do the replacements following rate is $85 per work-hour. Required List of Subjects in 14 CFR Part 39 Empresa Brasileira de Aeronaútica S.A. parts would cost about $10,487 per Air transportation, Aircraft, Aviation (EMBRAER) Service Bulletin 500–21–0001, product. safety, Incorporation by reference, dated December 9, 2009. Based on these figures, we estimate Safety. FAA AD Differences the cost of the proposed AD on U.S. operators to be $855,333, or $10,827 per The Proposed Amendment Note: This AD differs from the MCAI and/ or service information as follows: No product. Accordingly, under the authority According to Embraer, the parts cost differences. delegated to me by the Administrator, of this proposed AD may be covered the FAA proposes to amend 14 CFR part Other FAA AD Provisions under warranty, thereby reducing the 39 as follows: cost impact on affected individuals. We (g) The following provisions also apply to this AD: do not control warranty coverage for PART 39—AIRWORTHINESS (1) Alternative Methods of Compliance affected individuals. As a result, we DIRECTIVES have included all cost in our cost (AMOCs): The Manager, Standards Office, estimate. 1. The authority citation for part 39 FAA, has the authority to approve AMOCs continues to read as follows: for this AD, if requested using the procedures Authority for This Rulemaking found in 14 CFR 39.19. Send information to Authority: 49 U.S.C. 106(g), 40113, 44701. Title 49 of the United States Code Attn: Karl Schletzbaum, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, specifies the FAA’s authority to issue § 39.13 [Amended] rules on aviation safety. Subtitle I, Room 301, Kansas City, Missouri 64106; 2. The FAA amends § 39.13 by adding telephone: (816) 329–4146; fax: (816) 329– section 106, describes the authority of the following new AD: 4090. Before using any approved AMOC on the FAA Administrator. ‘‘Subtitle VII: any airplane to which the AMOC applies, Aviation Programs,’’ describes in more Empresa Brasileira de Aeronautica S.A. (EMBRAER): Docket No. FAA–2010– notify your appropriate principal inspector detail the scope of the Agency’s (PI) in the FAA Flight Standards District authority. 0870; Directorate Identifier 2010–CE– 045–AD. Office (FSDO), or lacking a PI, your local We are issuing this rulemaking under FSDO. Comments Due Date the authority described in ‘‘Subtitle VII, (2) Airworthy Product: For any requirement Part A, Subpart III, Section 44701: (a) We must receive comments by October in this AD to obtain corrective actions from General requirements.’’ Under that 18, 2010. a manufacturer or other source, use these section, Congress charges the FAA with Affected ADs actions if they are FAA-approved. Corrective promoting safe flight of civil aircraft in actions are considered FAA-approved if they (b) None. air commerce by prescribing regulations are approved by the State of Design Authority for practices, methods, and procedures Applicability (or their delegated agent). You are required the Administrator finds necessary for (c) This AD applies to Embraer—Empresa to assure the product is airworthy before it safety in air commerce. This regulation Brasileira de Aeronautica S.A. (EMBRAER) is returned to service. is within the scope of that authority Model EMB–500 airplanes, serial numbers (3) Reporting Requirements: For any because it addresses an unsafe condition 50000005 through 50000118, 50000120, reporting requirement in this AD, under the that is likely to exist or develop on 50000122 through 50000126, 50000128, and provisions of the Paperwork Reduction Act products identified in this rulemaking 50000131, certificated in any category. (44 U.S.C. 3501 et seq.), the Office of Management and Budget (OMB) has action. Subject approved the information collection Regulatory Findings (d) Air Transport Association of America requirements and has assigned OMB Control (ATA) Code 36: Pneumatic. We determined that this proposed AD Number 2120–0056. would not have federalism implications Reason Related Information (e) The mandatory continuing under Executive Order 13132. This (h) Refer to MCAI AGEˆ NCIA NACIONAL airworthiness information (MCAI) states: proposed AD would not have a DE AVIAÇA˜ O CIVIL—BRAZIL (ANAC) AD substantial direct effect on the States, on It has been found the occurrences of failure No. 2010–08–01, dated September 3, 2010; the relationship between the national of the Flow Control Shutoff Valve (FCSOV) and Empresa Brasileira de Aeronaútica S.A. in the closed position. Failure of the two Government and the States, or on the (EMBRAER) Service Bulletin 500–21–0001, valves (left and right) can cause the loss of distribution of power and dated December 9, 2009, for related responsibilities among the various the pneumatic source, and lead to loss of the cabin pressurization. information. levels of government. Since this condition affects flight safety, a Issued in Kansas City, Missouri, on August For the reasons discussed above, I corrective action is required. Thus, sufficient 25, 2010. certify this proposed regulation: reason exists to request compliance with this John Colomy, 1. Is not a ‘‘significant regulatory AD. Acting Manager, Small Airplane Directorate, action’’ under Executive Order 12866; The MCAI requires replacing both FCSOVs Aircraft Certification Service. 2. Is not a ‘‘significant rule’’ under the with new and improved FCSOVs. You may DOT Regulatory Policies and Procedures obtain further information by examining the [FR Doc. 2010–21874 Filed 8–31–10; 8:45 am] (44 FR 11034, February 26, 1979); and MCAI in the AD docket. BILLING CODE 4910–13–P

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DEPARTMENT OF COMMERCE requirements contained in the proposed requirements for the BE–577 quarterly rule should be sent to both BEA through survey of U.S. direct investment abroad. Bureau of Economic Analysis any of the methods above and to the The Department of Commerce, as part of Office of Management and Budget its continuing effort to reduce 15 CFR Part 806 (OMB), O.I.R.A., Paperwork Reduction paperwork and respondent burden, [Docket No. 100202061–0063–01] Project 0608–0004, Attention PRA Desk invites the general public and other Officer for BEA, via e-mail at Federal agencies to comment on RIN 0691–AA75 [email protected], or by FAX at (202) proposed and/or continuing information 395–7245. collections, as required by the Direct Investment Surveys: BE–577, Public Inspection: All comments Paperwork Reduction Act of 1995, 44 Quarterly Survey of U.S. Direct received are a part of the public record U.S.C. 3501–3520 (PRA). Investment Abroad—Direct and will generally be posted to http:// Description of Changes Transactions of U.S. Reporter With www.regulations.gov without change. Foreign Affiliate All personal identifying information (for BEA proposes to raise the threshold for exempting entities from the AGENCY: Bureau of Economic Analysis, example, name, address, etc.) reporting requirements of BE–577 from Commerce. voluntarily submitted by the $40 million to $60 million and to ACTION: Notice of proposed rulemaking. commentator may be publicly accessible. Do not submit confidential discontinue collecting information on SUMMARY: This proposed rule would business information or otherwise transactions classified as permanent amend regulations of the Bureau of sensitive or protected information. BEA debt and related interest payments Economic Analysis (BEA), Department will accept anonymous comments. between U.S. parent companies that are banks, bank holding companies, or of Commerce, to set forth the reporting FOR FURTHER INFORMATION CONTACT: financial holding companies and their requirements for BE–577 quarterly David H. Galler, Chief, Direct bank foreign affiliates. Recent changes survey of U.S. direct investment abroad. Investment Division, BE–50, Bureau of in international standards call for the The survey is conducted quarterly and Economic Analysis, U.S. Department of obtains sample data on transactions and bank permanent debt previously Commerce, Washington, DC 20230; classified as direct investment to be positions between U.S.-owned foreign phone (202) 606–9835. classified as other investment, for which business enterprises and their U.S. SUPPLEMENTARY INFORMATION: In Section statistics are collected by the Treasury parents. 3 of Executive Order 11961, as amended Department through the Treasury BEA proposes modification of items by Executive Orders 12318 and 12518, International Capital System. BEA also on the survey form and in the reporting the President delegated responsibility proposes to change the title of Form BE– criteria. Changes are proposed to bring for performing functions under the Act 577 to ‘‘Quarterly Survey of U.S. Direct the BE–577 forms and related as concerns direct investment to the Investment Abroad—Transactions of instructions into conformity with the Secretary of Commerce, who has U.S. Reporter With Foreign Affiliate.’’ 2009 BE–10, Benchmark Survey of U.S. redelegated it to BEA. The BE–577 The exemption level was last changed Direct Investment Abroad, and to raise quarterly survey of U.S. direct in 2006 following the 2004 Benchmark the threshold for reporting. investment abroad is a mandatory Survey of U.S. Direct Investment DATES: Comments on this proposed rule survey and is conducted quarterly by Abroad. The exemption level is stated in will receive consideration if submitted BEA under the International Investment terms of the foreign affiliate’s assets, in writing on or before 5 p.m. November and Trade in Services Survey Act, 22 sales, and net income. U.S. parents 1, 2010. U.S.C. 3101–3108 (the Act). would be required to report for their ADDRESSES: You may submit comments, The survey is a sample survey that foreign affiliates if the foreign affiliates identified by RIN 0691–AA75, and collects data on transactions and have total assets, sales or gross operating referencing the agency name (Bureau of positions between U.S.-owned foreign revenues, or net income greater than $60 Economic Analysis), by any of the business enterprises and their U.S. million (positive or negative). At the following methods: parents. The sample data are used to new reporting threshold, BEA would • Federal eRulemaking Portal: http:// derive quarterly universe estimates from collect about 14,500 forms per quarter, www.regulations.gov. Follow the similar data reported in the BE–10, compared to 17,500 under the previous instructions for submitting comments. Benchmark Survey of U.S. Direct threshold. About 3,000 affiliates— For agency, select ‘‘Commerce Investment Abroad, which is conducted accounting for less than 1.5 percent of Department—all.’’ every five years. The data are used in the final universe estimates of income • E-mail: [email protected]. the preparation of the U.S. international and position—would drop out of the • Fax: Office of the Chief, Direct transactions accounts and national sample and would be estimated based Investment Division, (202) 606–5318. income and product accounts. The data on reports received on the benchmark • Mail: Office of the Chief, Direct are needed to measure the size and survey. Investment Division, U.S. Department of economic significance of U.S. direct Commerce, Bureau of Economic investment abroad, measure changes in Survey Background Analysis, BE–50, Washington, DC such investment, and assess its impact The Bureau of Economic Analysis 20230. on the U.S. and foreign economies. BEA (BEA), U.S. Department of Commerce, • Hand Delivery/Courier: Office of the will send BE–577 survey forms to conducts the BE–577 survey under the Chief, Direct Investment Division, U.S. potential respondents each quarter; authority of the International Department of Commerce, Bureau of responses will be due within 30 days Investment and Trade in Services Economic Analysis, BE–50, Shipping after the close of each fiscal quarter, Survey Act (22 U.S.C. 3101–3108), and Receiving, Section M100, 1441 L except for the final quarter of the fiscal hereinafter, ‘‘the Act.’’ Section 4(a) of the Street, NW., Washington, DC, 20005. year, when reports will be due within Act (22.U.S.C. 3103(a)) provides that, Written comments regarding the 45 days. with respect to United States direct burden-hour estimates or other aspects This proposed rule would amend 15 investment abroad, the President shall, of the collection-of-information CFR 806.14 to set forth the reporting to the extent he deems necessary and

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feasible, conduct a regular data the threshold for filing from $40 million net income), small U.S. businesses will collection program to secure current to $60 million. be required to file fewer reports for their information on international capital Comments are requested concerning: foreign affiliates than would be required flows and other information related to (a) Whether the proposed collection of in the absence of this increase. information is necessary for the proper international investment and trade in Because few small businesses are services including (but not limited to) performance of the functions of the impacted by this rule, and because those such information that may be necessary agency, including whether the small businesses that are impacted are for computing and analyzing the United information will have practical utility; States balance of payments, the (b) the accuracy of the burden estimate; subject to only minimal recordkeeping employment and taxes of United States (c) ways to enhance the quality, utility, burdens, the Chief Counsel for parents and affiliates, and the and clarity of the information collected; Regulation certifies that this proposed international investment and trade in and (d) ways to minimize the burden of rule will not have a significant services position of the United States. the collection of information on the economic impact on a substantial respondents, including the use of number of small entities. Executive Order 12866 automated collection techniques or List of Subjects in 15 CFR Part 806 This proposed rule has been other forms of information technology. determined to be not significant for Written comments regarding the Economic statistics, International purposes of E.O. 12866. burden-hour estimates or other aspects transactions, Penalties, Reporting and of the collection of information recordkeeping requirements, U.S. Executive Order 13132 requirements contained in the proposed investment abroad. This proposed rule does not contain rule should be sent to both BEA and policies with Federalism implications as OMB following the instructions given in J. Steven Landefeld, that term is defined in E.O. 13132. the ADDRESSES section above. Director, Bureau of Economic Analysis. Paperwork Reduction Act Regulatory Flexibility Act For the reasons set forth in the The Chief Counsel for Regulation, preamble, BEA proposes to amend 15 This proposed rule contains a Department of Commerce, has certified CFR part 806 as follows: collection-of-information requirement to the Chief Counsel for Advocacy, subject to review and approval by the Small Business Administration (SBA), PART 806—DIRECT INVESTMENT OMB under the PRA. The requirement under the provisions of the Regulatory SURVEYS has been submitted to OMB for approval Flexibility Act (5 U.S.C. 605(b)), that as a revision to a collection currently this proposed rulemaking, if adopted, 1. The authority citation for 15 CFR approved under OMB control number will not have a significant economic part 806 continues to read as follows: 0608–0004. impact on a substantial number of small Authority: 5 U.S.C. 301; 22 U.S.C. 3101– Notwithstanding any other provisions entities. Few small U.S. businesses are of the law, no person is required to 3108; E.O. 11961 (3 CFR, 1977 Comp., p. 86), subject to the reporting requirements of as amended by E.O. 12318 (3 CFR, 1981 respond to, nor shall any person be this survey. U.S. companies that have subject to a penalty for failure to comply Comp., p. 173); E.O. 12518 (3 CFR, 1985 direct investments tend to be quite Comp., p. 348). with, a collection-of-information subject large. Although the BE–577 survey does to the requirements of the PRA unless not itself collect data on the size of the 2. Section 806.14(e) is revised to read that collection displays a currently valid U.S. companies that must respond, data as follows: OMB control number. collected on related BEA surveys The BE–577 survey, as proposed, is indicate that about 200 of the estimated § 806.14 U.S. direct investment abroad. expected to result in the filing of about 1,750 U.S. parent companies that will be * * * * * 14,500 foreign affiliate reports by an required to respond to the BE–577 (e) Quarterly report form. BE–577, estimated 1,750 U.S. parent companies. quarterly survey are small businesses Quarterly Survey of U.S. Direct A parent company must file one form according to the standards established Investment Abroad—Transactions of per affiliate. The respondent burden for by the SBA. The exemption level for the U.S. Reporter With Foreign Affiliate: this collection of information is BE–577 survey is set in terms of the size One report is required for each foreign estimated to vary from one-half hour to of a U.S. company’s foreign affiliates three hours per response, with an (foreign companies owned 10 percent or affiliate exceeding an exemption level of average of one hour per response, more by the U.S. company); if a foreign $60 million except that a report need including time for reviewing affiliate has total assets, sales or gross not be filed by a U.S. Reporter to report instructions, searching existing data operating revenues, or net income direct transactions with one of its sources, gathering and maintaining the greater than $60 million (positive or foreign affiliates in which it does not data needed, and completing and negative), it must be reported. Usually, hold a direct equity interest unless an reviewing the collection of information. the U.S. parent company that is required intercompany balance for the quarter Because reports are filed 4 times per to file the report is many times larger exceeds $1 million. year, 58,000 responses annually are than its largest foreign affiliate. * * * * * expected. Thus, the total annual The approximately 200 U.S. [FR Doc. 2010–21833 Filed 8–31–10; 8:45 am] respondent burden of the survey is businesses that meet the SBA small BILLING CODE 3510–06–P estimated at 58,000 hours (14,500 business standards tend to have few respondents filing 4 times per year foreign affiliates, and the foreign multiplied by 1 hour average burden). affiliates that they do own are small for The survey’s estimated respondent the purposes of this analysis. With the burden of 58,000 hours compares with proposed increase in the exemption a total burden of 62,000 burden hours in level for the BE–577 survey from $40 the current OMB inventory. The million to $60 million (stated in terms reduction in burden is a result of raising of the foreign affiliate’s assets, sales, and

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ENVIRONMENTAL PROTECTION Avenue, NW., Washington, DC 20460. restricted by statute. Certain other AGENCY Please include 2 copies. In addition, material, such as copyrighted material, please mail a copy of your comments on will be publicly available only in hard 40 CFR Parts 51, 52, 72, 78, and 97 the information collection provisions to copy. Publicly available docket the Office of Information and Regulatory [EPA–HQ–OAR–2009–0491; FRL–9194–9] materials are available either Affairs, Office of Management and electronically in http:// RIN 2060–AP50 Budget (OMB), Attn: Desk Officer for www.regulations.gov or in hard copy at EPA, 725 17th Street, NW., Washington, the Air and Radiation Docket and Notice of Data Availability Supporting DC 20503. Information Center, EPA/DC, EPA East Federal Implementation Plans To • Hand Delivery: U.S. Environmental Building, Room 3334, 1301 Constitution Reduce Interstate Transport of Fine Protection Agency, EPA West (Air Particulate Matter and Ozone Docket), 1301 Constitution Avenue, Ave., NW., Washington, DC. The Public NW., Room 3334, Washington, DC Reading Room is open from 8:30 a.m. to AGENCY: Environmental Protection 20004, Attention Docket ID No. EPA– 4:30 p.m., Monday through Friday, Agency (EPA). HQ–OAR–2009–0491. Such deliveries excluding legal holidays. The telephone ACTION: Notice of data availability are only accepted during the Docket’s number for the Public Reading Room is (NODA) for the Proposed Transport normal hours of operation, and special (202) 566–1744, and the telephone Rule. arrangements should be made for number for the Air Docket is (202) 566– deliveries of boxed information. 1742. SUMMARY: The EPA is providing notice Instructions: Direct your comments to FOR FURTHER INFORMATION CONTACT: For that it is supplementing the record to Docket ID No. EPA–HQ–OAR–2009– the Proposed Transport Rule (75 FR 0491. EPA’s policy is that all comments questions regarding the NEEDS database 45210). The EPA has placed in the received will be included in the public Version 4.10 contact Erich Eschmann, docket for the Proposed Transport Rule docket without change and may be Clean Air Markets Division, USEPA (Docket ID No. EPA–HQ–OAR–2009– made available online at http:// Headquarters, Ariel Rios Building, 1200 0491) additional information relevant to www.regulations.gov, including any Pennsylvania Avenue, NW., Mail Code: the rulemaking, including, among other personal information provided, unless 6204J, Washington, DC 20460; things, an updated version of the power the comment includes information telephone number: (202) 343–9128; fax sector modeling platform that EPA claimed to be Confidential Business number: (202) 343–2359. For question proposes to use to support the final rule. Information (CBI) or other information regarding the IPM Version 4.10 This new power sector modeling whose disclosure is restricted by statute. assumptions contact Serpil Kayin, Clean platform consists of updated unit level Do not submit information that you Air Markets Division, USEPA input data (the National Electric Energy consider to be CBI or otherwise Headquarters, Ariel Rios Building, 1200 Data System (NEEDS v4.10)) and a set protected through http:// Pennsylvania Avenue, NW., Mail Code: of model run results with the updated www.regulations.gov or e-mail. The 6204J, Washington, DC 20460; modeling platform (Integrated Planning http://www.regulations.gov Web site is telephone number: (202) 343–9390; fax Model (IPM) v4.10), detailed an ‘‘anonymous access’’ system, which number: (202) 343–2359. documentation of the updated version means EPA will not know your identity of the model, and user guides to input or contact information unless you SUPPLEMENTARY INFORMATION: Detailed assumptions and model outputs. The provide it in the body of your comment. background information describing the additional information also includes a If you send an e-mail comment directly proposed rulemaking may be found in a list of further planned updates to to EPA without going through http:// previously published notice: Federal support the final rulemaking. Except as www.regulations.gov, your e-mail Implementation Plans To Reduce explained below, EPA is not extending address will be automatically captured Interstate Transport of Fine Particulate the comment period on the Proposed and included as part of the comment Matter and Ozone (Proposed Transport Transport Rule beyond October 1st, that is placed in the public docket and Rule); Proposed Rule 75 FR 45210, 2010. made available on the Internet. If you August 2, 2010. submit an electronic comment, EPA DATES: Comments must be received on The information placed in the docket or before October 15, 2010. Please refer recommends that you include your name and other contact information in is also available for public review on the to SUPPLEMENTARY INFORMATION for Web site for this rulemaking at http:// additional information on submitting the body of your comment and with any disk or CD–ROM you submit. If EPA www.epa.gov/airtransport/. If additional comments. cannot read your comment due to relevant supporting information ADDRESSES: Submit your comments, technical difficulties and cannot contact becomes available in the future, EPA identified by Docket ID No. EPA–HQ– you for clarification, EPA may not be will place this information in the docket OAR–2009–0491 by one of the following able to consider your comment. and make it available for public review methods: Electronic files should avoid the use of on this Web site. Today’s notice of data • http://www.regulations.gov. Follow special characters, avoid any form of availability does not extend the the online instructions for submitting encryption, and be free of any defects or comment period for the Proposed comments. Attention Docket ID No. viruses. For additional information Transport Rule, which ends on October EPA–HQ–OAR–2009–0491. about EPA’s public docket, visit the EPA 1, 2010. However, during the comment • Fax: (202) 566–9744. Attention Docket Center homepage at http:// period for the NODA, EPA will accept Docket ID No. EPA–HQ–OAR–2009– www.epa.gov/epahome/dockets.htm. comments on both the specific data that 0491. Docket: All documents in the docket EPA is placing in the docket as well as • Mail: EPA Docket Center, EPA West are listed in the http:// any potential impacts of that data on the (Air Docket), Attention Docket ID No. www.regulations.gov index. Although Proposed Transport Rule until October EPA–HQ–OAR–2009–0491, U.S. listed in the index, some information is 15th, 2010. Environmental Protection Agency, not publicly available, e.g., CBI or other Mailcode: 2822T, 1200 Pennsylvania information whose disclosure is

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I. Additional Information on your estimate in sufficient detail to 2012, 2015, 2020, 2030) and unit level Submitting Comments allow for it to be reproduced. parsed file for 2012. vi. Provide specific examples to • New policy case (identified as ‘‘TR A. How can I help EPA ensure that my illustrate your concerns, and suggest SB Limited Trading’’) with the updated comments are reviewed quickly? alternatives. IPM platform (v4.10), as described To expedite review of your comments vii. Explain your views as clearly as above, except with AEO 2010 gas by Agency staff, you are encouraged to possible, avoiding the use of profanity resource assumptions: Summary send a separate copy of your comments, or personal threats. Reports (for 2012, 2015, 2020, 2030) and in addition to the copy you submit to viii. Make sure to submit your unit level parsed file for 2014. the official docket, to Murat Kavlak, comments by the comment period These policy runs include the same Clean Air Markets Division, USEPA deadline identified. State-level caps that EPA modeled in Headquarters, Ariel Rios Building, 1200 the Proposed Transport Rule. The caps Pennsylvania Avenue, NW., Mail Code: II. Web Site for Rulemaking have not been modified to account for 6204J, Washington, DC 20460; Information any changes that the new modeling telephone number: (202) 343–9634; fax The EPA has previously established a might suggest; they are merely provided number: (202) 343 2359. Web site for the proposed rulemaking at for informational purposes to allow commenters to understand the impact B. What should I consider as I prepare http://www.epa.gov/airtransport. The that changes in the model platform have my comments for EPA? Web site includes the proposed rulemaking actions and other related on the projected impacts of the caps. • 1. Submitting CBI. Do not submit this information that the public may find User Guide to IPM v4.10 output information to EPA through EDOCKET, useful in addition to a link to this files (system summary report and parsed regulations.gov or e-mail. Clearly mark NODA. files). the part or all of the information that • A description of how to build an you claim to be CBI. For CBI III. New Information Placed in the alternative gas resource assumption information in a disk or CD–ROM that Docket input for modeling (an intermediate you mail to EPA, mark the outside of the The EPA has placed the information option between AEO 2010 and EPA gas disk or CD–ROM as CBI and then resource assumptions). described below in the Proposed • identify electronically within the disk or Transport Rule docket EPA–HQ–OAR– A summary of other planned input CD–ROM the specific information that 2009–0491. updates to be implemented in the final is claimed as CBI. In addition to one • An updated version of NEEDS rulemaking (further described below). EPA proposes to use this version of complete version of the comment that (v4.10). This database provides unit the IPM model in the final Transport includes information claimed as CBI, a level characteristics of the electric Rule, modified to address any copy of the comment that does not generating units (EGUs) included in the comments that EPA receives as part of contain the information claimed as CBI IPM modeling. This includes both units the transport rulemaking effort and must be submitted for inclusion in the affected by the Proposed Transport Rule other power sector analysis. Changes public docket. Information so marked and other EGUs (e.g. fossil-fired units from the projections relied on in the will not be disclosed except in smaller than 25 MWe, non-fossil-fired proposed rule, from using an updated accordance with procedures set forth in units, and fossil-fired units 25 MWe or model, could impact the final 40 CFR part 2. Send or deliver greater in States not subject to the rulemaking in a number of ways information identified as CBI only to the Proposed Transport Rule). following address: Gene Sun, Clean Air • including, but not limited to: User Guide to NEEDS v4.10. 1. Changing emission projections that Markets Division, USEPA Headquarters, • Detailed documentation of the IPM were used to determine which Ariel Rios Building, 1200 Pennsylvania v4.10. Avenue, NW., Mail Code: 6204J, downwind areas have air quality • New base case modeling run results Washington, DC 20460; telephone concerns (i.e., non-attainment or with the updated IPM platform (v4.10): number: (202) 343–9119; fax number: maintenance) absent this rulemaking Summary Reports (for 2012, 2015, 2020, (202) 343 2359. and to determine which States 2030) and unit level parsed file for 2012 2. Tips for preparing your comments. contribute to those problems. When submitting comments, (this modeling run is analogous to the 2. Changing cost and emission remember to: base case run used to support the air projections used in the multi-factor test i. Identify the NODA by docket quality modeling that determined which to determine the amount of emissions number and other identifying States significantly contributed to non- that represent significant contribution. information (subject heading, Federal attainment or interference with EPA believes that the assumptions Register date and page number). maintenance in the Proposed Transport regarding natural gas resources in the ii. Follow directions—The agency Rule). primary IPM v4.10 base case are the may ask you to respond to specific • New policy case modeling run appropriate ones to use. EPA is however questions or organize comments by (identified as ‘‘TR SB Limited Trading’’) providing information on an alternative referencing a Code of Federal with the updated IPM platform (v4.10): set of assumptions (AEO 2010), as well Regulations (CFR) part or section Summary Reports (for 2012, 2015, 2020, as a third way that gas price number. 2030) and unit level parsed file for 2014 assumptions could be developed. EPA iii. Explain your comments, why you (this modeling run is analogous to the requests comment on the appropriate agree or disagree; suggest alternatives preferred policy option run in the natural gas assumptions to use. and substitute language for your Proposed Transport Rule). EPA intends to update the NOX rates requested changes. • New base case run results with the for fossil-fuel fired units in the final rule iv. Describe any assumptions and updated IPM platform (v4.10), as to reflect the more recent 2009 data. IPM provide any technical information and/ described above, except with the Energy v4.10 and the previous version of IPM or data that you used. Information Administration’s Annual used for the Proposed Transport Rule v. If you estimate potential costs or Energy Outlook (AEO) 2010 gas resource analysis relied on 2007 unit level NOX burdens, explain how you arrived at assumptions: Summary Reports (for rates. The updated NOX rates will more

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accurately portray the unit level control Segment is not warranted at this time. white-sided jackrabbit (Lepus callotis) installations that have occurred at However, we ask the public to submit to be emergency listed as endangered power plants during the past several us any new information that becomes under the Act and critical habitat be years. In general, about 25% of coal available concerning the threats to the designated. Included in the petition was plants have a 2009 NOX rate that reflects full species of the white-sided supporting information regarding the a change from the 2007 that is greater jackrabbit, or to either of the two species’ taxonomy and ecology, than 0.1 lb/mmbtu and 10% of the 2007 currently recognized subspecies, or the historical and current distribution, value. The 2009 unit level data can be species’ habitat at any time. present status, and actual and potential retrieved from EPA’s Data and Maps at DATES: The finding announced in this causes of decline. We acknowledged the http://camddataandmaps. document was made on September 1, receipt of the petition in a letter to epa.gov/gdm/. 2010. WildEarth Guardians, dated November EPA also intends to update ADDRESSES: This finding is available on 26, 2008. However, emergency listing a information related to new units, new the Internet at http:// species is not a petitionable action installation of pollution controls, and www.regulations.gov at Docket Number under the Act or the Administrative planned retirements. Information on FWS-R2-ES-2009-0039. Supporting Procedure Act (APA; 5 U.S.C. changes in these areas that EPA believes documentation we used in preparing Subchapter II), and is treated solely as have happened since IPM v4.10 version this finding is available for public a petition to list. In our letter we also of the model has been finalized is also inspection, by appointment, during stated that we had reviewed the petition included in the docket. normal business hours at the U.S. Fish and determined that available Between now and the time that EPA and Wildlife Service, New Mexico information did not indicate that the finalizes the Transport Rule, additional Ecological Services Field Office, 2105 species was at significant risk of well- information used to support the final Osuna NE, Albuquerque, NM 87113. being, thereby necessitating the need to transport rulemaking may be placed in Please submit any new information, provide the temporary protections the docket. materials, comments, or questions under section 4(b)(7)the Act (i.e., Dated: August 25, 2010. concerning this finding to the above emergency listing). In our letter, we Dina W. Kruger, address. advised the petitioner that, to the maximum extent practicable, we would Acting Director, Office of Atmospheric FOR FURTHER INFORMATION CONTACT: address the petition within 90 days. Programs. Wally Murphy, Field Supervisor, New During our review of the petition, we [FR Doc. 2010–21699 Filed 8–31–10; 8:45 am] Mexico Ecological Services Field Office, found that the majority of information BILLING CODE 6560–50–P 2105 Osuna NE, Albuquerque, NM cited in the petition was not readily 87113; by telephone at 505-346-4781; or available to us. Therefore, on January by facsimile at 505-346-2542. If you use 13, 2009, we requested that the a telecommunications device for the DEPARTMENT OF THE INTERIOR petitioner provide additional references. deaf (TDD), please call the Federal On February 13, 2009, the petitioner Fish and Wildlife Service Information Relay Service (FIRS) at 800- provided references. We received a 60– 877-8339. day notice of intent to sue from the 50 CFR Part 17 SUPPLEMENTARY INFORMATION: petitioner dated January 28, 2009, and [FWS-R2-ES-2009-0039] Background on April 15, 2009, the petitioner brought [MO 92210-0-0008] Section 4(b)(3)(B) of the Endangered a lawsuit against us for failure to respond to the petition within 90 days Endangered and Threatened Wildlife Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), requires that, of its receipt. On July 22, 2009, we and Plants; 12-Month Finding on a published a 90–day finding indicating Petition to List the White-Sided for any petition to revise the Federal Lists of Endangered and Threatened that the petition presented substantial Jackrabbit as Threatened or information that listing the jackrabbit Endangered Species that contains substantial scientific or commercial information may be warranted, and initiated a status AGENCY: Fish and Wildlife Service, that listing the species may be review (74 FR 36152). This notice Interior. warranted, we make a finding within 12 constitutes the 12–month finding on the October 9, 2008, petition to list the ACTION: Notice of 12–month petition months of the date of receipt of the white-sided jackrabbit as endangered. finding. petition. In this finding, we will determine that the petitioned action is: The white-sided jackrabbit was first SUMMARY: We, the U.S. Fish and (1) Not warranted, (2) warranted, or (3) listed as a candidate (Category 2) for Wildlife Service (Service), announce a warranted, but the immediate proposal Federal listing as either a threatened or 12–month finding on a petition to list of a regulation implementing the endangered species under the Act in the the white-sided jackrabbit as petitioned action is precluded by other 1982 Candidate Notice of Review (47 FR endangered and to designate critical pending proposals to determine whether 58454, December 30, 1982). Category 2 habitat under the Endangered Species species are threatened or endangered, status included those taxa for which Act of 1973, as amended. After review and expeditious progress is being made information in the Service’s possession of all available scientific and to add or remove qualified species from indicated that a proposed listing rule commercial information, we find that the Federal Lists of Endangered and was possibly appropriate, but for which listing the full species, Lepus callotis, is Threatened Species. We must publish sufficient data on biological not warranted at this time. We further this 12–month finding in the Federal vulnerability and threats were not find that listing one or both of the Register. available to support a proposed rule. In subspecies, Lepus callotis callotis and the Candidate Notice of Review Lepus callotis gaillardi, is not warranted Previous Federal Action published on February 28, 1996, we at this time. We find that listing the On October 15, 2008, we received a announced a revised list of animal and northern populations of the subspecies petition dated October 9, 2008, from plant taxa that were regarded as L. c. gaillardi as a Distinct Population WildEarth Guardians requesting that the candidates for possible addition to the

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Lists of Endangered and Threatened recognized as L. c. gaillardi as a distinct that they regard each of the previously Wildlife and Plants (61 FR 7595). The population segment under the Act. We recognized species, Lepus callotis and revised candidate list included only will examine each of these requests Lepus gaillardi, as conspecific, or former Category 1 species. All former separately below. separate subspecies of the same species Category 2 species were dropped from (that is, Lepus callotis callotis and Lepus the list to reduce confusion about the Species Information: Lepus callotis callotis gaillardi) (Anderson and Guant conservation status of these species and Taxonomy and Species Description 1962, p. 1). There are no recognized to clarify that the Service no longer common names for these subspecies. regarded these species as candidates for There has been some dispute and The white-sided jackrabbit, Lepus listing. Because the white-sided inconsistency regarding the taxonomy of callotis, occurs in New Mexico and in jackrabbit was a Category 2 species, it the species and its subspecies, and Mexico (see Figure 1 below). It is one of was no longer recognized as a candidate much of the literature remains four species of hares (family Leporidae) species. inconclusive. In his book, Wildlife of that occurs in New Mexico (Findley et The petition requests that we list the Mexico: The Game Birds and Mammals, al. 1975), and one of 15 species full species of the white-sided Leopold (1959, p. 345) included four occurring throughout the states of jackrabbit, Lepus callotis, as threatened species of jackrabbits under his Mexico (Lorenzo et al. 2003, p. 11). The or endangered. The petition also description of the common name white-sided jackrabbit can be requests that we list each of the ‘‘white-sided jackrabbits’’: Lepus alleni, distinguished from other hares by its recognized subspecies of the white- Lepus gaillardia, Lepus callotis, and extensive white sides and sided jackrabbit, Lepus callotis callotis Lepus flavigularis. In their 1962 paper, inconspicuous or absent black ear tips, and Lepus callotis gaillardi as A Classification of the White-sided as well as differences in features of the threatened or endangered, should we Jackrabbits of Mexico, Anderson and skull (Findley et al. 1975, pp. 92, 96; conclude that the full species does not Gaunt concurred with Leopold and Best and Henry 1993, p. 1; Anderson warrant listing, and the petition states others in the existence of four species, and Guant 1962, pp. 1-2). The species that these recognized subspecies are with non-overlapping geographic has black on the upper parts of its tail taxonomically valid. The petition ranges, assigned the common name and the back and flanks are white further requests that we list the northern ‘‘white-sided jackrabbit’’ (Anderson and (Lorenzo et al. 2003, p. 11). populations of the subspecies currently Guant 1962, p. 1). The authors later state BILLING CODE 4310–55–S

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Figure 1. Map of the range of the white-sided jackrabbit. (Based on Anderson and Gaunt 1962.)

BILLING CODE 4310–55–C the ear, the throat patch, and the hue of Studies have been conducted to There is limited discussion in the dorsal cover hairs. Specimens of this determine the genetic relationship literature regarding the distinctions subspecies also have paler rump patches between species within the genus Lepus between the two subspecies, Lepus that contrast less with the whitish flanks (Lorenzo et al. 2003); however, we are callotis callotis and Lepus callotis and paler patches on the shoulders that not aware of any information that gaillardi. Anderson and Gaunt (1962, tend to contrast with (rather than match establishes the genetic distinctiveness of pp. 2-5) compared specimens from each or blend with) the darker middorsal the two subspecies Lepus callotis of the subspecies and recorded the pelage (fur). The authors also observed callotis and Lepus callotis gaillardi. following differences: L. c. gaillardi has differences between the two subspecies Although the literature is inconclusive, paler and coarser coat, including the in skull structure. we have not encountered any fringe of hair along the inner margin of information which indicates that the

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subspecies L. c. callotis and L. c. act as a barrier and a catalyst for composition. A detailed description of gailllardi are not taxonomically valid. subspeciation in many mammal species, each follows. Therefore, we consider L. c. callotis and isolating one subspecies to the north of The Animas Valley is a confined L. c. gaillardi to be valid subspecies of the river from the other to the south basin that lies 10 km (6 mi) west of the the species L. callotis. (Peterson 1976, pp. 496-498). continental divide. The elevation is The jackrabbit’s historical range in the approximately 1,550 meters (m) (5,085 Biology Animas and Playas Valleys of New feet (ft)). It is bounded on the east by the In the white-sided jackrabbit, females Mexico occurs entirely within the Animas Mountains, on the west by the are generally larger than males (Bednarz Diamond A Ranch (Traphagen 2010, p. Peloncillo Mountains, and on the south 1977, pp. 13, 15). In New Mexico, 3) and was estimated to be about 121 by the Sierra San Luis Mountains. The white-sided jackrabbits are observed square kilometers (sq km) (47 square International Boundary between the almost unvaryingly in pairs (Bednarz miles (sq mi)), or approximately 12,000 United States and Sonora, Mexico, lies 1977, p. 9), suggesting that mated hectares (ha) (30,000 acres (ac)) near the southern terminus of the valley. animals remain together on a long-term (Bednarz 1977, p. 6; Bednarz and Cook Precipitation averages about 381 basis. Pair bonds may serve to ensure 1984, p. 359). We are unaware of any millimeters (mm) (15 inches (in)) adequate reproduction, in the context of similar estimates for the jackrabbit’s annually, 60 percent of it falling generally low population density range in Mexico. However, utilizing between July and October. A large (Bednarz 1977, p. 12). The members of Geographic Information System (GIS) portion of the lower Animas Valley lies the pair are usually near each other and techniques and assessing the range in a dry Pleistocene (the epoch that run together when approached by maps of Anderson and Gaunt (1962, p. spanned from 2.6 million to 12,000 intruders (Bednarz 1977). Several litters 4) and Hall (1981, p. 330), we estimate years ago) lakebed, parts of which fill are probably produced each year, with the range of the jackrabbit in the United seasonally to shallow depths of a few litter size appearing to average 2.2 States to be less than one percent of the centimeters. Soil moisture is therefore young (Bednarz 1977, p. 12). The young entire range of the species. sufficient to support a moderate amount tend to have a soft, woolly coat in early The white-sided jackrabbit has not of wetland vegetation, namely nutgrass life and attain sexual maturity at a rapid been confirmed as extant in Arizona (Cyperus rotundus), a plant that is rate. Daytime observations of white- (Cahalane 1939, p. 436), although in thought to be a seasonally important sided jackrabbits are uncommon, as the 1954, Hoffmeister and Goodpaster food source for the jackrabbit (Bednarz species is primarily nocturnal (Bednarz reportedly observed what they believed 1977, p. 14). 1977, pp. 6-11; Best and Henry 1993, p. to be white-sided jackrabbits along the The lower Animas Valley supports a 5). Although many species of jackrabbit west base of the Huachuca Mountains, variety of grass and forb species, such as and hare are considered pests because Cochise County, Arizona (Hoffmeister blue grama; Bouteloua curtipendula they may damage crops, fields, and 1986, p. 562). There have been other, (sideoats grama); Sporobolus airoides orchards, the white-sided jackrabbit is more recent reported sightings of the (alkali sacaton); Muhlenbergia torreyii not known to depredate crops. white-sided jackrabbit in Arizona; (ring muhly); Pleuraphis mutica, also however, these have been refuted by known as Hilaria mutica (tobosa); Distribution experts on the species (Traphagen buffalograss; black grama; wolftail; The core distribution of the white- 2009). Therefore, New Mexico is the Muhlenbergia repens (creeping muhly); sided jackrabbit lies within Mexico only confirmed state in the United Panicum obtusum (vine mesquite); (New Mexico Department of Game and States where the species has been Aristida spp. (three-awn), Sphaeralcea Fish (NMDGF) 2006a, p. 114). The documented to occur. spp. (globemallow); Gutierrezia species historically occurred from sarothrae (broom snakeweed); Viguera Habitat southern New Mexico to northern annuum (goldeneye); Eriogonum Oaxaca, Mexico, within two distinct This species is highly elusive. It wrightii (Wright buckwheat); and Aster geographic areas (Best and Henry 1993, inhabits predominately mature open spp. The occurrence of this specific p. 2). These two distinct geographic grasslands that have low shrub density grassland association, known as plains areas are occupied by each of the two and level terrain, avoiding hills or grassland, is uncommon and fairly subspecies. The historical range of the mountains (Bednarz and Cook 1984, p. unique in the southwestern United subspecies Lepus callotis gaillardia 359; Cook 1986, p. 15; Desmond 2004, States, although it becomes more includes the southern Animas and p. 416). In the United States portion of common south into Chihuahua and Playas valleys of Hidalgo County, New its range, the white-sided jackrabbit northern Durango, Mexico (Traphagen Mexico, south into west-central appears to be found only in association 2009, p. 2). The southern Animas Valley Chihuahua and north-central Durango, with grasslands (Bednarz 1977, p. 6). is largely free of shrubs, probably as a Mexico (Bednarz and Cook 1984, p. 358; More than 97 percent of all observations function of soil structure, water Reynolds 1988, p. 1), although it is now of this species have been in pure drainage in soils, frequent fires, and likely extirpated from the Playas Valley grasslands and less than 3 percent in cold air drainage. The Animas Valley is as no observations of the species have grasslands with varying amounts of surrounded by several large mountain been made in this area during more forbs (flowering herbs) and shrubs ranges that create winter microclimates recent surveys (Traphagen 2002, p. 5; (Bednarz and Cook 1984). In New too cold to support the establishment of Frey 2004, p. 22; NMDGF 2006a, p. 115; Mexico, white-sided jackrabbits feed shrubs such as mesquite (Prosopis spp.), Traphagen 2010, p. 1). The other primarily on Bouteloua gracilis (blue cholla (Cylindroopuntia spp.), and subspecies, Lepus callotis callotis, grama), Buchloe dactyloides creosote (Larrea spp.), which are not ranges from central Durango south (buffalograss), Bouteloua eripoda (black able to tolerate the cold winter nights across the open plains of the Mexican grama), and Lycurus phleoides (wolftail) (Traphagen 2009, p. 2). Plateau to the State of Oaxaca, Mexico (Bednarz 1977, pp. 14, 16). In New McKinney Flats lies 10 km (6 mi) east (Hall 1981, p. 330). The geographic Mexico, the white-sided jackrabbit was of the Continental Divide in the western separation of the two areas occurs on historically limited to two valleys, the fork of the southern Playas Valley just either side of the Rio Nazas in Durango, Animas Valley and the Playas Valley, west of the Whitewater Mountains. This Mexico. This river has been observed to that differ in their vegetative 4,266-ha (10,240-ac) site is about 1,525

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m (5,000 ft) above sea level. Bednarz Although Goldman and Moore describe survey records, this species was likely (1977) estimated the area of suitable the major habitat types within Mexico, always rare and appears to continue to habitat for Lepus callotis on McKinney we have no information regarding the be rare in the United States. Flat to be 1,425 ha (3,520 ac). specific habitats occupied by the Some survey work has been Conditions on McKinney Flat are drier jackrabbit within these broad habitat completed in Mexico in modern times than in the Animas Valley, averaging types. (Desmond 2004; Reynolds 1988); about 228 mm (9 in) annual Population Abundance however, these surveys have tended to precipitation. McKinney Flat is be one- or two-summer efforts, and characterized as Chihuahuan desert The white-sided jackrabbit has never without historical information to grassland (Traphagen 2009, p. 2). Shrub been known to be abundant in the compare their numbers to, it is difficult invasion in this grassland association United States. The species was first to assess population trends. Reynolds has occurred on a much larger scale discovered in New Mexico by Mearns in (1988) interviewed ‘‘campesinos, than in the plains grassland association 1892 during surveys of the International ranchers, and whenever possible, that exists in the Animas Valley Border between the United States and members of a local hunting club’’ about (Traphagen 2009, pp. 2-3). Mexico (Mearns 1895, p. 552). their experiences with white-sided Graminoid species in the Playas Specimens were not collected again in jackrabbits in the Mexican States of Valley include blue grama, sideoats New Mexico until 1931 (Anderson and Guanajuato, Guerrero, Hidalgo, Jalisco, grama, Eragrostis intermedia (plains Gaunt 1962), and then again in 1975 Mochoacan, Morelos, Oaxaca, Puebla, lovegrass), tobosa, Bouteloua hirsuta (Bogan and Jones 1975, p. 47; Bednarz Queratoro, San Luis Potosi, Tlaxcala, 1977, p. 1). The literature between the (hairy grama), Scleropogon brevifolia and Zacatecas. The reliability of time of the initial collections and the (burrograss), Setaria machrostachya anecdotal reports can also be difficult to subsequent collections in 1975 show (Plains bristlegrass), black grama, assess; however, Reynolds (1988) argument amongst researchers as to wolftail, creeping muhly, vine mesquite, reported that the persons interviewed in whether the white-sided jackrabbit did Bothrichloa barbinodis (cane Guanajuato, Guerrero, Hidalgo, and indeed occur in the United States in the beardgrass), and three-awn; commonly Morelos indicated that the white-sided early 1900s. Multiple survey efforts found forbs are Solanum eliaginifolium jackrabbit may be reduced in numbers have occurred since the 1975 surveys in (horse nettle), Wright buckwheat, compared to the previous 20 to 25 years. attempts to document the extent of the various Croton spp., and Aster spp. are Desmond (2004) reported on surveys of range of the species in the United States commonly found forbs. Shrubs and trees white-sided jackrabbits conducted in such as honey mesquite (Prosopis and the size and density of the 1998 and 1999 in central and glandulosa), soaptree yucca (Yucca populations. northwestern Chihuahua, Mexico. He elata), catclaw mimosa (Mimosa As discussed above, white-sided reported 0.03 jackrabbits per acre biuncifera), and various prickly pear jackrabbits are elusive and largely surveyed in 1998, and 0.04 jackrabbits (Opuntia spp.) and cholla nocturnal. As such, the most effective per acre surveyed in 1999 (Desmond (Cylindroopuntia spp.) are also present. surveys are completed in the dark by We have little information pertaining driving a vehicle through an area of 2004). When the numbers were adjusted to the habitat of the white-sided potential habitat with a bright spotlight. to reflect just the area of plains jackrabbit in Mexico. The primary biotic Bednarz (1977) completed a series of grasslands, the preferred habitat of the province in which the jackrabbit occurs such surveys and found a mean of 15 white-sided jackrabbit in this part of its is termed the Chihuahua-Zacatecas jackrabbits per survey in the Animas range, he reported 0.06 jackrabbits per biotic province. This province covers Valley. Later, Cook (1981) resurveyed a acre in 1998 and 0.08 jackrabbits per the northern interior plains in similar area and found a mean of 7.5 acre in 1999 (Desmond 2004). Again, the Chihuahua, western Coahuila, Durango, jackrabbits per survey. Mehlhop (1995) importance of these numbers is difficult Zacatecas, San Luis Potosi, and reported on surveys in the Animas and to assess because there is no prior or Aguascalientes (Goldman and Moore Playas Valleys conducted in 1990, 1994, subsequent survey information to which 1945, p. 354). It is an arid interior desert and 1995. The mean number of to compare them; however, Desmond region consisting mainly of grassland jackrabbits observed during the 1990 (2004, p. 417) notes, ‘‘It is not clear if plains interrupted by areas overgrown surveys was 3.2, while the mean for the white-sided jackrabbits have always by various shrub species (Goldman and 1994 and 1995 surveys was 1.1 occupied semidesert grasslands at low Moore 1945, p. 354). The range of the (Mehlhop 1995). Traphagen (2010) has densities or if reduced densities in this jackrabbit also falls within the biotic completed the most recent surveys for grassland type are related to habitat provinces termed the Transverse white-sided jackrabbits, and while the degradation.’’ Volcanic biotic province and the Sierra author does not report the mean number Summary of Information Pertaining to Madre del Sur biotic province. The of jackrabbits sighted per survey effort, the Five Factors for Lepus callotis Transverse Volcanic biotic province he notes 28 were sighted over the course spans parts of 11 States and its diverse of 9 surveys. Traphagen (2010) also Section 4 of the Act and environmental and geographic features notes that surveys were conducted by implementing regulations (50 CFR part cannot be generalized; however, it another party between 1997 and 2002, 424) set forth procedures for adding includes areas of grasslands but that the results of those studies have species to, removing species from, or interspersed with shrubland (Goldman not been analyzed. On its face, the reclassifying species on the Federal and Moore 1945, pp. 356-357). The survey information for the white-sided Lists of Endangered and Threatened Sierra Madre del Sur biotic province jackrabbit would seem to suggest a Wildlife and Plants. Under section includes high mountain areas ranging decline in species density in the United 4(a)(1) of the Act, a species may be from west to east through central States over the last 35 years. However, determined to be endangered or Guerrero and the interior valleys of each of the surveyors utilized somewhat threatened based on any of the central and western Oaxaca. The climate different survey methods and different following five factors: is similar to that of the plateau of the survey routes, thus precluding a (A) The present or threatened northern portion of the country statistical comparison of their results. destruction, modification, or (Goldman and Moore 1945, p. 358). Based on the historical and current curtailment of its habitat or range;

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(B) Overutilization for commercial, (BLM 2009, p. 10). Once invasive shrubs in the Animas Valley (Traphagen 2009, recreational, scientific, or educational become established, they tend to p. 2). purposes; increase in density and outcompete Livestock Grazing (C) Disease or predation; other native vegetation for soil moisture, (D) The inadequacy of existing nutrients, and sunlight and are less Areas where white-sided jackrabbits regulatory mechanisms; or susceptible to drought than herbaceous historically or currently occur in the (E) other natural or manmade factors species, which are green and fleshy as United States were continuously grazed affecting its continued existence. opposed to the generally more woody for over a century (Traphagen 2002, p. In making this finding, information shrubs. 3). Overgrazed grassland is susceptible pertaining to the full species of the Numerous sources substantiate that to invasion by shrubs and forbs, a cover white-sided jackrabbit, Lepus callotis, in past range-management practices have type which greatly favors the black- relation to the five factors provided in contributed to the degradation of desert tailed jackrabbit (Baker 1977, pp. 222- section 4(a)(1) of the Act is discussed grasslands or their conversion to 223; Bednarz and Cook 1984, pp. 359- below. In making our 12–month finding shrublands (National Museum of 360; Desmond 2004, p. 417; Moore-Craig on a petition to list the full species of Natural History 2008, p. 1; Bednarz and 1992, p. 13; NMDGF 2006a, p. 115). the white-sided jackrabbit, Lepus Cook 1984, p. 360; Desmond 2004, p. The Diamond A Ranch in New callotis, we considered and evaluated 417; Forest Service 2007, p. 15; Service Mexico, which includes the historic the best available scientific and 2008, p. 53). The BLM reports in its range of the jackrabbit in both the commercial information. 2009 Environmental Assessment for the Animas and Playas Valleys, has been In considering what factors might Bootheel Restoration Initiative that the very lightly grazed since 1994, and there constitute threats to a species, we must vegetative community in the areas have been several periods where grazing look beyond the exposure of the species affected by shrub encroachment in was deferred on the ranch for 4 years or to a factor to evaluate whether the southern New Mexico is far removed more (Traphagen 2009, p. 3). Prior to species may respond to the factor in a from the historical climax community ownership by the Animas Foundation, way that causes actual impacts to the and no longer supports the historical the ranch was owned by The Nature species. If there is exposure to a factor abundance and diversity of flora and Conservancy, and stocking rates were and the species responds negatively, the fauna (BLM 2009, p. 13). Bednarz and very low (Traphagen 2009, p. 5). During factor may be a threat and we attempt Cook (1984, p. 360) postulated that the period from 2003 to 2006 there was to determine how significant a threat it numbers of white-sided jackrabbit had no cattle grazing in the Animas Valley is. The threat is significant if it drives, decreased in New Mexico as the density where the white-sided jackrabbit occurs or contributes to, the risk of extinction and vigor of grasses declined, while (Traphagen 2009, p. 5). We have no of the species such that the species black-tailed jackrabbits and desert information about current grazing warrants listing as endangered or cottontail (Sylvilagus audubonii) practices in historical habitat in the threatened as those terms are defined in numbers increased in response to an Playas Valley beyond the general the Act. increase in woody shrubs. Desmond statement that the Diamond A Ranch has been lightly grazed since 1994. This Factor A. The Present or Threatened (2004, p. 417) reported a similar pattern species appears to be extirpated from Destruction, Modification, or from Chihuahua, Mexico, where she that portion of its range. The extent to Curtailment of Its Habitat or Range found that increased shrub encroachment into grasslands likely has which past grazing practices may have Livestock grazing and suppression of negatively affected populations of contributed to that extirpation is wildfire have been shown to lead to white-sided jackrabbits (Desmond 2004, unknown; however, the Playas Valley shrub encroachment and degradation of p. 417). may have been more susceptible to grasslands, separately and in Traphagen (2009, pp. 1- 4) reports that shrub encroachment resulting from past combination (Bureau of Land the impacts of livestock grazing and fire overgrazing than the Animas Valley as Management (BLM) 2009, p. 2; Malpai suppression may differently affect the a result of the differences in grassland Borderlands Habitat Conservation Plan two valleys that compose the species’ type and cold air drainage patterns Technical Working Group 2008, p. 18; portion of the range in the United discussed above. Traphagen 2002, p. 12). In New Mexico, States. Traphagen (2009, p. 2) reports Finally, while we know that grazing the white-sided jackrabbit is found only that the Animas Valley is largely free of of livestock occurs in Mexico (see, for in association with mature, high- shrubs, likely due to the soil structure, example, Buller et al. 1960), we do not elevation (greater than 1,460-m (4,800- water drainage, frequent fires, and cold have information on the extent or ft)) plains or Chihuahuan desert air drainage. Cold air drainage is a intensity of historical or current grasslands, characterized by flat process that occurs in valleys as the livestock grazing practices throughout topography and few shrubs and forbs ground cools at night, cooling the air the range of the species in Mexico. (Bednarz 1977, p. 6). The bootheel and causing denser cold air from higher Brown (1994) reported that a primary region of southwestern New Mexico, elevations to move down into the valley. cause of loss and degradation of which contains the range of the white- The Animas Valley is surrounded by grasslands in the Chihuahuan Desert is sided jackrabbit in the United States, several large mountain ranges that overgrazing by cattle; however, the was dominated by grassland until the create winter microclimates too cold to extent of those grassland losses late 19th century. Historically, the support the establishment of shrubs on throughout the historical range of the presence of shrubs and low growing the valley floor such as mesquite, jackrabbit and the impacts of those trees was limited to drainages or to cholla, and creosote (Traphagen 2009, p. losses on the jackrabbit are not known. rocky shallow soil areas; however, 2). In contrast, the Playas Valley Previous research had indicated that changes in land use to accommodate receives less precipitation annually and the jackrabbit required 65 percent grass agricultural practices, including is generally drier than the Animas cover of species that included blue and livestock grazing and fire suppression, Valley (Traphagen 2009, p. 2). Shrub black grama, ring muhly, buffalograss, have led to the invasion of woody invasion in this grassland association wolftail, and bottlebrush squirreltail shrubs and their establishment into sites has occurred on a much larger scale (Elymus elymoides) (Bednarz and Cook where they did not previously occur than in the grassland association found 1984, pp. 359-360). However, in a

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research project commissioned by the sided jackrabbit. Humphrey (1958, p. in the large portion of its range in NMDGF it was found that presence of 245) believed fires were the controlling Mexico. The best available information the white-sided jackrabbit was highly factor that kept shrubs from invading does not describe the historical or correlated with the presence of the desert grasslands in southeastern current trends in grassland health in the buffalograss (Traphagen 2002, p. 6). No Arizona and southwestern New Mexico. Mexican portion of the species’ range in other grasses analyzed in the study, The BLM came to a similar conclusion a way that allows us to assess the including blue and black grama, ring for the region of southwestern New magnitude or immediacy of the impacts muhly, wolftail, and bottlebrush Mexico where the white-sided on the species. Thus, we cannot squirreltail, showed any correlation jackrabbit historically occurred (BLM conclude that habitat degradation due to with white-sided jackrabbit habitat. The 2009, pp. 1-3). Alternatively, Valone et livestock grazing and fire suppression Animas Valley is dominated in many al. (2002, p. 563) reported that two fires leading to shrub encroachment is a areas by buffalograss, but buffalograss is in 5 years did not result in high levels threat to the species as a whole, either no longer present in the Playas Valley of mortality to woody shrubs such as now or in the foreseeable future. (Traphagen 2009, p. 3). mesquite on the Diamond A Ranch. One study found a relationship Traphagen (2009, p. 4) reports that Factor B. Overutilization for between grazing and the presence of fire has occurred on a frequent and Commercial, Recreational, Scientific, or buffalograss in two plots in the Animas widespread basis across the Diamond A Educational Purposes Valley (Traphagen 2009, pp. 3-4). The Ranch in recent decades, and that fire The white-sided jackrabbit is not Sacahuiste Grazing Exclosure has been suppression has not occurred on the believed to be overutilized in the U.S. ungrazed since 1996. This plot is paired ranch in recent years. He states that portion of its range, and current with a grazed plot located 50 m (160 ft) there have been several major fires in information on its utilization in Mexico outside the exclosure. The ungrazed the Animas Valley that have burned is limited (Traphagen 2009, p. 4). exclosure experienced a decline of 300 nearly 100 percent of the habitat of the Hunting of the species is prohibited in percent in cover of buffalograss during jackrabbit (Traphagen 2009, p. 4). He New Mexico as it is currently protected the 12–year period of no grazing, while provides a partial list of fires and area under the New Mexico Wildlife the grazed plot declined by only 30 burned on the ranch: in June of 2009 the Conservation Act (NMDGF 2008, p. 10). percent (Traphagen 2009, p. 4). If ‘‘Pascoe fire’’ burned 23,635 ha (58,404 Further, in New Mexico, the white- grazing does not occur, buffalograss is ac) in the southern Animas Valley and sided jackrabbit only occurs on private outcompeted because of its lack of 12,304 ha (30,405 ac) in the west fork land, thereby limiting hunting shade tolerance (Traphagen 2009, p. 5). of the Playas Valley. In 1998 the ‘‘Flat opportunities (Traphagen 2009, p. 4). These results indicate that light grazing fire’’ burned over 12,867 ha (31,796 ac) Literature indicates that the species has may be an important part of maintaining of the Animas and Playas Valleys. In been commonly hunted in Mexico for the health of the ecosystem. 1999 the ‘‘Garcia fire’’ burned 8,660 ha commercial markets (Leopold 1959, p. The best available information (21,400 ac) in habitat. In 2000 the ‘‘Fitz 349; Reynolds 1988). While hunting for indicates that grazing is not currently fire’’ burned 2,007 ha (4,961 ac) in the commercial markets is no longer occurring at a level which may heart of white-sided jackrabbit habitat. allowed, Reynolds (1988) reports that constitute a threat to extant populations The ‘‘Lang fire’’ burned another 404 ha hunting for personal use continues. of the species in New Mexico, although (1,000 ac) adjacent to the Fitz fire. Matson and Baker (1986, p. 41) grazing may have played a role in the From these data, we can conclude that indicated that the species was heavily presumed extirpation of white sided- fire suppression does not currently hunted and considered highly edible. jackrabbits in the Playas Valley. constitute a threat to the species in New While there is information that hunting Information about the species’ status in Mexico because there is information on of white-sided jackrabbits occurs in Mexico is very limited. As discussed the dates of fires from the last several Mexico, we are unable to assess the above, overgrazing may have caused years as well as the approximate area level of hunting that occurs and whether some loss or degradation of grasslands burned. The best available information it is having an impact on the population in the Chihuahuan Desert, and the does not indicate that fire suppression levels and overall status of the species. encroachment of shrubs into grasslands occurs in New Mexico at a level which The vast majority of the species’ range may have negatively affected may impact the status of the species, by lies in Mexico and the best available populations of white-sided jackrabbits allowing for the conversion of its information does not allow us to assess there. However, the information preferred habitat. We have no the magnitude and immediacy of this available concerning grazing practices information about the frequency or impact on the species in that country. in Mexico does not allow us to assess distribution of wildfires throughout the Additionally, the species does not the magnitude or immediacy of these species’ range in Mexico. We have no appear to be impacted by such practices impacts on the species, nor the extent of information about the existence of in the New Mexico portion of its range. the occupied range of the jackrabbit that wildfire suppression or prescribed burn Therefore, we conclude that hunting is may be subject to overgrazing impacts. programs throughout the species’ range not currently a known a threat to the In the absence of information that in Mexico. species as a whole throughout its range. allows us to make a reasonable It is known that both shrub There is some information which connection between the impacts of encroachment into grassland fostered by indicates that the white-sided jackrabbit livestock grazing and current or future current and historical grazing practices, is occasionally subject to impacts from declines of white-sided jackrabbits, we as well as fire exclusion, have degraded animal damage control programs. are unable to conclude that this species habitat occupied by the species in the Various rabbit species occasionally feed is threatened by grazing practices. United States portion of the range. on crop plants and are seen as pests; However, as stated above, we do not however, the white-sided jackrabbit has Wildfire Suppression find this to be at a level that would not been documented as a heavy Wildfire suppression is often a cause constitute a threat to extant populations consumer of crop plants. The U.S. of grassland degradation. Fire exclusion of this species in New Mexico. Again, Department of Agriculture (USDA) has likely led to encroachment of shrubs there is very little information available reported that jackrabbits (Lepus spp.) into the grassland habitat of the white- about the species’ status and its habitat have been taken in New Mexico as part

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of their animal damage control program predation by bird species active during white-sided jackrabbit in the United (USDA Animal and Plant Health the day (Bednarz 1977, p. 18). Although States. However, they provide no Inspection Service 1994, Appendix H, the jackrabbit is subject to predation, information that documents the extent, pp. 18-19). More recent data from 2007 there is no data from either country magnitude, or immediacy of the and 2008 on the numbers and kinds of which indicates that predation is perceived inadequacies of the MBHCP animals killed or euthanized by wildlife occurring at a level which may or how they threaten the white-sided services in New Mexico report only constitute a threat to the species jackrabbit in New Mexico. Traphagen cottontail rabbits as having been lost. throughout its range. (2009, pp. 4-5) provides information There is no description of current or Although white-sided jackrabbit indicating that the Animas Foundation future plans for lethal control of any individuals may be subject to occasional and the Malpai Borderlands Group have white-sided jackrabbits, nor is there a infections or predation, there is no supported numerous research, quantification of the amount that may evidence that either of these is occurring monitoring, and restoration projects, have occurred historically by either the at a level which may affect the status of with nearly all of the projects focusing USDA or the general public. We have no the species as a whole. Therefore, we on aspects of rangeland health, shrub information on the activities of this type find that the white-sided jackrabbit is invasion, and endangered species throughout the species’ range in Mexico. not threatened due to disease or conservation. Traphagen (2009, p. 5) Therefore, we find that the best predation, either now or in the states that several major prescribed available information does not indicate foreseeable future. burns have been conducted in the that the white-sided jackrabbit is Factor D. The Inadequacy of Existing Malpai Borderlands Region in the last currently subject to animal damage Regulatory Mechanisms 20 years in addition to allowing natural control programs by methods such as fires to run free. Traphagen (2009, p. 5) trapping or shooting, or is likely to be To determine if existing regulatory also describes the cooperation of private in the future in New Mexico. mechanisms are adequate to protect the ranchers in deferring grazing in order to While individual white-sided white-sided jackrabbit, we evaluated reduce woody shrub cover and to allow jackrabbits may be subject to agreements and laws in effect within the pastures with insufficient biomass to overutilization or animal damage range of the species. The white-sided recover. control programs, the available jackrabbit was listed as threatened by The Mexican Federal agency known information on this impact does not the State of New Mexico on January 24, as the Instituto Nacional de Ecologia´ is allow us to assess whether or not these 1975. This designation provides the responsible for the analysis of the status impacts are occurring at a level which protection of the New Mexico Wildlife and threats that pertain to species that may affect the status of the species as a Conservation Act, which prohibits are proposed for listing in the Norma whole. Therefore, we find that the direct take of the species except under Oficial Mexicana NOM-059 (the white-sided jackrabbit is not threatened issuance of a scientific collecting Mexican equivalent to a threatened and due to overutilization for commercial, permit. However, this only conveys endangered species list), and if recreational, scientific, or educational protection from collection or intentional appropriate, the nomination of species purposes, either now or in the harm. Although the State of New to the list. The Instituto Nacional de foreseeable future. Mexico statutes require the NMDGF to Ecologia´ is generally considered the develop a recovery plan that will restore Mexican counterpart to the United Factor C. Disease or Predation and maintain habitat for threatened States’ Fish and Wildlife Service. The We are not aware of any research that species, the jackrabbit does not have a white-sided jackrabbit is not included in has been conducted to specifically finalized recovery plan, conservation the NOM-059 (SEDESOL 2008) and is examine the role of disease in the white- plan, or conservation agreement therefore not protected by Federal sided jackrabbit. Bednarz (1977, p. 19) (NMDGF 2006b, p. 430). regulation in Mexico. indicated that a lung infection has been There is some dispute concerning the In NatureServe, the white-sided observed in white-sided jackrabbits in effectiveness of the conservation efforts jackrabbit’s global ranking is G3 New Mexico; however, Moore-Craig of the Malpai Borderlands Group in (vulnerable) and its National and State (1992, p. 11) noted that the infections Hidalgo County, New Mexico. The Status rankings are N1S1 (critically found by Bednarz were all of a minor petitioners state that the Malpai imperiled). The species’ status under nature, and the overall health of the Borderlands Group does not afford the International Union for jackrabbit population appeared to be fair protection to the white-sided jackrabbit Conservation of Nature and Natural to good. Tularemia, a common disease or to its habitat as intended (WildEarth Resources is ‘‘near threatened.’’ among black-tailed jackrabbits, has not Guardians (2008)). The apparent basis of However, these lists are not regulatory been found in the white-sided jackrabbit this position is that the Service issued mechanisms; they serve only to notify in New Mexico (Moore-Craig 1992, p. an incidental take permit under section the public of the species’ status; no 11). We do not have any reports of 10(a)(1)(B) of the Act on private lands to conservation or management actions are disease in the white-sided jackrabbit in the Malpai Borderlands Group for the required and no regulatory authority for Mexico. Malpai Borderlands Habitat species conservation is established A variety of potential predators exists Conservation Plan (MBHCP). WildEarth through these listings. Additionally, the throughout the species’ range, including Gardians (2008) also contends, based white-sided jackrabbit is on the coyote (Canus latrans), kit fox (Vulpes upon observed degradation of grassland Regional Forester’s Sensitive Species macrotis), gray fox (Urocyon habitat and declines in the jackrabbit List for the Coronado National Forest cinereoargenteus), badger (Taxidea population, that the Malpai Borderlands (Forest Service 2007, p. 15); however, taxus), spotted skunk (Mephitis Group is not fulfilling its stated mission we found no information to that mephitis), and a number of predatory to restore and maintain natural indicates the jackrabbit is present on bird species. Of these carnivores, processes that support diverse and any Forest Service lands in New probably only the coyote is able to flourishing animal life in the Mexico. successfully prey on adult jackrabbits borderlands region, which includes the There is information that indicates with much frequency, as the jackrabbit Diamond A Ranch in southern Hidalgo that the white-sided jackrabbit’s status is nocturnal and generally avoids County, and constitutes the range of the as a State-listed threatened species in

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New Mexico confers little regulatory shrublands appear to be more sensitive hypothetical outcomes associated with protection (except against direct take). than previously thought to variability of, climate change that could potentially Further, the white-sided jackrabbit is and changes in, major climate change affect the white-sided jackrabbit habitat. not covered by any known regulations drivers, such as the increase in However, we lack predictive local or in Mexico. However, as discussed in the atmospheric carbon dioxide. Several regional models on how climate change other Factors of this section, we have climate change models project that the will specifically affect the habitat in not identified any threats to this species southwestern United States will become either country. Given that reliable, that are likely to negatively affect the hotter and drier, and indicate that the predictive models have not been status of the species as a whole, such portion of southwestern New Mexico developed for use at the local scale in that the limited regulatory protection is currently occupied by the white-sided New Mexico’s bootheel region or for the not likely to represent a threat to the jackrabbit will be characterized by sites in the many States in Mexico species. Therefore, we find that the shrubland or woodland as a result of within the jackrabbit’s range, currently white-sided jackrabbit is not threatened climate change (The Wildlife Society there is little certainty regarding the by inadequacy of regulatory 2004, p. 6; Izaurralde et al. 2005, pp. timing, magnitude, and net effect of mechanisms, either now or in the 110-111). In their Vulnerability impact. Therefore, we find it is not foreseeable future. Assessment for Biodiversity in New possible at this time to make reliable Mexico, Enquist and Gori (2008, p. 14) predictions of climate change effects on Factor E. Other Natural or Manmade consider the white-sided jackrabbit to be the status of the white-sided jackrabbit, Factors Affecting Its Continued a drought-sensitive conservation target due to the current limitations in Existence based upon the predicted conversion of available data and climate models. The following natural or manmade its grassland habitat to shrubland. Based on the best available information factors may affect the white-sided Further, information indicates that and our current knowledge and jackrabbit or its habitat, or both, and are climate change might contribute to more understanding, we conclude that discussed below: climate change, frequent and intense drought within the climate change is not a known threat to consumption of poisonous plants, United States and northern Mexico the white-sided jackrabbit or its habitat, impacts by vehicles on roads, and fire. portion of the range of the jackrabbit now or in the foreseeable future. Climate Change (Seager et al. 2007, pp. 1181-1182). In consultation with leading scientists Food Poisoning The Intergovernmental Panel on from the southwestern United States, A single suspected case of food Climate Change (IPCC) is a scientific the New Mexico Office of the State poisoning of white-sided jackrabbits is body set up by the World Engineer prepared a report for the known. Bednarz (1977, p. 18) detailed a Meteorological Organization and the Governor (D’Antonio 2006) which made case in which a New Mexico rancher United Nations Environment Program in the following observations about the found several dead white-sided 1988. It was established because policy impact of climate change in New jackrabbits while eradicating mustard makers needed an objective source of Mexico: plants. Bednarz (1977, p. 18) suggests information about the causes of climate (1) Warming trends in the American that this mortality may have been change, its potential environmental and Southwest exceed global averages by caused by the jackrabbits’ consumption socio-economic consequences, and the about 50 percent (p. 5); of mustard plants and ensuing nitrate adaptation and mitigation options to (2) Models suggest that even moderate poisoning. Consumption of mustard respond to it. The Service considers the increases in precipitation would not plants is known to cause nitrate IPCC an impartial and legitimate source offset the negative impacts to the water poisoning in cattle, and Bednarz (1977, of information on climate change. In supply caused by increased temperature p. 18) states that it likely has the same 2007, the IPCC published its Fourth (p. 5); effect on jackrabbits. We are not aware Assessment Report, which is considered (3) Temperature increases in the of any other similar reports or the most comprehensive compendium Southwest are predicted to continue to information that indicates that food of information on actual and projected be greater than the global average (p. 5); poisoning threatens the jackrabbit. global climate change currently and There is no evidence that food available. (4) The intensity, frequency, and poisoning is occurring at a level which Although the extent of warming likely duration of drought may increase (p. 7). may affect the status of the species as a to occur is not known with certainty at The best available information whole, now or in the foreseeable future. this time, the IPCC (2007, p. 5) has indicates that the white-sided jackrabbit concluded that warming of the climate may be vulnerable to climatic changes Impacts by Vehicles is unequivocal and continued that would decrease suitable habitat in There is information that indicates greenhouse gas emissions at or above New Mexico; however, while it appears that the white-sided jackrabbit is subject current rates would cause further reasonable to assume that the white- to fatal impacts from vehicles on roads warming (IPCC 2007, p. 13). The IPCC sided jackrabbit may be affected, we within the species’ range in New also projects that there will very likely lack sufficient certainty to know Mexico. Moore-Craig (1992, p. 16) and be an increase in the frequency of hot specifically how climate change will Bednarz (1977, p. 18) reported that that extremes, heat waves, and heavy affect the species. Despite large-scale white-sided jackrabbits were precipitation (IPCC 2007, p. 15). conclusions that climate change is occasionally killed by vehicles. Warming in the southwestern United occurring in New Mexico, we have not Rangewide, jackrabbits are likely States is expected to be greatest in the identified, nor are we aware of, any data somewhat protected from significant summer (IPCC 2007, p. 887). Annual on an appropriate scale to evaluate impacts due to vehicle collisions mean precipitation is likely to decrease habitat or population trends for the because they are largely nocturnal in the southwestern United States and white-sided jackrabbit within its range animals and not active in the day when the length of snow season and snow in New Mexico or in Mexico at this most people are active. However, the depth are very likely to decrease (IPCC time, or to make predictions on future recent increase in U.S. Border Patrol 2007, p. 887). Further, the IPCC (2007, trends and whether the species will be activity may have increased the p. 888) concluded that grasslands and impacted. There are multiple magnitude of this impact on white-sided

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jackrabbit populations near the that the short-term impacts of fire Durango in the north to Oaxaca in the international border. Due to the nature management are occurring at a level that south (Hall 1981, p. 330). The range of of the U.S. Border Patrol activities, these may affect the status of the species as a the subspecies L. c. callotis is fully vehicles would be present on roads at whole now or in the foreseeable future. encompassed by the range of the species night more often than vehicles were Further, the long-term impacts of fire L. callotis. Please see the ‘‘Species present on roads at night historically. management may serve to improve Information: Lepus callotis’’ section Traphagan (2010) notes that U.S. Border white-sided jackrabbit habitat and thus above for a full discussion of white- Patrol agents have reported roadkills at provide a benefit to the species. sided jackrabbit taxonomy, species night. However, there is no reason to description, biology, distribution, Finding for Lepus callotis extrapoloate these U.S. Border Patrol habitat, and population abundance. activities and vehicle collision rates to As required by the Act, we considered Summary of Information Pertaining to other portions of the range of the species the five factors in assessing whether the full species of the white-sided the Five Factors for Lepus callotis because U.S. Border Patrol impacts are callotis unique to the area near the international jackrabbit, Lepus callotis, is threatened border. Based on this review of the best or endangered throughout its range. We In making this finding, information available information, we find that, have carefully examined the best pertaining to the subspecies of the although individual jackrabbits may be scientific and commercial information white-sided jackrabbit, Lepus callotis subject to impacts as a result of vehicle available regarding the past, present, callotis, in relation to the five factors collisions, there is no evidence that this and future threats faced by the species. provided in section 4(a)(1) of the Act is is occurring at a level that may affect the We reviewed the petition, information discussed below. In making our 12– status of the species as a whole, now or available in our files, and other month finding on a petition to list the in the foreseeable future. available published and unpublished subspecies of the white-sided jackrabbit, information. Lepus callotis callotis, we considered Fire Management Our review of the best available and evaluated the best available The active fire management program scientific and commercial information scientific and commercial information. in the Malpai Borderlands area may pertaining to the five factors does not Factor A. The Present or Threatened affect the white-sided jackrabbit. Effects indicate that the white-sided jackrabbit Destruction, Modification, or to jackrabbits during fire management is in danger of extinction (endangered), Curtailment of Its Habitat or Range may include mortality or injury of or likely to become endangered within individuals as a result of direct the foreseeable future (threatened), Based on extensive literature exposure to fire, smoke inhalation, and throughout its range. This is based on searches, we find there is no crushing by the tires or tracks of our finding in the five-factor analysis information available to us which vehicles used in fire management that stressors in New Mexico do not describe threats to the subspecies’ activities (Service 2008, pp. 64-65). We constitute threats to the jackrabbit in its habitat or range in a way that allows us believe that the jackrabbit is capable of current range in New Mexico, and the to assess the magnitude or immediacy of surviving such fire effects by running fact that the best available information these impacts on the subspecies. It is away (Service 2008, p. 64). We find concerning the jackrabbit’s status and its likely that many of the same or similar prescribed burns may also expose habitat in Mexico, limited as it is, does anthropogenic activities that occur in white-sided jackrabbits to higher rates of not allow us to assess the magnitude or the United States portion of the full predation, but may also allow the immediacy of those potential impacts species’ range, discussed above, occur jackrabbits to more easily detect on the species, nor the extent of the within the subspecies’ range in Mexico. terrestrial predators (Service 2008, p. occupied range of the jackrabbit that However, there is no information 65). The effects of a prescribed burn to may be subject to impacts. While we available to evaluate whether these habitats would likely be short term, have evidence that some impacts may factors or potential threats have a because the fire-adapted grassland be occurring within the range of the negative effect on the subspecies. We community usually responds quickly, species (e.g., shrub encroachment, are not aware of additional or specific with plant species showing regrowth grazing, hunting, vehicle collisions, activities which may be contributing to within several days post-fire. changing climate conditions), we do not the present or threatened destruction, Nevertheless, a reduction of shrubs have any specific information that modification, or curtailment of the would benefit the white-sided jackrabbit allows us to make a reasonable subspecies’ habitat or range in Mexico. by improving grassland habitat. connection between these potential Therefore, we find that the best Although the management measures impacts and current or future declines available information regarding threats employed under the MBHCP will likely of white-sided jackrabbits. Therefore, to the subspecies’ habitat or range does result in short-term adverse effects to we find that listing the full species of not indicate that listing the subspecies the jackrabbit, the long-term effects will the white-sided jackrabbit as a throughout all or a portion of its range improve the grassland community used threatened or an endangered species is warranted due to the present or by white-sided jackrabbits by reducing throughout its range is not warranted at threatened destruction, modification, or the shrub component, providing this time. curtailment of its habitat or range, either additional suitable habitat, and now or in the foreseeable future. improving the area around occupied Species Information: Lepus callotis habitat for potential expansion; thus, callotis Factor B. Overutilization for implementation of the MBHCP, The distribution of the subspecies of Commercial, Recreational, Scientific, or including the fire management program, the white-sided jackrabbit, Lepus Educational Purposes should promote the conservation of the callotis callotis, is limited to Mexico. There are reports of the historical white-sided jackrabbit. Based on this The northern limit of the subspecies’ utilization of white-sided jackrabbits in review of the best available information, range is established by the Rio Nazas Mexico. As discussed above, we are we find that although individual (Peterson 1976, p. 497). The range of the unable to assess the level of utilization jackrabbits may be subject to impacts of subspecies L. c. callotis spans several that occurs and whether it is having an fire management, there is no evidence States in the Mexican interior, from impact on the population levels and

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overall status of the species or either have not been developed for use at the callotis, as a threatened or an subspecies. The best available local scale for the sites in the many endangered subspecies throughout its information does not indicate that the States in Mexico within the subspecies’ range is not warranted at this time. subspecies is overutilized for range, currently there is little certainty Species Information: Lepus callotis commercial, recreational, scientific, or regarding the timing, magnitude, and gaillardi educational purposes. We have not net effect of impact of climate change. encountered any information that Therefore, we find it is not possible to The subspecies of the white-sided indicates the contrary. In the absence of make reliable predictions of climate jackrabbit, Lepus callotis gaillardi, evidence that this may constitute a change effects on the status of the white- occurs in both the United States and in threat to the subspecies throughout all sided jackrabbit, due to the current Mexico. As discussed above, the or a portion of its range, we find that limitations in available data and climate historical range of the subspecies Lepus listing the subspecies Lepus callotis models. Based on the best available callotis gaillardia includes the southern callotis due to overutilization is not information and our current knowledge Animas and Playas valleys of Hidalgo warranted, now or in the foreseeable and understanding, we conclude that County, New Mexico, south into west- future. climate change is not currently a known central Chihuahua and north-central threat to the subspecies Lepus callotis Durango, Mexico (Bednarz and Cook Factor C. Disease or Predation callotis, either now or in the foreseeable 1984, p. 358; Reynolds 1988, p. 1), The full extent of information future. although it is now likely extirpated from available on the subject of disease and the Playas Valley as no observations of predation as threats to the species, and Finding for Lepus callotis callotis the species have been made in this area therefore this subspecies, is discussed As required by the Act, we considered during more recent surveys (Traphagen above. We have no information the five factors in assessing whether the 2002, p. 5; Frey 2004, p. 22; NMDGF available to us that indicates that the subspecies of the white-sided jackrabbit, 2006a, p. 115; Traphagen 2010, p. 1). subspecies is subject to disease or Lepus callotis callotis, is threatened or The range of the subspecies L. c. predation at a level that is affecting the endangered throughout all or a gaillardi is fully encompassed by the status of the subspecies. Since we do significant portion of its range. We have range of the species L. callotis. Please not have information that this may carefully examined the best scientific see the ‘‘Species Information: Lepus constitute a threat to the subspecies and commercial information available callotis’’section above for a full throughout all or a portion of its range, regarding the past, present, and future discussion of white-sided jackrabbit we find that listing the subspecies Lepus threats faced by the species. We taxonomy, species description, biology, callotis callotis due to disease or reviewed the petition, information distribution, habitat, and population predation is not warranted, either now available in our files, and other abundance. or in the foreseeable future. available published and unpublished information. We know very little about Summary of Information Pertaining to Factor D. The Inadequacy of Existing the status and threats to the subspecies. the Five Factors for Lepus callotis Regulatory Mechanisms The best available information does not gaillardi As discussed above, white-sided indicate that these populations are going In making this finding, information jackrabbits (including the subspecies to experience impacts at a level at that pertaining to the subspecies of the Lepus callotis callotis) are not covered would affect the status of the white-sided jackrabbit, Lepus callotis under any known regulations in Mexico. subspecies. gaillardi, in relation to the five factors We have encountered no information Our review of the best available provided in section 4(a)(1) of the Act is that indicates that the status of the scientific and commercial information discussed below. In making our 12– subspecies is declining due to the pertaining to the five factors does not month finding on a petition to list the inadequacy of existing regulatory indicate that the subspecies of white- subspecies of the white-sided jackrabbit, mechanisms. Since we have no sided jackrabbit, Lepus callotis callotis, Lepus callotis gaillardi, we considered information that this may constitute a is in danger of extinction (endangered), and evaluated the best available threat to the subspecies throughout all or likely to become endangered within scientific and commercial information. or a portion of its range, we find that the foreseeable future (threatened), listing the subspecies Lepus callotis throughout its range. This is based on Factor A. The Present or Threatened callotis due to the inadequacy of our finding in the five-factor analysis Destruction, Modification, or existing regulatory mechanisms is not that the best available information Curtailment of Its Habitat or Range warranted, either now or in the concerning the jackrabbit’s status and its The habitat of the subspecies Lepus foreseeable future. habitat in Mexico, limited as it is, does callotis gaillardi within the United not allow us to assess the magnitude or States may be threatened by shrub Factor E. Other Natural or Manmade immediacy of those potential impacts encroachment as a result of livestock Factors Affecting Its Continued on the species, nor the extent of the grazing and wildfires. This threat is Existence occupied range of the jackrabbit that discussed in detail in the threat We have no detailed information may be subject to impacts. While we assessment for the full species Lepus concerning additional natural or have evidence that some impacts may callotis. There is information that this manmade factors affecting the be occurring within the range of the perceived threat may differentially subspecies’ continued existence. Global species (e.g., shrub encroachment, affect the subspecies’ separate habitats climate change will likely affect the grazing, hunting, changing climate in New Mexico in the Animas and subspecies or its habitat; however, the conditions), we do not have any specific Playas Valleys. effects of climate change on the region information that allows us to make a Traphagen (2009, pp. 1-2) indicates and their magnitude and imminence are reasonable connection between these that the assertion that the current and unknown. We lack predictive models on potential impacts and current or future historical grazing practices and how climate change will specifically declines of the subspecies. Therefore, suppression of wildfire, and the affect the subspecies’ habitat in Mexico. we find that listing the subspecies of the subsequent encroachment of shrubs Given that reliable, predictive models white-sided jackrabbit, Lepus callotis threaten the subspecies is not entirely

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accurate in regard to the habitat of the example, Buller et al. 1960), we do not of hunting that occurs and whether it is subspecies in the Animas Valley; have information on the extent or having an impact on the population however, it may have been a factor in intensity of historical or current levels and overall status of the species. the Playas Valley, where the subspecies livestock grazing practices throughout As the subspecies is legally protected is presumed to be extirpated. the range of the species in Mexico. from overutilization in New Mexico and As discussed above, Traphagen (2009, Brown (1994) reported that a primary the best available information does not p. 2) reports that the Animas Valley is cause of loss and degradation of indicate that overutilization constitutes largely free of shrubs, likely due to the grasslands in the Chihuahuan Desert is a threat to the subspecies in Mexico, we soil structure, water drainage, frequent overgrazing by cattle; however, the find that overutilization does not fires, and cold air drainage. Cold air extent of those grassland losses constitute a significant threat to the drainage is a process that occurs in throughout the historical range of the subspecies. We find that listing the valleys as the ground cools at night, jackrabbit and the impacts of those cooling the air and causing denser cold losses on the jackrabbit are not known. subspecies Lepus callotis gaillardi due air from higher elevations to move down The best available information to overutilization is not warranted, now into the valley. The Animas Valley is indicates that grazing and fire or in the foreseeable future. surrounded by several large mountain suppression are not currently occurring Factor C. Disease or Predation ranges that create winter microclimates at a level which may constitute a threat too cold to support the establishment of to extant populations of the subspecies The full extent of information shrubs on the valley floor such as in New Mexico, although these impacts available on the subject of disease and mesquite, cholla, and creosote may have played a role in the presumed predation as potential threats to the (Traphagen 2009, p. 2). In contrast, the extirpation of white sided-jackrabbits in species, and therefore this subspecies, is Playas Valley receives less precipitation the Playas Valley. Information about the discussed above. We have encountered annually and is generally drier than the subspecies’ status in Mexico is very no information which indicates that the Animas Valley (Traphagen 2009, p. 2). limited. As discussed above, subspecies is subject to excessive Shrub invasion in this grassland overgrazing may have caused some loss disease or predation. We have not association has occurred on a much or degradation of grasslands in the encountered any information which larger scale than in the grassland Chihuahuan Desert, and the indicates the contrary; however, in the association found in the Animas Valley encroachment of shrubs into grasslands (Traphagen 2009, p. 2). may have negatively affected absence of evidence that this may The Diamond A Ranch, which populations of white-sided jackrabbits constitute a threat to the subspecies incorporates the two valleys, has there. However, the information throughout all or a portion of its range, practiced a very light grazing regime available concerning grazing practices we find that listing the subspecies Lepus under ownership by The Nature in Mexico does not allow us to assess callotis gaillardi due to disease or Conservancy, and subsequently, by the the magnitude or immediacy of these predation is not warranted, now or in Animas Foundation (Traphagen 2009, p. impacts on the subspecies, nor the the foreseeable future. 3). Traphagen (2009, p. 3) reports that extent of the occupied range of the Factor D. The Inadequacy of Existing since 1994, there have been several subspecies that may be subject to Regulatory Mechanisms periods during which grazing was overgrazing impacts. In the absence of deferred on the ranch for 4 years or information that allows us to make a The full extent of information more, and from 2003 to 2006, there was reasonable connection between the available on the subject of existing no cattle grazing in the Animas Valley. impacts of livestock grazing and fire regulatory mechanisms as a threat to the Traphagen (2009, p. 4) reports that suppression, and current or future species, and therefore this subspecies, is fire suppression has not occurred in declines of white-sided jackrabbits, we discussed above. There is information recent years on the Diamond A Ranch, are unable to conclude that this that indicates that the white-sided and states that there have been several subspecies is threatened by grazing major fires in the Animas Valley that practices or fire suppression. jackrabbit’s status as a State-listed have nearly burned all of the white- threatened species in New Mexico sided jackrabbits’ habitat in that valley. Factor B. Overutilization for confers little regulatory protection These fires are described in further Commercial, Recreational, Scientific, or (except against direct take). Further, the detail above. Educational Purposes white-sided jackrabbit is not covered by We have no information about current In New Mexico, the subspecies is any known regulations in Mexico. grazing or fire suppression practices in currently protected under the New However, as discussed in the other historical habitat in the Playas Valley Mexico Wildlife Conservation Act Factors of this section, we have not beyond the general statement that the (NMDGF 2008, p. 10). Further, in New identified any threats to this species that Diamond A Ranch has been lightly Mexico, the subspecies only occurs on are likely to negatively affect the status grazed since 1994. This jackrabbit private land, thereby limiting hunting of the subspecies as a whole, such that appears to be extirpated from that opportunities (Traphagen 2009, p. 4). the limited regulatory protection is not portion of its range. The extent to which Literature indicates that the species was likely to represent a threat to the past grazing or fire suppression commonly hunted in Mexico for subspecies. In the absence of evidence practices may have contributed to that commercial markets (Leopold 1959, p. that the inadequacy of existing 349; Reynolds 1988). Matson and Baker extirpation is unknown; however, the regulatory mechanisms may constitute a (1986, p. 41) indicated that the species Playas Valley may have been more threat to the subspecies throughout all susceptible to shrub encroachment was heavily hunted and considered or a portion of its range, we find that resulting from past overgrazing than the highly edible. Thus, it is possible that listing the subspecies Lepus callotis Animas Valley as a result of the hunting may have played a role in the gaillardi due to the inadequacy of differences in grassland type and cold presumed decline of the white-sided air drainage patterns discussed above. jackrabbit in Mexico (Moore-Craig, existing regulatory mechanisms is not Finally, while we know that grazing 1992, p. 13); however, as discussed warranted, now or in the foreseeable of livestock occurs in Mexico (see, for above, we are unable to assess the level future.

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Factor E. Other Natural or Manmade endangered within the foreseeable Discreteness Factors Affecting Its Continued future (threatened), throughout its Under the DPS policy, a population Existence range. This is based on our finding in segment of a vertebrate taxon may be The possible impacts to the the five-factor analysis that stressors in considered discrete if it satisfies either subspecies Lepus callotis gaillardi due New Mexico do not constitute threats to one of the following conditions: to other natural or manmade factors the jackrabbit in its current range in (1) It is markedly separated from other affecting its continued existence do not New Mexico, and the fact that the best populations of the same taxon as a differ from those for the full species, available information concerning the consequence of physical, physiological, discussed above. It is possible that the jackrabbit’s status and its habitat in ecological, or behavioral factors. effects of climate change will impact the Mexico, limited as it is, does not allow Quantitative measures of genetic or subspecies and its habitat; however, we us to assess the magnitude or morphological discontinuity may don’t know if the potential habitat immediacy of those potential impacts provide evidence of this separation. changes will result in a decline in the on the subspecies, nor the extent of the (2) It is delimited by international status of the species. Additionally, there occupied range of the jackrabbit that governmental boundaries within which has been no research investigating the may be subject to impacts. While we differences in control of exploitation, ways in which the effects will impact its have evidence that some impacts may management of habitat, conservation specific environment. Rather, the be occurring within the range of the status, or regulatory mechanisms exist models of projected change indicate a subspecies (e.g., shrub encroachment, that are significant in light of section conversion to shrubland over much of grazing, hunting, vehicle collisions, 4(a)(1)(D) of the Act. the region of the southwestern United changing climate conditions), we do not We were asked to list the northern States and northern Mexico and do not have any specific information that populations of the Lepus callotis account for the specific habitat types allows us to make a reasonable gaillardi subspecies, which includes currently occupied by the subspecies. connection between these potential two valleys in Hidalgo County, New Due to the lack of information specific impacts and current or future declines Mexico, as a DPS. First, we evaluated to the subspecies’ relatively unique of white-sided jackrabbits. Therefore, whether the potential DPS met the grassland association, detailed above in we find that listing the subspecies of the condition of discreteness. Because we the Factor A discussion for this white-sided jackrabbit, Lepus callotis have so little information about the subspecies, we find that the best gaillardia, as a threatened or an species in Mexico, we are unable to available information does not indicate endangered species throughout its range thoroughly assess the potential that climate change may constitute a is not warranted at this time. separation of the United States threat to the subspecies throughout all Distinct Vertebrate Population populations from the Mexico or a portion of its range, now or in the Segments populations as a consequence of foreseeable future. physical, physiological, ecological, or The effects of the reported fatal After assessing whether the species behavioral factors. However, as impacts of the subspecies by vehicles on and the two subspecies are threatened discussed in Factor D above, the white- roads within the subspecies’ range in or endangered throughout their range, sided jackrabbit is not addressed by the New Mexico are discussed above. we next consider whether any Distinct regulatory mechanisms available in Although there is potential for this Vertebrate Population Segment (DPS) of Mexico. Because the white-sided factor to affect individuals in the future, the white-sided jackrabbit’s range meets jackrabbit is covered by regulatory depending on the activity of the U.S. the definition of endangered or is likely mechanisms in the State of New Border Patrol, impacts are currently not to become endangered in the foreseeable Mexico, there is a difference in known to be occurring at a level that future. regulatory mechanisms, and we find will affect the status of the subspecies Distinct Vertebrate Population Segment that the United States populations of the throughout all or a significant portion of white-sided jackrabbit are discrete its range. Under the Service’s Policy Regarding under the DPS Policy. the Recognition of Distinct Vertebrate Finding for Lepus callotis gaillardi Significance Population Segments Under the As required by the Act, we considered Endangered Species Act (61 FR 4722, If we determine that a population the five factors in assessing whether the February 7, 1996), three elements are segment is discrete under one or more subspecies of the white-sided jackrabbit, considered in the decision concerning of the discreteness conditions described Lepus callotis gaillardi, is threatened or the establishment and classification of a in the DPS Policy, we then evaluate its endangered throughout all or a possible DPS. These are applied biological and ecological significance significant portion of its range. We have similarly for additions to or removal based on ‘‘the available scientific carefully examined the best scientific from the Federal List of Endangered and evidence of the discrete population and commercial information available Threatened Wildlife. These elements segment’s importance to the taxon to regarding the past, present, and future include: which it belongs’’ (61 FR 4725). We threats faced by the species. We (1) The discreteness of a population in make this evaluation in light of reviewed the petition, information relation to the remainder of the species congressional guidance that the available in our files, and other to which it belongs; Service’s authority to list DPSs be used available published and unpublished ‘‘sparingly’’ while encouraging the information. (2) The significance of the population conservation of genetic diversity (61 FR Our review of the best available segment to the species to which it 4722; February 7, 1996). Since precise scientific and commercial information belongs; and circumstances are likely to vary pertaining to the five factors does not (3) The population segment’s considerably from case to case, the DPS indicate that the subspecies of the conservation status in relation to the Policy does not describe all the classes white-sided jackrabbit, Lepus callotis Act’s standards for listing, delisting, or of information that might be used in gaillardia, is in danger of extinction reclassification (i.e., is the population determining the biological and (endangered), or likely to become segment endangered or threatened). ecological importance of a discrete

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population. However, the DPS Policy any kind have been conducted which significant, and (2) the species may be describes four possible classes of looked at the genetic differences of the in danger of extinction there or likely to information that provide evidence of a United States jackrabbits as compared to become so within the foreseeable future. population segment’s biological and the jackrabbits in Mexico; thus we are In practice, a key part of this analysis is ecological importance to the taxon to not able to assess whether the United whether the threats are geographically which it belongs. As specified in the States populations differ markedly from concentrated in some way. If the threats DPS Policy (61 FR 4722), consideration populations in Mexico. In summary, to the species are essentially uniform of the population segment’s significance there is no information that indicates throughout its range, no portion is likely may include, but is not limited to the the United States population of the to warrant further consideration. following: white-sided jackrabbit can be Moreover, if any concentration of (1) Persistence of the population considered significant under our DPS threats applies only to portions of the segment in an ecological setting that is Policy. species’ range that are not significant, unusual or unique for the taxon; such portions will not warrant further DPS Conclusion (2) evidence that loss of the consideration. population segment would result in a On the basis of the best available If we identify portions that warrant significant gap in the range of the taxon; information, we conclude that the further consideration, we then (3) evidence that the population United States population of white-sided determine whether the species is segment represents the only surviving jackrabbits is discrete, but it is not threatened or endangered in these natural occurrence of a taxon that may significant under the DPS Policy. Since portions of its range. Depending on the be more abundant elsewhere as an we found that the population segment biology of the species, its range, and the introduced population outside of its did not meet the significance element threats it faces, the Service may address historical range; and and, therefore, does not qualify as a DPS either the significance question or the (4) evidence that the discrete under the Service’s DPS Policy, we will status question first. Thus, if the Service population segment differs markedly not proceed with an evaluation of the considers significance first and from other populations of the species in status of the population segment under determines that a portion of the range is its genetic characteristics. the Act. not significant, the Service need not The following discussion considers Significant Portion of the Range determine whether the species is the significance of the United States threatened or endangered there. population of the white-sided jackrabbit Having determined that the species Likewise, if the Service considers status in light of the above criteria. The Lepus callotis does not meet the first and determines that the species is populations of white-sided jackrabbit definition of a threatened or endangered not threatened or endangered in a that occur in the United States occupy species, we must next consider whether portion of its range, the Service need not the plains grassland and Chihuahuan there are any significant portions of the determine if that portion is significant. Desert grassland vegetation types. These range where this species is in danger of However, if the Service determines that vegetation types, especially the plains extinction or is likely to become both a portion of the range of a species grassland, are somewhat rare in the endangered in the foreseeable future. is significant and the species is United States, but are more common in On March 16, 2007, a formal opinion threatened or endangered there, the Mexico, thus the United States was issued by the Solicitor of the Service will specify that portion of the populations do not occur in a unique Department of the Interior, ‘‘The range as threatened or endangered ecological setting. The populations of Meaning of ‘In Danger of Extinction under section 4(c)(1) of the Act. white-sided jackrabbit that occur in the Throughout All or a Significant Portion Applying the process described above United States represent less than one of Its Range’’’ (United States Department for determining whether a species is percent of the range of the species. of Interior 2007). We have summarized threatened in a significant portion of its While populations which are on the our interpretation of that opinion and range, we next addressed whether any edge or periphery of a species’ range the underlying statutory language portions of the range of the white-sided sometimes have unique characteristics below. A portion of a species’ range is jackrabbit warranted further which may benefit the survival of a significant if it is part of the current consideration. On the basis of our species as a whole, or while such areas range of the species and it contributes review of the five listing factors above, may play an important life-history role substantially to the representation, we found no evidence of geographic for a species (such as outlying resiliency, or redundancy of the species. concentration of threats either in New populations composed of juvenile, non- The contribution must be at a level such Mexico or Mexico such that the full breeding animals), there is no that its loss would result in a decrease species or either of the subspecies may information that indicates this is the in the ability to conserve the species. be in danger of extinction in that case with the jackrabbit. Instead, these In determining whether a species is portion. The information that is known are peripheral populations occurring in threatened or endangered in a about impacts to the white-sided an area where the species was never significant portion of its range, we first jackrabbit is generally specific to those known to be abundant. The loss of these identify any portions of the range of the populations in the United States; populations is not likely to result in a species that warrant further however, a lack of information about significant gap in the range of the taxon. consideration. The range of a species threats in other portions of the range of While very little is known about the can theoretically be divided into the species one way or another does not species in Mexico, there is no portions an infinite number of ways. mean that threats are concentrated in information which suggests that these However, there is no purpose to the United States. populations are the only surviving analyzing portions of the range that are There is no information to suggest natural occurances of the taxon. not reasonably likely to be significant that any portion of the range of the Additionally, there is no information and threatened or endangered. To species or either subspecies contributes that indicates that there are any identify only those portions that warrant more significantly to the resiliency, introduced populations outside of their further consideration, we determine redundancy, and representation of the historical range anywhere. Finally, to whether there is substantial information species or either subspecies than any our knowledge, no genetic studies of indicating that: (1) The portions may be other portion of the range. There is no

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information to suggest that any portion a particular portion of the white-sided References Cited of the range is particularly of better jackrabbit’s range warrants further A complete list of references cited is quality than any other portion, or than consideration as threatened or available on the Internet at http:// any portion includes an important endangered. www.regulations.gov and upon request concentration of certain types of habitat We do not find that the species is in from the Southwest Regional Ecological that are necessary for the species to danger of extinction now, nor is it likely Services Office (see ADDRESSES section). carry out its life-history functions, such to become endangered within the as breeding, feeding, migration, foreseeable future throughout all or a Author(s) dispersal, or wintering. Further, there is significant portion of its range. The primary authors of this notice are no information to suggest than any Therefore, listing the full species or the staff members of the Southwest portion of the range provides a greater either subspecies as threatened or Regional Ecological Services Office (see increment of redundancy than any other endangered under the Act is not ADDRESSES section) area. Finally, very little genetic warranted at this time. information is known about white-sided We request that you submit any new Authority jackrabbits. There have been some information concerning the status of, or The authority for this section is studies that used a variety to taxonomy, threats to, this subspecies to our section 4 of the Endangered Species Act morphology, and chromosome Southwest Regional Ecological Services of 1973, as amended (16 U.S.C. 1531 et information to differentiate white-sided Fish and Wildlife Office (see ADDRESSES seq.). jackrabbits from other species of section) whenever it becomes available. jackrabbits, but no genetic studies have New information will help us monitor Dated: August 19, 2010. been conducted to compare various this subspecies and encourage its Wendi Weber, populations of white-sided jackrabbits, conservation. If an emergency situation Acting Deputy Director, Fish and Wildlife thus representation cannot be assessed. develops for this subspecies or any Service. As a result of the above analysis, we other species, we will act to provide [FR Doc. 2010–21774 Filed 8–31–10; 8:45 am] conclude that there is no indication that immediate protection. BILLING CODE 4310–55–S

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Notices Federal Register Vol. 75, No. 169

Wednesday, September 1, 2010

This section of the FEDERAL REGISTER are setting aside a percentage of their Written comments should be sent to contains documents other than rules or Secure Rural Schools Act payment Frank Mosbacher; Forest Supervisor’s proposed rules that are applicable to the under Title II of the Act to be used for Office; 100 Forni Road; Placerville, CA public. Notices of hearings and investigations, projects on Federal land. The RAC will 95667. Comments may also be sent via committee meetings, agency decisions and ultimately review and recommend rulings, delegations of authority, filing of e-mail to [email protected], or via petitions and applications and agency projects to be funded from this money. facsimile to 530–621–5297. Projects approved must benefit National statements of organization and functions are All comments, including names and Forest land. Projects can maintain examples of documents appearing in this addresses when provided, are placed in section. infrastructure, improve the health of watersheds and ecosystems, protect the record and are available for public communities, and strengthen local inspection and copying. The public may DEPARTMENT OF AGRICULTURE economies. inspect comments received at 100 Forni The agenda for the first meeting of the Road; Placerville, CA 95667. Visitors are Forest Service Cherokee National Forest RAC will encouraged to call ahead to 530–622– focus on a general overview of the 5061 to facilitate entry into the building. Notice of Public Meeting, Cherokee Secure Rural Schools Act and election FOR FURTHER INFORMATION CONTACT: National Forest Resource Advisory of a chairperson. RAC meetings are open Committee Frank Mosbacher, Public Affairs Officer, to the public. Eldorado National Forest Supervisors SUMMARY: In accordance with the Secure H. Thomas Speaks, Jr., Office, (530) 621–5268. Rural Schools and Community Self Forest Supervisor, Cherokee National Forest. Determination Act of 2000 (Pub. L. 106– Individuals who use 393), [as reauthorized as part of Pub. L. [FR Doc. 2010–21809 Filed 8–31–10; 8:45 am] telecommunication devices for the deaf 110–343] and the Federal Advisory BILLING CODE 3410–11–M (TDD) may call the Federal Information Committee Act of 1972 (FACA), the U.S. Relay Service (FIRS) at 1–800–877–8339 between 8 a.m. and 8 p.m., Eastern Department of Agriculture, Forest DEPARTMENT OF AGRICULTURE Service, Cherokee National Forest Standard Time, Monday through Friday. Resource Advisory Committee will meet Forest Service SUPPLEMENTARY INFORMATION: The for the first time as indicated below. meeting is open to the public. The DATES: The Cherokee National Forest El Dorado County Resource Advisory following business will be conducted: RAC meeting will be conducted on Committee Review of the draft media release Wednesday, September 29, 2010 from AGENCY: Forest Service, USDA. informing people about future 12:30–4:30 p.m. ACTION: Notice of meeting. solicitation for project proposal, ADDRESSES: The Cherokee National Presentation, discussion and approval of Forest Resource Advisory Committee SUMMARY: The El Dorado County the project application packet; Create, (RAC) meeting will be held at the Bass Resource Advisory Committee will meet discuss, and approve a plan/strategy for Pro Shop at 3629 Outdoor Sportsmans in Placerville, California. The committee informing potential project proposers Place in Kodak, TN 37764. Phone (865) is meeting as authorized under the about the opportunity and the 932–5600. The facility is located Secure Rural Schools and Community application guidelines; discuss RAC approximately 20 miles north of Self-Determination Act (Pub. L. 110– administrative costs; discuss and Knoxville, TN off 1–40 at exit #407 343) and in compliance with the Federal approve potential field trips; and (Sevierville, TN—Winfield Dunn Advisory Committee Act. The agenda Parkway). continuing education about the Secure includes: review of the draft media Rural Schools and Community Self- release informing people about future FOR FURTHER INFORMATION CONTACT: Determination Act of 2008. Terry Bowerman, Designated Federal solicitation for project proposal, Official, Cherokee National Forest, 4900 presentation, discussion and approval of More information will be posted on Asheville Hwy SR 70, Greeneville, TN the project application packet; create, the Eldorado National Forest Web site at 37743: Telephone: 423–638–4109, discuss, and approve a plan/strategy for http://www.fs.fed.us/r5/eldorado. A e-mail [email protected]. informing potential project proposers public comment opportunity will be SUPPLEMENTARY INFORMATION: The about the opportunity and the made available following the business Cherokee National Forest Resource application guidelines; discuss RAC activity. Future meetings will have a Advisory Committee (RAC) proposes administrative costs; discuss and formal public imput period for those projects and funding to the Secretary of approve potential field trips; and following the yet to be developed public Agriculture under Section 203 of the continuing education about the Secure imput process. Rural Schools and Community Self- Secure Rural Schools and Community Dated: August 26, 2010. Determination Act of 2008. Self Determination Act of 2000, (as John M. Sherman, reauthorized as part of Pub. L. 110–343). DATES: The meeting will be held on Acting Forest Supervisor. The Cherokee National Forest RAC September 20, 2010 at 6 p.m.–9 p.m. consists of 15 people selected to serve ADDRESSES: The meeting will be held at [FR Doc. 2010–21876 Filed 8–31–10; 8:45 am] on the committee by Secretary of the El Dorado Center of Folsom Lake BILLING CODE 3410–11–P Agriculture Tom Vilsack. Two College, Community Room, 6699 Tennessee counties, Cocke and Monroe, Campus Drive, Placerville, CA 95667.

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DEPARTMENT OF COMMERCE Patent Legal Administration, U.S. Patent will later decide not to pursue and Trademark Office (USPTO), P.O. examination. Patent and Trademark Office Box 1450, Alexandria, VA 22313–1450; There is one form associated with this by telephone 571–272–7728; or by e- collection of information. The USPTO Missing Parts Practice mail at [email protected]. has created PTO/SB/421, Request for Extended Missing Parts Pilot Program, ACTION: Proposed collection; comment SUPPLEMENTARY INFORMATION: for applicants to request participation in request. I. Abstract the program. In response to a number of requests to SUMMARY: The United States Patent and II. Method of Collection Trademark Office (USPTO), as part of its reduce the costs due one year after filing continuing effort to reduce paperwork a provisional application, the USPTO By mail or electronically through and respondent burden, invites the published a Federal Register notice EFS–Web using Form PTO/SB/421 to general public and other Federal titled ‘‘Request for Comments on request participation in the extended agencies to take this opportunity to Proposed Change to Missing Parts missing parts pilot program. comment on this new information Practice’’ proposing a change that would III. Data collection, as required by the Paperwork provide applicants with an extended Reduction Act of 1995, Public Law 104– time period to reply to a Notice to File OMB Number: 0651–00xx. 13 (44 U.S.C. 3506(c)(2)(A)). Missing Parts requiring certain fees in a Form Number(s): PTO/SB/421. Type of Review: New information DATES: Written comments must be nonprovisional application if certain collection. submitted on or before November 1, conditions were met. Based on public Affected Public: Business or other for 2010. feedback, the USPTO is implementing an extended missing parts pilot program profit; not-for-profit institutions. ADDRESSES: You may submit comments which will permit applicants to request Estimated Number of Respondents: by any of the following methods: a 12-month time period to reply to a 10,000 responses per year. • E-mail: Notice to File Missing Parts of Estimated Time per Response: The [email protected]. Nonprovisional Application to pay USPTO estimates that it will take 15 Include ‘‘0651–00xx Missing Parts certain fees. The pilot program would be minutes (0.25 hours) to gather the Practice comment’’ in the subject line of scheduled to run for one year. information, prepare the form, and the message. The extended missing parts pilot submit it to the USPTO, depending • Fax: 571–273–0112, marked to the program is expected to benefit upon the complexity of the situation. attention of Susan Fawcett. applicants by permitting additional time The USPTO expects that it will take the • Mail: Susan K. Fawcett, Records to determine if patent protection should same amount of time to complete and Officer, Office of the Chief Information be sought at a relatively low cost and by submit the form, whether it is mailed or Officer, U.S. Patent and Trademark permitting applicants to focus efforts on submitted electronically. Office, P.O. Box 1450, Alexandria, VA commercialization during this period. Estimated Total Annual Respondent 22313–1450. The extended missing parts pilot Burden Hours: 2,500 hours. • Federal e-Rulemaking Portal: program is also expected to benefit the Estimated Total Annual Respondent http://www.regulations.gov. USPTO and the public by adding Cost Burden: $812,500. Using the FOR FURTHER INFORMATION CONTACT: publications to the body of prior art, and professional hourly rate of $325 for Requests for additional information by removing from the USPTO’s attorneys in private firms, the USPTO should be directed to the attention of workload those nonprovisional estimates $812,500 per year for salary Raul Tamayo, Legal Advisor, Office of applications for which the applicants costs associated with respondents.

Estimated time Estimated annual Estimated annual Item for response responses burden hours

Request for Extended Missing Parts Program ...... 15 minutes ...... 700 175 Request for Extended Missing Parts Program (EFS–Web) ...... 15 minutes ...... 9,300 2,325

Totals ...... 10,000 2,500

Estimated Total Annual Non-Hour that the postage costs and filing fees for and clarity of the information to be Respondent Cost Burden: $0. There are these requests are part of the cost collected; and (d) ways to minimize the no capital start-up or maintenance costs calculations for 0651–0032 and do not burden of the collection of information associated with this information need to be calculated separately for this on respondents, e.g., the use of collection. The request does not have collection. automated collection techniques or filing or other fees associated with it. IV. Request for Comments other forms of information technology. There are postage and recordkeeping Comments submitted in response to costs associated with this form; Comments are invited on: (a) Whether the proposed collection of information this notice will be summarized or however, these costs are covered under is necessary for the proper performance included in the request for OMB OMB Control Number 0651–0032 Initial of the functions of the agency, including approval of this information collection; Patent Applications. Since the requests whether the information shall have for participation in the extended practical utility; (b) the accuracy of the missing parts pilot program must be agency’s estimate of the burden filed with the nonprovisional (including hours and cost) of the applications, which are covered under proposed collection of information; 0651–0032, the USPTO has concluded (c) ways to enhance the quality, utility,

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they will also become a matter of public determination pursuant to section including but not limited to gift bags, record. 735(d) of the Tariff Act of 1930, as gift boxes and/or other types of ribbon. amended (the Act), that an industry in Narrow woven ribbons subject to the Susan K. Fawcett, the United States is threatened with orders include all narrow woven fabrics, Records Officer, USPTO, Office of the Chief material injury by reason of less-than- tapes, and labels that fall within this Information Officer. fair-value imports of narrow woven written description of the scope of these [FR Doc. 2010–21767 Filed 8–31–10; 8:45 am] ribbons from Taiwan and the PRC. See antidumping duty orders. BILLING CODE 3510–16–P section 735(b)(1)(A)(ii) of the Act. Excluded from the scope of the orders are the following: Scope of the Orders DEPARTMENT OF COMMERCE (1) Formed bows composed of narrow The scope of the orders covers narrow woven ribbons with woven selvedge; International Trade Administration woven ribbons with woven selvedge, in (2) ‘‘Pull-bows’’ (i.e., an assemblage of any length, but with a width (measured ribbons connected to one another, [A–583–844, A–570–952] at the narrowest span of the ribbon) less folded flat and equipped with a means than or equal to 12 centimeters, Narrow Woven Ribbons With Woven to form such ribbons into the shape of composed of, in whole or in part, man- Selvedge From Taiwan and the a bow by pulling on a length of material People’s Republic of China: made fibers (whether artificial or affixed to such assemblage) composed of Antidumping Duty Orders synthetic, including but not limited to narrow woven ribbons; nylon, polyester, rayon, polypropylene, (3) Narrow woven ribbons comprised AGENCY: Import Administration, and polyethylene teraphthalate), metal at least 20 percent by weight of International Trade Administration, threads and/or metalized yarns, or any elastomeric yarn (i.e., filament yarn, Department of Commerce. combination thereof. Narrow woven including monofilament, of synthetic SUMMARY: Based on affirmative final ribbons subject to the orders may: textile material, other than textured determinations by the Department of • Also include natural or other non- yarn, which does not break on being Commerce (the Department) and the man-made fibers; extended to three times its original International Trade Commission (the • Be of any color, style, pattern, or length and which returns, after being ITC), the Department is issuing weave construction, including but not extended to twice its original length, antidumping duty orders on narrow limited to single-faced satin, double- within a period of five minutes, to a woven ribbons with woven selvedge faced satin, grosgrain, sheer, taffeta, length not greater than one and a half (narrow woven ribbons) from Taiwan twill, jacquard, or a combination of two times its original length as defined in and the People’s Republic of China or more colors, styles, patterns, and/or the Harmonized Tariff Schedule of the (PRC). On August 25, 2010, the ITC weave constructions; United States (HTSUS), Section XI, Note notified the Department of its • Have been subjected to, or 13) or rubber thread; affirmative determination of threat of composed of materials that have been (4) Narrow woven ribbons of a kind material injury to a U.S. industry. subjected to, various treatments, used for the manufacture of typewriter DATES: Effective Date: September 1, including but not limited to dyeing, or printer ribbons; 2010. printing, foil stamping, embossing, (5) Narrow woven labels and apparel FOR FURTHER INFORMATION CONTACT: flocking, coating, and/or sizing; tapes, cut-to-length or cut-to-shape, • Holly Phelps (Taiwan), AD/CVD Have embellishments, including but having a length (when measured across Operations, Office 2, or Karine Gziryan not limited to applique´, fringes, the longest edge-to-edge span) not (PRC), AD/CVD Operations, Office 4, embroidery, buttons, glitter, sequins, exceeding eight centimeters; Import Administration, International laminates, and/or adhesive backing; (6) Narrow woven ribbons with • Trade Administration, U.S. Department Have wire and/or monofilament in, woven selvedge attached to and forming of Commerce, 14th Street and on, or along the longitudinal edges of the handle of a gift bag; Constitution Avenue, NW., Washington, the ribbon; (7) Cut-edge narrow woven ribbons • DC 20230; telephone: (202) 482–0656 Have ends of any shape or formed by cutting broad woven fabric and (202) 482–4081, respectively. dimension, including but not limited to into strips of ribbon, with or without SUPPLEMENTARY INFORMATION: straight ends that are perpendicular to treatments to prevent the longitudinal the longitudinal edges of the ribbon, edges of the ribbon from fraying (such Background tapered ends, flared ends or shaped as by merrowing, lamination, sono- On July 19, 2010, the Department ends, and the ends of such woven bonding, fusing, gumming or waxing), published its affirmative final ribbons may or may not be hemmed; and with or without wire running determinations of sales at less-than-fair- • Have longitudinal edges that are lengthwise along the longitudinal edges value in the antidumping duty straight or of any shape, and the of the ribbon; investigations of narrow woven ribbons longitudinal edges of such woven (8) Narrow woven ribbons comprised from Taiwan and the PRC. See Notice of ribbon may or may not be parallel to at least 85 percent by weight of threads Final Determination of Sales at Less each other; having a denier of 225 or higher; Than Fair Value: Narrow Woven • Consist of such ribbons affixed to (9) Narrow woven ribbons constructed Ribbons with Woven Selvedge from like ribbon and/or cut-edge woven from pile fabrics (i.e., fabrics with a Taiwan, 75 FR 41804 (July 19, 2010) ribbon, a configuration also known as an surface effect formed by tufts or loops of (Taiwan Final Determination); Narrow ‘‘ornamental trimming;’’ yarn that stand up from the body of the Woven Ribbons With Woven Selvedge • Be wound on spools; attached to a fabric); From the People’s Republic of China: card; hanked (i.e., coiled or bundled); (10) Narrow woven ribbon affixed Final Determination of Sales at Less packaged in boxes, trays or bags; or (including by tying) as a decorative Than Fair Value, 75 FR 41808 (July 19, configured as skeins, balls, bateaus or detail to non-subject merchandise, such 2010) (PRC Final Determination). folds; and/or as a gift bag, gift box, gift tin, greeting On August 25, 2010, the ITC notified • Be included within a kit or set such card or plush toy, or affixed (including the Department of its final as when packaged with other products, by tying) as a decorative detail to

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packaging containing non-subject lengths of narrow woven ribbon(s) Antidumping Duty Orders merchandise; included in the kit are each no greater (11) Narrow woven ribbon that is (a) than eight inches, the aggregate amount On August 25, 2010, in accordance affixed to non-subject merchandise as a of narrow woven ribbon(s) included in with section 735(d) of the Act, the ITC working component of such non-subject the kit does not exceed 48 linear inches, notified the Department of its final merchandise, such as where narrow none of the narrow woven ribbon(s) determination that an industry in the woven ribbon comprises an apparel included in the kit is on a spool, and the United States is threatened with trimming, book marker, bag cinch, or narrow woven ribbon(s) is only one of material injury within the meaning of part of an identity card holder, or (b) multiple items included in the kit. section 735(b)(1)(A)(ii) of the Act by affixed (including by tying) to non- The merchandise subject to these reason of less-than-fair-value imports of subject merchandise as a working orders is classifiable under the HTSUS narrow woven ribbons from Taiwan and component that holds or packages such statistical categories 5806.32.1020; the PRC. Therefore, in accordance with non-subject merchandise or attaches 5806.32.1030; 5806.32.1050 and section 736(a)(1) of the Act, the packaging or labeling to such non- 5806.32.1060. Subject merchandise also Department will direct U.S. Customs subject merchandise, such as a ‘‘belly may enter under subheadings Border and Protection (CBP) to assess, 5806.31.00; 5806.32.20; 5806.39.20; band’’ around a pair of pajamas, a pair upon further instruction by the 5806.39.30; 5808.90.00; 5810.91.00; of socks or a blanket; Department, antidumping duties equal (12) Narrow woven ribbon(s) 5810.99.90; 5903.90.10; 5903.90.25; to the amount by which the normal comprising a belt attached to and 5907.00.60; and 5907.00.80 and under value of the merchandise exceeds the imported with an item of wearing statistical categories 5806.32.1080; U.S. price of the merchandise for all apparel, whether or not such belt is 5810.92.9080; 5903.90.3090; and removable from such item of wearing 6307.90.9889. The HTSUS statistical relevant entries of narrow woven apparel; and categories and subheadings are provided ribbons from Taiwan and the PRC, (13) Narrow woven ribbon(s) included for convenience and customs purposes; except for imports of narrow woven with non-subject merchandise in kits, however, the written description of the ribbons from those combinations of such as a holiday ornament craft kit or merchandise covered by these orders is producers and exporters identified a scrapbook kit, in which the individual dispositive. below: 1

Exporter Producer

Taiwan

Dear Year Brothers Manufacturing Co., Ltd ...... Dear Year Brothers Manufacturing Co., Ltd. Dear Year Brothers Manufacturing Co., Ltd ...... Fool Shing Enterprise Co., Ltd. Dear Year Brothers Manufacturing Co., Ltd ...... Hong Tai Enterprise. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Novelty Handicrafts Co., Ltd. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Boa Shun Enterprise Co., Ltd. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Chi Hua Textile Corporate Ltd. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Chieng Xin Enterprise Co., Ltd. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Ching Yu Weaving String Corp. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Done Hong Enterprise Co., Ltd. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Guang Xing Zhi Zao Enterprise Co., Ltd. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Hang-Liang Company. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Hon Xin Co., Ltd. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Hong-Tai Company. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Hua Yi Enterprise Co., Ltd. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Hung Cheng Enterprises Co., Ltd. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Hung Ching Enterprise Co., Ltd. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ I Lai Enterprise Co., Ltd. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Ji Cheng Industry. Novelty Handicrafts Co., Ltd.

1 We note that Shienq Huong Enterprise Co., Ltd./ Department, we will notify CBP that Shienq will notify CBP that all entries of merchandise Hsien Chan Enterprise Co., Ltd./Novelty Huong’s exports of merchandise produced by this produced by Shienq Huong’s undisclosed Handicrafts Co., Ltd. (collectively, Shienq Huong) unaffiliated company have a less-than-fair-value unaffiliated supplier will be subject to the ‘‘all has not disclosed for the public record the name of investigation margin of zero and thus are excluded others’’ rate established in this proceeding. See a certain unaffiliated supplier. Therefore, upon from any order resulting from this investigation. Taiwan Final Determination, 75 FR at 41807. public disclosure of this information to the Until and unless such public disclosure is made, we

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Exporter Producer

Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Le Quan Enterprise Co., Ltd. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Lei Di Si Corporation Ltd. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Oun Mao Co., Ltd. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Shang Yan Gong Ye She. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Sung-Chu Industry (a/k/a Qiao Zhi Industry). Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Wei Xin Enterprise Co., Ltd. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Xin Jia Enterprise Co., Ltd. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Yi Chang Corp. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Yi Cheng Gong Ye She. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Yi Long Enterprise Co., Ltd. Novelty Handicrafts Co., Ltd. Shienq Huong Enterprise Co., Ltd./Hsien Chan Enterprise Co., Ltd./ Zheng Chi Chi Corp. Novelty Handicrafts Co., Ltd.

PRC

Yama Ribbons and Bows Co., Ltd ...... Yama Ribbons and Bows Co., Ltd.

For all other manufacturers/exporters, Fair Value and Postponement of Final determination in the Federal Register, pursuant to section 736(b)(2) of the Act, Determination, 75 FR 7236 (February except for imports of narrow woven duties shall be assessed on subject 18, 2010); and Narrow Woven Ribbons ribbons from those combinations of merchandise entered, or withdrawn With Woven Selvedge From the People’s producers and exporters identified from warehouse, for consumption on or Republic of China: Preliminary above, CBP will require a cash deposit after the date of publication of the ITC’s Determination of Sales at Less Than equal to the estimated dumping margins notice of final determination, given that Fair Value and Postponement of Final listed below, pursuant to section that determination is based on the threat Determination, 75 FR 7244 (February 736(a)(3) of the Act, at the same time of material injury, other than threat of 18, 2010). that importers would normally deposit material injury described in section Because the ITC’s final determination estimated duties on this merchandise. 736(b)(1) of the Act. Section 736(b)(1) of is based on the threat of material injury The ‘‘All Others’’ rate for Taiwan applies the Act states that, ‘‘{i}f the and is not accompanied by a finding to all Taiwan producers or exporters not Commission, in its final determination that injury would have resulted but for specifically listed and not specifically under section 735(b), finds material the imposition of suspension of excluded. The PRC-wide rate applies to injury or threat of material injury which, liquidation of entries since the all PRC exporters of subject but for the suspension of liquidation Department’s preliminary merchandise not specifically listed and under section 733(d)(2) would have led determinations, section 736(b)(2) of the not specifically excluded. The to a finding of material injury, then Act is applicable. According to section Department will also instruct CBP to entries of the subject merchandise, the 736(b)(2) of the Act, where the ITC finds terminate the suspension of liquidation liquidation of which has been threat of material injury, duties shall for entries of narrow woven ribbons suspended under section 733(d)(2), only be assessed on subject merchandise from Taiwan and the PRC entered or shall be subject to the imposition of entered, or withdrawn from warehouse, withdrawn from warehouse, for antidumping duties under section 731.’’ for consumption on or after the date of consumption prior to August 25, 2010, In addition, section 736(b)(2) of the Act publication of the ITC’s notice of final and refund any cash deposits made and requires CBP to release any bond or determination. In addition, section release any bonds posted between the other security and refund any cash 736(b)(2) of the Act requires CBP to publication of the Department’s deposit made of estimated antidumping refund any cash deposits or bonds of preliminary determinations on February duties posted since the Department’s estimated antidumping duties posted 18, 2010, and the publication of the preliminary antidumping duty since the preliminary antidumping ITC’s final determination. determinations (i.e., February 18, 2010). determinations and prior to the ITC’s Final Determination Margins See Narrow Woven Ribbons With Woven notice of final determination. Selvedge From Taiwan: Preliminary Therefore, on or after the date of The margins and cash deposit rates Determination of Sales at Less Than publication of the ITC’s notice of final are as follows:

Margin Exporter or producer (percent)

Taiwan

Roung Shu Industry Corporation ...... 4.37 All Others ...... 4.37

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Margin Exporter Producer (percent)

PRC

Beauty Horn Investment Limited ...... Tianjin Sun Ribbon Co., Ltd ...... 123.83 Fujian Rongshu Industry Co., Ltd ...... Fujian Rongshu Industry Co., Ltd ...... 123.83 Guangzhou Complacent Weaving Co., Ltd ...... Guangzhou Complacent Weaving Co., Ltd ...... 123.83 Ningbo MH Industry Co., Ltd ...... Hangzhou City Linghu Jiacheng Silk Ribbon Co., Ltd ...... 123.83 Ningbo V.K. Industry & Trading Co., Ltd ...... Ningbo Yinzhou Jinfeng Knitting Factory ...... 123.83 Stribbons (Guangzhou) Ltd ...... Stribbons (Guangzhou) Ltd ...... 123.83 Stribbons (Guangzhou) Ltd ...... Stribbons (Nanyang) MNC Ltd ...... 123.83 Sun Rich (Asia) Limited ...... Dongguan Yi Sheng Decoration Co., Ltd ...... 123.83 Tianjin Sun Ribbon Co., Ltd ...... Tianjin Sun Ribbon Co., Ltd ...... 123.83 Weifang Dongfang Ribbon Weaving Co., Ltd ...... Weifang Dongfang Ribbon Weaving Co., Ltd ...... 123.83 Weifang Yu Yuan Textile Co., Ltd ...... Weifang Yu Yuan Textile Co., Ltd ...... 123.83 Xiamen Yi He Textile Co., Ltd ...... Xiamen Yi He Textile Co., Ltd ...... 123.83 Yangzhou Bestpak Gifts & Crafts Co., Ltd ...... Yangzhou Bestpak Gifts & Crafts Co., Ltd ...... 123.83 PRC-wide entity2 ...... 247.65

For the PRC separate rate Dated: August 30, 2010. antidumping or countervailing duty respondents, we will instruct CBP to Ronald K. Lorentzen, order, finding, or suspended require an antidumping duty cash Deputy Assistant Secretary for Import investigation. deposit or the posting of a bond for each Administration. Respondent Selection entry equal to the margin indicated [FR Doc. 2010–21975 Filed 8–31–10; 8:45 am] above, adjusted for the export subsidy BILLING CODE 3510–DS–P In the event the Department limits the rate determined in the CVD final number of respondents for individual determination (i.e., International Market examination for administrative reviews Development Fund Grants for Small and DEPARTMENT OF COMMERCE initiated pursuant to requests made for Medium Enterprises). See PRC Final International Trade Administration the orders identified below, the Determination, 75 FR at 41812. See also Department intends to select Narrow Woven Ribbons With Woven Antidumping or Countervailing Duty respondents based on U.S. Customs and Selvedge From the People’s Republic of Order, Finding, or Suspended Border Protection (‘‘CBP’’) data for U.S. China: Final Affirmative Countervailing Investigation; Opportunity To Request imports during the period of review Duty Determination, 75 FR 41801 (July Administrative Review (‘‘POR’’). We intend to release the CBP data under Administrative Protective 19, 2010), and accompanying Issues and AGENCY: Import Administration, Order (‘‘APO’’) to all parties having an Decision Memorandum at section I.D. International Trade Administration, APO within five days of publication of The adjusted cash deposit rate for the Department of Commerce. separate rate respondents (as listed the initiation notice and to make our FOR FURTHER INFORMATION CONTACT: decision regarding respondent selection above in the ‘‘Final Determination Sheila E. Forbes, Office of AD/CVD Margins’’ section, above) is 123.44 within 20 days of publication of the Operations, Customs Unit, Import initiation Federal Register notice. percent. These suspension-of- Administration, International Trade liquidation instructions will remain in Therefore, we encourage all parties Administration, U.S. Department of interested in commenting on respondent effect until further notice. Commerce, 14th Street and Constitution selection to submit their APO This notice constitutes the Avenue, NW., Washington, DC 20230, applications on the date of publication telephone: (202) 482–4697. antidumping duty orders with respect to of the initiation notice, or as soon narrow woven ribbons from Taiwan and Background thereafter as possible. The Department the PRC, pursuant to section 736(a) of Each year during the anniversary invites comments regarding the CBP the Act. Interested parties may contact month of the publication of an data and respondent selection within 10 the Department’s Central Records Unit, antidumping or countervailing duty calendar days of publication of the Room 7046 of the main Commerce order, finding, or suspension of initiation Federal Register notice. Building, for copies of an updated list investigation, an interested party, as Opportunity to request a review: Not of antidumping duty orders currently in defined in section 771(9) of the Tariff later than the last day of September effect. Act of 1930, as amended (‘‘the Act’’), 2010,1 interested parties may request These orders are issued and published may request, in accordance with 19 CFR administrative review of the following in accordance with section 736(a) of the 351.213 that the Department of orders, findings, or suspended Act and 19 CFR 351.211(b). Commerce (‘‘the Department’’) conduct investigations, with anniversary dates in an administrative review of that September for the following periods:

Period of review

Antidumping Duty Proceedings Period of Review BELARUS: Steel Concrete Reinforcing Bars, A–822–804 ...... 9/1/09–8/31/10

2 Ningbo Jintian Import & Export Co., Ltd., is 1 Or the next business day, if the deadline falls included in the PRC-wide entity. on a weekend, federal holiday or any other day when the Department is closed.

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Period of review

INDIA: Certain Lined Paper Products, A–533–843 ...... 9/1/09–8/31/10 INDONESIA: Certain Lined Paper Products, A–560–818 ...... 9/1/09–8/31/10 Steel Concrete Reinforcing Bars, A–560–811 ...... 9/1/09–8/31/10 ITALY: Stainless Steel Wire Rod, A–475–820 ...... 9/1/09–8/31/10 JAPAN: Stainless Steel Wire Rod, A–588–843 ...... 9/1/09–8/31/10 LATVIA: Steel Concrete Reinforcing Bars, A–449–804 ...... 9/1/09–8/31/10 MOLDOVA: Steel Concrete Reinforcing Bars, A–841–804 ...... 9/1/09–8/31/10 POLAND: Steel Concrete Reinforcing Bars, A–455–803 ...... 9/1/09–8/31/10 REPUBLIC OF KOREA: Stainless Steel Wire Rod, A–580–829 ...... 9/1/09–8/31/10 SPAIN: Stainless Steel Wire Rod, A–469–807 ...... 9/1/09–8/31/10 TAIWAN: Raw Flexible Magnets, A–583–842 ...... 9/1/09–8/31/10 Stainless Steel Wire Rod, A–583–828 ...... 9/1/09–8/31/10 THE PEOPLE’S REPUBLIC OF CHINA: Certain Lined Paper Products, A–570–901 ...... 9/1/09–8/31/10 Foundry Coke, A–570–862 ...... 9/1/09–8/31/10 Freshwater Crawfish Tail Meat, A–570–848 ...... 9/1/09–8/31/10 Greige Polyester Cotton Print Cloth, A–570–101 ...... 9/1/09–6/27/10 Kitchen Appliance Shelving and Racks, A–570–941 ...... 3/5/09–8/31/10 New Pneumatic Off-The-Road Tires, A–570–912 ...... 9/1/09–8/31/10 Raw Flexible Magnets, A–570–922 ...... 9/1/09–8/31/10 Steel Concrete Reinforcing Bars, A–570–860 ...... 9/1/09–8/31/10 UKRAINE: Silicomanganese, A–823–805 ...... 9/1/09–8/31/10 Solid Agricultural Grade Ammonium Nitrate, A–823–810 ...... 9/1/09–8/31/10 Steel Concrete Reinforcing Bars, A–823–809 ...... 9/1/09–8/31/10 Countervailing Duty Proceedings BRAZIL: Hot-Rolled Carbon Steel Flat Products, C–351–829 ...... 1/1/09–12/31/09 INDIA: Certain Lined Paper Products, C–533–844 ...... 1/1/09–12/31/09 INDONESIA: Certain Lined Paper Products, C–560–819 ...... 1/1/09–12/31/09 THE PEOPLE’S REPUBLIC OF CHINA: Kitchen Appliance Shelving and Racks, C–570–942 ...... 1/7/09–12/31/09 New Pneumatic Off-The-Road Tires, C–570–913 ...... 1/1/09–12/31/09 Raw Flexible Magnets, C–570–923 ...... 1/1/09–12/31/09 Suspension Agreements ARGENTINA: Lemon Juice, A–357–818 ...... 9/1/09–8/31/10 MEXICO: Lemon Juice, A–201–835 ...... 9/1/09–8/31/10

In accordance with 19 CFR merchandise from other suppliers) FR 23954 (May 6, 2003), the Department 351.213(b), an interested party as which were produced in more than one has clarified its practice with respect to defined by section 771(9) of the Act may country of origin and each country of the collection of final antidumping request in writing that the Secretary origin is subject to a separate order, then duties on imports of merchandise where conduct an administrative review. For the interested party must state intermediate firms are involved. The both antidumping and countervailing specifically, on an order-by-order basis, public should be aware of this duty reviews, the interested party must which exporter(s) the request is clarification in determining whether to specify the individual producers or intended to cover. request an administrative review of exporters covered by an antidumping Please note that, for any party the merchandise subject to antidumping finding or an antidumping or Department was unable to locate in findings and orders. See also the Import countervailing duty order or suspension prior segments, the Department will not Administration Web site at http:// agreement for which it is requesting a accept a request for an administrative ia.ita.doc.gov. review of that party absent new review. In addition, a domestic Six copies of the request should be interested party or an interested party information as to the party’s location. Moreover, if the interested party who submitted to the Assistant Secretary for described in section 771(9)(B) of the Act Import Administration, International must state why it desires the Secretary files a request for review is unable to Trade Administration, Room 1870, U.S. to review those particular producers or locate the producer or exporter for Department of Commerce, 14th Street exporters.2 If the interested party which it requested the review, the and Constitution Avenue, NW., intends for the Secretary to review sales interested party must provide an Washington, DC 20230. The Department of merchandise by an exporter (or a explanation of the attempts it made to also asks parties to serve a copy of their producer if that producer also exports locate the producer or exporter at the same time it files its request for review, requests to the Office of Antidumping/ Countervailing Operations, Attention: 2 If the review request involves a non-market in order for the Secretary to determine economy and the parties subject to the review if the interested party’s attempts were Sheila Forbes, in room 3065 of the main request do not qualify for separate rates, all other reasonable, pursuant to 19 CFR Commerce Building. Further, in exporters of subject merchandise from the non- 351.303(f)(3)(ii). accordance with 19 CFR 351.303(f)(l)(i), market economy country who do not have a a copy of each request must be served separate rate will be covered by the review as part As explained in Antidumping and of the single entity of which the named firms are Countervailing Duty Proceedings: on every party on the Department’s a part. Assessment of Antidumping Duties, 68 service list.

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The Department will publish in the for consumption during the relevant Background Federal Register a notice of ‘‘Initiation provisional-measures ‘‘gap’’ period, of of Administrative Review of the order, if such a gap period is Every five years, pursuant to section Antidumping or Countervailing Duty applicable to the period of review. 751(c) of the Tariff Act of 1930, as Order, Finding, or Suspended This notice is not required by statute amended (‘‘the Act’’), the Department of Investigation’’ for requests received by but is published as a service to the Commerce (‘‘the Department’’) and the the last day of September 2010. If the international trading community. International Trade Commission Department does not receive, by the last Dated: August 20, 2010. automatically initiate and conduct a day of September 2010, a request for Edward C. Yang, review to determine whether revocation review of entries covered by an order, Acting Deputy Assistant Secretary for of a countervailing or antidumping duty finding, or suspended investigation Antidumping and Countervailing Duty order or termination of an investigation listed in this notice and for the period Operations. suspended under section 704 or 734 of identified above, the Department will [FR Doc. 2010–21830 Filed 8–31–10; 8:45 am] the Act would be likely to lead to instruct the CBP to assess antidumping BILLING CODE 3510–DS–P continuation or recurrence of dumping or countervailing duties on those entries or a countervailable subsidy (as the case at a rate equal to the cash deposit of (or may be) and of material injury. bond for) estimated antidumping or DEPARTMENT OF COMMERCE countervailing duties required on those Upcoming Sunset Reviews for October entries at the time of entry, or International Trade Administration 2010 withdrawal from warehouse, for consumption and to continue to collect Antidumping or Countervailing Duty The following Sunset Reviews are the cash deposit previously ordered. Order, Finding, or Suspended scheduled for initiation in October 2010 Investigation; Advance Notification of and will appear in that month’s Notice For the first administrative review of Sunset Reviews any order, there will be no assessment of Initiation of Five-Year Sunset of antidumping or countervailing duties AGENCY: Import Administration, Reviews. on entries of subject merchandise International Trade Administration, entered, or withdrawn from warehouse, Department of Commerce.

Antidumping duty proceedings Department contact

Carbon Steel Butt-Weld Pipe Fittings from Brazil (A–351–602) (3rd Review) ...... Dana Mermelstein, (202) 482–1391. Carbon Steel Butt-Weld Pipe Fittings from Japan (A–588–602) (3rd Review) ...... Dana Mermelstein, (202) 482–1391. Carbon Steel Butt-Weld Pipe Fittings from Taiwan (A–583–605) (3rd Review) ...... Dana Mermelstein, (202) 482–1391. Carbon Steel Butt-Weld Pipe Fittings from Thailand (A–549–807) (3rd Review) ...... Dana Mermelstein, (202) 482–1391. Glycine from the People’s Republic of China (A–570–836) (3rd Review) ...... Dana Mermelstein, (202) 482–1391. Porcelain-On-Steel Cooking Ware from Taiwan (A–583–508) (3rd Review) ...... Dana Mermelstein, (202) 482–1391. Top-of-the-Stove Stainless Steel Cooking Ware from South Korea (A–580–601) (3rd Review) ...... Dana Mermelstein, (202) 482–1391. Apple Juice Concentrate, Non-Frozen from the People’s Republic of China (A–570–855) (2nd Review) Jennifer Moats, (202) 482–5047. Carbon Steel Butt-Weld Pipe Fittings from the People’s Republic of China (A–570–814) (3rd Review) ... Jennifer Moats, (202) 482–5047. Porcelain-On-Steel Cooking Ware from the People’s Republic of China (A–570–506) (3rd Review) ...... Jennifer Moats, (202) 482–5047.

Countervailing Duty Proceedings

Top-of-the-Stove Stainless Steel Cooking Ware from South Korea (C–580–602) (3rd Review) ...... Patricia Tran, (202) 482–1503.

Suspended Investigations proceedings. To facilitate the timely Dated: August 18, 2010. No Sunset Review of suspended preparation of the service list(s), it is Edward C. Yang, investigations is scheduled for initiation requested that those seeking recognition Acting Deputy Assistant Secretary for in October 2010. as interested parties to a proceeding Antidumping and Countervailing Duty Operations. The Department’s procedures for the contact the Department in writing [FR Doc. 2010–21828 Filed 8–31–10; 8:45 am] conduct of Sunset Reviews are set forth within 10 days of the publication of the in 19 CFR 351.218. Guidance on Notice of Initiation. BILLING CODE 3510–DS–P methodological or analytical issues Please note that if the Department relevant to the Department’s conduct of receives a Notice of Intent to Participate DEPARTMENT OF COMMERCE Sunset Reviews is set forth in the from a member of the domestic industry Department’s Policy Bulletin 98.3— within 15 days of the date of initiation, Foreign-Trade Zones Board Policies Regarding the Conduct of Five- the review will continue. Thereafter, [Docket 51–2010] year (‘‘Sunset’’) Reviews of Antidumping any interested party wishing to and Countervailing Duty Orders; Policy participate in the Sunset Review must Foreign-Trade Zone 104—Savannah, Bulletin, 63 FR 18871 (April 16, 1998). provide substantive comments in GA; Application for Reorganization The Notice of Initiation of Five-Year response to the notice of initiation no Under Alternative Site Framework ‘‘ ’’ ( Sunset ) Reviews provides further later than 30 days after the date of information regarding what is required initiation. An application has been submitted to of all parties to participate in Sunset the Foreign-Trade Zones (FTZ) Board Reviews. This notice is not required by statute (the Board) by the Savannah Airport Pursuant to 19 CFR 351.103(c), the but is published as a service to the Commission, grantee of FTZ 104, Department will maintain and make international trading community. requesting authority to reorganize the available a service list for these zone under the alternative site

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framework (ASF) adopted by the Board approval of the following additional DEPARTMENT OF COMMERCE (74 FR 1170, 1/12/09; correction 74 FR magnet sites: Proposed Site 11 (1,081.0 3987, 1/22/09). The ASF is an option for acres)—Interstate Centre Industrial Park, Foreign-Trade Zones Board grantees for the establishment or 11250 US Highway 280, Black Creek; reorganization of general-purpose zones Proposed Site 12 (1,557.0 acres)—Pooler [Order No. 1701] and can permit significantly greater Megasite, SR307/Dean Forest Road and flexibility in the designation of new Pine Meadow Road, Chatham County; Approval for Manufacturing Authority; ‘‘usage-driven’’ FTZ sites for operators/ and Proposed Site 14 (50.0 acres)— Foreign-Trade Zone 22; LG Electronics users located within a grantee’s ‘‘service Georgia Ports Authority Terminal, 120 Mobilecomm USA, Inc. (Cell Phone ’’ area in the context of the Board’s Crossgate Road, Savannah. The Kitting and Distribution); Chicago, IL standard 2,000-acre activation limit for applicant is also requesting to include a general-purpose zone project. The Pursuant to its authority under the Foreign- two of the existing sites as ‘‘usage- application was submitted pursuant to Trade Zones Act of June 18, 1934, as ’’ the Foreign-Trade Zones Act, as driven sites and is requesting approval amended (19 U.S.C. 81a–81u), the Foreign- amended (19 U.S.C. 81a–81u), and the of the following additional ‘‘usage- Trade Zones Board (the Board) adopts the regulations of the Board (15 CFR part driven’’ site: Proposed Site 13 (31.0 following Order: 400). It was formally filed on August 26, acres)—Flint River Services, 101 2010. Progress Drive, Rincon. The applicant Whereas, the Illinois International FTZ 104 was approved by the Board requests that non-contiguous portions of Port District, grantee of Foreign-Trade on April 18, 1984 (Board Order 256, 49 existing Sites 2 and 7 be renumbered to Zone 22, has requested manufacturing FR 17789, 4/25/84) and expanded on Sites 15 and 16 respectively. The authority on behalf of LG Electronics November 20, 2008 (Board Order 1587, applicant also requests that FTZ Mobilecomm USA, Inc. (LGEMU), 73 FR 76610–76611, 12/17/08). designation be removed from Sites 2A, within FTZ 22 in Bolingbrook, Illinois, The current zone project includes the 4, 5, and 8. Because the ASF only (FTZ Docket 3–2010, filed 1/14/2010); following sites: Site 1 (18.0 acres)— pertains to establishing or reorganizing Whereas, notice inviting public Savannah International Airport, a general-purpose zone, the application comment has been given in the Federal Savannah; Site 2 (1,075.0 acres)— would have no impact on FTZ 104’s Garden City Terminal, 2 Main Street, Register (75 FR 4343–4344, 1/27/2010) authorized subzones. Chatham County and Ocean Terminal, and the application has been processed 950 West River Street, Savannah; Site In accordance with the Board’s pursuant to the FTZ Act and the Board’s 2A (1.0 acres)—730 King George Blvd., regulations, Maureen Hinman of the regulations; and, Savannah; Site 3 (1,820.0 acres)— FTZ Staff is designated examiner to Whereas, the Board adopts the Crossroads Business Center, I–95 and evaluate and analyze the facts and findings and recommendations of the Godley Road, Chatham County; Site 4 information presented in the application examiner’s report, and finds that the (1,353.0 acres)—SPA Industrial Park, and case record and to report findings requirements of the FTZ Act and East of the I–95/U.S. 80 Interchange, and recommendations to the Board. Board’s regulations are satisfied, and Chatham County; Site 5 (24.0)— Public comment is invited from that the proposal is in the public Savannah International Trade and interested parties. Submissions (original interest; Convention Center, One International and 3 copies) shall be addressed to the Drive, Savannah; Site 6 (24.0 acres)— Now, therefore, the Board hereby Mulberry Grove Site, I–95 and State Board’s Executive Secretary at the orders: address below. The closing period for Highway 21, Savannah; Site 7 (1,592.0 The application for manufacturing their receipt is November 1, 2010. acres)—Tradeport Business Center authority under zone procedures within Rebuttal comments in response to Industrial Park, 380 Sunbury Road, FTZ 22 on behalf of LG Electronics material submitted during the foregoing Midway; Site 8 (98.0 acres)—Tremont Mobilecomm USA, Inc., as described in period may be submitted during the Road near I–16 and Georgia 516 the application and Federal Register subsequent 15-day period to November Interchange, Savannah; Site 9 (15.0 notice, is approved, subject to the FTZ 15, 2010. acres)—Savannah Warehouse Services, Act and the Board’s regulations, 145 Distribution Drive, Savannah; and A copy of the application will be including Section 400.28. Site 10 (62.9 acres)—Savannah Logistics available for public inspection at the Signed at Washington, DC, this 19th day of Park at Morgan Center, S.H. Morgan Office of the Executive Secretary, August 2010. Parkway and Pooler Parkway, Foreign-Trade Zones Board, Room 2111, Savannah. U.S. Department of Commerce, 1401 Ronald K. Lorentzen, The grantee’s proposed service area Deputy Assistant Secretary for Import under the ASF would be the Georgia Constitution Avenue, NW., Washington, DC 20230–0002, and in the ‘‘Reading Administration, Alternate Chairman, Foreign- counties of Bulloch, Bryan, Chatham, Trade Zones Board. Room’’ section of the Board’s Web site, Effingham, Evans, Liberty, Long, and Attest: Screven, as described in the application. which is accessible via http:// Andrew McGilvray, If approved, the grantee would be able www.trade.gov/ftz. For further to serve sites throughout the service area information, contact Maureen Hinman Executive Secretary. based on companies’ needs for FTZ at [email protected] or (202) [FR Doc. 2010–21845 Filed 8–31–10; 8:45 am] designation. The proposed service area 482–0627. BILLING CODE P is within and adjacent to the Savannah Dated: August 26, 2010. Customs and Border Protection port of Andrew McGilvray, entry. The applicant is requesting authority Executive Secretary. to reorganize its existing zone project to [FR Doc. 2010–21841 Filed 8–31–10; :45 am] include five of the existing sites as BILLING CODE P ‘‘magnet’’ sites and is requesting

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DEPARTMENT OF COMMERCE confidential information from public particularly vulnerable to the diversion disclosure to the extent permitted by of sensitive items to illicit purposes. Bureau of Industry and Security law. To combat diversion risk, BIS seeks to [Docket No. 100812348–0366–01] strengthen its partnership with industry FOR FURTHER INFORMATION CONTACT: (including exporters, freight forwarders, Office of Technology Evaluation, Gerard carriers, consolidators, express couriers, Best Practices for Transit, Horner at [email protected] or (202) Transshipment, and Reexport of Items and others that are parties to dual-use 482–2078, or Donald Creed at export transactions) involved in the Subject to the Export Administration [email protected] or (202) 482–8341. Regulations transshipment of items subject to the SUPPLEMENTARY INFORMATION: EAR by consolidating existing best AGENCY: Bureau of Industry and practices and establishing new and Background Security, Commerce. emerging ones to prevent diversion. BIS ACTION: Notice of Inquiry. In this notice of inquiry, BIS is recognizes the importance of soliciting seeking public comment on a proposed input from industry to define a set of SUMMARY: The Department of updated list of a set of ‘‘best practices’’ best practices tailored to the particular Commerce’s Bureau of Industry and for industry regarding the transit, activities and circumstances of Security (BIS) seeks public comments transshipment, and reexport of dual-use transshipment trade. on a set of proposed ‘‘Best Practices for items. The previous list, which was The publication of these best practices Transit, Transshipment, and Reexport of developed following the solicitation of creates no legal obligation to comply Items Subject to the Export public comments (68 FR 26567, May 16, with such practices on the part of any Administration Regulations.’’ BIS is 2003), was posted on BIS’s Web site on person, absent a legal requirement that particularly interested in engaging in a November 24, 2003. BIS is updating the is set forth elsewhere in the EAR. dialogue with industry regarding new list in light of the U.S. Government’s Compliance with these best practices transshipment principles and best current export control reform efforts and creates no defense to liability for the practices that complement those already the increased attention that reexport, violation of export control laws. identified by BIS in its Web guidance transit, and transshipment trade has However, demonstrated compliance (http://www.bis.doc.gov/ generated in recent years, both within with these best practices by a company complianceandenforcement/emcp.htm), the U.S. and globally. BIS will publish will be considered an important and industry outreach regarding export an updated list of best practices in the mitigating factor in administrative management and compliance. BIS will Federal Register that will include a prosecutions arising out of violations of consider all comments timely submitted discussion of those comments. BIS will provisions of the EAR that apply to before finalizing these best practices and also post the final list on the BIS Web transit, transshipment or reexport publishing them in the Federal Register site. transactions. and on the BIS Web site. This document The best practices identified herein Although BIS intends to issue this will include a discussion of those include the types of practices that guidance on industry best practices as it comments. industry has adopted to guard against applies to items and transactions that DATES: Comments must be received diversion risk. Both government and are subject to the EAR, the guidance before October 18, 2010. industry recognize that implementing clearly has broader potential application. BIS envisions this guidance ADDRESSES: Comments may be effective export compliance programs is as a step toward a strengthened dialogue submitted by e-mail to an important component of responsible with industry, other agencies that [email protected], by fax at corporate citizenship and good business administer export controls, and foreign (202) 482–5361, or on paper to Gerard practices. governments in a manner that may make Horner, Office of Technology BIS seeks information to refine and the guidance pertinent beyond its Evaluation, Bureau of Industry and revise this proposed list of best practices application to the EAR. Security, Room 1093, U.S. Department to help ensure that industry and the of Commerce, 14th Street and government continue to prevent Principles Pennsylvania Avenue, NW., diversion of controlled items subject to These best practices are based on the Washington, DC 20230. the Export Administration Regulations following four principles: (EAR) through transshipment points. • How To Comment Industry and government should The success of export control laws in work together in a cooperative All comments must be in writing and the context of transit, transshipment, partnership on a domestic and global submitted to the address indicated and reexport transactions rests on well- basis to foster secure trade. above or via e-mail. Comments must be managed and comprehensive export • Secure trade will reduce the received by BIS no later than October compliance programs. The diversion of incidence of diversion of dual-use items 18, 2010. BIS may consider comments controlled and unlisted U.S. origin to prohibited end-uses and end-users. received after that date if feasible to do items from authorized to unauthorized • Effective export management and so, but such consideration cannot be end-uses, end-users, or destinations, compliance programs will encourage assured. All comments submitted in even inadvertently, undermines efforts expeditious movement of legitimate response to this notice will be made a to counter the proliferation of weapons trade. matter of public record, and will be of mass destruction, terrorism, and other • Industry can achieve secure trade available for public inspection and threats to national and international objectives through quality-driven export copying. Anyone submitting business security. Global ‘‘transshipment hubs’’— management and compliance practices. confidential information should clearly i.e., countries or areas that function as identify the business confidential major hubs for the trading and shipment Practices portion of the submission and also of cargo—pose special risks due to their The following reflect existing and provide a non-confidential submission large volumes of transit, transshipment, emerging transshipment best practices that can be placed in the public record. and import and reexport traffic. Such that guard against diversion risk. BIS BIS will seek to protect business hubs make transshipment trade seeks comment on these and additional

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practices from the public based on DEPARTMENT OF COMMERCE Level—Atrium North, Washington, DC experience. 20004; Telephone (202) 482–4207; Best Practice #1. Pay heightened International Trade Administration Facsimile: (202) 482–7800; E-mail: attention to the Red Flag Indicators on [Docket No.: 100806330–0330–01] [email protected]. the BIS Web site (see http://www.bis. SUPPLEMENTARY INFORMATION: The doc.gov/Enforcement/redflags.htm) with Call for Applications for the International Buyer Program was respect to transactions to, from, or International Buyer Program Calendar established to bring international buyers through transshipment hubs. When a Year 2012 together with U.S. firms by promoting company encounters a suspicious AGENCY: International Trade leading U.S. trade shows in industries transaction, such as those outlined in with high export potential. The the ‘‘Know Your Customer’’ Guidance Administration, Department of Commerce. International Buyer Program emphasizes and Red Flags (Supplement No. 3 to Part cooperation between the DOC and trade ACTION: 732 of the EAR), it should inquire Notice and call for applications. show organizers to benefit U.S. firms further and attempt to resolve any SUMMARY: This notice sets forth exhibiting at selected events and questions raised by the transaction. objectives, procedures and application provides practical, hands-on assistance Best Practice #2. An Exporter/ review criteria associated with support such as export counseling and market Reexporter should seek to utilize only for domestic trade shows by the analysis to U.S. companies interested in those Trade Facilitators/Freight International Buyer Program (IBP) of the exporting. The assistance provided to Forwarders that also observe these best U.S. Department of Commerce (DOC). show organizers includes worldwide practices and possess their own export This announcement covers selection for overseas promotion of selected shows to management and compliance program. International Buyer Program potential international buyers, end- Best Practice #3. Exporters/ participation for calendar year 2012 users, representatives and distributors. Reexporters should have information (January 1, 2012 through December 31, The worldwide promotion is executed regarding their foreign customers. In 2012). The purpose of the IBP program through the offices of the DOC U.S. and particular, a company should know if is to bring international buyers together Foreign Commercial Service (hereinafter the customer is a trading company or with U.S. firms by promoting leading referred to as the Commercial Service) distributor, and inquire whether the U.S. trade shows in industries with high in more than 80 countries representing customer resells to or has guidelines to export potential. the United States’ major trading resell to third parties. partners, and also in U.S. Embassies in DATES: Applications must be received Best Practice #4. With respect to countries where the Commercial Service by November 1, 2010. transactions to, from, or through does not maintain offices. transshipment hubs, Exporters/ ADDRESSES: The application may be The Commercial Service is accepting Reexporters should take appropriate downloaded from http:// applications for the International Buyer steps to inquire about the end-user and www.export.gov/IBP. Applications may Program for trade events taking place to determine whether the item will be be submitted by any of the following between January 1, 2012 through reexported or incorporated in an item to methods: (1) Mail/Hand Delivery December 31, 2012. Selection of a trade be reexported. Service: International Buyer Program, show is valid for one event, i.e., a trade Best Practice #5. Freight Forwarders Global Trade Programs, U.S. and show organizer seeking selection for a should inquire about the details of a Foreign Commercial Service, recurring event must submit a new routed transaction when asked by a International Trade Administration, application for selection for each foreign principal party in interest to U.S. Department of Commerce, Ronald occurrence of the event. Even if the ship to a country or countries of Reagan Building, 1300 Pennsylvania event occurs more than once in the destination or ultimate consignees that Ave., Ronald Reagan Building, Suite 12-month period covered by this are different from those provided by the 800M—Mezzanine Level—Atrium announcement, the trade show U.S. principal party in interest. North, Washington, DC 20004. organizer must submit a separate Telephone (202) 482–4207; (2) Best Practice #6. An Exporter/ application for each event. Facsimile: (202) 482–7800; or (3) e-mail: Reexporter should communicate the The Commercial Service expects to [email protected]. Facsimile and e- appropriate Export Control select approximately 35 events from mail applications will be accepted as Classification Number (ECCN) or other among applicants to the program for the interim applications, but must be classification information (EAR99) for January 1, 2012 through December 31, followed by a signed original each export/reexport to the end-user 2012 period. The Commercial Service application that is received by the and, where relevant, to the ultimate will select those events that are program within five (5) business days consignee. determined to most clearly meet the after the application deadline. To ensure Commercial Service’s statutory mandate Best Practice #7. An Exporter/ that applications are timely received by Reexporter should report such ECCN or to promote U.S. exports, especially the deadline, applicants are strongly those of small—and medium-sized the EAR99 classifications for all export urged to send applications by hand ‘‘ enterprises, and that best meet the transactions, including No License delivery service (e.g., U.S. Postal Service Required’’ designations to the Trade selection criteria articulated below. Express Delivery, Federal Express, UPS, Shows selected for the International Facilitator/Freight Forwarder or enter etc.). them in the Automated Export System Buyer Program will provide a venue for (AES). FOR FURTHER INFORMATION CONTACT: U.S. companies interested in expanding Blanche Ziv, Director, International their sales into international markets. Dated: August 27, 2010. Buyer Program, Global Trade Programs, Successful show organizer applicants Matthew S. Borman, U.S. and Foreign Commercial Service, will be required to enter into a Deputy Assistant Secretary for Export International Trade Administration, Memorandum of Agreement (MOA) Administration. U.S. Department of Commerce, 1300 with the DOC. The MOA constitutes an [FR Doc. 2010–21843 Filed 8–31–10; 8:45 am] Pennsylvania Ave., Ronald Reagan agreement between the DOC and the BILLING CODE 3510–JT–P Building, Suite 800M—Mezzanine show organizer specifying which

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responsibilities are to be undertaken by (STOP!), IPR protection measures accommodating large numbers of the DOC as part of the International available during the show, and the attendees whose native language will Buyer Program and, in turn, which means to protect IPR in overseas not be English. responsibilities are to be undertaken by markets, as well as in the United States. (j) Level of Cooperation: The applicant the show organizer. Anyone requesting (b) Export Potential: The trade show demonstrates a willingness to cooperate application information will be sent a promotes products and services from with the Commercial Service to fulfill sample copy of the MOA along with the U.S. industries that have high export the program’s goals and adhere to the application and a copy of this Federal potential, as determined by DOC target dates set out in the MOA and in Register Notice. The responsibilities to sources, e.g., Commercial Service best the event timetables, both of which are be undertaken by the DOC will be prospects lists and U.S. export statistics available from the program office (see carried out by the Commercial Service. (certain industries are rated as priorities the FOR FURTHER INFORMATION CONTACT There is no fee required to submit an by our domestic and international section above). Past experience in the application. If accepted into the commercial officers in their Country International Buyer Program will be program, a participation fee of $8,000 Commercial Guides, available through taken into account in evaluating the for shows of five days or less is required the Web site, http://www.export.gov). applications received for the January 1, within 45 days of written notification of (c) Level of International Interest: The 2012 through December 31, 2012 period. acceptance into the program. For trade trade show meets the needs of a (k) Delegation Incentives: Show shows more than five days in duration, significant number of overseas markets organizers should list or identify a range or requiring more than one International and corresponds to marketing of incentives to be offered to delegations Business Center, a participation fee of opportunities as identified by the posts and/or delegation leaders recruited by $14,000 is required. For trade shows ten in their Country Commercial Guides the Commercial Service overseas posts. days or more in duration, and/or (e.g., best prospect lists). Previous Examples of incentives to international requiring more than two International international attendance at the show visitors and to organized delegations Business Centers, the participation fee may be used as an indicator. include, but are not limited to: Waived will be negotiated, but shall not be less (d) Scope of the Show: The event must or reduced admission fees; special than $19,500. offer a broad spectrum of U.S. made organized events, such as receptions, The DOC selects trade shows to be products and services for the subject meetings with association executives, International Buyer Program partners industry. Trade shows with a majority briefings, and site tours; and that it determines to be leading of U.S. firms as exhibitors are given complimentary accommodations for international trade shows appropriate priority. delegation leaders. Waived or reduced for participation by U.S. exporting firms (e) U.S. Content of Show Exhibitors: admission fees are required for and for promotion in overseas markets Trade shows with exhibitors featuring a international attendees who are by U.S. Embassies and Consulates. high percentage of products produced in members of Commercial Service Selection as an International Buyer the United States or products with a recruited delegations under this Program partner does not constitute a high degree of U.S. content will be program. Delegation leaders also must guarantee by the U.S. Government of the preferred. be provided complimentary admission show’s success. International Buyer (f) Stature of the Show: The trade to the event. Program partnership status is not an show is clearly recognized by the Application Requirements: Show endorsement of the show organizer industry it covers as a leading event for organizers submitting applications for except as to its international buyer the promotion of that industry’s the 2012 International Buyer Program activities. Non-selection should not be products and services both domestically are requested to submit with each viewed as a finding that the event will and internationally, and as a showplace application: (1) A narrative statement not be successful in the promotion of for the latest technology or services in addressing each question in the U.S. exports. that industry. application, Form ITA–4102P; (2) a Exclusions: Trade shows that are (g) Level of Exhibitor Interest: There is signed statement that ‘‘The above either first-time or horizontal (non- demonstrated interest on the part of U.S. information provided is correct and the industry specific) events generally will exhibitors in receiving international applicant will abide by the terms set not be considered. business visitors during the trade show. forth in this Call for Applications for the Eligibility: All 2012 U.S. trade events A significant number of U.S. exhibitors 2012 International Buyer Program are eligible to apply. should be new-to-export (NTE) or (January 1, 2012 through December 31, General Selection Criteria: The seeking to expand their sales into 2012)’’; and (3) two copies of the Commercial Service will select shows to additional export markets. application, on company letterhead, and be International Buyer Program partners (h) Level of Overseas Marketing: There one electronic copy submitted on a CD– that, in the judgment of the Commercial has been a demonstrated effort to market RW (preferably in Microsoft Word® Service, best meet the following criteria: prior shows overseas. In addition, the format), on or before the deadline noted (a) Level of Intellectual Property applicant should describe in detail the above. There is no fee required to apply. Rights Protection: The trade show international marketing program to be The DOC expects to issue the results of organizer includes in the terms and conducted for the event, and explain this process in March 2011. conditions of its exhibitor contracts how efforts should increase individual Legal Authority: The Commercial provisions for the protection of and group international attendance. Service has the legal authority to enter intellectual property rights (IPR); has (Planned cooperation with Visit USA into MOAs with show organizers procedures in place at the trade show to Committees overseas is desirable. For (partners) under the provisions of the address IPR infringement, which, at a more information on Visit USA Mutual Educational and Cultural minimum, provides information to help Committees go to: http:// Exchange Act of 1961 (MECEA), as U.S. exhibitors procure legal www.visitusa.com. amended (22 U.S.C. 2455(f) and representation during the trade show; (i) Logistics: The trade show site, 2458(c)). MECEA allows the and agrees to assist the DOC to reach facilities, transportation services, and Commercial Service to accept and educate U.S. exhibitors on the availability of accommodations at the contributions of funds and services from Strategy Targeting Organized Piracy site of the exhibition must be capable of firms for the purposes of furthering its

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mission. The statutory program Selvedge From the People’s Republic of ribbon may or may not be parallel to authority for the Commercial Service to China: Final Affirmative Countervailing each other; conduct the International Buyer Duty Determination, 75 FR 41801 (July • Consist of such ribbons affixed to Program is 15 U.S.C. 4724. 19, 2010). like ribbon and/or cut-edge woven The Office of Management and Budget On August 25, 2010, the ITC notified ribbon, a configuration also known as an (OMB) has approved the information the Department of its final ‘‘ornamental trimming;’’ collection requirements of the determination pursuant to sections • Be wound on spools; attached to a application to this program (Form ITA– 705(d) and 705(b)(1)(A)(ii) of the Tariff card; hanked (i.e., coiled or bundled); 4102P) under the provisions of the Act of 1930, as amended (‘‘the Act’’), that packaged in boxes, trays or bags; or Paperwork Reduction Act of 1995 (44 an industry in the United States is configured as skeins, balls, bateaus or U.S.C. 3501 et seq.) (OMB Control No. threatened with material injury by folds; and/or 0625–0151). Notwithstanding any other reason of subsidized imports of subject • Be included within a kit or set such provision of law, no person is required merchandise from the PRC. See Narrow as when packaged with other products, to respond to, nor shall a person be Woven Ribbons With Woven Selvedge including but not limited to gift bags, subject to a penalty for failure to comply from China, USITC Pub. 4180, gift boxes and/or other types of ribbon. with, a collection of information subject Investigation Nos. 701–TA–467 and Narrow woven ribbons subject to the to the requirements of the Paperwork 731–TA–1164–1165 (Final) (August order include all narrow woven fabrics, Reduction Act, unless that collection of 2010). Pursuant to section 706(a) of the tapes, and labels that fall within this information displays a currently valid Act, the Department is publishing a written description of the scope of this OMB Control Number. countervailing duty order on the subject order. merchandise. Dated: August 26, 2010. Excluded from the scope of the order Blanche Ziv, Scope of the Order are the following: Director, International Buyer Program, U.S. The merchandise subject to the order (1) Formed bows composed of narrow and Foreign Commercial Service, is narrow woven ribbons with woven woven ribbons with woven selvedge; International Trade Administration, U.S. ‘‘ ’’ Department of Commerce. selvedge, in any length, but with a (2) Pull-bows (i.e., an assemblage of width (measured at the narrowest span ribbons connected to one another, [FR Doc. 2010–21838 Filed 8–31–10; 8:45 am] of the ribbon) less than or equal to 12 folded flat and equipped with a means BILLING CODE 3510–DS–P centimeters, composed of, in whole or to form such ribbons into the shape of in part, man-made fibers (whether a bow by pulling on a length of material DEPARTMENT OF COMMERCE artificial or synthetic, including but not affixed to such assemblage) composed of limited to nylon, polyester, rayon, narrow woven ribbons; International Trade Administration polypropylene, and polyethylene (3) Narrow woven ribbons comprised teraphthalate), metal threads and/or at least 20 percent by weight of [C–570–953] metalized yarns, or any combination elastomeric yarn (i.e., filament yarn, Narrow Woven Ribbons With Woven thereof. Narrow woven ribbons subject including monofilament, of synthetic to the order may: textile material, other than textured Selvedge From the People’s Republic • of China: Countervailing Duty Order Also include natural or other non- yarn, which does not break on being man-made fibers; extended to three times its original • AGENCY: Import Administration, Be of any color, style, pattern, or length and which returns, after being International Trade Administration, weave construction, including but not extended to twice its original length, Department of Commerce. limited to single-faced satin, double- within a period of five minutes, to a SUMMARY: Based on affirmative final faced satin, grosgrain, sheer, taffeta, length not greater than one and a half determinations by the Department of twill, jacquard, or a combination of two times its original length as defined in Commerce (‘‘the Department’’) and the or more colors, styles, patterns, and/or the Harmonized Tariff Schedule of the International Trade Commission (‘‘ITC’’), weave constructions; United States (‘‘HTSUS’’), Section XI, • Have been subjected to, or the Department is issuing a Note 13) or rubber thread; composed of materials that have been countervailing duty order on narrow (4) Narrow woven ribbons of a kind subjected to, various treatments, woven ribbons with woven selvedge used for the manufacture of typewriter including but not limited to dyeing, (‘‘narrow woven ribbons’’) from the or printer ribbons; printing, foil stamping, embossing, People’s Republic of China (‘‘PRC’’). (5) Narrow woven labels and apparel flocking, coating, and/or sizing; DATES: Effective Date: September 1, • Have embellishments, including but tapes, cut-to-length or cut-to-shape, 2010. not limited to applique´, fringes, having a length (when measured across the longest edge-to-edge span) not FOR FURTHER INFORMATION CONTACT: embroidery, buttons, glitter, sequins, Scott Holland, AD/CVD Operations, laminates, and/or adhesive backing; exceeding eight centimeters; Office 1, Import Administration, • Have wire and/or monofilament in, (6) Narrow woven ribbons with International Trade Administration, on, or along the longitudinal edges of woven selvedge attached to and forming U.S. Department of Commerce, 14th the ribbon; the handle of a gift bag; Street and Constitution Avenue, NW., • Have ends of any shape or (7) Cut-edge narrow woven ribbons Washington, DC 20230; telephone: (202) dimension, including but not limited to formed by cutting broad woven fabric 482–1279. straight ends that are perpendicular to into strips of ribbon, with or without the longitudinal edges of the ribbon, treatments to prevent the longitudinal Background tapered ends, flared ends or shaped edges of the ribbon from fraying (such On July 19, 2010, the Department ends, and the ends of such woven as by merrowing, lamination, sono- published its final determination in the ribbons may or may not be hemmed; bonding, fusing, gumming or waxing), countervailing duty investigation of • Have longitudinal edges that are and with or without wire running narrow woven ribbons from the PRC. straight or of any shape, and the lengthwise along the longitudinal edges See Narrow Woven Ribbons With Woven longitudinal edges of such woven of the ribbon;

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(8) Narrow woven ribbons comprised Countervailing Duty Order merchandise in an amount equal to the at least 85 percent by weight of threads According to section 706(b)(2) of the net countervailable subsidy rates noted having a denier of 225 or higher; Act, duties shall be assessed on subject below. (9) Narrow woven ribbons constructed merchandise entered, or withdrawn from pile fabrics (i.e., fabrics with a Net subsidy from warehouse, for consumption on or Exporter/manufacturer rate surface effect formed by tufts or loops of after the date of publication of the ITC’s yarn that stand up from the body of the notice of final determination if that Yama Ribbons and Bows Co., fabric); determination is based upon the threat Ltd ...... 1.56 (10) Narrow woven ribbon affixed of material injury. Section 706(b)(1) of Changtai Rongshu Textile Co., (including by tying) as a decorative the Act states, ‘‘If the Commission, in its Ltd ...... 117.95 detail to non-subject merchandise, such final determination under section All Others ...... 1.56 as a gift bag, gift box, gift tin, greeting 705(b), finds material injury or threat of card or plush toy, or affixed (including material injury which, but for the Termination of the Suspension of by tying) as a decorative detail to suspension of liquidation under section Liquidation packaging containing non-subject 703(d)(2), would have led to a finding The Department will also instruct merchandise; of material injury, then entries of the CBP to terminate the suspension of (11) Narrow woven ribbon that is (a) merchandise subject to the liquidation for entries of narrow woven affixed to non-subject merchandise as a countervailing duty order, the ribbons from the PRC entered, or working component of such non-subject liquidation of which has been withdrawn from warehouse, for merchandise, such as where narrow suspended under section 703(d)(2), consumption prior to the publication of woven ribbon comprises an apparel shall be subject to the imposition of the ITC’s notice of final determination, trimming, book marker, bag cinch, or countervailing duties under section and refund any cash deposits made and part of an identity card holder, or (b) 701(a).’’ In addition, section 706(b)(2) of release any bonds posted between affixed (including by tying) to non- the Act requires CBP to refund any cash December 14, 2009 (i.e., the date of subject merchandise as a working deposits or bonds of estimated publication of the Department’s component that holds or packages such countervailing duties posted since the Preliminary Determination) and the date non-subject merchandise or attaches Department’s preliminary of publication of the ITC’s final packaging or labeling to such non- countervailing duty determination, if determination in the Federal Register. subject merchandise, such as a ‘‘belly the ITC’s final determination is threat- This notice constitutes the band’’ around a pair of pajamas, a pair based. Because the ITC’s final countervailing duty order with respect of socks or a blanket; determination in this case is based on to narrow woven ribbons from the PRC, (12) Narrow woven ribbon(s) the threat of material injury and is not pursuant to section 706(a) of the Act. comprising a belt attached to and accompanied by a finding that injury Interested parties may contact the imported with an item of wearing would have resulted but for the Department’s Central Records Unit, apparel, whether or not such belt is imposition of suspension of liquidation Room 1117 of the main Commerce removable from such item of wearing of entries since the Department’s Building, for copies of an updated list apparel; and Preliminary Determination 1 was of countervailing duty orders currently (13) Narrow woven ribbon(s) included published in the Federal Register, in effect. with non-subject merchandise in kits, section 706(b)(2) of the Act is This order is issued and published in such as a holiday ornament craft kit or applicable. accordance with section 706(a) of the a scrapbook kit, in which the individual As a result of the ITC’s determination, Act and 19 CFR 351.211(b). lengths of narrow woven ribbon(s) and in accordance with section 706(a)(1) Dated: August 30, 2010. included in the kit are each no greater of the Act, the Department will direct Ronald K. Lorentzen, than eight inches, the aggregate amount U.S. Customs and Border Protection of narrow woven ribbon(s) included in Deputy Assistant Secretary for Import (‘‘CBP’’) to assess, upon further Administration. the kit does not exceed 48 linear inches, instruction by the Department, [FR Doc. 2010–21978 Filed 8–31–10; 8:45 am] none of the narrow woven ribbon(s) countervailing duties equal to the included in the kit is on a spool, and the amount of the net countervailable BILLING CODE 3510–DS–P narrow woven ribbon(s) is only one of subsidy for all relevant entries of narrow multiple items included in the kit. woven ribbons from the PRC. In DEPARTMENT OF COMMERCE The merchandise subject to this order accordance with section 706 of the Act, is classifiable under the HTSUS the Department will direct CBP to Patent and Trademark Office statistical categories 5806.32.1020; reinstitute suspension of liquidation 2 5806.32.1030; 5806.32.1050 and effective on the date of publication of [Docket No.: PTO–P–2010–0055] 5806.32.1060. Subject merchandise also the ITC’s notice of final determination Examination Guidelines Update: may enter under subheadings in the Federal Register, and to require Developments in the Obviousness 5806.31.00; 5806.32.20; 5806.39.20; a cash deposit for each entry of subject Inquiry After KSR v.Teleflex 5806.39.30; 5808.90.00; 5810.91.00; 5810.99.90; 5903.90.10; 5903.90.25; 1 Narrow Woven Ribbons With Woven Selvedge AGENCY: United States Patent and 5907.00.60; and 5907.00.80 and under From the People’s Republic of China: Preliminary Trademark Office, Commerce. statistical categories 5806.32.1080; Affirmative Countervailing Duty Determination and Alignment of Final Countervailing Duty ACTION: Notice. 5810.92.9080; 5903.90.3090; and Determination With Final Antidumping Duty 6307.90.9889. The HTSUS statistical Determination, 74 FR 66090 (December 14, 2009). SUMMARY: The United States Patent and categories and subheadings are provided 2 The Department instructed CBP to discontinue Trademark Office (USPTO or Office) is for convenience and customs purposes; the suspension of liquidation on April 13, 2010, in issuing an update (2010 KSR Guidelines accordance with section 703(d) of the Act. Section Update) to its obviousness guidelines however, the written description of the 703(d) states that the suspension of liquidation merchandise under the order is pursuant to a preliminary determination may not for its personnel to be used when dispositive. remain in effect for more than four months. applying the law of obviousness under

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35 U.S.C. 103. This 2010 KSR This 2010 KSR Guidelines Update by patent applicants in response to Guidelines Update highlights case law does not constitute substantive rule obviousness rejections. developments on obviousness under 35 making and hence does not have the The 2007 KSR Guidelines pointed out, U.S.C. 103 since the 2007 decision by force and effect of law. It has been as had the Supreme Court in KSR, that the United States Supreme Court developed as a matter of internal Office the factual inquiries announced in (Supreme Court) in KSR Int’l Co. v. management and is not intended to Graham v. John Deere, 383 U.S. 1, 17– Teleflex Inc. These guidelines are create any right or benefit, substantive 18 (1966) (scope and content of the prior intended to be used by Office personnel or procedural, enforceable by any party art; differences between the claimed in conjunction with the guidance in the against the Office. Rejections will invention and the prior art; level of Manual of Patent Examining Procedure continue to be based upon the ordinary skill in the art; and secondary when applying the law of obviousness substantive law, and it is these indicia of nonobviousness), remain the under 35 U.S.C. 103. Members of the rejections that are appealable. foundation of any determination of public are invited to provide comments Consequently, any failure by Office obviousness. It remains true that ‘‘[t]he on the 2010 KSR Guidelines Update. personnel to follow this 2010 KSR determination of obviousness is The Office is especially interested in Guidelines Update is neither appealable dependent on the facts of each case.’’ receiving suggestions of recent nor petitionable. Sanofi-Synthelabo v. Apotex, Inc., 550 decisional law in the field of After a review of the principles of F.3d 1075, 1089 (Fed. Cir. 2008) (citing obviousness that would have particular obviousness and Office policy as Graham, 383 U.S. at 17–18 (1966)). As value as teaching tools. reflected in the Manual of Patent for the reasoning required to support an DATES: Effective Date: This 2010 KSR Examining Procedure (MPEP), this 2010 obviousness determination, the 2007 Guidelines Update is effective KSR Guidelines Update addresses a KSR Guidelines noted that the teaching- September 1, 2010. number of issues that arise when Office suggestion-motivation (TSM) test was ADDRESSES: Comments concerning this personnel consider whether or not a but one possible approach. The 2007 2010 KSR Guidelines Update may be claimed invention is obvious. The KSR Guidelines identified six other sent by electronic mail message over the concepts discussed are grounded in rationales gleaned from the KSR Internet addressed to Federal Circuit cases, and correlated decision as examples of appropriate [email protected], or submitted with existing Office policy as lines of reasoning that could also be by mail addressed to: Mail Stop appropriate. A number of cases which used. The six other rationales identified Comments—Patents, Commissioner for have been selected for their in the 2007 KSR Guidelines are: (1) Patents, P.O. Box 1450, Alexandria, VA instructional value on the issue of Combining prior art elements according 22313–1450. Although comments may obviousness will be discussed in detail. to known methods to yield predictable results; (2) simple substitution of one be submitted by mail, the Office prefers The law of obviousness will continue known element for another to obtain to receive comments via the Internet. to be refined, and Office personnel are predictable results; (3) use of a known FOR FURTHER INFORMATION CONTACT: encouraged to maintain an awareness of technique to improve similar devices, Kathleen Kahler Fonda or Pinchus M. precedential case law from the Federal methods, or products in the same way; Laufer, Legal Advisors, Office of Patent Circuit and precedential decisions of the (4) applying a known technique to a Legal Administration, Office of the Board of Patent Appeals and known device, method, or product Associate Commissioner for Patent Interferences (Board) in this area. The ready for improvement to yield Examination Policy, by telephone at Office will train Office personnel and predictable results; (5) obvious to try— (571) 272–7754 or (571) 272–7726; by update the MPEP as necessary to reflect choosing from a finite number of mail addressed to: Mail Stop Comments the current state of the law. identified, predictable solutions, with a Patents, Commissioner for Patents, P.O. 2. Principles of Obviousness and the reasonable expectation of success; and Box 1450, Alexandria, VA 22313–1450; Guidelines. In response to the Supreme (6) known work in one field of endeavor or by facsimile transmission to (571) Court’s April 2007 decision in KSR, the may prompt variations of it for use in 273–7754, marked to the attention of Office developed guidelines for patent either the same field or a different one Kathleen Kahler Fonda. examiners to follow when determining based on design incentives or other SUPPLEMENTARY INFORMATION: obviousness of a claimed invention and market forces if the variations are 1. Introduction. The purpose of this published these guidelines in the predictable to one of ordinary skill in 2010 KSR Guidelines Update is to Federal Register and Official Gazette. the art. Any rationale employed must remind Office personnel of the See Examination Guidelines for provide a link between the factual principles of obviousness explained by Determining Obviousness Under 35 findings and the legal conclusion of the Supreme Court in KSR Int’l Co. v. U.S.C. 103 in View of the Supreme obviousness. Teleflex Inc., 550 U.S 398 (2007) (KSR), Court Decision in KSR International Co. It is important for Office personnel to and to provide additional guidance in v. Teleflex Inc., 72 FR 57526 (Oct. 10, recognize that when they do choose to view of decisions by the United States 2007), 1324 Off. Gaz. Pat. Office 23 formulate an obviousness rejection Court of Appeals for the Federal Circuit (Nov. 6, 2007) (2007 KSR Guidelines). using one of the rationales suggested by (Federal Circuit) since KSR. This body The 2007 KSR Guidelines have been the Supreme Court in KSR and of case law developed over the past incorporated in the MPEP. See MPEP discussed in the 2007 KSR Guidelines, three years provides additional § 2141 (8th ed. 2001) (Rev. 6, Sept. they are to adhere to the instructions examples that will be useful to Office 2007). The purpose of the 2007 KSR provided in the MPEP regarding the personnel as well as practitioners Guidelines was to give Office personnel necessary factual findings. However, the during the examination process. practical guidance on how to evaluate 2007 KSR Guidelines also stressed that Although every question of obviousness obviousness issues under 35 U.S.C. while the Graham inquiries and the must be decided on its own facts, these 103(a) in accordance with the Supreme associated reasoning are crucial to a cases begin to clarify the contours of the Court’s instruction in KSR. The 2007 proper obviousness determination, the obviousness inquiry after KSR, and help KSR Guidelines also alerted Office Supreme Court in KSR did not place any to show when a rejection on this basis personnel to the importance of limit on the particular approach to be is proper and when it is not. considering rebuttal evidence submitted taken to formulate the line of reasoning.

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In other words, the KSR decision is not The Supreme Court’s flexible approach and the requirement for to be seen as replacing a single test for approach to the obviousness inquiry is explanation, Office personnel may obviousness—the TSM test—with the reflected in numerous pre-KSR invoke legal precedent as a source of seven rationales listed in the 2007 KSR decisions, as can be seen in a review of supporting rationale when warranted Guidelines. See MPEP §§ 2141 and 2143 MPEP § 2144. This section provides and appropriately supported. See MPEP (8th ed. 2001) (Rev. 8, July 2010) many lines of reasoning to support a § 2144.04. So, for example, automating a (references to the MPEP are to Revision determination of obviousness based manual activity, making portable, 8 of the 8th Edition of the MPEP unless upon earlier legal precedent that had making separable, reversal or otherwise indicated). It remains Office condoned the use of particular examples duplication of parts, or purifying an old policy that appropriate factual findings of what may be considered common product may form the basis of a are required in order to apply the sense or ordinary routine practice (e.g., rejection. However, such rationales enumerated rationales properly. If a making integral, changes in shape, should not be treated as per se rules, but rejection has been made that omits one making adjustable). Thus, the type of rather must be explained and shown to of the required factual findings, and in reasoning sanctioned by the opinion in apply to the facts at hand. A similar response to the rejection a practitioner KSR has long been a part of the patent caveat applies to any obviousness or inventor points out the omission, examination process. See MPEP § 2144. analysis. Simply stating the principle Office personnel must either withdraw Although the KSR approach is flexible (e.g., ‘‘art recognized equivalent,’’ the rejection, or repeat the rejection with regard to the line of reasoning to ‘‘structural similarity’’) without including all required factual findings. be applied, the 2007 KSR Guidelines providing an explanation of its 3. The Impact of the KSR Decision. and MPEP § 2143 state: ‘‘The Supreme applicability to the facts of the case at KSR’s renewed emphasis on the Court in KSR noted that the analysis hand is generally not sufficient to foundational principles of Graham supporting a rejection under 35 U.S.C. establish a prima facie case of coupled with its abrogation of the strict 103 should be made explicit.’’ MPEP obviousness. TSM test have clearly impacted the § 2143. In Ball Aerosol v. Limited Many basic approaches that a manner in which Office personnel and Brands, 555 F.3d 984 (Fed. Cir. 2009), practitioner may use to demonstrate practitioners carry out the business of the Federal Circuit offered additional nonobviousness also continue to apply prosecuting patent applications with instruction as to the need for an explicit in the post-KSR era. Since it is now regard to issues of obviousness. analysis. The Federal Circuit explained, clear that a strict TSM approach is not However, Office personnel as well as as is consistent with the 2007 KSR the only way to establish a prima facie practitioners should also recognize the Guidelines, that the Supreme Court’s case of obviousness, it is true that significant extent to which the requirement for an explicit analysis practitioners have been required to shift obviousness inquiry has remained does not require record evidence of an the emphasis of their nonobviousness constant in the aftermath of KSR. explicit teaching of a motivation to arguments to a certain degree. However, In footnote 2 of the 2007 KSR combine in the prior art. familiar lines of argument still apply, Guidelines, the Office acknowledged including teaching away from the that ongoing developments in the law of [T]he analysis that ‘‘should be made claimed invention by the prior art, lack explicit’’ refers not to the teachings in the obviousness were to be expected in the prior art of a motivation to combine, but to of a reasonable expectation of success, wake of the KSR decision. That footnote the court’s analysis * * *. Under the flexible and unexpected results. Indeed, they also stated that it was ‘‘not clear which inquiry set forth by the Supreme Court, the may have even taken on added Federal Circuit decisions will retain district court therefore erred by failing to take importance in view of the recognition in their viability’’ after KSR. See 2007 KSR account of ‘‘the inferences and creative KSR of a variety of possible rationales. Guidelines, 72 FR at 57,528 n.2. The steps,’’ or even routine steps, that an inventor At the time the KSR decision was edition of the MPEP that was current would employ and by failing to find a handed down, some observers when the KSR decision was handed motivation to combine related pieces from questioned whether the principles the prior art. down had made the following statement discussed were intended by the in § 2144: Ball Aerosol, 555 F.3d at 993. The Supreme Court to apply to all fields of Federal Circuit’s directive in Ball The rationale to modify or combine the inventive endeavor. Arguments were prior art does not have to be expressly stated Aerosol was addressed to a lower court, made that because the technology at in the prior art; the rationale may be but it applies to Office personnel as issue in KSR involved the relatively expressly or impliedly contained in the prior well. When setting forth a rejection, well-developed and predictable field of art or it may be reasoned from knowledge Office personnel are to continue to make vehicle pedal assemblies, the decision generally available to one of ordinary skill in appropriate findings of fact as explained was relevant only to such fields. The the art, established scientific principles, or in MPEP §§ 2141 and 2143, and must Federal Circuit has soundly repudiated legal precedent established by prior case law. provide a reasoned explanation as to such a notion, stating that KSR applies MPEP § 2144 (8th ed. 2001) (Rev. 5, why the invention as claimed would across technologies: Aug. 2006) (citing five pre-KSR Federal have been obvious to a person of This court also declines to cabin KSR to the Circuit opinions and two decisions of ordinary skill in the art at the time of ‘‘predictable arts’’ (as opposed to the the Board). The KSR decision has the invention. This requirement for ‘‘unpredictable art’’ of biotechnology). In fact, reinforced those earlier decisions that explanation remains even in situations this record shows that one of skill in this validated a more flexible approach to in which Office personnel may properly advanced art would find these claimed providing reasons for obviousness. rely on intangible realities such as ‘‘results’’ profoundly ‘‘predictable.’’ However, the Supreme Court’s common sense and ordinary ingenuity. In re Kubin, 561 F.3d 1351, 1360 (Fed. pronouncement in KSR has at the same When considering obviousness, Office Cir. 2009). Thus, Office personnel time clearly undermined the continued personnel are cautioned against treating should not withdraw any rejection viability of cases such as In re Lee, 277 any line of reasoning as a per se rule. solely on the basis that the invention F.3d 1338 (Fed. Cir. 2002), insofar as MPEP § 2144 discusses supporting a lies in a technological area ordinarily Lee appears to require a strict basis in rejection under 35 U.S.C. 103 by considered to be unpredictable. record evidence as a reason to modify reliance on scientific theory and legal The decisions of the Federal Circuit the prior art. precedent. In keeping with the flexible discussed in this 2010 KSR Guidelines

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Update provide Office personnel as well are not the focus of separate discussions problem which had suggested use of the as practitioners with additional in this 2010 KSR Guidelines Update, it method had been previously unknown. examples of the law of obviousness. The will be noted that obviousness concepts The case of In re Omeprazole Patent purpose of the 2007 KSR Guidelines such as applying known techniques, Litigation is one in which the claims in was, as stated above, to help Office design choice, and market forces are question were found to be nonobvious personnel to determine when a claimed addressed when they arise in the in the context of an argument to invention is not obvious, and to provide selected cases. The cases included in combine prior art elements. The an appropriate supporting rationale this 2010 KSR Guidelines Update invention involved applying enteric when an obviousness rejection is reinforce the idea, presented in the 2007 coatings to a drug in pill form for the appropriate. Now that a body of case KSR Guidelines, that there may be more purpose of ensuring that the drug did law is available to guide Office than one line of reasoning that can not disintegrate before reaching its personnel and practitioners as to the properly be applied to a particular intended site of action. The drug at boundaries between obviousness and factual scenario. The selected decisions issue was omeprazole, the generic name nonobviousness, it is possible in this also illustrate the overlapping nature of for gastric acid inhibitor marketed as 2010 KSR Guidelines Update to contrast the lines of reasoning that may be Prilosec®. The claimed formulation situations in which the subject matter employed to establish a prima facie case included two layers of coatings over the was found to have been obvious with of obviousness. Although the 2007 KSR active ingredient. those in which it was determined not to Guidelines presented the rationales as The district court found that Astra’s have been obvious. Thus, Office discrete, self-contained lines of patent in suit was infringed by personnel may use this 2010 KSR reasoning, and they may indeed be defendants Apotex and Impax. The Guidelines Update in conjunction with employed that way, it is useful to district court rejected Apotex’s defense the 2007 KSR Guidelines (incorporated recognize that real-world situations may that the patents were invalid for into MPEP §§ 2141 and 2143) to provide require analyses that may not be so obviousness. Apotex had argued that the a more complete view of the state of the readily pigeon-holed into distinct claimed invention was obvious because law of obviousness. categories. coated omeprazole tablets were known This 2010 KSR Guidelines Update A. Combining Prior Art Elements. In from a prior art reference, and because provides a ‘‘teaching point’’ for each discussing the obviousness rationale secondary subcoatings in discussed case. The ‘‘teaching point’’ concerning combining prior art pharmaceutical preparations generally may be used to quickly determine the elements, identified as Rationale A, the were also known. There was no relevance of the discussed case, but 2007 KSR Guidelines quoted KSR and evidence of unpredictability associated should not be used as a substitute for noted that ‘‘it can be important to with applying two different enteric reading the remainder of the discussion identify a reason that would have coatings to omeprazole. However, of the case in this 2010 KSR Guidelines prompted a person of ordinary skill in Astra’s reason for applying an Update. Nor should any case in this the relevant field to combine the intervening subcoating between the 2010 KSR Guidelines Update be applied elements in the way the claimed new prior art coating and omeprazole had or cited in an Office action solely on the invention does.’’ KSR, 550 U.S. at 401. been that the prior art coating was basis of what is stated in the ‘‘teaching In view of the cases decided since KSR, actually interacting with omeprazole, point’’ for the case. one situation when it is important to thereby contributing to undesirable 4. Obviousness Examples from identify a reason to combine known degradation of the active ingredient. Federal Circuit Cases. The impact of the elements in a known manner to obtain This degradation of omeprazole by Supreme Court’s decision in KSR can be predictable results is when the interaction with the prior art coating more readily understood in the context combination requires a greater had not been recognized in the prior art. of factual scenarios. The cases in this expenditure of time, effort, or resources Therefore, the district court reasoned 2010 KSR Guidelines Update are than the prior art teachings. Even that based on the evidence available, a broadly grouped according to though the components are known, the person of ordinary skill in the art would obviousness concepts in order to combining step is technically feasible, have had no reason to include a provide persons involved with patent and the result is predictable, the subcoating in an omeprazole pill prosecution with ready access to the claimed invention may nevertheless be formulation. examples that are most pertinent to the nonobvious when the combining step The Federal Circuit affirmed the issue at hand. The first three groups involves such additional effort that no district court’s decision that the claimed correspond directly with three of the one of ordinary skill would have invention was not obvious. Even though rationales identified in the 2007 KSR undertaken it without a recognized subcoatings for enteric drug formulation Guidelines. These rationales— reason to do so. When a combination were known, and there was no evidence combining prior art elements, invention involves additional of undue technical hurdles or lack of a substituting one known element for complexity as compared with the prior reasonable expectation of success, the another, and obvious to try—have each art, the invention may be nonobvious formulation was nevertheless not been the subject of a significant number unless an examiner can articulate a obvious because the flaws in the prior of post-KSR obviousness decisions. The reason for including the added features art formulation that had prompted the fourth group focuses on issues or steps. This is so even when the modification had not been recognized. concerning consideration of evidence claimed invention could have been Thus there would have been no reason during prosecution. Office personnel as readily implemented. to modify the initial formulation, even well as practitioners are reminded of the Example 4.1. In re Omeprazole Patent though the modification could have technology-specific obviousness Litigation, 536 F.3d 1361 (Fed. Cir. been done. Moreover, a person of skill examples previously posted on the 2008). Teaching point: Even where a in the art likely would have chosen a Office’s Web site at http:// general method that could have been different modification even if he or she www.uspto.gov/web/offices/pac/dapp/ applied to make the claimed product had recognized the problem. opla/ksr/ksr_training_materials.htm. was known and within the level of skill Office personnel should note that in Although the other rationales of the ordinary artisan, the claim may this case the modification of the prior discussed in the 2007 KSR Guidelines nevertheless be nonobvious if the art that had been presented as an

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argument for obviousness was an extra base section. Because both the base the Federal Circuit stated that even if all process step that added an additional portion and the strap were made of elements of the claimed invention had component to a known, successfully foam, friction between the strap and the been taught by the prior art, the claims marketed formulation. The proposed base section allowed the strap to would not have been obvious because modification thus amounted to extra maintain its position after pivoting. In the combination yielded more than work and greater expense for no other words, the foam strap did not fall predictable results. apparent reason. This is not the same as under the force of gravity to a position The Federal Circuit’s discussion in combining known prior art elements A adjacent to the heel of the base section. Crocs serves as a reminder to Office and B when each would have been The International Trade Commission personnel that merely pointing to the expected to contribute its own known (ITC) determined that the claims were presence of all claim elements in the properties to the final product. In the obvious over the combination of two prior art is not a complete statement of Omeprazole case, in view of the pieces of prior art. The first was the a rejection for obviousness. In expectations of those of ordinary skill in Aqua Clog, which was a shoe that accordance with MPEP § 2143 A(3), a the art, adding the subcoating would not corresponded to the base section of the proper rejection based on the rationale have been expected to confer any footwear of the ‘858 patent. The second that the claimed invention is a particular desirable property on the was the Aguerre patent, which taught combination of prior art elements also final product. Rather, the final product heel straps made of elastic or another includes a finding that results flowing obtained according to the proposed flexible material. In the ITC’s view, the from the combination would have been modifications would merely have been claimed invention was obvious because predictable to a person of ordinary skill expected to have the same functional the prior art Aqua Clog differed from the in the art. MPEP § 2143 A(3). If results properties as the prior art product. claimed invention only as to the would not have been predictable, Office The Omeprazole case can also be presence of the strap, and a suitable personnel should not enter an analyzed in view of the discovery of a strap was taught by Aguerre. obviousness rejection using the previously unknown problem by the The Federal Circuit disagreed. The combination of prior art elements patentee. If the adverse interaction Federal Circuit stated that the prior art rationale, and should withdraw such a between active agent and coating had did not teach foam heel straps, or that rejection if it has been made. been known, it might well have been a foam heel strap should be placed in Example 4.3. Sundance, Inc. v. obvious to use a subcoating. However, contact with a foam base. The Federal DeMonte Fabricating Ltd., 550 F.3d since the problem had not been Circuit pointed out that the prior art 1356 (Fed. Cir. 2008). Teaching point: A previously known, there would have actually counseled against using foam as claimed invention is likely to be been no reason to incur additional time a material for the heel strap of a shoe. obvious if it is a combination of known and expense to add another layer, even The record shows that the prior art would prior art elements that would reasonably though the addition would have been actually discourage and teach away from the have been expected to maintain their technologically possible. This is true use of foam straps. An ordinary artisan in respective properties or functions after because the prior art of record failed to this field would not add a foam strap to the they have been combined. mention any stability problem, despite foam Aqua Clog because foam was likely to Sundance involved a segmented and the acknowledgment during testimony stretch and deform, in addition to causing mechanized cover for trucks, swimming at trial that there was a known discomfort for a wearer. The prior art depicts pools, or other structures. The claim foam as unsuitable for straps. theoretical reason that omeprazole was found to be obvious over the prior might be subject to degradation in the Id. at 1309. art applied. presence of the known coating material. The Federal Circuit continued, stating A first prior art reference taught that Example 4.2. Crocs, Inc. v. U.S. that even if—contrary to fact—the a reason for making a segmented cover International Trade Commission, 598 claimed invention had been a was ease of repair, in that a single F.3d 1294 (Fed. Cir. 2010). Teaching combination of elements that were damaged segment could be readily point: A claimed combination of prior known in the prior art, the claims still removed and replaced when necessary. art elements may be nonobvious where would have been nonobvious. There A second prior art reference taught the the prior art teaches away from the was testimony in the record that the advantages of a mechanized cover for claimed combination and the loose fit of the heel strap made the shoe ease of opening. The Federal Circuit combination yields more than more comfortable for the wearer than noted that the segmentation aspect of predictable results. prior art shoes in which the heel strap the first reference and the The case of Crocs, Inc. v. U.S. was constantly in contact with the mechanization function of the second International Trade Commission is a wearer’s foot. In the claimed footwear, perform in the same way after decision in which the claimed foam the foam heel strap contacted the combination as they had before. The footwear was held by the Federal Circuit wearer’s foot only when needed to help Federal Circuit further observed that a to be nonobvious over a combination of reposition the foot properly in the shoe, person of ordinary skill in the art would prior art references. thus reducing wearer discomfort that have expected that adding replaceable The claims involved in the could arise from constant contact. This segments as taught by the first reference obviousness issue were from Crocs’ U.S. desirable feature was a result of the to the mechanized cover of the other Patent No. 6,993,858, and were drawn to friction between the base section and would result in a cover that maintained footwear in which a one-piece molded the strap that kept the strap in place the advantageous properties of both of foam base section formed the top of the behind the Achilles portion of the the prior art covers. shoe (the upper) and the sole. A strap wearer’s foot. The Federal Circuit Thus, the Sundance case points out also made of foam was attached to the pointed out that this combination that a hallmark of a proper obviousness foot opening of the upper, such that the ‘‘yielded more than predictable results.’’ rejection based on combining known strap could provide support to the Id. at 1310. Aguerre had taught that prior art elements is that one of ordinary Achilles portion of the wearer’s foot. friction between the base section and skill in the art would reasonably have The strap was attached via connectors the strap was a problem rather than an expected the elements to maintain their that allowed it to be in contact with the advantage, and had suggested the use of respective properties or functions after base section, and to pivot relative to the nylon washers to reduce friction. Thus they have been combined.

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Example 4.4. Ecolab, Inc. v. FMC parameter disclosed in the Bender patent for tow hitches. The court explained Corp., 569 F.3d 1335 (Fed Cir. 2009). with the PAA methods disclosed in FMC’s that the Supreme Court’s decision in Teaching point: A combination of ‘676 patent. The answer is yes. KSR ‘‘directs [it] to construe the scope of known elements would have been Id. If optimization of the application analogous art broadly.’’ Wyers, slip. op. prima facie obvious if an ordinarily parameters had not been within the at 12. For these reasons, the court found skilled artisan would have recognized level of ordinary skill in the art, the that Master Lock’s asserted references an apparent reason to combine those outcome of the Ecolab case may well were analogous prior art, and therefore elements and would have known how to have been different. relevant to the obviousness inquiry. do so. Example 4.5. Wyers v. Master Lock The court then turned to the question In the case of Ecolab, Inc. v. FMC Co., No. 2009–1412, —F.3d—, 2010 WL of whether there would have been Corp., an ‘‘apparent reason to combine’’ 2901839 (Fed. Cir. July 22, 2010). adequate motivation to combine the in conjunction with the technical ability Teaching point: The scope of analogous prior art elements as had been urged by to optimize led to the conclusion that art is to be construed broadly and Master Lock. The court recalled the the claimed invention would have been includes references that are reasonably Graham inquiries, and also emphasized obvious. pertinent to the problem that the the ‘‘expansive and flexible’’ post-KSR The invention in question was a inventor was trying to solve. Common approach to obviousness that must not method of treating meat to reduce the sense may be used to support a legal ‘‘deny factfinders recourse to common incidence of pathogens, by spraying the conclusion of obviousness so long as it sense.’’ Wyers, slip op. at 13 (quoting meat with an antibacterial solution is explained with sufficient reasoning. KSR, 550 U.S. at 415 and 421). The under specified conditions. The parties In the case of Wyers v. Master Lock court stated: Co., the Federal Circuit held that the did not dispute that a single prior art KSR and our later cases establish that the reference had taught all of the elements claimed barbell-shaped hitch pin locks legal determination of obviousness may of the claimed invention, except for the used to secure trailers to vehicles were include recourse to logic, judgment, and pressure limitation of ‘‘at least 50 psi.’’ obvious. common sense, in lieu of expert testimony FMC had argued at the district court The court discussed two different sets * * *. that the claimed invention would have of claims in Wyers, both drawn to Thus, in appropriate cases, the ultimate been obvious in view of the first prior improvements over the prior art hitch inference as to the existence of a motivation art reference mentioned above in view pin locks. The first improvement was a to combine references may boil down to a removable sleeve that could be placed question of ‘‘common sense,’’ appropriate for of a second reference that had taught the resolution on summary judgment or JMOL. advantages of spray-treating at pressures over the shank of the hitch pin lock so of 20 to 150 psi when treating meat with that the same lock could be used with Id. at 15 (citing Perfect Web Techs., Inc. a different antibacterial agent. The towing apertures of varying sizes. The v. InfoUSA, Inc., 587 F.3d 1324, 1329 district court did not find FMC’s second improvement was an external (Fed. Cir. 2009); Ball Aerosol, 555 F.3d argument to be convincing, and denied flat flange seal adapted to protect the at 993). the motion for judgment as a matter of internal lock mechanism from After reviewing these principles, the law that the claim was obvious. contaminants. Wyers had admitted that court proceeded to explain why Disagreeing with the district court, the each of several prior art references adequate motivation to combine had Federal Circuit stated that ‘‘there was an taught every element of the claimed been established in this case. With apparent reason to combine these inventions except for the removable regard to the sleeve improvement, it known elements—namely to increase sleeve and the external covering. Master pointed out that the need for different contact between the [antibacterial Lock had argued that these references, sizes of hitch pins was well known in solution] and the bacteria on the meat in combination with additional the art, and that this was a known surface and to use the pressure to wash references teaching the missing source of inconvenience and expense additional bacteria off the meat surface.’’ elements, would have rendered the for users. The court also mentioned the Id. at 1350. The Federal Circuit claims obvious. marketplace aspect of the issue, noting explained that because the second The court first addressed the question that space on store shelves was at a reference had taught ‘‘using high of whether the additional references premium, and that removable sleeves pressure to improve the effectiveness of relied on by Master Lock were addressed this economic concern. As to an antimicrobial solution when sprayed analogous prior art. As to the reference the sealing improvement, the court onto meat, and because an ordinarily teaching the sleeve improvement, the pointed out that both internal and skilled artisan would have recognized court concluded that it dealt specifically external seals were well-known means the reasons for applying [the claimed with using a vehicle to tow a trailer, and to protect locks from contaminants. The antibacterial solution] using high was therefore in the same field of court concluded that the constituent pressure and would have known how to endeavor as Wyers’ sleeve elements were being employed in do so, Ecolab’s claims combining high improvement. The reference teaching accordance with their recognized pressure with other limitations the sealing improvement dealt with a functions, and would have predictably disclosed in FMC’s patent are invalid as padlock rather than a lock for a tow retained their respective functions when obvious.’’ Id. hitch. The court noted that Wyers’ combined as suggested by Master Lock. When considering the question of specification had characterized the The court cited In re O’Farrell, 853 F.2d obviousness, Office personnel should claimed invention as being in the field 894, 904 (Fed. Cir. 1988) for the keep in mind the capabilities of a of locking devices, thus at least proposition that a reasonable person of ordinary skill. In Ecolab, the suggesting that the sealed padlock expectation of success is a requirement Federal Circuit stated: reference was in the same field of for a proper determination of endeavor. However, the court also obviousness. Ecolab’s expert admitted that one skilled in observed that even if sealed padlocks Office personnel should note that the art would know how to adjust application parameters to determine the optimum were not in the same field of endeavor, although the Federal Circuit invoked the parameters for a particular solution. The they were nevertheless reasonably idea of common sense in support of a question then is whether it would have been pertinent to the problem of avoiding conclusion of obviousness, it did not obvious to combine the high pressure contamination of a locking mechanism end its explanation there. Rather, the

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court explained why a person of result’’ discussed in KSR refers not only examiner rejected the claims as obvious ordinary skill in the art at the time of to the expectation that prior art based on a combination of references the invention, in view of the facts elements are capable of being physically including an advertisement (Damark) for relevant to the case, would have found combined, but also that the combination a folding treadmill demonstrating all of the claimed inventions to have been would have worked for its intended the claim elements other than the gas obvious. As stated in the MPEP: purpose. In this case, it was successfully spring, and a patent (Teague) with a gas The key to supporting any rejection under argued that Puno ‘‘teaches away’’ from a spring. Teague was directed to a bed 35 U.S.C. 103 is the clear articulation of the rigid screw because Puno warned that that folds into a cabinet using a novel reason(s) why the claimed invention would rigidity increases the likelihood that the dual-action spring that reverses force as have been obvious. The Supreme Court in screw will fail within the human body, the mechanism passes a neutral KSR noted that the analysis supporting a rendering the device inoperative for its position, rather than a single-action rejection under 35 U.S.C. 103 should be intended purpose. In fact, the reference spring that would provide a force made explicit. The Court quoting In re Kahn, did not merely express a general pushing the bed closed at all times. The 441 F.3d 977, 988, 78 USPQ2d 1329, 1336 preference for pedicle screws having a dual-action spring reduced the force (Fed. Cir. 2006), stated that ‘‘[R]ejections on ‘‘shock absorber’’ effect, but rather required to open the bed from the closed obviousness cannot be sustained by mere expressed concern for failure and stated position, while reducing the force conclusory statements; instead, there must be some articulated reasoning with some that the shock absorber feature required to lift the bed from the open rational underpinning to support the legal ‘‘decrease[s] the chance of failure of the position. conclusion of obviousness.’’ screw of the bone-screw interface’’ The Federal Circuit addressed the because ‘‘it prevent[s] direct transfer of propriety of making the combination MPEP § 2141 III. Office personnel load from the rod to the bone-screw since Teague comes from a different should continue to provide a reasoned interface.’’ Thus, the alleged reason to field than the application. Teague was explanation for every obviousness combine the prior art elements of Puno found to be reasonably pertinent to the rejection. and Anderson—increasing the rigidity problem addressed in the application Example 4.6. DePuy Spine, Inc. v. of the screw—ran contrary to the prior because the folding mechanism did not Medtronic Sofamor Danek, Inc., 567 art that taught that increasing rigidity require any particular focus on F.3d 1314 (Fed. Cir. 2009). Teaching would result in a greater likelihood of treadmills, but rather generally point: Predictability as discussed in KSR failure. In view of this teaching and the addressed problems of supporting the encompasses the expectation that prior backdrop of collective teachings of the weight of such a mechanism and art elements are capable of being prior art, the Federal Circuit determined providing a stable resting position. combined, as well as the expectation that Puno teaches away from the Other evidence was considered that the combination would have proposed combination such that a concerning whether one skilled in the worked for its intended purpose. An person of ordinary skill would have art would have been led to combine the inference that a claimed combination been deterred from combining the teachings of Damark and Teague. would not have been obvious is references as proposed. Secondary Appellant argued that Teague teaches especially strong where the prior art’s considerations evaluated by the Federal away from the invention because it teachings undermine the very reason Circuit relating to failure by others and directs one skilled in the art not to use being proffered as to why a person of copying also supported the view that single-action springs and does not ordinary skill would have combined the the combination would not have been satisfy the claim limitations as the dual- known elements. obvious at the time of the invention. action springs would render the The claim in DePuy Spine was B. Substituting One Known Element invention inoperable. The Federal directed to a polyaxial pedicle screw for Another. As explained in the 2007 Circuit considered the arguments and used in spinal surgeries that included a KSR Guidelines, the substitution found that while Teague at most teaches compression member for pressing a rationale applies when the claimed away from using single-action springs to screw head against a receiver member. invention can be viewed as resulting decrease the opening force, it actually A prior art reference (Puno) disclosed from substituting a known element for instructed that single-action springs all of the elements of the claim except an element of a prior art invention. The provide the result desired by the for the compression member. Instead, rationale applies when one of ordinary inventors, which was to increase the the screw head in Puno was separated skill in the art would have been opening force provided by gravity. As to from the receiver member to achieve a technologically capable of making the inoperability, the claims were not shock absorber effect, allowing some substitution, and the result obtained limited to single-action springs and motion between receiver member and would have been predictable. See MPEP were so broad as to encompass anything the vertebrae. The missing compression § 2143(B). that assists in stably retaining the tread member was readily found in another Example 4.7. In re ICON Health & base, which is the function that Teague prior art reference (Anderson), which Fitness, Inc., 496 F.3d 1374 (Fed. Cir. accomplished. Additionally, the fact disclosed an external fracture 2007). Teaching point: When that the counterweight mechanism from immobilization splint for immobilizing determining whether a reference in a Teague used a large spring, which long bones with a swivel clamp capable different field of endeavor may be used appellant argued would overpower the of polyaxial movement until rigidly to support a case of obviousness (i.e., is treadmill mechanism, ignores the secured by a compression member. It analogous), it is necessary to consider modifications that one skilled in the art was asserted during trial that a person the problem to be solved. would make to a device borrowed from of ordinary skill would have recognized The claimed invention in ICON was the prior art. One skilled in the art that the addition of Anderson’s directed to a treadmill with a folding would size the components from Teague compression member to Puno’s device tread base that swivels into an upright appropriately for the application. would have achieved a rigidly locked storage position, including a gas spring ICON is another useful example for polyaxial pedicle screw covered by the connected between the tread base and understanding the scope of analogous claim. the upright structure to assist in stably art. The art applied concerned retaining In conducting its analysis, the Federal retaining the tread base in the storage mechanisms for folding beds, not Circuit noted that the ‘‘predictable position. On reexamination, the treadmills. When determining whether a

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reference may properly be applied to an In determining that the claimed The only difference between the prior invention in a different field of invention was obvious, the Federal art bidding system and the claimed endeavor, it is necessary to consider the Circuit noted that ‘‘[t]he asserted claims invention was the use of a conventional problem to be solved. It is certainly simply substitute a resistive electrical Web browser. At trial, the district court possible that a reference may be drawn switch for the mechanical pressure had determined that Muniauction’s in such a way that its usefulness as a switch’’ employed in the prior art claims were not obvious. Thomson teaching is narrowly restricted. device. Id. at 1344. In this case, the prior argued that the claimed invention However, in ICON, the ‘‘treadmill’’ art concerning the hand-held devices amounted to incorporating a Web concept was too narrow a lens through revealed that the function of the browser into a prior art auction system, which to view the art in light of the substituted resistive electrical switch and was therefore obvious in light of prior art teachings concerning the was well known and predictable, and KSR. Muniauction rebutted the problem to be solved. The Teague that it could be used in a pest control argument by offering evidence of reference was analogous art because device. According to the Federal Circuit, skepticism by experts, copying, praise, ‘‘Teague and the current application the references that taught the hand-held and commercial success. Although the both address the need to stably retain a devices showed that ‘‘the use of an district court found the evidence to be folding mechanism,’’ id. at 1378, and animal body as a resistive switch to persuasive of nonobviousness, the because ‘‘nothing about ICON’s folding complete a circuit for the generation of Federal Circuit disagreed. It noted that mechanism requires any particular an electric charge was already well a nexus between the claimed invention focus on treadmills,’’ id. at 1380. known in the prior art.’’ Id. Finally, the and the proffered evidence was lacking ICON is also informative as to the Federal Circuit noted that the problem because the evidence was not relationship between the problem to be solved by using the resistive electrical coextensive with the claims at issue. For solved and existence of a reason to switch in the prior art hand-held this reason, the Federal Circuit combine. ‘‘Indeed, while perhaps not devices—malfunction of mechanical determined that Muniauction’s evidence dispositive of the issue, the finding that switches due to dirt and dampness— of secondary considerations was not Teague, by addressing a similar also pertained to the prior art stationary entitled to substantial weight. problem, provides analogous art to pest control device. The Federal Circuit analogized this ICON’s application goes a long way The Federal Circuit recognized case to Leapfrog Enterprises, Inc. v. towards demonstrating a reason to Agrizap as ‘‘a textbook case of when the Fisher-Price, Inc., 485 F.3d 1157 (Fed. combine the two references. Because asserted claims involve a combination Cir. 2007), cited in the 2007 KSR ICON’s broad claims read on of familiar elements according to known Guidelines. The Leapfrog case involved embodiments addressing that problem methods that does no more than yield a determination of obviousness based on as described by Teague, the prior art predictable results.’’ Id. Agrizap application of modern electronics to a here indicates a reason to incorporate its exemplifies a strong case of obviousness prior art mechanical children’s learning teachings.’’ Id. at 1380–81. based on simple substitution that was device. In Leapfrog, the court had noted The Federal Circuit’s discussion in that market pressures would have ICON also makes clear that if the not overcome by the objective evidence reference does not teach that a of nonobviousness offered. It also prompted a person of ordinary skill to combination is undesirable, then it demonstrates that analogous art is not use modern electronics in the prior art cannot be said to teach away. An limited to the field of applicant’s device. Similarly in Muniauction, assessment of whether a combination endeavor, in that one of the references market pressures would have prompted would render the device inoperable that used an animal body as a resistive a person of ordinary skill to use a must not ‘‘ignore the modifications that switch to complete a circuit for the conventional Web browser in a method one skilled in the art would make to a generation of an electric charge was not of auctioning municipal bonds. device borrowed from the prior art.’’ Id. in the field of pest control. Example 4.10. Aventis Pharma at 1382. Example 4.9. Muniauction, Inc. v. Deutschland v. Lupin Ltd., 499 F.3d Example 4.8. Agrizap, Inc. v. Thomson Corp., 532 F.3d 1318 (Fed. 1293 (Fed. Cir. 2007). Teaching point: A Woodstream Corp., 520 F.3d 1337 (Fed. Cir. 2008). Teaching point: Because chemical compound would have been Cir. 2008). Teaching point: Analogous Internet and Web browser technologies obvious over a mixture containing that art is not limited to references in the had become commonplace for compound as well as other compounds field of endeavor of the invention, but communicating and displaying where it was known or the skilled also includes references that would information, it would have been obvious artisan had reason to believe that some have been recognized by those of to adapt existing processes to desirable property of the mixture was ordinary skill in the art as useful for incorporate them for those functions. derived in whole or in part from the applicant’s purpose. The invention at issue in Muniauction claimed compound, and separating the Agrizap involved a stationary pest was a method for auctioning municipal claimed compound from the mixture control device for electrocution of pests bonds over the Internet. A municipality was routine in the art. such as rats and gophers, in which the could offer a package of bond In Aventis, the claims were drawn to device is set in an area where the pest instruments of varying principal the 5(S) stereoisomer of the blood is likely to encounter it. The only amounts and maturity dates, and an pressure drug ramipril in difference between the claimed device interested buyer would then submit a stereochemically pure form, and to and the prior art stationary pest control bid comprising a price and interest rate compositions and methods requiring device was that the claimed device for each maturity date. It was also 5(S) ramipril. The 5(S) stereoisomer is employed a resistive electrical switch, possible for the interested buyer to bid one in which all five stereocenters in while the prior art device used a on a portion of the offering. The claimed the ramipril molecule are in the S rather mechanical pressure switch. A resistive invention considered all of the noted than the R configuration. A mixture of electrical switch was taught in two prior parameters to determine the best bid. It various stereoisomers including 5(S) art patents, in the contexts of a hand- operated on conventional Web browsers ramipril had been taught by the prior held pest control device and a cattle and allowed participants to monitor the art. The question before the court was prod. course of the auction. whether the purified single stereoisomer

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would have been obvious over the compound and the prior art taught that substituent was known to increase known mixture of stereoisomers. modifying the lead compound would lipophilicity, so a skilled artisan would The record showed that the presence destroy its advantageous property. Any have expected that replacing the of multiple S stereocenters in drugs known compound may serve as a lead trifluoroethoxy substituent with a similar to ramipril was known to be compound when there is some reason methoxypropoxy substituent would associated with enhanced therapeutic for starting with that lead compound have reduced the lipophilicity of the efficacy. For example, when all of the and modifying it to obtain the claimed compound. Thus, the prior art created stereocenters were in the S form in the compound. the expectation that rabeprazole would related drug enalapril (SSS enalapril) as Eisai concerns the pharmaceutical be less useful than lansoprazole as a compared with only two stereocenters compound rabeprazole. Rabeprazole is a drug for treating stomach ulcers and in the S form (SSR enalapril), the proton pump inhibitor for treating related disorders because the proposed therapeutic potency was 700 times as stomach ulcers and related disorders. modification would have destroyed an great. There was also evidence to The Federal Circuit affirmed the district advantageous property of the prior art indicate that conventional methods court’s summary judgment of compound. The compound was not could be used to separate the various nonobviousness, stating that no reason obvious as argued by Teva because, stereoisomers of ramipril. had been advanced to modify the prior upon consideration of all of the facts of The district court saw the issue as a art compound in a way that would the case, a person of ordinary skill in close case, because, in its view, there destroy an advantageous property. the art at the time of the invention was no clear motivation in the prior art Co-defendant Teva based its would not have had a reason to modify to isolate 5(S) ramipril. However, the obviousness argument on the structural lansoprazole so as to form rabeprazole. Federal Circuit disagreed, and found similarity between rabeprazole and Office personnel are cautioned that that the claims would have been lansoprazole. The compounds were the term ‘‘lead compound’’ in a obvious. The Federal Circuit cautioned recognized as sharing a common core, particular opinion can have a contextual that requiring such a clearly stated and the Federal Circuit characterized meaning that may vary from the way a motivation in the prior art to isolate 5(S) lansoprazole as a ‘‘lead compound.’’ The pharmaceutical chemist might use the ramipril ran counter to the Supreme prior art compound lansoprazole was term. In the field of pharmaceutical Court’s decision in KSR. The court useful for the same indications as chemistry, the term ‘‘lead compound’’ stated: rabeprazole, and differed from has been defined variously as ‘‘a rabeprazole only in that lansoprazole chemical compound that has Requiring an explicit teaching to purify the has a trifluoroethoxy substituent at the pharmacological or biological activity 5(S) stereoisomer from a mixture in which it and whose chemical structure is used as is the active ingredient is precisely the sort 4-position of the pyridine ring, while of rigid application of the TSM test that was rabeprazole has a methoxypropoxy a starting point for chemical criticized in KSR. substituent. The trifluoro substituent of modifications in order to improve potency, selectivity, or pharmacokinetic Id. at 1301. The Aventis court also lansoprazole was known to be a beneficial feature because it conferred parameters;’’ ‘‘[a] compound that relied on the settled principle that in exhibits pharmacological properties chemical cases, structural similarity can lipophilicity to the compound. The ability of a person of ordinary skill to which suggest its development;’’ and ‘‘a provide the necessary reason to modify potential drug being tested for safety prior art teachings. The Federal Circuit carry out the modification to introduce the methoxypropoxy substituent, and and efficacy.’’ See, e.g.,http:// also addressed the kind of teaching that _ the predictability of the result were not en.wikipedia.org/wiki/Lead compound, would be sufficient in the absence of an accessed January 13, 2010; http:// explicitly stated prior art-based addressed. Despite the significant similarity www.combichemistry.com/ motivation, explaining that an _ between the structures, the Federal glossary k.html, accessed January 13, expectation of similar properties in light Circuit did not find any sufficient 2010; and http://www.building of the prior art can be sufficient, even reason to modify the lead compound. biotechnology.com/glossary4.php, without an explicit teaching that the According to the Federal Circuit: accessed January 13, 2010. compound will have a particular utility. The Federal Circuit in Eisai makes it In the chemical arts, the cases Obviousness based on structural similarity clear that from the perspective of the involving so-called ‘‘lead compounds’’ thus can be proved by identification of some law of obviousness, any known form an important subgroup of the motivation that would have led one of ordinary skill in the art to select and then compound might possibly serve as a obviousness cases that are based on modify a known compound (i.e. a lead lead compound: ‘‘Obviousness based on substitution. The Federal Circuit has compound) in a particular way to achieve the structural similarity thus can be proved had a number of opportunities since the claimed compound. * * * In keeping with by identification of some motivation KSR decision to discuss the the flexible nature of the obviousness that would have led one of ordinary circumstances under which it would inquiry, KSR Int’l Co. v. Teleflex Inc., 550 skill in the art to select and then modify have been obvious to modify a known U.S. 398, 127 S.Ct. 1727, 1739, 167 L.Ed.2d a known compound (i.e. a lead compound to arrive at a claimed 705 (2007), the requisite motivation can come compound) in a particular way to compound. The following cases explore from any number of sources and need not achieve the claimed compound.’’ Eisai, the selection of a lead compound, the necessarily be explicit in the art. See Aventis Pharma Deutschland GmbH v. Lupin, Ltd., 533 F.3d at 1357. Thus, Office personnel need to provide a reason for any 499 F.3d 1293, 1301 (Fed. Cir. 2007). Rather should recognize that a proper proposed modification, and the ‘‘it is sufficient to show that the claimed and obviousness rejection of a claimed predictability of the result. prior art compounds possess a ‘sufficiently compound that is useful as a drug might Example 4.11. Eisai Co. Ltd. v. Dr. close relationship * * * to create an be made beginning with an inactive Reddy’s Labs., Ltd., 533 F.3d 1353 (Fed. expectation,’ in light of the totality of the compound, if, for example, the reasons Cir. 2008). Teaching point: A claimed prior art, that the new compound will have for modifying a prior art compound to compound would not have been ‘similar properties’ to the old.’’ Id. (quoting arrive at the claimed compound have obvious where there was no reason to Dillon, 919 F.2d at 692). nothing to do with pharmaceutical modify the closest prior art lead Eisai, 533 F.3d at 1357. The prior art activity. The inactive compound would compound to obtain the claimed taught that introducing a fluorinated not be considered to be a lead

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compound by pharmaceutical chemists, case to consider the question of whether emphasized that whether there was a but could potentially be used as such 2-pyr EHDP had been appropriately long-felt unsatisfied need is to be when considering obviousness. Office selected as a lead compound. Rather, evaluated based on the circumstances as personnel might also base an the Federal Circuit stated that if 2-pyr of the filing date of the challenged obviousness rejection on a known EHDP is presumed to be an appropriate invention—not as of the date that the compound that pharmaceutical lead compound, there must be both a invention is brought to market. chemists would not select as a lead reason to modify it so as to make It should be noted that the lead compound due to expense, handling risedronate, and a reasonable compound cases do not stand for the issues, or other business considerations. expectation of success. Here there was proposition that identification of a However, there must be some reason for no evidence that the necessary single lead compound is necessary in starting with that lead compound other modifications would have been routine, every obviousness rejection of a than the mere fact that the ‘‘lead so there would have been no reasonable chemical compound. For example, one compound’’ merely exists. See Altana expectation of success. might envision a suggestion in the prior Pharma AG v. Teva Pharmaceuticals Procter & Gamble is also informative art to formulate a compound having USA, Inc., 566 F.3d 999, 1007 (Fed. Cir. in its discussion of the treatment of certain structurally defined moieties, or 2009) (holding that there must be some secondary considerations of non- moieties with certain properties. If a reason ‘‘to select and modify a known obviousness. Although the court found person of ordinary skill would have compound’’); Ortho-McNeil that no prima facie case of obviousness known how to synthesize such a Pharmaceutical, Inc. v. Mylan Labs, had been presented, it proceeded to compound, and the structural and/or Inc., 520 F.3d 1358, 1364 (Fed. Cir. analyze Procter & Gamble’s proffered functional result could reasonably have 2008). evidence countering the alleged prima been predicted, then a prima facie case Example 4.12. Procter & Gamble Co. facie case in some detail, thus shedding of obviousness of the claimed chemical v. Teva Pharmaceuticals USA, Inc., 566 light on the proper treatment of such compound might exist even without F.3d 989 (Fed. Cir. 2009). Teaching evidence. identification of a particular lead point: It is not necessary to select a The Federal Circuit noted in dicta that compound. As a second example, it single compound as a ‘‘lead compound’’ even if a prima facie case of obviousness could be possible to view a claimed in order to support an obviousness had been established, sufficient compound as consisting of two known rejection. However, where there was evidence of unexpected results was compounds attached via a chemical reason to select and modify the lead introduced to rebut such a showing. At linker. The claimed compound might compound to obtain the claimed trial, the witnesses consistently testified properly be found to have been obvious compound, but no reasonable that the properties of risedronate were if there would have been a reason to expectation of success, the claimed not expected, offering evidence that link the two, if one of ordinary skill compound would not have been researchers did not predict either the would have known how to do so, and obvious. potency or the low dose at which the if the resulting compound would have A chemical compound was also found compound was effective, and that the been the predictable result of the to be nonobvious in Procter & Gamble. superior properties were unexpected linkage procedure. Thus, Office The compound at issue was and could not be predicted. Tests personnel should recognize that in risedronate—the active ingredient of comparing risedronate to a compound certain situations, it may be proper to Procter & Gamble’s osteoporosis drug in the prior art reference showed that reject a claimed chemical compound as Actonel®. Risedronate is an example of risedronate outperformed the other obvious even without identifying a a bisphosphonate, which is a class of compound by a substantial margin, single lead compound. compounds known to inhibit bone could be administered in a greater Example 4.13. Altana Pharma AG v. resorption. amount without an observable toxic Teva Pharmaceuticals USA, Inc., 566 When Procter & Gamble sued Teva for effect, and was not lethal at the same F.3d 999 (Fed. Cir. 2009). Teaching infringement, Teva defended by arguing levels as the other compound. The point: Obviousness of a chemical invalidity for obviousness over one of weight of the evidence and the compound in view of its structural Procter & Gamble’s earlier patents. The credibility of the witnesses were similarity to a prior art compound may prior art patent did not teach sufficient to show unexpected results be shown by identifying some line of risedronate, but instead taught thirty-six that would have rebutted an reasoning that would have led one of other similar compounds including 2- obviousness determination. Thus, ordinary skill in the art to select and pyr EHDP that were potentially useful nonobviousness can be shown when a modify a prior art lead compound in a with regard to osteoporosis. Teva argued claimed invention is shown to have particular way to produce the claimed obviousness on the basis of structural unexpectedly superior properties when compound. It is not necessary for the similarity to 2-pyr EHDP, which is a compared to the prior art. reasoning to be explicitly found in the positional isomer of risedronate. The court then addressed the prior art of record, nor is it necessary for The district court found no reason to evidence of commercial success of the prior art to point to only a single select 2-pyr EHDP as a lead compound risedronate and the evidence that lead compound. in light of the unpredictable nature of risedronate met a long-felt need. The Although the decision reached by the the art, and no reason to modify it so as court pointed out that little weight was Federal Circuit in Altana involved a to obtain risedronate. In addition, there to be afforded to the commercial success motion for preliminary injunction and were unexpected results as to potency because the competing product was also did not include a final determination of and toxicity. Therefore the district court assigned to Procter & Gamble. However, obviousness, the case is nevertheless found that Teva had not made a prima the Federal Circuit affirmed the district instructive as to the issue of selecting a facie case, and even if it had, it was court’s conclusion that risedronate met lead compound. rebutted by evidence of unexpected a long-felt, unsatisfied need. The court The technology involved in Altana results. rejected Teva’s contention that because was the compound pantoprazole, which The Federal Circuit affirmed the the competing drug was available before is the active ingredient in Altana’s district court’s decision. The Federal Actonel®, there was no unmet need that antiulcer drug Protonix®. Pantoprazole Circuit did not deem it necessary in this the invention satisfied. The court belongs to a class of compounds known

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as proton pump inhibitors that are used starting point from which to pursue that it encodes where the skilled artisan to treat gastric acid disorders in the further development efforts. That would have had a reasonable stomach. finding was not clearly erroneous.’’ Id. at expectation of success in deriving the Altana accused Teva of infringement. 1008. claimed polynucleotide using standard The district court denied Altana’s C. The ‘‘Obvious to Try’’ Rationale. biochemical techniques, and the skilled motion for preliminary injunction for The question of whether a claimed artisan would have had a reason to try failure to establish a likelihood of invention can be shown to be obvious to isolate the claimed polynucleotide. success on the merits, determining that based on an ‘‘obvious to try’’ line of KSR applies to all technologies, rather Teva had demonstrated a substantial reasoning has been explored extensively than just the ‘‘predictable’’ arts. question of invalidity for obviousness in by the Federal Circuit in several cases The Federal Circuit’s decision in In re light of one of Altana’s prior patents. since the KSR decision. The 2007 KSR Kubin was an affirmance of the Board’s Altana’s patent discussed a compound Guidelines explain, in view of the decision in Ex parte Kubin, 83 USPQ2d referred to as compound 12, which was Supreme Court’s instruction, that this 1410 (Bd. Pat. App. & Interf. 2007), and one of eighteen compounds disclosed. rationale is only appropriate when there the Board in turn had affirmed the The claimed compound pantoprazole is a recognized problem or need in the examiner’s determination that the was structurally similar to compound art; there are a finite number of claims in question would have been 12. The district court found that one of identified, predictable solutions to the obvious over the prior art applied. A ordinary skill in the art would have recognized need or problem; and one of discussion of Ex parte Kubin was selected compound 12 as a lead ordinary skill in the art could have included in the 2007 KSR Guidelines. compound for modification, and the pursued these known potential See 2007 KSR Guidelines, 72 FR at Federal Circuit affirmed. solutions with a reasonable expectation 57532. The claimed invention in Kubin Obviousness of a chemical compound of success. The case law in this area is was an isolated nucleic acid molecule. in view of its structural similarity to a developing quickly in the chemical arts, The claim stated that the nucleic acid prior art compound may be shown by although the rationale has been applied encoded a particular polypeptide. The identifying some line of reasoning that in other art areas as well. encoded polypeptide was identified in would have led one of ordinary skill in Some commentators on the KSR the claim by its partially specified the art to select and modify the prior art decision have expressed a concern that sequence, and by its ability to bind to compound in a particular way to because inventive activities are always a specified protein. A prior art patent to produce the claimed compound. The carried out in the context of what has Valiante taught the polypeptide necessary line of reasoning can be come before and not in a vacuum, few encoded by the claimed nucleic acid, drawn from any number of sources and inventions will survive scrutiny under but did not disclose either the sequence need not necessarily be explicitly found an obvious to try standard. The cases of the polypeptide, or the claimed in the prior art of record. The Federal decided since KSR have proved this fear isolated nucleic acid molecule. Circuit determined that ample evidence to have been unfounded. Courts appear However, Valiante did disclose that by supported the district court’s finding to be applying the KSR requirement for employing conventional methods, such that compound 12 was a natural choice ‘‘a finite number of identified as those disclosed by a prior art for further development. For example, predictable solutions’’ in a manner that laboratory manual by Sambrook, the Altana’s prior art patent claimed that its places particular emphasis on sequence of the polypeptide could be compounds, including compound 12, predictability and the reasonable determined, and the nucleic acid were improvements over the prior art; expectations of those of ordinary skill in molecule could be isolated. In view of compound 12 was disclosed as one of the art. Valiante’s disclosure of the polypeptide, the more potent of the eighteen In a recent Federal Circuit decision, and of routine prior art methods for compounds disclosed; the patent the court pointed out the challenging sequencing the polypeptide and examiner had considered the nature of the task faced by the courts— isolating the nucleic acid molecule, the compounds of Altana’s prior art patent and likewise by Office personnel—when Board found that a person of ordinary to be relevant during the prosecution of considering the viability of an obvious skill in the art would have had a the patent in suit; and experts had to try argument: ‘‘The evaluation of the reasonable expectation that a nucleic opined that one of ordinary skill in the choices made by a skilled scientist, acid molecule within the claimed scope art would have selected the eighteen when such choices lead to the desired could have been successfully obtained. compounds to pursue further result, is a challenge to judicial Relying on In re Deuel, 51 F.3d 1552 investigation into their potential as understanding of how technical advance (Fed. Cir. 1995), Appellant argued that proton pump inhibitors. is achieved in the particular field of it was improper for the Office to use the In response to Altana’s argument that science or technology.’’ Abbott Labs. v. polypeptide of the Valiante patent the prior art must point to only a single Sandoz, Inc., 544 F.3d 1341, 1352 (Fed. together with the methods described in lead compound for further Cir. 2008). The Federal Circuit Sambrook to reject a claim drawn to a development, the Federal Circuit stated cautioned that an obviousness inquiry specific nucleic acid molecule without that a ‘‘restrictive view of the lead based on an obvious to try rationale providing a reference showing or compound test would present a rigid must always be undertaken in the suggesting a structurally similar nucleic test similar to the teaching-suggestion- context of the subject matter in acid molecule. Citing KSR, the Board motivation test that the Supreme Court question, ‘‘including the characteristics stated that ‘‘when there is motivation to explicitly rejected in KSR * * *. The of the science or technology, its state of solve a problem and there are a finite district court in this case employed a advance, the nature of the known number of identified, predictable flexible approach—one that was choices, the specificity or generality of solutions, a person of ordinary skill has admittedly preliminary—and found that the prior art, and the predictability of good reason to pursue the known the defendants had raised a substantial results in the area of interest.’’ Id. options within his or her technical question that one of skill in the art Example 4.14. In re Kubin, 561 F.3d grasp. If this leads to anticipated would have used the more potent 1351 (Fed. Cir. 2009). Teaching point: A success, it is likely the product not of compounds of [Altana’s prior art] claimed polynucleotide would have innovation but of ordinary skill and patent, including compound 12, as a been obvious over the known protein common sense.’’ The Board noted that

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the problem facing those in the art was claimed compound was pioglitazone, a case fails to present the type of situation to isolate a specific nucleic acid, and member of a class of drugs known as contemplated by the Court when it stated there were a limited number of methods thiazolidinediones (TZDs) marketed by that an invention may be deemed obvious if available to do so. The Board concluded it was ‘‘obvious to try.’’ The evidence showed Takeda as a treatment for Type 2 that it was not obvious to try. that the skilled artisan would have had diabetes. The Takeda case brings reason to try these methods with the together the concept of a ‘‘lead Takeda, 492 F.3d at 1359. reasonable expectation that at least one compound’’ and the obvious-to-try Accordingly, Office personnel should would be successful. Thus, isolating the argument. recognize that the obvious to try specific nucleic acid molecule claimed Alphapharm had filed an Abbreviated rationale does not apply when the was ‘‘the product not of innovation but New Drug Application with the Food appropriate factual findings cannot be of ordinary skill and common sense.’’ and Drug Administration, which was a made. In Takeda, there was a The Board’s reasoning was substantially technical act of infringement of recognized need for treatment of adopted by the Federal Circuit. Takeda’s patent. When Takeda brought diabetes. However, there was no finite However, it is important to note that in suit, Alphapharm’s defense was that number of identified, predictable the Kubin decision, the Federal Circuit Takeda’s patent was invalid due to solutions to the recognized need, and no held that ‘‘the Supreme Court in KSR obviousness. Alphapharm argued that a reasonable expectation of success. There unambiguously discredited’’ the Federal two-step modification—involving were numerous known TZD Circuit’s decision in Deuel, insofar as it homologation and ring-walking—of a compounds, and although one clearly ‘‘implies the obviousness inquiry cannot known compound identified as represented the closest prior art, its consider that the combination of the ‘‘compound b’’ would have produced known disadvantages rendered it claim’s constituent elements was pioglitazone, and that it was therefore unsuitable as a starting point for further ‘obvious to try.’ ’’ Kubin, 561 F.3d at obvious. research, and taught the skilled artisan 1358. Instead, Kubin stated that KSR The district court found that there away from its use. Furthermore, even if ‘‘resurrects’’ the Federal Circuit’s own would have been no reason to select there had been reason to select wisdom in O’Farrell, in which ‘‘to compound b as a lead compound. There compound b, there had been no differentiate between proper and were a large number of similar prior art predictability or reasonable expectation improper applications of ‘obvious to TZD compounds; fifty-four were of success associated with the particular try,’ ’’ the Federal Circuit ‘‘outlined two specifically identified in Takeda’s prior modifications necessary to transform classes of situations where ‘obvious to patent, and the district court observed compound b into the claimed try’ is erroneously equated with that ‘‘hundreds of millions’’ were more compound pioglitazone. Thus, an obviousness under § 103.’’ Kubin, 561 generally disclosed. Although the obviousness rejection based on an F.3d at 1359. These two classes of parties agreed that compound b obvious to try rationale was not situations are: (1) When what would represented the closest prior art, one appropriate in this situation. Example 4.16. Ortho-McNeil have been ‘‘obvious to try’’ would have reference had taught certain Pharmaceutical, Inc. v. Mylan Labs, been to vary all parameters or try each disadvantageous properties associated Inc., 520 F.3d 1358 (Fed. Cir. 2008). of numerous possible choices until one with compound b, which according to Teaching point: Where the claimed anti- possibly arrived at a successful result, the district court would have taught the convulsant drug had been discovered where the prior art gave either no skilled artisan not to select that somewhat serendipitously in the course indication of which parameters were compound as a lead compound. The of research aimed at finding a new anti- critical or no direction as to which of district court found no prima facie case diabetic drug, it would not have been many possible choices is likely to be of obviousness, and stated that even if obvious to try to obtain a claimed successful; and (2) when what was a prima facie case had been established, compound where the prior art did not ‘‘obvious to try’’ was to explore a new it would have been overcome in this present a finite and easily traversed technology or general approach that case in view of the unexpected lack of number of potential starting seemed to be a promising field of toxicity of pioglitazone. experimentation, where the prior art The Federal Circuit affirmed the compounds, and there was no apparent gave only general guidance as to the decision of the district court, citing the reason for selecting a particular starting particular form of the claimed invention need for a reason to modify a prior art compound from among a number of or how to achieve it. Id. (citing compound. The Federal Circuit quoted unpredictable alternatives. The Ortho-McNeil case provides O’Farrell, 853 F.2d at 903). KSR, stating: Example 4.15. Takeda Chemical another example in which a chemical Industries, Ltd. v. Alphapharm Pty., The KSR Court recognized that ‘‘[w]hen compound was determined not to be Ltd., 492 F.3d 1350 (Fed. Cir. 2007). there is a design need or market pressure to obvious. The claimed subject matter was solve a problem and there are a finite number topiramate, which is used as an anti- Teaching point: A claimed compound of identified, predictable solutions, a person would not have been obvious where it of ordinary skill has good reason to pursue convulsant. As in DePuy Spine, whether was not obvious to try to obtain it from the known options within his or her the combination would predictably be a broad range of compounds, any one of technical grasp.’’ KSR, 127 S.Ct. at 1732. In effective for its intended purpose is part which could have been selected as the such circumstances, ‘‘the fact that a of the obviousness analysis. lead compound for further investigation, combination was obvious to try might show In the course of working toward a new and the prior art taught away from using that it was obvious under § 103.’’ Id. That is anti-diabetic drug, Ortho-McNeil’s a particular lead compound, and there not the case here. Rather than identify scientist had unexpectedly discovered was no predictability or reasonable predictable solutions for antidiabetic that a reaction intermediate had anti- expectation of success in making the treatment, the prior art disclosed a broad convulsant properties. Mylan’s defense selection of compounds any one of which of invalidity due to obviousness rested particular modifications necessary to could have been selected as a lead compound transform the lead compound into the for further investigation. Significantly, the on an obvious to try argument. claimed compound. closest prior art compound (compound b, the However, Mylan did not explain why it Takeda is an example of a chemical 6-methyl) exhibited negative properties that would have been obvious to begin with case in which the Federal Circuit found would have directed one of ordinary skill in an anti-diabetic drug precursor, that the claim was not obvious. The the art away from that compound. Thus, this especially the specific one that led to

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topiramate, if one had been seeking an the solubility of poorly water soluble that reduced set is the appropriate one anti-convulsant drug. The district court drugs. to consider when determining ruled on summary judgment that Ortho- Based on the known acid sensitivity, obviousness using an obvious to try McNeil’s patent was not invalid for Bayer had studied how effectively an rationale. obviousness. enteric-coated drospirenone tablet Example 4.18. Sanofi-Synthelabo v. The Federal Circuit affirmed. The delivered a formulation as compared to Apotex, Inc., 550 F.3d 1075 (Fed. Cir. Federal Circuit pointed out that there an intravenous injection of the same 2008). Teaching point: A claimed was no apparent reason why a person of formulation to measure the ‘‘absolute isolated stereoisomer would not have ordinary skill would have chosen the bioavailability’’ of the drug. Bayer added been obvious where the claimed particular starting compound or the an unprotected (normal) drospirenone stereoisomer exhibits unexpectedly particular synthetic pathway that led to tablet and compared its bioavailability strong therapeutic advantages over the topiramate as an intermediate. to that of the enteric-coated formulation prior art racemic mixture without the Furthermore, there would have been no and the intravenous delivery. Bayer correspondingly expected toxicity, and reason to test that intermediate for expected to find that the enteric-coated the resulting properties of the anticonvulsant properties if treating tablet would produce a lower enantiomers separated from the racemic diabetes had been the goal. The Federal bioavailability than an intravenous mixture were unpredictable. Circuit recognized an element of injection, while the normal pill would The case of Sanofi also sheds light on serendipity in this case, which runs produce an even lower bioavailability the obvious to try line of reasoning. The counter to the requirement for than the enteric-coated tablet. However, claimed compound was clopidogrel, which is the dextrorotatory isomer of predictability. Summarizing their they found that despite observations methyl alpha-5(4,5,6,7-tetrahydro(3,2- conclusion with regard to Mylan’s that drospirenone would quickly c)thienopyridyl)(2-chlorophenyl)- obvious to try argument, the Federal isomerize in a highly acidic acetate. Clopidogrel is an anti- Circuit stated: environment (supporting the belief that an enteric coating would be necessary to thrombotic compound used to treat or [T]his invention, contrary to Mylan’s preserve bioavailability), the normal pill prevent heart attack or stroke. The characterization, does not present a finite and the enteric-coated pill resulted in racemate, or mixture of dextrorotatory (and small in the context of the art) number the same bioavailability. Following this and levorotatory (D- and L-) isomers of of options easily traversed to show the compound, was known in the prior obviousness * * *. KSR posits a situation study, Bayer developed micronized with a finite, and in the context of the art, drospirenone in a normal pill, the basis art. The two forms had not previously small or easily traversed, number of options for the disputed patent. been separated, and although the that would convince an ordinarily skilled The district court found that a person mixture was known to have anti- artisan of obviousness* * * . [T]his clearly is having ordinary skill in the art would thrombotic properties, the extent to not the easily traversed, small and finite have considered the prior art result that which each of the individual isomers number of alternatives that KSR suggested a structurally related compound, contributed to the observed properties might support an inference of obviousness. spirorenone, though acid-sensitive, of the racemate was not known and was Id. at 1364. Thus, Ortho-McNeil helps would nevertheless absorb in vivo, not predictable. to clarify the Supreme Court’s would have suggested the same result The district court assumed that in the requirement in KSR for ‘‘a finite for drospirenone. It also found that absence of any additional information, number’’ of predictable solutions when while another reference taught that the D-isomer would have been prima an obvious to try rationale is applied: drospirenone isomerizes in vitro when facie obvious over the known racemate. However, in view of the evidence of Under the Federal Circuit’s case law exposed to acid simulating the human unpredicted therapeutic advantages of ‘‘finite’’ means ‘‘small or easily stomach, a person of ordinary skill the D-isomer presented in the case, the traversed’’ in the context of the art in would have been aware of the study’s district court found that any prima facie question. As taught in Abbott, discussed shortcomings, and would have verified case of obviousness had been overcome. above, it is essential that the inquiry be the findings as suggested by a treatise on At trial, the experts for both parties placed in the context of the subject the science of dosage form design, testified that persons of ordinary skill in matter at issue, and each case must be which would have then showed that no enteric coating was necessary. the art could not have predicted the decided on its own facts. The Federal Circuit held that the degree to which the isomers would have Example 4.17. Bayer Schering Pharma patent was invalid because the claimed exhibited different levels of therapeutic A.G. v. Barr Labs., Inc., 575 F.3d 1341 formulation was obvious. The Federal activity and toxicity. Both parties’ (Fed. Cir. 2009). Teaching point: A Circuit reasoned that the prior art would experts also agreed that the isomer with claimed compound would have been have funneled the formulator toward greater therapeutic activity would most obvious where it was obvious to try to two options. Thus, the formulator likely have had greater toxicity. Sanofi obtain it from a finite and easily would not have been required to try all witnesses testified that Sanofi’s own traversed number of options that was possibilities in a field unreduced by the researchers had believed that the narrowed down from a larger set of prior art. The prior art was not vague in separation of the isomers was unlikely possibilities by the prior art, and the pointing toward a general approach or to have been productive, and experts for outcome of obtaining the claimed area of exploration, but rather guided both parties agreed that it was difficult compound was reasonably predictable. the formulator precisely to the use of to separate isomers at the time of the In Bayer the claimed invention was an either a normal pill or an enteric-coated invention. Nevertheless, when Sanofi oral contraceptive containing pill. ultimately undertook the task of micronized drospirenone marketed as It is important for Office personnel to separating the isomers, it found that Yasmin®. recognize that the mere existence of a they had the ‘‘rare characteristic of The prior art compound drospirenone large number of options does not in and ‘absolute stereoselectivity,’ ’’ whereby was known to be a poorly water-soluble, of itself lead to a conclusion of the D-isomer provided all of the acid-sensitive compound with nonobviousness. Where the prior art favorable therapeutic activity but no contraceptive effects. It was also known teachings lead one of ordinary skill in significant toxicity, while the L-isomer in the art that micronization improves the art to a narrower set of options, then produced no therapeutic activity but

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virtually all of the toxicity. Based on United had argued that it would have art had also recognized three potential this record, the district court concluded been obvious for a person of ordinary solutions: Increasing the size of the that Apotex had not met its burden of skill in the art to try a fan blade design initial recipient list; resending e-mails proving by clear and convincing in which the sweep angle in the outer to recipients who did not receive them evidence that Sanofi’s patent was region was reversed as compared with on the first attempt; and selecting a new invalid for obviousness. The Federal prior art fan blades from rearward to recipient list and sending e-mails to Circuit affirmed the district court’s forward sweep, in order to reduce them. The last option corresponded to conclusion. endwall shock. The Federal Circuit the fourth step of the invention as Office personnel should recognize disagreed with United’s assessment that claimed. that even when only a small number of the claimed fan blade would have been The Federal Circuit noted that based possible choices exist, the obvious to try obvious based on an obvious to try on ‘‘simple logic,’’ selecting a new list of line of reasoning is not appropriate rationale. The Federal Circuit pointed recipients was more likely to result in when, upon consideration of all of the out that in a proper obvious to try the desired outcome than resending to evidence, the outcome would not have approach to obviousness, the possible those who had not received the e-mail been reasonably predictable and the options for solving a problem must have on the first attempt. There had been no inventor would not have had a been ‘‘known and finite.’’ Id. at 1339, evidence of any unexpected result reasonable expectation of success. In citing Abbott, 544 F.3d at 1351. In this associated with selecting a new Bayer, there were art-based reasons to case, there had been no suggestion in recipient list, and no evidence that the expect that both the normal pill and the the prior art that would have suggested method would not have had a enteric-coated pill would be that changing the sweep angle as Rolls- reasonable likelihood of success. Thus, therapeutically suitable, even though Royce had done would have addressed the Federal Circuit concluded that, as not all prior art studies were in the issue of endwall shock. Thus, the required by KSR, there were a ‘‘finite complete agreement. Thus, the result Federal Circuit concluded that changing number of identified, predictable obtained was not unexpected. In Sanofi, the sweep angle ‘‘would not have solutions,’’ and that the obvious to try on the other hand, there was strong presented itself as an option at all, let inquiry properly led to the legal evidence that persons of ordinary skill alone an option that would have been conclusion of obviousness. in the art, prior to the separation of the obvious to try.’’ Rolls-Royce, 603 F.3d at The Federal Circuit in Perfect Web isomers, would have had no reason to 1339. The decision in Rolls-Royce is a also discussed the role of common sense expect that the D-isomer would have reminder to Office personnel that the in the determination of obviousness. such strong therapeutic advantages as obvious to try rationale can properly be The district court had cited KSR for the compared with the L-isomer. In other used to support a conclusion of proposition that ‘‘[a] person of ordinary words, the result in Sanofi was obviousness only when the claimed skill is also a person of ordinary solution would have been selected from unexpected. creativity, not an automaton,’’ and found a finite number of potential solutions Example 4.19. Rolls-Royce, PLC v. that ‘‘the final step [of the claimed known to persons of ordinary skill in United Technologies Corp., 603 F.3d invention] is merely the logical result of the art. 1325 (Fed. Cir. 2010). Teaching point: Example 4.20. Perfect Web common sense application of the maxim ’’ An obvious to try rationale may be Technologies, Inc. v. InfoUSA, Inc., 587 ‘try, try again.’ In affirming the district proper when the possible options for F.3d 1324, 1328–29 (Fed. Cir. 2009). court, the Federal Circuit undertook an solving a problem were known and Teaching point: Where there were a extended discussion of common sense finite. However, if the possible options finite number of identified, predictable as it has been applied to the were not either known or finite, then an solutions and there is no evidence of obviousness inquiry, both before and obvious to try rationale cannot be used unexpected results, an obvious to try since the KSR decision. to support a conclusion of obviousness. inquiry may properly lead to a legal The Federal Circuit pointed out that In Rolls-Royce the Federal Circuit conclusion of obviousness. Common application of common sense is not addressed the obvious to try rationale in sense may be used to support a legal really an innovation in the law of the context of a fan blade for jet engines. conclusion of obviousness so long as it obviousness when it stated, ‘‘Common The case had arisen out of an is explained with sufficient reasoning. sense has long been recognized to interference proceeding. Finding that The Perfect Web case provides an inform the analysis of obviousness if the district court had correctly example in which the Federal Circuit explained with sufficient reasoning.’’ determined that there was no held that a claimed method for Perfect Web, 587 F.3d at 1328 (emphasis interference-in-fact because Rolls- managing bulk e-mail distribution was added). The Federal Circuit then Royce’s claims would not have been obvious on the basis of an obvious to try provided a review of a number of obvious in light of United’s application, argument. In Perfect Web, the method precedential cases that inform the the Federal Circuit affirmed. required selecting the intended understanding of common sense, The Federal Circuit described the fan recipients, transmitting the e-mails, including In re Bozek, 416 F.2d 1385, blade of the count as follows: determining how many of the e-mails 1390 (CCPA 1969) (explaining that a patent examiner may rely on ‘‘common Each fan blade has three regions—an inner, had been successfully received, and an intermediate, and an outer region. The repeating the first three steps if a pre- knowledge and common sense of the area closest to the axis of rotation at the hub determined minimum number of person of ordinary skill in the art is the inner region. The area farthest from the intended recipients had not received the without any specific hint or suggestion center of the engine and closest to the casing e-mail. in a particular reference’’) and In re surrounding the engine is the outer region. The Federal Circuit affirmed the Zurko, 258 F.3d 1379, 1383, 1385 (Fed. The intermediate region falls in between. The district court’s determination on Cir. 2001) (clarifying that a factual count defines a fan blade with a swept- summary judgment that the claimed foundation is needed in order for an forward inner region, a swept-rearward invention would have been obvious. examiner to invoke ‘‘good common intermediate region, and forward-leaning Failure to meet a desired quota of e-mail sense’’ in a case in which ‘‘basic outer region. recipients was a recognized problem in knowledge and common sense was not Id. at 1328. the field of e-mail marketing. The prior based on any evidence in the record’’).

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The Federal Circuit implicitly rebut the prima facie case of obviousness, testimony was contrary to the inventors’ acknowledged in Perfect Web that the Office personnel should specifically set forth admissions in the specification, as well kind of strict evidence-based teaching, the facts and reasoning that justify this as prior art teachings that disclosed suggestion, or motivation required in In conclusion. stem cells in cord blood. In this case, re Lee, 277 F.3d 1338, 1344 (Fed. Cir. MPEP § 2145. The following cases PharmaStem’s evidence of 2002), is not an absolute requirement for exemplify the continued application of nonobviousness was outweighed by an obviousness rejection in light of the these principles both at the Federal contradictory evidence. teachings of KSR. The Federal Circuit Circuit and within the Office. Note that Despite PharmaStem’s useful explained that ‘‘[a]t the time [of the Lee these principles were at issue in some experimental validation of decision], we required the PTO to of the cases previously discussed, and hematopoietic reconstitution using identify record evidence of a teaching, have been addressed there in a more hematopoietic stem cells from umbilical suggestion, or motivation to combine cursory fashion. cord and placental blood, the Federal references.’’ However, Perfect Web went Example 5.1. PharmaStem Circuit found that the claims at issue on to state that even under Lee, common Therapeutics, Inc. v. Viacell, Inc., 491 would have been obvious. There had sense could properly be applied when F.3d 1342 (Fed. Cir. 2007). Teaching been ample suggestion in the prior art analyzing evidence relevant to point: Even though all evidence must be that the claimed method would have obviousness. Citing DyStar Textilfarben considered in an obviousness analysis, worked. Absolute predictability is not a GmbH v. C.H. Patrick Co., 464 F.3d evidence of nonobviousness may be necessary prerequisite to a case of 1356 (Fed. Cir. 2006), and In re Kahn, outweighed by contradictory evidence obviousness. Rather, a degree of 441 F.3d 977 (Fed. Cir. 2006), two cases in the record or by what is in the predictability that one of ordinary skill decided shortly before the Supreme specification. Although a reasonable would have found to be reasonable is Court’s decision in KSR, the Federal expectation of success is needed to sufficient. The Federal Circuit Circuit noted that although ‘‘a reasoned support a case of obviousness, absolute concluded that ‘‘[g]ood science and explanation that avoids conclusory predictability is not required. useful contributions do not necessarily The claims at issue in PharmaStem generalizations’’ is required to use result in patentability.’’ Id. at 1364. were directed to compositions common sense, identification of a Example 5.2. In re Sullivan, 498 F.3d comprising hematopoietic stem cells ‘‘specific hint or suggestion in a 1345 (Fed. Cir. 2007). Teaching point: from umbilical cord or placental blood, particular reference’’ is not. All evidence, including evidence 5. Federal Circuit Cases Discussing and to methods of using such rebutting a prima facie case of Consideration of Evidence. Office compositions for treatment of blood and obviousness, must be considered when immune system disorders. The personnel should consider all rebuttal properly presented. composition claims required that the evidence that is timely presented by the It was found to be an error in Sullivan stem cells be present in an amount for the Board to fail to consider applicants when reevaluating any sufficient to effect hematopoietic evidence submitted to rebut a prima obviousness determination. In the case reconstitution when administered to a facie case of obviousness. of a claim rendered obvious by a human adult. The trial court had found The claimed invention was directed combination of prior art references, that PharmaStem’s patents were to an antivenom composition applicants may submit evidence or infringed and not invalid on comprising F(ab) fragments used to treat argument to demonstrate that the results obviousness or other grounds. On venomous rattlesnake bites. The of the claimed combination were appeal, the Federal Circuit reversed the composition was created from antibody unexpected. district court, determining that the molecules that include three fragments, Another area that has thus far claims were invalid for obviousness. F(ab)2, F(ab) and F(c), which have remained consistent with pre-KSR The Federal Circuit discussed the separate properties and utilities. There precedent is the consideration of evidence presented at trial. It pointed have been commercially available rebuttal evidence and secondary out that the patentee, PharmaStem, had antivenom products that consisted of considerations in the determination of not invented an entirely new procedure whole antibodies and F(ab)2 fragments, obviousness. As reflected in the MPEP, or new composition. Rather, but researchers had not experimented such evidence should not be considered PharmaStem’s own specification with antivenoms containing only F(ab) ‘‘ ’’ simply for its knockdown value; acknowledged that it was already fragments because it was believed that rather, all evidence must be reweighed known in the prior art that umbilical their unique properties would prevent to determine whether the claims are cord and placental blood-based them from decreasing the toxicity of nonobvious. compositions contained hematopoietic snake venom. The inventor, Sullivan, Once the applicant has presented rebuttal stem cells, and that hematopoietic stem discovered that F(ab) fragments are evidence, Office personnel should reconsider cells were useful for the purpose of effective at neutralizing the lethality of any initial obviousness determination in hematopoietic reconstitution. rattlesnake venom, while reducing the view of the entire record. See, e.g., In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ PharmaStem’s contribution was to occurrence of adverse immune reactions 785, 788 (Fed. Cir. 1984); In re Eli Lilly & Co., provide experimental proof that in humans. On appeal of the examiner’s 90 F.2d 943, 945, 14 USPQ2d 1741, 1743 umbilical cord and placental blood rejection, the Board held that the claim (Fed. Cir. 1990). All the rejections of record could be used to effect hematopoietic was obvious because all the elements of and proposed rejections and their bases reconstitution in mice. By extrapolation, the claimed composition were should be reviewed to confirm their one of ordinary skill in the art would accounted for in the prior art, and that continued viability. have expected this reconstitution the composition taught by that prior art MPEP § 2141. method to work in humans as well. would have been expected by a person The court rejected PharmaStem’s Office personnel should not evaluate of ordinary skill in the art at the time rebuttal evidence for its ‘‘knockdown’’ value expert testimony that hematopoietic the invention was made to neutralize against the prima facie case, Piasecki, 745 stem cells had not been proved to exist the lethality of the venom of a F.2d at 1473, 223 USPQ at 788, or summarily in cord blood prior to the experiments rattlesnake. dismiss it as not compelling or insufficient. described in PharmaStem’s patents. The Rebuttal evidence had not been If the evidence is deemed insufficient to court explained that the expert considered by the Board because it

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considered the evidence to relate to the nonobvious. The district court upheld rejection should be made or maintained intended use of the claimed the jury verdict, stating that in view of only if evidence of obviousness composition as an antivenom, rather the conflicting evidence presented by outweighs evidence of nonobviousness. than the composition itself. Appellant the parties as to the teachings of the See MPEP § 706(I) (‘‘The standard to be successfully argued that even if the references, motivation to combine, and applied in all cases is the Board had shown a prima facie case of secondary considerations, the ‘preponderance of the evidence’ test. In obviousness, the extensive rebuttal nonobviousness verdict was sufficiently other words, an examiner should reject evidence must be considered. The grounded in the evidence. a claim if, in view of the prior art and evidence included three expert Shure appealed to the Federal Circuit, evidence of record, it is more likely than declarations submitted to show that the but the Federal Circuit agreed with the not that the claim is unpatentable.’’). prior art taught away from the claimed district court that the jury’s MPEP § 716.01(d) provides further invention, an unexpected property or nonobviousness verdict had been guidance on weighing evidence in result from the use of F(ab) fragment supported by substantial evidence. making a determination of patentability. antivenom, and why those having Although Shure had argued before the Example 5.4. Asyst Techs., Inc. v. ordinary skill in the art expected jury that the Carlisle reference taught an Emtrak, Inc., 544 F.3d 1310 (Fed. Cir. antivenoms comprising F(ab) fragments ear piece positioned inside the ear 2008). Teaching point: Evidence of to fail. The declarations related to more canal, Hearing Components’ credible secondary considerations of than the use of the claimed witness countered that only the molded obviousness such as commercial success composition. While a statement of duct and not the ear piece itself was and long-felt need may be insufficient to intended use may not render a known taught by Carlisle as being inside the ear overcome a prima facie case of composition patentable, the claimed canal. On the issue of combining obviousness if the prima facie case is composition was not known, and references, Shure’s witness had given strong. An argument for nonobviousness whether it would have been obvious testimony described as ‘‘rather sparse, based on commercial success or long- depends upon consideration of the and lacking in specific details.’’ Id. at felt need is undermined when there is rebuttal evidence. Appellant did not 1364. In contradistinction, Hearing a failure to link the commercial success concede that the only distinguishing Components’ witness ‘‘described or long-felt need to a claimed feature factor of its composition is the statement particular reasons why one skilled in that distinguishes over the prior art. of intended use and extensively argued the art would not have been motivated The claims at issue in Asyst that its claimed composition exhibits to combine the references.’’ Id. Finally, concerned a processing system for the unexpected property of neutralizing as to secondary considerations, the tracking articles such as silicon wafers the lethality of rattlesnake venom while Federal Circuit determined that Hearing which move from one processing station reducing the occurrence of adverse Components had shown a nexus to the next in a manufacturing facility. immune reactions in humans. The between the commercial success of its The claims required that each Federal Circuit found that such a use product and the patent by providing processing station be in communication and unexpected property cannot be evidence that ‘‘the licensing fee for a with a central control unit. The Federal ignored—the unexpected property is covered product was more than cut in Circuit agreed with the district court relevant and thus the declarations half immediately upon expiration’’ of that the only difference between the describing it should have been the patent. claimed invention and the prior art to considered. Although the Hearing Components Hesser was that the prior art had taught Nonobviousness can be shown when case involves substantial evidence of the use of a bus for this communication, a person of ordinary skill in the art nonobviousness in a jury verdict, it is while the claims required a multiplexer. would not have reasonably predicted nevertheless instructive for Office At trial, the jury had concluded that the claimed invention based on the personnel on the matter of weighing Hesser was not relevant prior art, but prior art, and the resulting invention evidence. Office personnel routinely the district court overturned that would not have been expected. All must consider evidence in the form of conclusion and issued a judgment as a evidence must be considered when prior art references, statements in the matter of law (JMOL) that the claims properly presented. specification, or declarations under 37 would have been obvious in view of Example 5.3. Hearing Components, CFR 1.131 or 1.132. Other forms of Hesser. Because the evidence showed Inc. v. Shure Inc., 600 F.3d 1357 (Fed. evidence may also be presented during that persons of ordinary skill in the art Cir. 2010). Teaching point: Evidence prosecution. Office personnel are would have been familiar with both the that has been properly presented in a reminded that evidence that has been bus and the multiplexer, and that they timely manner must be considered on presented in a timely manner should could have readily selected and the record. Evidence of commercial not be ignored, but rather should be employed one or the other based on success is pertinent where a nexus considered on the record. However, not known considerations, the Federal between the success of the product and all evidence need be accorded the same Circuit affirmed the district court’s the claimed invention has been weight. In determining the relative conclusion that the claims were invalid demonstrated. weight to accord to rebuttal evidence, for obviousness. The case of Hearing Components considerations such as whether a nexus The Federal Circuit also discussed involved a disposable protective exists between the claimed invention arguments that the district court had covering for the portion of a hearing aid and the proffered evidence, and whether failed to consider the objective evidence that is inserted into the ear canal. The the evidence is commensurate in scope of nonobviousness presented by Asyst. covering was such that it could be with the claimed invention, are Asyst had offered evidence of readily replaced by a user as needed. appropriate. The mere presence of some commercial success of its invention. At the district court, Shure had credible rebuttal evidence does not However, the Federal Circuit pointed argued that Hearing Components’ dictate that an obviousness rejection out that Asyst had not provided the patents were obvious over one or more must always be withdrawn. See MPEP required nexus between the commercial of three different combinations of prior § 2145. Office personnel must consider success and the claimed invention, art references. The jury disagreed, and the appropriate weight to be accorded to emphasizing that ‘‘Asyst’s failure to link determined that the claims were each piece of evidence. An obviousness that commercial success to the features

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of its invention that were not disclosed Pfizer, Inc. v. Apotex, Inc., 480 F.3d addresses a number of issues that arise in Hesser undermines the probative 1348, 1372 (Fed. Cir. 2007); Ryko Mfg. when Office personnel consider force of the evidence * * *.’’ Id. at 1316. Co. v. Nu-Star, Inc., 950 F.2d 714, 719– whether or not a claimed invention is Asyst had also offered evidence from 20 (Fed. Cir. 1991); Newell Cos. v. obvious. While Office personnel are others in the field praising the invention Kenney Mfg. Co., 864 F.2d 757, 768 encouraged to make use of these tools, as addressing a long-felt need. Once (Fed. Cir. 1988)). they are reminded that every question of again, the Federal Circuit found the When considering obviousness, Office obviousness must be decided on its own argument to be unavailing in view of the personnel should carefully weigh any facts. The Office will continue to properly presented objective evidence of prior art, stating that ‘‘[w]hile the monitor the developing law of nonobviousness against the strength of evidence shows that the overall system obviousness, and will provide the prima facie case. If the asserted drew praise as a solution to a felt need, additional guidance and updates as evidence, such as commercial success or necessary. there was no evidence that the success satisfaction of a long-felt need, is * * * was attributable to the attributable to features already in the Dated: August 20, 2010. substitution of a multiplexer for a bus, prior art, the probative value of the David J. Kappos, which was the only material difference evidence is reduced. Under Secretary of Commerce for Intellectual between Hesser and the patented 6. Conclusion. This 2010 KSR Property and Director of the United States invention.’’ Id. The Federal Circuit also Guidelines Update is intended to be Patent and Trademark Office. reiterated, citing pre-KSR decisions, that used by Office personnel in conjunction ‘‘as we have often held, evidence of with the guidance provided in MPEP Appendix secondary considerations does not §§ 2141 and 2143 (which incorporates The following table contains the cases set always overcome a strong prima facie the 2007 KSR Guidelines) to clarify the out as examples in this 2010 KSR Guidelines showing of obviousness.’’ Id. (citing contours of obviousness after KSR. It Update and the teaching points of the case.

Case Teaching point

Combining Prior Art Elements

In re Omeprazole Patent Litigation, Even where a general method that could have been applied to make the claimed product was known and 536 F.3d 1361 (Fed. Cir. 2008). within the level of skill of the ordinary artisan, the claim may nevertheless be nonobvious if the problem which had suggested use of the method had been previously unknown. Crocs, Inc. v. U.S. Int’l Trade A claimed combination of prior art elements may be nonobvious where the prior art teaches away from the Comm’n., 598 F.3d 1294 (Fed. claimed combination and the combination yields more than predictable results. Cir. 2010). Sundance, Inc. v. DeMonte Fabri- A claimed invention is likely to be obvious if it is a combination of known prior art elements that would rea- cating Ltd., 550 F.3d 1356 (Fed. sonably have been expected to maintain their respective properties or functions after they have been Cir. 2008). combined. Ecolab, Inc. v. FMC Corp., 569 A combination of known elements would have been prima facie obvious if an ordinarily skilled artisan F.3d 1335 (Fed. Cir. 2009). would have recognized an apparent reason to combine those elements and would have known how to do so. Wyers v. Master Lock Co., No. The scope of analogous art is to be construed broadly and includes references that are reasonably perti- 2009–1412, —F.3d—, 2010 WL nent to the problem that the inventor was trying to solve. Common sense may be used to support a 2901839 (Fed. Cir. July 22, legal conclusion of obviousness so long as it is explained with sufficient reasoning. 2010). DePuy Spine, Inc. v. Medtronic Predictability as discussed in KSR encompasses the expectation that prior art elements are capable of Sofamor Danek, Inc., 567 F.3d being combined, as well as the expectation that the combination would have worked for its intended pur- 1314 (Fed. Cir. 2009). pose. An inference that a claimed combination would not have been obvious is especially strong where the prior art’s teachings undermine the very reason being proffered as to why a person of ordinary skill would have combined the known elements.

Substituting One Known Element for Another

In re ICON Health & Fitness, Inc., When determining whether a reference in a different field of endeavor may be used to support a case of 496 F.3d 1374 (Fed. Cir. 2007). obviousness (i.e., is analogous), it is necessary to consider the problem to be solved. Agrizap, Inc. v. Woodstream Corp., Analogous art is not limited to references in the field of endeavor of the invention, but also includes ref- 520 F.3d 1337 (Fed. Cir. 2008). erences that would have been recognized by those of ordinary skill in the art as useful for applicant’s purpose. Muniauction, Inc. v. Thomson Because Internet and Web browser technologies had become commonplace for communicating and dis- Corp., 532 F.3d 1318 (Fed. Cir. playing information, it would have been obvious to adapt existing processes to incorporate them for 2008). those functions. Aventis Pharma Deutschland v. A chemical compound would have been obvious over a mixture containing that compound as well as other Lupin, Ltd., 499 F.3d 1293 (Fed. compounds where it was known or the skilled artisan had reason to believe that some desirable property Cir. 2007). of the mixture was derived in whole or in part from the claimed compound, and separating the claimed compound from the mixture was routine in the art. Eisai Co. Ltd. v. Dr. Reddy’s Labs., A claimed compound would not have been obvious where there was no reason to modify the closest prior Ltd., 533 F.3d 1353 (Fed. Cir. art lead compound to obtain the claimed compound and the prior art taught that modifying the lead com- 2008). pound would destroy its advantageous property. Any known compound may serve as a lead compound when there is some reason for starting with that lead compound and modifying it to obtain the claimed compound. Procter & Gamble Co. v. Teva It is not necessary to select a single compound as a ‘‘lead compound’’ in order to support an obviousness Pharmaceuticals USA, Inc., 566 rejection. However, where there was reason to select and modify the lead compound to obtain the F.3d 989 (Fed. Cir. 2009). claimed compound, but no reasonable expectation of success, the claimed compound would not have been obvious.

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Case Teaching point

Altana Pharma AG v. Teva Obviousness of a chemical compound in view of its structural similarity to a prior art compound may be Pharms. USA, Inc., 566 F.3d 999 shown by identifying some line of reasoning that would have led one of ordinary skill in the art to select (Fed. Cir. 2009). and modify a prior art lead compound in a particular way to produce the claimed compound. It is not necessary for the reasoning to be explicitly found in the prior art of record, nor is it necessary for the prior art to point to only a single lead compound.

The Obvious To Try Rationale

In re Kubin, 561 F.3d 1351 (Fed. A claimed polynucleotide would have been obvious over the known protein that it encodes where the Cir. 2009). skilled artisan would have had a reasonable expectation of success in deriving the claimed polynucleotide using standard biochemical techniques, and the skilled artisan would have had a reason to try to isolate the claimed polynucleotide. KSR applies to all technologies, rather than just the ‘‘predictable’’ arts. Takeda Chem. Indus. v. A claimed compound would not have been obvious where it was not obvious to try to obtain it from a Alphapharm Pty., Ltd., 492 F.3d broad range of compounds, any one of which could have been selected as the lead compound for fur- 1350 (Fed. Cir. 2007). ther investigation, and the prior art taught away from using a particular lead compound, and there was no predictability or reasonable expectation of success in making the particular modifications necessary to transform the lead compound into the claimed compound. Ortho-McNeil Pharmaceutical, Inc. Where the claimed anti-convulsant drug had been discovered somewhat serendipitously in the course of v. Mylan Labs, Inc., 520 F.3d research aimed at finding a new anti-diabetic drug, it would not have been obvious to try to obtain a 1358 (Fed. Cir. 2008). claimed compound where the prior art did not present a finite and easily traversed number of potential starting compounds, and there was no apparent reason for selecting a particular starting compound from among a number of unpredictable alternatives. Bayer Schering Pharma A.G. v. A claimed compound would have been obvious where it was obvious to try to obtain it from a finite and Barr Labs., Inc., 575 F.3d 1341 easily traversed number of options that was narrowed down from a larger set of possibilities by the prior (Fed. Cir. 2009). art, and the outcome of obtaining the claimed compound was reasonably predictable. Sanofi-Synthelabo v. Apotex, Inc., A claimed isolated stereoisomer would not have been obvious where the claimed stereoisomer exhibits un- 550 F.3d 1075 (Fed. Cir. 2008). expectedly strong therapeutic advantages over the prior art racemic mixture without the correspondingly expected toxicity, and the resulting properties of the enantiomers separated from the racemic mixture were unpredictable. Rolls-Royce, PLC v. United Tech- An obvious to try rationale may be proper when the possible options for solving a problem were known nologies Corp., 603 F.3d 1325 and finite. However, if the possible options were not either known or finite, then an obvious to try ration- (Fed. Cir. 2010). ale cannot be used to support a conclusion of obviousness. Perfect Web Techs., Inc. v. Where there were a finite number of identified, predictable solutions and there is no evidence of unex- InfoUSA, Inc., 587 F.3d 1324 pected results, an obvious to try inquiry may properly lead to a legal conclusion of obviousness. Com- (Fed. Cir. 2009). mon sense may be used to support a legal conclusion of obviousness so long as it is explained with sufficient reasoning.

Consideration of Evidence

PharmaStem Therapeutics, Inc. v. Even though all evidence must be considered in an obviousness analysis, evidence of nonobviousness ViaCell, Inc., 491 F.3d 1342 may be outweighed by contradictory evidence in the record or by what is in the specification. Although a (Fed. Cir. 2007). reasonable expectation of success is needed to support a case of obviousness, absolute predictability is not required. In re Sullivan, 498 F.3d 1345 (Fed. All evidence, including evidence rebutting a prima facie case of obviousness, must be considered when Cir. 2007). properly presented. Hearing Components, Inc. v. Shure Evidence that has been properly presented in a timely manner must be considered on the record. Evi- Inc., 600 F.3d 1357 (Fed. Cir. dence of commercial success is pertinent where a nexus between the success of the product and the 2010). claimed invention has been demonstrated. Asyst Techs., Inc. v. Emtrak, Inc., Evidence of secondary considerations of obviousness such as commercial success and long-felt need may 544 F.3d 1310 (Fed. Cir. 2008). be insufficient to overcome a prima facie case of obviousness if the prima facie case is strong. An argument for nonobviousness based on commercial success or long-felt need is undermined when there is a failure to link the commercial success or long-felt need to a claimed feature that distinguishes over the prior art.

[FR Doc. 2010–21646 Filed 8–31–10; 8:45 am] BILLING CODE P

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DEPARTMENT OF COMMERCE the preliminary results of the 8803.90.30, 8803.90.90, 8708.30.50.90, administrative reviews of the 8708.40.75.70, 8708.40.75.80, International Trade Administration antidumping duty orders on ball 8708.50.79.00, 8708.50.89.00, [A–427–801, A–428–801, A–475–801, A–588– bearings and parts thereof from France, 8708.50.91.50, 8708.50.99.00, 804, A–412–801] Germany, Italy, Japan, and the United 8708.70.60.60, 8708.80.65.90, Kingdom. See Ball Bearings and Parts 8708.93.75.00, 8708.94.75, Ball Bearings and Parts Thereof From Thereof From France, et al.: Preliminary 8708.95.20.00, 8708.99.55.00, France, Germany, Italy, Japan, and the Results of Antidumping Duty 8708.99.68, and 8708.99.81.80. United Kingdom: Final Results of Administrative Reviews, Preliminary Although the HTSUS item numbers Antidumping Duty Administrative Results of Changed-Circumstances above are provided for convenience and Reviews, Final Results of Changed- Review, Rescission of Antidumping Duty customs purposes, the written Circumstances Review, and Administrative Reviews In Part, and descriptions of the scope of the orders Revocation of an Order in Part Intent To Revoke Order In Part, 75 FR remain dispositive. 22384 (April 28, 2010), and Ball The size or precision grade of a AGENCY: Import Administration, Bearings and Parts Thereof from France, bearing does not influence whether the International Trade Administration, Germany, Italy, Japan, and the United bearing is covered by one of the orders. Department of Commerce. Kingdom: Preliminary Results of The orders cover all the subject bearings SUMMARY: On April 28, 2010, the Antidumping Duty Administrative and parts thereof (inner race, outer race, Department of Commerce published the Reviews, Preliminary Results of cage, rollers, balls, seals, shields, etc.) preliminary results of the administrative Changed-Circumstances Review, outlined above with certain limitations. reviews of the antidumping duty orders Rescission of Antidumping Duty With regard to finished parts, all such on ball bearings and parts thereof from Administrative Reviews in Part, and parts are included in the scope of the France, Germany, Italy, Japan, and the Intent To Revoke Order In Part, 75 FR orders. For unfinished parts, such parts United Kingdom. The reviews cover 22 26920 (May 13, 2010) (collectively, are included if they have been heat- manufacturers/exporters. The period of Preliminary Results). For these treated or if heat treatment is not review is May 1, 2008, through April 30, administrative reviews, the period of required to be performed on the part. 2009. review is May 1, 2008, through April 30, Thus, the only unfinished parts that are Based on our analysis of the 2009. not covered by the orders are those that comments received, we have made We invited interested parties to will be subject to heat treatment after changes, including corrections of certain comment on the Preliminary Results. importation. The ultimate application of programming and other ministerial We received case and rebuttal briefs a bearing also does not influence errors, in the margin calculations. from various parties to the proceedings. whether the bearing is covered by the Therefore, the final results are different No hearing was requested. orders. Bearings designed for highly from the preliminary results for certain The Department has conducted these specialized applications are not companies. The final weighted-average administrative reviews in accordance excluded. Any of the subject bearings, dumping margins for the reviewed firms with section 751 of the Tariff Act of regardless of whether they may are listed below in the section entitled 1930, as amended (the Act). ultimately be utilized in aircraft, ‘‘Final Results of the Reviews.’’ We have automobiles, or other equipment, are Scope of the Orders also determined that myonic GmbH, a within the scope of the orders. firm which is subject to the order on The products covered by the orders For a list of scope determinations ball bearings and parts thereof from are ball bearings and parts thereof. which pertain to the orders, see the Germany, is the successor-in-interest to These products include all antifriction ‘‘Memorandum to Laurie Parkhill’’ the pre-acquisition myonic GmbH. bearings that employ balls as the rolling regarding scope determinations for the Finally, we are announcing our element. Imports of these products are 2008/2009 reviews, dated April 21, revocation of the order on ball bearings classified under the following 2010, which is on file in the Central and parts thereof from the United categories: antifriction balls, ball Records Unit (CRU) of the main Kingdom in part with respect to subject bearings with integral shafts, ball Department of Commerce building, merchandise exported and/or sold by bearings (including radial ball bearings) room 1117, in the General Issues record Barden/Schaeffler UK 1 to the United and parts thereof, and housed or (A–100–001). States. mounted ball bearing units and parts DATES: Effective Date: September 1, thereof. Analysis of the Comments Received 2010. Imports of these products are All issues raised in the case briefs by FOR FURTHER INFORMATION CONTACT: classified under the following parties to these administrative reviews Thomas Schauer or Richard Rimlinger, Harmonized Tariff Schedule of the of the antidumping duty orders on ball AD/CVD Operations, Office 5, Import United States (HTSUS) subheadings: bearings and parts thereof are addressed Administration, International Trade 3926.90.45, 4016.93.10, 4016.93.50, in the ‘‘Issues and Decision Administration, U.S. Department of 6909.19.50.10, 8431.20.00, Memorandum’’ (Decision Memorandum) Commerce, 14th Street and Constitution 8431.39.00.10, 8482.10.10, 8482.10.50, from Edward C. Yang, Acting Deputy Avenue, NW., Washington, DC 20230; 8482.80.00, 8482.91.00, 8482.99.05, Assistant Secretary for Antidumping telephone: (202) 482–0410 or (202) 482– 8482.99.35, 8482.99.25.80, and Countervailing Duty Operations, to 4477, respectively. 8482.99.65.95, 8483.20.40, 8483.20.80, Ronald K. Lorentzen, Deputy Assistant 8483.30.40, 8483.30.80, 8483.50.90, Secretary for Import Administration, SUPPLEMENTARY INFORMATION: 8483.90.20, 8483.90.30, 8483.90.70, dated concurrently with this notice, Background 8708.50.50, 8708.60.50, 8708.60.80, which is hereby adopted by this notice. On April 28, 2010, the Department of 8708.93.30, 8708.93.60.00, 8708.99.06, A list of the issues which parties have Commerce (the Department) published 8708.99.31.00, 8708.99.40.00, raised and to which we have responded 8708.99.49.60, 8708.99.58, is in the Decision Memorandum and 1 The Barden Corporation (UK) Limited/ 8708.99.80.15, 8708.99.80.80, attached to this notice as an Appendix. Schaeffler Group (UK) Limited. 8803.10.00, 8803.20.00, 8803.30.00, The Decision Memorandum, which is a

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public document, is on file in the CRU merchandise to the United States during Preliminary Results, we have of the main Department of Commerce the period of review as permitted under determined to apply the simple average building, Room 1117, and is accessible section 777A(c)(2) of the Act. For a of the margins we calculated for the on the Web at http://ia.ita.doc.gov/frn/ detailed discussion on the selection of selected companies to the companies index.html. The paper copy and the respondents for individual not selected for individual examination electronic version of the Decision examination, see Preliminary Results, 75 in the Japan proceeding. Memorandum are identical in content. FR at 22385. For the final results, we have not changed the basis of the rate Changes Since the Preliminary Results Revocation of Order in Part we applied to respondents not selected Based on our analysis of comments In the Preliminary Results, we for individual examination. With received and based on our own analysis preliminarily determined that Barden/ respect to the sole company not selected of the Preliminary Results, we have Schaeffler UK qualifies for revocation in the Germany proceeding, however, made revisions that have changed the from the order on ball bearings and we have used publicly available ranged results for certain companies. We have parts thereof from the United Kingdom sales values submitted by myonic GmbH corrected programming and ministerial pursuant to 19 CFR 351.222(b)(2)(i). and Schaeffler KG to calculate a errors in the margins we included in the Accordingly, in accordance with 19 CFR weighted-average margin to assign to Preliminary Results, where applicable. 351.222(b)(2)(ii), we preliminarily SKF GmbH instead of assigning the A detailed discussion of each correction determined to revoke the order with simple-average margin calculated using we made is in the company-specific respect to ball bearings and parts thereof the margins we determined for myonic analysis memoranda dated concurrently from the United Kingdom exported and/ GmbH and Schaeffler KG, as announced with this notice, which are on file in the or sold by Barden/Schaeffler UK to the in the Preliminary Results. For a CRU of the main Department of United States. discussion of this issue, see the Decision Commerce building, Room 1117. We have received comments Memorandum at Comment 1. See also concerning our intent to revoke the the memorandum to the file, dated Final Results of the Reviews order on ball bearings and parts thereof concurrently with this notice, entitled We determine that the following from the United Kingdom exported and/ ‘‘Ball Bearings and Parts Thereof from percentage weighted-average dumping or sold by Barden/Schaeffler UK to the Germany: Final Calculation of the margins on ball bearings and parts United States. See the Decision Margin for Respondent Not Selected for thereof exist for the period May 1, 2008, Memorandum at Comment 4 for further ’’ Individual Examination on the record through April 30, 2009: discussion of this issue. In accordance of the Germany proceeding (A–428– with 19 CFR 351.222(b)(2)(ii), we are 801). Margin revoking the order on ball bearings and Our calculation of the final margin for Company (percent) parts thereof from the United Kingdom the sole non-selected company in the exported and/or sold by Barden/ Germany administrative review FRANCE Schaeffler UK to the United States, represents a change in our practice effective May 1, 2009. concerning the margin applicable to SKF France S.A...... 6.86 companies not selected for individual Microturbo SAS ...... 6.86 Final Results of Changed- examination in an administrative review Circumstances Review GERMANY of an antidumping duty order. In In the Preliminary Results, we situations where we cannot apply our myonic GmbH ...... 21.72 preliminarily determined that myonic normal methodology of calculating a Schaeffler KG ...... 2.16 GmbH is the successor-in-interest to the weighted-average margin due to SKF GmbH ...... 6.59 pre-acquisition myonic GmbH and requests to protect business-proprietary invited interested parties to comment. information but where use of a simple ITALY We received no comments from average does not yield the best proxy of SKF Industrie S.p.A...... 13.04 interested parties. For the reasons we the weighted-average margin relative to Schaeffler Italia S.r.l...... 1.98 stated in the Preliminary Results and publicly available data, normally we because we received no comments to will use the publicly available figures as JAPAN the contrary from interested parties, we a matter of practice in future cases. continue to determine that the post- With respect to the Japan proceeding, Aisin Seiki Company, Ltd...... 10.97 acquisition myonic GmbH is the one company selected for individual JTEKT Corporation ...... 10.97 successor-in-interest to the pre- examination used the indexing method Makino Milling Machine Com- acquisition myonic GmbH. permitted under 19 CFR 351.304(c) in pany Limited ...... 10.97 the public version of its response to our Mazda Motor Corporation ...... 10.97 Consequently, we will instruct U.S. Nachi-Fujikoshi Corporation ..... 10.97 Customs and Border Protection (CBP) to request for information concerning the Nissan Motor Company, Ltd. .... 10.97 continue to apply the cash-deposit rate quantity and value of U.S. sales during NSK Ltd...... 8.48 in effect for myonic GmbH to all entries the period of review. Therefore, unlike NTN Corporation ...... 13.46 of the subject merchandise from myonic in the Germany proceeding where Sapporo Precision, Inc., and GmbH that were entered, or withdrawn public, ranged data are available for all Tokyo Precision, Inc...... 10.97 from warehouse, for consumption on or of the companies that were selected for Univance Corporation ...... 10.97 after the date of publication of these individual examination, similar Yamazaki Mazak Trading Cor- final results of changed-circumstances information is not available for all such poration ...... 10.97 companies in the Japan proceeding. review. UNITED KINGDOM Accordingly, we cannot calculate a Rates for Non-Selected Companies weighted-average margin to consider The Barden Corporation (UK) Based on our analysis of the responses applying to the non-selected Limited/Schaeffler Group and our available resources, we selected respondents in the Japan proceeding as (UK) Limited ...... 0.00 certain companies for individual we have calculated for the Germany NSK Bearings Europe Ltd...... 10.04 examination of their sales of the subject proceeding. Instead, as explained in the SKF (UK) Limited ...... 10.04

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Margin each of that importer’s entries under the rate for all other manufacturers or Company (percent) relevant order during the review period. exporters will continue to be the all- See 19 CFR 351.212(b). others rate for the relevant order made Timken UK Ltd. and Timken effective by the final results of reviews Cash-Deposit Requirements Aerospace UK Ltd...... 10.04 published on July 26, 1993. See Final To calculate the cash-deposit rate for Results of Antidumping Duty Assessment Rates each respondent, i.e., each exporter and/ Administrative Reviews and Revocation The Department shall determine, and or manufacturer included in these in Part of an Antidumping Duty Order, CBP shall assess, antidumping duties on reviews, we divided the total dumping 58 FR 39729 (July 26, 1993). For ball all appropriate entries. In accordance margins for each company by the total bearings and parts thereof from Italy, see with 19 CFR 351.212(b)(1), we have net value of that company’s sales of Antifriction Bearings (Other Than calculated, whenever possible, an merchandise during the period of Tapered Roller Bearings) and Parts exporter/importer- (or customer-) review subject to each order. Thereof From France, et al.; Final specific assessment rate or value for To derive a single deposit rate for Results of Antidumping Duty merchandise subject to these reviews as each respondent, we weight-averaged Administrative Reviews and Partial described below. the EP and CEP deposit rates (using the Termination of Administrative Reviews, The Department clarified its EP and CEP, respectively, as the 61 FR 66472, 66521 (December 17, ‘‘automatic assessment’’ regulation on weighting factors). To accomplish this 1996). These rates are the all-others May 6, 2003. This clarification will when we sampled CEP sales (see rates from the relevant less-than-fair- apply to entries of subject merchandise Preliminary Results, 75 FR at 22385), we value investigations. These deposit during the period of review produced by first calculated the total dumping requirements shall remain in effect until companies selected for individual margins for all CEP sales during the further notice. examination in the reviews for which period of review by multiplying the Notifications the reviewed companies did not know sample CEP margins by the ratio of total their merchandise was destined for the days in the period of review to days in This notice also serves as a final United States. In such instances, we will the sample weeks. We then calculated a reminder to importers of their instruct CBP to liquidate unreviewed total net value for all CEP sales during responsibility under 19 CFR 351.402(f) entries at the country-specific all-others the period of review by multiplying the to file a certificate regarding the rate if there is no rate for the sample CEP total net value by the same reimbursement of antidumping duties intermediate company(ies) involved in ratio. Finally, we divided the combined prior to liquidation of the relevant the transaction. For a full discussion of total dumping margins for both EP and entries during this review period. this clarification, see Antidumping and CEP sales by the combined total value Failure to comply with this requirement Countervailing Duty Proceedings: of both EP and CEP sales to obtain the could result in the Department’s Assessment of Antidumping Duties, 68 deposit rate. presumption that reimbursement of FR 23954 (May 6, 2003). We will direct CBP to collect the antidumping duties occurred and the For the companies which were not resulting percentage deposit rate against subsequent assessment of doubled selected for individual examination, we the entered customs value of each of the antidumping duties. will instruct CBP to apply the rates exporter’s entries of subject This notice also serves as a reminder listed above to all entries of subject merchandise entered, or withdrawn to parties subject to administrative merchandise produced and/or exported from warehouse, for consumption on or protective order (APO) of their by such firms. after the date of publication of this responsibility concerning the We intend to issue liquidation notice. Entries of parts incorporated into disposition of proprietary information instructions to CBP 15 days after finished bearings before sales to an disclosed under APO in accordance publication of these final results of unaffiliated customer in the United with 19 CFR 351.305(a)(3). Timely reviews. States will receive the respondent’s notification of the destruction of APO deposit rate applicable to the order. materials or conversion to judicial Export Price Furthermore, the following deposit protective order is hereby requested. With respect to export-price (EP) requirements will be effective upon Failure to comply with the regulations sales, we divided the total dumping publication of this notice of final results and the terms of an APO is a margins (calculated as the difference of administrative reviews for all sanctionable violation. between normal value and EP) for each shipments of subject merchandise We are issuing and publishing these exporter’s importer or customer by the entered, or withdrawn from warehouse, results in accordance with sections total number of units the exporter sold for consumption on or after the date of 751(a)(1) and 777(i) of the Act. to that importer or customer. We will publication, as provided by section Dated: August 26, 2010. direct CBP to assess the resulting per- 751(a)(1) of the Act: (1) The cash- Ronald K. Lorentzen, deposit rates for the reviewed unit dollar amount against each unit of Deputy Assistant Secretary for Import merchandise in each of that importer’s/ companies will be the rates shown Administration. customer’s entries under the relevant above; (2) for previously reviewed or order during the review period. investigated companies not listed above, Appendix the cash-deposit rate will continue to be Constructed Export Price 1. Rate Selection for SKF Germany. the company-specific rate published for 2. SKF’s Bearing Kits. For constructed export-price (CEP) the most recent period; (3) if the 3. Short-Term U.S. Interest Rate for sales, we divided the total dumping exporter is not a firm covered in these Inventory-Carrying Costs. margins for the reviewed sales by the reviews, a prior review, or the less-than- 4. Barden’s Request for Revocation. total entered value of those reviewed fair-value investigations but the 5. Deduction of CEP Profit. 6. Freight and Packing Revenue Offset sales for each importer. We will direct manufacturer is, the cash-deposit rate Caps. CBP to assess the resulting percentage will be the rate established for the most 7. Importer-Specific Assessment Rates. margin against the entered customs recent period for the manufacturer of 8. 15–Day Issuance of Liquidation values for the subject merchandise on the merchandise; (4) the cash-deposit Instructions.

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9. Zeroing of Negative Margins. concurrently with this notice its notice in its Procedures for Conducting Five- [FR Doc. 2010–21839 Filed 8–31–10; 8:45 am] of Institution of Five-Year Review which Year (‘‘Sunset’’) Reviews of Antidumping BILLING CODE 3510–DS–P covers the same orders. and Countervailing Duty Orders, 63 FR DATES: Effective Date: September 1, 13516 (March 20, 1998) and 70 FR 2010. 62061 (October 28, 2005). Guidance on DEPARTMENT OF COMMERCE methodological or analytical issues FOR FURTHER INFORMATION CONTACT: The relevant to the Department’s conduct of International Trade Administration Department official identified in the Initiation of Review section below at Sunset Reviews is set forth in the Initiation of Five-Year (‘‘Sunset’’) AD/CVD Operations, Import Department’s Policy Bulletin 98.3 Review Administration, International Trade —Policies Regarding the Conduct of Five-Year (‘‘Sunset’’) Reviews of AGENCY: Import Administration, Administration, U.S. Department of Commerce, 14th Street and Constitution Antidumping and Countervailing Duty International Trade Administration, Orders; Policy Bulletin, 63 FR 18871 Department of Commerce. Avenue, NW., Washington, DC 20230. For information from the Commission (April 16, 1998). SUMMARY: In accordance with section 751(c) of the Tariff Act of 1930, as contact Mary Messer, Office of Initiation of Review amended (‘‘the Act’’), the Department of Investigations, U.S. International Trade Commerce (‘‘the Department’’) is Commission at (202) 205–3193. In accordance with 19 CFR automatically initiating a five-year SUPPLEMENTARY INFORMATION: 351.218(c), we are initiating the Sunset review (‘‘Sunset Review’’) of the Review of the following antidumping Background antidumping duty orders listed below. duty orders: The International Trade Commission The Department’s procedures for the (‘‘the Commission’’) is publishing conduct of Sunset Reviews are set forth

DOC Case No. ITC Case No. Country Product Department conctact

A–580–807 ...... 731–TA–459 ..... South Korea ..... Polyethylene Terephthalate (PET) Film (3rd Dana Mermelstein, (202) 482–1391. Review). A–588–702 ...... 731–TA–376 ..... Japan ...... Stainless Steel Butt-Weld Pipe Fittings (3rd Dana Mermelstein, (202) 492–1391. Review). A–580–813 ...... 731–TA–563 ..... South Korea ..... Stainless Steel Butt-Weld Pipe Fittings (3rd Dana Mermelstein, (202) 492–1391. Review). A–583–816 ...... 731–TA–564 ..... Taiwan ...... Stainless Steel Butt-Weld Pipe Fittings (3rd Dana Mermelstein, (202) 492–1391. Review).

Filing Information protective order (‘‘APO’’) immediately If we receive an order-specific notice following publication in the Federal of intent to participate from a domestic As a courtesy, we are making Register of this notice of initiation by interested party, the Department’s information related to Sunset Review filing a notice of intent to participate. regulations provide that all parties proceedings, including copies of the The Department’s regulations on wishing to participate in the Sunset pertinent statute and Department’s submission of proprietary information Review must file complete substantive regulations, the Department schedule responses not later than 30 days after for Sunset Reviews, a listing of past and eligibility to receive access to business proprietary information under the date of publication in the Federal revocations and continuations, and Register of this notice of initiation. The current service lists, available to the APO can be found at 19 CFR 351.304– 306. required contents of a substantive public on the Department’s Internet response, on an order-specific basis, are Web site at the following address: Information Required From Interested set forth at 19 CFR 351.218(d)(3). Note http://ia.ita.doc.gov/sunset/. All Parties that certain information requirements submissions in these Sunset Reviews differ for respondent and domestic must be filed in accordance with the Domestic interested parties defined in parties. Also, note that the Department’s Department’s regulations regarding section 771(9)(C), (D), (E), (F), and (G) of information requirements are distinct format, translation, service, and the Act and 19 CFR 351.102(b)) wishing from the Commission’s information certification of documents. These rules to participate in a Sunset Review must requirements. Please consult the can be found at 19 CFR 351.303. respond not later than 15 days after the Department’s regulations for Pursuant to 19 CFR 351.103(d), the date of publication in the Federal information regarding the Department’s Department will maintain and make Register of this notice of initiation by conduct of Sunset Reviews.1 Please available a service list for these filing a notice of intent to participate. consult the Department’s regulations at proceedings. To facilitate the timely See 19 CFR 351.218(d)(1)(i). The 19 CFR part 351 for definitions of terms preparation of the service list(s), it is required contents of the notice of intent and for other general information requested that those seeking recognition to participate are set forth at 19 CFR as interested parties to a proceeding 351.218(d)(1)(ii). In accordance with the 1 In comments made on the interim final sunset contact the Department in writing Department’s regulations, if we do not regulations, a number of parties stated that the proposed five-day period for rebuttals to within 10 days of the publication of the receive a notice of intent to participate substantive responses to a notice of initiation was Notice of Initiation. from at least one domestic interested insufficient. This requirement was retained in the Because deadlines in Sunset Reviews party by the 15-day deadline, the final sunset regulations at 19 CFR 351.218(d)(4). As can be very short, we urge interested Department will automatically revoke provided in 19 CFR 351.302(b), however, the Department will consider individual requests to parties to apply for access to proprietary the order without further review. See 19 extend that five-day deadline based upon a showing information under administrative CFR 351.218(d)(1)(iii). of good cause.

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concerning antidumping and of the public may call this number and DEPARTMENT OF COMMERCE countervailing duty proceedings at the listen to the meeting. Written public Department. comments should be submitted to National Oceanic and Atmospheric This notice of initiation is being Captain John E. Lowell, Jr., Designated Administration published in accordance with section Federal Officer (DFO), by September 13, RIN 0648–XY59 751(c) of the Act and 19 CFR 351.218 2010. (c). Dated: August 27, 2010. Schedules for Atlantic Shark Dated: August 23, 2010. John Lowell, Identification Workshops and Edward C. Yang, Director, Office of Coast Survey, National Protected Species Safe Handling, Acting Deputy Assistant Secretary for Ocean Service, National Oceanic and Release, and Identification Workshops Antidumping and ountervailing Duty Atmospheric Administration. AGENCY: Operations. National Marine Fisheries [FR Doc. 2010–21882 Filed 8–31–10; 8:45 am] Service (NMFS), National Oceanic and [FR Doc. 2010–21847 Filed 8–31–10; :45 am] BILLING CODE 3510–JE–P Atmospheric Administration (NOAA), BILLING CODE 3510–DS–P Commerce. DEPARTMENT OF COMMERCE ACTION: Notice of public workshops. DEPARTMENT OF COMMERCE SUMMARY: Free Atlantic Shark National Oceanic and Atmospheric Identification Workshops and Protected National Oceanic and Atmospheric Administration Administration Species Safe Handling, Release, and National Sea Grant Advisory Board Identification Workshops will be held in Hydrographic Services Review Panel October, November, and December of Meeting AGENCY: National Oceanic and 2010. Certain fishermen and shark dealers are required to attend a AGENCY: National Ocean Service, Atmospheric Administration, Commerce. workshop to meet regulatory National Oceanic and Atmospheric requirements and maintain valid Administration (NOAA), Department of ACTION: Notice of cancellation of public permits. Specifically, the Atlantic Shark Commerce. meeting. Identification Workshop is mandatory ACTION: Notice of public meeting (via for all federally permitted Atlantic shark teleconference call) on September 17, SUMMARY: This notice sets forth the dealers. The Protected Species Safe 2010. cancellation of a forthcoming meeting of Handling, Release, and Identification the Sea Grant Advisory Board. SUMMARY: The Hydrographic Services Workshop is mandatory for vessel Review Panel (HSRP), a Federal DATES: The 8/30/10 meeting has been owners and operators who use bottom Advisory Committee, will be holding a cancelled and will be rescheduled. longline, pelagic longline, or gillnet public meeting via teleconference on Public notification of the new date will gear, and who have also been issued September 17, 2010. The purpose of the be made in the Federal Register and the shark or swordfish limited access meeting is to discuss and on vote on NSGO Web site (http:// permits. Additional free workshops will proposed revisions to an updated www.seagrant.noaa.gov). be held in 2011. version of HSRP’s Special Report DATES: The Atlantic Shark Identification entitled, ‘‘HSRP Most Wanted ADDRESSES: N/A. Workshops will be held October 7, Hydrographic Services Improvements FOR FURTHER INFORMATION CONTACT: Mr. October 14, November 3, and December 2007.’’ Jim Murray, National Sea Grant College 2, 2010. Date and Time: The teleconference Program, National Oceanic and The Protected Species Safe Handling, will commence at 2 p.m. Eastern Atmospheric Administration, 1315 East- Release, and Identification Workshops Daylight Time on Friday, September 17, West Highway, Room 11837, Silver will be held October 20, October 27, 2010, and will end on or about 3 p.m. Spring, Maryland 20910, (301)734– November 10, November 17, December Public Participation: The 1070. 15, and December 22, 2010. teleconference will be open to the See SUPPLEMENTARY INFORMATION for public and the last 15 minutes will be SUPPLEMENTARY INFORMATION: The further details. set aside for oral or written comments. Board, which consists of a balanced ADDRESSES: The Atlantic Shark FOR FURTHER INFORMATION CONTACT: representation from academia, industry, Identification Workshops will be held in Captain John E. Lowell, Jr., Designated state government and citizens groups, Bohemia, NY; South Daytona, FL; Federal Official (DFO), or Kathy was established in 1976 by section 209 Madeira Beach, FL; and Charleston, SC. Watson, HSRP Program Coordinator, of the Sea Grant Improvement Act (Pub. The Protected Species Safe Handling, Office of Coast Survey, National Ocean L. 94–461, 33 U.S.C. 1128). The Board Release, and Identification Workshops Service (NOS), NOAA (N/CS), 1315 East advises the Secretary of Commerce and will be held in Panama City, FL; Kitty West Highway, Silver Spring, Maryland the Director of the National Sea Grant Hawk, NC; Warwick, RI; Gulfport, MS; 20910; Telephone: (301) 713–2770 x158; College Program with respect to Ronkonkoma, NY; and Port St. Lucie, Fax: (301) 713–4019; E-mail: operations under the Act, and such FL. [email protected] or visit other matters as the Secretary refers to See SUPPLEMENTARY INFORMATION for the NOAA HSRP Web site at http:// them for review and advice. further details on workshop locations. www.nauticalcharts.noaa.gov/ocs/hsrp/ Dated: August 26, 2010. FOR FURTHER INFORMATION CONTACT: hsrp.htm. Mark E. Brown, Richard A. Pearson by phone:(727) 824– SUPPLEMENTARY INFORMATION: This Chief Financial Officer, Office of Oceanic and 5399, or by fax:(727) 824–5398. teleconference is available to the public Atmospheric Research, National Oceanic and SUPPLEMENTARY INFORMATION: The through the following, toll free call-in Atmospheric Administration. workshop schedules, registration number: 1–866–658–4142; participant [FR Doc. 2010–21814 Filed 8–31–10; 8:45 am] information, and a list of frequently passcode: 8479431. Interested members BILLING CODE 3510–KA–P asked questions regarding these

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workshops are posted on the Internet at: Registration certificate before either of the permits http://www.nmfs.noaa.gov/sfa/hms/ To register for a scheduled Atlantic will be issued. Approximately 94 free workshops/. Shark Identification Workshop, please Protected Species Safe Handling, Release, and Identification Workshops Atlantic Shark Identification contact Eric Sander at have been conducted since 2006. Workshops [email protected] or at (386) 852– 8588. In addition to certifying vessel Since January 1, 2008, Atlantic shark owners, at least one operator on board dealers have been prohibited from Registration Materials vessels issued a limited-access receiving, purchasing, trading, or To ensure that workshop certificates swordfish or shark permit that uses bartering for Atlantic sharks unless a are linked to the correct permits, longline or gillnet gear is required to valid Atlantic Shark Identification participants will need to bring specific attend a Protected Species Safe Workshop certificate is on the premises items to the workshop: Handling, Release, and Identification of each business listed under the shark • Atlantic shark dealer permit holders Workshop and receive a certificate. dealer permit which first receives must bring proof that the attendee is an Vessels that have been issued a limited- Atlantic sharks (71 FR 58057; October 2, owner or agent of the business (such as access swordfish or shark permit and 2006). Dealers who attend and articles of incorporation), a copy of the that use longline or gillnet gear may not successfully complete a workshop are applicable permit, and proof of fish unless both the vessel owner and issued a certificate for each place of identification. operator have valid workshop business that is permitted to receive • Atlantic shark dealer proxies must certificates onboard at all times. The sharks. These certificate(s) are valid for bring documentation from the permitted certificate(s) are valid for 3 years. As 3 years. Approximately 48 free Atlantic dealer acknowledging that the proxy is such, vessel operators who have not Shark Identification Workshops have attending the workshop on behalf of the already attended a workshop and been conducted since January 2007. permitted Atlantic shark dealer for a received a NMFS certificate, or vessel Currently permitted dealers may send specific business location, a copy of the operators whose certificate(s) will a proxy to an Atlantic Shark appropriate valid permit, and proof of expire prior to their next fishing trip, Identification Workshop. However, if a identification. must attend a workshop to operate a dealer opts to send a proxy, the dealer Workshop Objectives vessel with swordfish and shark must designate a proxy for each place of limited-access permits that uses with The Atlantic Shark Identification business covered by the dealer’s permit longline or gillnet gear. which first receives Atlantic sharks. Workshops are designed to reduce the Only one certificate will be issued to number of unknown and improperly Workshop Dates, Times, and Locations identified sharks reported in the dealer each proxy. A proxy must be a person 1. October 20, 2010, 9 a.m. - 5 p.m., reporting form and increase the who is currently employed by a place of Holiday Inn Select, 2001 Martin Luther accuracy of species-specific dealer- business covered by the dealer’s permit; King Boulevard, Panama City, FL 32405. reported information. Reducing the is a primary participant in the 2. October 27, 2010, 9 a.m. - 5 p.m., identification, weighing, and/or first number of unknown and improperly identified sharks will improve quota Hilton Garden Inn, 5353 N. Virginia receipt of fish as they are offloaded from Dare Trail, Kitty Hawk, NC 27949. a vessel; and who fills out dealer monitoring and the data used in stock 3. November 10, 2010, 9 a.m. - 5 p.m., reports. Atlantic shark dealers are assessments. These workshops will train Hilton Garden Inn, 1 Thurber Street, prohibited from renewing a Federal shark dealer permit holders or their Warwick, RI 02886. shark dealer permit unless a valid proxies to properly identify Atlantic 4. November 17, 2010, 9 a.m. - 5 p.m., Atlantic Shark Identification Workshop shark carcasses. Magnolia Plantation, 16391 Robinson certificate for each business location Protected Species Safe Handling, Road, Gulfport, MS 39503. which first receives Atlantic sharks has Release, and Identification Workshops been submitted with the permit renewal 5. December 15, 2010, 9 a.m. - 5 p.m., application. Additionally, trucks or Since January 1, 2007, shark limited- Holiday Inn, 3845 Veterans Memorial other conveyances which are extensions access and swordfish limited-access Highway, Ronkonkoma, NY 11779. of a dealer’s place of business must permit holders who fish with longline 6. December 22, 2010, 9 a.m. - 5 p.m., possess a copy of a valid dealer or proxy or gillnet gear have been required to Holiday Inn, 10120 S. Federal Highway Atlantic Shark Identification Workshop submit a copy of their Protected Species (US 1), Port St. Lucie, FL 34952. Safe Handling, Release, and certificate. Registration Identification Workshop certificate in Workshop Dates, Times, and Locations order to renew either permit (71 FR To register for a scheduled Protected 1. October 7, 2010, 12 p.m. - 4 p.m., 58057; October 2, 2006). These Species Safe Handling, Release, and La Quinta Inn (at MacArthur Airport)- certificate(s) are valid for 3 years. As Identification Workshop, please contact Room B, 10 Aero Road, Bohemia, NY such, vessel owners who have not Angler Conservation Education at (386) 11716. already attended a workshop and 682–0158. received a NMFS certificate, or vessel 2. October 14, 2010, 12 p.m. - 4 p.m., Registration Materials Piggotte Community Center, 504 Big owners whose certificate(s) will expire Tree Road, South Daytona, FL 32119. prior to the next permit renewal, must To ensure that workshop certificates 3. November 3, 2010, 12 p.m. - 4 p.m., attend a workshop to fish with, or are linked to the correct permits, Madeira Beach Town Hall, 300 renew, their swordfish and shark participants will need to bring specific Municipal Drive, Madeira Beach, FL limited-access permits. Additionally, items with them to the workshop: 33708. new shark and swordfish limited-access • Individual vessel owners must 4. December 2, 2010, 12 p.m. - 4 p.m., permit applicants who intend to fish bring a copy of the appropriate Center for Coastal Environmental Health with longline or gillnet gear must attend swordfish and/or shark permit(s), a copy and Biomolecular Research Auditorium, a Protected Species Safe Handling, of the vessel registration or 219 Fort Johnson Road, Charleston, SC Release, and Identification Workshop documentation, and proof of 29412. and submit a copy of their workshop identification.

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• Representatives of a business DEPARTMENT OF COMMERCE electronic files in Microsoft Word, owned or co-owned vessel must bring WordPerfect, or Microsoft Excel. proof that the individual is an agent of Economic Development Administration Applicants are strongly encouraged to the business (such as articles of start early and not to wait until the [Docket No.: 1008270400–0400–01] incorporation), a copy of the applicable approaching deadline before logging on and reviewing the application swordfish and/or shark permit(s), and Space Coast Regional Innovation instructions at http://www.grants.gov. proof of identification. Cluster Competition Applicants must register (which can • Vessel operators must bring proof of AGENCY: Economic Development take between three to five business days identification. Administration (EDA), Department of or as long as four weeks if all steps are Workshop Objectives Commerce. not completed correctly), designate one ACTION: Notice and request for or more Authorized Organizational The Protected Species Safe Handling, applications. Representatives (AOR) and ensure that Release, and Identification Workshops an AOR submits the application, and are designed to teach longline and SUMMARY: This notice announces the verify that the submission was gillnet fishermen the required upcoming availability of funding for the successful. Applicants should save and techniques for the safe handling and Space Coast Regional Innovation Cluster print written proof of an electronic release of entangled and/or hooked (RIC) Competition under EDA’s submission made at http:// protected species, such as sea turtles, Economic Adjustment Assistance (EAA) www.grants.gov. If problems occur, the marine mammals, and smalltooth Program. EDA solicits competitive applicant is advised to (a) print any sawfish. In an effort to improve applications to catalyze the error message received, and (b) call the reporting, the proper identification of advancement of Central Florida’s key http://www.grants.gov. Contact Center at protected species will also be taught at regional industry clusters. Additional 1–800–518–4726 for assistance. The these workshops. Additionally, information can be found at the Space following link lists useful resources: individuals attending these workshops Coast RIC Web site at http:// http://www.grants.gov/help/help.jsp. Also, the following link lists frequently will gain a better understanding of the www.eda.gov/SpaceCoastRIC. Applicants are advised to read carefully asked questions (FAQs): http:// requirements for participating in these the Federal funding opportunity (FFO) www.grants.gov/applicants/ fisheries. The overall goal of these announcement for the Space Coast RIC resources.jsp#faqs. If you do not find an workshops is to provide participants Competition. For a copy of the FFO, answer to your question under the with the skills needed to reduce the please see the Web sites listed below ‘‘Applicant FAQs,’’ try consulting the mortality of protected species, which under ‘‘Electronic Access.’’ ‘‘Applicant User Guide’’ or contacting may prevent additional regulations on DATES: To be considered timely, a http://www.grants.gov via e-mail at these fisheries in the future. completed application must be [email protected] or telephone at Grandfathered Permit Holders transmitted to and time-stamped at 1–800–518–4726. In addition, please http://www.grants.gov no later than 5 read carefully section IV.E. of the FFO Participants in the industry-sponsored p.m. Eastern Time on October 15, 2010. to ensure your application is received workshops on safe handling and release Any application time-stamped after 5 by EDA and for the alternative of sea turtles that were held in Orlando, p.m. Eastern Time on October 15, 2010, submission method in case of systems FL (April 8, 2005), and in New Orleans, will be considered non-responsive and issues at http://www.grants.gov. LA (June 27, 2005), were issued a will not be considered for funding. EDA FOR FURTHER INFORMATION CONTACT: For NOAA workshop certificate in will conduct an informational additional information or for a paper December 2006 that was valid for 3 teleconference for prospective Space copy of the FFO, contact Philip Trader years. These workshop certificates have Coast RIC Competition applicants at 2 by telephone at 404–730–3017 or via expired. Vessel owners and operators p.m. Eastern Time on September 8, e-mail at [email protected]. whose certificates expire prior to the 2010. For more information on the SUPPLEMENTARY INFORMATION: next permit renewal or fishing trip must teleconference, please see the section Program Information: The Space attend a workshop, successfully titled ‘‘Informational Teleconference’’ Coast RIC Competition is a fast-track complete the course, and obtain a new below and section IV.F. of the FFO. competitive grant process led by EDA, certificate in order to fish with or renew Winning applicants should expect to an agency within the U.S. Department of their limited-access shark and limited- receive awards in January 2011, subject Commerce (DOC). The goal of this access swordfish permits. Failure to to the availability of appropriations. competition is to identify and fund provide a valid NOAA workshop Application Submission promising job creation and economic Requirements: Applications must be certificate could result in a permit development initiatives aligned with submitted electronically in accordance regional cluster and competitiveness denial. with the instructions provided at analyses to sustain the coordinated Dated: August 27, 2010. http://www.grants.gov. EDA will not economic development and Carrie Selberg, accept facsimile transmissions of diversification of Florida’s Space Coast Acting Director, Office Sustainable Fisheries, applications and will accept e-mail region. Only applications that EDA National Marine Fisheries Service. transmission only in case of http:// determines have successfully [FR Doc. 2010–21832 Filed 8–31–10; 8:45 am] www.grants.gov systems issues as demonstrated this nexus will be provided in section IV.E. of the FFO. considered responsive under the Space BILLING CODE 3510–22–S Applicants may access the application Coast RIC Competition. package by following the instructions EDA will coordinate this competition provided at http://www.grants.gov. The with members of the Presidential preferred electronic file format for Taskforce on Space Industry Workforce attachments is portable document and Economic Development, including format (PDF); however, EDA will accept the National Aeronautics and Space

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Administration (NASA), the Small designed to respond adaptively to transfer and commercialization project Business Administration (SBA), the pressing economic recovery issues and may allow for one to three years for Department of Labor (DOL), and other is well suited to help address the completion of the scope of work. EDA agencies, to leverage federal resources challenges faced by Florida’s Space expects that all projects will proceed and expertise for the benefit of Space Coast region. Assistance can support the expeditiously. Coast RIC Competition winners. development of a strategy to alleviate The project period and funding The culmination of the Space Shuttle economic dislocation or support amounts for this competition are subject Program poses significant economic strategy implementation projects, such to the availability of funds at the time challenges for Florida’s Space Coast as innovation infrastructure, of award, as well as to DOC and EDA region. However, the region is entrepreneurial development support priorities at the time of award. The DOC connected to a tremendous range of investments, and revolving loan funds and EDA will not be held responsible economic assets that can serve as the (RLFs). EDA encourages the submission for application preparation costs. foundation for future business activity. of applications focused on the Publication of this notice does not The region’s local economic development and implementation of obligate DOC or EDA to award any development organizations, in long-term, regionally based, specific grant or cooperative agreement coordination with Federal, State, and collaborative economic development or to obligate all or any part of available local officials; Space Shuttle Program strategies. In addition, EDA will regard funds. Although EDA expects to make contractors; and other key stakeholders, applications for innovation grant awards, EDA may choose to make have worked collaboratively to develop infrastructure that are substantively awards via cooperative agreements strategies for retaining aerospace supported by such a strategy as more based on the anticipated amount of workers in the region. Investing in RICs competitive and worthy of funding than interaction between EDA and the is anticipated to promote a cohesive and applications for infrastructure that are recipient during the project period. reinforcing network of economic not so supported. Statutory Authority: The authority for activity. A strategic plan developed by EDA strongly encourages applicants the EAA Program is section 209 of Enterprise Florida, a public-private to review the full report of the PWEDA (42 U.S.C. 3149). EDA’s partnership charged with promoting Presidential Task Force on Space regulations, which will govern an award State-wide economic development, Industry Workforce and Economic made under the Space Coast RIC identified eight significant economic Development, which may be accessed, Competition, are codified at 13 CFR clusters, five of which this competition along with other materials, at http:// chapter III. The regulations and PWEDA focuses on as having the potential to www.nasa.gov/offices/ are accessible at http://www.eda.gov/ sustain and spur economic growth in spacecoasttaskforce/home/index.html. InvestmentsGrants/Lawsreg.xml. the Space Coast region: More information on EDA and its Catalog of Federal Domestic (1) Aviation and Aerospace, programs may be found at http:// Assistance (CFDA) Number: 11.307, (2) Cleantech, www.eda.dov and EDA’s Space Coast Economic Adjustment Assistance. (3) Homeland Security/Defense, RIC webpage at http://www.eda.gov/ Applicant Eligibility: Pursuant to (4) Information Technology, and SpaceCoastRIC. PWEDA, eligible applicants for and (5) Life Sciences. Electronic Access: The FFO for the recipients of EDA investment assistance Please see Enterprise Florida’s full Space Coast RIC Competition is include a District Organization; an strategy entitled ‘‘Roadmap to Florida’s available at http://www.grants.gov and Indian Tribe or a consortium of Indian Future,’’ which is available at http:// at http://www.eda.gov. EDA has created Tribes; a State; a city or other political www.eflorida.com. a Web page with additional information subdivision of a State, including a These promising RICs offer on the competition at http:// special purpose unit of a State or local tremendous opportunities to not only www.eda.gov/SpaceCoastRIC. government engaged in economic or retain the Space Coast region’s current Funding Availability: For FY 2011, infrastructure development activities, or workforce, but to accelerate the EDA anticipates allocating $35,000,000 a consortium of political subdivisions; diversification of the regional economy. for the Space Coast RIC Competition. an institution of higher education or a These industry clusters capitalize on the Funding for this competition has been consortium of institutions of higher region’s powerful and unique economic included in the Administration’s FY education; and a public or private non- assets. By encouraging applicants to 2011 budget request and is contingent profit organization or association. think of creative and workable ways to upon Congressional approval. Awards Cost Sharing Requirement: In general, improve the region’s economy, the under this competition will be made projects may be eligible for up to an 80 Space Coast RIC Competition is pursuant to grant or cooperative percent Federal share, but as noted designed to catalyze the advancement of agreements, and award funds are below, the amount of local match Central Florida’s key RICs to drive anticipated to be available until committed will be a competitive factor. economic growth and job creation. This expended. EDA expects to award See section 204(a) of PWEDA (42 U.S.C. initiative will build on and complement applications that include significant 3144) and 13 CFR 301.4(b)(1). In the existing efforts and ensure collaboration public-private capital investment, and case of a(n) (i) Indian Tribe, (ii) State (or with public, private, and nonprofit individual awards may be as large as political subdivision of a State) that the partners in the region. Applicants are $10,000,000. Please note that if Congress Assistant Secretary determines has expected to leverage regional strengths, fails to provide the appropriation, EDA exhausted its effective taxing and capabilities, and competitive will cancel this competition and make borrowing capacity, or (iii) non-profit advantages. no awards. organization that the Assistant Secretary EDA’s EAA Program, under which Project periods are dependent on the determines has exhausted its effective EDA expects to fund the Space Coast nature of the proposed project and the borrowing capacity, the Assistant RIC Competition, can provide a wide scope of work. For example, the project Secretary has the discretion to establish range of technical, planning, and period for a construction project may a maximum EDA investment rate of up innovation infrastructure assistance, last for three or more years until to 100 percent of the total project cost. including technology transfer and construction is completed satisfactorily, See sections 204(c)(1) and (2) of PWEDA commercialization. The EAA Program is while a strategic planning or technology (42 U.S.C. 3144) and 13 CFR 301.4(b)(5).

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In the application review process, from the project, or is or will be located • One EDA Capacity Building EDA will consider the nature of the in an EDA-assisted building, port, Investments Additional Assurances contribution (cash or in-kind) and the facility, or industrial, commercial, or form (Exhibit D of ED 900) from each co- amount of the matching share funds. business park constructed or improved applicant; as applicable. EDA will give preference to applications in whole or in part with Investment • One Form CD–511 (Certification that include cash contributions (over in- Assistance prior to EDA’s final Regarding Lobbying) from each co- kind contributions) as the matching disbursement of funds. In smaller applicant, as applicable. share. While cash contributions are communities, EDA may extend this In addition, applicants may be preferred, in-kind contributions, policy to the relocation of 50 or more required to provide certain lobbying consisting of contributions of space, jobs. information using Form SF–LLL equipment, or services, or forgiveness or Application Requirements: Please (Disclosure of Lobbying Activities). Form assumptions of debt, may provide the read carefully section IV. of the FFO to ED–900 provides detailed guidance to required non-federal share of the total help ensure your application is help the applicant assess whether Form project cost. See section 204(b) of complete and timely received by EDA. SF–LLL is required and how to access PWEDA (42 U.S.C. 3144). EDA will It is the sole responsibility of the it. Please note that, if applicable, one fairly evaluate all in-kind contributions, applicant to ensure that the appropriate Form SF–LLL must be submitted for which must be eligible project costs and application package is complete and each co-applicant that has used or plans meet applicable federal cost principles transmitted to and time-stamped at to use non-Federal funds for lobbying in and uniform administrative http://www.grants.gov no later than 5 connection with this competition. In requirements. Funds from other federal p.m. Eastern Time on October 15, 2010. addition, all non-profit applicants and financial assistance awards are Construction Assistance: An applicant applicants that are first-time recipients considered matching share funds only if seeking assistance for a project with of EDA and/or DOC funding are authorized by statute, which may be construction components is required to required to provide required individual determined by EDA’s reasonable complete and submit the following: background screening forms (Form CD– interpretation of the statute. See 13 CFR • Form ED–900 (Application for 346) for a complete application, but 300.3. In addition, the applicant must Investment Assistance). One form per please note that EDA may require other show that the matching share is project is required. Please read the applicants to submit Form CD–346 as committed to the project for the entire paragraphs below under ‘‘Special well to comply with DOC requirements. project period, will be available as Instructions for Completing Form ED– EDA will inform applicants if this is needed, and is not conditioned or 900’’ carefully for important information required. Special Instructions for Completing encumbered in any way that precludes on submitting a complete Form ED–900. • Form ED–900: Because of the unique its use consistent with the requirements One Form SF–424 (Application for nature of this competition, applicants of EDA investment assistance. See 13 Federal Assistance) from each co- are advised that modifications to the CFR 301.5. applicant, as applicable. • Nonrelocation: Applicants are Form SF–424C (Budget general application instructions for advised that should an application be Information—Construction Programs). Form ED–900 are required for a selected for award, the recipient will be One form per project is required. complete application. • • The ‘‘Instructions for Electronic and required to adhere to a special award One Form SF–424D (Assurances— Hardcopy Formats’’ in Form ED–900 condition relating to EDA’s Construction Programs) from each co- inform applicants to complete the form nonrelocation policy as follows: applicant, as applicable. • One EDA Construction Investments in Adobe Acrobat Reader 8.1.1. or In signing this award of financial Additional Assurances form (Exhibit D higher. Please note that the technical assistance, Recipient(s) attests that EDA of Form ED–900) from each co- requirements of http://www.grants.gov funding is not intended by the Recipient to applicant, as applicable. have changed, and applicants should be assist its efforts to induce the relocation of • existing jobs that are located outside of its One Form CD–511 (Certification careful to ensure they have downloaded jurisdiction to within its jurisdiction in Regarding Lobbying) from each co- and installed Adobe Acrobat Reader competition with other jurisdictions for those applicant, as applicable. 8.1.3. (instead of 8.1.1.) to complete the same jobs. In the event that EDA determines Non-Construction Assistance: An application package. Adobe Acrobat that its assistance was used for those applicant seeking assistance for a Reader 8.1.3. may be downloaded at purposes, EDA retains the right to pursue project without construction http://www.grants.gov/help/ appropriate enforcement action in accord components is required to complete and download_software.jsp. with the Standard Terms and Conditions of submit the following: In addition, there are a number of the Award, including suspension of • Form ED–900 (Application for overall instructions and admonitions disbursements and termination of the award Investment Assistance). One form per given in Form ED–900 that Space Coast for convenience or cause. project is required. Please read the RIC Competition applicants should For purposes of ensuring that EDA paragraphs below under ‘‘Special disregard. Please read the instructions assistance will not be used to merely Instructions for Completing Form ED– listed below: transfer jobs from one location in the 900’’ carefully for important information • Applicants should disregard the United States to another, each applicant on submitting a complete Form ED–900. reference to hardcopy submission in must inform EDA of all employers that • One Form SF–424 (Application for Form ED–900. As noted in this notice, constitute primary beneficiaries of the Federal Assistance) from each co- the only method for application project assisted by EDA. EDA will applicant, as applicable. submission is through http:// consider an employer to be a ‘‘primary • Form SF–424A (Budget www.grants.gov. beneficiary’’ if the applicant estimates Information—Non-Construction • Space Coast RIC Competition that such employer will create or save Programs). One form per project is applicants also should disregard the 100 or more permanent jobs as a result required. statement in the ‘‘Note on EDA’s of the investment assistance, provided • One Form SF–424B (Assurances— Application Process’’ that advises that such employer also is specifically Non-Construction Programs) from each applicants that EDA will request the named in the application as benefiting co-applicant, as applicable. listed materials only after a project has

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been determined to merit ‘‘further • A preliminary engineering report For Revolving Loan Fund projects consideration.’’ (all required elements are listed in only, the following is required: For the Space Coast RIC Competition, section M.3. of Form ED–900; special • RLF Plan for the RLF’s financial all documentation that Form ED–900 formatting is not required). management. See EDA’s regulation at advises may be submitted at a later date • An environmental narrative that 13 CFR 307.9 for more information on must be submitted by the competition will enable EDA to comply with its requirements for RLF Plans. deadline stated above under DATES. National Environmental Policy Act For non-profit applicants only, the These items may be uploaded as (NEPA) responsibilities. An following are required: • attachments to the application package. environmental narrative outline that Certificate of good standing from The following list further details the details requires components may be the State in which the organization is accessed at http://www.eda.gov/PDF/ incorporated. required submissions for each type of • EDA project. single_app_narrrative_111008.pdf. A copy of the organization’s current Applicants should include Appendix A Articles of Incorporation and By-Laws. For all types of projects, the following • are required: to the environmental narrative signed by Resolution (or letter) from a general • Projects must be consistent with the each co-applicant, as applicable. purpose subdivision of State region’s Comprehensive Economic • Project sign-off/approval from U.S. government acknowledging that the Development Strategy (CEDS) or Army Corps of Engineers and the U.S. organization is acting in cooperation alternate EDA-approved strategic Fish and Wildlife Service, if applicable. with officials of that political Note the environmental narrative subdivision. planning document. See section A.3. of • Form ED–900, which requires instructions (provided in the link above) Form CD–346 (Applicant for applicants to identify the relevant plan. state that approval comments from Funding Assistance) for each key If EDA does not already have the regulatory agencies should be obtained individual of the non-profit, which applicable plan, the applicant may be and submitted as an attachment to the includes the executive director, project required to provide it. If you have any environmental narrative. If an applicant manager, chief financial manager, and questions about this requirement, please has initiated environmental review any other person or entity who has contact the agency contact listed above processes, but is unable to receive final authority to speak for and/or commit the under FOR FURTHER INFORMATION approval by the competition deadline, organization in the management of an CONTACT and in section VIII. of the FFO. EDA will accept a letter from the award and/or expend funds. • Letters of commitment to document applicable regulatory agency stating that Informational Teleconference: EDA non-EDA funding (see section A.9. of the project has conditional approval. In will hold an informational Form ED–900). such circumstances, EDA will include teleconference for the Space Coast RIC • Form CD–346 (Applicant for any conditions as part of the award. If Competition on September 8, 2010, at Funding Assistance) for each key the application does not include these 2 p.m. Eastern Time. This individual of the applicant and co- sign-off/approvals and EDA teleconference will be used to provide applicant organization(s), if the subsequently determines that these are general competition and application organization is a non-profit or is a first- required, the applicant will be required submission information and answer time recipient of EDA or DOC funding. to obtain and submit them after the participant questions. For construction projects only, the competition deadline. To ensure that enough incoming lines following are required: • Copies of any other environmental are available for each caller, interested • Maps of the project site (U.S. studies, if available. parties planning to participate on the Geological Survey (USGS) map(s) and • Comments from the State teleconference must register no later Federal Emergency Management Agency Clearinghouse in compliance with than 5 p.m. Eastern Time on September (FEMA) floodplain map (if applicable)) Executive Order 12372, 7, 2010. To register, please send an with project components and ‘‘Intergovernmental Review of Federal e-mail to [email protected] with beneficiaries noted (see section A.2. of Programs.’’ Detailed information on the ‘‘Space Coast RIC Competition Form ED–900). State Clearinghouse process can be Teleconference Registration’’ in the • Letters of commitment and accessed at http://www.dep.state.fl.us/ subject line, along with the names and assurances of compliance (Exhibit A to secretary/oip/state_clearinghouse/ addresses of the potential applicant(s). Form ED–900) from private beneficiaries manual2.htm. In addition, provide the name and title • of the proposed project (see section B.5. Documented approval from the of the telephone participant along with of Form ED–900). State Historic Preservation Officer the participant’s telephone number and • Comments from the metropolitan (SHPO), as applicable. Note that if the e-mail address. The telephone number area review/clearinghouse agency (see applicant has initiated the consultation and pass code for the teleconference section M.1. of Form ED–900). process, but the SHPO is unable to give will be provided upon receipt of • A legal opinion and other final approval by the competition registration. documentation, as necessary, verifying deadline, EDA will accept a letter from Please be advised that the the applicant’s answers to questions the SHPO stating that the project has informational teleconference will be regarding project ownership, operation, conditional approval or that the audio-taped and the actual recording (or maintenance, and management (see applicant has satisfactorily initiated the a transcript) is to be made available for section M.6. of Form ED–900). consultation process required under the benefit of prospective applicants • A legal opinion regarding any use of section 106 of the National Historic unable to participate. Prospective eminent domain. Applicants should Preservation Act. EDA, after compliance applicants who choose to participate in contact the agency contact listed above with requirements for consultation with the teleconference are deemed to under FOR FURTHER INFORMATION federally recognized Indian Tribes, may consent to the taping. A recording of the CONTACT and in section VIII. of the FFO require applicants to participate in teleconference may be accessed by for guidance on this requirement. Tribal consultation, as necessary. EDA calling 1–866–462–8979 and entering • Any lease(s) encumbering the will include any conditions from the the pass code 0908. This recording will project property, if applicable. The conditional approval or consultation be available between 6 p.m. Eastern applicant may provide lease copies. process as part of the award. Time on September 8, 2010, and 5 p.m.

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Eastern Time on October 16, 2010, the b. A determination that the rebuilding to become more competitive day after the competition deadline. application better meets the overall in the global economy. Intergovernmental Review: objectives of sections 2 and 209 of 6. Total Job Creation. Investments that Applications for assistance under EDA’s PWEDA (42 U.S.C. 3121 and 3149), demonstrate a clear, comprehensive, programs are subject to the State review c. A determination that the and effective strategy for the requirements imposed by Executive application is more responsive to recruitment, training, placement, and Order 12372, ‘‘Intergovernmental Review programmatic and/or policy retention of a skilled workforce. of Federal Programs.’’ considerations, 7. Implementation Schedule. Evaluation and Selection Procedures: d. The applicant’s non-compliance Investments with demonstrated capacity 1. Responsiveness Review. with statutory and regulatory to be implemented quickly and Staff in EDA’s Atlanta regional office, requirements, including PWEDA, EDA’s effectively, accelerating positive which serves the State of Florida, will regulations set out at 13 CFR chapter III, economic impacts. review all applications for and DOC regulations set out at 15 CFR 8. Feasibility of Budget and Value to the Federal Government. Investments responsiveness. Applications that are parts 14 or 24, as applicable, or that demonstrate a high degree of local ineligible for EDA funding or that do not e. The applicant’s performance under commitment through the amount and contain all forms and required previous federal financial assistance type of match committed. EDA also will documentation listed in section IV. of awards. evaluate the expected benefits of the the FFO may be deemed non-responsive If the Selecting Official makes a proposed scope of work in light of the and excluded from further selection out of order, he will document goals of this competition and the cost to consideration. EDA expects all the rationale for the decision in writing. the Federal Government. applicants to complete and include all The Selecting Official will submit his The Department of Commerce Pre- required forms and documentation. decision to EDA headquarters for review Award Notification Requirements for However, EDA reserves the right to before making the final selection. Grants and Cooperative Agreements: forward timely and otherwise complete Evaluation Criteria: The Interagency The administrative and national policy applications that may contain a non- Review Panel will evaluate applications requirements for all Department of substantive technical deficiency to the competitively based on the following Commerce awards, contained in the Interagency Review Panel for further criteria, which will be weighted equally: Department of Commerce Pre-Award consideration. In addition, staff in the 1. Collaborative Regional Innovation. Notification Requirements for Grants Atlanta Regional Office will conduct a Initiatives that support the development and Cooperative Agreements, published statutory and regulatory compliance and growth of Central Florida’s Aviation in the Federal Register on February 11, review for each responsive application and Aerospace, Cleantech, Homeland 2008 (73 FR 7696), are applicable to this and an initial merit review under the Security/Defense, Information competition. evaluation criteria set out below and in Technology, and Life Sciences industry Paperwork Reduction Act: This section V.A. of the FFO, both of which clusters. Initiatives must engage document contains collection-of- will be provided to the Interagency stakeholders; facilitate collaboration information requirements subject to the Review Panel. among urban, suburban and rural Paperwork Reduction Act (PRA). The 2. Interagency Federal Investment (including Tribal) areas; provide use of Form ED–900 (Application for Review Panel. stability for economic development Investment Assistance) has been Upon completion of the through long-term intergovernmental approved by the Office of Management responsiveness review, a Federal and public/private collaboration; and and Budget (OMB) under the Control interagency investment review panel support the growth of existing and Number 0610–0094. The use of Forms (Interagency Review Panel) that will be emerging industries. SF–424 (Application for Financial composed of senior officials from EDA 2. Public/Private Partnerships. Assistance), SF–424A (Budget and other federal agencies, which shall Investments that use both public and Information—Non-Construction include NASA, SBA, and DOL, will private sector resources and leverage Programs), SF–424B (Assurances—Non- review and evaluate all responsive complementary investments by other Construction Programs), SF–424C applications according to the criteria set government/public entities and/or non- (Budget Information—Construction out below. The Interagency Review profits. Programs), SF–424D (Assurances— Panel will either forward its ranked list 3. Global Competitiveness. Construction Programs), and Form SF– and any comments to the Selecting Investments that support high-growth LLL (Disclosure of Lobbying Activities) Official (defined below), or identify any businesses and innovation-based has been approved under OMB Control deficiencies in the review process and entrepreneurs to expand and compete in Numbers 4040–0004, 0348–0044, 4040– convene a new EDA responsiveness global markets. 0007, 4040–0008, 4040–0009, and 0348– review panel in the Atlanta Regional 4. Environmentally Sustainable 0046 respectively. The Form CD–346 Office to restart the selection process. Development. Investments that (Applicant for Funding Assistance) is 3. Selecting Official and Selecting encompass best practices in approved under OMB Control Number Factors. ‘‘environmentally sustainable 0605–0001. Notwithstanding any other Under this notice, the Regional development,’’ broadly defined, to provision of law, no person is required Director in the Atlanta Regional Office include projects that enhance to respond to, nor shall any person be is the Selecting Official. The Selecting environmental quality and develop and subject to a penalty for failure to comply Official may follow the implement green products, processes, with, a collection of information subject recommendations of the Interagency and buildings as part of the green to the requirements of the PRA unless Review Panel; however, the Selecting economy. that collection of information displays a Official retains the discretion not to 5. Economically Distressed and currently valid OMB Control Number. make a selection, or to select an Underserved Communities. Investments Executive Order 12866 (Regulatory application out of order for any of the that strengthen diverse communities Planning and Review): This notice has following reasons: that have suffered disproportionate been determined to be not significant for a. Availability of program funding, economic and job losses and/or are purposes of Executive Order 12866.

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Executive Order 13132 (Federalism): P. Michael Payne, Chief, Permits, any act of pursuit, torment, or annoyance It has been determined that this notice Conservation and Education Division, which (i) has the potential to injure a marine does not contain policies with Office of Protected Resources, National mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential Federalism implications as that term is Marine Fisheries Service, 1315 East- to disturb a marine mammal or marine defined in Executive Order 13132. West Highway, Silver Spring, MD mammal stock in the wild by causing Administrative Procedure Act/ 20910. A copy of the application may be disruption of behavioral patterns, including, Regulatory Flexibility Act: Prior notice obtained by writing to this address or by but not limited to, migration, breathing, and an opportunity for public comments telephoning the contact listed here and nursing, breeding, feeding, or sheltering are not required by the Administrative is also available at: http:// [Level B harassment]. Procedure Act or any other law for rules www.nmfs.noaa.gov/pr/permits/ Summary of Request concerning grants, benefits, and incidental.htm#applications. contracts (5 U.S.C. 553(a)(2)). Because On June 14, 2010, NMFS received an FOR FURTHER INFORMATION CONTACT: application from Excelerate Energy, LP notice and opportunity for comment are Shane Guan, Office of Protected not required pursuant to 5 U.S.C. 553 or (Excelerate) and Tetra Tech EC, Inc., on Resources, NMFS, (301) 713–2289, ext behalf of Northeast Gateway and any other law, the analytical 137. requirements of the Regulatory Algonquin for an authorization to take Flexibility Act (5 U.S.C. 601 et seq.) are SUPPLEMENTARY INFORMATION: 12 species of marine mammals by Level B harassment incidental to operations of inapplicable. Therefore, a regulatory Background flexibility analysis has not been an LNG port facility in Massachusetts Section 101(a)(5)(D) of the MMPA (16 prepared. Bay. Since LNG Port operation and U.S.C. 1371 (a)(5)(D)) directs the maintenance activities have the Dated: August 27, 2010. Secretary of Commerce to authorize, potential to take marine mammals, a Sean Cartwright, upon request, the incidental, but not marine mammal take authorization Chief of Staff. intentional, taking by harassment of under the MMPA is warranted. NMFS [FR Doc. 2010–21905 Filed 8–31–10; 8:45 am] small numbers of marine mammals of a has already issued a one-year incidental BILLING CODE 3510–24–P species or population stock, for periods harassment authorization for this of not more than one year, by United activity pursuant to section 101(a)(5)(D) States citizens who engage in a specified of the MMPA (74 FR 45613; September DEPARTMENT OF COMMERCE activity (other than commercial fishing) 3, 2009), which expires on August 31, within a specific geographic region if 2010. In order for Northeast Gateway National Oceanic and Atmospheric certain findings are made and a notice and Algonquin to continue their Administration of a proposed authorization is provided operations of the LNG port facility in RIN 0648–XX27 to the public for review. Massachusetts Bay, both companies are Authorization for incidental takings seeking a renewal of their IHA. Takes of Marine Mammals Incidental to shall be granted if NMFS finds that the Description of the Activity Specified Activities; Taking Marine taking will have a negligible impact on Mammals Incidental to Operations of a the species or stock(s), will not have an The Northeast Gateway Port is located Liquified Natural Gas Port Facility in unmitigable adverse impact on the in Massachusetts Bay and consists of a Massachusetts Bay availability of the species or stock(s) for submerged buoy system to dock subsistence uses (where relevant), and if specially designed LNG carriers AGENCY: National Marine Fisheries the permissible methods of taking and approximately 13 mi (21 km) offshore of Service (NMFS), National Oceanic and requirements pertaining to the Massachusetts in Federal waters Atmospheric Administration (NOAA), mitigation, monitoring and reporting of approximately 270 to 290 ft (82 to 88 m) Commerce. such takings are set forth. NMFS has in depth. This facility delivers regasified ACTION: Notice of issuance of an defined ‘‘negligible impact’’ in 50 CFR LNG to onshore markets via a 16.06-mi incidental harassment authorization. 216.103 as ‘‘ * * * an impact resulting (25.8-km) long, 24-in (61-cm) outside diameter natural gas pipeline lateral SUMMARY: In accordance with the from the specified activity that cannot (Pipeline Lateral) owned and operated regulations implementing the Marine be reasonably expected to, and is not by Algonquin and interconnected to Mammal Protection Act (MMPA) as reasonably likely to, adversely affect the Algonquin’s existing offshore natural amended, notification is hereby given species or stock through effects on gas pipeline system in Massachusetts that NMFS has issued an Incidental annual rates of recruitment or survival.’’ Section 101(a)(5)(D) of the MMPA Bay (HubLine). Harassment Authorization (IHA) to the established an expedited process by The Northeast Gateway Port consists Northeast Gateway Energy BridgeTM LP which citizens of the United States can of two subsea Submerged Turret (Northeast Gateway or NEG) and its apply for an authorization to Loading TM (STLJ TM) buoys, each with a partner, Algonquin Gas Transmission, incidentally take small numbers of flexible riser assembly and a manifold LLC (Algonquin), to incidentally harass, marine mammals by harassment. connecting the riser assembly, via a by Level B harassment only, small Section 101(a)(5)(D) establishes a 45-day steel flowline, to the subsea Pipeline numbers of marine mammals during time limit for NMFS review of an Lateral. Northeast Gateway utilizes operation of an offshore liquefied application followed by a 30-day public vessels from its current fleet of specially natural gas (LNG) facility in the notice and comment period on any designed Energy Bridge Regasification Massachusetts Bay for a period of 1 proposed authorizations for the Vessels TM (EBRVs TM), each capable of year. incidental harassment of marine transporting approximately 2.9 billion DATES: This authorization is effective mammals. Within 45 days of the close ft3 (82 million m 3) of natural gas from August 31, 2010, until August 30, of the comment period, NMFS must condensed to 4.9 million feet3 (138,000 2011. either issue or deny the authorization. m3) of LNG. Northeast Gateway would ADDRESSES: A copy of the application, Except with respect to certain also be adding vessels to its fleet that IHA, and a list of references used in this activities not pertinent here, the MMPA will have a cargo capacity of document may be obtained by writing to defines ‘‘harassment’’ as: approximately 151,000 cubic m 3. The

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mooring system installed at the Response: NMFS concurs with the and variable relevance to the well being Northeast Gateway Port is designed to Commission’s recommendation raised of the marine mammal; these can range handle both the existing vessels and any in the above comment, and extends the from temporary alert responses to active of the larger capacity vessels that may suspension requirement to any type of avoidance reactions such as vacating an come into service in the future. The injury, not just serious injury, if it could area at least until the noise event ceases; EBRVs would dock to the STL buoys, be attributable to LNG activities. (4) upon repeated exposure, a marine which would serve as both the single- mammal may exhibit diminishing Description of Marine Mammals in the point mooring system for the vessels responsiveness (habituation), or Area of the Specified Activities and the delivery conduit for natural gas. disturbance effects may persist; the Each of the STL buoys is secured to the Marine mammal species that latter is most likely with sounds that are seafloor using a series of suction potentially occur in the vicinity of the highly variable in characteristics, anchors and a combination of chain/ Northeast Gateway facility include infrequent and unpredictable in cable anchor lines. several species of cetaceans and occurrence, and associated with The proposed activity includes pinnipeds: situations that a marine mammal Northeast Gateway LNG Port operations • North Atlantic right whale perceives as a threat; (5) any and maintenance. A detailed (Eubalaena glacialis), anthropogenic noise that is strong description of these activities is • Humpback whale (Megaptera enough to be heard has the potential to provided in the Federal Register notice novaeangliae), reduce (mask) the ability of a marine • for the proposed IHA (75 FR 42071; July Fin whale (Balaenoptera physalus), mammal to hear natural sounds at • 20, 2010), and is not repeated here. Minke whale (B. acutorostrata), similar frequencies, including calls from • Long-finned pilot whale Comments and Responses conspecifics, and underwater (Globicephala melas), environmental sounds such as surf A notice of receipt and request for • Atlantic white-sided dolphin noise; (6) if mammals remain in an area public comment on the application and (Lagenorhynchus acutus), because it is important for feeding, proposed authorization was published • Bottlenose dolphin (Tursiops breeding or some other biologically on July 20, 2010 (75 FR 42071). During truncatus), important purpose even though there is the 30-day public comment period, • Common dolphin (Delphinus chronic exposure to noise, it is possible NMFS received comments from the delphis), that there could be noise-induced Marine Mammal Commission • Killer whale (Orcinus orca), physiological stress; this might in turn (Commission). • Harbor porpoise (Phocoena have negative effects on the well-being Comment 1: The Commission phocoena), recommends that NMFS include in the • Harbor seal (Phoca vitulina), and or reproduction of the animals involved; authorization and in any proposed • Gray seal (Halichoerus grypus). and (7) very strong sounds have the regulations issued by NMFS to govern General information on these marine potential to cause temporary or the activities during the subsequent mammal species can also be found in permanent reduction in hearing five-year period all marine mammal Wursig et al. (2000) and in the NMFS sensitivity. In terrestrial mammals, and mitigation, monitoring, and reporting Stock Assessment Reports (Waring et presumably marine mammals, received measures identified in NMFS Federal al., 2010). This latter document is sound levels must far exceed the Register notice (75 FR 42071; July 20, available at: http://www.nefsc.noaa.gov/ animal’s hearing threshold for there to 2010). publications/tm/tm213/. An updated be any temporary threshold shift (TTS) Response: NMFS concurs with the summary on several commonly sighted in its hearing ability. For transient Commission’s recommendation and will marine mammal species distribution sounds, the sound level necessary to include in the authorization and in any and abundance in the vicinity of the cause TTS is inversely related to the proposed regulations issued in the proposed action area is provided below. duration of the sound. Received sound future that govern activities during the Additional information on those species levels must be even higher for there to subsequent five-year period all marine that may be affected by this activity is be risk of permanent hearing mammal mitigation, monitoring, and provided in detail in the Federal impairment. In addition, intense reporting measures identified in the Register published on July 20, 2010 (75 acoustic (or explosive events) may cause Federal Register notice for the proposed FR 42071). trauma to tissues associated with organs IHA (75 FR 42071; July 20, 2010). vital for hearing, sound production, Furthermore, additional mitigation and Potential Effects of Noise on Marine respiration and other functions. This monitoring measures may be proposed Mammals trauma may include minor to severe if any proposed regulation issued in the Underwater noise from the LNG port hemorrhage. future covers LNG port repair activities operations is the only likely impact to There are three general categories of that are not addressed in this document. marine mammals in the vicinity of the sounds recognized by NMFS: Comment 2: The Commission proposed activity area. Continuous (such as shipping sounds), recommends that NMFS issue the IHA The effects of noise on marine intermittent (such as vibratory pile provided that NMFS requires the mammals are highly variable, and can driving sounds), and impulse. No applicants to halt activities and consult be categorized as follows (based on impulse noise activities, such as with NMFS regarding any seriously Richardson et al., 1995): (1) The noise blasting or standard pile driving, are injured or dead marine mammals when may be too weak to be heard at the associated with this project. The noise the injury or death may have resulted location of the animal (i.e., lower than sources of potential concern are from those activities and allow the prevailing ambient noise level, the regasification/offloading (which is a resumption of those activities only after hearing threshold of the animal at continuous sound) and dynamic steps to avoid additional serious injuries relevant frequencies, or both); (2) the positioning of vessels using thrusters or deaths have been implemented or noise may be audible but not strong (an intermittent sound) from EBRVs such takings have been authorized enough to elicit any overt behavioral during docking at the NEG port facility. under section 101(a)(5)(A) of the response; (3) the noise may elicit Based on research by Malme et al. MMPA. reactions of variable conspicuousness (1983; 1984), for both continuous and

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intermittent sound sources, Level B offloading could be the temporary and The basis for Northeast Gateway and harassment is presumed to begin at short-term displacement of seals and Algonquin’s ‘‘take’’ estimate is the received levels of 120-dB. A detailed whales from within the 120-dB zones number of marine mammals that would description of the noise that would ensonified by these noise sources. be exposed to sound levels in excess of result from the proposed LNG Port Animals would be expected to re- 120 dB. For the NEG port facility operations is provided in the Federal occupy the area once the noise ceases. operations, the take estimates are Register notice for the final IHA Although accidental oil spill/leaks determined by multiplying the area of authorizing take incidental to the initial from EBRVs or a ship strike could the EBRV’s ZOI (21 km2) by local construction and operations of the NEG potentially occur as a result of the marine mammal density estimates, LNG Port facility and Pipeline Lateral in specified activity, NMFS considers corrected to account for 50 percent more 2007 (72 FR 27077; May 14, 2007). these events unlikely. Regarding ship marine mammals that may be strikes, there are mitigation and underwater, and then multiplying by NEG Port Activities monitoring measures (see Mitigation the estimated LNG container ship visits Underwater noise generated at the Measures section below) required by the per year. In the case of data gaps, a NEG Port has the potential to result IHA that should further reduce the conservative approach was used to from two distinct actions, including already low probability of a ship strike. ensure the potential number of takes is closed-loop regasification of LNG and/or Regarding the likelihood of spills or not underestimated, as described next. EBRV maneuvering during coupling and leaks, the waterway within the NMFS used data on cetacean decoupling with STL buoys. To evaluate Massachusetts Bay has few hazards for distribution within Massachusetts Bay, the potential for these activities to result vessels transiting the area compared to such as those published by the National in underwater noise that could harass less navigated waters; an accident that Centers for Coastal Ocean Science marine mammals, Excelerate conducted might result in a spill or leak is (NCCOS, 2006), to estimate potential field sound survey studies during unlikely. Additionally, each vessel takes of marine mammals species in the periods of March 21 to 25, 2005 and maintains an adequate supply of oil vicinity of project area. The NCCOS August 6 to 9, 2006 while the EBRV spill containment equipment for study used cetacean sightings from two Excelsior was both maneuvering and onboard oil spills. The vessel is sources: (1) The North Atlantic Right moored at the operational Gulf Gateway contracted to and drills with a certified Whale Consortium (NARWC) sightings Port located 116 mi (187 km) offshore in Oil Spill Response Organization by the database held at the University of Rhode the Gulf of Mexico (the Gulf) (see International Maritime Organization to Island (Kenney, 2001); and (2) the Appendices B and C of the NEG and respond in the unlikely event of an oil Manomet Bird Observatory (MBO) Algonquin application). EBRV spill that cannot be contained on board database, held at NMFS Northeast maneuvering conditions included the the vessel. At this time, there has never Fisheries Science Center (NEFSC). The use of both stern and bow thrusters been a spill from an LNG port facility. NARWC data contained survey efforts required for dynamic positioning during NMFS does not think that take of and sightings data from ship and aerial coupling. These data were used to marine mammals is likely to result from surveys and opportunistic sources model underwater sound propagation at accidental oil spils, leaks or ship strikes between 1970 and 2005. The main data the NEG Port. The pertinent results of as a result of this activity. Therefore, contributors included: Cetacean and the field survey are provided as these potential impacts are not Turtles Assessment Program (CETAP), underwater sound source pressure addressed further, and take from these Canadian Department of Fisheries and levels as follows: impacts will not be authorized. Oceans, Provincetown Center for • Sound levels during closed-loop Coastal Studies (PCCS), International Estimates of Take by Harassment regasification ranged from 104 to 110 Fund for Animal Welfare, NOAA’s decibel linear (dBL). Maximum levels Although Northeast Gateway stated NEFSC, New England Aquarium, Woods during steady state operations were 108 that the ensonified area of 120-dB Hole Oceanographic Institution, and the dBL. isopleths by EBRV’s decoupling would University of Rhode Island. A total of • Sound levels during coupling be less than 1 km 2 as measured in the 653,725 km (406,293 mi) of survey track operations were dominated by the Gulf of Mexico in 2005, due to the lack and 34,589 cetacean observations were periodic use of the bow and stern of more recent sound source verification provisionally selected for the NCCOS thrusters and ranged from 160 to 170 and the lack of source measurement in study in order to minimize bias from dBL. Massachusetts Bay, NMFS uses a more uneven allocation of survey effort in Figures 1–1 and 1–2 of the NEG and conservative spreading model to both time and space. The sightings-per- Algonquin’s revised MMPA permit calculate the 120 dB isopleth received unit-effort (SPUE) was calculated for all application present the net acoustic sound level. This model was also used cetacean species by month covering the impact of one EBRV operating at the to establish the 120-dB zone of southern Gulf of Maine study area, NEG Port. Thrusters are operated influence (ZOI) for the previous IHAs which also includes the project area intermittently and only for relatively issued to Northeast Gateway. In the (NCCOS, 2006). short durations of time. The resulting vicinity of the LNG Port, where the The MBO’s Cetacean and Seabird area within the 120 dB isopleth is less water depth is about 80 m (262 ft), the Assessment Program (CSAP) was than 1 km 2 with the linear distance to 120-dB radius is estimated to be 2.56 km contracted from 1980 to 1988 by NMFS the isopleths extending 430 m (1,411 ft). (1.6 mi) maximum from the sound NEFSC to provide an assessment of the The area within the 180 dB isopleths source during dynamic positioning for relative abundance and distribution of safety zone is very localized and will the container ship, making a maximum cetaceans, seabirds, and marine turtles not extend beyond the immediate area ZOI of 21 km 2 (8.1 mi 2). For a shallow in the shelf waters of the northeastern where EBRV coupling operations are water depth (40 m or 131 ft) United States (MBO, 1987). The CSAP occurring. representative of the northern segment program was designed to be completely The potential impacts to marine of the Algonquin Pipeline Lateral, the compatible with NMFS NEFSC mammals associated with sound 120-dB radius is estimated to be 3.31 km databases so that marine mammal data propagation from vessel movements, (2.06 mi); the associated ZOI is 34 km 2 could be compared directly with anchors, chains and LNG regasification/ (13.1 mi 2). fisheries data throughout the time series

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during which both types of information individual animals could be ‘‘taken’’ by Daily removal of sea water from EBRV were gathered. A total of 5,210 km harassment multiple times, these intakes will reduce the food resources (8,383 mi) of survey distance and 636 percentages are the upper boundary of available for planktivorous organisms. cetacean observations from the MBO the animal population that could be Water usage would be limited to the data were included in the NCCOS affected. Therefore, the actual number of standard requirements of NEG’s normal analysis. Combined valid survey effort individual animals being exposed or support vessel. As with all vessels for the NCCOS studies included 567,955 taken would be far less. There is no operating in Massachusetts Bay, sea km (913,840 mi) of survey track for danger of injury, death, or hearing water uptake and discharge is required small cetaceans (dolphins and impairment from exposure to these to support engine cooling, typically porpoises) and 658,935 km (1,060,226 noise levels. using a once-through system. The rate of mi) for large cetaceans (whales) in the In addition, bottlenose dolphins, seawater uptake varies with the ship’s southern Gulf of Maine. The NCCOS common dolphins, killer whales, harbor horsepower and activity and therefore study then combined these two data sets porpoises, harbor seals, and gray seals will differ between vessels and activity by extracting cetacean sighting records, could also be taken by Level B type. For example, the Gateway updating database field names to match harassment as a result of deepwater Endeavor is a 90-foot vessel powered the NARWC database, creating geometry LNG port operations. The numbers of with a 1,200 horsepower diesel engine to represent survey tracklines and estimated take of these species are not with a four-pump seawater cooling applying a set of data selection criteria available because they are rare in the system. This system requires seawater designed to minimize uncertainty and project area. The population estimates intake of about 68 gallons per minute bias in the data used. of these marine mammal species and (gpm) while idling and up to about 150 Owing to the comprehensiveness and stock in the west North Atlantic basin gpm at full power. Use of full power is total coverage of the NCCOS cetacean are 81,588; 120,743; 89,054; 99,340; and generally required for transit. A distribution and abundance study, 195,000 for bottlenose dolphins, conservatively high estimate of vessel NMFS calculated the estimated take of common dolphins, harbor porpoises, activity for the Gateway Endeavor marine mammals based on the most and harbor seals, respectively (Waring et would be operation at idle for 75% of recent NCCOS report published in al., 2010). No population estimate is the time and full power for 25% of the December 2006. For a detailed available for the North Atlantic stock of time. During routine activities this description and calculation of the killer whales and gray seals; however, would equate to approximately 42,480 cetacean abundance data and sighting their occurrence within the proposed gallons of seawater per 8-hour work day. per unit effort (SPUE), please refer to the project area is rare. Since the When compared to the engine cooling NCCOS study (NCCOS, 2006). These Massachusetts Bay represents only a requirements of an EBRV over an 8-hour data show that the relative abundance of small fraction of the west North Atlantic period (approximately 17.62 million North Atlantic right, fin, humpback, basin where these animals occur, and gallons), the Gateway Endeavor uses minke, and pilot whales, and Atlantic these animals do not congregate in the about 0.2% of the EBRV requirement. white-sided dolphins for all seasons, as vicinity of the project area, NMFS To put this water use into context, the calculated by SPUE in number of believes that only relatively small Project’s final EIS/EIR concluded that animals per square kilometer, is 0.0082, numbers of these marine mammal the impacts to fish populations and to 0.0097, 0.0265, 0.0059, 0.0407, and species would be potentially affected by marine mammals that feed on fish or 0.1314 n/km, respectively. the Northeast Gateway LNG deepwater plankton resulting from water use by an In calculating the area density of these project. EBRV during port operations species from these linear density data, (approximately 39,780,000 gallons over Potential Impact on Habitat NMFS used 0.4 km (0.25 mi), which is each 8-day regasification period) would a quarter the distance of the radius for Approximately 4.8 acres of seafloor be minor. Water use by support vessels visual monitoring (see Monitoring and has been converted from soft substrate during routine port activities would not Mitigation section below), as a to artificial hard substrate. The soft- materially add to the overall impacts conservative hypothetical strip width bottom benthic community may be evaluated in the final EIS/EIR. (W). Thus the area density (D) of these replaced with organisms associated with Additionally, discharges associated with species in the project area can be naturally occurring hard substrate, such the Gateway Endeavor and/or other obtained by the following formula: as sponges, hydroids, bryozoans, and support/maintenance vessels that are 79 D = SPUE/2W. associated species. The benthic feet or greater in length are now Based on this calculation method, the community in the up to 43 acres (worst regulated under the Clean Water Act estimated take numbers per year for case scenario based on severe 100-year (CWA) and must receive and comply North Atlantic right, fin, humpback, storm with EBRVs occupying both STL with the United States Environmental minke, sei, and pilot whales, and buoys) of soft bottom that may be swept Protection Agency (EPA) Vessel General Atlantic white-sided dolphins by the by the anchor chains while EBRVs are Permit (VGP). The permit incorporates NEG Port facility operations, which is docked will have limited opportunity to the USCG mandatory ballast water an average of 65 visits by LNG container recover, so this area will experience a management and exchange standards, ships to the project area per year (or long-term reduction in benthic and provides technology- and water approximately 1.25 visits per week), productivity. In addition, disturbance quality-based effluent limits for other operating the vessels’ thrusters for from anchor chain movement would types of discharges, including deck dynamic positioning before offloading result in increased turbidity levels in runoff, bilge water, graywater, and other natural gas, corrected for 50 percent the vicinity of the buoys that could pollutants. It also establishes specific underwater, are 21, 25, 68, 15, 11, 104, affect prey species for marine mammals; corrective actions, inspection and and 336, respectively. These numbers however, as indicated in the Final monitoring requirements, and represent a maximum of 6.08, 1.09, 8.01, Environmental Impact Statement/ recordkeeping and reporting 0.46, 2.78, 0.39, and 0.53 percent of the Environmental Impact Report (EIS/EIR), requirements for each vessel. populations for these species, these impacts are expected to be Massachusetts Bay circulation will not respectively. Since it is very likely that indirect and minor. be altered, so plankton will be

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continuously transported into the NEG occurred. Nevertheless, NMFS does not limited to 10 knots or less). At 1.86 mi Port area. The removal of these species consider that the sporadic exposure of (3 km) from the NEG port, speed will be is minor and unlikely to affect in a marine mammals to continuous sound reduced to 3 knots, and to less than 1 measurable way the food sources received levels above 120 dB by a single knot at 1,640 ft (500 m) from the buoy. available to marine mammals. EBRV would have acute or chronic (4) EBRVs will reduce transit speed to significant affects on these animals in Monitoring and Mitigation Measures 10 knots or less over ground from March the vicinity of the LNG port facility. 1–April 30 in all waters bounded by During the construction and These MARUs will remain deployed straight lines connecting the following operations of the NEG LNG Port facility during the time frame of this IHA in points in the order stated below. This in prior years, Northeast Gateway order to obtain information during the area is known as the Off Race Point complied with IHA requirements and operational phase of the Port facility Seasonal Management Area (SMA) and submitted reports on marine mammal (see below). tracks NMFS regulations at 50 CFR sightings in the area. While it is difficult For the proposed NEG LNG port 224.105: to draw biological conclusions from operations, NMFS proposes the 42°30′00.0″ N—069°45′00.0″ W; these reports, NMFS can make some following monitoring and mitigation thence to 42°30′00.0″ N—070°30′00.0″ general conclusions. Data gathered by measures. W; thence to 42°12′00.0″ N— MMOs is generally useful to indicate the ° ′ ″ ° ′ ″ Marine Mammal Observers 070 30 00.0 W; thence to 42 12 00.0 presence or absence of marine mammals N—070°12′00.0″ W; thence to (often to a species level) within the For activities related to the NEG LNG 42°04′56.5″ N—070°12′00.0″ W; thence safety zones (and sometimes without) port operations, all individuals onboard along charted mean high water line and and to document the implementation of the EBRVs responsible for the inshore limits of COLREGS limit to a mitigation measures. Though it is by no navigation and lookout duties on the latitude of 41°40′00.0″ N; thence due means conclusory, it is worth noting vessel must receive training prior to east to 41°41′00.0″ N—069°45′00.0″ W; that no instances of obvious behavioral assuming navigation and lookout duties, thence back to starting point. disturbance as a result of Northeast a component of which will be training (5) EBRVs will reduce transit speed to Gateway’s activities were observed by on marine mammal sighting/reporting 10 knots or less over ground from April the MMOs. and vessel strike avoidance measures. 1–July 31 in all waters bounded by In addition, Northeast Gateway was Crew training of EBRV personnel will straight lines connecting the following required to maintain an array of Marine stress individual responsibility for points in the order stated below. This Autonomous Recording Units (MARUs) marine mammal awareness and area is also known as the Great South to monitor calling North Atlantic right reporting. Channel SMA and tracks NMFS whales (humpback, fin, and minke If a marine mammal is sighted by a whale calls were also able to be regulations at 50 CFR 224.105: crew member, an immediate notification ° ′ ″ ° ′ ″ detected). The Bioacoustics Research 42 30 00.0 N—69 45 00.0 W; will be made to the Person-in-Charge on ° ′ ″ ° ′ ″ Program (BRP) of Cornell University 41 40 00.0 N—69 45 00.0 W; board the vessel and the Northeast Port ° ′ ″ ° ′ ″ analyzed the data and submitted a 41 00 00.0 N—69 05 00.0 W; Manager, who will ensure that the ° ′ ″ ° ′ ″ report covering the operations of the 42 09 00.0 N—67 08 24.0 W; required vessel strike avoidance ° ′ ″ ° ′ ″ project between January and December 42 30 00.0 N—67 27 00.0 W; and measures and reporting procedures are ° ′ ″ ° ′ ″ 2008. During the operations period, followed. 42 30 00.0 N—69 45 00.0 W. right whales were acoustically detected (6) LNG Regasification Vessels on only 1,982 of the 136,776 total hours Vessel Strike Avoidance (LNGRVs) are not expected to transit sampled (1.45% of recorded hours). (1) All EBRVs approaching or Cape Cod Bay. However, in the event Right whales were detected hourly departing the port will comply with the transit through Cape Cod Bay is throughout the year, but were more Mandatory Ship Reporting (MSR) required, LNGRVs will reduce transit commonly detected in the late February system to keep apprised of right whale speed to 10 knots or less over ground through June period. sightings in the vicinity. Vessel from January 1–May 15 in all waters in The Cornell’s BRP performed acoustic operators will also receive active Cape Cod Bay, extending to all analyses on background noise of all detections from an existing passive shorelines of Cape Cod Bay, with a recordings from the MARUs. A acoustic array prior to and during transit northern boundary of 42°12′00.0″ N comparison of the noise metrics derived through the northern leg of the Boston latitude. from these analyses before, during, and Traffic Separation Scheme (TSS) where (7) A vessel may operate at a speed after operations activities revealed the buoys are installed. necessary to maintain safe maneuvering increases in noise level during (2) In response to active right whale speed instead of the required ten knots operations. A comparison of noise levels sightings (detected acoustically or only if justified because the vessel is in from areas including and near areas of reported through other means such as an area where oceanographic, known operations activities with levels the MSR or Sighting Advisory System hydrographic and/or meteorological from other areas showed increased noise (SAS)), and taking into account safety conditions severely restrict the levels for areas that included or were and weather conditions, EBRVs will maneuverability of the vessel and the near the known operations activities. take appropriate actions to minimize the need to operate at such speed is These increases in noise levels were risk of striking whales, including confirmed by the pilot on board or, evident for each of the three frequency reducing speed to 10 knots or less and when a vessel is not carrying a pilot, the bands utilized by fin, humpback, and alerting personnel responsible for master of the vessel. If a deviation from right whales, with the greatest increase navigation and lookout duties to the ten-knot speed limit is necessary, in the right whale band and the next concentrate their efforts. the reasons for the deviation, the speed highest increase in the humpback whale (3) EBRVs will maintain speeds of 12 at which the vessel is operated, the band. However, the BRP report did not knots or less while in the TSS until latitude and longitude of the area, and provide an interpretation of this overall reaching the vicinity of the buoys the time and duration of such deviation increase in noise conditions throughout (except during the seasons and areas shall be entered into the logbook of the the period when operations activities defined below, when speed will be vessel. The master of the vessel shall

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attest to the accuracy of the logbook Oceanographic Institution (WHOI) as Northeast Gateway’s proposed port entry by signing and dating it. the consultants for developing, operation and maintenance activities, implementing, collecting, and analyzing and none are authorized by NMFS. Research Passive Acoustic Monitoring the acoustic data; reporting; and Additionally, animals in the area are not (PAM) Program maintaining the acoustic monitoring anticipated to incur any hearing Northeast Gateway shall monitor the system. impairment (i.e., TTS or PTS), as the noise environment in Massachusetts Further information detailing the modeling of source levels indicates Bay in the vicinity of the NEG Port deployment and operation of arrays of none of the source received levels using an array of 19 Marine 19 passive seafloor acoustic recording exceeds 180 dB (rms). Autonomous Recording Units (MARUs) units (MARUs) centered on the terminal While some of the species occur in that were deployed initially in April site and the 10 ABs that are to be placed the proposed project area year-round, 2007 to collect data during the at approximately 5-m (8.0-km) intervals some species only occur in the area preconstruction and active construction within the recently modified TSS can be during certain seasons. Sei whales are phases of the NEG Port and Algonquin found in the Marine Mammal Detection, only anticipated in the area during the Pipeline Lateral. A description of the Monitoring, and Response Plan spring. Therefore, if shipments and/or MARUs can be found in Appendix A of included as Appendix A of the NEG and maintenance activities occur in other the NEG and Algonquin application. Algonquin application. seasons, the likelihood of sei whales These 19 MARUs will remain in the being affected is quite low. Humpback Reporting same configuration during full operation and minke whales are not expected in of the NEG Port. The MARUs collect The Project area is within the the project area in the winter. During archival noise data and are not designed Mandatory Ship Reporting Area the winter, a large portion of the North to provide real-time or near-real-time (MSRA), so all vessels entering and Atlantic right whale population occurs information about vocalizing whales. exiting the MSRA will report their in the southeastern U.S. calving grounds Rather, the acoustic data collected by activities to WHALESNORTH. During (i.e., South Carolina, Georgia, and the MARUs shall be analyzed to all phases of the Northeast Gateway northern Florida). The fact that certain document the seasonal occurrences and LNG Port operations, sightings of any activities will occur during times when overall distributions of whales injured or dead marine mammals will certain species are not commonly found (primarily fin, humpback, and right be reported immediately to the USCG or in the area will help reduce the amount whales) within approximately 10 NMFS, regardless of whether the injury of Level B harassment for these species. nautical miles of the NEG Port, and or death is caused by project activities. Many animals perform vital functions, shall measure and document the noise An annual report on marine mammal such as feeding, resting, traveling, and ‘‘budget’’ of Massachusetts Bay so as to monitoring and mitigation will be socializing, on a diel cycle (24-hr cycle). eventually assist in determining submitted to NMFS Office of Protected Behavioral reactions to noise exposure whether an overall increase in noise in Resources and NMFS Northeast (such as disruption of critical life the Bay associated with the NEG Port Regional Office within 90 days after the functions, displacement, or avoidance of might be having a potentially negative expiration of an LOA. The annual report important habitat) are more likely to be impact on marine mammals. The overall shall include data collected for each significant if they last more than one intent of this system is to provide better distinct marine mammal species diel cycle or recur on subsequent days information for both regulators and the observed in the project area in the (Southall et al., 2007). Consequently, a general public regarding the acoustic Massachusetts Bay during the period of behavioral response lasting less than footprint associated with long-term LNG facility operation. Description of one day and not recurring on operation of the NEG Port in marine mammal behavior, overall subsequent days is not considered Massachusetts Bay, and the distribution numbers of individuals observed, particularly severe unless it could of vocalizing marine mammals during frequency of observation, and any directly affect reproduction or survival NEG Port activities. In addition to the 19 behavioral changes and the context of (Southall et al., 2007). Operational MARUs, Northeast Gateway will deploy the changes relative to operation activities are not anticipated to occur at 10 Auto-Detection Buoys (Abs) within activities shall also be included in the the Port on consecutive days. In the TSS for the operational life of the annual report. addition, Northeast Gateway EBRVs are NEG Port. A description of the ABs is expected to make 65 port calls provided in Appendix A of NEG and Negligible Impact and Small Numbers throughout the year, with thruster use Algonquin’s application. The purpose of Analysis and Determination needed for only a few hours. Therefore, the ABs shall be to detect a calling NMFS has defined ‘‘negligible impact’’ Northeast Gateway will not be creating North Atlantic right whale an average of in 50 CFR 216.103 as ‘‘* * * an impact increased sound levels in the marine 5 nm (9.26 km) from each AB (detection resulting from the specified activity that environment for prolonged periods of ranges will vary based on ambient cannot be reasonably expected to, and is time. underwater conditions). The AB system not reasonably likely to, adversely affect Of the 12 marine mammal species shall be the primary detection the species or stock through effects on likely to occur in the area, four are listed mechanism that alerts the EBRV annual rates of recruitment or survival.’’ as endangered under the ESA: North captains to the occurrence of right In making a negligible impact Atlantic right, humpback, fin, and sei whales, heightens EBRV awareness, and determination, NMFS considers a whales. All of these species, as well as triggers necessary mitigation actions as variety of factors, including but not the northern coastal stock of bottlenose described in the Marine Mammal limited to: (1) The number of dolphin, are also considered depleted Detection, Monitoring, and Response anticipated mortalities; (2) the number under the MMPA. There is currently no Plan included as Appendix A of the and nature of anticipated injuries; (3) designated critical habitat or known NEG application. the number, nature, intensity, and reproductive areas for any of these Northeast Gateway has engaged duration of Level B harassment; and (4) species in or near the proposed project representatives from Cornell the context in which the takes occur. area. However, there are several well University’s Bioacoustics Research No injuries or mortalities are known North Atlantic right whale Program (BRP) and the Woods Hole anticipated to occur as a result of feeding grounds in the Cape Cod Bay

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and Great South Channel. No mortality letter to NMFS requesting an extension further supported by the required or injury is expected to occur and due for the LNG Port construction into mitigation, monitoring, and reporting to the nature, degree, and context of the December 2007. Upon reviewing measures described in this document. Level B harassment anticipated, the Northeast Gateway’s weekly marine As a result of implementation of the activity is not expected to impact rates mammal monitoring reports submitted described mitigation and monitoring of recruitment or survival. under the previous IHA, NMFS measures, no take by injury or death The population estimates for the recognized that the potential take of would be requested, anticipated or species that may be taken by harassment some marine mammals resulting from authorized, and the potential for from the most recent U.S. Atlantic Stock the LNG Port and Pipeline Lateral by temporary or permanent hearing Assessment Reports were provided Level B behavioral harassment likely impairment is very unlikely due to the earlier in this document. From the most had exceeded the original take relatively low noise levels (and conservative estimates of both marine estimates. Therefore, NMFS Northeast consequently small zone of impact mammal densities in the project area Region (NER) reinitiated consultation relative to the size of Massachusetts and the size of the 120-dB ZOI, the with MARAD and USCG on the Bay). maximum calculated number of construction and operation of the While the number of marine individual marine mammals for each Northeast Gateway LNG facility. On mammals that may be harassed will species that could potentially be November 30, 2007, NMFS NER issued depend on the distribution and harassed annually is small relative to a revised biological opinion, reflecting abundance of marine mammals in the the overall population sizes (8.01 the revised construction time period vicinity of the LNG Port facility, the percent for humpback whales and 6.08 and including a revised ITS. This estimated numbers of marine mammals percent for North Atlantic right whales revised biological opinion concluded to be harassed are small relative to the and no more than 2.78 percent of any that the construction and operation of affected species or stock sizes. other species). the Northeast Gateway LNG terminal Based on the analysis contained may adversely affect, but is not likely to Authorization herein of the likely effects of the jeopardize, the continued existence of NMFS has issued an IHA to Northeast specified activity on marine mammals northern right, humpback, and fin Gateway for conducting LNG Port and their habitat, and taking into whales, and is not likely to adversely facility operations in Massachusetts consideration the implementation of the affect sperm, sei, or blue whales. Bay, provided the previously mentioned mitigation and monitoring measures, National Environmental Policy Act mitigation, monitoring, and reporting NMFS finds that operation, including requirements are incorporated. repair and maintenance activities, of the MARAD and the USCG released a Dated: August 27, 2010. Northeast Gateway LNG Port will result Final EIS/EIR for the proposed in the incidental take of small numbers Northeast Gateway Port and Pipeline James H. Lecky, of marine mammals, by Level B Lateral. A notice of availability was Director,Office of Protected harassment only, and that the total published by MARAD on October 26, Resources,National Marine Fisheries Service. taking from Northeast Gateway’s 2006 (71 FR 62657). The Final EIS/EIR [FR Doc. 2010–21822 Filed 8–31–10; 8:45 am] proposed activities will have a provides detailed information on the BILLING CODE 3510–22–P negligible impact on the affected species proposed project facilities, construction or stocks. methods and analysis of potential impacts on marine mammals. CONSUMER PRODUCT SAFETY Impact on Availability of Affected NMFS was a cooperating agency (as COMMISSION Species or Stock for Taking for defined by the Council on Subsistence Uses Environmental Quality (40 CFR 1501.6)) Agency Information Collection There are no relevant subsistence uses in the preparation of the Draft and Final Activities; Submission for Office of of marine mammals implicated by this EISs. NMFS has reviewed the Final EIS Management and Budget Review; action. and has adopted it. Therefore, the Comment Request; Safety Standard for preparation of another EIS or EA is not Multi-Purpose Lighters Endangered Species Act warranted. On February 5, 2007, NMFS AGENCY: Consumer Product Safety concluded consultation with MARAD Determinations Commission. and the USCG, under section 7 of the NMFS has determined that the ACTION: Notice. Endangered Species Act (ESA), on the operation and maintenance activities of SUMMARY: The Consumer Product Safety proposed construction and operation of the Northeast Gateway Port facility may Commission (‘‘CPSC’’ or ‘‘Commission’’) the Northeast Gateway LNG facility and result, at worst, in a temporary is announcing that a proposed issued a biological opinion. The finding modification in behavior of small collection of information has been of that consultation was that the numbers of certain species of marine submitted to the Office of Management construction and operation of the mammals that may be in close and Budget (‘‘OMB’’) for review and Northeast Gateway LNG terminal may proximity to the Northeast Gateway clearance under the Paperwork adversely affect, but is not likely to LNG facility. These activities are Reduction Act of 1995 (‘‘PRA’’). jeopardize, the continued existence of expected to result in some local short- northern right, humpback, and fin term displacement only of the affected DATES: Fax written comments on the whales, and is not likely to adversely species or stocks of marine mammals. collection of information by October 1, affect sperm, sei, or blue whales and Taking these two factors together, NMFS 2010. Kemp’s ridley, loggerhead, green or concludes that the activity will have no ADDRESSES: To ensure that comments on leatherback sea turtles. An incidental more than a negligible impact on the the information collection are received, take statement (ITS) was issued affected species or stocks, as there will OMB recommends that written following NMFS’ issuance of the IHA. be no expected effects on annual rates comments be faxed to the Office of On November 15, 2007, Northeast of survival and reproduction of these Information and Regulatory Affairs, Gateway and Algonquin submitted a species or stocks. This determination is OMB, Attn: CPSC Desk Officer, Fax:

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202–395–6974, or e-mailed to These regulations also require industries in the United States, [email protected]. Written manufacturers, importers, and private September 2009, Bureau of Labor comments should be captioned ‘‘Safety labelers of multi-purpose lighters to Statistics). Standard for Multi-Purpose Lighters.’’ establish and maintain records to The annual cost of the rule to the All comments should be identified with demonstrate successful completion of Federal Government is comprised the OMB Control Number 3041–0130. In all required tests to support the chiefly of the Commission’s resources addition, written comments should also certificates of compliance that they for compliance and enforcement be submitted by mail/hand delivery/ issue. 16 CFR part 1212, subpart B. activities. An estimated 2 full-time- courier (for paper, disk, or CD–ROM The Commission uses the information equivalent (‘‘FTE’’) staff years of effort submissions), preferably in five copies, compiled and maintained by are required to administer the rule to: Office of the Secretary, Consumer manufacturers, importers, and private annually. The Commission’s cost for Product Safety Commission, Room 820, labelers of multi-purpose lighters to these staff activities is approximately 4330 East West Highway, Bethesda, MD protect consumers from risks of $170,000 per FTE. Thus, the annual cost 20814; telephone (301) 504–7923. accidental deaths and burn injuries of enforcing the rule to the Federal FOR FURTHER INFORMATION CONTACT: associated with those lighters. More Government is estimated to be about Linda Glatz, Division of Policy and specifically, the Commission uses this $340,000. This cost estimate includes Planning, Office of Information information to determine whether the agency’s enforcement and field staff Technology, Consumer Product Safety lighters comply with the standard by costs. Commission, 4330 East West Highway, resisting operation by young children. Dated: August 26, 2010. Bethesda, MD 20814, 301–504–7671, The Commission also uses this Alberta Mills, information to obtain corrective actions [email protected]. Acting Secretary, Consumer Product Safety if multi-purpose lighters fail to comply Commission. SUPPLEMENTARY INFORMATION: In with the standard in a manner that [FR Doc. 2010–21891 Filed 8–31–10; 8:45 am] compliance with 44 U.S.C. 3507, the creates a substantial risk of injury to the CPSC has submitted the following public. BILLING CODE 6355–01–P proposed collection of information to In the Federal Register of May 18, OMB for review and clearance. 2010 (75 FR 27731), the CPSC published Safety Standard for Multi-Purpose CONSUMER PRODUCT SAFETY a 60-day notice requesting public COMMISSION Lighters—(OMB Control Number 3041– comment on the proposed collection of 0130–Extention). Section 14(a)(1) of the information. No comments were Agency Information Collection ‘‘ ’’ Consumer Product Safety Act ( CPSA ) received. Activities; Submission for Office of (15 U.S.C. 2063(a)) requires We estimate the burden of this Management and Budget Review; manufacturers, importers, and private collection of information as follows. The Comment Request; Standard for the labelers of a consumer product subject cost of the rule’s testing, reporting, Flammability of Mattresses and to a consumer product safety standard recordkeeping, and other certification- Mattress Pads under the CPSA or similar rule, ban, related provisions is comprised of time standard, or regulation under any other spent by testing organizations on behalf AGENCY: Consumer Product Safety act enforced by the Commission to issue of manufacturers and importers, and Commission. a certificate stating that the product time spent by firms to prepare, ACTION: Notice. complies with all applicable rules, bans, maintain, and submit records to CPSC. standards or regulations. There are currently an estimated 59 SUMMARY: The Consumer Product Safety Section 14(b) of the CPSA (15 U.S.C. firms that import, distribute and/or sell Commission (‘‘CPSC’’ or ‘‘Commission’’) 2063(b)) authorizes the Commission to multi-purpose lighters in the United is announcing that a proposed issue regulations to prescribe a States, which is a subset of the collection of information has been reasonable testing program to support approximately 145 firms total that may submitted to the Office of Management certificates of compliance with a import, distribute and/or sell these and Budget (‘‘OMB’’) for review and consumer product safety standard under lighters in the future. With a few clearance under the Paperwork the CPSA or similar rule, ban, standard, exceptions, most manufacturers and Reduction Act of 1995 (‘‘PRA’’). or regulation under any other act importers have more than one model, DATES: Fax written comments on the enforced by the Commission. Section currently ranging from 1 to 130 models collection of information by October 1, 16(b) of the CPSA (15 U.S.C 2065(b)) for each firm. Based on past experience, 2010. authorizes the Commission to issue an estimate of two models per firm is a ADDRESSES: To ensure that comments on rules to require that firms establish and reasonable number to use for calculating the information collection are received, maintain records to permit the burden. Each manufacturer would OMB recommends that written Commission to determine compliance spend approximately 50 hours per comments be faxed to the Office of with rules issued under the authority of model. Therefore, the total annual Information and Regulatory Affairs, the CPSA. amount of time that will be required for OMB, Attn: CPSC Desk Officer, fax: The Commission has issued complying with the testing, 202–395–6974, or e-mailed to regulations prescribing requirements for recordkeeping, and reporting [email protected]. Written a reasonable testing program to support requirements of the rule is comments should be captioned certificates of compliance with the approximately 5,900 hours (59 firms × 2 ‘‘Standard for the Flammability of standard for multi-purpose lighters. models × 50 hours = 5,900 total hours Mattresses and Mattress Pads.’’ All These regulations require manufacturers requested). The annualized cost to comments should be identified with the and importers to submit a description of respondents for the hour burden for OMB Control Number 3041–0014. In each model of lighter, results of collection of information is $335,887 addition, written comments should also prototype qualification tests for based on a total of 5,900 hours at $56.93 be submitted by mail/hand delivery/ compliance with the standard, and other per hour (based on total compensation courier (for paper, disk, or CD–ROM information before the introduction of of all management, professional, and submissions), preferably in five copies, each model of lighter into commerce. related occupations in goods-producing to: Office of the Secretary, Consumer

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Product Safety Commission, Room 820, performed, but they will be testing only SUMMARY: The Consumer Product Safety 4330 East West Highway, Bethesda, MD two surfaces rather than the required six Commission (‘‘CPSC’’ or ‘‘Commission’’) 20814; telephone (301) 504–7923. surfaces. The policy is available at the is announcing that a proposed FOR FURTHER INFORMATION CONTACT: CPSC’s Web site at www.cpsc.gov/ collection of information has been Linda Glatz, Division of Policy and BUSINFO/Interimmattress.pdf. Mattress submitted to the Office of Management Planning, Office of Information prototypes created before March 15, and Budget (‘‘OMB’’) for review and Technology, Consumer Product Safety 2006, are subject to the full clearance under the Paperwork Commission, 4330 East West Highway, requirements of 16 CFR part 1632. In Reduction Act of 1995 (‘‘PRA’’). Bethesda, MD 20814, 301–504–7671, addition, mattress pads are not subject DATES: Fax written comments on the [email protected]. to this policy and must continue to collection of information by October 1, adhere to all the requirements set forth 2010. SUPPLEMENTARY INFORMATION: In compliance with 44 U.S.C. 3507, the in 16 CFR part 1632. ADDRESSES: To ensure that comments on In the Federal Register of May 18, CPSC has submitted the following the information collection are received, 2010 (75 FR 27733), the CPSC published proposed collection of information to OMB recommends that written a 60-day notice requesting public OMB for review and clearance. comments be faxed to the Office of Standard for the Flammability of comment on the proposed collection of Information and Regulatory Affairs, Mattresses and Mattress Pads—(OMB information. No comments were OMB, Attn: CPSC Desk Officer, Fax: Control Number 3041–0014–Extention). received. 202–395–6974, or e-mailed to We estimate the burden of this _ The Standard for the Flammability of oira [email protected]. Written collection of information as follows. The Mattresses and Mattress Pads was comments should be captioned ‘‘Safety CPSC staff estimates that there are 671 promulgated under section 4 of the Standard for Bicycle Helmets.’’ All respondents (571 establishments Flammable Fabrics Act (‘‘FFA’’), 15 comments should be identified with the producing conventional mattresses and U.S.C. 1193, to reduce unreasonable OMB Control Number 3041–0127. In 100 establishments producing non- risks of burn injuries and deaths from addition, written comments should also conventional mattresses in the United fires associated with mattresses and be submitted by mail/hand delivery/ States, a total of 671). It is estimated that mattress pads. The standard prescribes courier (for paper, disk, or CD–ROM each respondent will spend 26 hours for a test to assure that a mattress or submissions), preferably in five copies, testing and recordkeeping annually for a mattress pad will resist ignition from a to: Office of the Secretary, Consumer total of 17,446 hours (671 firms × 26 smoldering cigarette. The standard Product Safety Commission, Room 820, hours = 17,446 total hours requested). requires manufacturers to perform 4330 East West Highway, Bethesda, MD The annualized cost to respondents prototype tests of each combination of 20814; telephone (301) 504–7923. would be approximately $993,201 based materials and construction methods FOR FURTHER INFORMATION CONTACT: on 17,446 hours times $56.93 per hour used to produce mattresses or mattress Linda Glatz, Division of Policy and (based on total compensation of all pads and to obtain acceptable results Planning, Office of Information management, professional, and related from such testing. Manufacturers and Technology, Consumer Product Safety occupations in goods-producing importers are required to maintain the Commission, 4330 East West Highway, industries in the United States, records and test results specified under Bethesda, MD 20814, 301–504–7671, September 2009, Bureau of Labor the standard. [email protected]. Statistics). In addition, the Standard for the SUPPLEMENTARY INFORMATION: The estimated annual cost of the In Flammability (Open Flame) of Mattress information collection requirements to compliance with 44 U.S.C. 3507, the Sets was promulgated under section 4 of the Federal government is CPSC has submitted the following the FFA, 16 CFR part 1633, to reduce proposed collection of information to approximately $142,000. This sum deaths and injuries related to mattress OMB for review and clearance. includes 10 staff months and travel fires, particularly those ignited by open Safety Standard for Bicycle Helmets— costs expended for examination of the flame sources such as lighters, candles (OMB Control Number 3041–0127– information in records required to be and matches. The standard established Extention). In 1994, Congress passed the maintained by the standard and new performance requirements for ‘‘Child Safety Protection Act,’’ which, enforcement rule. mattresses and mattress sets that will among other things, included the generate a smaller size fire from open Dated: August 26, 2010. ‘‘Children’s Bicycle Helmet Safety Act of flame source ignitions. Part 1633 also Alberta Mills, 1994’’ Public Law 103–267, 108 Stat. contains recordkeeping requirements to Acting Secretary, Consumer Product Safety 726. This law directed the Commission document compliance with the Commission. to issue a final standard applicable to standard. The testing and recordkeeping [FR Doc. 2010–21895 Filed 8–31–10; 8:45 am] bicycle helmets that would replace requirements under 16 CFR part 1633 BILLING CODE 6355–01–P several existing voluntary standards do not replace the testing and with a single uniform standard that recordkeeping requirements under 16 would include provisions to protect CFR part 1632. CONSUMER PRODUCT SAFETY against the risk of helmets coming off In May 2006, an Interim Enforcement COMMISSION the heads of bicycle riders, address the Policy for Mattresses subject to 16 CFR risk of injury to children, and cover parts 1632 and 1633, effective May 1, Agency Information Collection other issues as appropriate. The 2006, was issued that reduced prototype Activities; Submission for Office of Commission issued the final bicycle surface testing and recordkeeping Management and Budget Review; helmet standard in 1998. It is codified requirements from six mattress surfaces Comment Request; Safety Standard for at 16 CFR Part 1203. The standard to two mattress surfaces for each new Bicycle Helmets requires all bicycle helmets prototype created after March 15, 2006. AGENCY: Consumer Product Safety manufactured after March 10, 1999, to Manufacturers that avail themselves of Commission. meet impact-attenuation and other the reduced testing program will have to requirements. The standard also ACTION: Notice. maintain records on the cigarette test contains testing and recordkeeping

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requirements to ensure that bicycle The Commission staff estimates that the placement tests and receive scores for helmets meet the standard’s time required to comply with the which college academic credit is requirements. Certification regulations collection of information requirements awarded. implementing the standard require is approximately 100 to 150 hours per Program Authority: 20 U.S.C. 6531– manufacturers, importers, and private model per year. The total amount of 6537. labelers of bicycle helmets subject to the time estimated for compliance with Applicable Regulations: The standard to: (1) Perform tests to these requirements for testing, including Education Department General demonstrate that those products meet third-party testing for children’s bicycle Administration Regulations (EDGAR) in the requirements of the standard; helmets, certification, and 34 CFR parts 75, 77, 79, 80, 81, 82, 84, (2) maintain records of those tests; and recordkeeping will be 20,000 to 30,000 85, 97, 98, and 99. (3) affix durable labels to the helmets × hours per year (200 models 100 to 150 II. Award Information stating that the helmet complies with hours/model = 20,000 to 30,000 hours). the applicable standard. The The annualized cost to respondents for Type of Award: Discretionary grants. certification regulations are codified at the hour burden for collection of Estimated Available Funds: The 16 CFR part 1203, subpart B. On information is $1,138,600 to $1,707,000 Administration’s budget request for FY September 2, 2009, the Commission based on 20,000 to 30,000 hours times 2011 does not include funds for this issued a notice of requirements that $56.93 per hour (based on total program but would, instead, provide provides the criteria and process for compensation of all civilian workers in support for advanced placement test Commission acceptance of accreditation managerial and professional positions in fees through a proposed College of third party conformity assessment the United States, September 2009, Pathways and Accelerated Learning bodies for testing bicycle helmets that Bureau of Labor Statistics). program. However, we are inviting are considered children’s products The estimated expenditure to the applications to allow enough time to under the Consumer Product Safety Act Federal government is approximately complete the grant process if Congress (74 FR 45428). $83,000 which includes 10 staff months appropriates funds for this program. The Commission uses the information and travel costs expended for Estimated Range of Awards: $8,476– compiled and maintained by examination of the information in $4,377,999. manufacturers, importers, and private records required to be maintained by the Estimated Average Size of Awards: labelers of bicycle helmets subject to the standard and implementing regulations. $438,280. standard to help protect the public from Estimated Number of Awards: 42. Dated: August 26, 2010. risks of injury or death associated with Note: The Department is not bound by any head injury associated with bicycle Alberta Mills, estimates in this notice. riding. More specifically, this Acting Secretary, Consumer Product Safety Project Period: Up to 12 months. information helps the Commission Commission. determine whether bicycle helmets [FR Doc. 2010–21892 Filed 8–31–10; 8:45 am] III. Eligibility Information subject to the standard comply with all BILLING CODE 6355–01–P 1. Eligible Applicants: SEAs in any applicable requirements. The State, including the District of Commission also uses this information Columbia, the Commonwealth of Puerto to obtain corrective actions if bicycle DEPARTMENT OF EDUCATION Rico, the United States Virgin Islands, helmets fail to comply with the standard Guam, American Samoa, the Office of Elementary and Secondary in a manner that creates a substantial Commonwealth of the Northern Mariana Education Overview Information; risk of injury to the public. Islands, and the freely associated states In the Federal Register of May 18, Advanced Placement (AP) Test Fee of the Republic of the Marshall Islands, 2010 (75 FR 27734), the CPSC published Program; Notice Inviting Applications the Federated States of Micronesia, and a 60-day notice requesting public for New Awards for Fiscal Year (FY) the Republic of Palau (subject to comment on the proposed collection of 2011 continued eligibility). information. One comment was received. The commenter did not Catalog of Federal Domestic Note: For the purposes of this program, the address the collection of information Assistance (CFDA) Number: 84.330B. Bureau of Indian Education in the U.S. burdens. Instead, the commenter states Dates: Department of the Interior is treated as an that the collection of information should Applications Available: September 1, SEA. not be approved because it would delay 2010. 2. a. Cost Sharing or Matching: This implementation of bicycle helmet Deadline for Transmittal of program does not require cost sharing or safety. Applications: November 17, 2010. matching. The commenter has misunderstood Deadline for Intergovernmental b. Supplement-Not-Supplant: This the purpose of the collection of Review: January 18, 2011. program involves supplement-not- information. The standard has been in Full Text of Announcement supplant funding requirements. Section effect since 1999, and continues to be in 1706 of the Elementary and Secondary I. Funding Opportunity Description effect. The collection of information Education Act of 1965, as amended addresses the testing, certification, and Purpose of Program: The AP Test Fee (ESEA), requires that grant funds recordkeeping requirements that are program awards grants to eligible State provided under the AP Test Fee required to ensure that the standard’s educational agencies (SEAs) to enable program supplement, and not supplant, requirements are met. them to pay all or a portion of advanced other non-Federal funds that are We estimate the burden of this placement test fees on behalf of eligible available to assist low-income collection of information as follows. low-income students who (1) are individuals in paying for the cost of Approximately 30 firms manufacture or enrolled in an advanced placement advanced placement test fees. import bicycle helmets subject to the course and (2) plan to take an advanced 3. Other: Current grantees under this standard. There are an estimated 200 placement exam. The program is program that expect to have sufficient different models of bicycle helmets designed to increase the number of low- carryover funds to cover school year currently marketed in the United States. income students who take advanced 2010–2011 advanced placement exam

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fees for eligible low-income students requirements and limitations in this We will reject your application if you should not apply for a new award under notice. submit it in paper format unless, as this program. Deadline for Intergovernmental described elsewhere in this section, you Review: January 18, 2011. qualify for one of the exceptions to the IV. Application and Submission 4. Intergovernmental Review: This electronic submission requirement and Information program is subject to Executive Order submit, no later than two weeks before 1. Address to Request Application 12372 and the regulations in 34 CFR the application deadline date, a written Package: To obtain an application part 79. Information about statement to the Department that you package via the Internet use the Intergovernmental Review of Federal qualify for one of these exceptions. following address: http://www.ed.gov/ Programs under Executive Order 12372 Further information regarding programs/apfee/applicant.html. is in the application package for this calculation of the date that is two weeks To obtain an application package from program. before the application deadline date is the U.S. Department of Education use 5. Funding Restrictions: We reference provided later in this section under the following address: Francisco regulations outlining funding Exception to Electronic Submission Ramirez, U.S. Department of Education, restrictions in the Applicable Requirement. 400 Maryland Avenue, SW., Room Regulations section of this notice. While completing your electronic 3E224, Washington, DC 20202–6200. 6. Data Universal Numbering System application, you will be entering data Telephone: (202) 260–1541 or by e-mail: Number, Taxpayer Identification online that will be saved into a [email protected]. Number, and Central Contractor database. You may not e-mail an If you use a telecommunications Registry: To do business with the electronic copy of a grant application to device for the deaf (TDD), call the Department of Education, (1) you must us. have a Data Universal Numbering Please note the following: Federal Relay Service (FRS), toll free, at • 1–800–877–8339. System (DUNS) number and a Taxpayer You must complete the electronic submission of your grant application by Individuals with disabilities can Identification Number (TIN); (2) you 4:30:00 p.m., Washington, DC time, on obtain a copy of the application package must register both of those numbers the application deadline date. in an accessible format (e.g., braille, with the Central Contractor Registry E-Application will not accept an large print, audiotape, or computer (CCR), the Government’s primary application for this program after diskette) by contacting the program registrant database; and (3) you must 4:30:00 p.m., Washington, DC time, on person listed in this section. provide those same numbers on your the application deadline date. 2. Content and Form of Application application. You can obtain a DUNS number from Therefore, we strongly recommend that Submission: Requirements concerning Dun and Bradstreet. A DUNS number you do not wait until the application the content of an application, together can be created within one business day. deadline date to begin the application with the forms you must submit, are in If you are a corporate entity, agency, process. the application package for this institution, or organization, you can • The hours of operation of the e- program. obtain a TIN from the Internal Revenue Grants Web site are 6:00 a.m. Monday 3. Submission Dates and Times: Service. If you are an individual, you until 7:00 p.m. Wednesday; and 6:00 Applications Available: September 1, can obtain a TIN from the Internal a.m. Thursday until 8:00 p.m. Sunday, 2010. Revenue Service or the Social Security Washington, DC time. Please note that, Deadline for Transmittal of Administration. If you need a new TIN, because of maintenance, the system is Applications: November 17, 2010. please allow 2–5 weeks for your TIN to unavailable between 8:00 p.m. on Applications for grants under this become active. Sundays and 6:00 a.m. on Mondays, and program must be submitted The CCR registration process may take between 7:00 p.m. on Wednesdays and electronically using the Electronic Grant five or more business days to complete. 6:00 a.m. on Thursdays, Washington, Application System (e-Application) If you are currently registered with the DC time. Any modifications to these accessible through the Department’s CCR, you may not need to make any hours are posted on the e-Grants Web e-Grants site. For information (including changes. However, please make certain site. dates and times) about how to submit that the TIN associated with your DUNS • You will not receive additional your application electronically, or in number is correct. Also note that you point value because you submit your paper format by mail or hand delivery will need to update your CCR application in electronic format, nor if you qualify for an exception to the registration on an annual basis. This will we penalize you if you qualify for electronic submission requirement, may take three or more business days to an exception to the electronic please refer to section IV.7. Other complete. submission requirement, as described Submission Requirements of this notice. 7. Other Submission Requirements: elsewhere in this section, and submit We do not consider an application Applications for grants under this your application in paper format. that does not comply with the deadline program must be submitted • You must submit all documents requirements. electronically unless you qualify for an electronically, including all information Individuals with disabilities who exception to this requirement in you typically provide on the following need an accommodation or auxiliary aid accordance with the instructions in this forms: The Application for Federal in connection with the application section. Assistance (SF 424), the Department of process should contact the person listed a. Electronic Submission of Education Supplemental Information for under FOR FURTHER INFORMATION Applications. SF 424, Budget Information—Non- CONTACT in section VII of this notice. If Applications for grants under the AP Construction Programs (ED 524), and all the Department provides an Test Fee Program, CFDA Number necessary assurances and certifications. accommodation or auxiliary aid to an 84.330B, must be submitted You must attach any narrative sections individual with a disability in electronically using e-Application, of your application as files in a .DOC connection with the application accessible through the Department’s (document), .RTF (rich text), or .PDF process, the individual’s application e-Grants Web site at: http://e- (Portable Document) format. If you remains subject to all other grants.ed.gov. upload a file type other than the three

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file types specified in this paragraph or deadline is extended, an e-mail will be (3) A dated shipping label, invoice, or submit a password protected file, we sent to all registered users who have receipt from a commercial carrier. will not review that material. initiated an e-Application. Extensions (4) Any other proof of mailing • Your electronic application must referred to in this section apply only to acceptable to the Secretary of the U.S. comply with any page limit the unavailability of e-Application. Department of Education. requirements described in this notice. Exception to Electronic Submission If you mail your application through • Prior to submitting your electronic Requirement: You qualify for an the U.S. Postal Service, we do not application, you may wish to print a exception to the electronic submission accept either of the following as proof copy of it for your records. requirement, and may submit your of mailing: • After you electronically submit application in paper format, if you are (1) A private metered postmark. your application, you will receive an unable to submit an application through (2) A mail receipt that is not dated by automatic acknowledgment that will e-Application because— the U.S. Postal Service. include a PR/Award number (an • You do not have access to the If your application is postmarked after identifying number unique to your Internet; or the application deadline date, we will application). • You do not have the capacity to not consider your application. • Within three working days after upload large documents to e- Note: The U.S. Postal Service does not submitting your electronic application, Application; and uniformly provide a dated postmark. Before fax a signed copy of the SF 424 to the • No later than two weeks before the relying on this method, you should check Application Control Center after application deadline date (14 calendar with your local post office. following these steps: days or, if the fourteenth calendar day c. Submission of Paper Applications (1) Print SF 424 from e-Application. before the application deadline date (2) The applicant’s Authorizing by Hand Delivery. falls on a Federal holiday, the next If you qualify for an exception to the Representative must sign this form. business day following the Federal (3) Place the PR/Award number in the electronic submission requirement, you holiday), you mail or fax a written upper right hand corner of the hard- (or a courier service) may deliver your statement to the Department, explaining copy signature page of the SF 424. paper application to the Department by (4) Fax the signed SF 424 to the which of the two grounds for an hand. You must deliver the original and Application Control Center at (202) exception prevents you from using the two copies of your application, by hand, 245–6272. Internet to submit your application. If on or before the application deadline • We may request that you provide us you mail your written statement to the date, to the Department at the following original signatures on other forms at a Department, it must be postmarked no address: U.S. Department of Education, later date. later than two weeks before the Application Control Center, Attention: Application Deadline Date Extension application deadline date. If you fax (CFDA Number 84.330B), 550 12th in Case of e-Application Unavailability: your written statement to the Street, SW., Room 7041, Potomac Center If you are prevented from electronically Department, we must receive the faxed Plaza, Washington, DC 20202–4260. submitting your application on the statement no later than two weeks The Application Control Center accepts application deadline date because e- before the application deadline date. hand deliveries daily between 8:00 a.m. Application is unavailable, we will Address and mail or fax your and 4:30:00 p.m., Washington, DC time, grant you an extension of one business statement to: Francisco Ramirez, U.S. except Saturdays, Sundays, and Federal day to enable you to transmit your Department of Education, 400 Maryland holidays. application electronically, by mail, or by Avenue, SW., Room 3E224, Washington, Note for Mail or Hand Delivery of hand delivery. We will grant this DC 20202–6200. FAX: (202) 260–8969. Paper Applications: extension if— Your paper application must be If you mail or hand deliver your (1) You are a registered user of e- submitted in accordance with the mail application to the Department— Application and you have initiated an or hand delivery instructions described (1) You must indicate on the envelope electronic application for this in this notice. and—if not provided by the competition; and b. Submission of Paper Applications Department—in Item 11 of the SF 424 (2)(a) E-Application is unavailable for by Mail. the CFDA number, including suffix 60 minutes or more between the hours If you qualify for an exception to the letter, if any, of the competition under of 8:30 a.m. and 3:30 p.m., Washington, electronic submission requirement, you which you are submitting your DC time, on the application deadline may mail (through the U.S. Postal application; and date; or Service or a commercial carrier) your (2) The Application Control Center (b) E-Application is unavailable for application to the Department. You will mail to you a notification of receipt any period of time between 3:30 p.m. must mail the original and two copies of your grant application. If you do not and 4:30:00 p.m., Washington, DC time, of your application, on or before the receive this grant notification within 15 on the application deadline date. application deadline date, to the business days from the application We must acknowledge and confirm Department at the following address: deadline date, you should call the U.S. these periods of unavailability before U.S. Department of Education, Department of Education Application granting you an extension. To request Application Control Center, Attention: Control Center at (202) 245–6288. this extension or to confirm our (CFDA Number 84.330B), LBJ Basement acknowledgment of any system Level 1, 400 Maryland Avenue, SW., V. Application Review Information unavailability, you may contact either Washington, DC 20202–4260. The Department intends to fund, at (1) the person listed elsewhere in this You must show proof of mailing some level, all applications that meet notice under FOR FURTHER INFORMATION consisting of one of the following: the requirements for Approval of CONTACT (see VII. Agency Contact) or (2) (1) A legibly dated U.S. Postal Service Application as described in the the e-Grants help desk at 1–888–336– postmark. application package for this program 8930. If e-Application is unavailable (2) A legible mail receipt with the and that demonstrate need for new or due to technical problems with the date of mailing stamped by the U.S. additional funds to pay advanced system and, therefore, the application Postal Service. placement exam fees on behalf of low-

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income students for school year 2010– performance reports will be one of the Note: See the Public Participation section 2011. sources of data for this measure. Other for building entry requirements. Please arrive Also, in determining whether to sources of data include the College early. approve an application for a new award Board and IB Americas. FOR FURTHER INFORMATION CONTACT: (including the amount of the award) Amy Bodette, Designated Federal from an applicant with a current grant VII. Agency Contact Officer, U.S. Department of Energy, under this program, the Department will FOR FURTHER INFORMATION CONTACT: 1000 Independence Avenue, SW., consider the amount of any carryover Francisco Ramirez, U.S. Department of Washington, DC 20585; telephone (202) funds under the existing grant. Education, 400 Maryland Avenue, SW., 586–0383 or facsimile (202) 586–1441; VI. Award Administration Information room 3E224, Washington, DC 20202– [email protected]. 6200. Telephone: (202) 260–1541 or by 1. Award Notices: If your application e-mail: [email protected]. SUPPLEMENTARY INFORMATION: is successful, we notify your U.S. If you use a TDD, call the FRS, toll Background: The Board was Representative and U.S. Senators and free, at 1–800–877–8339. reestablished to provide advice and send you a Grant Award Notification VIII. Other Information recommendations to the Secretary on (GAN). We may notify you informally, the Department’s basic and applied also. Accessible Format: Individuals with research, economic and national If your application is not evaluated or disabilities can obtain this document security policy, educational issues, not selected for funding, we notify you. and a copy of the application package in operational issues and other activities as 2. Administrative and National Policy an accessible format (e.g., braille, large directed by the Secretary. Requirements: We identify print, audiotape, or computer diskette) Purpose of the Meeting: The meeting administrative and national policy on request to the program contact will serve as an introductory meeting requirements in the application package person listed under FOR FURTHER and will provide an overview of and reference these and other INFORMATION CONTACT in section VII of Departmental programs and priorities to requirements in the Applicable this notice. Regulations section of this notice. Electronic Access to This Document: the Board. We reference the regulations outlining You can view this document, as well as Tentative Agenda: The meeting will the terms and conditions of an award in all other documents of this Department start at 8:30 a.m. on September 16th and the Applicable Regulations section of published in the Federal Register, in will serve as an introductory meeting for this notice and include these and other text or Adobe Portable Document the Board. The tentative meeting agenda specific conditions in the GAN. The Format (PDF) on the Internet at the includes a welcome, opening remarks GAN also incorporates your approved following site: http://www.ed.gov/news/ from the Secretary, overview application as part of your binding fedregister. To use PDF you must have presentations of Departmental programs commitments under the grant. Adobe Acrobat Reader, which is and priorities, open discussion, and an 3. Reporting: At the end of your available free at this site. opportunity for public comment. The meeting will conclude at 4 p.m. project period, you must submit a final Note: The official version of this document performance report, including financial is the document published in the Federal Public Participation: The meeting is information, as directed by the Register. Free Internet access to the official open to the public. Individuals who Secretary. The Secretary may also edition of the Federal Register and the Code would like to attend must RSVP to Amy require more frequent performance of Federal Regulations is available on GPO Bodette no later than 5 p.m. on Tuesday, reports under 34 CFR 75.720(c). For Access at: http://www.gpoaccess.gov/nara/ September 14, 2010 at specific requirements on reporting, index.html. [email protected]. Please provide your please go to http://www.ed.gov/fund/ Dated: August 27, 2010. name, organization, citizenship and contact information. Entry to the DOE grant/apply/appforms/appforms.html. Thelma Mele´ndez de Santa Ana, 4. Performance Measures: Under the Forrestal building will be restricted to Government Performance and Results Assistant Secretary for Elementary and those who have confirmed their Secondary Education. Act of 1993 (GPRA), the Department has attendance in advance. Anyone developed five performance measures to [FR Doc. 2010–21877 Filed 8–31–10; 8:45 am] attending the meeting will be required evaluate the overall effectiveness of the BILLING CODE 4000–01–P to present a government photo AP Test Fee and Advanced Placement identification, such as a passport, Incentive (API) programs: (1) The driver’s license, or government number of advanced placement tests DEPARTMENT OF ENERGY identification. Individuals and taken by low-income public school representatives of organizations who Secretary of Energy Advisory Board students nationally; (2) The number of would like to offer comments and advanced placement tests taken by AGENCY: Department of Energy. suggestions may do so at the end of the minority (Hispanic, Black, Native ACTION: Notice of open meeting. meeting on Thursday, September 16, American) public school students 2010. Approximately 30 minutes will be nationally; (3) The percentage of SUMMARY: This notice announces an reserved for public comments. Time advanced placement tests passed (for open meeting of the Secretary of Energy allotted per speaker will depend on the AP exams, receiving scores of 3–5) by Advisory Board (SEAB). SEAB was number who wish to speak but will not low-income public school students reestablished pursuant to the Federal exceed 5 minutes. The Designated nationally; (4) The number of advanced Advisory Committee Act (Pub. L. 92– Federal Officer is empowered to placement tests passed (for AP exams, 463, 86 Stat. 770) (the Act). This notice conduct the meeting in a fashion that receiving scores of 3–5) by low-income is provided in accordance with the Act. will facilitate the orderly conduct of public school students nationally; and DATES: Thursday, September 16, 2010. business. Those wishing to speak (5) The cost per passage of an advanced 8:30 a.m.–4 p.m. should register to do so beginning at 8 placement test taken by a low-income ADDRESSES: Department of Energy, 1000 a.m. on September 16, 2010. public school student. The information Independence Avenue, SW., Registration to speak will close at 1 provided by grantees in their final Washington, DC 20585. p.m., September 16, 2010.

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Those not able to attend the meeting • Report from the Office of Biological FOR FURTHER INFORMATION CONTACT: or have insufficient time to address the and Environmental Research. Timothy A. Frazier, Designated Federal committee are invited to send a written • News from the Biological Systems Officer, U.S. Department of Energy, statement to Amy Bodette, U.S. Science and Climate and Environmental 1000 Independence Avenue, SW., Department of Energy 1000 Sciences Divisions. Washington, DC 20585; telephone (202) Independence Avenue, SW., • Discussions on the Climate 586–4243 or facsimile (202) 586–0544; Washington, DC 20585, e-mail to Research Roadmap Workshop, BER e-mail [email protected]. Grand Challenge Workshop Report, and [email protected]. Minutes: The minutes of the meeting Systems Biology Knowledgebase Report. Additional information will be available • will be available by contacting Ms. BER Communications Update. at http://www.brc.gov. • New Business. Bodette. She may be reached at the • SUPPLEMENTARY INFORMATION: postal address or e-mail address above. Public Comment. Public Participation: The day and a Background: The President directed Issued in Washington, DC, on August 27, half meeting is open to the public. If you that the Commission be established to 2010. would like to file a written statement conduct a comprehensive review of Rachel Samuel, with the Committee, you may do so policies for managing the back end of Deputy Committee Management Officer. either before or after the meeting. If you the nuclear fuel cycle. The Commission [FR Doc. 2010–21866 Filed 8–31–10; 8:45 am] would like to make oral statements will provide advice and make BILLING CODE 6450–01–P regarding any of the items on the recommendations on issues including agenda, you should contact David alternatives for the storage, processing, Thomassen at the address or telephone and disposal of civilian and defense DEPARTMENT OF ENERGY number listed above. You must make spent nuclear fuel and nuclear waste. your request for an oral statement at The Commission is scheduled to submit Biological and Environmental least five business days before the a draft report to the Secretary of Energy Research Advisory Committee meeting. Reasonable provision will be in July 2011 and a final report in January 2012. AGENCY: Department of Energy, Office of made to include the scheduled oral This is the fourth full Commission Science. statements on the agenda. The meeting. Previous meetings were held in ACTION: Notice of open meeting. Chairperson of the Committee will conduct the meeting to facilitate the March, May, and July 2010. Webcasts of SUMMARY: This notice announces a orderly conduct of business. Public the previous meetings along with meeting of the Biological and comment will follow the 10-minute meeting transcripts and presentations Environmental Research Advisory rule. are available at http://www.brc.gov. Committee (BERAC). The Federal Minutes: The minutes of this meeting Purpose of the Meeting: The meeting Advisory Committee Act (Pub. L. 92– will be available for public review and will provide the Commission an 463, 86 Stat. 770) requires that public copying within 45 days at the BERAC opportunity to hear presentations and notice of these meetings be announced Web site: http://www.science.doe.gov/ statements covering four broad areas: in the Federal Register. ober/beraciAfinutes.html. Nuclear waste program governance, international perspectives and DATES: Thursday, September 16, 2010, 9 Issued in Washington, DC, on August 19, implications of U.S. decisions regarding a.m. to 5:30 p.m. and Friday, September 2010. the back-end of the nuclear fuel cycle, 17, 2010, 8:30 a.m. to 12 p.m. Rachel Samuel, the ethical foundations for nuclear ADDRESSES: Hilton Hotel, 620 Perry Deputy Committee Management Officer. waste management, and experiences Parkway, Gaithersburg, MD 20877. [FR Doc. 2010–21673 Filed 8–31–10; 8:45 am] and perspectives on public engagement FOR FURTHER INFORMATION CONTACT: Dr. BILLING CODE 6450–01–P in the facility siting process. David Thomassen, Designated Federal Tentative Agenda: The meeting is Officer, BERAC, U.S. Department of expected to start at 8:30 a.m. on Energy, Office of Science, Office of DEPARTMENT OF ENERGY Tuesday, September 21, 2010. The Biological and Environmental Research, schedule for the 21st will include SC–23/Germantown Building, 1000 Blue Ribbon Commission on America’s Nuclear Future presentations and statements to the Independence Avenue, SW., Commission. The meeting will resume Washington, DC 20585–1290. Phone AGENCY: Office of Nuclear Energy, at 8:30 a.m. on Wednesday, September 301–903–9817; fax (301) 903–5051 or e- Department of Energy. 22, 2010, with presentations and mail: [email protected]. ACTION: Notice of open meeting. statements to the Commission and The most current information Commission discussions lasting until concerning this meeting can be found SUMMARY: This notice announces an about noon. The meeting will conclude on the Web site: http:// open meeting of the Blue Ribbon with public statements and will end www.science.doe.gov Commission on America’s Nuclear about 1 p.m. loberlberaclannounce.html. Future (the Commission). The Public Participation: Individuals and SUPPLEMENTARY INFORMATION: Commission was organized pursuant to representatives of organizations who Purpose of the Meeting: To provide the Federal Advisory Committee Act would like to offer comments and advice on a continuing basis to the (Pub. L. 92–463, 86 Stat. 770) (the Act). suggestions may do so at the end of the Director, Office of Science of the This notice is provided in accordance public session on Wednesday, Department of Energy, on the many with the Act. September 22, 2010. Approximately complex scientific and technical issues DATES: Tuesday, September 21, 2010. 1 hour will be reserved for public that arise in the development and 8:30 a.m.–4:45 p.m. Wednesday, comments from 12 p.m. to 1 p.m. Time implementation of the Biological and September 22, 2010. 8:30 a.m.–1 p.m. allotted per speaker will depend on the Environmental Research Program. ADDRESSES: Washington Marriott Hotel, number who wish to speak but will not Tentative Agenda Topics: 1221 22nd Street, NW., Washington, DC. exceed 5 minutes. The Designated • Report from the Office of Science. Phone: 202–872–1500. Federal Officer is empowered to

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conduct the meeting in a fashion that Washington, DC 20585; telephone (202) Washington Marriott. Registration will will facilitate the orderly conduct of 586–4243 or facsimile (202) 586–0544; close at noon on September 23, 2010. business. Those wishing to speak e-mail Those not able to attend the meeting should register to do so beginning at [email protected]. or have insufficient time to address the 7:30 a.m. on September 22, 2010, at the Additional information will be available subcommittee are invited to send a Washington Marriott. Registration to at http://www.brc.gov. written statement to Timothy A. Frazier, speak will close at 11 a.m., September SUPPLEMENTARY INFORMATION: U.S. Department of Energy, 1000 22, 2010. Background: The President directed Independence Avenue, SW., Those not able to attend the meeting that the Commission be established to Washington, DC 20585, e-mail to or have insufficient time to address the conduct a comprehensive review of [email protected], or subcommittee are invited to send a policies for managing the back end of post comments on the Commission Web written statement to Timothy A. Frazier, the nuclear fuel cycle. The Commission site at http://www.brc.gov. U.S. Department of Energy, 1000 will provide advice and make Additionally, the meeting will be Independence Avenue, SW., recommendations on issues including available via live video webcast. The Washington, DC 20585, e-mail to alternatives for the storage, processing, link will be available at http:// [email protected], or and disposal of civilian and defense www.brc.gov. post comments on the Commission Web spent nuclear fuel and nuclear waste. Minutes: The minutes of the meeting site at http://www.brc.gov. The Co-chairs of the Commission will be available at http://www.brc.gov Additionally, the meeting will be requested the formation of the T&S or by contacting Mr. Frazier. He may be available via live video webcast. The Subcommittee to answer the question: reached at the postal address or e-mail link will be available at http:// ‘‘[s]hould the US change the way in address above. www.brc.gov. which it is storing used nuclear fuel and Issued in Washington, DC, on August 27, Minutes: The minutes of the meeting high level waste while one or more final 2010. will be available at http://www.brc.gov disposal locations are established?’’ Rachel Samuel, or by contacting Mr. Frazier. He may be Purpose of the Meeting: The purpose Deputy Committee Management Officer. reached at the postal address or e-mail of the meeting is to hear from Federal, address above. [FR Doc. 2010–21867 Filed 8–31–10; 8:45 am] State and local officials, industry BILLING CODE 6450–01–P Issued in Washington, DC, on August 27, representatives, and others having 2010. expertise in siting interim storage Rachel Samuel, facilities for spent fuel, and for other DEPARTMENT OF ENERGY Deputy Committee Management Officer. similar facilities. The intent is to focus [FR Doc. 2010–21868 Filed 8–31–10; :45 8 am] on what attributes and processes have, Federal Energy Regulatory BILLING CODE 6450–01–P or have not, worked to support Commission successful siting of potentially [Project No. 2464–014] controversial facilities in a manner that DEPARTMENT OF ENERGY is transparent, equitable, and that is Gresham Municipal Utilities; Notice of viewed as credible to the public. The Intent To File License Application, Blue Ribbon Commission on subcommittee will also explore Filing of Pre-Application Document, America’s Nuclear Future, transportation and logistics issues and Approving Use of the Traditional Transportation and Storage related to such siting efforts. Licensing Process Subcommittee Tentative Agenda: The meeting is expected to begin at approximately 8:30 August 25, 2010. AGENCY: Department of Energy, Office of a.m. on Thursday, September 23, 2010, a. Type of Filing: Notice of Intent to Nuclear Energy. with speaker presentations beginning at File License Application and Request to ACTION: Notice of open meeting. 8:45 a.m. and ending at 2:15 p.m. A Use the Traditional Licensing Process. public comment period will be held b. Project No.: P–2464–014. SUMMARY: This notice announces an open meeting of the Transportation and from 2:15 p.m. to 3 p.m. c. Dated Filed: June 28, 2010. Storage (T&S) Subcommittee. The T&S Public Participation: Subcommittee d. Submitted By: Gresham Municipal Subcommittee is a subcommittee of the meetings are not required to be open to Utilities. Blue Ribbon Commission on America’s the public; however, the Commission e. Name of Project: Weed Dam Nuclear Future (the Commission). The has elected to open the presentation Hydroelectric Project. establishment of subcommittees is sessions of the meeting to the public. f. Location: On Red River in Shawano authorized in the Commission’s charter. Individuals and representatives of County, Wisconsin. No federal lands are The Commission was organized organizations who would like to offer occupied by the project works or located pursuant to the Federal Advisory comments and suggestions may do so at within the project boundary. Committee Act (Pub. L. 92–463, 86 Stat. the end of the public session on g. Filed Pursuant to: 18 CFR 5.3 of the 770) (the Act). This notice is provided Thursday, September 23, 2010. Commission’s regulations. in accordance with the Act. Approximately 45 minutes will be h. Potential Applicant Contact: reserved for public comments from 2:15 Gresham Municipal Utilities, Village of DATES: Thursday, September 23, 2010, p.m. to 3 p.m. Time allotted per speaker Gresham, Wisconsin, Attn: Art Bahr, 8:30 a.m.–3 p.m. will depend on the number who wish to Village Administrator, 1126 Main Street, ADDRESSES: Washington Marriott Hotel, speak but will not exceed 5 minutes. PO Box 50, Gresham, WI 54128. 1221 22nd Street, NW., Washington, DC, The Designated Federal Officer is i. FERC Contact: Janet Hutzel at (202) Phone: 202–872–1500. empowered to conduct the meeting in a 502–8675; or e-mail at FOR FURTHER INFORMATION CONTACT: fashion that will facilitate the orderly [email protected]. Timothy A. Frazier, Designated Federal conduct of business. Those wishing to j. Gresham Municipal Utilities filed Officer, U.S. Department of Energy, speak should register to do so beginning its request to use the Traditional 1000 Independence Avenue, SW., at 8 a.m. on September 23, 2010, at the Licensing Process on June 28, 2010.

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Gresham Municipal Utilities provided DEPARTMENT OF ENERGY Reference Room in Washington, DC. public notice of its request on July 6, There is an ‘‘eSubscription’’ link on the 2010. In a letter issued on August 23, Federal Energy Regulatory Web site that enables subscribers to 2010, Ms. Ann F. Miles, the Director of Commission receive e-mail notification when a the Division of Hydropower Licensing, [Docket No. EL10–82–000] document is added to a subscribed approved Gresham Municipal Utilities docket(s). For assistance with any FERC request to use the Traditional Licensing Southern Montana Electric Generation Online service, please e-mail Process. & Transmission Cooperative, Inc. v. [email protected], or call NorthWestern Corporation; Notice of (866) 208–3676 (toll free). For TTY, call k. With this notice, we are initiating Complaint (202) 502–8659. informal consultation with: (a) The U.S. Comment Date: 5 p.m. Eastern Time Fish and Wildlife under section 7 of the August 25, 2010. on September 9, 2010. Endangered Species Act and the joint Take notice that on August 20, 2010, agency regulations thereunder at 50 pursuant to section 206 of the Federal Kimberly D. Bose, CFR, part 402; and (b) the Wisconsin Power Act, 16 U.S.C. 824c, and Rule 206 Secretary. State Historic Preservation Officer, as of the Federal Energy Regulatory [FR Doc. 2010–21790 Filed 8–31–10; 8:45 am] required by section 106, National Commission’s (Commission) Rules of BILLING CODE 6717–01–P Historical Preservation Act, and the Practice and Procedure, 18 CFR 385.206, implementing regulations of the Southern Montana Electric Generation & Advisory Council on Historic Transmission Cooperative, Inc. DEPARTMENT OF ENERGY (Complainant) filed a complaint against Preservation at 36 CFR 800.2. NorthWestern Corporation Federal Energy Regulatory l. Gresham Municipal Utilities filed a (Respondent), alleging that the Commission Pre-Application Document (PAD; Respondent violated Commission [Project No. 2106–059] including a proposed process plan and policies and its Open Access schedule) with the Commission, Transmission Tariff by (1) using an Pacific Gas and Electric Company, pursuant to 18 CFR 5.6 of the ‘‘umbrella’’ or ‘‘enabling’’ agreement as California; Notice Correcting Times for Commission’s regulations. the contractual basis for a long-term Public Draft Environmental Impact m. A copy of the PAD is available for point-to-point transmission service and Statement Meetings review at the Commission in the Public (2) billing the Complainant with respect to a transmission service for which they August 25, 2010. Reference Room or may be viewed on had not contracted. As stated in the July 30, 2010 Notice the Commission’s Web site (http:// Complainant certifies that copies of of Availability for the McCloud-Pit www.ferc.gov), using the ‘‘eLibrary’’ link. the complaint were served on the Hydroelectric Project draft Enter the docket number, excluding the contacts listed for Respondent as listed Environmental Impact Statement (EIS), last three digits in the docket number on the Commission’s list of Corporate Commission staff will be conducting field to access the document. For Officials. two public meetings to receive assistance, contact FERC Online Any person desiring to intervene or to comments on the draft EIS. The July 30, Support at protest this filing must file in 2010 notice, however, incorrectly listed [email protected] or toll accordance with Rules 211 and 214 of the time for the morning meeting as 9 free at 1–866–208–3676, or for TTY, the Commission’s Rules of Practice and a.m.–11 p.m.. This notice corrects that (202) 502–8659. A copy is also available Procedure (18 CFR 385.211, 385.214). error to indicate the meeting is from 9 for inspection and reproduction at the Protests will be considered by the a.m.–11 a.m. address in paragraph h. Commission in determining the The time and location of the meetings are as follows: n. The licensee states its unequivocal appropriate action to be taken, but will not serve to make protestants parties to Morning Meeting: intent to submit an application for a the proceeding. Any person wishing to Date: September 9, 2010. new license for Project No. 2464. become a party must file a notice of Time: 9 a.m.–11 a.m. Pursuant to 18 CFR 16.8, 16.9, and 16.10 intervention or motion to intervene, as Place: Holiday Inn Hotel, each application for a new license and appropriate. The Respondent’s answer Address: 1900 Hilltop Dr., any competing license applications and all interventions, or protests must Redding, CA. must be filed with the Commission at be filed on or before the comment date. Evening Meeting: least 24 months prior to the expiration The Respondent’s answer, motions to Date: September 9, 2010. of the existing license. All applications intervene, and protests must be served Time: 7 p.m.–9 p.m. for license for this project must be filed on the Complainants. Place: Holiday Inn Hotel, by June 30, 2013. The Commission encourages Address: 1900 Hilltop Dr., o. Register online at http:// electronic submission of protests and Redding, CA. www.ferc.gov/docs-filing/ interventions in lieu of paper using the At these meetings, resource agency esubscription.asp to be notified via e- ‘‘eFiling’’ link at http://www.ferc.gov. personnel and other interested persons mail of new filing and issuances related Persons unable to file electronically will have the opportunity to provide oral and written comments and to this or other pending projects. For should submit an original and 14 copies recommendations regarding the draft assistance, contact FERC Online of the protest or intervention to the Federal Energy Regulatory Commission, EIS. The meetings will be recorded by Support. 888 First Street, NE., Washington, DC a court reporter, and all statements Kimberly D. Bose, 20426. (verbal and written) will become part of Secretary. This filing is accessible online at the Commission’s public record for the [FR Doc. 2010–21794 Filed 8–31–10; 8:45 am] http://www.ferc.gov, using the project. This meeting is posted on the ‘‘eLibrary’’ link and is available for Commission’s calendar located at BILLING CODE 6717–01–P review in the Commission’s Public http://www.ferc.gov/EventCalendar/

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EventsList.aspx along with other related intervene or protest must serve a copy On June 7, 2010, Southern LNG information. of that document on the Applicant. Company, L.L.C. (Southern LNG) filed a Whether or not you attend one of Notice is hereby given that the tariff sheet to revise its tariff with these meetings, you are invited to deadline for filing protests with regard respect to gas quality and submit written comments on the draft to the applicant’s request for blanket interchangeability. On July 28, 2010, the EIS. Comments should be filed with authorization, under 18 CFR part 34, of Commission accepted and suspended Kimberly D. Bose, Secretary, Federal future issuances of securities and Southern LNG’s proposed tariff sheet, to Energy Regulatory Commission, 888 assumptions of liability, is September become effective January 1, 2011, or an First Street, NE., Washington, DC 20426. 14, 2010. earlier date set by subsequent All comments must be filed by The Commission encourages Commission order, subject to conditions electronic submission of protests and September 28, 2010, and should and the outcome of a technical interventions in lieu of paper, using the reference Project No. 2106–059. conference.1 During the technical Comments may be filed electronically FERC Online links at http:// conference, Commission Staff and via the Internet in lieu of paper. The www.ferc.gov. To facilitate electronic interested persons will have the Commission strongly encourages service, persons with Internet access electronic filings. See 18 CFR who will eFile a document and/or be opportunity to discuss all of the issues 385.2001(a)(1)(iii) and instructions on listed as a contact for an intervenor raised by Southern LNG’s filing. the Commission’s Web site at http:// must create and validate an Southern LNG should be prepared to www.ferc.gov under the ‘‘e-Library’’ link. eRegistration account using the address all concerns raised by South The Commission staff will consider eRegistration link. Select the eFiling Carolina Electric & Gas Company in its comments made on the draft EIS in link to log on and submit the protest to the filing, and to provide preparing a final EIS for the project. intervention or protests. additional technical, engineering, and Before the Commission makes a Persons unable to file electronically operational support for its proposed gas licensing decision, it will take into should submit an original and 14 copies quality and interchangeability account all concerns relevant to the of the intervention or protest to the standards. Consistent with the public interest. The final EIS will be Federal Energy Regulatory Commission, Commission’s policy statement on gas part of the record from which the 888 First Street, NE., Washington, DC quality issues, Southern LNG should Commission will make its decision. 20426. also be prepared to explain how its The filings in the above-referenced For further information, please proposal conforms with or differs from proceeding are accessible in the contact Emily Carter at (202) 502–6512. the Interim Guidelines and principles. Commission’s eLibrary system by Kimberly D. Bose, clicking on the appropriate link in the See Natural Gas Interchangeability, Secretary. above list. They are also available for Policy Statement on Provisions [FR Doc. 2010–21792 Filed 8–31–10; 8:45 am] review in the Commission’s Public Governing Natural Gas Quality and BILLING CODE 6717–01–P Reference Room in Washington, DC. Interchangeability in Interstate Natural There is an eSubscription link on the Gas Pipeline Company Tariffs, 115 Web site that enables subscribers to FERC ¶ 61,325 at P 34, 37 (2006). DEPARTMENT OF ENERGY receive e-mail notification when a FERC conferences are accessible document is added to a subscribed under section 508 of the Rehabilitation Federal Energy Regulatory docket(s). For assistance with any FERC Commission Act of 1973. For accessibility Online service, please e-mail accommodations please send an e-mail [email protected] or call to [email protected] or call toll free [Docket No. ER10–2281–000] (866) 208–3676 (toll free). For TTY, call (866) 208–3372 (voice) or (202) 502– (202) 502–8659. Constellation Mystic Power, LLC; 8659 (TTY), or send a fax to (202) 208– Supplemental Notice That Initial Kimberly D. Bose, 2106 with the required Market-Based Rate Filing Includes Secretary. accommodations. Request for Blanket Section 204 [FR Doc. 2010–21791 Filed 8–31–10; 8:45 am] All interested persons are permitted Authorization BILLING CODE 6717–01–P to attend. For further information please August 25, 2010. contact Jennifer Kunz at (202) 502–6102 or e-mail [email protected]. This is a supplemental notice in the DEPARTMENT OF ENERGY above-referenced proceeding of Kimberly D. Bose, Constellation Mystic Power, LLC’s Federal Energy Regulatory Secretary. application for market-based rate Commission [FR Doc. 2010–21793 Filed 8–31–10; 8:45 am] authority, with an accompanying rate [Docket No. RP10–829–000] BILLING CODE 6717–01–P tariff, noting that such application includes a request for blanket Southern LNG Company, L.L.C.; Notice authorization, under 18 CFR part 34, of of Technical Conference future issuances of securities and assumptions of liability. August 25, 2010. Any person desiring to intervene or to Take notice that Commission Staff protest should file with the Federal will convene a technical conference in Energy Regulatory Commission, 888 the above-referenced proceeding on First Street, NE., Washington, DC 20426, Tuesday, September 14, 2010, at 9 a.m. in accordance with Rules 211 and 214 (EST), in a room to be designated at the of the Commission’s Rules of Practice offices of the Federal Energy Regulatory and Procedure (18 CFR 385.211 and Commission, 888 First Street, NE., 385.214). Anyone filing a motion to Washington, DC 20426. 1 132 FERC ¶ 61,076 (2010).

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ENVIRONMENTAL PROTECTION DATES: Publication of this notice will ENVIRONMENTAL PROTECTION AGENCY start a ten working day comment period AGENCY on revisions to the FY2011 Brownfields [EPA–HQ–OPP–2009–1016; FRL–8842–5] [FRL09195–8] Grant Guidelines. Comments will be accepted through September 13, 2010. Issuance of an Experimental Use Creation of the Fiscal Year (FY) 2011 EPA expects to release a Request for Permit ‘‘Environmental Workforce Applications (RFA) based on these Development and Job Training Grants revised application guidelines in AGENCY: Environmental Protection Program,’’ Formerly Referred to as the October 2010 with an anticipated Agency (EPA). ‘‘Brownfields Job Training Grants deadline for submission of applications ACTION: Notice. Program’’ in January 2011. SUMMARY: EPA has granted an ADDRESSES: The draft application experimental use permit (EUP) to the AGENCY: Environmental Protection guidelines/RFA can be downloaded at: following pesticide applicant. An EUP Agency (EPA). http://www.epa.gov/brownfields/. If you permits use of a pesticide for ACTION do not have Internet access and require : Notice. experimental or research purposes only hard copies of the draft guidelines in accordance with the limitations in SUMMARY: Section 104(k)(5)(A)(iii) of the please contact Joseph Bruss at (202) the permit. Comprehensive Environmental 566–2772. Please send any comments to Response, Compensation and Liability Joseph Bruss at [email protected] FOR FURTHER INFORMATION CONTACT: Gina Act (CERCLA) requires EPA to publish no later than September 13, 2010. Casciano, Biopesticides and Pollution Prevention Division (7511P), Office of guidance to assist applicants in FOR FURTHER INFORMATION CONTACT: preparing proposals/applications for Pesticide Programs, Environmental EPA’s Office of Solid Waste and Protection Agency, 1200 Pennsylvania grants to provide environmental training Emergency Response, Office of to facilitate the management, Ave., NW., Washington, DC 20460– Brownfields and Land Revitalization, 0001; telephone number: (703) 605– assessment, and cleanup of sites (202) 566–2777. contaminated by solid and hazardous 0513; e-mail address: SUPPLEMENTARY INFORMATION: Please waste. EPA’s Office of Solid Waste and [email protected]. note that in accordance with 5 U.S.C. Emergency Response (OSWER) provides SUPPLEMENTARY INFORMATION: 553(a)(2), EPA is not undertaking notice funds to empower States, communities, and comment rulemaking and has not I. General Information Tribes and nonprofits to prevent, established a docket to receive public inventory, assess, clean up and reuse A. Does this Action Apply to Me? comments on the guidelines. Rather, the sites where real or perceived Agency as a matter of policy is soliciting This action is directed to the public contamination exists and does so by the views of interested parties on in general. Although this action may be working through OSWER’s Office of proposed changes to the application of particular interest to those persons Brownfields and Land Revitalization guidelines in an effort to make the who conduct or sponsor research on (OBLR); Office of Resource Conservation guidelines as responsive as possible to pesticides, the Agency has not and Recovery; Office of Superfund the needs of the public. Please note that attempted to describe all the specific Remediation and Technology these draft guidelines are subject to entities that may be affected by this Innovation; Office of Underground change. Please also note that for EWDJT action. If you have any questions Storage Tanks; Federal Facilities grants, EPA must continue to impose regarding the information in this action, Restoration and Reuse Office; Center for the administrative cost prohibition as consult the person listed under FOR Program Analysis; the Innovations, that requirement is statutory. FURTHER INFORMATION CONTACT. Partnerships, and Communication Additionally, like the Brownfields Job Office; and Office of Emergency B. How Can I Get Copies of this Training Grants, the Agency will, as Management. In 2010, OBLR lead an Document and Other Related matter of policy, prohibit grantees from effort to more closely collaborate on Information? using funds to support life skills workforce development and job training training. Rather, EPA encourages EPA has established a docket for this with other programs within OSWER to grantees to partner with local Workforce action under docket identification (ID) develop a job training cooperative Investment Boards to deliver these number EPA–HQ–OPP–2009–1016. agreement opportunity that includes critical services. Organizations Publicly available docket materials are expanded training in other interested in applying for funding must available either in the electronic docket environmental media outside the follow the instructions contained in the at http://www.regulations.gov, or, if only traditional scope of just brownfields. As final application guidelines that EPA available in hard copy, at the Office of a result of this collaboration, the former will publish on http://www.grants.gov Pesticide Programs (OPP) Regulatory ‘‘Brownfields Job Training Grants in October 2010, rather than these draft Public Docket in Rm. S–4400, One Program’’ was expanded and will now guidelines. Potomac Yard (South Bldg.), 2777 S. be referred to as the ‘‘Environmental Crystal Dr., Arlington, VA. The hours of Workforce Development and Job The Catalogue of Federal Domestic operation of this Docket Facility are Assistance entry for this competitive funding Training (EWDJT) Grants Program.’’ from 8:30 a.m. to 4 p.m., Monday With the creation of the ‘‘Environmental opportunity includes 66.815, 66.813, and 66.808. through Friday, excluding legal Workforce Development and Job holidays. The Docket Facility telephone Training Grants Program,’’ EPA is Dated: August 26, 2010. number is (703) 305–5805. soliciting comments on the new FY2011 David R. Lloyd, Application Guidelines through this Director, Office of Brownfields and Land II. EUP Federal Register notice, which includes Revitalization, Office of Solid Waste and EPA has issued the following EUP: the institutional framework of the prior Emergency Response. 62097–EUP–1. Issuance. Fine Brownfields Job Training Grants [FR Doc. 2010–21837 Filed 8–31–10; 8:45 am] Agrochemicals, Ltd., c/o SciReg, Inc., Program. BILLING CODE 6560–50–P 12733 Director’s Loop, Woodbridge, VA

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22192. This EUP allows the use of 531 Facility’s normal hours of operation holidays. The Docket Facility telephone pounds of the plant growth regulator (8:30 a.m. to 4 p.m., Monday through number is (703) 305–5805. Prohydrojasmon (PDJ), propyl-3-oxo-2- Friday, excluding legal holidays). FOR FURTHER INFORMATION CONTACT: pentylcyclo-pentylacetate, on 780 acres Special arrangements should be made Jacqueline Campbell-McFarlane, of apples to evaluate plant growth/ for deliveries of boxed information. The Antimicrobials Division (7510P), Office ripening. The program is authorized Docket Facility telephone number is of Pesticide Programs, Environmental only in the States of California, (703) 305–5805. Protection Agency, 1200 Pennsylvania Maryland, Michigan, New York, North Instructions: Direct your comments to Ave., NW., Washington, DC 20460– Carolina, Oregon, Pennsylvania, docket ID number EPA–HQ–OPP–2009– 0001; telephone number: (703) 308– Virginia, Washington, and West 938 and the pesticide petition number 6416; e-mail address: campbell- Virginia. The EUP is effective from (PP). EPA’s policy is that all comments [email protected]. August 6, 2010 to August 1, 2012. received will be included in the docket SUPPLEMENTARY INFORMATION: without change and may be made Authority: 7 U.S.C. 136c. available on-line at http:// I. General Information www.regulations.gov, including any List of Subjects personal information provided, unless A. Does this Action Apply to Me? Environmental protection, the comment includes information You may be potentially affected by Experimental use permits. claimed to be Confidential Business this action if you are an agricultural Information (CBI) or other information producer, food manufacturer, or Dated: August 19, 2010. whose disclosure is restricted by statute. pesticide manufacturer. Potentially W. Michael McDavit, Do not submit information that you affected entities may include, but are Acting Director, Biopesticides and Pollution consider to be CBI or otherwise not limited to: Prevention Division, Office of Pesticide protected through regulations.gov or e- • Crop production (NAICS code Programs. mail. The regulations.gov website is an 111). [FR Doc. 2010–21716 Filed 8–31–10; 8:45 am] ‘‘anonymous access’’ system, which • Animal production (NAICS code BILLING CODE 6560–50–S means EPA will not know your identity 112). or contact information unless you • Food manufacturing (NAICS code provide it in the body of your comment. ENVIRONMENTAL PROTECTION 311). If you send an e-mail comment directly • AGENCY Pesticide manufacturing (NAICS to EPA without going through code 32532). [EPA–HQ–OPP–2009–0938; FRL–8842–2] regulations.gov, your e-mail address This listing is not intended to be will be automatically captured and exhaustive, but rather provides a guide Notice of Receipt of Pesticide Petition included as part of the comment that is for readers regarding entities likely to be Filed for Residues of Potassium placed in the docket and made available affected by this action. Other types of Peroxymonosulfate in or on Various on the Internet. If you submit an entities not listed in this unit could also Commodities electronic comment, EPA recommends be affected. The North American AGENCY: Environmental Protection that you include your name and other Industrial Classification System Agency (EPA). contact information in the body of your (NAICS) codes have been provided to comment and with any disk or CD-ROM ACTION: Notice. assist you and others in determining you submit. If EPA cannot read your whether this action might apply to SUMMARY: This notice announces the comment due to technical difficulties certain entities. If you have any Agency’s receipt of an initial filing of a and cannot contact you for clarification, questions regarding the applicability of pesticide petition proposing the EPA may not be able to consider your this action to a particular entity, consult establishment of regulations for residues comment. Electronic files should avoid the person listed under FOR FURTHER of potassium peroxymonosulfate in or the use of special characters, any form INFORMATION CONTACT. on various commodities. of encryption, and be free of any defects B. What Should I Consider as I Prepare DATES: Comments must be received on or viruses. My Comments for EPA? or before October 1, 2010. Docket: All documents in the docket ADDRESSES: Submit your comments, are listed in the docket index available 1. Submitting CBI. Do not submit this identified by docket identification (ID) at http://www.regulations.gov. Although information to EPA through number EPA–HQ–OPP–2009–938 and listed in the index, some information is regulations.gov or e-mail. Clearly mark the pesticide petition number (PP), by not publicly available, e.g., CBI or other the part or all of the information that one of the following methods: information whose disclosure is you claim to be CBI. For CBI • Federal eRulemaking Portal: restricted by statute. Certain other information in a disk or CD-ROM that http://www.regulations.gov. Follow the material, such as copyrighted material, you mail to EPA, mark the outside of the on-line instructions for submitting is not placed on the Internet and will be disk or CD-ROM as CBI and then comments. publicly available only in hard copy identify electronically within the disk or • Mail: Office of Pesticide Programs form. Publicly available docket CD-ROM the specific information that is (OPP) Regulatory Public Docket (7502P), materials are available either in the claimed as CBI. In addition to one Environmental Protection Agency, 1200 electronic docket at http:// complete version of the comment that Pennsylvania Ave., NW., Washington, www.regulations.gov, or, if only includes information claimed as CBI, a DC 20460–0001. available in hard copy, at the OPP copy of the comment that does not • Delivery: OPP Regulatory Public Regulatory Public Docket in Rm. S– contain the information claimed as CBI Docket (7502P), Environmental 4400, One Potomac Yard (South Bldg.), must be submitted for inclusion in the Protection Agency, Rm. S–4400, One 2777 S. Crystal Dr., Arlington, VA. The public docket. Information so marked Potomac Yard (South Bldg.), 2777 S. hours of operation of this Docket will not be disclosed except in Crystal Dr., Arlington, VA. Deliveries Facility are from 8:30 a.m. to 4 p.m., accordance with procedures set forth in are only accepted during the Docket Monday through Friday, excluding legal 40 CFR part 2.

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2. Tips for preparing your comments. EPA can make a final determination on an active ingredient not included in any When submitting comments, remember this pesticide petition. previously registered pesticide to: Pursuant to 40 CFR 180.7(f), a products. Pursuant to the provisions of i. Identify the document by docket ID summary of the petition that is the section 3(c)(4) of the Federal Insecticide, number and other identifying subject of this notice, prepared by the Fungicide, and Rodenticide Act information (subject heading, Federal petitioner, is included in a docket EPA (FIFRA), EPA is hereby providing notice Register date and page number). has created for this rulemaking. The of receipt and opportunity to comment ii. Follow directions. The Agency may docket for this petition is available on- on this application. ask you to respond to specific questions line at http://www.regulations.gov. DATES: Comments must be received on or organize comments by referencing a As specified in FFDCA section or before October 1, 2010. Code of Federal Regulations (CFR) part 408(d)(3), (21 U.S.C. 346a(d)(3)), EPA is ADDRESSES: Submit your comments, or section number. publishing notice of the petition so that identified by docket identification (ID) iii. Explain why you agree or disagree; the public has an opportunity to number EPA–HQ–OPP–2010–0615, by suggest alternatives and substitute comment on this request for the one of the following methods: language for your requested changes. establishment or modification of • iv. Describe any assumptions and regulations for residues of pesticides in Federal eRulemaking Portal: provide any technical information and/ or on food commodities. Further http://www.regulations.gov. Follow the or data that you used. information on the petition may be on-line instructions for submitting comments. v. If you estimate potential costs or obtained through the petition summary • burdens, explain how you arrived at referenced in this unit. Mail: Office of Pesticide Programs your estimate in sufficient detail to PP 8F7360. E.I. du Pont de Nemours (OPP) Regulatory Public Docket (7502P), allow for it to be reproduced. and Company, P.O. Box 80402, Environmental Protection Agency, 1200 vi. Provide specific examples to Wilmington, DE 19880–0402, proposes Pennsylvania Ave., NW., Washington, DC 20460–0001. illustrate your concerns and suggest to establish an exemption from the • alternatives. requirement of a tolerance for residues Delivery: OPP Regulatory Public vii. Explain your views as clearly as of the antimicrobial, potassium Docket (7502P), Environmental possible, avoiding the use of profanity peroxymonosulfate, in or on poultry; Protection Agency, Rm. S–4400, One or personal threats. eggs, meat, fat and meat byproducts; Potomac Yard (South Bldg.), 2777 S. viii. Make sure to submit your swine; meat, fat, and meat byproducts. Crystal Dr., Arlington, VA. Deliveries comments by the comment period The petitioner believes no analytical are only accepted during the Docket deadline identified. method is needed because potassium Facility’s normal hours of operation 3. Environmental justice. EPA seeks to peroxymonosulfate is a strong oxidizing (8:30 a.m. to 4 p.m., Monday through achieve environmental justice, the fair agent that is short lived in, or, on treated Friday, excluding legal holidays). treatment and meaningful involvement surfaces and livestock which rapidly Special arrangements should be made of any group, including minority and/or reduces to endogenous sulfate ions. Any for deliveries of boxed information. The low-income populations, in the residues of the sulfate ions that may Docket Facility telephone number is development, implementation, and result would not be distinguishable (703) 305–5805. enforcement of environmental laws, from background levels because they are Instructions: Direct your comments to regulations, and policies. To help ubiquitous inorganic ions common to all docket ID number EPA–HQ–OPP–2010– address potential environmental justice living systems. 0615. EPA’s policy is that all comments issues, the Agency seeks information on received will be included in the docket any groups or segments of the List of Subjects without change and may be made population who, as a result of their Environmental protection, available on-line at http:// location, cultural practices, or other Agricultural commodities, Feed www.regulations.gov, including any factors, may have atypical or additives, Food additives, Pesticides personal information provided, unless disproportionately high and adverse and pests, Reporting and recordkeeping the comment includes information human health impacts or environmental requirements. claimed to be Confidential Business Information (CBI) or other information effects from exposure to the pesticides Dated: August 20, 2010. whose disclosure is restricted by statute. discussed in this document, compared Joan Harrigan-Farrelly, to the general population. Do not submit information that you Director, Antimicrobials Division, Office of consider to be CBI or otherwise Pesticide Programs. II. What Action is the Agency Taking? protected through regulations.gov or e- EPA is announcing receipt of a [FR Doc. 2010–21389 Filed 8–31–10; 8:45 am] mail. The regulations.gov website is an pesticide petition filed under section BILLING CODE 6560–50–S ‘‘anonymous access’’ system, which 408 of the Federal Food, Drug, and means EPA will not know your identity Cosmetic Act (FFDCA), 21 U.S.C. 346a, or contact information unless you ENVIRONMENTAL PROTECTION proposing the establishment of provide it in the body of your comment. AGENCY regulations in 40 CFR part 174 or part If you send an e-mail comment directly 180 for residues of pesticide chemicals [EPA–HQ–OPP–2010–0615; FRL–8839–1] to EPA without going through in or on various food commodities. EPA regulations.gov, your e-mail address has determined that the pesticide Pesticide Products; Registration will be automatically captured and petition described in this notice Applications for a New Active included as part of the comment that is contains data or information prescribed Ingredient Chemical Sedaxane placed in the docket and made available in FFDCA section 408(d)(2); however, AGENCY: Environmental Protection on the Internet. If you submit an EPA has not fully evaluated the Agency (EPA). electronic comment, EPA recommends sufficiency of the submitted data at this ACTION: Notice. that you include your name and other time or whether the data supports contact information in the body of your granting of the pesticide petition. SUMMARY: EPA has received applications comment and with any disk or CD-ROM Additional data may be needed before to register pesticide products containing you submit. If EPA cannot read your

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comment due to technical difficulties this action to a particular entity, consult applications does not imply a decision and cannot contact you for clarification, the person listed under FOR FURTHER by the Agency on these applications. EPA may not be able to consider your INFORMATION CONTACT. 1. File symbol: 100–RGIR. Applicant: comment. Electronic files should avoid Syngenta Crop Protection, Inc., P.O. Box B. What Should I Consider as I Prepare the use of special characters, any form 18300, Greensboro, NC 27419–8300. My Comments for EPA? of encryption, and be free of any defects Product name: Sedaxane Technical. or viruses. 1. Submitting CBI. Do not submit this Active ingredient: Sedaxane at 98%. Docket: All documents in the docket information to EPA through Proposal classification/Use: Fungicide are listed in the docket index available regulations.gov or e-mail. Clearly mark for formulation into end use products. at http://www.regulations.gov. Although the part or all of the information that 2. File symbol: 100–RGIE. Applicant: listed in the index, some information is you claim to be CBI. For CBI Syngenta Crop Protection, Inc., P.O. Box not publicly available, e.g., CBI or other information in a disk or CD-ROM that 18300, Greensboro, NC 27419–8300. information whose disclosure is you mail to EPA, mark the outside of the Product name: A16874F. Active restricted by statute. Certain other disk or CD-ROM as CBI and then ingredients: Sedaxane, difenoconazole, material, such as copyrighted material, identify electronically within the disk or and mefenoxam at 1.22%, 5.86% and is not placed on the Internet and will be CD-ROM the specific information that is 1.46% respectively. Proposal publicly available only in hard copy claimed as CBI. In addition to one classification/Use: Fungicide/seed form. Publicly available docket complete version of the comment that treatment for protection against certain materials are available either in the includes information claimed as CBI, a diseases of barley, oats, rye, triticale, electronic docket at http:// copy of the comment that does not and wheat. www.regulations.gov, or, if only contain the information claimed as CBI 3. File symbol: 100–RGIG. Applicant: available in hard copy, at the OPP must be submitted for inclusion in the Syngenta Crop Protection, Inc., P.O. Box Regulatory Public Docket in Rm. S– public docket. Information so marked 18300, Greensboro, NC 27419–8300. 4400, One Potomac Yard (South Bldg.), will not be disclosed except in Product name: A17511B. Active 2777 S. Crystal Dr., Arlington, VA. The accordance with procedures set forth in ingredients: Sedaxane, difenoconazole, hours of operation of this Docket 40 CFR part 2. mefenoxam, and thiamethoxam at .72%, Facility are from 8:30 a.m. to 4 p.m., 2. Tips for preparing your comments. 3.34%, .86% and 2.78% respectively. Monday through Friday, excluding legal When submitting comments, remember Proposal classification/Use: Fungicide/ holidays. The Docket Facility telephone to: seed treatment for protection against number is (703) 305–5805. i. Identify the document by docket ID damage from certain insects and FOR FURTHER INFORMATION CONTACT: number and other identifying diseases of cereals. Heather Garvie, Registration Division information (subject heading, Federal 4. File symbol: 100–RGTU. Applicant: (7505P), Office of Pesticide Programs, Register date and page number). Syngenta Crop Protection, Inc., P.O. Box Environmental Protection Agency, 1200 ii. Follow directions. The Agency may 18300, Greensboro, NC 27419–8300. Pennsylvania Ave., NW., Washington, ask you to respond to specific questions Product name: Sedaxane 500 FS. Active DC 20460–0001; telephone number: or organize comments by referencing a ingredient: Sedaxane at 45.45%. (703) 308–0034; e-mail address: Code of Federal Regulations (CFR) part Proposal classification/Use: Fungicide/ [email protected]. or section number. seed treatment for protection against certain diseases of barley, canola, oats, SUPPLEMENTARY INFORMATION: iii. Explain why you agree or disagree; suggest alternatives and substitute rye, soybean, triticale, and wheat. I. General Information language for your requested changes. List of Subjects A. Does this Action Apply to Me? iv. Describe any assumptions and provide any technical information and/ Environmental protection, Pesticides You may be potentially affected by or data that you used. and pest. this action if you are an agricultural producer, food manufacturer, or v. If you estimate potential costs or Dated: August 20, 2010. pesticide manufacturer. Potentially burdens, explain how you arrived at Lois Rossi, your estimate in sufficient detail to affected entities may include, but are Director, Registration Division, Office of not limited to: allow for it to be reproduced. Pesticide Programs. • Crop production (NAICS code vi. Provide specific examples to [FR Doc. 2010–21542 Filed 8–31–10; 8:45 am] illustrate your concerns and suggest 111). BILLING CODE 6560–50–S • Animal production (NAICS code alternatives. 112). vii. Explain your views as clearly as • Food manufacturing (NAICS code possible, avoiding the use of profanity ENVIRONMENTAL PROTECTION 311). or personal threats. AGENCY • Pesticide manufacturing (NAICS viii. Make sure to submit your code 32532). comments by the comment period [EPA–HQ–OPP–2010–0008; FRL–8832–7] This listing is not intended to be deadline identified. Pesticide Products; Registration exhaustive, but rather provides a guide Applications for readers regarding entities likely to be II. Registration Applications affected by this action. Other types of EPA received applications to register AGENCY: Environmental Protection entities not listed in this unit could also pesticide products containing an active Agency (EPA). be affected. The North American ingredient not included in any ACTION: Notice. Industrial Classification System previously registered pesticide (NAICS) codes have been provided to products. Pursuant to the provisions of SUMMARY: This notice announces receipt assist you and others in determining section 3(c)(4) of FIFRA, EPA is hereby of applications to register new uses for whether this action might apply to providing notice of receipt and pesticide products containing currently certain entities. If you have any opportunity to comment on this registered active ingredients, pursuant questions regarding the applicability of application. Notice of receipt of these to the provisions of section 3(c) of the

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Federal Insecticide, Fungicide, and and cannot contact you for clarification, the person listed under FOR FURTHER Rodenticide Act (FIFRA), as amended. EPA may not be able to consider your INFORMATION CONTACT. EPA is publishing this notice of such comment. Electronic files should avoid B. What Should I Consider as I Prepare applications, pursuant to section 3(c)(4) the use of special characters, any form My Comments for EPA? of FIFRA. of encryption, and be free of any defects DATES: Comments must be received on or viruses. 1. Submitting CBI. Do not submit this or before October 1, 2010. Docket: All documents in the docket information to EPA through regulations.gov or e-mail. Clearly mark ADDRESSES: Submit your comments, are listed in the docket index available the part or all of the information that identified by docket identification (ID) at http://www.regulations.gov. Although you claim to be CBI. For CBI number specified within Unit II. of the listed in the index, some information is information in a disk or CD-ROM that SUPPLEMENTARY INFORMATION, by one of not publicly available, e.g., CBI or other you mail to EPA, mark the outside of the the following methods: information whose disclosure is disk or CD-ROM as CBI and then • Federal eRulemaking Portal: http:// restricted by statute. Certain other identify electronically within the disk or www.regulations.gov. Follow the on-line material, such as copyrighted material, CD-ROM the specific information that is instructions for submitting comments. is not placed on the Internet and will be • Mail: Office of Pesticide Programs publicly available only in hard copy claimed as CBI. In addition to one (OPP) Regulatory Public Docket (7502P), form. Publicly available docket complete version of the comment that Environmental Protection Agency, 1200 materials are available either in the includes information claimed as CBI, a Pennsylvania Ave., NW., Washington, electronic docket at http:// copy of the comment that does not DC 20460–0001. www.regulations.gov, or, if only contain the information claimed as CBI • Delivery: OPP Regulatory Public available in hard copy, at the OPP must be submitted for inclusion in the Docket (7502P), Environmental Regulatory Public Docket in Rm. S– public docket. Information so marked Protection Agency, Rm. S–4400, One 4400, One Potomac Yard (South Bldg.), will not be disclosed except in Potomac Yard (South Bldg.), 2777 S. 2777 S. Crystal Dr., Arlington, VA. The accordance with procedures set forth in Crystal Dr., Arlington, VA. Deliveries hours of operation of this Docket 40 CFR part 2. 2. Tips for preparing your comments. are only accepted during the Docket Facility are from 8:30 a.m. to 4 p.m., When submitting comments, remember Facility’s normal hours of operation Monday through Friday, excluding legal to: (8:30 a.m. to 4 p.m., Monday through holidays. The Docket Facility telephone i. Identify the document by docket ID Friday, excluding legal holidays). number is (703) 305–5805. number and other identifying Special arrangements should be made FOR FURTHER INFORMATION CONTACT: A information (subject heading, Federal for deliveries of boxed information. The contact person is listed at the end of Register date and page number). If you Docket Facility telephone number is each registration application summary are commenting in a docket that (703) 305–5805. and may be contacted by telephone or addresses multiple products, please Instructions: Direct your comments to e-mail. The mailing address for each indicate to which registration number(s) the docket ID number specified for the contact person listed is: Registration your comment applies. pesticide of interest as shown in the Division (7505P), Office of Pesticide ii. Follow directions. The Agency may registration application summaries. Programs, Environmental Protection ask you to respond to specific questions EPA’s policy is that all comments Agency, 1200 Pennsylvania Ave., NW., or organize comments by referencing a received will be included in the docket Washington, DC 20460–0001. Code of Federal Regulations (CFR) part without change and may be made I. General Information or section number. available on-line at http:// iii. Explain why you agree or disagree; A. Does this Action Apply to Me? www.regulations.gov, including any suggest alternatives and substitute personal information provided, unless You may be potentially affected by language for your requested changes. the comment includes information this action if you are an agricultural iv. Describe any assumptions and claimed to be Confidential Business producer, food manufacturer, or provide any technical information and/ Information (CBI) or other information pesticide manufacturer. Potentially or data that you used. whose disclosure is restricted by statute. affected entities may include, but are v. If you estimate potential costs or Do not submit information that you not limited to: burdens, explain how you arrived at consider to be CBI or otherwise • Crop production (NAICS code 111). your estimate in sufficient detail to protected through regulations.gov or e- • Animal production (NAICS code allow for it to be reproduced. mail. The regulations.gov website is an 112). vi. Provide specific examples to ‘‘anonymous access’’ system, which • Food manufacturing (NAICS code illustrate your concerns and suggest means EPA will not know your identity 311). alternatives. or contact information unless you • Pesticide manufacturing (NAICS vii. Explain your views as clearly as provide it in the body of your comment. code 32532). possible, avoiding the use of profanity If you send an e-mail comment directly This listing is not intended to be or personal threats. to EPA without going through exhaustive, but rather provides a guide viii. Make sure to submit your regulations.gov, your e-mail address for readers regarding entities likely to be comments by the comment period will be automatically captured and affected by this action. Other types of deadline identified. included as part of the comment that is entities not listed in this unit could also placed in the docket and made available be affected. The North American II. Registration Applications on the Internet. If you submit an Industrial Classification System EPA received applications as follows electronic comment, EPA recommends (NAICS) codes have been provided to to register pesticide products containing that you include your name and other assist you and others in determining currently registered active ingredients contact information in the body of your whether this action might apply to pursuant to the provisions of section comment and with any disk or CD-ROM certain entities. If you have any 3(c) of FIFRA, and is publishing this you submit. If EPA cannot read your questions regarding the applicability of notice of such applications pursuant to comment due to technical difficulties this action to a particular entity, consult section 3(c)(4) of FIFRA. Notice of

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receipt of these applications does not SUMMARY: Under Section 122(h)(1) of the DATES: September 21, 2010. imply a decision by the Agency on the Comprehensive Environmental ADDRESSES: Federal Communications applications. Response, Compensation and Liability Commission, Room TW–C305 1. File symbol: 239–ETNN. Docket Act (CERCLA), the United States (Commission Meeting Room), 445 12th number: EPA–HQ–OPP–2009–0276. Environmental Protection Agency has Street, SW., Washington, DC 20554. Company name and address: The Scotts entered into a settlement for FOR FURTHER INFORMATION CONTACT: Company, D/B/A The Ortho Group, P.O. reimbursement of past response costs Barbara Kreisman, 202–418–1605; Box 190, Marysville, OH 43040. Active concerning the Florida Petroleum [email protected]. ingredient: Triticonazole. Proposed Reprocessors Superfund Site located in uses: Lawns, gardens (ornamentals, Davie, Broward County, Florida for SUPPLEMENTARY INFORMATION: At this roses, trees, and scrubs), and publication. meeting the Constitutional, Broadband houseplants. Contact: Tawanda and Media Issues working groups will DATES: The Agency will consider public Maignan, (703) 308–8050, present best practices recommendations comments on the settlement until [email protected]. and review their work over the course October 1, 2010. The Agency will 2. Registration numbers: 279–3055, of this Federal Advisory group charter. consider all comments received and 279–3108, 279–3313. Docket number: Members of the general public may may modify or withdraw its consent to EPA–HQ–OPP–2007–0099. Company attend the meeting. The FCC will the settlement if comments received name and address: FMC Corporation, attempt to accommodate as many disclose facts or considerations which 1735 Market Street, Philadelphia, PA people as possible. However, indicate that the settlement is 19103. Active ingredient: Bifenthrin. admittance will be limited to seating inappropriate, improper, or inadequate. Proposed uses: Grass forage, fodder and availability. The public may submit hay group, grass grown for seed, pasture ADDRESSES: Copies of the settlement are written comments before the meeting to: and rangeland, and tea. Contact: available from Ms. Paula V. Painter. Barbara Kreisman, the FCC’s Designated BeWanda Alexander, (703) 305–7460, Submit your comments, identified by Federal Officer for the Diversity [email protected]. Docket ID No. EPA–RO4–SFUND–2010– Committee by e-mail: 3. Registration numbers: 279–3124, 0729 or Site name Florida Petroleum [email protected] or U.S. 279–3126. Docket number: EPA–HQ– Reprocessors Superfund Site by one of Postal Service Mail (Barbara Kreisman, OPP–2010–0472. Company name and the following methods: • Federal Communications Commission, address: FMC Corporation, 1735 Market http://www.regulations.gov: Follow Room 2–A665, 445 12th Street, SW., Street, Philadelphia, PA 19103. Active the on-line instructions for submitting Washington, DC 20554). ingredient: Zeta-Cypermethrin. comments. Open captioning will be provided for • http://www.epa.gov/region4/waste/ Proposed use: Pistachio. Contact: Linda this event. Other reasonable sf/enforce.htm. A. DeLuise, (703) 305–5428, accommodations for people with • Email: [email protected]. [email protected]. disabilities are available upon request. FOR FURTHER INFORMATION CONTACT: 4. Registration number: 279–3125. Requests for such accommodations Docket number: EPA–HQ–OPP–2010– Paula V. Painter at (404) 562–8887. should be submitted via e-mail to 0472. Company name and address: FMC Dated: August 18, 2010. [email protected] or by calling the Corporation, 1735 Market Street, Anita L. Davis, Consumer & Governmental Affairs Philadelphia, PA 19103. Active Chief, Superfund Enforcement & Information Bureau at (202) 418–0530 (voice), (202) ingredient: Zeta-Cypermethrin. Management Branch, Superfund Division. 418–0432 (tty). Such requests should Proposed uses: Artichoke, barley, [FR Doc. 2010–21834 Filed 8–31–10; 8:45 am] include a detailed description of the buckwheat, oat, pistachio, and rye. BILLING CODE 6560–50–P accommodation needed. In addition, Contact: Linda A. DeLuise, (703) 305– please include a way we can contact 5428, [email protected]. you if we need more information. Please List of Subjects FEDERAL COMMUNICATIONS allow at least five days advance notice; Environmental protection, Pesticides COMMISSION last minute requests will be accepted, and pest. but may be impossible to fill. Federal Advisory Committee Act; Additional information regarding the Dated: August 20, 2010. Advisory Committee on Diversity for Diversity Committee can be found at Lois Rossi, Communications in the Digital Age http://www.fcc.gov/DiversityFAC. Director, Registration Division, Office of AGENCY: Federal Communications Barbara A. Kreisman, Pesticide Programs. Commission. Chief, Video Division, Media Bureau, Federal [FR Doc. 2010–21827 Filed 8–31–10; 8:45 am] ACTION: Notice of public meeting. Communications Commission. BILLING CODE 6560–50–S [FR Doc. 2010–21890 Filed 8–31–10; 8:45 am] SUMMARY: In accordance with the BILLING CODE 6712–01–P Federal Advisory Committee Act, this ENVIRONMENTAL PROTECTION notice advises interested persons that AGENCY the Federal Communications Commission’s (FCC) Advisory FEDERAL DEPOSIT INSURANCE [Docket # EPA–RO4–SFUND–2010–0729, CORPORATION FRL–9196–1] Committee on Diversity for Communications in the Digital Age Update to Notice of Financial Florida Petroleum Reprocessors (‘‘Diversity Committee’’) will hold a Institutions for Which the Federal Superfund Site; Davie, Broward meeting on Tuesday, September 21, Deposit Insurance Corporation Has County, FL; Notice of Settlement 2010 at 2 p.m. in the Commission Been Appointed Either Receiver, AGENCY: Environmental Protection Meeting Room of the Federal Liquidator, or Manager Agency. Communications Commission, Room TW–C305, 445 12th Street, SW., AGENCY: Federal Deposit Insurance ACTION: Notice of settlement. Washington, DC 20554. Corporation.

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ACTION: Update Listing of Financial to time in the Federal Register) may be visit the Corporation Web site at http:// Institutions in Liquidation. relied upon as ‘‘of record’’ notice that the www.fdic.gov/bank/individual/failed/ Corporation has been appointed receiver banklist.html or contact the Manager of SUMMARY: Notice is hereby given that for purposes of the statement of policy Receivership Oversight in the the Federal Deposit Insurance published in the July 2, 1992 issue of appropriate service center. Corporation (Corporation) has been appointed the sole receiver for the the Federal Register (57 FR 29491). For Dated: August 23, 2010. following financial institutions effective further information concerning the Federal Deposit Insurance Corporation. as of the Date Closed as indicated in the identification of any institutions which Pamela Johnson, listing. This list (as updated from time have been placed in liquidation, please Regulatory Editing Specialist.

INSTITUTIONS IN LIQUIDATION [In alphabetical order]

FDIC Ref. No. Bank name City State Date closed

10278 ...... Butte Community Bank ...... Chico ...... CA ...... 8/20/2010. 10279 ...... Community National Bank at Bartow ...... Bartow ...... FL ...... 8/20/2010. 10280 ...... Imperial Savings and Loan Association ...... Martinsville ...... VA ...... 8/20/2010. 10281 ...... Independent National Bank ...... Ocala ...... FL ...... 8/20/2010. 10282 ...... Los Padres Bank ...... Solvang ...... CA ...... 8/20/2010. 10283 ...... Pacific State Bank ...... Stockton ...... CA ...... 8/20/2010. 10284 ...... ShoreBank ...... Chicago ...... IL ...... 8/20/2010. 10285 ...... Sonoma Valley Bank ...... Sonoma ...... CA ...... 8/20/2010.

[FR Doc. 2010–21810 Filed 8–31–10; 8:45 am] from the National Information Center companies listed below, that engages BILLING CODE P website at www.ffiec.gov/nic/. either directly or through a subsidiary or Unless otherwise noted, comments other company, in a nonbanking activity regarding each of these applications that is listed in § 225.28 of Regulation Y must be received at the Reserve Bank (12 CFR 225.28) or that the Board has FEDERAL RESERVE SYSTEM indicated or the offices of the Board of determined by Order to be closely Governors not later than September 27, related to banking and permissible for Formations of, Acquisitions by, and 2010. bank holding companies. Unless Mergers of Bank Holding Companies A. Federal Reserve Bank of San otherwise noted, these activities will be Francisco (Kenneth Binning, Vice The companies listed in this notice conducted throughout the United States. President, Applications and have applied to the Board for approval, Enforcement) 101 Market Street, San Each notice is available for inspection pursuant to the Bank Holding Company Francisco, California 94105–1579: at the Federal Reserve Bank indicated. Act of 1956 (12 U.S.C. 1841 et seq.) 1. Wells Fargo & Company, San The notice also will be available for (BHC Act), Regulation Y (12 CFR Part Francisco, California; to acquire more inspection at the offices of the Board of 225), and all other applicable statutes than 5 percent of the voting shares of Governors. Interested persons may and regulations to become a bank Western Liberty Bancorporation, New express their views in writing on the holding company and/or to acquire the York, New York, and thereby indirectly question whether the proposal complies assets or the ownership of, control of, or acquire more than 5 percent of the with the standards of section 4 of the the power to vote shares of a bank or voting shares of Service 1st Bank of BHC Act. Additional information on all bank holding company and all of the Nevada, Las Vegas, Nevada. bank holding companies may be banks and nonbanking companies obtained from the National Information owned by the bank holding company, Board of Governors of the Federal Reserve Center website at www.ffiec.gov/nic/. System, August 27, 2010. including the companies listed below. Unless otherwise noted, comments The applications listed below, as well Jennifer J. Johnson, Secretary of the Board. regarding the applications must be as other related filings required by the received at the Reserve Bank indicated [FR Doc. 2010–21807 Filed 8–31–10; 8:45 am] Board, are available for immediate or the offices of the Board of Governors inspection at the Federal Reserve Bank BILLING CODE 6210–01–S not later than September 16, 2010. indicated. The applications also will be available for inspection at the offices of A. Federal Reserve Bank of Chicago the Board of Governors. Interested FEDERAL RESERVE SYSTEM (Colette A. Fried, Assistant Vice persons may express their views in President) 230 South LaSalle Street, Notice of Proposals to Engage in Chicago, Illinois 60690–1414: writing on the standards enumerated in Permissible Nonbanking Activities or the BHC Act (12 U.S.C. 1842(c)). If the to Acquire Companies that are 1. Marshall & Ilsley Corporation, proposal also involves the acquisition of Engaged in Permissible Nonbanking Milwaukee, Wisconsin; to retain an a nonbanking company, the review also Activities additional 4 percent, for a total equity includes whether the acquisition of the of 84 percent, of Taplin Canida Habacht nonbanking company complies with the The companies listed in this notice LLC, Miami, Florida, and thereby standards in section 4 of the BHC Act have given notice under section 4 of the continue to engage in financial and (12 U.S.C. 1843). Unless otherwise Bank Holding Company Act (12 U.S.C. investment advisory activities, and noted, nonbanking activities will be 1843) (BHC Act) and Regulation Y (12 agency transactional services, pursuant conducted throughout the United States. CFR Part 225) to engage de novo, or to to sections 225.28(b)(6)(i), Additional information on all bank acquire or control voting securities or 225.28(b)(6)(v), and 225.28(b)(7)(i) of holding companies may be obtained assets of a company, including the Regulation Y.

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Board of Governors of the Federal Reserve amend an existing OTI license or the Valley Stream, NY 11581. Officers: System, August 27, 2010. Qualifying Individual (QI) for a license. Antonio Rodriguez, Vice President Jennifer J. Johnson, Interested persons may contact the (Qualifying Individual), Torri Secretary of the Board. Office of Transportation Intermediaries, Hideyuki, President. Application [FR Doc. 2010–21806 Filed 8–31–10; 8:45 am] Federal Maritime Commission, Type: Add NVO Service. BILLING CODE 6210–01–S Washington, DC 20573. Norma’s Cargo Solutions, LLC (NVO & Advanced Shipping Corporation dba OFF), 5665 SW 8th Street, Miami, FL Star Cluster USA (NVO), 1908 E. 33134. Officer: Norma A. Pineiro, FEDERAL MARITIME COMMISSION Dominguez Street, Carson, CA 90810. Managing Member (Qualifying Officer: Suwon Song, President Individual). Application Type: Add Notice of Agreement Filed (Qualifying Individual). Application NVO Service. Type: Trade Name Change. Pacific Glory USA, Inc (NVO & OFF), The Commission hereby gives notice American Cargoservice, Inc. (NVO & 5673 Old Dixie Highway, #102, Forest of the filing of the following agreement OFF), 7880 Convoy Court, San Diego, Park, GA 30297. Officer: Kil Ra, CEO under the Shipping Act of 1984. CA 92111. Officers: Terrence C. (Qualifying Individual). Application Interested parties may submit comments Simokat, President/CFO/Secretary Type: Add NVO Service. on the agreement to the Secretary, (Qualifying Individual), Theodore Primex Cargo, Inc. (NVO), 9210 Federal Maritime Commission, Green, Stockholder. Application Bloomfield Avenue, Suite 103, Washington, DC 20573, within ten days Type: New NVO & OFF License. Cypress, CA 90630. Officer: Chris H. of the date this notice appears in the Aventura Logistics, Inc. (NVO & OFF), Kang, President/Secretary/Treasurer Federal Register. A copy of the 18181 NE 31 Court, Suite 1203, (Qualifying Individual). Application agreement is available through the Aventura, FL 33160. Officer: Iryna Type: New NVO License. Commission’s Web site (http:// Klurman, President/Treasurer/ Unico Logistics USA, Inc. (NVO), 10711 www.fmc.gov) or by contacting the Secretary/Director (Qualifying Walker Street, #B, Cypress, CA 90630. Office of Agreements at (202)–523–5793 Individual), Application Type: New Officers: Hwa Y. Yoon, Secretary or [email protected]. NVO & OFF License. (Qualifyng Individual), Dookee Kim, Agreement No.: 011794–014. Cargo Express Logistics, LLC (NVO & CEO/CFO. Application Type: QI Title: COSCON/KL/YMUK/Hanjin OFF), 1170 Brighton Beach Avenue, Change. Worldwide Slot Allocation & Sailing Suite 3–C, Brooklyn, NY 11235. Unique Logistics International (LAX), Agreement. Officer: Julian A. Dozortcev, President Inc. (NVO), 16330 Marquardt Avenue, Parties: COSCO Container Lines (Qualifying Individual), Application Company, Limited; Hanjin Shipping Cerritos, CA 90703. Officers: Type: New NVO & OFF License. Sunandan Ray, CEO (Qualifying Co., Ltd.; Kawasaki Kisen Kaisha, Ltd.; Cedars Express International, Inc. (NVO and Yangming (UK) Ltd. Individual), Richard Lee. Application & OFF), 960 E. Walnut Street, Carson, Type: QI Change. Filing Party: Robert B. Yoshitomi, CA 90746. Officers: George Salloum, United Shipping Group Inc. (OFF), 1307 Esq.; Nixon Peabody LLP; 555 West President/Secretary/Treasurer E. Colorado Street, Glendale, CA Fifth Street, 46th Floor; Los Angeles, CA (Qualifying Individual), Carol 91205. Officer: Mkrtich Tamrazyan, 90013. Salloum, Vice President. Application President (Qualifying Individual). Synopsis: The amendment updates Type: QI Change. Application Type: New OFF License. references to EU law and permits less CN WorldWide Inc. (NVO), 935 de la than the full membership to discuss and Gauchetiere Street West, Montreal, Dated: August 26, 2010. agree on matters authorized by the Quebec H2B 2M9 Canada. Officers: Rachel E. Dickon, Agreement. Paul D. Tonsager, Vice President– Assistant Secretary. By Order of the Federal Maritime North America (Qualifying [FR Doc. 2010–21885 Filed 8–31–10; 8:45 am] Commission. Individual), Anita Ernesaks, BILLING CODE 6730–01–P Dated: August 27, 2010. President. Application Type: QI Rachel Dickon, Change. Assistant Secretary. ECM Freight Solutions Corp (NVO), FEDERAL MARITIME COMMISSION 9761 SW 12 Terrace, Miami, FL [FR Doc. 2010–21883 Filed 8–31–10; 8:45 am] 33174. Officers: Christian A. Saravia, Ocean Transportation Intermediary BILLING CODE 6730–01–P Vice President (Qualifying License Revocations Individual), Eduardo N. Otero, The Federal Maritime Commission FEDERAL MARITIME COMMISSION President. Application Type: New NVO License. hereby gives notice that the following Everplus Logistics Inc. (NVO & OFF), 3 Ocean Transportation Intermediary Ocean Transportation Intermediary licenses have been revoked pursuant to License Applicants University Plaza, Hackensack, NJ 07601. Officers: Danny Shin, section 19 of the Shipping Act of 1984 Notice is hereby given that the Secretary/Treasurer (Qualifying (46 U.S.C. chapter 409) and the following applicants have filed with the Individual), Yun Kang, President. regulations of the Commission Federal Maritime Commission an Application Type: New NVO & OFF pertaining to the licensing of Ocean application for a license as a Non- License. Transportation Intermediaries, 46 CFR Vessel-Operating Common Carrier Globelink Logistics Inc. (NVO & OFF), 3 part 515, effective on the corresponding (NVO) and/or Ocean Freight Forwarder Whispering Pines Lane, Lakewood, NJ date shown below: (OFF)—Ocean Transportation 08701. Officer: Mark Porges, License Number: 2322F. Intermediary (OTI) pursuant to section President/Secretary/Treasurer Name: DFW International Services, 19 of the Shipping Act of 1984 as (Qualifying Individual). Application Inc. amended (46 U.S.C. chapter 409 and 46 Type: New NVO & OFF license. Address: 3025 Roy Orr Blvd., Grand CFR part 515). Notice is also hereby ‘‘K’’ Line Logistics (U.S.A.) Inc. (NVO & Prairie, TX 75050. given of the filing of applications to OFF), 145 Hook Creek Blvd., C5B, Date Revoked: August 12, 2010.

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Reason: Failed to maintain a valid Date Revoked: August 16, 2010. FEDERAL TRADE COMMISSION bond. Reason: Failed to maintain a valid License Number: 3655F. bond. Agency Information Collection Name: Tranzip International Corp. License Number: 017800NF. Activities; Proposed Collection; Address: 137 Tunicflower Lane, West Name: Nick’s International Shipping Comment Request Windsor, NJ 08550. Inc. Address: 1841 Carter Avenue, Bronx, AGENCY: Federal Trade Commission Date Revoked: August 15, 2010. (‘‘Commission’’ or ‘‘FTC’’). Reason: Failed to maintain a valid NY 10457. bond. Dates Revoked: August 8, 2010(N) and ACTION: Notice; request for public comment. License Number: 003864F. July 2, 2010 (OFF). Name: Fredonia, Inc. Reason: Failed to maintain a valid bond. SUMMARY: The FTC intends to conduct Address: 531 W. Roosevelt Road, a survey of consumers to advance its License Number: 018694N. Wheaton, IL 60187. understanding of the prevalence of Date Revoked: August 12, 2010. Name: Global Parcel System LLC. Address: 8304 Northwest 30th consumer fraud and to allow the FTC to Reason: Failed to maintain a valid better serve people who experience bond. Terrace, Miami, FL 33122. Date Revoked: August 13, 2010. fraud. The survey is a follow-up to two License Number: 4063F. Reason: Failed to maintain a valid previous surveys – the first was Name: VIP Transport, Inc. bond. conducted in May and June of 2003 and Address: 2703 Wardlow Road, the second in November and December Corona, CA 91720. License Number: 019006N. Name: ATEC Systems, Ltd. of 2005. Before gathering this Date Revoked: August 13, 2010. Address: 650 S. NorthLake Blvd., information, the FTC is seeking public Reason: Failed to maintain a valid Suite 400, Altamonte Springs, FL 32701. comments on its proposed consumer bond. Date Revoked: August 8, 2010. research. Comments will be considered License Number: 004553F. Reason: Failed to maintain a valid before the FTC submits a request for Name: Marianas Steamship Agencies, bond. Office of Management and Budget Inc. dba MSA Logistics License Number: 019355F. (‘‘OMB’’) review under the Paperwork Address: Commercial Port Annex, Name: Abad Air, Inc. Reduction Act. 2nd Floor, 1010 Cabras Highway, Piti, Address: 10411 NW 28th Street, Suite DATES: Comments must be submitted on Guam 96915. C102, Miami, FL 33172. or before November 1, 2010. Date Revoked: August 15, 2010. Date Revoked: August 6, 2010. Reason: Failed to maintain a valid Reason: Failed to maintain a valid ADDRESSES: Interested parties are bond. bond. invited to submit written comments electronically or in paper form by License Number: 012345N. License Number: 019403NF. Name: Home Run Shipping Name: Vantage International following the instructions in the International, Inc. Incorporated dba Trans Cargo Services Request for Comments part of the Address: 420 W. Merrick Road, Valley dba Vantage International Inc. SUPPLEMENTARY INFORMATION section Stream, NY 11540–0459. Address: 2450 6th Avenue South, below. Comments in electronic form Date Revoked: August 9, 2010. #208, Seattle, WA 98134. should be submitted by using the Reason: Failed to maintain a valid Date Revoked: August 13, 2010. following weblink: (https:// bond. Reason: Failed to maintain a valid ftcpublic.commentworks.com/ftc/ License Number: 015575F. bond. fraudsurvey2010) (and following the Name: Worldwide International, Inc. License Number: 019584N. instructions on the web-based form). Address: 5900 Roche Drive, Suite 315, Name: Dakota Export, LLC. Comments filed in paper form should be Columbus, OH 43229. Address: 1413 7th Street, South Fargo, mailed or delivered to the following Date Revoked: August 14, 2010. ND 58103. address: Federal Trade Commission, Reason: Failed to maintain a valid Date Revoked: August 11, 2010. Office of the Secretary, Room H-135 bond. Reason: Surrendered license (Annex J), 600 Pennsylvania Avenue, License Number: 015708N. voluntarily. N.W., Washington, DC 20580, in the ‘‘ Name: Blue Moon Express Limited. License Number: 020400NF. manner detailed in the Request for Address: Room 1901, 19/F., CC Wu Name: LIS Logistic-Global Inc. Public Comments’’ part of the Bldg., 302–308 Hennessy Road, Address: 1322 NW 78th Avenue, SUPPLEMENTARY INFORMATION section Wanchai, Hong Kong, Republic of Miami, FL 33126. below. China. Date Revoked: August 12, 2010. FOR FURTHER INFORMATION CONTACT: Reason: Failed to maintain a valid Date Revoked: August 7, 2010. Requests for additional information bond. Reason: Failed to maintain a valid should be addressed to Keith B. bond. License Number: 020815N. Anderson, Economist, Bureau of Name: F.E.P.A. Enterprises, Inc. dba License Number: 016037N. Economics, Federal Trade Commission, FEPA Logistics (USA). 600 Pennsylvania Avenue NW, Mail Name: J.C. Express of Miami, Corp. Address: 1525 Lakeville Drive, Suite Address: 8548 NW 72nd Street, Stop NJ-4136, Washington, DC 20580. #215, Kingwood, TX 77339. Miami, FL 33166. Date Revoked: August 7, 2010. Telephone: (202) 326-3428. Date Revoked: August 6, 2010. Reason: Failed to maintain a valid SUPPLEMENTARY INFORMATION: Reason: Failed to maintain a valid bond. bond. 1. Background License Number: 016650F. Sandra L. Kusumoto, Under the Paperwork Reduction Act, Name: McCollister’s Transportation Director, Bureau of Certification and 44 U.S.C. 3501-3521 (‘‘PRA’’), federal Systems, Inc. Licensing. agencies must obtain approval from Address: 1800 Route 130 North, [FR Doc. 2010–21884 Filed 8–31–10; 8:45 am] OMB for each collection of information Burlington, NJ 08016. BILLING CODE 6730–01–P they conduct or sponsor. ‘‘Collection of

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information’’ means agency requests or on the incidence of consumer fraud in clarity of the information to be requirements that members of the public the general population. In order to collected; and (4) ways to minimize the submit reports, keep records, or provide obtain a more reliable picture of the burden of collecting information on information to a third party. 44 U.S.C. experience of demographic groups that those who are to respond, including 3502(3), 5 CFR 1320.3(c). As required by the earlier surveys found to be at an through the use of appropriate section 3506(c)(2)(A) of the PRA, the elevated risk of becoming victims of automated, electronic, mechanical, or FTC is providing this opportunity for consumer fraud – including Hispanics, other technological collection public comment before requesting that African Americans, and Native techniques or other forms of information OMB grant clearance for the current Americans – the survey may oversample technology, e.g., permitting electronic proposed survey. members of these groups. All submission of responses. In 2003, OMB approved the FTC’s information will be collected on a Interested parties are invited to request to conduct a survey on voluntary basis, and the identities of the submit written comments electronically consumer fraud and assigned OMB consumers will remain confidential. or in paper form. Comments should Control Number 3084-0125. The FTC Subject to OMB approval for the survey, refer to ‘‘Consumer Fraud Survey 2010, completed the consumer research in the FTC will contract with a consumer FTC File No. P105502’’ to facilitate the June 2003 and issued its report, research firm to identify consumers and organization of comments. Please note ‘‘Consumer Fraud in the United States: conduct the survey. The results will that your comment – including your An FTC Survey,’’ in August 2004 (http:// assist the FTC in determining the name and your state – will be placed on www.ftc.gov/reports/consumerfraud/ incidence of consumer fraud in the the public record of this proceeding, 040805confraudrpt.pdf). general population and whether the including on the publicly accessible In November 2005, OMB approved type or frequency of consumer frauds is FTC Website, at (http://www.ftc.gov/os/ the Commission’s request to reinstate changing. This information will inform publiccomments.shtm). this clearance. The second survey was the FTC about how best to combat Because comments will be made conducted in November and December consumer fraud. public, they should not include any 2005. A report, ‘‘Consumer Fraud in the The FTC intends to use a sample size sensitive personal information, such as United States: The Second FTC Survey,’’ similar to that used in the 2005 survey. an individual’s Social Security Number; detailing the results of the second The questions will be very similar to the date of birth; driver’s license number or survey, was issued in October 2007 2005 survey so that the results from the other state identification number, or (http://www.ftc.gov/opa/2007/10/ 2005 survey can be used as a baseline foreign country equivalent; passport fraud.pdf). The 2005 survey asked about for a time-series analysis.1 The FTC may number; financial account number; or consumers’ experiences with 14 specific choose to conduct another follow-up credit or debit card number. Comments and two more general types of fraud survey in approximately five years. also should not include any sensitive during the previous year. Among frauds health information, such as medical covered by the survey were whether the 3. Estimated Hours Burden records or other individually person had purchased a weight-loss The FTC will pretest the survey on identifiable health information. In product that did not work as promised, approximately 100 respondents to addition, comments should not include whether the person had fallen victim to ensure that all questions are easily any ‘‘[t]rade secret or any commercial or an advance-fee loan scam, and whether understood. This pretest will take financial information which is obtained the person had paid someone to remove approximately 15 minutes per person from any person and which is privileged derogatory information from his or her and 25 hours as a whole (100 or confidential....,’’ as provided in credit report. According to the survey respondents x 15 minutes each). Section 6(f) of the Federal Trade results, 30.2 million adults in the Answering the consumer survey will Commission Act (‘‘FTC Act’’), 15 U.S.C. United States – 13.5 percent of all adults require approximately 15 minutes per 46(f), and FTC Rule 4.10(a)(2), 16 CFR in the country – had been a victim respondent and 1,000 hours as a whole 4.10(a)(2). Comments containing during the previous year of one or more (4,000 respondents x 15 minutes each). material for which confidential of the frauds included in the survey. Thus, cumulative total burden hours for treatment is requested must be filed in Among the 14 specific frauds the first year of the clearance will paper form, must be clearly labeled included in the survey, the most approximate 1,025 hours. ‘‘Confidential,’’ and must comply with frequently reported was the purchase of FTC Rule 4.9(c), 16 CFR 4.9(c).2 a weight-loss product that the seller 4. Estimated Cost Burden Because paper mail addressed to the represented would allow the user to The cost per respondent should be FTC is subject to delay due to easily lose a substantial amount of negligible. Participation is voluntary heightened security screening, please weight or lose the weight without diet and will not require start-up, capital, or consider submitting your comments in or exercise. However, in fact, consumers labor expenditures by respondents. electronic form. Comments filed in who tried the product found that they electronic form should be submitted by only lost a little of the weight they had 5. Request for Public Comments using the following weblink: (https:// expected to lose or failed to lose any The FTC invites comments on: (1) ftcpublic.commentworks.com/ftc/ weight at all. This was experienced by Whether the proposed collections of fraudsurvey2010) (and following the 4.8 million adults – 2.1 percent of the information are necessary for the proper instructions on the web-based form). To adult population. performance of the functions of the FTC, ensure that the Commission considers 2. Description of the Collection of including whether the information will Information and Proposed Use have practical utility; (2) the accuracy of 2 The comment must be accompanied by an the FTC’s estimate of the burden of the explicit request for confidential treatment, The FTC proposes to conduct a proposed collections of information; (3) including the factual and legal basis for the request, telephone survey of up to 4,100 and must identify the specific portions of the ways to enhance the quality, utility, and randomly-selected consumers comment to be withheld from the public record. The request will be granted or denied by the nationwide age 18 and over – 100 in a 1 The survey instrument for the 2005 Consumer Commission’s General Counsel, consistent with pretest and 4,000 in the main survey – Fraud Survey is attached to the 2007 report as applicable law and the public interest. See FTC in order to gather specific information Appendix B. Rule 4.9(c), 16 CFR 4.9(c).

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an electronic comment, you must file it appropriate. The Commission will FEDERAL TRADE COMMISSION on the web-based form at the weblink: consider all timely and responsive (https://ftcpublic.commentworks.com/ public comments that it receives, Granting of Request for Early ftc/fraudsurvey2010). If this Notice whether filed in paper or electronic Termination of the Waiting Period appears at (http://www.regulations.gov/ form. Comments received will be Under the Premerger Notification search/index.jsp), you may also file an available to the public on the FTC Rules electronic comment through that Website, to the extent practicable, at website. The Commission will consider Section 7A of the Clayton Act, (http://www.ftc.gov/os/ 15 U.S.C. 18a, as added by Title II of the all comments that regulations.gov publiccomments.shtm). As a matter of forwards to it. You may also visit the Hart-Scott Rodino Antitrust discretion, the Commission makes every FTC Website at (http://www.ftc.gov) to Improvements Act of 1976, requires effort to remove home contact read the Notice and the news release persons contemplating certain mergers describing it. information for individuals from the or acquisitions to give the Federal Trade A comment filed in paper form public comments it receives before Commission and the Assistant Attorney should include the ‘‘Consumer Fraud placing those comments on the FTC General advance notice and to wait Survey 2010, FTC File No. P105502’’ Website. More information, including designated periods before reference both in the text and on the routine uses permitted by the Privacy consummation of such plans. Section envelope, and should be mailed or Act, may be found in the FTC’s privacy 7A(b)(2) of the Act permits the agencies, delivered to the following address: policy, at (http://www.ftc.gov/ftc/ in individual cases, to terminate this Federal Trade Commission, Office of the privacy.shtm). waiting period prior to its expiration and requires that notice of this action be Secretary, Room H-135 (Annex J), 600 By direction of the Commission. Pennsylvania Avenue, NW, Washington, published in the Federal Register. DC 20580. The FTC is requesting that Donald S. Clark, The following transactions were any comment filed in paper form be sent Secretary. granted early termination of the waiting by courier or overnight service, if [FR Doc. 2010–21886 Filed 8–31–10; 8:45 am] period provided by law and the possible, because U.S. postal mail in the BILLING CODE 6750–01–S premerger notification rules. The grants Washington area and at the Commission were made by the Federal Trade is subject to delay due to heightened Commission and the Assistant Attorney security precautions. General for the Antitrust Division of the The FTC Act and other laws the Department of Justice. Neither agency Commission administers permit the intends to take any action with respect collection of public comments to to these proposed acquisitions during consider and use in this proceeding as the applicable waiting period.

TRANSACTION GRANTED EARLY TERMINATION

ET ET date Trans No. REQ Party name status

26–JUL–10 ...... 20100914 G Natural Gas Partners VIII, LP. G The Goldman Sachs Group, Inc. G Cedar Bay Operating Services, LLC. G Gray Hawk Power Corporation. G Cedar Bay Management Services Company. G Cedar Power Corporation. G Cogentrix Operating Services Holdings LLC. G Raptor Holdings Company. G Cogentrix Eastern America LLC. G Cogentrix Energy LLC. 20100915 G Patterson-UTI Energy, Inc. G Key Energy Services, Inc. G Key Energy Pressure Pumping Services, LLC. G Key Electric Wireline Services, LLC. 20100924 G Thomas H. Lee Equity Fund VI, LP. G Parthenon Investors II, LP. G Intermedix Corporation. 27–JUL–10 ...... 20100456 G Schlumberger N.V. (Schlumberger Limited). G Smith International, Inc. G Smith International, Inc. 20100910 G Galaxy PEF Holding LLC. G Otera US Holding Inc. G CW Financial Services LLC. 20100911 G Galaxy CF UST Investment Holdings LLC. G Otera US Holding Inc. G CW Financial Services LLC. 30–JUL–10 ...... 20100884 G Cott Corporation. G Stanley A. Star. G Cliffstar Corporation. G Star World Trading Company. G Harvest Glassic LLC. G Star Realty Property. G ShanStar Biotech, Inc.

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TRANSACTION GRANTED EARLY TERMINATION—Continued

ET ET date Trans No. REQ Party name status

20100904 G PPL Corporation. G Ameren Corporation. G Electric Energy Inc. 02–AUG–10 ...... 20100919 G Welsh, Carson, Anderson & Stowe XI, LP. G K2M, Inc. G K2M, Inc. 20100921 G Patrick L. Eudy. G Cameron Communications, LLC. G Cameron Communications, LLC. 20100922 G Wings Financial Credit Union. G City-County Federal Credit Union. G City-County Federal Credit Union. 20100927 G The Doctors Company. G American Physicians Capital, Inc. G American Physicians Capital, Inc. 20100929 G Quad-C Partners VII, LP. G Vestar Capital Partners IV, LP. G Joerns Healthcare LLC. 20100930 G BP p.l.c G Verenium Corporation. G Verenium Biofuels Corporation. 20100933 G SAIC, Inc. G Reveal Imaging Technologies, Inc. G Reveal Imaging Technologies, Inc. 20100940 G Wellspring Capital Partners IV, LP. G OMNI Energy Services Corp. G OMNI Energy Services Corp. 20100942 G Gores Capital Partners II, LP. G NEC Holdings Corp. G National Envelope Corporation. 03–AUG–10 ...... 20100900 G Celgene Corporation. G Dr. Patrick Soon-Shiong, M.D. G Abraxis BioScience, Inc. 20100901 G Dr. Patrick Soon-Shiong, M.D. G Celgene Corporation. G Celgene Corporation. 20100931 G Apache Corporation. G BP p.l.c. G BP America Production Company. 04–AUG–10 ...... 20100907 G Abrams Capital Partners II, LP. G Arbitron, Inc. G Arbitron, Inc. 20100776 G Viterra Inc. G 21C Holdings, LP. G 21C Holdings, LP. 20100939 G Magellan Midstream Partners, LP. G BP p.l.c. G BP Pipeplines. 20100952 G United Health Group Incorporated. G The Goldman Sachs Group, Inc. G Picis Solutions, Inc. 06–AUG–10 ...... 20100632 G Oracle Corporation. G Phase Forward Incorporated. G Phase Forward Incorporated. 20100955 G NTELOS Holdings Corp. G One Communications Corp. G Mountaineer Telecommunications, LLC. 20100958 G Zep Inc. G Wind Point Partners V, LP. G Waterbury Companies, Inc. G Air Guard Control Corporation. 20100961 G Vestar Capital Partners V, LP. G Health Grades, Inc. G Health Grades, Inc. 20100965 G AT&T Inc. G Sprint Nextel Corporation. G WirelessCo, LP. 10–AUG–10 ...... 20100917 G MPH Acquisition Corporation. G Carlyle Partners IV, LP. G MultiPlan Holdings, Inc.

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TRANSACTION GRANTED EARLY TERMINATION—Continued

ET ET date Trans No. REQ Party name status

20100960 G Nippon Telegraph and Telephone Corporation. G Dimension Data Holdings plc. G Dimension Data Holdings plc. 11–AUG–10 ...... 20100897 G Nestle S.A. G LenSx Lasers, Inc. G LenSx Lasers, Inc. 13–AUG–10 ...... 20100969 G KRG Capital Fund IV, LP. G Genstar Capital Partners IV, LP. G Fort Dearborn Holdings, LLC. 20100970 G Nippon Telegraph and Telephone Corporation. G NextWave Wireless Inc. G PacketVideo Corporation. 20100972 G Clayton, Dubilier & Rice Fund VIII, LP. G Harrington Group, Inc. G Harrington Group, Inc. 20100975 G First Reserve Fund XII, LP. G Quicksilver Resources Inc. G Quicksilver Gas Services Holdings LLC. 20100976 G Eaton Corporation. G Wright Line Purchaser LLC. G Wright Line Holding, Inc. 20100977 G AECOM Technology Corporation. G The Veritas Capital Fund II, LP. G MT Holding Corp. 20100985 G Green Equity Investors V, LP. G Ares Corporate Opportunities Fund II, LP. G AA Dental Management Holdings LLC. 20100987 G General Motors Company. G AmeriCredit Corp. G AmeriCredit Corp.

FOR FURTHER INFORMATION CONTACT: Register of August 6, 2010 (75 FR DEPARTMENT OF HEALTH AND Sandra M. Peay, Contact Representative 47602). The document announced the HUMAN SERVICES or Renee Chapman, Contact availability of grant funds for the Representative. Federal Trade support of FDA’s Office of Orphan Health Resources and Services Commission, Premerger Notification Products Development (OPD) grant Administration Office, Bureau of Competition, Room H– program. The document was published 303, Washington, DC 20580. with an error. This document corrects Health Center Program (202) 326–3100. that error. AGENCY: Health Resources and Services By direction of the Commission. FOR FURTHER INFORMATION CONTACT: Administration, HHS. Vieda Hubbard, Acquisition Support Donald S. Clark, ACTION: Notice of Non-competitive and Grants, Food and Drug Secretary. Replacement Awards to Sunset Park Administration, 5630 Fishers Lane, Health Council, Inc. [FR Doc. 2010–21410 Filed 8–31–10; 8:45 am] Rockville, MD 20857, 301–827–7177, BILLING CODE 6750–01–M email: [email protected]. SUMMARY: The Health Resources and SUPPLEMENTARY INFORMATION: In FR Doc. Services Administration (HRSA) will 2010–19354, appearing on page 47602 transfer Health Center Program (Section DEPARTMENT OF HEALTH AND in the Federal Register of Friday, 330(h) of the Public Health Service Act) HUMAN SERVICES August 6, 2010, the following correction funds originally awarded to Saint is made: Food and Drug Administration Vincent’s Catholic Medical Centers of 1. On page 47602, in the second New York to Sunset Park Health [Docket No. FDA–2010–N–0394] column, in the ‘‘DATES’’ section, Council, Inc., to ensure the continuity of beginning in the sixth line, the sentence services to low-income, underserved, Clinical Studies of Safety and ‘‘2. The anticipated start dates are homeless patients in New York City. Effectiveness of Orphan Products November 2010; November 2012.’’ is SUPPLEMENTARY INFORMATION: Research Project Grant (R01); corrected to read ‘‘2. The anticipated Former Grantee of Record: Saint Correction start dates are November 2011 and Vincent’s Catholic Medical Centers of November 2012.’’ AGENCY: Food and Drug Administration, New York. HHS. Dated: August 26, 2010. Original Period of Grant Support: David Dorsey, ACTION: Notice; correction. November 1, 2007 to October 31, 2010. Acting Deputy Commissioner for Policy, Replacement Awardee: Sunset Park SUMMARY: The Food and Drug Planning and Budget. Health Council, Inc. Administration (FDA) is correcting a [FR Doc. 2010–21795 Filed 8–31–10; 8:45 am] Amount of Replacement Award: notice that appeared in the Federal BILLING CODE 4160–01–S $1,288,436.

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Period of Replacement Award: The Register of August 13, 2010 (75 FR DEPARTMENT OF HEALTH AND period of support for the replacement 49502). The amendment is being made HUMAN SERVICES award is June 1, 2010 to October 31, to include the exact meeting location, 2010. previously identified only as the National Institutes of Health Authority: Section 330(h) of the Public Washington D.C. metropolitan area. There are no other changes. Center for Scientific Review; Amended Health Service Act, 42 U.S.C. 245b. Notice of Meeting FOR FURTHER INFORMATION CONTACT: CDFA Number: 93.703. James Swink, Center for Devices and Justification for Exception to Notice is hereby given of a change in Radiological Health, Food and Drug Competition: The former grantee, Saint the meeting of the Clinical Neuroscience Administration, 10903 New Hampshire Vincent’s Catholic Medical Centers of and Neurodegeneration Study Section, Ave., Bldg. 66, rm. 1609, Silver Spring, New York, has relinquished all grants. September 30, 2010, 8 a.m. to October MD 20993, 301–796–6313, FAX: 301– Saint Vincent’s Catholic Medical 1, 2010, 5 p.m., Washington Plaza Hotel, 847–8121, email: Centers of New York’s inpatient services 10 Thomas Circle, NW., Washington, [email protected]. has closed, and Saint Vincent’s Catholic DC, 20005 which was published in the Medical Center of New York has filed SUPPLEMENTARY INFORMATION: In the Federal Register on August 4, 2010, 75 for bankruptcy under Chapter 11. The Federal Register of August 13, 2010 (75 FR 46950–46951. former grantee has requested that HRSA FR 49502), FDA announced that a The meeting will be one day only transfer the Health Center Program public meeting on the reauthorization of September 30, 2010. The meeting time Section 330(h) funds to SPHC in order the medical device user fee program and location remain the same. The to implement and carry out grant would be held on September 14, 2010. meeting is closed to the public. activities originally proposed under On page 49503, in the first column, the Dated: August 26, 2010. Location portion of the document is SVCMC funded Section 330(h) grant Jennifer S. Spaeth, applications. changed to read as follows: Location: The meeting will be held at Director, Office of Federal Advisory SPHC has been engaged in the Committee Policy. delivery of primary health care services the Marriott Inn and Conference Center, [FR Doc. 2010–21816 Filed 8–31–10; 8:45 am] in the local area and is a current Section University of Maryland University 330 grantee who indicated an ability to College (UMUC), 3501 University Blvd. BILLING CODE 4140–01–P assume operations without a disruption East, Hyattsville, MD 20783, www.marriott.com/wasum. of services. DEPARTMENT OF HEALTH AND The short-term transfer of the 330(h) Dated: August 27, 2010. HUMAN SERVICES funds will ensure that critical primary David Dorsey, health care services continue and Acting Deputy Commissioner for Policy, National Institutes of Health remain available to low-income, Planning and Budget. underserved, homeless patients with no [FR Doc. 2010–21800 Filed 8–31–10; 8:45 am] Center for Scientific Review; Notice of interruption in services to the target BILLING CODE 4160–01–S Closed Meetings population. Pursuant to section 10(d) of the FOR FURTHER INFORMATION CONTACT: Federal Advisory Committee Act, as Marquita Cullom-Scott via e-mail at DEPARTMENT OF HEALTH AND HUMAN SERVICES amended (5 U.S.C. App.), notice is [email protected] or 301–594– hereby given of the following meetings. 4300. National Institutes of Health The meetings will be closed to the Dated: August 26, 2010. public in accordance with the Mary K. Wakefield, National Institute of Mental Health; provisions set forth in sections Administrator. Amended Notice of Meeting 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., [FR Doc. 2010–21836 Filed 8–31–10; 8:45 am] Notice is hereby given of a change in as amended. The grant applications and BILLING CODE 4165–15–P the meeting of the Services the discussions could disclose Subcommittee of the Interagency confidential trade secrets or commercial Autism Coordinating Committee (IACC), property such as patentable material, DEPARTMENT OF HEALTH AND September 13, 2010, 1 p.m. to 4 p.m., and personal information concerning HUMAN SERVICES National Institute of Mental Health, individuals associated with the grant Neuroscience Center, 6001 Executive applications, the disclosure of which Food and Drug Administration Boulevard, Conference Room A1/A2, would constitute a clearly unwarranted invasion of personal privacy. [Docket No. 2010–N–0389] Rockville, MD 20852, which was published in the Federal Register on Name of Committee: Center for Scientific Medical Device User Fee Act; Public August 19, 2010, 75 FR 51276. Review Special Emphasis Panel; Member Meeting; Request for Comments; The meeting will not be Webcast as Conflict: Developmental Biology. Amendment of Notice originally advertised. The meeting is Date: September 14–15, 2010. open to the public and will still be Time: 8 a.m. to 5 p.m. Agenda: To review and evaluate grant AGENCY: Food and Drug Administration, accessible through a conference call HHS. applications. phone number. The meeting will be Place: National Institutes of Health, 6701 ACTION: Notice. held in the same place and same time. Rockledge Drive, Bethesda, MD 20892 (Virtual Meeting). SUMMARY: The Food and Drug Dated: August 25, 2010. Jennifer S. Spaeth, Contact Person: Noni Byrnes, PhD, Administration (FDA) is announcing an Scientific Review Officer, Center for amendment to the notice of a public Director, Office of Federal Advisory Scientific Review, National Institutes of meeting on the reauthorization of the Committee Policy. Health, 6701 Rockledge Drive, Room 5130, medical device user fee program. This [FR Doc. 2010–21817 Filed 8–31–10; 8:45 am] MSC 7840, Bethesda, MD 20892, (301) 435– meeting was announced in the Federal BILLING CODE 4140–01–P 1023, [email protected].

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This notice is being published less than 15 Place: Crowne Plaza Washington National Place: The teleconference will originate at days prior to the meeting due to the timing Airport, 1489 Jefferson Davis Highway, the CDC. limitations imposed by the review and Arlington, VA 22202. Status: Open to the public. Teleconference funding cycle. Contact Person: Ryan G. Morris, PhD, access limited only by the availability of Name of Committee: Center for Scientific Scientific Review Officer, Center for telephone ports. The public is welcome to Review Special Emphasis Panel; Member Scientific Review, National Institutes of participate during the public comment Conflict: Cancer Immunotherapy. Health, 6701 Rockledge Drive, Room 4205, period, which is tentatively scheduled from Date: September 30, 2010. MSC 7814, Bethesda, MD 20892, 301–435– 2:45 p.m. to 2:50 p.m. To participate in the Time: 1 p.m. to 3 p.m. 1501, [email protected]. teleconference please dial (877) 394–7734 Agenda: To review and evaluate grant Name of Committee: Musculoskeletal, Oral and enter conference code 9363147. applications. and Skin Sciences Integrated Review Group; Purpose: The Subcommittee will provide Place: National Institutes of Health, 6701 Musculoskeletal Rehabilitation Sciences recommendations for consideration to the Rockledge Drive, Bethesda, MD 20892 Study Section. Advisory Committee to the Director on (Telephone Conference Call). Date: October 8, 2010. strategic and other broad issues facing CDC. Contact Person: Syed M Quadri, PhD, Time: 8 a.m. to 6 p.m. Matters to be Discussed: Policy brief on Scientific Review Officer, Center for Agenda: To review and evaluate grant health equity and social determinants of health; update on collaboration with the CDC Scientific Review, National Institutes of applications. Health Equity Workgroup; CDC Director’s Health, 6701 Rockledge Drive, Room 6210, Place: Hilton Alexandria Old Town, 1767 Annual Health Disparity Report; and briefing MSC 7804, Bethesda, MD 20892, 301–435– King Street, Alexandria, VA 22314. 1211, [email protected]. on the realignment of the CDC Office of Contact Person: Jo Pelham, BA, Scientific Minority Health and Health Disparities. Name of Committee: Population Sciences Review Officer, Center for Scientific Review, Agenda items are subject to change as and Epidemiology Integrated Review Group; National Institutes of Health, 6701 Rockledge priorities dictate. Cardiovascular and Sleep Epidemiology Drive, Room 4102, MSC 7814, Bethesda, MD Contact Person for More Information: Study Section. 20892, (301) 435–1786, [email protected]. Date: October 7–8, 2010. Walter W. Williams, M.D., M.P.H., Time: 8 a.m. to 5 p.m. Name of Committee: Infectious Diseases Designated Federal Officer, Health Agenda: To review and evaluate grant and Microbiology Integrated Review Group; Disparities Subcommittee, Advisory applications. Host Interactions with Bacterial Pathogens Committee to the Director, CDC, 1600 Clifton Place: Bethesda Marriott, 5151 Pooks Hill Study Section. Road, NE., M/S E–67, Atlanta, Georgia 30333. Road, Bethesda, MD 20814. Date: October 8, 2010. Telephone (404) 498–2310, E-mail: Contact Person: J. Scott Osborne, PhD, Time: 8 a.m. to 6 p.m. [email protected]. MPH, Scientific Review Officer, Center for Agenda: To review and evaluate grant The Director, Management Analysis and Scientific Review, National Institutes of applications. Services Office, has been delegated the Health, 6701 Rockledge Drive, Room 4114, Place: Pier 5 Hotel, 711 Eastern Avenue, authority to sign Federal Register notices MSC 7816, Bethesda, MD 20892, (301) 435– Baltimore, MD 21202. pertaining to announcements of meetings and 1782, [email protected]. Contact Person: Fouad A El-Zaatari, PhD, other committee management activities, for Name of Committee: Genes, Genomes, and Scientific Review Officer, Center for both the Centers for Disease Control and Genetics Integrated Review Group; Molecular Scientific Review, National Institutes of Prevention and the Agency for Toxic Genetics A Study Section. Health, 6701 Rockledge Drive, Room 3186, Substances and Disease Registry. MSC 7808, Bethesda, MD 20892, (301) 435– Date: October 7–8, 2010. Dated: August 24, 2010. Time: 8:30 a.m. to 12 p.m. 1149, [email protected]. Agenda: To review and evaluate grant (Catalogue of Federal Domestic Assistance Elaine L. Baker, applications. Program Nos. 93.306, Comparative Medicine; Director, Management Analysis and Services Place: Renaissance M Street Hotel, 1143 93.333, Clinical Research, 93.306, 93.333, Office, Centers for Disease Control and New Hampshire Avenue, NW., Washington, 93.337, 93.393–93.396, 93.837–93.844, Prevention. DC 20037. 93.846–93.878, 93.892, 93.893, National [FR Doc. 2010–21803 Filed 8–31–10; 8:45 am Contact Person: Michael M Sveda, PhD, Institutes of Health, HHS) BILLING CODE 4163–18–P Scientific Review Officer, Center for Dated: August 26, 2010. Scientific Review, National Institutes of Jennifer S. Spaeth, Health, 6701 Rockledge Drive, Room 1114, DEPARTMENT OF HEALTH AND MSC 7890, Bethesda, MD 20892, 301–435– Director, Office of Federal Advisory 3565, [email protected]. Committee Policy. HUMAN SERVICES Name of Committee: Center for Scientific [FR Doc. 2010–21815 Filed 8–31–10; 8:45 am] National Institutes of Health Review Special Emphasis Panel; Member BILLING CODE 4140–01–P Conflict: Radiation Oncology. National Human Genome Research Date: October 7, 2010. Institute; Notice of Closed Meeting Time: 2 p.m. to 4 p.m. DEPARTMENT OF HEALTH AND Agenda: To review and evaluate grant HUMAN SERVICES Pursuant to section 10(d) of the applications. Federal Advisory Committee Act, as Place: National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892 Centers for Disease Control and amended (5 U.S.C. App.), notice is (Telephone Conference Call). Prevention hereby given of the following meeting. Contact Person: Syed M. Quadri, PhD, The meeting will be closed to the Scientific Review Officer, Center for Advisory Committee to the Director public in accordance with the Scientific Review, National Institutes of (ACD), Centers for Disease Control and provisions set forth in sections Health, 6701 Rockledge Drive, Room 6210, Prevention (CDC)—Health Disparities 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., MSC 7804, Bethesda, MD 20892, 301–435– Subcommittee (HDS) as amended. The grant applications and 1211, [email protected]. the discussions could disclose Name of Committee: Digestive, Kidney and In accordance with section 10(a)(2) of confidential trade secrets or commercial Urological Systems Integrated Review Group; the Federal Advisory Committee Act property such as patentable material, Urologic and Kidney Development and (Pub. L. 92–463), the CDC announces and personal information concerning Genitourinary Diseases Study Section. the following meeting of the Date: October 8, 2010. individuals associated with the grant Time: 8 a.m. to 5 p.m. aforementioned subcommittee: applications, the disclosure of which Agenda: To review and evaluate grant Time and Date: 2 p.m.–3 p.m., September would constitute a clearly unwarranted applications. 23, 2010. invasion of personal privacy.

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Name of Committee: Center for Inherited DATES: Only written comments and/or DEPARTMENT OF HEALTH AND Disease Research Access Committee. application for a license which are HUMAN SERVICES Date: September 14, 2010. received by the NIH Office of Time: 11:30 a.m. to 12:30 p.m. Food and Drug Administration Agenda: To review and evaluate grant Technology Transfer on or before applications. October 1, 2010 will be considered. [Docket No. FDA–2010–N–0427] Place: National Institutes of Health, 5635 ADDRESSES: Requests for copies of the Fishers Lane, Suite 4069, Bethesda, MD 20892, (Telephone Conference Call) patents, inquiries, comments, and other Public Workshop on Medical Devices Contact Person: Ken D. Nakamura, PhD, materials relating to the contemplated and Nanotechnology: Manufacturing, license should be directed to: Scientific Review Officer, Scientific Review Characterization, and Biocompatibility Branch, National Human Genome Research Suryanarayana Vepa, PhD, J.D., Considerations; Correction Institute, National Institutes of Health, 5635 Licensing and Patenting Manager, Office Fishers Lane, Suite 4076, MSC 9306, of Technology Transfer, National AGENCY: Food and Drug Administration, Rockville, MD 20852, 301–402–0838. Institutes of Health, 6011 Executive This notice is being published less than 15 HHS. days prior to the meeting due to the timing Boulevard, Suite 325, Rockville, MD ACTION: limitations imposed by the review and 20852–3804; Telephone: 301–435–5020; Notice; correction. funding cycle. Facsimile: 301–402–0220; E-mail: (Catalogue of Federal Domestic Assistance [email protected]. SUMMARY: The Food and Drug Program Nos. 93.172, Human Genome Administration (FDA) is correcting a Research, National Institutes of Health, HHS) SUPPLEMENTARY INFORMATION: This notice that appeared in the Federal technology is a method for treating Dated: August 26, 2010. Register of August 23, 2010 (75 FR Benign Prostatic Hyperplasia (BHP) Jennifer S. Spaeth, 51829). The notice announced the using the oral medication pentosan public workshop entitled ‘‘Medical Director, Office of Federal Advisory polysulfate (PPS). PPS is a well known, Committee Policy. Devices & Nanotechnology: semi-synthetic polysaccharide extracted [FR Doc. 2010–21819 Filed 8–31–10; 8:45 am] Manufacturing, Characterization, and from beech wood cellulose that is FDA ’’ BILLING CODE 4140–01–P Biocompatibility Considerations. The approved for the treatment of interstitial notice was published with an incorrect fibrosis. The current technology builds registration Web site. This document DEPARTMENT OF HEALTH AND on the surprising discovery that PPS can corrects that Web site. HUMAN SERVICES cause regression of scarring and lesions in prostatic tissue. PPS reduces or FOR FURTHER INFORMATION CONTACT: Paul National Institutes of Health eliminates both smooth muscle cell Gadiock, Food and Drug proliferation and extracellular matrix Administration, 10903 New Hampshire Prospective Grant of Exclusive deposition, and so reduces the size of Ave., Bldg. 66, rm. 4432, Silver Spring, License: Use of Pentosan Polysulfate the prostate gland and decreases MD 20993–0002, 301–796–5736. To Treat Certain Conditions of the associated obstructive symptoms. SUPPLEMENTARY INFORMATION: Prostate In FR Doc. The prospective exclusive license will 2010–20837, appearing on page 51829 AGENCY: National Institutes of Health, be royalty-bearing and will comply with in the Federal Register of Monday, Public Health Service, HHS. the terms and conditions of 35 U.S.C. August 23, 2010, the following ACTION: Notice. 209 and 37 CFR 404.7. The prospective correction is made: exclusive license may be granted unless, SUMMARY: This is notice, in accordance 1. On page 51829, in the second within 30 days from the date of this column, in the Registration and with 35 U.S.C. 209(c)(1) and 37 CFR published Notice, the NIH receives 404.7(a)(1)(i), that the National Requests for Oral Presentations section, written evidence and argument that in the first full paragraph, beginning in Institutes of Health (NIH), Department establishes that the grant of the license of Health and Human Services, is the third line, ‘‘http://www.fda.gov/ would not be consistent with the contemplating the grant of an exclusive MedicalDevices/NewsEvents/ requirements of 35 U.S.C. 209 and 37 patent license to practice the invention WorskshopsConferences/default.htm’’ is CFR 404.7. embodied in U.S. Patent Application corrected to read ‘‘http://www.fda.gov/ No. 10/209,331, filed July 30, 2002, Applications for a license in the MedicalDevices/NewsEvents/ which was issued as U.S. Patent prospective field of use filed in response WorkshopsConferences/default.htm’’. 6,828,309 on December 07, 2004, to this notice will be treated as Dated: August 27, 2010. entitled, ‘‘USE OF PENTOSAN objections to the grant of the POLYSULFATE TO TREAT CERTAIN contemplated exclusive license. David Dorsey, CONDITIONS OF THE PROSTATE,’’ Comments and objections submitted in Acting Deputy Commissioner for Policy, developed by Dr. Gary Striker (formerly response to this notice will not be made Planning and Budget. of NIDDK) [HHS Ref. No. E–104–1997/ available for public inspection, and, to [FR Doc. 2010–21801 Filed 8–31–10; 8:45 am] 0–US–03], to Swati Spentose Private the extent permitted by law, will not be BILLING CODE 4160–01–S Limited, having a place of business in released under the Freedom of Mumbai, India. The patent rights in this Information Act, 5 U.S.C. 552. invention have been assigned to the Dated: August 25, 2010. United States of America. The contemplated exclusive license Richard U. Rodriguez, territory may be worldwide, and the Director, Division of Technology Development field of use may be limited to ‘‘the use & Transfer, Office of Technology Transfer, of pentosan polysulfate for the treatment National Institutes of Health. or prevention of benign prostatic [FR Doc. 2010–21818 Filed 8–31–10; 8:45 am] hyperplasia.’’ BILLING CODE 4140–01–P

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DEPARTMENT OF HEALTH AND four-year terms. Nominees must be U.S. DEPARTMENT OF HOMELAND HUMAN SERVICES citizens. SECURITY The following information must be Centers for Disease Control and [Docket No. DHS–2010–0073] submitted for each candidate: name, Prevention (CDC) affiliation, address, telephone number, Science and Technology (S&T) Request for Nominations of and current curriculum vitae. E-mail Directorate; Agency Information Candidates To Serve on the Board of addresses are requested if available. Collection Activities: Submission for Review; Information Collection Scientific Counselors (BSC), National Nominations should be sent, in Center for Environmental Health/ Request for the Department of writing, and postmarked by November Homeland Security (DHS) Science and Agency for Toxic Substances and 30, 2010 to: Sandra Malcom, Committee Disease Registry (NCEH/ATSDR), Technology Protected Repository for Management Specialist, NCEH/ATSDR, the Defense of Infrastructure Against Centers for Disease Control and CDC, 4770 Buford Highway (MS–F61), Cyber Threats (PREDICT) Program Prevention, Department of Health and Chamblee, Georgia 30341. (E-mail Human Services (HHS) address: [email protected]). Telephone AGENCY: Science and Technology Directorate, DHS. Correction: This notice was published and facsimile submissions cannot be in the Federal Register on July 8, 2010, accepted. ACTION: 30-day notice and request for comment. Volume 75, Number 130, Page 39265– Candidates invited to serve will be 39266. The notice for the asked to submit the ‘‘Confidential SUMMARY: The Department of Homeland aforementioned meeting has been Financial Disclosure Form for Special Security invites the general public to changed to the following: Government Employees Serving on comment on data collection forms for The NCEH/ATSDR is soliciting Federal Advisory Committees at the the Protected Repository for the Defense nominations for consideration of Centers for Disease Control and of Infrastructure Against Cyber Threats membership on the BSC. The BSC, Prevention.’’ This form allows CDC to (PREDICT) initiative. PREDICT is an NCEH/ATSDR provides advice and determine whether there is a statutory initiative to facilitate the accessibility of guidance to the Secretary, HHS; the computer and network operational data Director, CDC and the Director, NCEH/ conflict between that person’s public responsibilities as a Special Government for use in cybersecurity defensive ATSDR, regarding program goals, research and development. Specifically, Employee and private interests and objectives, strategies, and priorities in PREDICT provides developers and activities, or the appearance of a lack of fulfillment of the agencies’ mission to evaluators with regularly updated protect and promote people’s health. impartiality, as defined by Federal network operations data sources The Board provides advice and regulation. The form may be viewed and relevant to cybersecurity defense guidance to help NCEH/ATSDR work downloaded at http://www.usoge.gov/ technology development. The data sets _ more efficiently and effectively with its forms/oge450 pdf/ are intended to provide developers with various constituents and to fulfill its oge450_accessible.pdf. This form timely and detailed insight into mission in protecting America’s health. should not be submitted as part of a cyberattack phenomena occurring across Nominations are being sought for nomination. the Internet and in some cases will individuals who have expertise and The Director, Management Analysis reveal the effects of these attacks on qualifications necessary to contribute to and Services Office, has been delegated networks that are owned or managed by the accomplishments of the Board’s the authority to sign Federal Register the data producers. A key motivation of objectives. Nominees will be selected notices pertaining to announcements of PREDICT is to make these data sources from experts having experience in meetings and other committee more widely available to technology preventing human diseases and developers and evaluators, who today management activities for both CDC and disabilities caused by environmental often determine the efficacy of their the National Center for Environmental conditions. Experts in the disciplines of technical solutions on anecdotal toxicology, epidemiology, Health/Agency for Toxic Substances evidence or small-scale test environmental or occupational and Disease Registry. experiments, rather than on more medicine, behavioral science, risk Dated: August 24, 2010. comprehensive real-world data. The assessment, exposure assessment, and Elaine L. Baker, PREDICT Web site http:// experts in public health and other Director, Management Analysis and Services www.predict.org/contains an overview related disciplines will be considered. Office, Centers for Disease Control and and general information as background, Balanced membership will depend Prevention. along with the data repository. As upon several factors, including: (1) The [FR Doc. 2010–21802 Filed 8–31–10; 8:45 am] specified on the Web site, access to the committee’s mission; (2) the geographic, PREDICT data repository is available to ethnic, social, economic, or scientific BILLING CODE 4163–18–P eligible research groups upon approval impact of the advisory committee’s of their applications. In addition to recommendations; (3) the types of helping to determine whether a group is specific perspectives required, for eligible to access the repository, the example, such as those of consumers, forms will also manage the interactions technical experts, the public at-large, between the PREDICT portal academia, business, or other sectors; administrators and the research groups (4) the need to obtain divergent points accessing the PREDICT portal. The of view on the issues before the advisory Department is committed to improving committee; and (5) the relevance of its PREDICT initiative and invites State, local, or tribal governments to the interested persons to comment on the development of the advisory following forms and instructions committee’s recommendations. (hereinafter ‘‘Forms Package’’) for the Members may be invited to serve up to PREDICT initiative: (1) Account Request

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Form (DHS Form 10029 (12/07)); (2) users (Data Providers) or migrated (via Amendment to Research/User Request a Dataset Form (DHS Form upload of XML files). Agreement (10060 (04/10)); (13) Notice 10032 (12/07)); (3) My Datasets Form DHS is particularly interested in of Data Access Expiration (10061 (04/ (DHS Form 10033 (12/07)); (4) comments that: 10)). Memorandum of Agreement—PREDICT (1) Evaluate whether the proposed (3) Affected public who will be asked (PCC) Coordinating Center and collection of information is necessary or required to respond, as well as a brief Researcher/User (DHS Form 10035 (12/ for the proper performance of the abstract: Individuals or households, 07)); (5) Memorandum of Agreement functions of the agency, including Business or other for-profit, Not-for- PREDICT Coordinating Center (PCC) whether the information will have profit institutions, Federal government, and Data Provider (DP) (DHS Form practical utility; and State, local, or tribal government; 10036 (12/07)); (6) Memorandum of (2) Evaluate the accuracy of the the data gathered will allow the Agreement—PCC and Data Host (DH) agency’s estimate of the burden of the PREDICT initiative to provide a central (DHS Form 10037 (12/07)); (7) proposed collection of information, repository, accessible through a Web- Authorization Letter for Data Host (DHS including the validity of the based portal (https://www.predict.org/) Form 10038 (12/07)); (8) Authorization methodology and assumptions used; that catalogs current computer network Letter for Data Provider (DHS Form (3) Suggest ways to enhance the operational data, provide secure access 10039 (12/07)); (9) Sponsorship Letter quality, utility, and clarity of the to multiple sources of data collected as (DHS Form 10040 (12/07)); (10) Notice information to be collected; and a result of use and traffic on the of Dataset Access/Application (4) Suggest ways to minimize the Internet, and facilitate data flow among Expiration (DHS Form 10041 (12/07)); burden of the collection of information PREDICT participants for the purpose of (11) Notice for Certificate of Data on those who are to respond, including developing new models, technologies Destruction (DHS Form 10042 (12/07)). through the use of appropriate and products that support effective Two new forms are also included—(12) automated, electronic, mechanical, or threat assessment and increase cyber Amendment to Research/User other technological collection security capabilities. Agreement (10060 (04/10)); (13) Notice techniques or other forms of information (4) An estimate of the total number of of Data Access Expiration (10061 (04/ technology, e.g., permitting electronic respondents and the amount of time 10)). submissions of responses. estimated for an average respondent to The user will complete a portion of respond: This notice and request for comments the forms online and submit them is required by the Paperwork Reduction a. Estimate of the total number of through the Web site, while some forms respondents: 206. Act of 1995 (Pub. L. 104–13, 44 U.S.C. will be printed from the Web site and chapter 35). b. An estimate of the time for an faxed to a PREDICT portal average respondent to respond: 8 DATES: Comments are encouraged and administrator. The entire Forms Package burden hours. will be accepted until October 1, 2010. will be available on the PREDICT Web c. An estimate of the total public Comments: Interested persons are site found at https://www.predict.org. burden (in hours) associated with the Overview of this Information invited to submit written comments on collection: 118 burden hours. the proposed information collection to Collection: the Office of Information and Regulatory (1) Type of Information Collection: Dated: August 24, 2010. Affairs, Office of Management and Information Collection Revision. Tara O’Toole, Budget. Comments should be addressed (2) Title of the Form/Collection: DHS Under Secretary for Science and Technology. to Desk Officer for the Department of S&T PREDICT Initiative. [FR Doc. 2010–21783 Filed 8–31–10; 8:45 am] Agency Form Number, if any, and the Homeland Security, Science and BILLING CODE 9110–9F–P Technology Directorate, and sent via applicable component of the electronic mail to Department of Homeland Security [email protected] or faxed sponsoring the collection: DHS Science DEPARTMENT OF HOMELAND to (202) 395–6974. Please include and Technology Directorate, (1) Account SECURITY Request Form (DHS Form 10029 (12/ docket number DHS–2010–0073 in the [Docket No. DHS–2010–0072] subject line of the message. 07)); (2) Request a Dataset Form (DHS Form 10032 (12/07)); (3) My Datasets Science and Technology (S&T) FOR FURTHER INFORMATION CONTACT: Form (DHS Form 10033 (12/07)); (4) Directorate: Agency Information Jeffery Harris (202) 254–6015 (Not a toll Memorandum of Agreement—PREDICT Collection Activities: Submission for free number). (PCC) Coordinating Center and Review; Information Collection SUPPLEMENTARY INFORMATION: Interested Researcher/User (DHS Form 10035 (12/ Request for the Department of parties can obtain copies of the Forms 07)); (5) Memorandum of Agreement Homeland Security (DHS) Science and Package by calling or writing the point PREDICT Coordinating Center (PCC) Technology TechSolutions Program of contact listed above. The content of and Data Provider (DP) (DHS Form PREDICT is proprietary datasets that 10036 (12/07)); (6) Memorandum of AGENCY: Science and Technology will be used by the Research community Agreement—PCC and Data Host (DH) Directorate, DHS. in its efforts to build products and (DHS Form 10037 (12/07)); (7) ACTION: 30-day notice and request for technologies that will better protect Authorization Letter for Data Host (DHS comment. America’s computing infrastructure. Form 10038 (12/07)); (8) Authorization Using a secure Web portal, accessible Letter for Data Provider (DHS Form SUMMARY: The TechSolutions Program through https://www.predict.org/, the 10039 (12/07)); (9) Sponsorship Letter was established by the Department of PREDICT Coordinating Center manages (DHS Form 10040 (12/07)); (10) Notice Homeland Security’s (DHS) Science and a centralized repository that identifies of Dataset Access/Application Technology (S&T) Directorate to provide the datasets and their sources and Expiration (DHS Form 10041 (12/07)); information, resources and technology location, and acts as gatekeeper for (11) Notice for Certificate of Data solutions that address mission access and release of the data. All data Destruction (DHS Form 10042 (12/07)). capability gaps identified by the input to the system is either keyed in by Two new forms are also included—(12) emergency response community. The

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goal of TechSolutions is to field suggest how these materials can further b. An estimate of the time for an technologies that meet 80% of the reduce burden while seeking necessary average respondent to respond: .42 operational requirement, in a 12 to 15 information under the Act. DHS is burden hours. month time frame, at a cost particularly interested in comments c. An estimate of the total public commensurate with the proposal. Goals that: burden (in hours) associated with the will be accomplished through rapid (1) Evaluate whether the proposed collection: 39 burden hours. prototyping or the identification of collection of information is necessary Dated: August 24, 2010. existing technologies that satisfy for the proper performance of the Tara O’Toole, identified requirements. Through the functions of the agency, including Under Secretary for Science and Technology. use of data collection forms, whether the information will have [FR Doc. 2010–21786 Filed 8–31–10; 8:45 am] TechSolutions will collect submitter practical utility; BILLING CODE 9110–9F–P and capability gap information from (2) Evaluate the accuracy of the first responders (Federal, State, local, agency’s estimate of the burden of the and tribal police, firefighters, and proposed collection of information, DEPARTMENT OF HOMELAND emergency medical service) through the including the validity of the SECURITY TechSolutions Web site. The methodology and assumptions used; [Docket No. DHS–2010–0074] information will be used to address (3) Suggest ways to enhance the reported capability gaps, leading to quality, utility, and clarity of the Homeland Security Advisory Council improved safety and productivity. The information to be collected; and DHS invites interested persons to AGENCY: The Office of Policy, DHS. comment on the following forms and (4) Suggest ways to minimize the burden of the collection of information ACTION: Notice of Open Teleconference instructions (hereinafter ‘‘Forms Federal Advisory Committee Meeting. Package’’) for the TechSolutions on those who are to respond, including program: (1) Submit a Capability Gap through the use of appropriate SUMMARY: The Homeland Security (DHS Form 10011 (04/07)), (2) automated, electronic, mechanical, or Advisory Council (HSAC) will meet via Information Request (DHS Form 10012 other technological collection teleconference for the purpose of (04/07)), and (3) User Registration (DHS techniques or other forms of information reviewing the report of the HSAC’s Form 10015 (04/07)). Section 313 of the technology, e.g., permitting electronic Southwest Border Task Force (SWBTF). submissions of responses. Homeland Security Act of 2002 (Pub. L. DATES: The HSAC conference call will 107–296) established this requirement. The Forms Package will be available take place from 4:30 p.m. to 5:30 p.m. This notice and request for comments is on the Tech Solutions Web site found at EDT on Thursday, September 16, 2010. required by the Paperwork Reduction (https://www.techsolutions.dhs.gov). Please be advised that the meeting is Act of 1995 (Pub. L. 104–13, 44 U.S.C. The user will complete the forms online scheduled for one hour and all chapter 35). and submit them through the Web site. participating members of the public DATES: Comments are encouraged and Overview of This Information should promptly call-in at the beginning will be accepted until October 1, 2010. Collection of the teleconference. Comments: Interested persons are ADDRESSES: The HSAC meeting will be invited to submit written comments on (1) Type of Information Collection: held via teleconference. Members of the the proposed information collection to Information Collection Revision. public interested in participating in this the Office of Information and Regulatory (2) Title of the Form/Collection: teleconference meeting may do so by Affairs, Office of Management and TechSolutions Submit a Capability Gap, following the process outlined below Budget. Comments should be addressed Information Request, and User (see ‘‘Public Participation’’). to Desk Officer for the Department of Registration. Written comments must be submitted Homeland Security, Science and Agency Form Number, if any, and the and received by September 9, 2010. Technology Directorate, and sent via applicable component of the Comments must be identified by electronic mail to Department of Homeland Security Docket No. DHS–2010–0074 and may be [email protected] or faxed sponsoring the collection: DHS Science submitted by one of the following and Technology Directorate, Submit a methods: to (202) 395–6974. Please include • docket number DHS–2010–0072 in the Capability Gap (DHS Form 10011 (04/ Federal eRulemaking Portal: http:// subject line of the message. 07), Information Request (DHS Form www.regulations.gov. Follow the instructions for submitting comments. FOR FURTHER INFORMATION CONTACT: 10012 (04/07), and User Registration • (DHS Form 10015 (04/07). E-mail: [email protected]. Include Jeffery Harris (202) 254–6015 (Not a toll docket number in the subject line of the (3) Affected public who will be asked free number). message. or required to respond, as well as a brief SUPPLEMENTARY INFORMATION: Please • Fax: (202) 282–9207. note that the Forms Package includes abstract: Business or other for-profit, • Mail: Homeland Security Advisory three forms for collecting submitter and not-for-profit institutions, and state, Council, Department of Homeland capability gap information from first local or tribal government; the data Security, Mailstop 0850, 245 Murray responders (Federal, State, local, and collected through the TechSolutions Lane, SW., Washington, DC 20528. tribal police, firefighters, and emergency Forms Package will be used to address Instructions: All submissions received medical service). As explained herein, reported capability gaps, leading to must include the words ‘‘Department of these separate forms are intended to be improved safety and productivity for Homeland Security’’ and DHS–2010– flexible and permit DHS S&T to address first responders. 0074, the docket number for this action. reported capability gaps, leading to (4) An estimate of the total number of Comments received will be posted improved safety and productivity respondents and the amount of time without alteration at http:// without undue bureaucratic burden. estimated for an average respondent to www.regulations.gov, including any The Department is committed to respond: personal information provided. improving its TechSolutions processes a. Estimate of the total number of Docket: For access to the docket to and urges all interested parties to respondents: 391. read background documents or

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comments received by the DHS to conduct certain activities with 2009, 74 FR 66668) to take (survey, Homeland Security Advisory Council, endangered species. With some capture, handle and release) the go to http://www.regulations.gov. exceptions, the Endangered Species Act tidewater goby (Eucyclogobius FOR FURTHER INFORMATION CONTACT: (Act) prohibits activities with newberryi) in conjunction with surveys HSAC Staff at [email protected] or 202– endangered and threatened species and population monitoring throughout 447–3135. unless a Federal permit allows such the range of the species in Humboldt SUPPLEMENTARY INFORMATION: Notice of activity. The Act also requires that we County, California, for the purpose of this meeting is given under the Federal invite public comment before issuing enhancing its survival. these permits. Advisory Committee Act, 5 U.S.C. App. Permit No. TE–15548A 2. The HSAC provides independent DATES: Comments on these permit advice to the Secretary of the applications must be received on or Applicant: Karen T. Mabb, Camp Department of Homeland Security to aid before October 1, 2010. Pendleton, California. in the creation and implementation of ADDRESSES: Written data or comments The applicant requests a permit to critical and actionable policies and should be submitted to the U.S. Fish take (capture, collect, and kill) the capabilities across the spectrum of and Wildlife Service, Endangered Conservancy fairy shrimp (Branchinecta homeland security operations. The Species Program Manager, Region 8, conservatio), the longhorn fairy shrimp HSAC periodically reports, as requested, 2800 Cottage Way, Room W–2606, (Branchinecta longiantenna), the to the Secretary, on such matters. The Sacramento, CA 95825 (telephone: 916– Riverside fairy shrimp (Streptocephalus Federal Advisory Committee Act 414–6464; fax: 916–414–6486). Please wootoni), the San Diego fairy shrimp requires Federal Register publication 15 refer to the respective permit number for (Branchinecta sandiegonensis), and the days prior to a meeting. The HSAC will each application when submitting vernal pool tadpole shrimp (Lepidurus meet to review the SWBTF report with comments. packardi) in conjunction with surveys findings and recommendations. and habitat enhancement activities FOR FURTHER INFORMATION CONTACT: Public Participation: Members of the throughout the range of each species in public may register to participate in Daniel Marquez, Fish and Wildlife California, and to remove/reduce to this HSAC teleconference via Biologist; see ADDRESSES (telephone: possession Erynigium aristulatum var. aforementioned procedures. Each 760–431–9440; fax: 760–431–9624). parishii (San Diego Button-celery) from individual must provide his or her full SUPPLEMENTARY INFORMATION: The Federal lands in conjunction with legal name, e-mail address and phone following applicants have applied for surveys and habitat enhancement number no later than 5 p.m. EDT on scientific research permits to conduct activities on Camp Pendleton Marine September 14, 2010, to a staff member certain activities with endangered Corps Base, California, for the purpose of the HSAC via e-mail at species under section 10(a)(1)(A) of the of enhancing their survival. Act (16 U.S.C. 1531 et seq.). We seek [email protected] or via phone at (202) Permit No. TE–210235 447–3135. HSAC conference call details review and comment from local, State, will be provided to interested members and Federal agencies and the public on Applicant: Matthew W. McDonald, of the public at this time. the following permit requests. Before Idyllwild, California. Information on Services for including your address, phone number, The applicant requests an amendment Individuals with Disabilities: For e-mail address, or other personal to an existing permit (May 1, 2009, 74 information on facilities or services for identifying information in your FR 20337) to take (survey by pursuit) individuals with disabilities, or to comment, you should be aware that the Quino checkerspot butterfly request special assistance at the your entire comment—including your (Euphydryas editha quino) in meeting, contact the HSAC as soon as personal identifying information—may conjunction with surveys throughout possible. be made publicly available at any time. the range of the species in California for While you can ask us in your comment Dated: August 25, 2010. the purpose of enhancing its survival. to withhold your personal identifying Becca Sharp, information from public review, we Permit No. TE–17841A Executive Director, Homeland Security cannot guarantee that we will be able to Applicant: Tetra Tech Incorporated, Advisory Council, DHS. do so. Santa Barbara, California. [FR Doc. 2010–21787 Filed 8–31–10; 8:45 am] Permit No. TE–15544A The applicant requests a permit to BILLING CODE 9110–9M–P take (capture, collect, and kill) the Applicant: Christine L. Beck, San Diego, Conservancy fairy shrimp (Branchinecta California. conservatio), the longhorn fairy shrimp DEPARTMENT OF THE INTERIOR The applicant requests a permit to (Branchinecta longiantenna), the take (harass by survey, nest monitor and Riverside fairy shrimp (Streptocephalus Fish and Wildlife Service band) the California least tern (Sterna wootoni), the San Diego fairy shrimp [FWS–R8–ES–2010–N190; 80221–1113– antillarum browni) and least Bell’s vireo (Branchinecta sandiegonensis), and the 0000–F5] (Vireo belliipusillus) in conjunction vernal pool tadpole shrimp (Lepidurus with surveys and population monitoring packardi) in conjunction with survey Endangered Species Recovery Permit throughout the range of the species in activities throughout the range of each Applications San Diego and Orange Counties, species in California for the purpose of AGENCY: Fish and Wildlife Service, California, for the purpose of enhancing enhancing their survival. their survival. Interior. Permit No. TE–003269 ACTION: Notice of receipt of permit Permit No. TE–797267 Applicant: Robert A. James, San Diego, applications; request for comment. Applicant: H.T. Harvey and Associates, California. SUMMARY: We, the U.S. Fish and Los Gatos, California. The applicant requests an amendment Wildlife Service, invite the public to The applicant requests an amendment to an existing permit (December 16, comment on the following applications to an existing permit (December 16, 1999, 64 FR 70274) to take (capture,

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collect, and kill) the Conservancy fairy listed in the ADDRESSES section of this DEPARTMENT OF THE INTERIOR shrimp (Branchinecta conservatio), the notice. longhorn fairy shrimp (Branchinecta National Park Service longiantenna), the Riverside fairy Michael Long, shrimp (Streptocephalus wootoni), the Acting Regional Director, Region 8, National Register of Historic Places; San Diego fairy shrimp (Branchinecta Sacramento, California. Notification of Pending Nominations sandiegonensis), and the vernal pool [FR Doc. 2010–21879 Filed 8–31–10; 8:45 am] and Related Actions tadpole shrimp (Lepidurus packardi) in BILLING CODE 4310–55–P conjunction with survey activities Nominations for the following throughout the range of each species in properties being considered for listing California for the purpose of enhancing DEPARTMENT OF THE INTERIOR or related actions in the National their survival. Register were received by the National National Park Service Park Service before August 7, 2010. Permit No. TE–19226A Pursuant to § 60.13 of 36 CFR part 60, Applicant: Jillian S. Bates, Oceanside, National Register of Historic Places; written comments are being accepted California. Notification of Pending Removal of concerning the significance of the The applicant requests a permit to Listed Property nominated properties under the take (capture, collect, and kill) the National Register criteria for evaluation. Conservancy fairy shrimp (Branchinecta Pursuant to § 60.15 of 36 CFR part 60, Comments may be forwarded by United conservatio), the longhorn fairy shrimp comments are being accepted on the States Postal Service, to the National (Branchinecta longiantenna), the following properties being considered Register of Historic Places, National Riverside fairy shrimp (Streptocephalus for removal from the National Register Park Service, 1849 C St., NW., 2280, wootoni), the San Diego fairy shrimp of Historic Places. Comments may be Washington, DC 20240; by all other (Branchinecta sandiegonensis), and the forwarded by United States Postal carriers, National Register of Historic vernal pool tadpole shrimp (Lepidurus Service, to the National Register of Places, National Park Service,1201 Eye packardi) in conjunction with survey Historic Places, National Park Service, St., NW., 8th floor, Washington, DC activities throughout the range of each 1849 C St., NW., MS 2280, Washington, 20005; or by fax, 202–371–6447. Written species in California for the purpose of DC 20240; by all other carriers, National or faxed comments should be submitted enhancing their survival. Register of Historic Places, National by September 16, 2010. Permit No. TE–142435 Park Service, 1201 Eye St., NW., 8th Before including your address, phone floor, Washington, DC 20005; or by fax, number, e-mail address, or other Applicant: Debra M. Shier, Topanga, 202–371–6447. Written or faxed California. personal identifying information in your comments should be submitted by comment, you should be aware that The applicant requests an amendment September 16, 2010. your entire comment—including your to an existing permit (December 14, Before including your address, phone personal identifying information—may 2007, 72 FR 71145) to take (inject number, e-mail address, or other be made publicly available at any time. hormones, collect ectoparasites, personal identifying information in your While you can ask us in your comment transport, and hold in captivity) the comment, you should be aware that to withhold your personal identifying Stephen’s kangaroo rat (Dipodomys information from public review, we stephensi) in conjunction with scientific your entire comment—including your personal identifying information—may cannot guarantee that we will be able to research throughout the range of the do so. species in California for the purpose of be made publicly available at any time. enhancing its survival. While you can ask us in your comment Alexandra Lord, to withhold your personal identifying Permit No. TE–172629 Acting Chief, National Register of Historic information from public review, we Places/National Historic Landmarks Program. Applicant: Kristen L. Sellheim, Davis, cannot guarantee that we will be able to California. do so. CALIFORNIA Alameda County The applicant requests an amendment J. Paul Loether, to an existing permit (January 31, 2008, Iceland, 2727 Milvia St, Berkley, 10000769 73 FR 5868) to take (capture, collect, Chief, National Register of Historic Places/ National Historic Landmarks Program. and kill) the Conservancy fairy shrimp Los Angeles County (Branchinecta conservatio), the Request for REMOVAL has been made Bungalow Court at 1516 N. Serrano Ave, longhorn fairy shrimp (Branchinecta for the following resources: 1516–15281⁄2 N. Serrano Ave, Los Angeles, longiantenna), the Riverside fairy 10000761 shrimp (Streptocephalus wootoni), the ARKANSAS Bungalow Court at 1544 N. Serrano Avenue, San Diego fairy shrimp (Branchinecta 1544–1552 N. Serrano Ave, Los Angeles, Howard County sandiegonensis), and the vernal pool 10000764 tadpole shrimp (Lepidurus packardi) in First Christian Church, N. Main St., Bungalow Court at 1554 N. Serrano Avenue, conjunction with survey activities Nashville, 82000831 1554–1576 N. Serrano Ave, Los Angeles, 10000762 throughout the range of each species in Montgomery County California for the purpose of enhancing Bungalow Court at 1721 N. Kinglsey Drive, Lee Hall Depot, 114 US 270, Mount Ida, 1 their survival. 1721–1729 ⁄2 N. Kinglsey Dr, Los Angeles, We invite public review and comment 01001231 10000763 on each of these recovery permit [FR Doc. 2010–21770 Filed 8–31–10; 8:45 am] DISTRICT OF COLUMBIA applications. Comments and materials BILLING CODE P we receive will be available for public District of Columbia inspection, by appointment, during Morris Residence, 4001 Linnean Ave, normal business hours at the address Washington, 10000750

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FLORIDA RHODE ISLAND importation into the United States, the St. Johns County Kent County sale for importation, and the sale within the United States after importation of Fullerwood Park Residential Historic District, Anthony Village Historic District, certain Marine Autopilots. The Washington St between Battey St and Roughly bounded by San Marcos, Macaris, complaint names as respondents Furuno Hildreth & Hospital Creek, Saint Hazard St and various properties on 12 Electronics Co., Ltd. of Hyogo, Japan; Augustine, 10000767 adjacent Sts and the Pawtuxet River, Coventry, 10000770 Furuno U.S.A. Inc. of Camas, WA; Volusia County Navico Holdings AS of Lysaker, VERMONT Three Chimneys Archaeological Site, 715 W. Norway; Navico UK, Ltd. of Romsey Granada Blvd, Ormond Beach, 10000757 Windham County Hampshire, United Kingdom; Navico, Inc. of Nashua, NH; Flir Systems, Inc. of ILLINOIS Mechanicsville Historic District, Rte 121 E, Grafton, 10000766 Wilsonville, OR; Raymarine UK Ltd., of McDonough County [FR Doc. 2010–21771 Filed 8–31–10; 8:45 am] Portsmouth Hampshire, United Kingdom; and Raymarine Inc. of Lamoine Hotel, 201 N. Randolph St, BILLING CODE P Macomb, 10000760 Merrimack, NH. The complainant, proposed MASSACHUSETTS respondents, other interested parties, INTERNATIONAL TRADE Barnstable County and members of the public are invited COMMISSION to file comments, not to exceed five Town Hall Square Historic District Boundary pages in length, on any public interest Increase, roughly bounded by MA Rte 6A, Notice of Receipt of Complaint; issues raised by the complaint. Morse Rd, Water St, Shawme Lake, Grove Solicitation of Comments Relating to Comments should address whether St, Main St, and Tupper Rd., Sandwich, the Public Interest 10000752 issuance of an exclusion order and/or a AGENCY: U.S. International Trade cease and desist order in this Worcester County Commission. investigation would negatively affect the Stevens Linen Works Historic District, 8–10 ACTION: Notice. public health and welfare in the United Mill St, 2 W. Main St, 2 Curfew Ln, States, competitive conditions in the Ardlock Pl, Dudley, 10000751 SUMMARY: Notice is hereby given that United States economy, the production MISSOURI the U.S. International Trade of like or directly competitive articles in Commission has received a complaint the United States, or United States St. Louis Independent City entitled In Re Certain Components for consumers. St. Louis News Company, 1008–1010 Locust Installation of Marine Autopilots with In particular, the Commission is St, St. Louis, 10000755 GPS or IMU, DN 2752; the Commission interested in comments that: MONTANA is soliciting comments on any public (i) Explain how the articles interest issues raised by the complaint. potentially subject to the orders are used Missoula County FOR FURTHER INFORMATION CONTACT: in the United States; (ii) Identify any public health, safety, Missoula County Fairgrounds Historic Marilyn R. Abbott, Secretary to the or welfare concerns in the United States District, 1101 S. Ave W, Missoula, Commission, U.S. International Trade 10000765 relating to the potential orders; Commission, 500 E Street, SW., (iii) Indicate the extent to which like MONTANA Washington, DC 20436, telephone (202) or directly competitive articles are 205–2000. The public version of the Yellowstone County produced in the United States or are complaint can be accessed on the otherwise available in the United States, Billings Old Town Historic District, Commission’s electronic docket (EDIS) Generally bounded by Montana Ave on the with respect to the articles potentially at http://edis.usitc.gov, and will be subject to the orders; and N; S 26th on the E; 1st Ave S on the S; and available for inspection during official S. 30th St on the W, Billings, 10000753 (iv) Indicate whether Complainant, business hours (8:45 a.m. to 5:15 p.m.) Laurel Downtown Historic District, Roughly Complainant’s licensees, and/or third bounded by the Burlington Northern Santa in the Office of the Secretary, U.S. party suppliers have the capacity to Fe Railway Company tracks to the S, Third International Trade Commission, 500 E replace the volume of articles S. to the N, Wyoming Ave, Laurel, Street, SW., Washington, DC 20436, potentially subject to an exclusion order 10000768 telephone (202) 205–2000. and a cease and desist order within a General information concerning the NEBRASKA commercially reasonable time. Commission may also be obtained by Written submissions must be filed no Douglas County accessing its Internet server (http:// later than by close of business, five Neef, Henry B., House, 2884 Iowa St, Omaha, www.usitc.gov). The public record for business days after the date of 10000758 this investigation may be viewed on the publication of this notice in the Federal Wohlner’s Neighborhood Grocery, 5203 Commission’s electronic docket (EDIS) Register. There will be further Leavenworth St, Omaha, 10000759 at http://edis.usitc.gov. Hearing- opportunities for comment on the impaired persons are advised that NORTH CAROLINA public interest after the issuance of any information on this matter can be final initial determination in this Henderson County obtained by contacting the investigation. Singletary—Reese—Robinson House, 211 Commission’s TDD terminal on (202) Persons filing written submissions Robinson Ln, Laurel Park, 10000754 205–1810. must file the original document and 12 SUPPLEMENTARY INFORMATION: The true copies thereof on or before the OHIO Commission has received a complaint deadlines stated above with the Office Hamilton County filed on behalf of American GNC on of the Secretary. Submissions should Fairview Public School Annex, 255 Warner August 26, 2010. The complaint alleges refer to the docket number (‘‘Docket No. St and 2232 Stratford Ave, Cincinnati, violations of section 337 of the Tariff 2752’’) in a prominent place on the 10000756 Act of 1930 (19 U.S.C. 1337) in the cover page and/or the first page. The

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Commission’s rules authorize filing industry in the United States is From China and Taiwan: Investigation submissions with the Secretary by threatened with material injury by Nos. 701–TA–467 and 731–TA–1164– facsimile or electronic means only to the reason of imports of narrow woven 1165 (Final). extent permitted by section 201.8 of the ribbons with woven selvedge from By order of the Commission. rules (see Handbook for Electronic China, primarily provided for in Issued: August 26, 2010. Filing Procedures, http://www.usitc.gov/ subheading 5806.32 of the Harmonized Marilyn R. Abbott, secretary/fed_reg_notices/rules/ Tariff Schedule of the United States, documents/ that the U.S. Department of Commerce Secretary to the Commission. handbook_on_electronic_filing.pdf). (‘‘Commerce’’) has determined are [FR Doc. 2010–21760 Filed 8–31–10; 8:45 am] Persons with questions regarding subsidized and sold in the United States BILLING CODE 7020–02–P electronic filing should contact the at less than fair value (‘‘LTFV’’). The Secretary (202–205–2000). Commission further determines,2 Any person desiring to submit a pursuant to section 735(B) of the Act INTERNATIONAL TRADE document to the Commission in (19 U.S.C. 1673d(b)), that an industry in COMMISSION confidence must request confidential the United States is threatened with [Investigation No. 731–TA–459 treatment. All such requests should be material injury by reason of imports of (Third Review)] directed to the Secretary to the narrow woven ribbons with woven Commission and must include a full selvedge from Taiwan, primarily Polyethylene Terephthalate (PET) Film statement of the reasons why the provided for in subheading 5806.32 of From Korea Commission should grant such the Harmonized Tariff Schedule of the AGENCY: United States International treatment. See 19 CFR 201.6. Documents United States, that Commerce has Trade Commission. for which confidential treatment by the determined are sold in the United States ACTION: Institution of a five-year review Commission is properly sought will be at LTFV. In addition, the Commission concerning the antidumping duty order treated accordingly. All nonconfidential determines that it would not have found on PET film from Korea. written submissions will be available for material injury but for the suspension of public inspection at the Office of the liquidation. SUMMARY: The Commission hereby gives Secretary. Background notice that it has instituted a review This action is taken under the pursuant to section 751(c) of the Tariff authority of section 337 of the Tariff Act The Commission instituted these Act of 1930 (19 U.S.C. 1675(c)) (the Act) of 1930, as amended (19 U.S.C. 1337), investigations effective July 9, 2009, to determine whether revocation of the and of sections 201.10 and 210.50(a)(4) following receipt of a petition filed with antidumping duty order on PET film of the Commission’s Rules of Practice the Commission and Commerce by from Korea would be likely to lead to and Procedure (19 CFR 201.10, Berwick Offray LLC and its wholly- continuation or recurrence of material 210.50(a)(4)). owned subsidiary Lion Ribbon injury. Pursuant to section 751(c)(2) of By order of the Commission. Company, Inc., Berwick, PA. The final the Act, interested parties are requested phase of the investigations was to respond to this notice by submitting Issued: August 26, 2010. scheduled by the Commission following Marilyn R. Abbott, the information specified below to the notification of preliminary Commission; 1 to be assured of Secretary to the Commission. determinations by Commerce that consideration, the deadline for [FR Doc. 2010–21789 Filed 8–31–10; 8:45 am] imports of narrow woven ribbons with responses is October 1, 2010. Comments BILLING CODE 7020–02–P woven selvedge from China were on the adequacy of responses may be subsidized within the meaning of filed with the Commission by November section 703(b) of the Act (19 U.S.C. 15, 2010. For further information INTERNATIONAL TRADE 1671b(b)) and that imports of narrow COMMISSION concerning the conduct of this review woven ribbons with woven selvedge and rules of general application, consult [Investigation Nos. 701–TA–467 and 731– from China and Taiwan were dumped the Commission’s Rules of Practice and TA–1164–1165 (Final)] within the meaning of 733(b) of the Act Procedure, part 201, subparts A through (19 U.S.C. 1673b(b)). Notice of the E (19 CFR part 201), and part 207, Narrow Woven Ribbons With Woven scheduling of the final phase of the subparts A, D, E, and F (19 CFR part Selvedge From China and Taiwan Commission’s investigations and of a 207), as most recently amended at 74 FR public hearing to be held in connection 2847 (January 16, 2009). Determinations therewith was given by posting copies On the basis of the record 1 developed of the notice in the Office of the DATES: Effective Date: September 1, in the subject investigations, the United Secretary, U.S. International Trade 2010. States International Trade Commission Commission, Washington, DC, and by FOR FURTHER INFORMATION CONTACT: (Commission) determines,2 pursuant to publishing the notice in the Federal Mary Messer (202–205–3193), Office of sections 705(b) and 735(B) of the Tariff Register on March 12, 2010 (75 FR Investigations, U.S. International Trade Act of 1930 (19 U.S.C. 1671d(b)) and 11908). The hearing was held in Commission, 500 E Street SW., (19 U.S.C. 1673d(b)) (the Act), that an Washington, DC, on July 15, 2010, and Washington, DC 20436. Hearing- all persons who requested the 1 The record is defined in sec. 207.2(f) of the opportunity were permitted to appear in 1 No response to this request for information is Commission’s Rules of Practice and Procedure person or by counsel. required if a currently valid Office of Management (19 CFR 207.2(f)). and Budget (OMB) number is not displayed; the 2 Commissioners Charlotte R. Lane, Shara L. The Commission transmitted its OMB number is 3117–0016/USITC No. 11–5–222, Aranoff, and Irving A. Williamson made affirmative determinations in these investigations to expiration date June 30, 2011. Public reporting determinations. Chairman Deanna Tanner Okun the Secretary of Commerce on August burden for the request is estimated to average 15 and Commissioner Daniel R. Pearson made negative 25, 2010. The views of the Commission hours per response. Please send comments determinations. Commissioner Dean A. Pinkert regarding the accuracy of this burden estimate to made an affirmative determination with respect to are contained in USITC Publication the Office of Investigations, U.S. International Trade China and a negative determination with respect to 4180 (September 2010), entitled Narrow Commission, 500 E Street, SW., Washington, DC Taiwan. Woven Ribbons With Woven Selvedge 20436.

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impaired persons can obtain PET film, including equivalent PET contact Carol McCue Verratti, Deputy information on this matter by contacting film. One Commissioner defined the Agency Ethics Official, at 202–205– the Commission’s TDD terminal on Domestic Like Product differently in the 3088. 202–205–1810. Persons with mobility original investigation. Limited disclosure of business impairments who will need special (4) The Domestic Industry is the U.S. proprietary information (BPI) under an assistance in gaining access to the producers as a whole of the Domestic- administrative protective order (APO) Commission should contact the Office Like Product, or those producers whose and APO service list.—Pursuant to of the Secretary at 202–205–2000. collective output of the Domestic-Like section 207.7(a) of the Commission’s General information concerning the Product constitutes a major proportion rules, the Secretary will make BPI Commission may also be obtained by of the total domestic production of the submitted in this review available to accessing its Internet server (http:// product. In its original determination authorized applicants under the APO www.usitc.gov). The public record for and its first and second expedited five- issued in the review, provided that the this review may be viewed on the year review determinations, the application is made no later than 21 Commission’s electronic docket (EDIS) Commission defined the Domestic days after publication of this notice in at http://edis.usitc.gov. Industry as all domestic producers of the Federal Register. Authorized SUPPLEMENTARY INFORMATION: PET film, including equivalent PET applicants must represent interested film. One Commissioner defined the parties, as defined in 19 U.S.C. 1677(9), Background.—On June 5, 1991, the Domestic Industry differently. who are parties to the review. A Department of Commerce (Commerce) (5) An Importer is any person or firm separate service list will be maintained issued an antidumping duty order on engaged, either directly or through a by the Secretary for those parties imports of PET film from Korea (56 FR parent company or subsidiary, in authorized to receive BPI under the 25669). The original order was amended importing the Subject Merchandise into APO. pursuant to final court decision on the United States from a foreign Certification.—Pursuant to section September 26, 1997 (62 FR 50557). manufacturer or through its selling 207.3 of the Commission’s rules, any Following first five-year reviews by agent. person submitting information to the Commerce and the Commission, Participation in the review and public Commission in connection with this effective March 7, 2000, Commerce service list.—Persons, including review must certify that the information issued a continuation of the industrial users of the Subject is accurate and complete to the best of antidumping duty order on imports of Merchandise and, if the merchandise is the submitter’s knowledge. In making PET film from Korea (65 FR 11984). sold at the retail level, representative the certification, the submitter will be Following second five-year reviews by consumer organizations, wishing to deemed to consent, unless otherwise Commerce and the Commission, participate in the review as parties must specified, for the Commission, its effective October 20, 2005, Commerce file an entry of appearance with the employees, and contract personnel to issued a continuation of the Secretary to the Commission, as use the information provided in any antidumping duty order on imports of provided in section 201.11(b)(4) of the other reviews or investigations of the PET film from Korea (70 FR 61118). The Commission’s rules, no later than 21 same or comparable products which the Commission is now conducting a third days after publication of this notice in Commission conducts under Title VII of review to determine whether revocation the Federal Register. The Secretary will the Act, or in internal audits and of the order would be likely to lead to maintain a public service list containing investigations relating to the programs continuation or recurrence of material the names and addresses of all persons, and operations of the Commission injury to the domestic industry within or their representatives, who are parties pursuant to 5 U.S.C. Appendix 3. a reasonably foreseeable time. It will to the review. Written submissions.—Pursuant to assess the adequacy of interested party Former Commission employees who section 207.61 of the Commission’s responses to this notice of institution to are seeking to appear in Commission rules, each interested party response to determine whether to conduct a full five-year reviews are advised that they this notice must provide the information review or an expedited review. The may appear in a review even if they specified below. The deadline for filing Commission’s determination in any participated personally and such responses is October 1, 2010. expedited review will be based on the substantially in the corresponding Pursuant to section 207.62(b) of the facts available, which may include underlying original investigation. The Commission’s rules, eligible parties information provided in response to this Commission’s designated agency ethics (as specified in Commission rule notice. official has advised that a five-year 207.62(b)(1)) may also file comments Definitions.—The following review is not considered the ‘‘same concerning the adequacy of responses to definitions apply to this review: particular matter’’ as the corresponding the notice of institution and whether the (1) Subject Merchandise is the class or underlying original investigation for Commission should conduct an kind of merchandise that is within the purposes of 18 U.S.C. 207, the post expedited or full review. The deadline scope of the five-year review, as defined employment statute for Federal for filing such comments is November by the Department of Commerce. employees, and Commission rule 15, 2010. All written submissions must (2) The Subject Country in this review 201.15(b) (19 CFR 201.15(b)), 73 FR conform with the provisions of sections is Korea. 24609 (May 5, 2008). This advice was 201.8 and 207.3 of the Commission’s (3) The Domestic-Like Product is the developed in consultation with the rules and any submissions that contain domestically produced product or Office of Government Ethics. BPI must also conform with the products which are like, or in the Consequently, former employees are not requirements of sections 201.6 and absence of like, most similar in required to seek Commission approval 207.7 of the Commission’s rules. The characteristics and uses with, the to appear in a review under Commission Commission’s rules do not authorize Subject Merchandise. In its original rule 19 CFR 201.15, even if the filing of submissions with the Secretary determination and its first and second corresponding underlying original by facsimile or electronic means, except expedited five-year review investigation was pending when they to the extent permitted by section 201.8 determinations, the Commission were Commission employees. For of the Commission’s rules, as amended, defined the Domestic-Like Product as all further ethics advice on this matter, 67 FR 68036 (November 8, 2002). Also,

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in accordance with sections 201.16(c) (5) A list of all known and currently (SG&A) expenses, and (v) operating and 207.3 of the Commission’s rules, operating U.S. producers of the income of the Domestic Like Product each document filed by a party to the Domestic Like Product. Identify any produced in your U.S. plant(s) (include review must be served on all other known related parties and the nature of both U.S. and export commercial sales, parties to the review (as identified by the relationship as defined in section internal consumption, and company either the public or APO service list as 771(4)(B) of the Act (19 U.S.C. transfers) for your most recently appropriate), and a certificate of service 1677(4)(B)). completed fiscal year (identify the date must accompany the document (if you (6) A list of all known and currently on which your fiscal year ends). are not a party to the review you do not operating U.S. importers of the Subject (10) If you are a U.S. importer or a need to serve your response). Merchandise and producers of the trade/business association of U.S. Inability to provide requested Subject Merchandise in the Subject importers of the Subject Merchandise information.—Pursuant to section Country that currently export or have from the Subject Country, provide the 207.61(c) of the Commission’s rules, any exported Subject Merchandise to the following information on your firm’s(s’) interested party that cannot furnish the United States or other countries after operations on that product during information requested by this notice in 2004. calendar year 2009 (report quantity data the requested form and manner shall (7) A list of 3–5 leading purchasers in in pounds and value data in U.S. notify the Commission at the earliest the U.S. market for the Domestic Like dollars). If you are a trade/business possible time, provide a full explanation Product and the Subject Merchandise association, provide the information, on of why it cannot provide the requested (including street address, World Wide an aggregate basis, for the firms which information, and indicate alternative Web address, and the name, telephone are members of your association. forms in which it can provide number, fax number, and e-mail address (a) The quantity and value (landed, equivalent information. If an interested of a responsible official at each firm). duty-paid but not including party does not provide this notification (8) A list of known sources of antidumping duties) of U.S. imports (or the Commission finds the information on national or regional and, if known, an estimate of the explanation provided in the notification prices for the Domestic Like Product or percentage of total U.S. imports of inadequate) and fails to provide a the Subject Merchandise in the U.S. or Subject Merchandise from the Subject complete response to this notice, the other markets. Country accounted for by your firm’s(s’) Commission may take an adverse (9) If you are a U.S. producer of the imports; inference against the party pursuant to Domestic Like Product, provide the (b) The quantity and value (f.o.b. U.S. section 776(b) of the Act in making its following information on your firm’s port, including antidumping duties) of determination in the review. operations on that product during U.S. commercial shipments of Subject Information to be Provided in calendar year 2009, except as noted Merchandise imported from the Subject Response to this Notice of Institution: (report quantity data in pounds and Country; and As used below, the term ‘‘firm’’ includes value data in U.S. dollars, f.o.b. plant). (c) The quantity and value (f.o.b. U.S. any related firms. If you are a union/worker group or port, including antidumping duties) of (1) The name and address of your firm trade/business association, provide the U.S. internal consumption/company or entity (including World Wide Web information, on an aggregate basis, for transfers of Subject Merchandise address) and name, telephone number, the firms in which your workers are imported from the Subject Country. fax number, and E-mail address of the employed/which are members of your (11) If you are a producer, an exporter, certifying official. association. or a trade/business association of (2) A statement indicating whether (a) Production (quantity) and, if producers or exporters of the Subject your firm/entity is a U.S. producer of known, an estimate of the percentage of Merchandise in the Subject Country, the Domestic Like Product, a U.S. union total U.S. production of the Domestic provide the following information on or worker group, a U.S. importer of the Like Product accounted for by your your firm’s(s’) operations on that Subject Merchandise, a foreign producer firm’s(s’) production; product during calendar year 2009 or exporter of the Subject Merchandise, (b) Capacity (quantity) of your firm to (report quantity data in pounds and a U.S. or foreign trade or business produce the Domestic Like Product value data in U.S. dollars, landed and association, or another interested party (i.e., the level of production that your duty-paid at the U.S. port but not (including an explanation). If you are a establishment(s) could reasonably have including antidumping duties). If you union/worker group or trade/business expected to attain during the year, are a trade/business association, provide association, identify the firms in which assuming normal operating conditions the information, on an aggregate basis, your workers are employed or which are (using equipment and machinery in for the firms which are members of your members of your association. place and ready to operate), normal association. (3) A statement indicating whether operating levels (hours per week/weeks (a) Production (quantity) and, if your firm/entity is willing to participate per year), time for downtime, known, an estimate of the percentage of in this review by providing information maintenance, repair, and cleanup, and a total production of Subject Merchandise requested by the Commission. typical or representative product mix); in the Subject Country accounted for by (4) A statement of the likely effects of (c) The quantity and value of U.S. your firm’s(s’) production; and the revocation of the antidumping duty commercial shipments of the Domestic (b) Capacity (quantity) of your firm to order on the Domestic Industry in Like Product produced in your produce the Subject Merchandise in the general and/or your firm/entity U.S. plant(s); and Subject Country (i.e., the level of specifically. In your response, please (d) The quantity and value of U.S. production that your establishment(s) discuss the various factors specified in internal consumption/company could reasonably have expected to section 752(a) of the Act (19 U.S.C. transfers of the Domestic Like Product attain during the year, assuming normal 1675a(a)) including the likely volume of produced in your operating conditions (using equipment subject imports, likely price effects of U.S. plant(s). and machinery in place and ready to subject imports, and likely impact of (e) The value of (i) net sales, (ii) cost operate), normal operating levels (hours imports of Subject Merchandise on the of goods sold (COGS), (iii) gross profit, per week/weeks per year), time for Domestic Industry. (iv) selling, general and administrative downtime, maintenance, repair, and

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cleanup, and a typical or representative ACTION: Institution of five-year reviews issued an antidumping duty order on product mix); and concerning the antidumping duty orders imports of stainless steel butt-weld pipe (c) The quantity and value of your on stainless steel butt-weld pipe fittings fittings from Japan (53 FR 9787). On firm’s(s’) exports to the United States of from Japan, Korea, and Taiwan. February 23, 1993, Commerce issued an Subject Merchandise and, if known, an antidumping duty order on imports of estimate of the percentage of total SUMMARY: The Commission hereby gives stainless steel butt-weld pipe fittings exports to the United States of Subject notice that it has instituted reviews from Korea (58 FR 11029). On June 16, Merchandise from the Subject Country pursuant to section 751(c) of the Tariff 1993, Commerce issued an antidumping accounted for by your firm’s(s’) exports. Act of 1930 (19 U.S.C. 1675(c)) (the Act) duty order on imports of stainless steel (12) Identify significant changes, if to determine whether revocation of the butt-weld pipe fittings from Taiwan, as any, in the supply and demand antidumping duty orders on stainless amended (58 FR 33250). Following five- conditions or business cycle for the steel butt-weld pipe fittings from Japan, year reviews by Commerce and the Domestic Like Product that have Korea, and Taiwan would be likely to Commission, effective March 6, 2000, occurred in the United States or in the lead to continuation or recurrence of Commerce issued a continuation of the market for the Subject Merchandise in material injury. Pursuant to section antidumping duty orders on imports of the Subject Country after 2004, and 751(c)(2) of the Act, interested parties stainless steel butt-weld pipe fittings significant changes, if any, that are are requested to respond to this notice from Japan, Korea, and Taiwan (65 FR likely to occur within a reasonably by submitting the information specified 11766). Following second five-year foreseeable time. Supply conditions to below to the Commission; 1 to be reviews by Commerce and the consider include technology; assured of consideration, the deadline Commission, effective October 20, 2005, production methods; development for responses is October 1, 2010. Commerce issued a continuation of the efforts; ability to increase production Comments on the adequacy of responses antidumping duty orders on stainless (including the shift of production may be filed with the Commission by steel butt-weld pipe fittings from Japan, facilities used for other products and the November 15, 2010. For further Korea, and Taiwan (70 FR 61119). The use, cost, or availability of major inputs information concerning the conduct of Commission is now conducting third into production); and factors related to these reviews and rules of general reviews to determine whether the ability to shift supply among application, consult the Commission’s revocation of the orders would be likely different national markets (including Rules of Practice and Procedure, part to lead to continuation or recurrence of barriers to importation in foreign 201, subparts A through E (19 CFR part material injury to the domestic industry markets or changes in market demand 201), and part 207, subparts A, D, E, and within a reasonably foreseeable time. It abroad). Demand conditions to consider F (19 CFR part 207), as most recently will assess the adequacy of interested include end uses and applications; the amended at 74 FR 2847 (January 16, party responses to this notice of existence and availability of substitute 2009). institution to determine whether to products; and the level of competition DATES: Effective Date: September 1, conduct full reviews or expedited among the Domestic Like Product 2010. reviews. The Commission’s determinations in any expedited produced in the United States, Subject FOR FURTHER INFORMATION CONTACT: reviews will be based on the facts Merchandise produced in the Subject Mary Messer (202–205–3193), Office of available, which may include Country, and such merchandise from Investigations, U.S. International Trade information provided in response to this other countries. Commission, 500 E Street, SW., (13) (OPTIONAL) A statement of notice. Washington, DC 20436. Hearing- Definitions.—The following whether you agree with the above impaired persons can obtain definitions of the Domestic Like Product definitions apply to these reviews: information on this matter by contacting (1) Subject Merchandise is the class or and Domestic Industry; if you disagree the Commission’s TDD terminal on 202– with either or both of these definitions, kind of merchandise that is within the 205–1810. Persons with mobility scope of the five-year reviews, as please explain why and provide impairments who will need special alternative definitions. defined by Commerce. assistance in gaining access to the (2) The Subject Countries in these Authority: This review is being conducted Commission should contact the Office reviews are Japan, Korea, and Taiwan. under authority of title VII of the Tariff Act of the Secretary at 202–205–2000. (3) The Domestic Like Product is the of 1930; this notice is published pursuant to General information concerning the domestically produced product or section 207.61 of the Commission’s rules. Commission may also be obtained by products which are like, or in the By order of the Commission. accessing its Internet server (http:// absence of like, most similar in Issued: August 24, 2010. www.usitc.gov). The public record for characteristics and uses with, the Marilyn R. Abbott, these reviews may be viewed on the Subject Merchandise. In its original Secretary to the Commission. Commission’s electronic docket (EDIS) determinations and its first and second at http://edis.usitc.gov. [FR Doc. 2010–21366 Filed 8–31–10; 8:45 am] expedited five-year review SUPPLEMENTARY INFORMATION: BILLING CODE 7020–02–P determinations, the Commission Background.—On March 25, 1988, the defined the Domestic Like Product as Department of Commerce (Commerce) stainless steel butt-weld pipe fittings, INTERNATIONAL TRADE co-extensive with Commerce’s scope of COMMISSION 1 No response to this request for information is the subject merchandise. required if a currently valid Office of Management (4) The Domestic Industry is the U.S. [Investigation Nos. 731–TA–376, 563, and and Budget (OMB) number is not displayed; the producers as a whole of the Domestic 564 (Third Review)] OMB number is 3117–0016/USITC No. 11–5–223, expiration date June 30, 2011. Public reporting Like Product, or those producers whose Stainless Steel Butt-Weld Pipe Fittings burden for the request is estimated to average 15 collective output of the Domestic Like hours per response. Please send comments Product constitutes a major proportion From Japan, Korea, and Taiwan regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade of the total domestic production of the AGENCY: United States International Commission, 500 E Street, SW., Washington, DC product. In its original determinations Trade Commission. 20436. and its first and second expedited five-

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year review determinations, the the Federal Register. Authorized interested party that cannot furnish the Commission defined the Domestic applicants must represent interested information requested by this notice in Industry as all domestic producers of parties, as defined in 19 U.S.C. 1677(9), the requested form and manner shall stainless steel butt-weld pipe fittings. who are parties to the reviews. A notify the Commission at the earliest (5) An Importer is any person or firm separate service list will be maintained possible time, provide a full explanation engaged, either directly or through a by the Secretary for those parties of why it cannot provide the requested parent company or subsidiary, in authorized to receive BPI under the information, and indicate alternative importing the Subject Merchandise into APO. forms in which it can provide the United States from a foreign Certification.—Pursuant to section equivalent information. If an interested manufacturer or through its selling 207.3 of the Commission’s rules, any party does not provide this notification agent. person submitting information to the (or the Commission finds the Participation in the reviews and Commission in connection with these explanation provided in the notification public service list.—Persons, including reviews must certify that the inadequate) and fails to provide a industrial users of the Subject information is accurate and complete to complete response to this notice, the Merchandise and, if the merchandise is the best of the submitter’s knowledge. In Commission may take an adverse sold at the retail level, representative making the certification, the submitter inference against the party pursuant to consumer organizations, wishing to will be deemed to consent, unless section 776(b) of the Act in making its participate in the reviews as parties otherwise specified, for the determinations in the reviews. must file an entry of appearance with Commission, its employees, and Information to be Provided in the Secretary to the Commission, as contract personnel to use the Response to this Notice of Institution: If provided in section 201.11(b)(4) of the information provided in any other you are a domestic producer, union/ Commission’s rules, no later than 21 reviews or investigations of the same or worker group, or trade/business days after publication of this notice in comparable products which the association; import/export Subject the Federal Register. The Secretary will Commission conducts under Title VII of Merchandise from more than one maintain a public service list containing the Act, or in internal audits and Subject Country; or produce Subject the names and addresses of all persons, investigations relating to the programs Merchandise in more than one Subject or their representatives, who are parties and operations of the Commission Country, you may file a single response. to the reviews. pursuant to 5 U.S.C. appendix 3. If you do so, please ensure that your Former Commission employees who Written submissions.—Pursuant to response to each question includes the are seeking to appear in Commission section 207.61 of the Commission’s information requested for each pertinent five-year reviews are advised that they rules, each interested party response to Subject Country. As used below, the may appear in a review even if they this notice must provide the information term ‘‘firm’’ includes any related firms. participated personally and specified below. The deadline for filing (1) The name and address of your firm substantially in the corresponding such responses is October 1, 2010. or entity (including World Wide Web underlying original investigation. The Pursuant to section 207.62(b) of the address if available) and name, Commission’s designated agency ethics Commission’s rules, eligible parties (as telephone number, fax number, and E- official has advised that a five-year specified in Commission rule mail address of the certifying official. review is not considered the ‘‘same 207.62(b)(1)) may also file comments (2) A statement indicating whether particular matter’’ as the corresponding concerning the adequacy of responses to your firm/entity is a U.S. producer of underlying original investigation for the notice of institution and whether the the Domestic Like Product, a U.S. union purposes of 18 U.S.C. 207, the post Commission should conduct expedited or worker group, a U.S. importer of the employment statute for Federal or full reviews. The deadline for filing Subject Merchandise, a foreign producer employees, and Commission rule such comments is November 15, 2010. or exporter of the Subject Merchandise, 201.15(b)(19 CFR 201.15(b)), 73 FR All written submissions must conform a U.S. or foreign trade or business 24609 (May 5, 2008). This advice was with the provisions of sections 201.8 association, or another interested party developed in consultation with the and 207.3 of the Commission’s rules and (including an explanation). If you are a Office of Government Ethics. any submissions that contain BPI must union/worker group or trade/business Consequently, former employees are not also conform with the requirements of association, identify the firms in which required to seek Commission approval sections 201.6 and 207.7 of the your workers are employed or which are to appear in a review under Commission Commission’s rules. The Commission’s members of your association. rule 19 CFR 201.15, even if the rules do not authorize filing of (3) A statement indicating whether corresponding underlying original submissions with the Secretary by your firm/entity is willing to participate investigation was pending when they facsimile or electronic means, except to in these reviews by providing were Commission employees. For the extent permitted by section 201.8 of information requested by the further ethics advice on this matter, the Commission’s rules, as amended, 67 Commission. contact Carol McCue Verratti, Deputy FR 68036 (November 8, 2002). Also, in (4) A statement of the likely effects of Agency Ethics Official, at 202–205– accordance with sections 201.16(c) and the revocation of the antidumping duty 3088. 207.3 of the Commission’s rules, each orders on the Domestic Industry in Limited disclosure of business document filed by a party to the reviews general and/or your firm/entity proprietary information (BPI) under an must be served on all other parties to specifically. In your response, please administrative protective order (APO) the reviews (as identified by either the discuss the various factors specified in and APO service list.—Pursuant to public or APO service list as section 752(a) of the Act (19 U.S.C. section 207.7(a) of the Commission’s appropriate), and a certificate of service 1675a(a)) including the likely volume of rules, the Secretary will make BPI must accompany the document (if you subject imports, likely price effects of submitted in these reviews available to are not a party to the reviews you do not subject imports, and likely impact of authorized applicants under the APO need to serve your response). imports of Subject Merchandise on the issued in the reviews, provided that the Inability to provide requested Domestic Industry. application is made no later than 21 information.—Pursuant to section (5) A list of all known and currently days after publication of this notice in 207.61(c) of the Commission’s rules, any operating U.S. producers of the

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Domestic Like Product. Identify any internal consumption, and company (c) The quantity and value of your known related parties and the nature of transfers) for your most recently firm’s(s’) exports to the United States of the relationship as defined in section completed fiscal year (identify the date Subject Merchandise and, if known, an 771(4)(B) of the Act (19 U.S.C. on which your fiscal year ends). estimate of the percentage of total 1677(4)(B)). (10) If you are a U.S. importer or a exports to the United States of Subject (6) A list of all known and currently trade/business association of U.S. Merchandise from each Subject Country operating U.S. importers of the Subject importers of the Subject Merchandise accounted for by your firm’s(s’) exports. Merchandise and producers of the from the Subject Country(ies), provide (12) Identify significant changes, if Subject Merchandise in each Subject the following information on your any, in the supply and demand Country that currently export or have firm’s(s’) operations on that product conditions or business cycle for the exported Subject Merchandise to the during calendar year 2009 (report Domestic Like Product that have United States or other countries after quantity data in pounds and value data occurred in the United States or in the 2004. in U.S. dollars). If you are a trade/ market for the Subject Merchandise in (7) A list of 3–5 leading purchasers in business association, provide the the Subject Countries after 2004, and the U.S. market for the Domestic Like information, on an aggregate basis, for significant changes, if any, that are Product and the Subject Merchandise the firms which are members of your likely to occur within a reasonably (including street address, World Wide association. foreseeable time. Supply conditions to Web address, and the name, telephone (a) The quantity and value (landed, consider include technology; number, fax number, and E-mail address duty-paid but not including production methods; development of a responsible official at each firm). antidumping duties) of U.S. imports efforts; ability to increase production (8) A list of known sources of and, if known, an estimate of the (including the shift of production information on national or regional percentage of total U.S. imports of facilities used for other products and the prices for the Domestic Like Product or Subject Merchandise from each Subject use, cost, or availability of major inputs the Subject Merchandise in the U.S. or Country accounted for by your firm’s(s’) into production); and factors related to other markets. imports; the ability to shift supply among (9) If you are a U.S. producer of the (b) The quantity and value (f.o.b. U.S. different national markets (including Domestic Like Product, provide the port, including antidumping duties) of barriers to importation in foreign following information on your firm’s U.S. commercial shipments of Subject markets or changes in market demand operations on that product during Merchandise imported from each abroad). Demand conditions to consider calendar year 2009 (report quantity data Subject Country; and include end uses and applications; the in pounds and value data in U.S. existence and availability of substitute (c) The quantity and value (f.o.b. U.S. dollars, f.o.b. plant). If you are a union/ products; and the level of competition port, including antidumping duties) of worker group or trade/business among the Domestic Like Product U.S. internal consumption/company association, provide the information, on produced in the United States, Subject transfers of Subject Merchandise an aggregate basis, for the firms in Merchandise produced in each Subject imported from each Subject Country. which your workers are employed/ Country, and such merchandise from (11) If you are a producer, an exporter, which are members of your association. other countries. (a) Production (quantity) and, if or a trade/business association of (13) (OPTIONAL) A statement of known, an estimate of the percentage of producers or exporters of the Subject whether you agree with the above total U.S. production of the Domestic Merchandise in the Subject definitions of the Domestic Like Product Like Product accounted for by your Country(ies), provide the following and Domestic Industry; if you disagree firm’s(s’) production; information on your firm’s(s’) with either or both of these definitions, (b) Capacity (quantity) of your firm to operations on that product during please explain why and provide produce the Domestic Like Product (i.e., calendar year 2009 (report quantity data alternative definitions. in pounds and value data in U.S. the level of production that your Authority: These reviews are being establishment(s) could reasonably have dollars, landed and duty-paid at the U.S. port but not including antidumping conducted under authority of title VII of the expected to attain during the year, Tariff Act of 1930; this notice is published assuming normal operating conditions duties). If you are a trade/business pursuant to section 207.61 of the (using equipment and machinery in association, provide the information, on Commission’s rules. an aggregate basis, for the firms which place and ready to operate), normal By order of the Commission. operating levels (hours per week/weeks are members of your association. (a) Production (quantity) and, if Issued: August 24, 2010. per year), time for downtime, Marilyn R. Abbott, maintenance, repair, and cleanup, and a known, an estimate of the percentage of Secretary to the Commission. typical or representative product mix); total production of Subject Merchandise (c) The quantity and value of U.S. in each Subject Country accounted for [FR Doc. 2010–21367 Filed 8–31–10; 8:45 am] commercial shipments of the Domestic by your firm’s(s’) production; and BILLING CODE 7020–02–P Like Product produced in your (b) Capacity (quantity) of your firm to U.S. plant(s); and produce the Subject Merchandise in (d) The quantity and value of U.S. each Subject Country (i.e., the level of JOINT BOARD FOR THE internal consumption/company production that your establishment(s) ENROLLMENT OF ACTUARIES transfers of the Domestic Like Product could reasonably have expected to produced in your U.S. plant(s). attain during the year, assuming normal Invitation for Membership on Advisory (e) The value of (i) net sales, (ii) cost operating conditions (using equipment Committee of goods sold (COGS), (iii) gross profit, and machinery in place and ready to AGENCY: Joint Board for the Enrollment (iv) selling, general and administrative operate), normal operating levels (hours of Actuaries. (SG&A) expenses, and (v) operating per week/weeks per year), time for ACTION: Notice. income of the Domestic Like Product downtime, maintenance, repair, and produced in your U.S. plant(s) (include cleanup, and a typical or representative SUMMARY: The Joint Board for the both U.S. and export commercial sales, product mix); and Enrollment of Actuaries (Joint Board),

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established under the Employee selects appropriate questions, modifies Dated: August 24, 2010. Retirement Income Security Act of 1974 them as it deems desirable, and then Patrick W. McDonough, (ERISA), is responsible for the prepares one or more drafts of actuarial Executive Director, Joint Board for the enrollment of individuals who wish to examinations to be recommended to the Enrollment of Actuaries. perform actuarial services under ERISA. Joint Board. (In addition to revisions of [FR Doc. 2010–21609 Filed 8–31–10; 8:45 am] The Joint Board has established an the draft questions, it may be necessary BILLING CODE 4830–01–P Advisory Committee on Actuarial for the Advisory Committee to originate Examinations (Advisory Committee) to questions and include them in what is assist in its examination duties recommended.) mandated by ERISA. The current DEPARTMENT OF JUSTICE Advisory Committee members’ terms 4. Membership expire on February 28, 2011. This notice Notice of Lodging of Consent Decree describes the Advisory Committee and The Joint Board will take steps to Under the Resource Conservation and invites applications from those ensure maximum practicable Recovery Act interested in serving on it. representation on the Advisory Committee of points of view regarding Notice is hereby given that on August 25, 2010, a proposed Consent Decree in 1. General the Joint Board’s actuarial examination United States of America and State of To qualify for enrollment to perform extant in the community at large and Texas v. actuarial services under ERISA, an from nominees provided by the Air Products LLC, Civil No. 4:10-cv- applicant must have requisite pension actuarial organizations. Since the 03074 (S.D. Tex.), was lodged with the actuarial experience and satisfy members of the actuarial organizations United States District Court for the knowledge requirements as provided in comprise a large segment of the Southern District of Texas. the Joint Board’s regulations. The actuarial profession, this appointive In the Complaint filed in this action, knowledge requirements may be process ensures expression of a broad the United States and the State of Texas satisfied by successful completion of spectrum of viewpoints. All members of sought injunctive relief and civil Joint Board examinations in basic the Advisory Committee will be penalties against Air Products LLC (‘‘Air actuarial mathematics and methodology expected to act in the public interest, Products’’) for violations of the Resource and in actuarial mathematics and that is, to produce examinations that Conservation and Recovery Act methodology relating to pension plans will help ensure a level of competence (‘‘RCRA’’), 42 U.S.C. 6901–6992k, at Air qualifying under ERISA. among those who will be accorded The Joint Board, the Society of Products’ chemical manufacturing enrollment to perform actuarial services facility in Pasadena, Texas. The Actuaries, and the American Society of under ERISA. Pension Professionals & Actuaries Complaint alleged that Air Products’ jointly offer examinations acceptable to Membership normally will be limited past practice of sending spent sulfuric the Joint Board for enrollment purposes to actuaries previously enrolled by the acid hazardous waste to the neighboring and acceptable to those actuarial Joint Board. However, individuals Agrifos Fertilizer, Inc. (‘‘Agrifos’’) organizations as part of their respective having academic or other special facility for disposal violated several examination programs. qualifications of particular value for the provisions of RCRA. The Complaint also Advisory Committee’s work also will be alleged one violation of RCRA’s 2. Programs considered for membership. Federally- hazardous waste labeling requirements. The Advisory Committee plays an registered lobbyists may not be members The State of Texas has joined as a co- integral role in the examination program of the Advisory Committee. plaintiff and brings its own claims under State law. In the proposed by assisting the Joint Board in offering The Advisory Committee will meet examinations that will enable Consent Decree, Air Products agrees to about four times a year. Advisory manage the spent sulfuric acid on-site, examination candidates to demonstrate Committee members should be prepared the knowledge necessary to qualify for and not to ship it to Agrifos or to any to devote from 125 to 175 hours, enrollment. The Advisory Committee other facility not authorized to accept it; including meeting time, to the work of will discuss the philosophy of such and to certify its compliance with the Advisory Committee over the course examinations, will review topics labeling and other requirements of a year. Members will be reimbursed appropriately covered in them, and will applicable to hazardous waste storage for travel expenses incurred, in make recommendations relative thereto. tanks on site. Finally, the Consent It also will recommend to the Joint accordance with applicable government Decree requires Air Products to pay a Board proposed examination questions. regulations. $1.485 million civil penalty. The Joint Board will maintain liaison Actuaries interested in serving on the The Department of Justice will receive with the Advisory Committee in this Advisory Committee should express for a period of thirty (30) days from the process to ensure that its views on their interest and fully state their date of this publication comments examination content are understood. qualifications in a letter addressed to: relating to the Consent Decree. Joint Board for the Enrollment of Comments should be addressed to the 3. Function Actuaries, c/o Office of Professional Assistant Attorney General, The manner in which the Advisory Responsibility SE:OPR, Internal Environment and Natural Resources Committee functions in preparing Revenue Service, Attn: Executive Division, and either e-mailed to examination questions is intertwined Director IR–7238, 1111 Constitution [email protected] or with the jointly administered Avenue, NW., Washington, DC 20224. mailed to P.O. Box 7611, U.S. examination program. Under that Department of Justice, Washington, DC program, the participating actuarial Any questions may be directed to the 20044–7611, with a copy to Deborah A. organizations draft questions and Joint Board’s Executive Director at 202– Gitin, U.S. Department of Justice, 301 submit them to the Advisory Committee 622–8225. Howard Street, Suite 1050, San for its consideration. After review of the The deadline for accepting Francisco, CA 94105, and should refer draft questions, the Advisory Committee applications is November 30, 2010. to United States of America and State

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of Texas v. Air Products LLC, D.J. Ref. the first proposed Consent Decree (‘‘the amount to the Consent Decree Library at 90–7–1–09206. International Paper-BNSF Railway the stated address. The Consent Decree may be examined Consent Decree’’), International Paper at the Office of the United States Company and BNSF Railway Company Maureen Katz, Attorney, 919 Milam St., Houston, will reimburse $3,662,475.00 of the Assistant Section Chief, Environmental Texas 77208, and at U.S. EPA Region 6, costs incurred by the United States in Enforcement Section, Environment and Office of Regional Counsel, 1445 Ross connection with the Site through Natural Resources Division, United States Ave., Dallas, Texas 75202. During the December 31, 2008. Under the second Department of Justice. public comment period, the Consent proposed Consent Decree (‘‘the Cass [FR Doc. 2010–21808 Filed 8–31–10; 8:45 am] Decree may also be examined on the Forest Products Consent Decree’’), Cass BILLING CODE 4410–15–P following Department of Justice Web Forest Products, Inc. will pay an site: http://www.usdoj.gov/enrd/ additional $500 to resolve its liability Consent_Decrees.html. A copy of the for response costs incurred, or to be DEPARTMENT OF JUSTICE Consent Decree may also be obtained by incurred by the United States in mail from the Consent Decree Library, connection with the Site. This Drug Enforcement Administration P.O. Box 7611, U.S. Department of settlement is based on Cass Forest Importer of Controlled Substances; Justice, Washington, DC 20044–7611 or Products, Inc.’s ability to pay. Notice of Application by faxing or e-mailing a request to Tonia The Department of Justice will receive Fleetwood ([email protected]), comments relating to these Consent This is notice that on May 4, 2010, fax no. (202) 514–0097, phone Decrees for a period of thirty (30) days Cambrex Charles City, Inc., 1205 11th confirmation number (202) 514–1547. In from the date of this publication. Street, Charles City, Iowa 50616–3466, requesting a copy from the Consent Comments should be addressed to the Decree Library, please enclose a check Assistant Attorney General, made application by renewal to the in the amount of $9.50 (25 cents per Environment and Natural Resources Drug Enforcement Administration page reproduction cost) payable to the Division, and either e-mailed to (DEA) for registration as an importer of U.S. Treasury or, if by e-mail or fax, [email protected] or the basic classes of controlled forward a check in that amount to the mailed to P.O. Box 7611, U.S. substances listed in schedule II: Consent Decree Library at the stated Department of Justice, Washington, DC address. In requesting a copy exclusive 20044–7611, and should refer to United Drug Schedule of appendices, please enclose a check in States v. International Paper Company, Opium, raw (9600) ...... II the amount of $8.00 (25 cents per page et al., Civil Action No.10–cv–03749– Poppy Straw Concentrate (9670) II reproduction cost) payable to the U.S. ADM–XXX, DJ # 90–11–3–06790/2. Treasury. The Consent Decrees may be Maureen Katz, examined at the Office of the United The company plans to import the Assistant Chief, Environmental Enforcement States Attorney, District of Minnesota, basic classes of controlled substances to Section, Environment and Natural Resources 600 United States Courthouse, 300 manufacture a bulk intermediate which Division. South Fourth Street, Minneapolis, MN, will be distributed in bulk to the [FR Doc. 2010–21742 Filed 8–31–10; 8:45 am] 55414 and at U.S. EPA Region 5, 77 W. company’s customers. BILLING CODE 4410–15–P Jackson Blvd., Chicago, IL 60604. As explained in the Correction to During the public comment period, the Notice of Application pertaining to Consent Decrees may also be examined Rhodes Technologies, 72 FR 3417 DEPARTMENT OF JUSTICE on the following Department of Justice (2007), comments and requests for Web site, http://www.usdoj.gov/enrd/ hearings on applications to import Notice of Lodging of Consent Decree Consent_ Decrees.html. A copy of the Under the Comprehensive narcotic raw material are not Consent Decrees may also be obtained appropriate. Environmental Response, by mail from the Consent Decree Compensation and Liability Act Library, U.S. Department of Justice, P.O. As noted in a previous notice Notice is hereby given that on August Box 7611, Washington, DC 20044–7611 published in the Federal Register on 26, 2010, two proposed Consent Decrees or by faxing or e-mailing a request to September 23, 1975, (40 FR 43745), all were lodged with the United States Tonia Fleetwood applicants for registration to import a District Court for the District of ([email protected]), fax number basic class of any controlled substances Minnesota in United States v. (202) 514–0097, phone confirmation in schedule I or II are, and will continue International Paper Company, et al., number (202) 514–1547. In requesting a to be, required to demonstrate to the Civil Action No. 10–cv–03749–ADM– copy of the International Paper-BNSF Deputy Assistant Administrator, Office XXX. Railway Consent Decree from the of Diversion Control, Drug Enforcement In this action, the United States Consent Decree Library, please enclose Administration, that the requirements asserted claims against three parties for a check in the amount of $6.25 (25 cents for such registration pursuant to 21 recovery of response costs incurred by per page reproduction cost) payable to U.S.C. 958(a); 21 U.S.C. 823(a); and 21 the United States in connection with the the U.S. Treasury or, if by e-mail or fax, CFR 1301.34(b), (c), (d), (e), and (f) are St. Regis Paper Company Superfund forward a check in that amount to the satisfied. Consent Decree Library at the stated Site (the ‘‘Site’’) in Cass Lake, Minnesota, Dated: August 2, 2010. pursuant to Section 107 of the address. In requesting a copy of the Cass Comprehensive Environmental Forest Products Consent Decree from Joseph T. Rannazzisi, Response, Compensation and Liability the Consent Decree Library, please Deputy Assistant Administrator, Office of Act (‘‘CERCLA’’), 42 U.S.C. 9607. enclose a check in the amount of $16.25 Diversion Control, Drug Enforcement The proposed Consent Decrees would (25 cents per page reproduction cost) Administration. resolve claims that the United States has payable to the U.S. Treasury or, if by e- [FR Doc. 2010–21749 Filed 8–31–10; 8:45 am] asserted against all three parties. Under mail or fax, forward a check in that BILLING CODE 4410–09–P

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DEPARTMENT OF JUSTICE any controlled substance in schedule I DEPARTMENT OF JUSTICE or II are, and will continue to be, Drug Enforcement Administration required to demonstrate to the Deputy Drug Enforcement Administration Assistant Administrator, Office of Importer of Controlled Substances; Diversion Control, Drug Enforcement Manufacturer of Controlled Notice of Application Administration, that the requirements Substances; Notice of Application Pursuant to 21 U.S.C. 958(i), the for such registration pursuant to 21 Pursuant to § 1301.33(a) of Title 21 of Attorney General shall, prior to issuing U.S.C. 958(a), 21 U.S.C. 823(a), and 21 the Code of Federal Regulations (CFR), a registration under this Section to a CFR 1301.34(b), (c), (d), (e), and (f) are this is notice that on May 17, 2010, bulk manufacturer of a controlled satisfied. Cambridge Isotope Lab, 50 Frontage substance in Schedule I or II, and prior Dated: August 3, 2010. Road, Andover, Massachusetts 01810, to issuing a regulation under 21 U.S.C. Joseph T. Rannazzisi, made application by renewal to the 952(a) (2) authorizing the importation of Deputy Assistant Administrator, Office of Drug Enforcement Administration such a substance, provide Diversion Control, Drug Enforcement (DEA) to be registered as a bulk manufacturers holding registrations for Administration. manufacturer of Morphine (9300), a the bulk manufacture of the substance [FR Doc. 2010–21747 Filed 8–31–10; 8:45 am] basic class of controlled substance listed an opportunity for a hearing. BILLING CODE 4410–09–P in schedule II. Therefore, in accordance with Title 21 The company plans to utilize small of the Code of Federal Regulations quantities of the listed controlled § 1301.34(a), this is notice that on May DEPARTMENT OF JUSTICE substance in the preparation of 5, 2010, AllTech Associates Inc., 2051 analytical standards. Waukegan Road, Deerfield, Illinois Drug Enforcement Administration Any other such applicant, and any 60015, made application by renewal to person who is presently registered with the Drug Enforcement Administration Importer of Controlled Substances; DEA to manufacture such a substance, (DEA) to be registered as an importer of Notice of Application may file comments or objections to the the basic classes of controlled issuance of the proposed registration This is notice that on May 25, 2010, substances listed in schedule I and II: pursuant to 21 CFR 1301.33(a). Noramco, Inc., 1440 Olympic Drive, Any such written comments or Drug Schedule Athens, Georgia 30601, made objections should be addressed, in application by letter to the Drug quintuplicate, to the Drug Enforcement Gamma Hydroxybutyric Acid I Enforcement Administration (DEA) for (2010). Administration, Office of Diversion registration as an importer of Poppy Control, Federal Register Representative Heroin (9200) ...... I Straw Concentrate (9670), a basic class Cocaine (9041) ...... II (ODL), 8701 Morrissette Drive, Codeine (9050) ...... II of controlled substance listed in Springfield, Virginia 22152; and must be Hydrocodone (9193) ...... II schedule II. filed no later than November 1, 2010. Meperidine (9230) ...... II The company plans to import the Methadone (9250) ...... II listed controlled substance in bulk to Dated: August 3, 2010. Morphine (9300) ...... II manufacture other controlled substances Joseph T. Rannazzisi, solely in bulk for distribution to the Deputy Assistant Administrator, Office of The company plans to import these company’s customers. Diversion Control, Drug Enforcement controlled substances for the As explained in the Correction to Administration. manufacture of reference standards. Notice of Application pertaining to [FR Doc. 2010–21739 Filed 8–31–10; 8:45 am] Any bulk manufacturer who is Rhodes Technologies, 72 FR 3417 BILLING CODE 4410–09–P presently, or is applying to be, (2007), comments and requests for registered with DEA to manufacture hearings on applications to import DEPARTMENT OF JUSTICE such basic class of controlled substance narcotic raw material are not may file comments or objections to the appropriate. Drug Enforcement Administration issuance of the proposed registration As noted in a previous notice and may, at the same time, file a written published in the Federal Register on Manufacturer of Controlled request for a hearing on such September 23, 1975, (40 FR 43745), all Substances; Notice of Application application pursuant to 21 CFR 1301.43 applicants for registration to import a and in such form as prescribed by 21 basic class of any controlled substances Pursuant to § 1301.33(a) of Title 21 of CFR 1316.47. in schedule I or II are, and will continue the Code of Federal Regulations (CFR), Any such comments or objections to be, required to demonstrate to the this is notice that on April 29, 2010, should be addressed, in quintuplicate, Deputy Assistant Administrator, Office Cambrex Charles City, Inc., 1205 11th to the Drug Enforcement of Diversion Control, Drug Enforcement Street, Charles City, Iowa 50616, made Administration, Office of Diversion Administration, that the requirements application by letter to the Drug Control, Federal Register Representative for such registration pursuant to 21 Enforcement Administration (DEA) to (ODL), 8701 Morrissette Drive, U.S.C. 958(a); 21 U.S.C. 823(a); and 21 be registered as a bulk manufacturer of Springfield, Virginia 22152; and must be CFR 1301.34(b), (c), (d), (e), and (f) are Gamma Hydroxybutyric Acid (GHB) filed no later than October 1, 2010. satisfied. (2010), a basic class of controlled This procedure is to be conducted substance listed in schedule I. simultaneously with, and independent Dated: August 13, 2010. The company plans to manufacture of, the procedures described in 21 CFR Joseph T. Rannazzisi, Gamma Hydroxybutyric Acid (GHB) 1301.34(b), (c), (d), (e), and (f). As noted Deputy Assistant Administrator, Office of (2010) in bulk active pharmaceutical in a previous notice published in the Diversion Control, Drug Enforcement ingredient (API) form for distribution to Federal Register on September 23, 1975, Administration. the company’s customers. (40 FR 43745–46), all applicants for [FR Doc. 2010–21750 Filed 8–31–10; 8:45 am] Any other such applicant, and any registration to import a basic class of BILLING CODE 4410–09–P person who is presently registered with

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DEA to manufacture such substances, Any such written comments or substances as radiolabeled compounds may file comments or objections to the objections should be addressed, in for biochemical research. issuance of the proposed registration quintuplicate, to the Drug Enforcement Any other such applicant, and any pursuant to 21 CFR 1301.33(a). Administration, Office of Diversion person who is presently registered with Any such written comments or Control, Federal Register Representative DEA to manufacture such substances, objections should be addressed, in (ODL), 8701 Morrissette Drive, may file comments or objections to the quintuplicate, to the Drug Enforcement Springfield, Virginia 22152; and must be issuance of the proposed registration Administration, Office of Diversion filed no later than November 1, 2010. pursuant to 21 CFR 1301.33(a). Control, Federal Register Representative Any such written comments or Dated: August 2, 2010. (ODL), 8701 Morrissette Drive, objections should be addressed, in Joseph T. Rannazzisi, Springfield, Virginia 22152; and must be quintuplicate, to the Drug Enforcement filed no later than November 1, 2010. Deputy Assistant Administrator/Deputy Chief Administration, Office of Diversion of Operation, Office of Diversion Control, Dated: August 13, 2010. Drug Enforcement Administration. Control, Federal Register Representative Joseph T. Rannazzisi, (ODL), 8701 Morrissette Drive, [FR Doc. 2010–21785 Filed 8–31–10; 8:45 am] Springfield, Virginia 22152; and must be Deputy Assistant Administrator, Office of BILLING CODE 4410–09–P Diversion Control, Drug Enforcement filed no later than November 1, 2010. Administration. Dated: August 3, 2010. [FR Doc. 2010–21745 Filed 8–31–10; 8:45 am] DEPARTMENT OF JUSTICE Joseph T. Rannazzisi, BILLING CODE 4410–09–P Deputy Assistant Administrator, Office of Drug Enforcement Administration Diversion Control, Drug Enforcement Administration. Manufacturer of Controlled DEPARTMENT OF JUSTICE [FR Doc. 2010–21784 Filed 8–31–10; 8:45 am] Substances; Notice of Application BILLING CODE 4410–09–P Drug Enforcement Administration Pursuant to § 1301.33(a) of Title 21 of Manufacturer of Controlled the Code of Federal Regulations (CFR), DEPARTMENT OF JUSTICE Substances; Notice of Application this is notice that on April 15, 2010, American Radiolabeled Chemicals, Inc., Drug Enforcement Administration Pursuant to § 1301.33(a) of Title 21 of 101 Arc Drive, St. Louis, Missouri the Code of Federal Regulations (CFR), 63146, made application by renewal to Manufacturer of Controlled this is notice that on May 5, 2010, the Drug Enforcement Administration Substances; Notice of Application Austin Pharma LLC., 811 Paloma Drive, (DEA) as a bulk manufacturer of the Suite C, Round Rock, Texas 78665– basic classes of controlled substances Pursuant to § 1301.33(a) of Title 21 of 2402, made application by renewal to listed in schedules I and II: the Code of Federal Regulations (CFR), the Drug Enforcement Administration this is notice that on May 11, 2010, (DEA) to be registered as a bulk Drug Schedule Cody Laboratories, 601 Yellowstone manufacturer of the basic classes of Avenue, Cody, Wyoming 82414, made controlled substances listed in Gamma Hydroxybutyric Acid I application by renewal to the Drug schedules I and II: (2010). Enforcement Administration (DEA) to Ibogaine (7260) ...... I be registered as a bulk manufacturer of Drug Schedule Lysergic acid diethylamide (7315) I Tetrahydrocannabinols (7370) ..... I the basic classes of controlled substances listed in schedules I and II: Marihuana (7360) ...... I Dimethyltryptamine (7435) ...... I Tetrahydrocannabinols (7370) ..... I 1-[1-(2– I Alphamethadol (9605) ...... I Thienyl)cyclohexyl]piperidine Drug Schedule Nabilone (7379) ...... II (7470). Dihydromorphine (9145) ...... I Methadone (9250) ...... II Dihydromorphine (9145) ...... I Amphetamine (1100) ...... II Methadone Intermediate (9254) ... II Normorphine (9313) ...... I Methamphetamine (1105) ...... II Levo-alphacetylmethadol (9648) .. II Amphetamine (1100) ...... II Amobarbital (2125) ...... II Alfentanil (9737) ...... II Methamphetamine (1105) ...... II Pentobarbital (2270) ...... II Remifentanil (9739) ...... II Amobarbital (2125) ...... II Secobarbital (2315) ...... II Sufentanil (9740) ...... II Phencyclidine (7471) ...... II Phenylacetone (8501) ...... II Fentanyl (9801) ...... II Phenylacetone (8501) ...... II Cocaine (9041) ...... II Cocaine (9041) ...... II Codeine (9050) ...... II The company plans to manufacture Codeine (9050) ...... II Dihydrocodeine (9120) ...... II Dihydrocodeine (9120) ...... II the listed controlled substances in bulk Oxycodone (9143) ...... II Oxycodone (9143) ...... II for distribution to its customers. Hydromorphone (9150) ...... II Hydromorphone (9150) ...... II In reference to drug code 7360 Ecgonine (9180) ...... II Diphenoxylate (9170) ...... II (Marihuana), the company plans to bulk Hydrocodone (9193) ...... II Ecgonine (9180) ...... II manufacture cannabidiol as a synthetic Meperidine (9230) ...... II Hydrocodone (9193) ...... II intermediate. This controlled substance Metazocine (9240) ...... II Meperidine (9230) ...... II will be further synthesized to bulk Dextropropoxyphene, bulk (non- II Methadone (9250) ...... II manufacture a synthetic THC (7370). No dosage forms) (9273). Morphine (9300) ...... II Oxymorphone (9652) ...... II other activity for this drug code is Morphine (9300) ...... II Oripavine (9330) ...... II Alfentanil (9737) ...... II authorized for this registration. Thebaine (9333) ...... II Remifentanil (9739) ...... II Any other such applicant, and any Oxymorphone (9652) ...... II Sufentanil (9740) ...... II person who is presently registered with Phenazocine (9715) ...... II Fentanyl (9801) ...... II DEA to manufacture such substances, Fentanyl (9801) ...... II may file comments or objections to the The company plans on manufacturing issuance of the proposed registration The company plans to manufacture the listed controlled substances in bulk pursuant to 21 CFR 1301.33(a). small quantities of the listed controlled for sale to its customers.

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Any other such applicant, and any Dated: August 2, 2010. Dated: August 2, 2010. person who is presently registered with Joseph T. Rannazzisi, Joseph T. Rannazzisi, DEA to manufacture such substances, Deputy Assistant Administrator, Office of Deputy Assistant Administrator, Office of may file comments or objections to the Diversion Control, Drug Enforcement Diversion Control, Drug Enforcement issuance of the proposed registration Administration. Administration. pursuant to 21 CFR 1301.33(a). [FR Doc. 2010–21775 Filed 8–31–10; 8:45 am] [FR Doc. 2010–21773 Filed 8–31–10; 8:45 am] Any such written comments or BILLING CODE 4410–09–P BILLING CODE 4410–09–P objections should be addressed, in quintuplicate, to the Drug Enforcement DEPARTMENT OF JUSTICE DEPARTMENT OF JUSTICE Administration, Office of Diversion Control, Federal Register Representative Drug Enforcement Administration Drug Enforcement Administration (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be Manufacturer of Controlled Manufacturer of Controlled filed no later than November 1, 2010. Substances; Notice of Application Substances; Notice of Application Dated: August 2, 2010. Pursuant to § 1301.33(a) of Title 21 of Pursuant to § 1301.33(a) of Title 21 of Joseph T. Rannazzisi, the Code of Federal Regulations (CFR), this is notice that on May 14, 2010, the Code of Federal Regulations (CFR), Deputy Assistant Administrator, Office of Chattem Chemicals Inc., 3801 St. Elmo this is notice that on May 4, 2010, Diversion Control, Drug Enforcement Cambrex Charles City, Inc., 1205 11th Administration. Avenue, Building 18, Chattanooga, Tennessee 37409, made application by Street, Charles City, Iowa 50616, made [FR Doc. 2010–21776 Filed 8–31–10; 8:45 am] renewal to the Drug Enforcement application by renewal to the Drug BILLING CODE 4410–09–P Administration (DEA) as a bulk Enforcement Administration (DEA) to manufacturer of the basic classes of be registered as a bulk manufacturer of controlled substances listed in the basic classes of controlled DEPARTMENT OF JUSTICE schedules I and II: substances listed in schedule II: Drug Enforcement Administration Drug Schedule Drug Schedule

Manufacturer of Controlled 4–Methoxyamphetamine (7411) ... I Amphetamine (1100) ...... II Substances; Notice of Application Dihydromorphine (9145) ...... I Methamphetamine (1105) ...... II Amphetamine (1100) ...... II Lisdexamfetamine (1205) ...... II Pursuant to § 1301.33(a), Title 21 of Methamphetamine (1105) ...... II Methylphenidate (1724) ...... II the Code of Federal Regulations (CFR), Lisdexamfetamine (1205) ...... II Phenylacetone (8501) ...... II this is notice that on May 27, 2010, Methylphenidate (1724) ...... II Codeine (9050) ...... II Archimica, Inc., 2460 W. Bennett Street, Pentobarbital (2270) ...... II Oxycodone (9143) ...... II Codeine (9050) ...... II Springfield, Missouri 65807–1229, made Hydromorphone (9150) ...... II Dihydrocodeine (9120) ...... II Dextropropoxyphene, bulk ...... II application by renewal to the Drug Oxycodone (9143) ...... II (non-dosage forms) (9273). Enforcement Administration (DEA) to Hydromorphone (9150) ...... II Morphine (9300) ...... II be registered as a bulk manufacturer of Hydrocodone (9193) ...... II Thebaine (9333) ...... II the basic classes of controlled Meperidine (9230) ...... II Raw Opium (9600) ...... II substances listed in schedule II: Methadone (9250) ...... II Opium extracts (9610) ...... II Methadone intermediate (9254) ... II Opium, powdered (9639) ...... II Morphine (9300) ...... II Drug Schedule Opium, granulated (9640) ...... II Oripavine (9330) ...... II Thebaine (9333) ...... II Poppy Straw (9650) ...... II Lisdexamfetamine (1205) ...... II Oxymorphone (9652) ...... II Oxymorphone (9652) ...... II Methylphenidate (1724) ...... II Noroxymorphone (9668) ...... II Concentrate of Poppy Straw II Phenylacetone (8501) ...... II Alfentanil (9737) ...... II (9670). Methadone Intermediate (9254) ... II Remifentanil (9739) ...... II Sufentanil (9740) ...... II Sufentanil (9740) ...... II Fentanyl (9801) ...... II The company plans to manufacture Fentanyl (9801) ...... II the listed controlled substances in bulk The company plans to manufacture The company plans to manufacture for distribution to its customers. the listed controlled substances in bulk the listed controlled substances in bulk for sale to its customers. Any other such applicant, and any for distribution to its customers. person who is presently registered with Any other such applicant, and any Any other such applicant, and any DEA to manufacture such substances, person who is presently registered with person who is presently registered with may file comments or objections to the DEA to manufacture such substances, DEA to manufacture such substances, issuance of the proposed registration may file comments or objections to the may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a). issuance of the proposed registration pursuant to 21 CFR 1301.33(a). Any such written comments or pursuant to 21 CFR 1301.33(a). Any such written comments or Any such written comments or objections should be addressed, in objections should be addressed, in objections should be addressed, in quintuplicate, to the Drug Enforcement quintuplicate, to the Drug Enforcement quintuplicate, to the Drug Enforcement Administration, Office of Diversion Administration, Office of Diversion Administration, Office of Diversion Control, Federal Register Representative Control, Federal Register Representative Control, Federal Register Representative (ODL), 8701 Morrissette Drive, (ODL), 8701 Morrissette Drive, (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be Springfield, Virginia 22152; and must be Springfield, Virginia 22152; and must be filed no later than November 1, 2010. filed no later than November 1, 2010. filed no later than November 1, 2010.

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Dated: August 2, 2010. Coventry, Rhode Island 02816, made Enforcement Administration (DEA) to Joseph T. Rannazzisi, application by renewal to the Drug be registered as a bulk manufacturer of Deputy Assistant Administrator, Office of Enforcement Administration (DEA) to Amphetamine (1100), a basic class of Diversion Control, Drug Enforcement be registered as a bulk manufacturer of controlled substance listed in schedule Administration. the basic classes of controlled II. [FR Doc. 2010–21772 Filed 8–31–10; 8:45 am] substances listed in schedules I and II: The company plans to acquire the BILLING CODE 4410–09–P listed controlled substance in bulk from Drug Schedule a domestic source in order to manufacture other controlled substances DEPARTMENT OF JUSTICE Tetrahydrocannabinols (7370) ..... I in bulk for distribution to its customers. Methylphenidate (1724) ...... II No comments or objections have been Drug Enforcement Administration Codeine (9050) ...... II Dihydrocodeine (9120) ...... II received. DEA has considered the Oxycodone (9143) ...... II factors in 21 U.S.C. 823(a) and Manufacturer of Controlled determined that the registration of Substances; Notice of Application Hydromorphone (9150) ...... II Hydrocodone (9193) ...... II Archimica, Inc., to manufacture the Pursuant to § 1301.33(a) of Title 21 of Oripavine (9330) ...... II listed basic class of controlled substance the Code of Federal Regulations (CFR), Thebaine (9333) ...... II is consistent with the public interest at Oxymorphone (9652) ...... II this is notice that on May 14, 2010, this time. DEA has investigated Noroxymorphone (9668) ...... II Archimica, Inc., to ensure that the Chattem Chemicals Inc., 3801 St. Elmo Fentanyl (9801) ...... II Avenue, Building 18, Chattanooga, company’s registration is consistent Tennessee 37409, made application to The company plans to manufacture with the public interest. The the Drug Enforcement Administration the listed controlled substances in bulk investigation has included inspection (DEA) as a bulk manufacturer of the for conversion and sale to dosage form and testing of the company’s physical basic classes of controlled substances manufacturers. security systems, verification of the listed in schedule II: No comments or objections have been company’s compliance with state and received. DEA has considered the local laws, and a review of the Drug Schedule factors in 21 U.S.C. 823(a) and company’s background and history. determined that the registration of Therefore, pursuant to 21 U.S.C. 823(a), Phenylacetone (8501) ...... II and in accordance with 21 CFR 1301.33, Raw Opium (9600) ...... II Rhodes Technologies to manufacture the listed basic classes of controlled the above named company is granted Concentrate of Poppy Straw II registration as a bulk manufacturer of (9670). substances is consistent with the public interest at this time. DEA has the basic class of controlled substance listed. The company plans to manufacture investigated Rhodes Technologies to the listed controlled substances in bulk ensure that the company’s registration is Dated: August 13, 2010. for distribution to its customers. consistent with the public interest. The Joseph T. Rannazzisi, Any other such applicant, and any investigation has included inspection Deputy Assistant Administrator, Office of person who is presently registered with and testing of the company’s physical Diversion Control, Drug Enforcement DEA to manufacture such substances, security systems, verification of the Administration. may file comments or objections to the company’s compliance with state and [FR Doc. 2010–21780 Filed 8–31–10; 8:45 am] issuance of the proposed registration local laws, and a review of the BILLING CODE 4410–09–P pursuant to 21 CFR 1301.33(a). company’s background and history. Any such written comments or Therefore, pursuant to 21 U.S.C. 823(a), objections should be addressed, in and in accordance with 21 CFR 1301.33, NATIONAL SCIENCE FOUNDATION quintuplicate, to the Drug Enforcement the above named company is granted Administration, Office of Diversion registration as a bulk manufacturer of Proposal Review; Notice of Meetings Control, Federal Register Representative the basic classes of controlled In accordance with the Federal (ODL),8701 Morrissette Drive, substances listed. Advisory Committee Act (Pub. L. 92– Springfield, Virginia 22152; and must be Dated: August 2, 2010. 463, as amended), the National Science filed no later than November 1, 2010. Joseph T. Rannazzisi, Foundation (NSF) announces its intent Dated: August 13, 2010. Deputy Assistant Administrator, Office of to hold proposal review meetings Joseph T. Rannazzisi, Diversion Control, Drug Enforcement throughout the year. The purpose of Deputy Assistant Administrator, Office of Administration. these meetings is to provide advice and Diversion Control, Drug Enforcement [FR Doc. 2010–21782 Filed 8–31–10; 8:45 am] recommendations concerning proposals Administration. BILLING CODE 4410–09–P submitted to the NSF for financial [FR Doc. 2010–21744 Filed 8–31–10; 8:45 am] support. The agenda for each of these BILLING CODE 4410–09–P meetings is to review and evaluate DEPARTMENT OF JUSTICE proposals as part of the selection process for awards. The review and Drug Enforcement Administration DEPARTMENT OF JUSTICE evaluation may also include assessment of the progress of awarded proposals. Drug Enforcement Administration Manufacturer of Controlled Substances; Notice of Registration The majority of these meetings will take Manufacturer of Controlled place at NSF, 4201 Wilson Blvd., Substances; Notice of Registration By Notice dated March 16, 2010, and Arlington, Virginia 22230. published in the Federal Register on These meetings will be closed to the By Notice dated March 16, 2010, and March 24, 2010, (75 FR 14189), public. The proposals being reviewed published in the Federal Register on Archimica, Inc., 2460 W. Bennett Street, include information of a proprietary or March 24, 2010, (75 FR 14189), Rhodes Springfield, Missouri 65807–1229, made confidential nature, including technical Technologies, 498 Washington Street, application by letter to the Drug information; financial data, such as

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salaries; and personal information SUPPLEMENTARY INFORMATION: The Dates concerning individuals associated with National Science Foundation, as October 1, 2010 to July 31, 2011. the proposals. These matters are exempt directed by the Antarctic Conservation under 5 U.S.C. 552b(c), (4) and (6) of the Act of 1978 (Pub. L. 95–541), as Nadene G. Kennedy, Government in the Sunshine Act. NSF amended by the Antarctic Science, Permit Officer, Office of Polar Programs. will continue to review the agenda and Tourism and Conservation Act of 1996, [FR Doc. 2010–21788 Filed 8–26–10; 8:45 am] merits of each meeting for overall has developed regulations for the BILLING CODE P compliance of the Federal Advisory establishment of a permit system for Committee Act. various activities in Antarctica and These closed proposal review designation of certain animals and NUCLEAR REGULATORY meetings will not be announced on an certain geographic areas a requiring COMMISSION individual basis in the Federal Register. special protection. The regulations NSF intends to publish a notice similar establish such a permit system to [Docket No. 72–10 (50–282/306)] to this on a quarterly basis. For an designate Antarctic Specially Protected advance listing of the closed proposal Northern States Power Company, a Areas. review meetings that include the names Minnesota Corporation; Notice of of the proposal review panel and the The applications received are as Issuance of Materials License time, date, place, and any information follows: Amendment to SNM–2506 Prairie Island Independent Spent Fuel Storage on changes, corrections, or 1. Applicant cancellations, please visit the NSF Web Installation at the Prairie Island site: http://www.nsf.gov. This Permit Application No. 2011–005. Nuclear Generating Plant Site information may also be requested by George Waters, Director, U.S. AMLR The U.S. Nuclear Regulatory telephoning, 703/292–8182. Program, Southwest Fisheries Commission (NRC or the Commission) Dated: August 27, 2010. Science Center, National Marine has issued Amendment 7 to Materials Susanne Bolton, Fisheries Service, 8604 La Jolla License SNM–2506 held by the Committee Management Officer. Shores Drive, La Jolla, CA 92038. Northern States Power Company, a 1 [FR Doc. 2010–21813 Filed 8–31–10; 8:45 am] Minnesota Corporation (NSPM or the Activity for Which Permit is Requested BILLING CODE 7555–01–P licensee), authorizing receipt, possession, transfer, and storage of Take, Enter Antarctic Specially spent fuel at the Prairie Island Protected Areas, and Import into the NATIONAL SCIENCE FOUNDATION Independent Spent Fuel Storage USA. This notice amends the notice Installation (ISFSI) located onsite at its Notice of Permit Applications Received published in the Federal Register on Prairie Island Nuclear Generating Plant Under the Antarctic Conservation Act July 21, 2010 for George Waters to site in Goodhue County, Minnesota. of 1978 (Pub. L. 95–541) include the installation of four snow- This license amendment is effective as measurement gauges at Cape Shirreff of the date of its issuance and shall be AGENCY: National Science Foundation. (ASPA #149) and four at Copacabana, implemented within ninety (90) days of ACTION: Notice of Permit Applications Admiralty Bay (ASPA #128). Each gauge the date of issuance. Received under the Antarctic will be constructed with a single metal By application dated March 28, 2008, Conservation Act of 1978, Public Law rod, 1.5 to 2.5m in length, and >2.5cm as supplemented June 26 and August 95–541. in diameter, that will be driven into the 29, 2008, June 26 and September 28, ground to a depth of circa 0.5m. The 2009, January 18, May 4, and July 27, SUMMARY: The National Science gauges would be installed at four 2010, NSPM requested to amend its Foundation (NSF) is required to publish locations at each site, in the vicinity of ISFSI license and to reformat the license notice of permit applications received to seabird colonies or seal rookeries. The Technical Specifications (TS) for the conduct activities regulated under the applicant recognizes that ultrasonic Prairie Island ISFSI in accordance with Antarctic Conservation Act of 1978. snow-depth sensing equipment is 10 CFR part 72. The licensee proposed NSF has published regulations under available, however positioning such in the license amendment request (LAR) the Antarctic Conservation Act at Title devices near seabird and pinniped to modify the TN–40 cask for storage of 45 Part 670 of the Code of Federal colonies would require additional higher initially enriched and higher Regulations. This is the required notice burnup fuel. The modified cask is of permit applications received. towers/power supplies that are currently unavailable at these field sites. designated the TN–40HT storage cask. DATES: Interested parties are invited to To take this step would be more This amendment complies with the standards and requirements of the submit written data, comments, or intrusive to the sites, as it would require Atomic Energy Act of 1954, as amended views with respect to this permit not only more gear, but more setup and application by October 1, 2010. This (the Act), and the Commission’s rules installation effort (aka disturbance) near application may be inspected by and regulations. The Commission has the animals. The low-tech solution is interested parties at the Permit Office, made appropriate findings as required preferable, and more reliable over time. address below. by the Act and the Commission’s rules ADDRESSES: Comments should be Location and regulations in 10 CFR chapter I, addressed to Permit Office, Room 755, Cape Shirreff, Livingston Island 1 Office of Polar Programs, National On September 22, 2008, Nuclear Management Company, LLC (NMC) transferred its operating Science Foundation, 4201 Wilson (ASPA #149) and Copacabana field camp at Admiralty Bay, King George authority to Northern States Power Company, a Boulevard, Arlington, Virginia 22230. Minnesota corporation (NSPM), doing business as Island (ASPA # 128). FOR FURTHER INFORMATION CONTACT: Xcel Energy. By letter dated September 3, 2008 (package, ML082240762), NSPM assumed Nadene G. Kennedy at the above responsibility for actions and commitments address or (703) 292–7405. previously submitted by NMC.

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which are set forth in the license Analysis for Spent Fuel Pools.’’ This electronically at the NRC’s Electronic amendment. draft DSS–ISG provides updated Reading Room at http://www.nrc.gov/ In accordance with 10 CFR guidance to the NRC staff reviewer to reading-rm/adams.html. From this page, 72.46(b)(2), a determination has been address the increased complexity of the public can gain entry into ADAMS, made that the amendment does not recent spent fuel pool (SFP) license which provides text and image files of present a genuine issue as to whether application analyses and operations. NRC’s public documents. If you do not public health and safety will be The guidance is intended to reiterate have access to ADAMS or if there are significantly affected. Therefore, existing guidance, clarify ambiguity in problems in accessing the documents immediate action on the license existing guidance, and identify lessons located in ADAMS, contact the NRC’s amendment may be taken and a notice learned based on recent submittals. PDR reference staff at 1–800–397–4209, of the action taken will be promptly DATES: Comments may be submitted by 301–415–4737, or by e-mail to published in the Federal Register. This October 1, 2010. Comments received [email protected]. The Staff Federal Register notice also informs after this date will be considered, if it Guidance Regarding the Nuclear interested persons of the right to request is practical to do so, but only comments Criticality Safety Analysis a hearing on whether the action should received on or before this date can be Accompanying Spent Fuel Pool License be rescinded or modified. assured consideration. Amendment Requests, DSS–ISG–2010– Also in connection with this action, ADDRESSES: You may submit comments 01, is available electronically under the Commission prepared an by any one of the following methods. ADAMS Accession Number Environmental Assessment (EA) and a Please include Docket ID NRC–2010– ML102220567. Finding of No Significant Impact 0289 in the subject line of your Federal Rulemaking Web site: Public (FONSI). The Notice of Availability of comments. Comments submitted in comments and supporting materials the EA and FONSI for Prairie Island writing or in electronic form will be related to this notice can be found at ISFSI was published in the Federal posted on the NRC Web site and on the http://www.regulations.gov by searching Register on December 4, 2009 (74 FR Federal rulemaking Web site http:// on Docket ID: NRC–2010–0289. 63798). www.regulations.gov. Your comments FOR FURTHER INFORMATION CONTACT: Kent In accordance with 10 CFR 2.390 of will not be edited to remove any A. L. Wood, Reactor Systems Engineer, the NRC’s ‘‘Rules of Practice,’’ a copy of identifying or contact information, Reactor Systems Branch, Division of the EA and FONSI are available therefore, you should not include any Safety Systems, Office of Nuclear electronically for public inspection in information in your comments that you Reactor Regulation, U.S. Nuclear the NRC Public Document Room or from do not want publicly disclosed. Regulatory Commission, Rockville, the Publicly Available Records (PARS) The NRC requests that any party Maryland 20852. Telephone: (301) component of NRC’s document system soliciting or aggregating comments 415–4120; fax number: (301) 415–3577; (ADAMS). ADAMS is accessible from received from other persons for e-mail: [email protected]. the NRC Web site at http://www.nrc.gov/ submission to the NRC inform those SUPPLEMENTARY INFORMATION: The NRC NRC/ADAMS/index.html (the Public persons that the NRC will not edit their is issuing this notice to solicit public Electronic Reading Room). comments to remove any identifying or comments on the draft DSS–ISG–2010– Dated at Rockville, Maryland, this 20th day contact information, and therefore, they 01, ‘‘Staff Guidance Regarding the of August 2010. should not include any information in Nuclear Criticality Safety Analysis For the Nuclear Regulatory Commission. their comments that they do not want Accompanying Spent Fuel Pool License Eric Benner, publicly disclosed. Amendment Requests.’’ After the NRC Branch Chief, Division of Spent Fuel Storage Federal Rulemaking Web site: Go to staff considers any public comments and Transportation, Office of Nuclear http://www.regulations.gov and search received, it will make a determination Material Safety and Safeguards. for documents filed under Docket ID regarding issuance of the proposed [FR Doc. 2010–21826 Filed 8–31–10; 8:45 am] NRC–2010–0289. Address questions DSS–ISG. BILLING CODE 7590–01–P about NRC dockets to Carol Gallagher Dated at Rockville, Maryland, this 25th day 301–492–3668; e-mail of August 2010. [email protected]. For the Nuclear Regulatory Commission. NUCLEAR REGULATORY Mail comments to: Cindy K. Bladey, William H. Ruland, COMMISSION Chief, Rules, Announcements and Director, Division of Safety Systems, Office Directives Branch, Office of of Nuclear Reactor Regulation. [NRC–2010–0289] Administration, Mail Stop: TWB–05– B01M, U.S. Nuclear Regulatory [FR Doc. 2010–21825 Filed 8–31–10; 8:45 am] Notice of Availability and Opportunity BILLING CODE 7590–01–P for Comment on Draft Division of Commission, Washington, DC 20555– Safety Systems Interim Staff Guidance 0001, or by fax to RADB at (301) 492– 3667. DSS–ISG–2010–01: Staff Guidance PERSONNEL MANAGEMENT OFFICE Regarding the Nuclear Criticality You can access publicly available documents related to this notice using Safety Analysis for Spent Fuel Pools Proposed Collection; Equal the following methods: Employment Opportunity Commission AGENCY: Nuclear Regulatory NRC’s Public Document Room (PDR): (EEOC) Form, Demographic Commission. The public may examine and have Information on Applicants, OMB 3046– copied for a fee publicly available ACTION: Solicitation of public comment. 0046; Correction documents at the NRC’s PDR, Room O1 SUMMARY: The U.S. Nuclear Regulatory F21, One White Flint North, 11555 AGENCY: U.S. Office of Personnel Commission (NRC) requests public Rockville Pike, Rockville, Maryland. Management. comment on a draft Division of Safety NRC’s Agencywide Documents Access ACTION: Notice; correction. Systems Interim Staff Guidance, (DSS– and Management System (ADAMS): ISG) DSS–ISG–2010–01, ‘‘Staff Guidance Publicly available documents created or SUMMARY: The published document in Regarding the Nuclear Criticality Safety received at the NRC are available the Federal Register of August 2, 2010,

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concerning Proposed collection. The I. Self-Regulatory Organization’s forth in sections A, B, and C below, of document contained incorrect dates. Statement of the Terms of Substance of the most significant aspects of such the Proposed Rule Change statements. DATES: Effective on September 1, 2010. The Exchange, pursuant to Section A. Self-Regulatory Organization’s FOR FURTHER INFORMATION CONTACT: U.S. 19(b)(1) of the Act 5 and Rule 19b–4 Statement of the Purpose of, and Office of Personnel Management, thereunder,6 proposes to amend PHLX Statutory Basis for, the Proposed Rule Employment Services, USAJOBS, 1900 Rule 862 (Proxies at Direction of Owner) Change E Street, NW., Washington, DC 20415, to comport with the Chicago Board 1. Purpose Attention: Patricia Stevens or send Options Exchange (‘‘CBOE’’) Rule electronic mail to 31.85(b) and the New York Stock PHLX Rule 862 provides instructions [email protected]. Exchange (‘‘NYSE’’) Rule 452 to on how the proxies are voted. The Correction eliminate broker discretionary voting for purpose of the proposed rule change is all elections of directors at shareholder to amend PHLX Rule 862(2) to comport In the Federal Register of Monday, meetings, whether contested or not, with CBOE Rule 31.85(b) and NYSE August 2, 2010, at 75 FR 45173, in the except for companies registered under Rule 452 to eliminate broker third column, correct the DATES section the Investment Company Act of 1940 discretionary voting for all elections of to read: (the ‘‘1940 Act’’),7 to amend PHLX Rule directors at shareholder meetings, whether contested or not, except for DATES: Effective on December 12, 2010. 862 to preclude broker discretionary voting on a matter that materially companies registered under the U.S. Office of Personnel Management. amends an investment advisory contract Investment Company Act of 1940 (the Angela Bailey, with an investment company, and to ‘‘1940 Act’’), to amend PHLX Rule 862 Deputy Associate Director for Recruitment define that a material amendment to an to preclude broker discretionary voting and Diversity. investment advisory contract would on a matter that materially amends an [FR Doc. 2010–21799 Filed 8–31–10; 8:45 am] include any proposal to obtain investment advisory contract with an investment company, and to define that BILLING CODE 6325–39–P shareholder approval of an investment company’s investment advisory contract a material amendment to an investment with a new investment advisor. In advisory contract would include any addition, including the changes noted proposal to obtain shareholder approval SECURITIES AND EXCHANGE above, this proposal reorganizes the of an investment company’s investment COMMISSION broker voting rules to specifically advisory contract with a new include 20 instances where member investment advisor. In addition, organizations may not vote without including the changes noted above, this [Release No. 34–62775; File No. SR–PHLX– proposal reorganizes the broker voting 2010–115] customer instructions, while retaining the prohibition that the member rules to specifically include 20 Self-Regulatory Organizations; organization may not vote without instances where member organizations NASDAQ OMX PHLX, Inc.; Notice of instructions from the customer on may not vote without customer Filing and Immediate Effectiveness of matters that may substantially affect the instructions, while retaining the prohibition that the member Proposed Rule Amendment to Rule rights and privileges of the stockholders. organization may not vote without 862 Relating to, Among Other Things, This proposal also clarifies proxy instructions from the customer on Eliminate Broker Discretionary Voting procedures and proxy record retention. matters that may substantially affect the for All Elections of Directors, Except The text of the proposed rule change rights and privileges of the stockholders. for Companies Registered Under the is available on the Exchange’s Web site This proposal also clarifies proxy Investment Company Act of 1940 at http://www.nasdaqtrader.com/ procedures and proxy record retention. micro.aspx?id=PHLXRulefilings, at the August 26, 2010. The proposed amendment does not principal office of the Exchange, and at materially change the proxy rules with Pursuant to Section 19(b)(1) of the the Commission’s Public Reference the exception of the changes made in Securities Exchange Act of 1934 Room. this filing. Amending PHLX Rule 862 to (‘‘Act’’),1 and Rule 19b–4 2 thereunder, II. Self-Regulatory Organization’s comport with CBOE Rule 31.85 (b) and notice is hereby given that on August Statement of the Purpose of, and NYSE Rule 452 provides consistency 18, 2010, NASDAQ OMX PHLX, Inc. Statutory Basis for, the Proposed Rule among the exchanges to eliminate (‘‘PHLX’’ or ‘‘Exchange’’) filed with the Change disparities regarding proxy voting. The Securities and Exchange Commission Exchange proposes this amendment in (‘‘Commission’’) the proposed rule In its filing with the Commission, the response to a request by the Securities change as described in Items I and II, Exchange included statements and Exchange Commission (the below, which Items have been prepared concerning the purpose of and basis for ‘‘Commission’’) that self-regulatory by the Exchange. The Exchange filed the the proposed rule change and discussed organizations have uniform proxy rules proposal as a ‘‘non-controversial’’ any comments it received on the regarding broker discretionary voting.8 proposed rule change pursuant to proposed rule change. The text of these As a result, PHLX believes the broker Section 19(b)(3)(A)(iii) of the Act 3 and statements may be examined at the discretionary voting amendments will Rule 19b–4(f)(6) thereunder.4 The places specified in Item IV below. The have little impact on the market Commission is publishing this notice to Exchange has prepared summaries, set participants since the changes are in solicit comments on the proposed rule line with the rules of the other self- 5 change from interested persons. 15 U.S.C. 78s(b)(1). regulatory organizations as defined 6 17 CFR 240.19b–4. 7 The Commission notes that the exception for within the meaning of Section 3(a)(26) 1 15 U.S.C. 78s(b)(1). companies registered under the 1940 Act only 2 17 CFR 240.19b–4. apply to uncontested director elections, i.e., when 8 See NYSE Approval Order, 74 FR at 33298, 3 15 U.S.C. 78s(b)(3)(A)(iii). there is no counter solicitation. See proposed Phlx Commission Release No. 34–60215 (July 1, 2009), 4 17 CFR 240.19b–4(f)(6). Rule 862(b)(2). note 69.

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of the Act 9 (otherwise known as III. Date of Effectiveness of the NYSE’s rule with respect to voting on ‘‘SROs’’). PHLX members with Proposed Rule Change and Timing for investment advisory contracts. customers are also members of one of Commission Action Moreover, the Commission notes that the other SROs. The foregoing rule change has become the NYSE’s adopted rule changes were subject to full notice and comment, and 2. Statutory Basis effective pursuant to Section 19(b)(3)(A) of the Act 12 and Rule 19b–4(f)(6) 13 considered and approved by the 18 The Exchange believes that its thereunder because the proposal does Commission. Finally, the Commission notes that the clarification of proxy proposal is consistent with Section 6(b) not: (i) Significantly affect the procedures, record retention, and other of the Act 10 in general, and furthers the protection of investors or the public changes to Phlx Rule 862 are based objectives of Section 6(b)(5) of the Act 11 interest; (ii) impose any significant burden on competition; and (iii) by its substantially on CBOE’s rules. Based on in particular, in that it is designed to the above, the Commission finds that promote just and equitable principles of terms, become operative for 30 days from the date on which it was filed, or waiving the 30-day operative delay trade, to remove impediments to and such shorter time as the Commission period is consistent with the protection perfect the mechanism of a free and may designate if consistent with the of investors and the public interest, and open market and a national market protection of investors and the public the proposal is therefore deemed system, and, in general to protect interest, provided that the Exchange has operative upon filing. investors and the public interest. given the Commission notice of its At any time within 60 days of the Specifically, the Exchange believes that intent to file the proposed rule change, filing of the proposed rule change, the the proposed rule change will protect along with a brief description and text Commission summarily may investors and the public interest by of the proposed rule change, at least five temporarily suspend such rule change if ensuring better corporate governance business days prior to the date of filing it appears to the Commission that such and transparency of the election process of the proposed rule change, or such action is necessary or appropriate in the for directors and by promoting greater shorter time as designated by the public interest, for the protection of uniformity with the proxy rules of other Commission.14 investors, or otherwise in furtherance of SROs. In particular, for Exchange A proposed rule change filed under the purposes of the Act.19 member organizations that are also Rule 19b–4(f)(6) normally may not IV. Solicitation of Comments member firms of other SROs, confusion become operative prior to 30 days after Interested persons are invited to might arise as to which SROs’ proxy the date of filing. However, Rule 19b– 15 submit written data, views, and voting rules are applicable to a company 4(f)(6)(iii) permits the Commission to designate a shorter time if such action arguments concerning the foregoing, listed on the Exchange if there are including whether the proposed rule disparities between the rules of the is consistent with the protection of investors and the public interest. The change is consistent with the Act. Exchange and the other SROs. Exchange has requested that the Comments may be submitted by any of The proposal should further the Commission waive the 30-day operative the following methods: protection of investors and the public delay period. In making this request, the Electronic Comments interest by assuring that voting on Exchange noted that waiver of the • matters as critical as the election of 30-day operative delay will conform to Use the Commission’s Internet directors can no longer be determined the Commission’s desire to eliminate comment form (http://www.sec.gov/ by member organizations without any disparities with proxy voting. rules/sro.shtml); or • Send an e-mail to rule- specific instructions from the beneficial The Commission believes that the waiver of the 30-day operative delay [email protected]. Please include File owner, and thus should enhance Number SR–PHLX–2010–115 on the corporate governance and accountability period is consistent with the protection 16 subject line. to shareholders. Additionally, other of investors and the public interest. changes enhance the proxy rules by The proposal would permit the Paper Comments Exchange to comply with the providing clarity to proxy handling and • Send paper comments in triplicate Commission’s stated goal that self- record retention matters which also to Elizabeth M. Murphy, Secretary, regulatory organizations who currently improves the protection to the investors. Securities and Exchange Commission, allow members to use discretionary 100 F Street, NE., Washington, DC voting for director elections conform B. Self-Regulatory Organization’s 20549–1090. Statement on Burden on Competition their rules to the NYSE’s rules to eliminate any voting disparities All submissions should refer to File The Exchange does not believe that depending on where the shares are Number SR–PHLX–2010–115. This file the proposed rule change will impose held.17 In this regard, Phlx’s proposed number should be included on the any burden on competition not changes to Rule 862 are substantively subject line if e-mail is used. To help the necessary or appropriate in furtherance similar to NYSE Rule 452 and CBOE Commission process and review your of the purposes of the Act. Rule 31.85. Further, the proposal would comments more efficiently, please use conform the Exchange’s rule to the only one method. The Commission will C. Self-Regulatory Organization’s post all comments on the Commission’s Statement on Comments on the 12 15 U.S.C. 78s(b)(3)(A). Internet Web site (http://www.sec.gov/ Proposed Rule Change Received From 13 17 CFR 240.19b–4(f)(6). rules/sro.shtml). Copies of the Members, Participants, or Others 14 The Exchange has satisfied the five business submission, all subsequent day pre-filing requirement. amendments, all written statements No written comments were either 15 17 CFR 240.19b–4(f)(6)(iii). with respect to the proposed rule solicited or received. 16 For purposes only of waiving the operative change that are filed with the delay for this proposal, the Commission has considered the proposed rule’s impact on Commission, and all written 9 15 U.S.C. 78c(a)(26). efficiency, competition, and capital formation. See 10 15 U.S.C. 78f(b). 15 U.S.C. 78c(f). 18 See id. 11 15 U.S.C. 78f(b)(5). 17 See supra note 8. 19 15 U.S.C. 78s(b)(3)(C).

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communications relating to the 22, 2010.3 The Commission received no are registered with the Exchange for the proposed rule change between the comment letters on the proposal. This purpose of trading NMS stocks.4 Commission and any person, other than order approves the proposed rule Principal Registration—Rule 604(g) those that may be withheld from the change, as modified by Amendment No. public in accordance with the 1. Proposed Phlx Rule 604(g) would provisions of 5 U.S.C. 552, will be provide that persons associated with a II. Description of the Proposal available for Web site viewing and member organization who are actively printing in the Commission’s Public Phlx proposes to amend Rule 604, engaged in the management of the Reference Room, 100 F Street, NE., ‘‘Registration and Termination of member organization’s investment Washington, DC 20549, on official Registered Persons,’’ to adopt new and banking or securities business, business days between the hours of 10 modify existing provisions governing including supervision, solicitation, a.m. and 3 p.m. Copies of such filing general and limited categories of conduct of business or training of also will be available for inspection and principals and representatives. The persons associated with a member copying at the principal office of the proposal is meant to capture all persons organization for any of these functions, Exchange. All comments received will associated with member organizations shall be registered as principals. Such be posted without change; the who trade on the Exchange’s new equity persons would include sole proprietors, Commission does not edit personal platform, NASDAQ OMX PSX (‘‘PSX’’). officers, partners, managers of offices of identifying information from Specifically, the Exchange proposes to supervisory jurisdiction, and directors submissions. You should submit only adopt Rule 604(g), ‘‘Principal of corporations. Every member organization, except a information that you wish to make Registration,’’ and Supplementary sole proprietorship, would be required available publicly. All submissions Material .01–.03 to set forth the to have at least two officers or partners should refer to File Number SR–PHLX– categories of principal registration. The who are registered as principals with 2010–115 and should be submitted on rule would require, among other things, respect to each aspect of the member or before September 22, 2010. that all associated persons who perform organization’s investment banking and For the Commission, by the Division of certain functions pass an appropriate securities business; 5 provided, Trading and Markets, pursuant to delegated examination and register as principals; however, that a proprietary trading firm 20 authority. every member organization to have at with 25 or fewer registered Florence E. Harmon, least two registered principals (unless representatives would only be required Deputy Secretary. an exception applies); and each member to have one officer or partner registered [FR Doc. 2010–21849 Filed 8–31–10; 8:45 am] organization to have a Limited as a principal. The proposed rule would Principal—Financial/Operations. In BILLING CODE 8010–01–P allow Phlx to waive the two-principal addition, Phlx Rule 604(h) and requirement in situations that indicate Supplementary Material .04 would conclusively that only one person SECURITIES AND EXCHANGE require that each representative be should be required to register as a COMMISSION registered and pass the General principal.6 Securities Representative Examination All persons who are to function as [Release No. 34–62776; File No. SR–Phlx– (‘‘Series 7’’). principals 7 would be required to pass 2010–91] Phlx also proposes to adopt Phlx Rule the General Securities Principal 604(i)(1) to delineate categories of Qualification Examination (‘‘Series 24’’) Self-Regulatory Organizations; persons that are exempt from and submit a Form U4 through WebCRD NASDAQ OMX PHLX, Inc.; Order registration, Rule 604(i)(2) to allow reflecting registration as such, unless a Approving Proposed Rule Change, as member organizations and persons different category of principal Modified by Amendment No. 1 Thereto, associated with member organizations registration applies. Each person To Amend Phlx Rule 604 Relating to to pay to non-registered foreign persons seeking to register and qualify as a Registration and Qualification transaction-related compensation based General Securities Principal would be Requirements for PSX upon business of customers they direct required to, before or concurrent with August 26, 2010. to member organizations if certain conditions are met, and Phlx Rule 604(j) 4 PSX will not be used for trading any securities I. Introduction to allow for waiver of qualification other than NMS stocks. Existing rules would continue to govern registration of associated On June 29, 2010, NASDAQ OMX examination requirements in persons of member organizations that trade options, PHLX, Inc. (‘‘Phlx’’ or ‘‘Exchange’’) filed exceptional circumstances. In but not cash equities, through Phlx. The with the Securities and Exchange connection with the above amendments, Commission understands that Phlx intends to ‘‘ ’’ Phlx proposes to add several related amend its registration rules for its options members Commission ( Commission ), pursuant shortly. to Section 19(b)(1) of the Securities terms to Rule 1, ‘‘Definitions.’’ Finally, 5 See proposed Rule 604(g)(5)(A). 1 Exchange Act of 1934 (‘‘Act’’) and Rule Phlx proposes to amend Rule 640, 6 See proposed Rule 604(g)(5)(B). 19b–4 thereunder,2 a proposed rule ‘‘Continuing Education for Registered 7 Any person associated with a member change to adopt provisions relating to Persons,’’ to delete an outdated organization as a registered representative whose the registration and qualification of reference. duties are changed to require registration in any principal classification would be allowed a period members and persons associated with Applicability—Rule 604(f) of 90 calendar days following the change in his member organizations. On July 13, 2010, duties to pass the appropriate principal the Exchange submitted Amendment Proposed Phlx Rule 604(f) would state qualification examination. Upon elevation, the member organization shall submit to the Exchange No. 1 to the proposed rule change. The that sub-paragraphs (g) and (h), through FINRA’s Central Registration Depository proposed rule change was published for discussed in greater detail below, apply (‘‘Web CRD’’) an amended ‘‘Uniform Application for comment in the Federal Register on July to member organizations, and associated Securities Industry Registration or Transfer’’ (‘‘Form persons of member organizations, that U4’’) and any applicable fees. No one may function as a principal beyond the initial 90 calendar day 20 17 CFR 200.30–3(a)(12). period following the change in his duties without 1 15 U.S.C. 78s(b)(1). 3 See Securities Exchange Act Release No. 62509 having passed the appropriate qualification 2 17 CFR 240.19b–4. (July 15, 2010), 75 FR 42804. examination. See proposed Rule 604(g)(4).

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such registration, become registered pass the Financial and Operations organization would be able to permit either as a General Securities Principal Qualification Examination any member or person associated with Representative or as a Limited (‘‘Series 27’’). it 15 to engage in the investment banking Representative—Corporate Securities.8 Furthermore, in general, a person or securities business 16 unless the The Exchange proposes to adopt a designated as a Chief Compliance member organization determines that ‘‘Limited Principal—General Securities Officer on Schedule A of Form BD of a the person satisfies the qualification Sales Supervisor’’ category for persons member organization would be required requirements and is not subject to whose supervisory responsibilities are to register with the Exchange as a statutory disqualification.17 limited.9 A person registered in this General Securities Principal and pass category solely on the basis of having the Series 24 examination (‘‘Series 24’’) Phlx Rule 604(i)(1) passed the General Securities Sales before his registration could become The Exchange also proposes to adopt Supervisor Qualification Examination effective, unless the person’s activities Phlx Rule 604(i)(1) exempting the (‘‘Series 9/10’’) would not be qualified to are so limited to qualify him for one or following persons associated with a function in a principal capacity with more of the limited categories of member organization from registration responsibility over any area of business principal registration.13 with the Exchange: (1) Persons whose activity other than securities sales Phlx proposes to add that any person functions are solely and exclusively activity, nor be counted for purposes of whose registration has been revoked by clerical or ministerial; (2) persons who fulfilling the requirement that member the Exchange as a disciplinary sanction, are not actively engaged in the organizations have at least two or whose most recent registration as investment banking or securities principals.10 Principal has been terminated for a business; (3) persons whose functions The Exchange also proposes to adopt period of two or more years are related solely and exclusively to the a requirement that member immediately preceding the date of member organization’s need for nominal organizations 11 register as a Limited receipt by the Exchange of a new corporate officers or for capital Principal—Financial and Operations application, must pass a qualification participation; and (4) persons whose (‘‘FINOP’’), any associated person who examination for principals appropriate functions are related solely and performs enumerated financial and to the person’s category of registration. exclusively to: (A) effecting transactions operational management duties (one of Representative Registration—Rule on the floor of another national whom must be the Chief Financial securities exchange and who are 12 604(h) and Supplementary Material .04 Officer). Each would be required to registered as floor members with such Proposed Phlx Rule 604(h) and exchange; (B) transactions in municipal 8 Supplementary Material .04 would The Limited Representative—Corporate securities; (C) transactions in Securities is a FINRA category of registration and govern the registration of commodities; (D) transactions in requires passing the Series 62 examination. See representatives 14 with the Exchange. FINRA Rule 1032(e). security futures, provided that any such All persons engaged or to be engaged in 9 Each person associated with a member person is registered with FINRA or a the investment banking or securities organization who is included in the definition of registered futures association; (E) principal in Phlx Rule 604(g) may register as a business of a member organization who Limited Principal—General Securities Sales are to function as representatives would transactions in variable contracts and Supervisor if: (i) His supervisory responsibilities are be required to pass the Series 7, register insurance premium funding programs limited to the securities sales activities of a member as a General Securities Representative, and other contracts issued by an organization; (ii) he is registered pursuant to insurance company; (F) transactions in Exchange Rules as a General Securities and submit a Form U4 through WebCRD Representative; and (iii) he is qualified to be so reflecting their registration status. Any direct participation programs; (G) registered by passing an appropriate examination, person whose registration has been transactions in government securities; or which is the Series 9/10. revoked by the Exchange as a (H) effecting sales as part of a primary 10 A Limited Principal—General Securities Sales offering of securities not involving a Supervisor will not be qualified to perform for a disciplinary sanction or whose most member organization any of the following activities: recent registration as a representative or public offering pursuant to Section 3(b), (i) Supervision of the origination and structuring of principal has been terminated for a 4(2), or 4(6) of the Securities Act of 1933 underwritings; (ii) supervision of market making period of two or more years and the rules and regulations commitments; (iii) final approval of advertisements thereunder. as these are defined in Phlx Rule 605; (iv) immediately preceding the date of supervision of the custody of firm or customer receipt by the Exchange of a new 15 funds and/or securities for purposes of Rule application would be required to pass The term ‘‘associated person’’ or ‘‘person 15c3–3 under the Act; or (v) supervision of overall associated with’’ a member organization means any compliance with financial responsibility rules for the Series 7 examination. No member partner, officer, director, or branch manager of an broker/dealers promulgated pursuant to the Exchange member organization or applicant (or provisions of the Act. financial and operational management of the person occupying a similar status or performing 11 This applies to member organizations operating member organization. similar functions), any person directly or indirectly pursuant to Rule 15c3–1(a)(1)(ii), (a)(2)(i), or (a)(8) 13 Pursuant to proposed Phlx Rule 604.01(c), a controlling, controlled by, or under common under the Act. person registered solely as a General Securities control with such member organization or 12 These duties are: Final approval and Principal is not qualified to function as a FINOP or applicant, or any employee of such member or responsibility for the accuracy of financial reports a Limited Principal—General Securities Sales applicant, except that any person associated with a submitted to any duly established securities Supervisor. member organization or applicant whose functions industry regulatory body; final preparation of such 14 Phlx proposes to define ‘‘representative’’ as a are solely clerical or ministerial shall not be reports; supervision of individuals who assist in the member or an associated person of a registered included in the meaning of such term for purposes preparation of such reports; supervision of and broker or dealer, including assistant officers other of the Exchange rules. See proposed Phlx Rule responsibility for individuals who are involved in than principals, who is engaged in the investment 1(vv). See also 15 U.S.C. 78c(a)(18). the actual maintenance of the member banking or securities business for the member 16 The term ‘‘investment banking or securities organization’s books and records from which such organization including the functions of supervision, business’’ means the business, carried on by a reports are derived; supervision and/or performance solicitation or conduct of business in securities or broker or dealer, of underwriting or distributing of the member organization’s responsibilities under who is engaged in training of persons associated issues of securities, or of purchasing securities and all financial responsibility rules promulgated with a broker or dealer for any of these functions. offering the same for sale as a dealer, or of pursuant to the provisions of the Act; overall To the extent provided in Phlx Rule 604, all purchasing and selling securities upon the order supervision of and responsibility for the individuals representatives are required to be registered with and for the account of others. See proposed Phlx who are involved in the administration and the Exchange and are referred to in Phlx’s rulebook Rule 1(ww). maintenance of the member organization’s back as ‘‘Registered Representatives.’’ See proposed Phlx 17 See Section 3(a)(39) of the Act; 15 U.S.C. office operations; or any other matter involving the Rule 1(uu). 78c(a)(39).

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Phlx Rule 604(j) Commission believes that the changes organizations transacting business on Proposed Phlx Rule 604(j) provides proposed by Phlx to its rules will PSX, as well as those who supervise, that the Exchange may, in exceptional strengthen the regulatory structure of train or otherwise oversee those who do, cases and where good cause is shown, the Exchange and should enhance the will be registered with, and qualified by, waive an applicable qualification ability of member firms to comply with the Exchange and will be subject to examination and accept other standards the Exchange’s rules as well as with the continuing education requirements. In as evidence of an applicant’s Federal securities laws. addition, the proposal should qualifications for registration.18 Additionally, the Commission strengthen the Exchange’s ability to believes that the proposed rule change ensure an effective supervisory structure Other Changes is consistent with the principles of for those conducting business on PSX.27 Pursuant to proposed Rule 604(i)(2), Section 11A(a)(1) 23 of the Act in that it The requirements apply broadly and are the Exchange proposes to allow a seeks to assure fair competition among intended to help close a regulatory gap member organization, and persons brokers and dealers and among which has resulted in varying associated with a member organization, exchange markets. The Commission registration, qualification, and to pay to non-registered foreign persons believes that the proposed rule will supervision requirements across transaction-related compensation based promote uniformity of regulation across markets. Phlx will not allow any upon the business of customers directed markets, thus reducing opportunities for member organization to permit any to member organizations under certain regulatory arbitrage. The proposed rule person associated with it to engage in enumerated conditions.19 helps ensure that all persons conducting the investment banking or securities a securities business through Phlx are business through its facilities unless the III. Discussion and Commission subject to registration, qualification and member organization determines that Findings continuing education requirements, and such person satisfies the registration The Commission finds that the are appropriately supervised, as the and qualification requirements and is proposed rule change is consistent with Commission expects of all self- not subject to statutory disqualification. the requirements of the Act and the regulatory organizations (‘‘SROs’’). The Commission believes that Phlx’s rules and regulations thereunder In order to meet its obligations under requirement that each person associated applicable to a national securities Section 6 of the Act 24 to enforce with a member organization who exchange.20 Specifically, the compliance by member firms 25 and performs the functions of a Commission finds that the proposal is their associated persons with the Act, representative, register with Phlx as a consistent with Section 6(b)(5) of the the rules thereunder, and the exchange’s General Securities Representative and Act,21 which requires, among other own rules, an exchange must have pass the Series 7 examination before things, that the rules of a national baseline registration and examination or registration may become effective, helps securities exchange be designed to qualification requirements for all ensure that all associated persons who prevent fraudulent and manipulative persons conducting business on an transact business on PSX, including acts and practices, to promote just and exchange, as well as for those those engaged in proprietary trading, are equitable principles of trade, to remove supervising such activity. In addition, subject to appropriate registration, impediments to, and perfect the SROs should have continuing education qualification, and continuing education mechanism of, a free and open market requirements for registered persons requirements and is consistent with the and a national market system and, in which help ensure that members and Act. These requirements bolster the general, to protect investors and the persons associated with their members integrity of the Exchange by helping to public interest. The Commission are up to date on amendments to SRO ensure that all associated persons believes that the proposed rule change rules and securities laws, rules, and engaged in a securities business are, and is also consistent with Section 6(c)(3)(B) regulations that govern their activities. will continue to be, properly trained of the Act,22 which authorizes Furthermore, an exchange must know if and qualified to perform their functions exchanges to prescribe standards of an associated person of a member firm and will be supervised and can be is subject to a statutory identified by regulators and the general training, experience and competence for 26 persons associated with exchange disqualification. This information is public. Similarly, the Commission believes members, and gives exchanges the elicited by the Form U4, which is used that the requirement that all persons authority to bar a natural person from by most exchanges and FINRA to functioning in certain capacities be becoming a member or a person register associated persons. The Commission believes that Phlx’s registered through WebCRD as associated with a member, if the person proposed rule change will help ensure principals and be subject to higher does not meet the standards of training, that all associated persons of member qualification standards appropriately experience and competence prescribed identifies those persons with heightened in the rules of the exchange. The 23 15 U.S.C. 78k–1(a)(1). accountability and reflects the enhanced 24 Section 6 requires exchanges to have the ability responsibility of the principal role and 18 Advanced age or physical infirmity will not to enforce compliance by their members and is consistent with the Act. The general alone constitute sufficient grounds to waive a associated persons with the Federal securities laws qualification examination. Experience in fields and with their own rules. 15 U.S.C. 78f. requirement that firms have a minimum ancillary to the investment banking or securities 25 Broker and dealers are required to supervise the of two principals responsible for business may constitute sufficient grounds to waive activities of their associated persons. See Section oversight of member organization a qualification examination. 15(b)(4)(E) of the Act. activity on Phlx—who must be 19 Phlx also proposes to amend Rule 640, 26 See Section 6(c)(2) of the Act and Rule 19h– registered as such and pass the Series 24 Commentary .01 to delete an outdated reference to 1 under the Act. The Commission believes that it ‘‘XLE,’’ the Exchange’s former trading system for is important that certain registration information, exam—should help Phlx strengthen the NMS stocks, since XLE ceased operations in 2008. such as whether an associated person is subject to regulation of its member firms, and 20 In approving this proposed rule change, the a statutory disqualification, is available to Commission has considered the proposed rule’s exchanges and other regulators, including the 27 Exchange Rule 748, Supervision, requires that impact on efficiency, competition, and capital Commission and the State securities regulators, all locations and activities of a member organization formation. See 15 U.S.C. 78c(f). through WebCRD as well as members of the public be supervised by a qualified supervisor. The 21 15 U.S.C. 78f(b)(5). through BrokerCheck, which derives information principal registration requirement in proposed Rule 22 15 U.S.C. 78f(c)(3)(B). from WebCRD. 604(g) supplements Rule 748.

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prepare those individuals for their requires the Exchange to have good October 1, 1999, and Delegation of responsibilities. cause; 29 the Commission believes this Authority No. 236–3 of August 28, 2000, In addition, the Commission believes authority also should be used sparingly. I hereby determine that the object to be that requiring Chief Compliance Officers The Commission expects the Exchange included in the exhibition ‘‘The Roman and any employee operating in the to maintain records and to utilize Mosaic from Lod, Israel,’’ imported from capacity of a FINOP to register with the careful judgment in providing waivers. abroad for temporary exhibition within Exchange as principals and take either Finally, the Commission notes that the United States, is of cultural the Series 24 or Series 27, respectively, these exceptions are substantively the significance. The object is imported is appropriate based on the heightened same as exceptions provided to similar pursuant to a loan agreement with the level of accountability inherent in the rules at other SROs.30 foreign owner or custodian. I also duty of overseeing compliance by an The Commission believes that determine that the exhibition or display Exchange member, and in the oversight proposed Rule 604(i)(2), which allows of the exhibit object at the Metropolitan and preparation of financial reports and payment to finders when certain Museum of Art, New York, New York, the oversight of those employed in the conditions are satisfied, is reasonable as from on or about September 28, 2010, financial and operational capacities at it is consistent with the compensation until on or about April 3, 2011, the each firm. arrangements allowed on other Legion of Honor Museum, San The Commission believes Phlx’s exchanges for foreign finders who direct Francisco, California, from on or about proposed Limited Principal—General business to member organizations.31 April 23, 2011, until on or about July 24, Securities Sales Supervisor category is Finally, the Commission believes that 2011, and at possible additional appropriate as the qualification adding paragraph (f) to Rule 604, exhibitions or venues yet to be standards required reflect the narrower specifying the applicability of determined, is in the national interest. responsibility of persons in this category paragraphs (g) and (h), and adding terms I have ordered that Public Notice of 28 of registration. Overall, the proposed used in the proposed rules to its these Determinations be published in new principal registration and Definitions section will provide clarity the Federal Register. qualification requirements should to Phlx’s rules, enabling regulators, FOR FURTHER INFORMATION CONTACT: For expand and strengthen the framework of members, and the general public to further information, including a supervisory rules that apply to better understand the rules. description of the exhibit object, contact Exchange member organizations and Paul W. Manning, Attorney-Adviser, their associated persons doing business VI. Conclusion Office of the Legal Adviser, U.S. on PSX. It is therefore ordered, pursuant to The Commission believes Phlx’s Section 19(b)(2) of the Act,32 that the Department of State (telephone: 202– proposed provision requiring any proposed rule change (SR–Phlx–2010– 632–6469). The mailing address is U.S. person whose registration has been 91), as modified by Amendment No. 1, Department of State, SA–5, L/PD, Fifth revoked by the Exchange as a be, and hereby is, approved. Floor (Suite 5H03), Washington, DC 20522–0505. disciplinary sanction or whose most For the Commission, by the Division of recent registration as a principal or Trading and Markets, pursuant to delegated Dated: August 25, 2010. representative has been terminated for a authority.33 Ann Stock, period of two or more years Florence E. Harmon, Assistant Secretary, Bureau of Educational immediately preceding the date of Deputy Secretary. and Cultural Affairs, Department of State. receipt by the Exchange of a new [FR Doc. 2010–21850 Filed 8–31–10; 8:45 am] [FR Doc. 2010–21848 Filed 8–31–10; 8:45 am] application, to pass the qualification BILLING CODE 8010–01–P BILLING CODE 4710–05–P examination appropriate to such person’s category of registration is appropriate. This rule helps to ensure DEPARTMENT OF STATE DEPARTMENT OF STATE that persons’ qualifications are current. [Public Notice 7148] The Commission also believes Phlx’s [Public Notice 7145] proposed exceptions from the above- Culturally Significant Objects Imported Culturally Significant Object Imported discussed general requirements are for Exhibition Determinations: for Exhibition Determinations: ‘‘The appropriate. Any member seeking an ‘‘Richard Hawkins—Third Mind’’ exception from Phlx’s mandate that Roman Mosaic from Lod, Israel’’ SUMMARY: Notice is hereby given of the each firm have two principals must SUMMARY: Notice is hereby given of the following determinations: Pursuant to provide evidence that conclusively following determinations: Pursuant to the authority vested in me by the Act of indicates to the Exchange that only one the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. principal is necessary. The Commission October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March expects this authority to be used 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and sparingly, since principals oversee the 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. operations of member firms and provide Restructuring Act of 1998 (112 Stat. 2681, et seq.; 22 U.S.C. 6501 note, et the first line of defense in ensuring that 2681, et seq.; 22 U.S.C. 6501 note, et seq.), Delegation of Authority No. 234 of member firms are complying with the seq.), Delegation of Authority No. 234 of rules of an exchange as well as the October 1, 1999, and Delegation of Federal securities laws. In addition, the 29 See proposed Rule 604(j). Authority No. 236–3 of August 28, 2000, qualification examination waiver 30 See, e.g., FINRA Rule 1070(d) and NASDAQ I hereby determine that the objects to be applies only in exceptional cases and Rule 1070(d) regarding the examination waiver. included in the exhibition ‘‘Richard See, e.g., FINRA Rule 1021(e)(2) and NASDAQ Rule Hawkins—Third Mind,’’ imported from 28 A Limited Principal—General Securities Sales 1021(e)(2) regarding the two-principal requirement abroad for temporary exhibition within waiver. Supervisor may only supervise sales activities. the United States, are of cultural Persons qualified only as Limited Principals— 31 See NASDAQ Rule 1060(b) and NASDAQ OMX General Securities Sales Supervisors do not count BX Rule 1060(b). significance. The objects are imported toward the two-principal requirement of Rule 32 15 U.S.C. 78s(b)(2). pursuant to loan agreements with the 604(g)(5). 33 17 CFR 200.30–3(a)(12). foreign owners or custodians. I also

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determine that the exhibition or display FOR FURTHER INFORMATION CONTACT: For Fifth Floor, Washington, DC 20522– of the exhibit objects at the Art Institute further information, including a list of 0505. of Chicago, Chicago, IL, from on or the exhibit objects, contact Paul W. Dated: August 25, 2010. about October 22, 2010, until on or Manning, Attorney-Adviser, Office of about January 16, 2011; at the Hammer the Legal Adviser, U.S. Department of Ann Stock, Museum, Los Angeles, CA, from on or State (telephone: 202–632–6469). The Assistant Secretary, Bureau of Educational about February 13, 2011, until on or mailing address is U.S. Department of and Cultural Affairs, Department of State. about May 22, 2011, and at possible State, SA–5, L/PD, Fifth Floor (Suite [FR Doc. 2010–21844 Filed 8–31–10; 8:45 am] additional exhibitions or venues yet to 5H03), Washington, DC 20522–0505. BILLING CODE 4710–05–P be determined, is in the national Dated: August 25, 2010. interest. Public Notice of these Ann Stock, Determinations is ordered to be DEPARTMENT OF STATE Assistant Secretary, Bureau of Educational published in the Federal Register. and Cultural Affairs, Department of State. FOR FURTHER INFORMATION CONTACT: For [FR Doc. 2010–21846 Filed 8–31–10; 8:45 am] [Delegation of Authority 332] further information, including a list of BILLING CODE 4710–05–P the exhibit objects, contact Carol B. Delegation From the Secretary of Epstein, Attorney-Adviser, Office of the Certain Certification Functions in Legal Adviser, U.S. Department of State DEPARTMENT OF STATE Maritime Law Enforcement to the (telephone: 202–632–6473). The address Assistant Secretary for International is U.S. Department of State, SA–5, L/PD, [Public Notice 7147] Narcotics and Law Enforcement Affairs Fifth Floor, Washington, DC 20522– Culturally Significant Objects Imported 0505. for Exhibition Determinations: ‘‘Sheila By virtue of the authority vested in Dated: August 25, 2010. Hicks: 50 Years’’ the Secretary of State, including the Ann Stock, authority of section 1 of the State SUMMARY: Notice is hereby given of the Assistant Secretary, Bureau of Educational Department Basic Authorities Act, as and Cultural Affairs, Department of State. following determinations: Pursuant to amended (22 U.S.C. 2651a), I hereby the authority vested in me by the Act of [FR Doc. 2010–21842 Filed 8–31–10; 8:45 am] delegate to the Assistant Secretary for October 19, 1965 (79 Stat. 985; 22 U.S.C. BILLING CODE 4710–05–P International Narcotics and Law 2459), Executive Order 12047 of March Enforcement Affairs, the certification 27, 1978, the Foreign Affairs Reform and authorities under 46 U.S.C. 70502(c)(2) DEPARTMENT OF STATE Restructuring Act of 1998 (112 Stat. & (d)(2), and 18 U.S.C. 2237(d) . 2681, et seq.; 22 U.S.C. 6501 note, et [Public Notice 7146] seq.), Delegation of Authority No. 234 of Notwithstanding this delegation of October 1, 1999, and Delegation of authority, the Secretary, the Deputy Culturally Significant Objects Imported Authority No. 236–3 of August 28, 2000, Secretary, or the Deputy Secretary for for Exhibition Determinations: I hereby determine that the objects to be Management and Resources may ‘‘Contemporary Argentine included in the exhibition ‘‘Sheila exercise any function or authority Masterworks’’ Hicks: 50 Years,’’ imported from abroad covered by this delegation. SUMMARY: Notice is hereby given of the for temporary exhibition within the As used in this delegation of following determinations: Pursuant to United States, are of cultural authority, the word ‘‘function’’ includes the authority vested in me by the Act of significance. The objects are imported any duty, obligation, power, authority, October 19, 1965 (79 Stat. 985; 22 U.S.C. pursuant to loan agreements with the responsibility, right, privilege, 2459), Executive Order 12047 of March foreign owners or custodians. I also discretion, or activity. Any reference in 27, 1978, the Foreign Affairs Reform and determine that the exhibition or display this delegation of authority to any act, of the exhibit objects at the Addison Restructuring Act of 1998 (112 Stat. order, determination, delegation of Gallery of American Art, Phillips 2681, et seq.; 22 U.S.C. 6501 note, et authority, regulation, or procedure shall Academy, Andover, MA, from on or seq.), Delegation of Authority No. 234 of be deemed to be a reference to such act, October 1, 1999, and Delegation of about November 5, 2010, until on or order, determination, delegation of Authority No. 236–3 of August 28, 2000, about February 27, 2011; at the Institute authority, regulation, or procedure as I hereby determine that the objects to be of Contemporary Art, University of included in the exhibition Pennsylvania, Philadelphia, PA, from amended from time to time. ‘‘Contemporary Argentine Masterworks,’’ on or about March 25, 2011, until on or Delegation of Authority Number 316 imported from abroad for temporary about August 7, 2011; at the Mint of September 2, 2008, is hereby exhibition within the United States, are Museum Craft + Design, Charlotte, NC, superseded. of cultural significance. The objects are from on or about October 1, 2011, until This Delegation of Authority shall be imported pursuant to loan agreements on or about January 29, 2012, and at published in the Federal Register. with the foreign owners or custodians. possible additional exhibitions or I also determine that the exhibition or venues yet to be determined, is in the Dated: August 6, 2010. display of the exhibit objects at the national interest. Public Notice of these Hillary Rodham Clinton, Smithsonian Institution International Determinations is ordered to be Secretary of State. Gallery, Washington, DC, from on or published in the Federal Register. [FR Doc. 2010–21855 Filed 8–31–10; 8:45 am] FOR FURTHER INFORMATION CONTACT about October 4, 2010, until on or about : For BILLING CODE 4710–17–P January 23, 2011, and at possible further information, including a list of additional exhibitions or venues yet to the exhibit objects, contact Carol B. be determined, is in the national Epstein, Attorney-Adviser, Office of the interest. I have ordered that Public Legal Adviser, U.S. Department of State Notice of these Determinations be (telephone: 202/632–6473). The address published in the Federal Register. is U.S. Department of State, SA–5, L/PD,

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DEPARTMENT OF STATE foreign policy, or economy of the United be provided to any person subject to this States. determination who might have a [Public Notice 7141] Consistent with the determination in constitutional presence in the United section 10 of Executive Order 13224 that States, because to do so would render In the Matter of the Designation of ‘‘prior notice to persons determined to ineffectual the measures authorized in Tehrik-e Taliban Pakistan (TTP) also be subject to the Order who might have the Order. known as Tehrik-I-Taliban Pakistan a constitutional presence in the United also known as Tehrik-e-Taliban also States would render ineffectual the This notice shall be published in the known as Pakistani Taliban also blocking and other measures authorized Federal Register. known as Tehreek-e-Taliban as a in the Order because of the ability to Dated: August 12, 2010. Foreign Terrorist Organization transfer funds instantaneously,’’ I Hillary Rodham Clinton, pursuant to Section 219 of the determine that no prior notice needs to Secretary of State. Immigration and Nationality Act, as be provided to any person subject to this [FR Doc. 2010–21853 Filed 8–31–10; 8:45 am] Amended determination who might have a BILLING CODE 4710–10–P Based upon a review of the constitutional presence in the United Administrative Record assembled in States, because to do so would render ineffectual the measures authorized in this matter, and in consultation with the DEPARTMENT OF STATE Attorney General and the Secretary of the Order. This notice shall be published in the the Treasury, I conclude that there is a Federal Register. [Public Notice 7144] sufficient factual basis to find that the relevant circumstances described in Dated: August 12, 2010. In the Matter of the Designation of Wali section 219 of the Immigration and Hillary Rodham Clinton, Ur Rehman as a Specially Designated Nationality Act, as amended (hereinafter Secretary of State. Global Terrorist Pursuant to Section ‘‘INA’’) (8 U.S.C. 1189), exist with [FR Doc. 2010–21852 Filed 8–31–10; 8:45 am] 1(b) of Executive Order 13224, as respect to Tehrik-e Taliban Pakistan BILLING CODE 4710–10–P Amended (TTP), also known as Tehrik-I-Taliban Pakistan, also known as Tehrik-e- Acting under the authority of and in Taliban, also known as Pakistani DEPARTMENT OF STATE accordance with section 1(b) of Taliban, also known as Tehreek-e- [Public Notice 7142] Executive Order 13224 of September 23, Taliban. 2001, as amended by Executive Order Therefore, I hereby designate the In the Matter of the Designation of 13268 of July 2, 2002, and Executive aforementioned organization and its Tehrik-e Taliban Pakistan (TTP) Also Order 13284 of January 23, 2003, I aliases as a foreign terrorist organization Known as Tehrik-I-Taliban Pakistan hereby determine that the individual pursuant to section 219 of the INA. Also Known as Tehrik-e-Taliban Also known as Wali Ur Rehman committed, This determination shall be published Known as Pakistani Taliban Also in the Federal Register. or poses a significant risk of committing, Known as Tehreek-e-Taliban as a acts of terrorism that threaten the Specially Designated Global Terrorist Dated: August 12, 2010. security of U.S. nationals or the national Pursuant to Section 1(b) of Executive Hillary Rodham Clinton, security, foreign policy, or economy of Order 13224, as Amended Secretary of State. the United States. [FR Doc. 2010–21854 Filed 8–31–10; 8:45 am] Acting under the authority of and in Consistent with the determination in BILLING CODE 4710–10–P accordance with section 1(b) of section 10 of Executive Order 13224 that Executive Order 13224 of September 23, ‘‘prior notice to persons determined to 2001, as amended by Executive Order DEPARTMENT OF STATE be subject to the Order who might have 13268 of July 2, 2002, and Executive a constitutional presence in the United Order 13284 of January 23, 2003, I States would render ineffectual the [Public Notice 7143] hereby determine that the organization blocking and other measures authorized known as Tehrik-e Taliban Pakistan In the Matter of the Designation of in the Order because of the ability to (TTP), also known as Tehrik-I-Taliban Hakimullah Mehsud Also Known as transfer funds instantaneously,’’ I Hakeemullah Mehsud Also Known as Pakistan, also known as Tehrik-e- Taliban, also known as Pakistani determine that no prior notice needs to Zulfiqar as a Specially Designated be provided to any person subject to this Global Terrorist Pursuant to Section Taliban, also known as Tehreek-e- Taliban, committed, or poses a determination who might have a 1(b) of Executive Order 13224, as constitutional presence in the United Amended significant risk of committing, acts of terrorism that threaten the security of States, because to do so would render Acting under the authority of and in U.S. nationals or the national security, ineffectual the measures authorized in accordance with section 1(b) of foreign policy, or economy of the United the Order. Executive Order 13224 of September 23, States. This notice shall be published in the 2001, as amended by Executive Order Consistent with the determination in Federal Register. 13268 of July 2, 2002, and Executive section 10 of Executive Order 13224 that Order 13284 of January 23, 2003, I ‘‘prior notice to persons determined to Dated: August 12, 2010. hereby determine that the individual be subject to the Order who might have Hillary Rodham Clinton, known as Hakimullah Mehsud, also a constitutional presence in the United Secretary of State. known as Hakeemullah Mehsud, also States would render ineffectual the [FR Doc. 2010–21851 Filed 8–31–10; 8:45 am] known as Zulfiqar, committed, or poses blocking and other measures authorized BILLING CODE 4710–10–P a significant risk of committing, acts of in the Order because of the ability to terrorism that threaten the security of transfer funds instantaneously,’’ I U.S. nationals or the national security, determine that no prior notice needs to

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DEPARTMENT OF TRANSPORTATION www.regulations.gov at any time or to request a three-year term of approval for Room W12–140 on the ground level of this information collection activity. Pipeline and Hazardous Materials the West Building, 1200 New Jersey PHMSA requests comments on the Safety Administration Avenue, SE., Washington, DC, between following information collection: 9 a.m. and 5 p.m., Monday through [Docket No. PHMSA–2010–0246] Title: National Pipeline Mapping Friday, except Federal holidays. If you Program. Pipeline Safety: Information Collection wish to receive confirmation of receipt Activities of your written comments, please OMB Control Number: 2137–0596. include a self-addressed, stamped Type of Request: Renewal of a AGENCY: Pipeline and Hazardous postcard with the following statement: currently approved information Materials Safety Administration ‘‘Comments on PHMSA–2010–0246.’’ collection. (PHMSA), DOT. The Docket Clerk will date stamp the Abstract: Each operator of a pipeline ACTION: Notice and request for postcard prior to returning it to you via comments. the U.S. mail. Please note that due to facility (except distribution lines and delays in the delivery of U.S. mail to gathering lines) must provide contact SUMMARY: In accordance with the Federal offices in Washington, DC, we information and geospatial data on their Paperwork Reduction Act of 1995, recommend that persons consider an pipeline system. This information PHMSA invites comments on an alternative method (Internet, fax, or should be updated on an annual basis. information collection under Office of professional delivery service) of The provided information is Management and Budget (OMB) Control submitting comments to the docket and incorporated into the National Pipeline No. 2137–0596, titled ‘‘National Pipeline ensuring their timely receipt at DOT. Mapping System (NPMS) to support Mapping Program.’’ PHMSA is preparing FOR FURTHER INFORMATION CONTACT: various regulatory programs, pipeline to request approval from OMB for a Cameron Satterthwaite by telephone at inspections, and authorized external renewal of the current information 202–366–1319, by fax at 202–366–4566, customers. The periodic updates of collection. or by mail at U.S. DOT, PHMSA, 1200 operator pipeline data inform the NPMS DATES: Interested persons are invited to New Jersey Avenue, SE., PHP–30, of any changes to the data over the submit comments on or before Washington, DC 20590–0001. previous year and allow PHMSA to November 1, 2010. SUPPLEMENTARY INFORMATION: Section maintain and improve the accuracy of ADDRESSES: Comments may be 1320.8(d), Title 5, Code of Federal the information. submitted in the following ways: Regulations requires PHMSA to provide Affected Public: Operators of pipeline E-Gov Web Site: http:// interested members of the public and facilities (except distribution lines and www.regulations.gov. This site allows affected agencies an opportunity to gathering lines). the public to enter comments on any comment on information collection and Federal Register notice issued by any recordkeeping requests. This notice Estimated number of responses: 894. agency. identifies an information collection Estimated annual burden hours: Fax: 1–202–493–2251. request that PHMSA will be submitting 16,312 hours. Mail: Docket Management Facility; to OMB for renewal and extension. The Frequency of collection: Annual. U.S. DOT, 1200 New Jersey Avenue, information collection expires SE., West Building, Room W12–140, December 31, 2010, and is identified Comments are invited on: Washington, DC 20590–0001. under Control No. 2137–0596, titled: (a) The need for the proposed Hand Delivery: Room W12–140 on the ‘‘National Pipeline Mapping Program.’’ collection of information for the proper ground level of the West Building, 1200 The Pipeline Safety Laws (49 U.S.C. performance of the functions of the New Jersey Avenue, SE., Washington, 60132) require an operator of a pipeline agency, including whether the DC, between 9 a.m. and 5 p.m., Monday facility (except distribution lines and information will have practical utility; through Friday, except Federal holidays. gathering lines) to submit geospatial (b) The accuracy of the agency’s Instructions: Identify the docket data appropriate for use in the estimate of the burden of the proposed number, PHMSA–2010–0246, at the Department’s National Pipeline beginning of your comments. Note that Mapping System (NPMS). A complete collection of information, including the all comments received will be posted data submission includes geospatial validity of the methodology and without change to http:// data, attribute data, metadata, public assumptions used; www.regulations.gov, including any contact information for all liquefied (c) Ways to enhance the quality, personal information provided. You natural gas, hazardous liquid, and gas utility, and clarity of the information to should know that anyone is able to transmission pipeline systems operated be collected; and search the electronic form of all by a company. The operator must (d) Ways to minimize the burden of comments received into any of our submit information in accordance with the collection of information on those dockets by the name of the individual guidelines detailed in the NPMS who are to respond, including the use submitting the comment (or signing the operator standards document. Operators of appropriate automated, electronic, comment, if submitted on behalf of an must update their submissions on an mechanical, or other technological association, business, labor union, etc.). annual basis. The following information Therefore, you may want to review is provided for this information collection techniques. DOT’s complete Privacy Act Statement collection: (1) Title of the information Issued in Washington, DC, on August 26, in the Federal Register published on collection; (2) OMB control number; (3) 2010. April 11, 2000 (65 FR 19477) or visit Type of request; (4) Abstract of the Linda Daugherty, http://www.regulations.gov before information collection activity; (5) Deputy Associate Administrator for Policy submitting any such comments. Description of affected public; (6) and Programs. Docket: For access to the docket or to Estimate of total annual reporting and [FR Doc. 2010–21840 Filed 8–31–10; 8:45 am] read background documents or recordkeeping burden; and (7) comments, go to http:// Frequency of collection. PHMSA will BILLING CODE 4910–60–P

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DEPARTMENT OF TRANSPORTATION Standard 213, Child Restraint Systems clarity of the information to be and FMVSS 225, Child Restraint collected; and ways to minimize the National Highway Traffic Safety Anchorage Systems), in order to provide burden of the collection of information Administration another, easier method of attaching a on respondents, including the use of child restraint to the vehicle. This new automated collection techniques or Reports, Forms, and Recordkeeping collection of data is necessary in order other forms of information technology. Requirements; Agency Information to evaluate the effectiveness of FMVSS A comment to OMB is most effective if Collection Activity Under OMB Review 225 and FMVSS 213, as well as to OMB receives it within 30 days of AGENCY: National Highway Traffic obtain an up to date snapshot of child publication. Safety Administration (NHTSA), restraint use and misuse across the Authority: 44 U.S.C. 3506(c)(2)(A). Department of Transportation. United States. This information will be James F. Simons, ACTION: Notice. used in assessing what additional actions NHTSA should take to improve Director, Office of Regulatory Analysis and SUMMARY: In compliance with the child passenger safety. In addition, Evaluation. Paperwork Reduction Act of 1995 (44 NTHSA will publish the findings of this [FR Doc. 2010–21871 Filed 8–31–10; 8:45 am] U.S.C. 3501 et seq.), this notice research study to provide information to BILLING CODE 4910–59–P announces that the Information States, localities, and other interested Collection Request (ICR) abstracted organizations in support of their efforts below will be forwarded to the Office of to reduce and prevent injuries among DEPARTMENT OF TRANSPORTATION Management and Budget (OMB) for child occupants. NHTSA proposes to review and comment. The ICR describes collect observational data on correct and Surface Transportation Board the nature of the information collections incorrect use of child restraint systems and their expected burden. The Federal in passenger vehicles, as well as [Docket No. FD 35403] Register Notice with a 60-day comment interview information from drivers Patriot Rail, LLC, Patriot Rail Holdings period was published on June 9, 2010 about their knowledge and perceptions LLC, and Patriot Rail Corp.— [FR Doc. 2010–0065, Vol. 75, No. 110, of child restraint systems. The primary Continuance in Control Exemption— Pages 32838–32839]. population for observation will be Piedmont & Northern Railway, Inc. DATES: Comments must be submitted on restrained and unrestrained child or before October 1, 2010. passengers riding in any seating Patriot Rail, LLC (PRL) and its FOR FURTHER INFORMATION CONTACT: position in passenger vehicles. subsidiaries, Patriot Rail Holdings LLC Charlene Doyle, NVS–431, Office of Participation in the study will be (PRH) and Patriot Rail Corp. (Patriot), Regulatory Analysis and Evaluation, voluntary. Interviews with drivers who have jointly filed a verified notice of National Highway Traffic Safety agree to participate will be used to exemption to continue in control of Administration, 1200 New Jersey obtain the following data: demographic Piedmont & Northern Railway, Inc. Avenue, SE., Washington, DC 20590. information on occupants, the driver’s (P&N), upon P&N’s becoming a Class III Ms. Doyle’s phone number is 202–366– knowledge about the specific CRS in the rail carrier.1 1276 and her e-mail address is vehicle, and the driver’s general This transaction is related to the [email protected]. knowledge and experience with verified notice of exemption filed in different types of restraint systems. Docket No. FD 35402, Piedmont & SUPPLEMENTARY INFORMATION: While the interview is being conducted, Northern Railway, Inc.—Operation National Highway Traffic Safety a trained observer will collect Exemption—North Carolina Department Administration information about the CRS in the of Transportation, in which P&N seeks Title: National Child Restraint Use vehicle, including the type of restraint an exemption under 49 CFR 1150.31 to Special Study (NCRUSS). that is used, the type of installation (seat operate over approximately 13.04 miles OMB Number: 2127–0642. belt or LATCH), how the CRS is of rail line owned by the North Carolina Type of Request: Request for public installed, harness use, and seat belt fit. Department of Transportation, between comment on proposed collection of The observer will not remove the child Mt. Holly (milepost SFC 11.39) and information. or CRS from the vehicle. Gastonia (milepost SFC 23.0), including Abstract: The National Highway Affected Public: Drivers of passenger the Belmont spur between Mt. Holly Traffic Safety Administration (NHTSA) vehicles who are transporting children (milepost SFC 13.6/SFF 0.13) and proposes to conduct information and their passengers. Belmont (milepost SFF 1.56), in Gaston collections to assess the levels of child Estimated Total Annual Burden: 880 County, N.C. restraint system use and misuse for hours. The transaction is scheduled to be children riding in passenger vehicles, ADDRESSES: Send comments, within 30 consummated on or after September 11, and to examine whether the levels of days, to the Office of Information and 2010 (30 days after the notice of use and/or misuse are related to any Regulatory Affairs, Office of exemption was filed). specific characteristics of the drivers, Management and Budget, 725–17th Patriot currently controls the their passengers, the child restraints, Street, NW., Washington, DC 20503, following six Class III rail carriers: and/or the vehicles. Previous studies Attention NHTSA Desk Officer. Tennessee Southern Railroad Company, have shown that there is a gap between Comments are invited on: Whether Rarus Railway Company, Utah Central recommended child restraint use and the proposed collection of information Railway Company, Sacramento Valley observed use. Actions have been taken is necessary for the proper performance Railroad, Inc., The Louisiana and North by NTHSA to close the gap. In March of the functions of the Department, 1999, NHTSA published a final rule including whether the information will 1 PRL is a noncarrier limited liability company establishing a uniform child restraint have practical utility; the accuracy of that owns not less than 51% of the equity interests in PRH. PRH owns 100% of the stock of Patriot. attachment system known as LATCH, the Department’s estimate of the burden Patriot is a noncarrier holding company that owns Lower Anchors and Tethers for of the proposed information collection; 100% of the stock of six railroad subsidiaries and CHildren (Federal Motor Vehicles Safety ways to enhance the quality, utility and P&N.

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West Railroad Company LLC, and ACTION: Notice of intent. in this proposal. A series of public Temple & Central Texas Railway, Inc. meetings and hearings will be held in The parties state that: (1) The rail line SUMMARY: The FHWA is issuing this the project area. Public notice will be to be operated by P&N does not connect notice to advise the public that an given of the exact time and place of the with any other railroads in the corporate Environmental Impact Statement will be meetings and the hearing to be held for family; (2) the transaction is not part of prepared for transportation the project. The Draft EIS will be a series of anticipated transactions that improvements proposed in Cuyahoga available for public and agency review would connect this rail line with any County, Ohio. and comment prior to the Public other railroad in the corporate family; FOR FURTHER INFORMATION CONTACT: Hearing. and (3) the transaction does not involve Laura S. Leffler, Division Administrator, To ensure that the full range of issues a Class I rail carrier. Therefore, the Federal Highway Administration, 200 related to this proposed action are transaction is exempt from the prior North High Street, Room 328, addressed and all significant issues approval requirements of 49 U.S.C. Columbus, Ohio 43215, Telephone: identified, comments, and suggestions 11323. See 49 CFR 1180.2(d)(2). (614) 280–6896. are invited from all interested parties. Under 49 U.S.C. 10502(g), the Board SUPPLEMENTARY INFORMATION: The Comments or questions concerning this may not use its exemption authority to Federal Highway Administration proposed action or the EIS should be relieve a rail carrier of its statutory (FHWA), in cooperation with the Ohio directed to the FHWA at the address obligation to protect the interests of its Department of Transportation (ODOT), provided above. employees. Section 11326(c), however, will prepare an Environmental Impact (Catalog of Federal Domestic Assistance does not provide for labor protection for Statement (EIS) on a proposal to Program Number 20.205, Highway Planning transactions under sections 11324 and construct new roadways on new and Construction. The regulations 11325 that involve only Class III rail alignments between Interstate 490 and implementing Executive Order 12372 carriers. Accordingly, the Board may not the University Circle area of Cleveland, regarding intergovernmental consultation on impose labor protective conditions here, Ohio. The study area extends from Federal programs and activities apply to this because all of the carriers involved are Interstate 77/Interstate 490 in the west program.) Class III carriers. to East 105th Street and Chester Avenue Authority: 23 U.S.C. 315; 49 CFR 1.48. If the verified notice contains false or (U.S. 322) in the east and is located Issued on: August 19, 2010. misleading information, the exemption entirely in the City of Cleveland, Ohio. is void ab initio. Petitions to revoke the The study area runs generally parallel to Laura S. Leffler, exemption under 49 U.S.C. 10502(d) the existing railroad transportation Division Administrator, Federal Highway may be filed at any time. The filing of corridor containing Greater Cleveland Administration, Columbus, Ohio. a petition to revoke will not Regional Transit Authority’s (GCRTA) [FR Doc. 2010–21911 Filed 8–31–10; 8:45 am] automatically stay the effectiveness of Red Line and freight tracks owned and BILLING CODE 4910–22–P the exemption. Petitions for stay must operated by Norfolk Southern be filed no later than September 3, 2010 Corporation (NS) and CSX Corporation (at least 7 days before the exemption (CSX). DEPARTMENT OF TRANSPORTATION The purpose of the transportation becomes effective). Federal Highway Administration An original and 10 copies of all improvement is to create the pleadings, referring to Docket No. FD transportation infrastructure to improve Notice of Final Federal Agency Actions 35403, must be filed with the Surface mobility and access in southeast on East Lake Sammamish Master Plan Transportation Board, 395 E Street, SW., Cleveland and support the revival and Trail in King County, WA Washington, DC 20423–0001. In redevelopment of large tracts of vacant addition, one copy of each pleading industrial and residential land within AGENCY: Federal Highway must be served on Louis E. Gitomer, 600 an area bounded by Cedar Avenue on Administration (FHWA), DOT. Baltimore Ave., Suite 301, Towson, MD the north, east 55th Street on the West, ACTION: Notice of Limitation on Claims 21204. Woodhill Road/East 93rd Street on the for Judicial Review of Actions by FHWA Board decisions and notices are east and Union Avenue on the south. and Other Federal Agencies. available on our Web site at http:// Actions under consideration include www.stb.dot.gov. (1) six various alternatives to construct SUMMARY: This notice announces actions taken by FHWA and other Federal Decided: August 26, 2010. a boulevard type roadway including a multi-lane urban arterial with curbs, an agencies that are final within the By the Board. elevated landscape median, multi- meaning of 23 U.S.C. 139(l)(1). The Rachel D. Campbell, modal facilities, landscaping and actions relate to a proposed Director, Office of Proceedings. lighting, and (2) taking no action. The transportation enhancement project, the Jeffrey Herzig, current six various alternatives have East Lake Sammamish Trail, starting at Clearance Clerk. been born out of a previous planning Gilman Boulevard in Issaquah, [FR Doc. 2010–21805 Filed 8–31–10; 8:45 am] study called the University Circle Washington and ending at Bear Creek BILLING CODE 4915–01–P Access Boulevard. The project Trail in Redmond, Washington. Those development process including the actions grant licenses, permits, and refinement of Conceptual Alternatives approvals for the project. DEPARTMENT OF TRANSPORTATION and the development of Feasible DATES: By this notice, FHWA is advising Alternatives will be included in the the public of final agency actions Federal Highway Administration Draft EIS. subject to 23 U.S.C. 139(l)(1). A claim Environmental Impact Statement; Letters describing the proposed action seeking judicial review of the Federal Opportunity Corridor, City of and soliciting comments will be sent to agency actions on the transportation Cleveland, Cuyahoga County, OH appropriate Federal, State and local project will be barred unless the claim agencies and to private organizations is filed on or before February 28, 2011. AGENCY: Federal Highway and citizens who have previously If the Federal law that authorizes Administration (FHWA), DOT. expressed or are known to have interest judicial review of a claim provides a

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time period of less than 180 days for Federal programs and activities apply to this and lessors on current and future filing such claim, then that shorter time program.) availability of various grain-car types; a period still applies. Authority: 23 U.S.C. 139(l)(1). presentation and discussion regarding FOR FURTHER INFORMATION CONTACT: For Issued on: August 26, 2010. the development of Positive Train Control; discussion of export grain in FHWA: Mr. Pete Jilek, Area Engineer, Peter A. Jilek, Federal Highway Administration, 711 S. intermodal containers; a presentation by Urban Area Engineer, Federal Highway the White Paper subcommittee; and an Capital Way, Suite 501, Olympia, WA Administration. 98501; telephone 360–753–9480; e-mail open forum on BNSF Certificates of [FR Doc. 2010–21804 Filed 8–31–10; 8:45 am] [email protected]. The FHWA Transportation (COTs) for Processors, Washington Division Office’s normal BILLING CODE 4910–RY–P weather’s effect on supply/demand of business hours are 7 a.m. to 4:30 p.m. equipment, and export market impact on U.S. grain car supply. The full (Pacific time). DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION: Notice is agenda and a copy of the White Paper hereby given FHWA and other Federal Surface Transportation Board are posted on the Board’s Web site at agencies have taken final agency actions http://www.stb.dot.gov/stb/rail/ [Docket No. EP 519 (Sub-No. 4)] _ subject to 23 U.S.C. 139(l)(1) by issuing graincar council.html. licenses, permits, and approvals for the The meeting, which is open to the Notice of National Grain Car Council public, will be conducted pursuant to following transportation project in the Meeting State of Washington: East Lake the NGCC’s charter and Board Sammamish Trail along the east side of AGENCY: Surface Transportation Board, procedures. Further communications Lake Sammamish from Gilman DOT. about this meeting may also be announced through the Board’s Web Boulevard in Issaquah, WA to Bear ACTION: Notice of National Grain Car site. Creek Trail in Redmond, WA. The Council meeting. project will be an approximately 11- This action will not significantly mile-long paved trail, providing an SUMMARY: Notice is hereby given of a affect either the quality of the human alternative non-motorized meeting of the National Grain Car environment or the conservation of transportation corridor and recreational Council (NGCC), pursuant to section energy resources. trail. The actions by the Federal 10(a)(2) of the Federal Advisory Dated: August 27, 2010. agencies, and the laws under which Committee Act, Pub. L. No. 92–463, as Kulunie L. Cannon, such actions were taken, are described amended (5 U.S.C., App. 2). Clearance Clerk. in the Final Environmental Impact DATES: The meeting will be held on [FR Doc. 2010–21812 Filed 8–31–10; 8:45 am] Statement (FEIS) for the project, Thursday, September 16, 2010, BILLING CODE 4915–01–P approved on April 20, 2010, in the beginning at 1:00 p.m. (CDT) and is FHWA Record of Decision (ROD) issued expected to conclude at 5 p.m. (CDT). on August 4, and in other documents in ADDRESSES: The meeting will be held at DEPARTMENT OF TRANSPORTATION the FHWA project records. The FEIS, the Omaha Hilton, 1001 Cass Street, ROD, and other project records are Omaha, NE 68102. Phone 402–998– Federal Aviation Administration available by contacting FHWA at the 3400. [Summary Notice No. PE–2010–38] addresses provided above. The FHWA FOR FURTHER INFORMATION CONTACT: FEIS and ROD can be viewed and Petition for Exemption; Summary of downloaded from the project Web site at Thomas Brugman at (202) 245–0281. Petition Received http://www.kingcounty.gov/ [Assistance for the hearing impaired is eastlakesammamishtrail, or viewed at available through the Federal AGENCY: Federal Aviation public libraries in the project area. Information Relay Service (FIRS) at: Administration (FAA), DOT. This notice applies to all Federal (800) 877–8339]. ACTION: Notice of petition for exemption agency decisions as of the issuance date SUPPLEMENTARY INFORMATION: The NGCC received. of this notice and all laws under which arose from a proceeding instituted by SUMMARY: such actions were taken, including but the Surface Transportation Board’s This notice contains a not limited to: predecessor agency, the Interstate summary of a petition seeking relief 1. General: National Environmental Commerce Commission (ICC), in from specified requirements of 14 CFR. Policy Act (NEPA) [42 U.S.C. 4321– National Grain Car Supply—Conference The purpose of this notice is to improve 4351]; Federal-Aid Highway Act [23 of Interested Parties, EP 519. The NGCC the public’s awareness of, and U.S.C. 109 and 23 U.S.C. 128]. was formed as a working group to participation in, this aspect of FAA’s 2. Land: Section 4(f) of the facilitate private-sector solutions and regulatory activities. Neither publication Department of Transportation Act of recommendations to the ICC (and now of this notice nor the inclusion or 1966 [49 U.S.C. 303]. the Board) on matters affecting grain omission of information in the summary 3. Wildlife: Endangered Species Act transportation. is intended to affect the legal status of [16 U.S.C. 1531–1544 and Section The general purpose of this meeting is the petition or its final disposition. 1536]. to discuss rail carrier preparedness to DATES: Comments on this petition must 4. Historic and Cultural Resources: transport the 2010 fall grain harvest. identify the petition docket number Section 106 of the National Historic Agenda items include the following: involved and must be received on or Preservation Act of 1966, as amended Remarks by Board Chairman Daniel R. before September 21, 2010. [16 U.S.C. 470(f) et seq.]. Elliott III, Vice-Chairman Francis P. ADDRESSES: You may send comments (Catalog of Federal Domestic Assistance Mulvey (who serves as Co-Chairman for identified by Docket Number FAA– Program Number 20.205, Highway Planning the NGCC), and Commissioner Charles 2010–0496 using any of the following and Construction. The regulations D. Nottingham; reports by rail carriers methods: implementing Executive Order 12372 and shippers on grain-service related • Government-wide rulemaking Web regarding intergovernmental consultation on issues; a report by rail car manufacturers site: Go to http://www.regulations.gov

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and follow the instructions for sending low-fuel alert (ETOPS) on certain model Type of Review: Extension of a your comments electronically. 777 airplanes. currently approved collection. • Mail: Send comments to the Docket [FR Doc. 2010–21797 Filed 8–31–10; 8:45 am] Affected Public: Business or other for- Management Facility; U.S. Department BILLING CODE 4910–13–P profit organizations. of Transportation, 1200 New Jersey Estimated Number of Respondents: Avenue, SE., West Building Ground 100. Floor, Room W12–140, Washington, DC DEPARTMENT OF THE TREASURY Estimated Time per Respondent: 25 20590. hours. • Fax: Fax comments to the Docket Internal Revenue Service Estimated Total Annual Burden Management Facility at 202–493–2251. [TD 9374] Hours: 2,500. • Hand Delivery: Bring comments to The following paragraph applies to all the Docket Management Facility in Proposed Collection; Comment of the collections of information covered Room W12–140 of the West Building Request for Regulation Project by this notice: An agency may not conduct or Ground Floor at 1200 New Jersey AGENCY: Internal Revenue Service (IRS), sponsor, and a person is not required to Avenue, SE., Washington, DC, between Treasury. respond to, a collection of information 9 a.m. and 5 p.m., Monday through ACTION: Notice and request for Friday, except Federal holidays. unless the collection of information comments. displays a valid OMB control number. Privacy: We will post all comments Books or records relating to a collection we receive, without change, to http:// SUMMARY: The Department of the of information must be retained as long www.regulations.gov, including any Treasury, as part of its continuing effort as their contents may become material personal information you provide. to reduce paperwork and respondent in the administration of any internal Using the search function of our docket burden, invites the general public and revenue law. Generally, tax returns and Web site, anyone can find and read the other Federal agencies to take this tax return information are confidential, comments received into any of our opportunity to comment on proposed as required by 26 U.S.C. 6103. dockets, including the name of the and/or continuing information individual sending the comment (or collections, as required by the Request for Comments: Comments signing the comment for an association, Paperwork Reduction Act of 1995, submitted in response to this notice will business, labor union, etc.). You may Public Law 104–13 (44 U.S.C. be summarized and/or included in the review DOT’s complete Privacy Act 3506(c)(2)(A)). Currently, the IRS is request for OMB approval. All Statement in the Federal Register soliciting comments concerning an comments will become a matter of published on April 11, 2000 (65 FR existing final and temporary regulation, public record. Comments are invited on: 19477–78). TD 9374, Nuclear Decommissioning (a) Whether the collection of Costs. information is necessary for the proper Docket: To read background performance of the functions of the DATES: Written comments should be documents or comments received, go to agency, including whether the received on or before November 1, 2010 http://www.regulations.gov at any time information shall have practical utility; to be assured of consideration. or to the Docket Management Facility in (b) the accuracy of the agency’s estimate ADDRESSES: Room W12–140 of the West Building Direct all written comments of the burden of the collection of Ground Floor at 1200 New Jersey to Gerald J. Shields, Internal Revenue information; (c) ways to enhance the Avenue, SE., Washington, DC, between Service, Room 6129, 1111 Constitution quality, utility, and clarity of the 9 a.m. and 5 p.m., Monday through Avenue, NW., Washington, DC 20224. information to be collected; (d) ways to Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: minimize the burden of the collection of FOR FURTHER INFORMATION CONTACT: Requests for additional information or information on respondents, including Mark Forseth, ANM–113, (425) 227– copies of the regulations should be through the use of automated collection 2796, Federal Aviation Administration, directed to R. Joseph Durbala at Internal techniques or other forms of information 1601 Lind Avenue, SW., Renton, WA Revenue Service, Room 6129, 1111 technology; and (e) estimates of capital 98057–3356, or Katherine Haley, (202) Constitution Avenue, NW., Washington, or start-up costs and costs of operation, 493–5708, Office of Rulemaking (ARM– DC 20224, or at (202) 622–3634, or maintenance, and purchase of services 1), Federal Aviation Administration, through the Internet at to provide information. [email protected]. 800 Independence Avenue, SW., Approved: August 24, 2010. Washington, DC 20591. SUPPLEMENTARY INFORMATION: R. Joseph Durbala, Title: Nuclear Decommissioning This notice is published pursuant to IRS Tax Analyst. 14 CFR 11.85. Costs. OMB Number: 1545–2091. [FR Doc. 2010–21753 Filed 8–31–10; 8:45 am] Issued in Washington, DC, on August 27, Regulation Project Number: TD 9374. BILLING CODE 4830–01–P 2010. Abstract: Statutory changes permit Pamela Hamilton-Powell, taxpayers that have been subject to Director, Office of Rulemaking. limitations on contributions to qualified DEPARTMENT OF THE TREASURY nuclear decommissioning funds in Petition for Exemption previous years to make a contribution to Internal Revenue Service Docket No.: FAA–2010–0496. the fund of the previously-excluded Proposed Collection; Comment Petitioner: The Boeing Company. amount. The temporary regulation Request for Form 1098 provides guidance concerning the Section of 14 CFR Affected: 14 CFR calculation of the amount of the AGENCY: Internal Revenue Service (IRS), part 25, Appendix K, § K25.1.4(a)(3). contribution and the manner of making Treasury. Description of Relief Sought: Boeing the contribution. ACTION: Notice and request for requests a time-limited, partial Current Actions: There is no change to comments. exemption from the requirements for a this existing regulation.

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SUMMARY: The Department of the be summarized and/or included in the Service, Room 6129, 1111 Constitution Treasury, as part of its continuing effort request for OMB approval. All Avenue, NW., Washington, DC 20224, to reduce paperwork and respondent comments will become a matter of or through the Internet, at burden, invites the general public and public record. Comments are invited on: [email protected]. other Federal agencies to take this (a) Whether the collection of SUPPLEMENTARY INFORMATION: opportunity to comment on proposed information is necessary for the proper Title: Statistical Sampling for and/or continuing information performance of the functions of the purposes of Section 199. collections, as required by the agency, including whether the Paperwork Reduction Act of 1995, information shall have practical utility; OMB Number: 1545–2072. Revenue Public Law 104–13 (44 U.S.C. (b) the accuracy of the agency’s estimate Procedure Number: RP–2007–35. 3506(c)(2)(A)). Currently, the IRS is of the burden of the collection of Abstract: This revenue procedure soliciting comments concerning Form information; (c) ways to enhance the provides for determining when 1098, Mortgage Interest Statement. quality, utility, and clarity of the statistical sampling may be used in DATES: Written comments should be information to be collected; (d) ways to purposes of section 199, which provides received on or before November 1, 2010 minimize the burden of the collection of a deduction for income attributable to to be assured of consideration. information on respondents, including domestic production activities, and establishes acceptable statistical ADDRESSES: Direct all written comments through the use of automated collection to Gerald J. Shields, Internal Revenue techniques or other forms of information sampling methodologies. Service, room 6129, 1111 Constitution technology; and (e) estimates of capital Current Actions: Extension of a Avenue, NW., Washington, DC 20224. or start-up costs and costs of operation, previously approved collection. FOR FURTHER INFORMATION CONTACT: maintenance, and purchase of services Affected Public: Business or other for- Requests for additional information or to provide information. profit institutions, and individuals or households or farms. copies of the form and instructions Approved: August 24, 2010. Estimated Number of Respondents: should be directed to R. Joseph Durbala, R. Joseph Durbala, 300. (202) 622–3634, at Internal Revenue IRS Tax Analyst. Service, room 6129, 1111 Constitution Estimated Time per Respondent: 8 [FR Doc. 2010–21754 Filed 8–31–10; 8:45 am] Avenue, NW., Washington, DC 20224, hours. or through the Internet at BILLING CODE 4830–01–P Estimated Total Annual Burden [email protected]. Hours: 2,400. SUPPLEMENTARY INFORMATION DEPARTMENT OF THE TREASURY The following paragraph applies to all Title: Mortgage Interest Statement. of the collections of information covered OMB Number: 1545–0901. Internal Revenue Service by this notice: Form Number: Form 1098. An agency may not conduct or Abstract: Form 1098 is used to report Proposed Collection; Comment sponsor, and a person is not required to $600 or more of mortgage interest Request for Rev. Proc. 2007–35 respond to, a collection of information received from an individual in the unless the collection of information AGENCY: course of the mortgagor’s trade or Internal Revenue Service (IRS), displays a valid OMB control number. business. Treasury. Books or records relating to a collection Current Actions: There is no change ACTION: Notice and request for of information must be retained as long in the paperwork burden previously comments. as their contents may become material approved by OMB. This form is being in the administration of any internal SUMMARY: The Department of the submitted for renewal purposes only. revenue law. Generally, tax returns and Treasury, as part of its continuing effort Type of Review: Extension of a tax return information are confidential, to reduce paperwork and respondent currently approved collection. as required by 26 U.S.C. 6103. Affected Public: Individuals and burden, invites the general public and other Federal agencies to take this Request for Comments: Comments Households. submitted in response to this notice will Estimated Number of Respondents: opportunity to comment on proposed be summarized and/or included in the 171,000. and/or continuing information Estimated Time per Respondent: 7 collections, as required by the request for OMB approval. All minutes. Paperwork Reduction Act of 1995, comments will become a matter of Estimated Total Annual Burden Public Law 104–13 (44 U.S.C. public record. Comments are invited on: Hours: 8,038,699. 3506(c)(2)(A)). Currently, the IRS is (a) Whether the collection of The following paragraph applies to all soliciting comments concerning information is necessary for the proper of the collections of information covered Revenue Procedure Revenue Procedure performance of the functions of the by this notice: 2007–35, Statistical Sampling for agency, including whether the An agency may not conduct or purposes of Section 199. information shall have practical utility; sponsor, and a person is not required to (b) the accuracy of the agency’s estimate DATES: Written comments should be respond to, a collection of information of the burden of the collection of received on or before November 1, 2010 unless the collection of information information; (c) ways to enhance the to be assured of consideration. displays a valid OMB control number. quality, utility, and clarity of the Books or records relating to a collection ADDRESSES: Direct all written comments information to be collected; (d) ways to of information must be retained as long to Gerald J. Shields, Internal Revenue minimize the burden of the collection of as their contents may become material Service, Room 6129, 1111 Constitution information on respondents, including in the administration of any internal Avenue, NW., Washington, DC 20224. through the use of automated collection revenue law. Generally, tax returns and FOR FURTHER INFORMATION CONTACT: techniques or other forms of information tax return information are confidential, Requests for additional information or technology; and (e) estimates of capital as required by 26 U.S.C. 6103. copies of the revenue procedure should or start-up costs and costs of operation, Request for Comments: Comments be directed to R. Joseph Durbala, at maintenance, and purchase of services submitted in response to this notice will (202) 622–3634, or at Internal Revenue to provide information.

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Approved: August 24, 2010. sterilants or propellants in metered-dose DEPARTMENT OF THE TREASURY R. Joseph Durbala, inhalers, and floor stocks taxes on IRS Tax Analyst. ODCs. The rules affect persons who Internal Revenue Service [FR Doc. 2010–21751 Filed 8–31–10; 8:45 am] manufacture, import, export, sell, or use [IA–33–92] BILLING CODE 4830–01–P ODCs. Current Actions: There is no change to Proposed Collection: Comment this existing regulation. Request for Regulation Project DEPARTMENT OF THE TREASURY Type of Review: Extension of a currently approved collection. AGENCY: Internal Revenue Service (IRS), Internal Revenue Service Affected Public: Business or other for- Treasury. profit organizations. ACTION: Notice and request for [PS–89–91] Estimated Number of Recordkeepers: comments. 705. Proposed Collection; Comment SUMMARY: The Department of the Estimated Time per Recordkeeper: 12 Request for Regulation Project Treasury, as part of its continuing effort minutes. to reduce paperwork and respondent AGENCY: Internal Revenue Service (IRS), Estimated Total Annual burden, invites the general public and Treasury. Recordkeeping Burden Hours: 141. other Federal agencies to take this ACTION: Estimated Number of Respondents: Notice and request for opportunity to comment on proposed comments. 600. Estimated Time per Respondent: 6 and/or continuing information SUMMARY: The Department of the minutes. collections, as required by the Treasury, as part of its continuing effort Estimated Total Annual Reporting Paperwork Reduction Act of 1995, to reduce paperwork and respondent Burden Hours: 60. Public Law 104–13 (44 U.S.C. burden, invites the general public and The following paragraph applies to all 3506(c)(2)(A)). Currently, the IRS is other Federal agencies to take this of the collections of information covered soliciting comments concerning an opportunity to comment on proposed by this notice: existing final regulation, IA–33–92 (TD and/or continuing information An agency may not conduct or 8507), Information Reporting for collections, as required by the sponsor, and a person is not required to Reimbursements of Interest on Qualified Paperwork Reduction Act of 1995, respond to, a collection of information Mortgages (§ 1.6050H–2). Public Law 104–13 (44 U.S.C. unless the collection of information DATES: Written comments should be 3506(c)(2)(A)). Currently, the IRS is displays a valid OMB control number. received on or before November 1, 2010 soliciting comments concerning an Books or records relating to a to be assured of consideration. existing proposed regulations, PS–89–91 collection of information must be ADDRESSES: Direct all written comments (TD 8622), Exports of Chemicals That retained as long as their contents may to Gerald J. Shields, Internal Revenue Deplete the Ozone Layer; Special Rules become material in the administration Service, Room 6129, 1111 Constitution for Certain Medical Uses of Chemicals of any internal revenue law. Generally, Avenue, NW., Washington, DC 20224. That Deplete the Ozone Layer (Sec. Sec. tax returns and tax return information FOR FURTHER INFORMATION CONTACT: 52.4682–2(b), 52.4682–2(d), 52.4682– are confidential, as required by 26 Requests for additional information or 5(d), and 52.4682–5(f). U.S.C. 6103. copies of the regulation should be DATES: Written comments should be Request for Comments: Comments directed to R. Joseph Durbala, at (202) received on or before November 1, 2010 submitted in response to this notice will 622–3634, or at Internal Revenue to be assured of consideration. be summarized and/or included in the Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, ADDRESSES: Direct all written comments request for OMB approval. All to Gerald J. Shields, Internal Revenue comments will become a matter of or through the Internet, at Service, room 6129, 1111 Constitution public record. Comments are invited on: [email protected]. Avenue, NW., Washington, DC 20224. (a) Whether the collection of SUPPLEMENTARY INFORMATION: information is necessary for the proper FOR FURTHER INFORMATION CONTACT: Title: Information Reporting for performance of the functions of the Requests for additional information or Reimbursements of Interest on Qualified agency, including whether the copies of the regulations should be Mortgages. information shall have practical utility; directed to R. Joseph Durbala at Internal OMB Number: 1545–1339. (b) the accuracy of the agency’s estimate Regulation Project Number: IA–33– Revenue Service, room 6129, 1111 of the burden of the collection of 92. Constitution Avenue, NW., Washington, information; (c) ways to enhance the Abstract: Section 6050H of the DC 20224, or at (202) 622–3634, or quality, utility, and clarity of the Internal Revenue Code relates to the through the Internet at information to be collected; (d) ways to information reporting requirements for [email protected]. minimize the burden of the collection of reimbursements of interest paid in SUPPLEMENTARY INFORMATION: information on respondents, including connection with a qualified mortgage. Title: Exports of Chemicals That through the use of automated collection This information is required by the Deplete the Ozone Layer; Special Rules techniques or other forms of information Internal Revenue Service to encourage for Certain Medical Uses of Chemicals technology; and (e) estimates of capital compliance with the tax laws relating to That Deplete the Ozone Layer. or start-up costs and costs of operation, the deductibility of payments of OMB Number: 1545–1361. maintenance, and purchase of services mortgage interest. The information is Regulation Project Number: PS–89– to provide information. used to determine whether mortgage 91. interest reimbursements have been Approved: August 24, 2010. Abstract: This regulation provides correctly reported on the tax return of reporting and recordkeeping rules R. Joseph Durbala, the taxpayer who receives the relating to taxes imposed on exports of IRS Tax Analyst. reimbursement. ozone-depleting chemicals (ODCs), [FR Doc. 2010–21762 Filed 8–31–10; 8:45 am] Current Actions: There is no change to taxes imposed on ODCs used as medical BILLING CODE 4830–01–P this existing regulation.

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Type of Review: Extension of a to reduce paperwork and respondent tax return information are confidential, currently approved collection. burden, invites the general public and as required by 26 U.S.C. 6103. Affected Public: Business or other for- other Federal agencies to take this Request for Comments: Comments profit organizations. opportunity to comment on proposed submitted in response to this notice will The burden for the collection of and/or continuing information be summarized and/or included in the information is reflected in the burden of collections, as required by the request for OMB approval. All Form 1098, Mortgage Interest Statement. Paperwork Reduction Act of 1995, comments will become a matter of The following paragraph applies to all Public Law 104–13 (44 U.S.C. public record. Comments are invited on: of the collections of information covered 3506(c)(2)(A)). Currently, the IRS is (a) Whether the collection of by this notice. soliciting comments concerning an information is necessary for the proper An agency may not conduct or existing final regulation, REG–251520– performance of the functions of the sponsor, and a person is not required to 96 (TD 8785), Classification of Certain agency, including whether the respond to, a collection of information Transactions Involving Computer information shall have practical utility; unless the collection of information Programs (§ 1.861–18). (b) the accuracy of the agency’s estimate displays a valid OMB control number. DATES: Written comments should be of the burden of the collection of Books or records relating to a collection received on or before November 1, 2010 information; (c) ways to enhance the of information must be retained as long to be assured of consideration. quality, utility, and clarity of the as their contents may become material information to be collected; (d) ways to ADDRESSES: Direct all written comments minimize the burden of the collection of in the administration of any internal to Gerald J. Shields, Internal Revenue information on respondents, including revenue law. Generally, tax returns and Service, Room 6129, 1111 Constitution through the use of automated collection tax return information are confidential, Avenue, NW., Washington, DC 20224. as required by 26 U.S.C. 6103. techniques or other forms of information Request for Comments: Comments FOR FURTHER INFORMATION CONTACT: technology; and (e) estimates of capital submitted in response to this notice will Requests for additional information or or start-up costs and costs of operation, be summarized and/or included in the copies of the information collection maintenance, and purchase of services request for OMB approval. All should be directed to R. Joseph Durbala, to provide information. comments will become a matter of at (202) 622–3634, or at Internal Revenue Service, room 6129, 1111 Approved: August 24, 2010. public record. Comments are invited on: R. Joseph Durbala, (a) Whether the collection of Constitution Avenue, NW., Washington, IRS Tax Analyst. information is necessary for the proper DC 20224, or through the Internet, at performance of the functions of the [email protected]. [FR Doc. 2010–21763 Filed 8–31–10; 8:45 am] agency, including whether the SUPPLEMENTARY INFORMATION: BILLING CODE 4830–01–P information shall have practical utility; Title: Classification of Certain (b) the accuracy of the agency’s estimate Transactions Involving Computer DEPARTMENT OF THE TREASURY of the burden of the collection of Programs. information; (c) ways to enhance the OMB Number: 1545–1594. Internal Revenue Service quality, utility, and clarity of the Regulation Project Number: REG– information to be collected; (d) ways to 251520–96. Proposed Collection; Comment minimize the burden of the collection of Abstract: Section 1.861–18 of this Request for Form 8851 information on respondents, including regulation provides rules for classifying AGENCY: through the use of automated collection transactions involving the transfer of Internal Revenue Service (IRS), techniques or other forms of information computer programs. This regulation Treasury. technology; and (e) estimates of capital grants the taxpayer consent to change its ACTION: Notice and request for or start-up costs and costs of operation, method of accounting for such comments. maintenance, and purchase of services transactions by filing Form 3115 with its SUMMARY: The Department of the to provide information. original return for the year of change. Treasury, as part of its continuing effort Current Actions: There is no change to Approved: August 24, 2010. to reduce paperwork and respondent this existing regulation. R. Joseph Durbala, burden, invites the general public and Type of Review: Extension of a IRS Tax Analyst. other Federal agencies to take this currently approved collection. [FR Doc. 2010–21761 Filed 8–31–10; 8:45 am] opportunity to comment on proposed Affected Public: Business or other for- BILLING CODE 4830–01–P and/or continuing information profit organizations. collections, as required by the The burden for the collection of Paperwork Reduction Act of 1995, DEPARTMENT OF THE TREASURY information in this regulation is Public Law 104–13 (44 U.S.C. reflected in the burden of Form 3115. 3506(c)(2)(A)). Currently, the IRS is Internal Revenue Service The following paragraph applies to all soliciting comments concerning Form of the collections of information covered 8851, Summary of Archer MSAs. [REG–251520–96] by this notice: An agency may not conduct or DATES: Written comments should be Proposed Collection; Comment received on or before November 1, 2010 Request for Regulation Project sponsor, and a person is not required to respond to, a collection of information to be assured of consideration. AGENCY: Internal Revenue Service (IRS), unless the collection of information ADDRESSES: Direct all written comments Treasury. displays a valid OMB control number. to Gerald J. Shields, Internal Revenue Service, room 6129, 1111 Constitution ACTION: Notice and request for Books or records relating to a collection Avenue NW., Washington, DC 20224. comments. of information must be retained as long as their contents may become material FOR FURTHER INFORMATION CONTACT: SUMMARY: The Department of the in the administration of any internal Requests for additional information or Treasury, as part of its continuing effort revenue law. Generally, tax returns and copies of the form and instructions

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should be directed to R. Joseph Durbala, techniques or other forms of information Type of Review: Extension of a at (202) 622–3634, or at Internal technology; and (e) estimates of capital currently approved collection. Revenue Service, room 6129, 1111 or start-up costs and costs of operation, Affected Public: Business or other for- Constitution Avenue NW., Washington, maintenance, and purchase of services profit organizations, not-for-profit DC 20224, or through the Internet, at to provide information. institutions, and farms. [email protected]. Approved: August 24, 2010. Estimated Number of Respondents: 25. SUPPLEMENTARY INFORMATION: R. Joseph Durbala, Estimated Annual Average Time per Title: Summary of Archer MSAs. IRS Tax Analyst. Respondent: 100 hours. OMB Number: 1545–1743. [FR Doc. 2010–21765 Filed 8–31–10; 8:45 am] Form Number: 8851. Estimated Total Annual Hours: 2,500. BILLING CODE 4830–01–P The following paragraph applies to all Abstract: Internal Revenue Code of the collections of information covered section 220(j)(4) requires trustees, who by this notice: establish medical savings accounts, to DEPARTMENT OF THE TREASURY An agency may not conduct or report the following: (a) Number of sponsor, and a person is not required to medical savings accounts established Internal Revenue Service respond to, a collection of information before July 1 of the taxable year unless the collection of information (beginning January 1, 2001), (b) name Proposed Collection; Comment displays a valid OMB control number. and taxpayer identification number of Request for Revenue Procedure 2008– Books or records relating to a collection each account holder and, (c) number of 67 of information must be retained as long accounts which are accounts of AGENCY: Internal Revenue Service (IRS), as their contents may become material previously uninsured individuals. Form Treasury. in the administration of any internal 8851 is used for this purpose. ACTION: Notice and request for revenue law. Generally, tax returns and Current Actions: There are no changes comments. tax return information are confidential, being made to the form at this time. as required by 26 U.S.C. 6103. Type of Review: Extension of a SUMMARY: The Department of the Request for Comments: Comments currently approved collection. Treasury, as part of its continuing effort submitted in response to this notice will Affected Public: Business or other for- to reduce paperwork and respondent be summarized and/or included in the profit organizations. burden, invites the general public and request for OMB approval. All Estimated Number of Respondents: other Federal agencies to take this comments will become a matter of 200,000. opportunity to comment on proposed public record. Comments are invited on: Estimated Time per Respondent: and/or continuing information (a) Whether the collection of 7 hours, 42 minutes. collections, as required by the information is necessary for the proper Estimated Total Annual Burden Paperwork Reduction Act of 1995, performance of the functions of the Hours: 1,540,000. Public Law 104–13 (44 U.S.C. The following paragraph applies to all 3506(c)(2)(A)). Currently, the IRS is agency, including whether the of the collections of information covered soliciting comments concerning information shall have practical utility; by this notice: Revenue Procedure 2008–67, Extension (b) the accuracy of the agency’s estimate An agency may not conduct or of the Amortization Period. of the burden of the collection of information; (c) ways to enhance the sponsor, and a person is not required to DATES: Written comments should be respond to, a collection of information received on or before November 1, 2010 quality, utility, and clarity of the unless the collection of information to be assured of consideration. information to be collected; (d) ways to minimize the burden of the collection of displays a valid OMB control number. ADDRESSES: Direct all written comments information on respondents, including Books or records relating to a collection to Gerald J. Shields, Internal Revenue through the use of automated collection of information must be retained as long Service, room 6129, 1111 Constitution techniques or other forms of information as their contents may become material Avenue NW., Washington, DC 20224. technology; and (e) estimates of capital in the administration of any internal FOR FURTHER INFORMATION CONTACT: or start-up costs and costs of operation, revenue law. Generally, tax returns and Requests for additional information or tax return information are confidential, maintenance, and purchase of services copies of the revenue procedure should to provide information. as required by 26 U.S.C. 6103. be directed to R. Joseph Durbala at Request for Comments: Comments Internal Revenue Service, room 6129, Approved: August 24, 2010. submitted in response to this notice will 1111 Constitution Avenue NW., R. Joseph Durbala, be summarized and/or included in the Washington, DC 20224, or at (202) 622– IRS Tax Analyst. request for OMB approval. All 3634, or through the Internet at [FR Doc. 2010–21766 Filed 8–31–10; 8:45 am] comments will become a matter of [email protected]. BILLING CODE 4830–01–P public record. Comments are invited on: SUPPLEMENTARY INFORMATION: (a) Whether the collection of Title: Extension of the Amortization information is necessary for the proper Period. DEPARTMENT OF THE TREASURY performance of the functions of the OMB Number: 1545–1890. agency, including whether the Revenue Procedure Number: Revenue Internal Revenue Service information shall have practical utility; Procedure 2004–44. (b) the accuracy of the agency’s estimate Abstract: Revenue Procedure 2004–44 Proposed Collection; Comment of the burden of the collection of describes the process for obtaining an Request for Revenue Procedure 2004– information; (c) ways to enhance the extension of the amortization period for 47 quality, utility, and clarity of the the minimum funding standards set AGENCY: Internal Revenue Service (IRS), information to be collected; (d) ways to forth in section 412(e) of the Code. Treasury. minimize the burden of the collection of Current Actions: There are no changes ACTION: Notice and request for information on respondents, including being made to the revenue procedure at comments. through the use of automated collection this time.

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SUMMARY: The Department of the OMB Number: 1545–1898. in the administration of any internal Treasury, as part of its continuing effort Revenue Procedure Number: Revenue revenue law. Generally, tax returns and to reduce paperwork and respondent Procedure 2004–47. tax return information are confidential, burden, invites the general public and Abstract: Revenue Procedure 2004–47 as required by 26 U.S.C. 6103. other Federal agencies to take this provides alternative relief for taxpayers Request for Comments: Comments opportunity to comment on proposed who failed to make a reverse QTIP submitted in response to this notice will and/or continuing information election on an estate tax return. Instead be summarized and/or included in the collections, as required by the of requesting a private letter ruling and request for OMB approval. All Paperwork Reduction Act of 1995, paying the accompanying user fee the comments will become a matter of Public Law 104–13 (44 U.S.C. taxpayer may file certain documents public record. Comments are invited on: 3506(c)(2)(A)). Currently, the IRS is with the Cincinnati Service Center (a) Whether the collection of soliciting comments concerning directly to request relief. information is necessary for the proper Revenue Procedure 2004–47, Relief Current Actions: There are no changes performance of the functions of the From Ruling Process For Making Late being made to the revenue procedure at agency, including whether the Reverse QTIP Election. this time. information shall have practical utility; DATES: Written comments should be Type of Review: Extension of a (b) the accuracy of the agency’s estimate received on or before November 1, 2010 currently approved collection. of the burden of the collection of to be assured of consideration. Affected Public: Individuals or information; (c) ways to enhance the households. ADDRESSES: Direct all written comments quality, utility, and clarity of the Estimated Number of Respondents: 6. to Gerald J. Shields, Internal Revenue information to be collected; (d) ways to Estimated Annual Average Time per Service, Room 6129, 1111 Constitution minimize the burden of the collection of Respondent: 9 hours. Avenue, NW., Washington, DC 20224. information on respondents, including Estimated Total Annual Hours: 54. through the use of automated collection FOR FURTHER INFORMATION CONTACT: The following paragraph applies to all techniques or other forms of information Requests for copies of the revenue of the collections of information covered technology; and (e) estimates of capital procedure should be directed to R. by this notice: or start-up costs and costs of operation, Joseph Durbala at Internal Revenue An agency may not conduct or maintenance, and purchase of services Service, Room 6129, 1111 Constitution sponsor, and a person is not required to to provide information. Avenue, NW., Washington, DC 20224, respond to, a collection of information or at (202) 622–3634, or through the unless the collection of information Approved: August 24, 2010. Internet at [email protected]. displays a valid OMB control number. R. Joseph Durbala, SUPPLEMENTARY INFORMATION: Books or records relating to a collection IRS Tax Analyst. Title: Relief From Ruling Process For of information must be retained as long [FR Doc. 2010–21769 Filed 8–31–10; 8:45 am] Making Late Reverse QTIP Election. as their contents may become material BILLING CODE 4830–01–P

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Part II

Department of Veterans Affairs 38 CFR Part 5 Service-Connected and Other Disability Compensation; Proposed Rule

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DEPARTMENT OF VETERANS of existing VA regulations. The Project 5.251 Current disabilities for which AFFAIRS was created in response to a VA cannot grant service connection. recommendation made in the October Rating Service-Connected Disabilities 38 CFR Part 5 2001 ‘‘VA Claims Processing Task Force: 5.280 General rating principles. RIN 2900–AM07 Report to the Secretary of Veterans 5.281 Multiple 0-percent service- Affairs’’. The Task Force recommended connected disabilities. Service-Connected and Other that the compensation and pension 5.282 Special consideration for Disability Compensation regulations be rewritten and reorganized paired organs and extremities. in order to improve VA’s claims 5.283 Total and permanent total AGENCY: Department of Veterans Affairs. adjudication process. Therefore, the ratings and unemployability. ACTION: Proposed rule. staff assigned to the Project began its 5.284 Total disability ratings for efforts by reviewing, reorganizing, and disability compensation purposes. SUMMARY: The Department of Veterans redrafting the content of the regulations 5.285 Continuance of total disability Affairs (VA) proposes to reorganize and in 38 CFR part 3 governing the ratings. rewrite in plain language its regulations compensation and pension program of Additional Disability Compensation concerning service-connected and other the Veterans Benefits Administration. Based on a Dependent Parent disability compensation. These These regulations are among the most 5.300 Establishing dependency of a revisions are proposed as part of VA’s difficult VA regulations for readers to parent. reorganization of all of its compensation understand and apply. 5.302 General income rules— and pension regulations in a logical, Once rewritten, the proposed parent’s dependency. claimant-focused, and user-friendly regulations will be published in several 5.303 Deductions from income— format. The intended effect of the portions for public review and parent’s dependency. proposed revisions is to assist comment. This is one such portion. It 5.304 Exclusions from income— claimants, beneficiaries, and VA includes proposed rules regarding parent’s dependency. personnel in locating and understanding service-connected and other disability Disability Compensation Effective Dates these regulations. compensation. After review and 5.311 Effective dates—award of DATES: Comments must be received by consideration of public comments, final disability compensation. VA on or before November 1, 2010. versions of these proposed regulations 5.312 Effective dates—increased ADDRESSES: Written comments may be will ultimately be published in a new disability compensation. 5.313 Effective dates— submitted through http:// part 5 in 38 CFR. www.regulations.gov; by mail or hand- discontinuance of a total disability delivery to: Director, Regulations Outline rating based on individual Management (02REG), Department of Overview of New Part 5 Organization unemployability. Veterans Affairs, 810 Vermont Ave., Overview of This Notice of Proposed 5.314 Effective dates— NW., Room 1068, Washington, DC Rulemaking discontinuance of additional 20420; or by fax to (202) 273–9026. Table Comparing Proposed Part 5 Rules with disability compensation based on Comments should indicate that they are Current Part 3 Rules parental dependency. 5.315 Effective dates—additional submitted in response to ‘‘RIN 2900– Content of Proposed Regulations AM07—Service-Connected and Other disability compensation based on Service-Connected and Other Disability Disability Compensation.’’ Copies of decrease in the net worth of a Compensation comments received will be available for dependent parent. 5.240 Disability compensation. public inspection in the Office of Endnote Regarding Amendatory 5.241 Service-connected disability. Regulation Policy and Management, Language 5.242 General principles of service Paperwork Reduction Act Room 1063B, between the hours of connection. 8 a.m. and 4:30 p.m., Monday through Regulatory Flexibility Act 5.243 Establishing service Executive Order 12866 Friday (except holidays). Please call connection. Unfunded Mandates (202) 273–9515 (not a toll-free number) 5.244 Presumption of sound Catalog of Federal Domestic Assistance for an appointment. In addition, during condition. Numbers and Titles the comment period comments may be 5.245 Service connection based on List of Subjects in 38 CFR Part 5 viewed online through the Federal aggravation of preservice injury or Docket Management System (FDMS) at disease. Overview of New Part 5 Organization http://www.regulations.gov. 5.246 Secondary service We plan to organize the new part 5 FOR FURTHER INFORMATION CONTACT: connection—disability that is regulations so that most provisions William F. Russo, Director of proximately caused by service- governing a specific benefit are located Regulations Management (02REG), connected disability. in the same subpart, with general Department of Veterans Affairs, 810 5.247 Secondary service provisions pertaining to all Vermont Avenue, NW., Washington, DC connection—nonservice-connected compensation and pension benefits also 20420, or call (202) 273–9515 (not a toll- disability aggravated by service- grouped together. This organization will free number). connected disability. allow claimants, beneficiaries, and their SUPPLEMENTARY INFORMATION: The 5.248 Service connection for representatives, as well as VA Secretary of Veterans Affairs established cardiovascular disease secondary to adjudicators, to find information the Office of Regulation Policy and service-connected lower extremity relating to a specific benefit more Management to provide centralized amputation. quickly than the organization provided management and coordination of VA’s 5.249 Special service connection in current part 3. rulemaking process. One of the major rules for combat-related injury or The first major subdivision would be functions of this office is to oversee a disease. ‘‘Subpart A—General Provisions.’’ It Regulation Rewrite Project (the Project) 5.250 Service connection for would include information regarding to improve the clarity and consistency posttraumatic stress disorder. the scope of the regulations in new part

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5, delegations of authority, general 44614. The second, concerning special of benefits. This subpart was published definitions, and general policy ratings, was published on October 17, as proposed on May 31, 2006. See 71 FR provisions for this part. This subpart 2008. See 73 FR 62004. This NPRM, 31056. was published as proposed on March which includes regulations relating to ‘‘Subpart L—Payments and 31, 2006. See 71 FR 16464. service-connected and other disability Adjustments to Payments’’ would ‘‘Subpart B—Service Requirements for compensation, is the third of the NPRMs include general rate-setting rules, Veterans’’ would include information making up Subpart E. several adjustment and resumption regarding a veteran’s military service, ‘‘Subpart F—Nonservice-Connected regulations, and election-of-benefit including the minimum service Disability Pensions and Death Pensions’’ rules. Because of its size, proposed requirement, types of service, periods of would include information regarding regulations in subpart L were published war, and service evidence requirements. the three types of nonservice-connected in two separate NPRMs. The first, This subpart was published as proposed pension: Old-Law Pension, Section 306 concerning payments to beneficiaries on January 30, 2004. See 69 FR 4820. Pension, and Improved Pension. This who are eligible for more than one ‘‘Subpart C—Adjudicative Process, subpart would also include those benefit, was published as proposed on General’’ would inform readers about provisions that state how to establish October 2, 2007. See 72 FR 56136. The claims and benefit application filing eligibility and entitlement to Improved second, concerning payments and procedures, VA’s duties, rights and Pension, and the effective dates adjustments to payments, was published responsibilities of claimants and governing each type of pension. This on October 31, 2008. See 73 FR 65212. beneficiaries, general evidence subpart was published as two separate The final subpart, ‘‘Subpart M— requirements, and general effective NPRMs due to its size. The portion Apportionments to Dependents and dates for new awards, as well as concerning Old-Law Pension, Section Payments to Fiduciaries and revision of decisions and protection of 306 Pension, and elections of Improved Incarcerated Beneficiaries,’’ would VA ratings. This subpart was published Pension was published as proposed on include regulations governing in three separate notices of proposed December 27, 2004. See 69 FR 77578. apportionments, benefits for rulemaking (NPRMs) due to its size. The The portion concerning eligibility and incarcerated beneficiaries, and first, concerning the duties of VA and entitlement requirements for Improved guardianship. the rights and responsibilities of Pension was published as proposed on Some of the regulations in this NPRM claimants and beneficiaries, was September 26, 2007. See 72 FR 54776. cross-reference other compensation and published on May 10, 2005. See 70 FR ‘‘Subpart G—Dependency and pension regulations. If those regulations 24680. The second, concerning general Indemnity Compensation, Accrued have been published in this or earlier evidence requirements, effective dates, Benefits, and Special Rules Applicable NPRMs for the Project, we cite the revision of decisions, and protection of Upon Death of a Beneficiary’’ would proposed part 5 section. We also existing ratings, was published as contain regulations governing claims for include, in the relevant portion of the proposed on May 22, 2007. See 72 FR dependency and indemnity Supplementary Information, the Federal 28770. The third, concerning VA benefit compensation (DIC); accrued benefits; Register document citation (including claims, was published on April 14, and various special rules that apply to the Regulation Identifier Number and 2008. See 73 FR 2136. the disposition of VA benefits, or Subject Heading) where a proposed part ‘‘Subpart D—Dependents and proceeds of VA benefits, when a 5 section published in an earlier NPRM Survivors’’ would inform readers how beneficiary dies. This subpart was may be found. However, where a VA determines whether an individual is published as two NPRMs due to its size. regulation proposed in this NPRM a dependent or a survivor for purposes The portion concerning accrued would cross-reference a proposed part 5 of determining eligibility for VA benefits, special rules applicable upon regulation that has not yet been benefits. It would also provide the the death of a beneficiary, and several published, we cite to the current part 3 evidence requirements for these effective date rules, was published as regulation that deals with the same determinations. This subpart was proposed on October 1, 2004. See 69 FR subject matter. The current part 3 published as proposed on September 20, 59072. The portion concerning DIC section we cite may differ from its 2006. See 71 FR 55052. benefits and general provisions relating eventual part 5 counterpart in some ‘‘Subpart E—Claims for Service to proof of death was published on respects, but this method will assist Connection and Disability October 21, 2005. See 70 FR 61326. readers in understanding these Compensation’’ would define service- ‘‘Subpart H—Special and Ancillary proposed regulations where no part 5 connected disability compensation, Benefits for Veterans, Dependents, and counterpart has yet been published. including direct and secondary service Survivors’’ would pertain to special and Because of its large size, proposed connection, and disability ancillary benefits available, including part 5 will be published in a number of compensation paid pursuant to section benefits for children with various birth NPRMs, such as this one. VA will not 1151, title 38, United States Code as if defects. This subpart was published as adopt any portion of part 5 as final until the disability were service connected. proposed on March 9, 2007. See 72 FR all of the NPRMs have been published This subpart would inform readers how 10860. for public comment. VA determines entitlement to service ‘‘Subpart I—Benefits for Certain In connection with this rulemaking, connection and entitlement to disability Filipino Veterans and Survivors’’ would VA will accept comments relating to a compensation. The subpart would also pertain to the various benefits available prior rulemaking issued as a part of the contain those provisions governing to Filipino veterans and their survivors. Project, if the matter being commented presumptions related to service This subpart was published as proposed on relates to both NPRMs. connection, rating principles, and on June 30, 2006. See 71 FR 37790. effective dates, as well as several special ‘‘Subpart J—Burial Benefits’’ would Overview of This Notice of Proposed ratings. This subpart will be published pertain to burial allowances. Rulemaking in three NPRMs due to its size. The first, ‘‘Subpart K—Matters Affecting the This NPRM pertains to service- concerning presumptions related to Receipt of Benefits’’ would contain connected and other disability service connection, was published as provisions regarding bars to benefits, compensation. These regulations would proposed on July 27, 2004. See 69 FR forfeiture of benefits, and renouncement be contained in proposed Subpart E of

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new 38 CFR part 5. Although these Based in whole or in the subject matter of this rulemaking is regulations have been substantially Proposed part 5 sec- part on 38 CFR part accounted for in the table. In some restructured and rewritten for greater tion or paragraph 3 section or para- instances, other portions of the part 3 clarity and ease of use, most of the basic graph (or ‘‘New’’) sections that are addressed in these concepts contained in these proposed 5.282(c)(3) ...... 3.383(c). proposed regulations will appear in regulations are the same as in their 5.282(c)(4) ...... 3.383(d). subparts of part 5 that are being existing counterparts in 38 CFR part 3. 5.283 ...... 3.340. published separately for public However, a few regulations with 5.284 ...... 3.341. comment. For example, a reader might substantive differences are proposed, as 5.285 ...... 3.343(a) and (c). find a reference to paragraph (a) of a are some regulations that do not have 5.300(a)(1) ...... 3.250(a)(1) and (3). part 3 section in the table, but no counterparts in 38 CFR part 3. 5.300(a)(2) ...... New. reference to paragraph (b) of that section 5.300(b) ...... 3.250(a)(2). because paragraph (b) will be addressed 5.300(b)(1) ...... 3.250(b). Table Comparing Proposed Part 5 Rules in a separate NPRM. The table also does With Current Part 3 Rules 5.300(b)(1)(i) ...... 3.250(b)(1). 5.300(b)(1)(ii) ...... 3.250(c). not include provisions from part 3 The following table shows the 5.300(b)(2)(i) ...... 3.250(a)(2). regulations that will not be repeated in relationship between the proposed 5.300(b)(2)(ii) ...... 3.250(b)(2). part 5. Such provisions are discussed regulations contained in this NPRM and 5.300(c) ...... 3.250(b). specifically under the appropriate part 5 the current regulations in part 3: 5.300(d) ...... 3.660(a)(1). heading in this preamble. Readers are 5.300(e) ...... 3.250(d). invited to comment on the proposed Based in whole or in 5.302(a) ...... 3.262(a). part 5 provisions and also on our Proposed part 5 sec- part on 38 CFR part 5.302(b) ...... 3.262(b), 3.262(e)(3). tion or paragraph 3 section or para- proposals to omit those part 3 5.302(c) ...... 3.261(a)(3), provisions from part 5. graph (or ‘‘New’’) 3.250(b)(2). 5.302(d) ...... 3.262(k)(1) and (2). Content of Proposed Regulations 5.240(a) ...... 3.4(a) and (b)(1). 5.302(e) ...... 3.262(k)(2) and (3). 5.240(b) ...... 3.4(b)(2). 5.303(a) ...... 3.262(a)(2). Service-Connected and Other Disability 5.241 introduction ...... New. 5.303(b) ...... 3.261(a)(24), Compensation 5.241(a) and (b) ...... 3.1(k), 3.303(a) first 3.262(i)(1) and Section 5.240 Disability Compensation and second sen- (j)(4). tences. 5.303(c) ...... 3.262(a)(1). The first proposed regulation in this 5.241(c) ...... New. 5.304 introduction ...... New. 5.242(a) ...... 3.303(a). NPRM, based on current § 3.4(a) and (b), 5.304(a) ...... 3.261(a)(7). 5.242(b) ...... 3.304(b)(3). would provide a definition of ‘‘disability 5.304(b)(1) ...... 3.262(h)(1). 5.243(a) ...... New. compensation’’ and a rule concerning 5.304(b)(2) ...... 3.262(h)(2). 5.243(b) ...... 3.303(a) and (d). additional disability compensation 5.304(b)(3) ...... 3.262(h)(3). 5.243(c) and (d) ...... 3.303(b). payable to veterans who have 5.244(a) ...... 3.304(b). 5.304(b)(4) ...... 3.262(h)(4). 5.304(c) ...... 3.261(a)(12). dependents. The material in current 5.244(b) ...... New. § 3.4(a) about the death compensation 5.244(c)(1) ...... 3.304(b)(1), first sen- 5.304(d), except (d)(6) 3.261(a)(20). 5.304(d)(6) ...... New. program will have no counterpart in tence. part 5. VA currently pays death 5.244(c)(2) ...... New. 5.304(e) ...... 3.261(a)(20). 5.244(d)(1) ...... 3.304(b). 5.304(f) ...... 3.261(a)(13). compensation to fewer than 300 5.244(d)(2) ...... New. 5.304(g) ...... 3.261(a)(28), 3.262(t), beneficiaries. Except for one small 5.245(a)(1) ...... 3.306(a). and 3.262(t)(2). group of beneficiaries covered under 5.245(a)(2) ...... New. 5.304(h) ...... 3.262(k)(4). § 3.4(c)(2), death compensation is 5.245(b)(1) ...... New. 5.304(i) ...... 3.261(a)(31). payable only if the veteran died prior to 5.245(b)(2) ...... New. 5.304(j) ...... 3.262(a)(2), last sen- January 1, 1957. VA has not received a 5.245(b)(3) ...... 3.306(b)(1). tence. 5.304(k) ...... 3.261(a)(22). claim for death compensation in over 10 5.245(b)(4) ...... 3.306(b)(2). years, and we do not expect to receive 5.245(c) ...... 3.306(b). 5.304(l) ...... 3.261, 3.262. 5.246 ...... 3.310(a). 5.311 ...... 3.400(b)(2). such claims any more. We intend to 5.247 ...... 3.310(b). 5.312(a) ...... New. revise proposed § 5.0, 71 FR 16464 (Mar. 5.248 ...... 3.310(c). 5.312(b) ...... 3.400(o)(2). 31, 2006), the scope provision for part 5.249(a)(1) ...... 3.102, 3.304(d). 5.313(a) ...... New. 5, to provide direction that any new 5.249(a)(2) ...... New. 5.313(b) ...... 3.501(e)(2). claims for death compensation or 5.249(b) ...... New. 5.313(c) ...... 3.501(f). actions concerning death compensation 5.250(a) ...... 3.304(f). 5.314(a) ...... New. benefits be adjudicated under part 3. 5.250(b) ...... New. 5.314(b) ...... 3.500(h), 3.660(a)(2). The proposed definition of ‘‘disability 5.250(c) ...... 3.304(f)(1). 5.314(c) ...... 3.500(h), 3.500(n)(2), compensation’’ in § 5.240(a) would be 3.660(a)(2). 5.250(d) ...... 3.304(f)(2) and (4). simpler than the rules in current § 3.4(a) 5.250(e) ...... 3.304(f)(3). 5.314(d) ...... 3.500 (g)(2), 5.250(f) ...... 3.304(f)(5). 3.500(h), and (b)(1), because it does not 5.251(a) ...... 3.303(c). 3.660(a)(2). unnecessarily repeat information found 5.251(b)(1) through New. 5.315 ...... 3.660(d). elsewhere. For example, current § 3.4(a) (3). states that ‘‘[i]f the veteran was 5.251(c) ...... New. Readers who use this table to compare discharged or released from service, the 5.251(d) ...... New. the proposed provisions with the discharge or release must have been 5.251(e) ...... 3.380. existing regulatory provisions, and who under conditions other than 5.280 ...... 3.321(a), (b)(1), (3), observe a substantive difference dishonorable.’’ Similarly, current and (c). 5.281 ...... 3.324. between them, should consult the text § 3.1(d) defines ‘‘[v]eteran’’ to mean ‘‘a 5.282(a) ...... 3.383(a). that appears later in this document for person who served in the active 5.282(b) ...... 3.383(a)(1) through an explanation of significant changes in military, naval, or air service and who (5). each regulation. Not every paragraph of was discharged or released under 5.282(c)(1) and (2) .... 3.383(b)(1). every current part 3 section regarding conditions other than dishonorable.’’

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The proposed part 5 definition of based on a single or a combined these court holdings but would not ‘‘veteran’’ in § 5.1 includes the same disability rating of 30 percent or more.’’ produce a different result for claims information as current § 3.1(d). See 71 In § 5.240(b) we would also clarify the adjudicated under part 5. FR at 16474. Therefore, we propose not relationship between the additional Proposed paragraph (a) would to repeat the information in § 5.240. disability compensation that section essentially repeat the content of current Comparing current §§ 3.4(b)(1) and 1115 authorizes and the rates of § 3.1(k) and the first two sentences of 3.1(k) reveals another example of disability compensation under 38 U.S.C. current § 3.303(a). We would clarify that unnecessary repetition. Section 3.4(b)(1) 1114. Section 1114 provides the rates a service-connected disability must have states the rule for basic entitlement to and amounts of service-connected been ‘‘caused by an injury or disease disability compensation in terms of a disability compensation. The additional incurred, or presumed to have been service-connected disability, while disability compensation that section incurred, in the line of duty during current § 3.1(k) defines ‘‘service- 1115 authorizes is above and beyond active military service.’’ connected’’ with respect to disability as any rate that section 1114 authorizes. Proposed paragraph (b) would meaning that ‘‘such disability was The second sentence of § 5.240(b) would incorporate the principle of aggravation, incurred or aggravated * * * in line of state that ‘‘[t]he additional disability which is also included in § 3.1(k). We duty in the active military, naval, or air compensation authorized by 38 U.S.C. would state the principle in a separate service.’’ Section 5.241 in this NPRM 1115 is payable in addition to monthly paragraph in order to clearly indicate would define ‘‘service-connected disability compensation payable under that it is separate from evidence of disability’’ based on current § 3.1(k). We 38 U.S.C. 1114.’’ incurrence, which would be governed by § 5.241(a). propose to state the definition of Section 5.241 Service-Connected service-connected disability once, in In proposed paragraph (c), we would Disability ‘‘ proposed § 5.241 below. include in the definition of service- Proposed § 5.241, which would connected disability’’ a disability that is In addition, proposed § 5.240(a) explain when a disability is considered secondary to a service-connected would define disability compensation to to be ‘‘service connected’’, would be disability. This should help convey that include compensation for a disability based on current § 3.1(k) and the first secondary service connection is a type ‘‘ ’’ that is treated as if it were service two sentences of current § 3.303(a). The of service connection and that connected under 38 U.S.C. 1151, portion of the definition in current regulatory references to a ‘‘service- ‘‘ Benefits for persons disabled by § 3.1(k) that relates to service-connected connected disability’’ include a treatment or vocational rehabilitation’’. death was addressed in proposed secondarily service-connected Thus, ‘‘disability compensation’’ in part Subpart G of part 5, in a separate NPRM. disability. This principle is not 5 would be distinguishable from See 70 FR at 61342. contained in § 3.1(k) specifically but is ‘‘service-connected disability In the introductory sentence, we generally established by current compensation’’. In most cases, the would clarify that a service-connected § 3.310(a). Therefore, this would not be procedures governing the payment of disability must be a ‘‘current disability’’. a substantive change from current disability compensation are the same, See Disabled Am. Veterans v. Sec’y of practice. regardless of whether compensation is Veterans Affairs, 419 F.3d 1317, 1318 authorized by 38 U.S.C. 1110, 1131, or (Fed. Cir. 2005) (DAV) (‘‘[g]enerally, a Section 5.242 General Principles of 1151. However, where it is important to veteran who claims entitlement to Service Connection distinguish between them, our part 5 disability compensation benefits must Proposed § 5.242 would be the part 5 regulations will do so either by show * * * a current disability’’); see counterpart to two general principles specifically discussing section 1151 or also Hogan v. Peake, 544 F.3d 1295, VA applies in adjudicating claims for by placing the descriptor ‘‘service- 1297 (Fed. Cir. 2008) (‘‘[t]o establish a service connection. The first, based on connected’’ before the words ‘‘disability right to benefits, a veteran must show 38 U.S.C. 1154(a), would pertain to VA’s compensation.’’ See, e.g., proposed that a current disability is ‘service consideration in service connection § 5.20(b), 69 FR 4820 (Jan. 30, 2004). A connected’ ’’ (citing DAV)). Although claims of the places, types, and more complete explanation of what neither § 3.1(k) nor § 3.303(a) refers to a circumstances of the veteran’s service. constitutes a ‘‘service-connected ‘‘current disability’’, the U.S. Court of The second, based on 10 U.S.C. 1219, disability’’ would be set out in the next Appeals for the Federal Circuit (Federal would pertain to VA’s consideration of proposed regulation in this NPRM, Circuit) has held that VA’s certain statements a veteran might have § 5.241. Therefore, proposed § 5.240(a) interpretation of 38 U.S.C. 1110 and signed in service. would cross-reference that rule. 1131, which govern entitlement to The third sentence of current Current § 3.4(b)(2) provides that service connection, as requiring a § 3.303(a) states that ‘‘[e]ach disabling additional compensation may be paid to current disability to establish service condition shown by a veteran’s service a veteran with a dependent if the connection is reasonable. See Gilpin v. records, or for which he seeks a service veteran has ‘‘disability evaluated as 30 West, 155 F.3d 1353, 1356 (Fed. Cir. connection must be considered on the per centum or more disabling.’’ VA has 1998) (holding that VA’s interpretation basis of the places, types and consistently interpreted the authorizing of 38 U.S.C. 1110 as requiring a current circumstances of his service as shown statute, 38 U.S.C. 1115, as authorizing disability is reasonable because ‘‘[m]any by service records, the official history of additional disability compensation for a of the statutes governing the provision each organization in which he served, dependent whether the veteran has at of benefits for veterans only allow such his medical records and all pertinent least a 30-percent rating for a single benefits be given for disability existing medical and lay evidence.’’ Paragraph disability or for combined disabilities. on or after the date of application’’) (a) of proposed § 5.242 would be Proposed § 5.240(b) would make this (citing 38 U.S.C. 5110(a), 5111(a), 1710, derived from this sentence, which is interpretation explicit by stating that and 1712); Degmetich v. Brown, 104 derived almost verbatim from 38 U.S.C. ‘‘[a]dditional disability compensation is F.3d 1328, 1332 (Fed. Cir. 1997) (same 1154(a). Section 1154(a) requires VA to payable to a veteran who has a spouse, as to VA’s interpretation of 38 U.S.C. give ‘‘due consideration * * * to the child, or dependent parent if the veteran 1131). Thus, the inclusion of a ‘‘current places, types, and circumstances of such is entitled to disability compensation disability’’ requirement would codify veteran’s service as shown by such

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veteran’s service record, the official shown in the service record or in the The current rule is unclear whether a history of each organization in which evidence of record subsequent to veteran’s statement ‘‘against his or her such veteran served, such veteran’s service. Second, the phrase could be own interest’’ means a statement that medical records, and all pertinent misconstrued to mean that, absent any was against the veteran’s interest at the medical and lay evidence’’. We do not claim by a veteran, VA has a duty to time the veteran signed it, or is against interpret this statute as adding to the review service records to determine the veteran’s current interest. Specifying evidence-gathering duties set forth in 38 entitlement to service connection for that VA will exclude a statement against U.S.C. 5103A, which requires VA to ‘‘[e]ach disabling condition’’ which the signer’s interest at the time signed make ‘‘reasonable efforts to obtain might possibly exist. Congress did not ensures that the rule protects veterans relevant records * * * that the claimant intend to impose such a duty on VA against VA decisions based on possibly adequately identifies’’. 38 U.S.C. when it enacted Public Law 77–361. unreliable evidence. 5103A(b)(1). Moreover, such a duty would impose an Current § 3.304(b)(3) bars VA The requirement that a claimant unreasonable burden on VA’s limited consideration of a statement signed in identify records with potentially resources by requiring VA to comb service if against a veteran’s interest, relevant information is repeated in through veterans’ service records for which therefore permits VA to consider section 5103A(c)(3) and is consistent potential claims. the statement if in the veteran’s interest. with the claimant’s duty to actively Proposed § 5.242(b) would restate The proposed rule would likewise participate in the claims process. It current § 3.304(b)(3), which provides permit VA to consider a statement the would be far too burdensome to require that ‘‘[s]igned statements of veterans veteran signed while in service if the VA to seek out, obtain, and review every relating to the origin, or incurrence of statement was made in the veteran’s official record regarding the unit(s) and any disease or injury made in service if interest. The current rule bars VA circumstance(s) of every veteran’s against his or her own interest is of no consideration of a signed statement service, and, more importantly, doing so force and effect if other data do not against the veteran’s interest to prove a in the vast majority of cases would be establish the fact’’ and that ‘‘[o]ther fact ‘‘if other data do not establish the unproductive. Hence, proposed evidence will be considered as though fact.’’ This logically permits VA to § 5.242(a) would require VA to duly such statement were not of record.’’ This consider a statement made against a consider only ‘‘evidence of record’’ rule is derived from 10 U.S.C. 1219, veteran’s interest if other data establish concerning matters such as the places, which states that ‘‘[a] member of an the fact. The proposed rule would types, and circumstances of the armed force may not be required to sign remove this conditional permission for veteran’s service and the history of a statement relating to the origin, VA to consider a signed statement made organizations in which the veteran incurrence, or aggravation of a disease against the veteran’s interest, which served, which would be consistent with or injury that he has’’ and that ‘‘[a]ny would make the rule simpler and easier current § 3.303(a) requiring VA to base to administer. VA could still consider such statement against his interests, its determinations as to service the other data (that is, evidence) that signed by a member, is invalid.’’ connection on the entire ‘‘evidence of establish the fact, rather than the record’’. The language of current § 3.304(b)(3) statement made against the veteran’s The regulatory and statutory history does not limit its application to cases interest. of the third sentence of § 3.303(a) began involving the presumption of sound in 1941, Public Law 77–361, 55 Stat. condition. Despite the fact that it falls Section 5.243 Establishing Service 847. The statute required ‘‘that in each under the ‘‘Presumption of soundness’’ Connection case where a veteran is seeking service subheading, we believe VA intended Proposed § 5.243 would state the connection for any disability[,] due this provision to mirror section 1219 general requirements for establishing consideration shall be given to the and be applied broadly. Section 1219 service connection. It would be based places, types, and circumstances of his precludes a service department from on concepts in statutes, such as 38 service as shown by his service record, using a statement of the sort the statute U.S.C. 101(16), 1110, and 1131, and the official history of each organization describes for any purpose. The statute current § 3.303, as interpreted and in which he served, his medical records, does not describe a context in which applied by the U.S. Court of Appeals for and all pertinent medical and lay such a statement by the servicemember Veterans Claims (CAVC) and the Federal evidence.’’ VA implemented this would be invalid. We propose, by Circuit. It would not state the language in 38 CFR 2.1077(b) (Cum. locating the rule in the section on requirements for establishing secondary Supp. 1938–1943), using substantially general principles of service connection, service connection, which are addressed the same language. 7 FR 1981 (Mar. 13, to make clear that VA also applies the in proposed §§ 5.246 and 5.247. 1942). VA regulations contained this rule broadly. The remaining provisions Proposed § 5.243(a) would identify same language until 1961, when VA of current § 3.304(b) are covered under the three basic requirements for revised it to read as it does in current proposed § 5.244, ‘‘Presumption of establishing service connection of a § 3.303(a). The regulatory history does sound condition.’’ disability: Current disability, incurrence not reveal why VA revised this Proposed § 5.242(b) would resolve an or aggravation of an injury or disease in language. ambiguity in the current rule and state service, and a causal link between the We propose not to repeat in § 5.242(a) the full scope of the statute while two. These principles, long embedded the phrase ‘‘[e]ach disabling condition limiting its application to a statement in veterans’ disability law, have been shown by a veteran’s service records’’ that was against a veteran’s interest at formally in use as a specific three-part for two reasons. First, the phrase creates the time he or she signed the statement. test since 1995 when the CAVC a distinction between disabilities shown The current rule pertains only to a articulated them in its decision in in a veteran’s service record and those signed statement about ‘‘origin’’ or Caluza v. Brown, 7 Vet. App. 498, 505 not shown. This distinction is irrelevant ‘‘incurrence’’ of an injury or disease. The (1995). See Shedden v. Principi, 381 because VA considers all service proposed rule would also pertain to a F.3d 1163, 1166–67 (Fed. Cir. 2004) connection claims ‘‘on the basis of the signed statement about ‘‘aggravation of (affirming that the CAVC ‘‘has correctly places, types and circumstances’’ an injury or disease,’’ which would be noted that in order to establish service regardless of whether a disability is consistent with the statute. connection or service-connected

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aggravation for a present disability the note would give examples of the types applies to questions of service veteran must show: (1) The existence of of chronic diseases and chronic connection under [§ ] 3.303(d).’’ Id. a present disability; (2) in-service residuals of injury subject to temporary Because the phrase ‘‘all the evidence, incurrence or aggravation of a disease or remission. including that pertinent to service’’ in injury; and (3) a causal relationship Proposed § 5.243(b) would be based current § 3.303(d) provides no unique between the present disability and the on the second sentence of current rule, we propose not to repeat it in disease or injury incurred or aggravated § 3.303(a) and on part of current § 5.243(b). during service’’ (citing Caluza)). Stating § 3.303(d). The second sentence of Proposed § 5.243(c)(1) would restate these principles, which reflect current § 3.303(a) provides that a veteran can the first sentence of current § 3.303(b). law, would provide clear guidance as to establish that an injury or disease This sentence states that VA will grant the requirements for establishing service resulting in disability was incurred or service connection for a current connection. aggravated in active military service ‘‘by disability if competent evidence Proposed § 5.243(a) would not in any affirmatively showing inception or establishes that the veteran had a way restore the well-grounded-claim aggravation during service or through chronic disease in service, or within an requirement eliminated by section 4 of the application of statutory applicable presumptive period, and that the Veterans Claims Assistance Act of presumptions.’’ Section 5.243(b) would the current disability is the result of the 2000, Public Law 106–475, 114 Stat. restate the substance of the second same chronic disease, unless the 2098. That requirement, based on 38 sentence of § 3.303(a) as it relates to the veteran’s current disability is clearly U.S.C. 5107 as it existed prior to passage second element of proof of service due to an intercurrent cause. VA’s long- of Public Law 106–475, set a well- connection listed in proposed § 5.243(a). standing practice is to apply the grounded-claim threshold that had to be We would use the term ‘‘evidence’’ principles of chronicity and continuity met before VA was obligated to provide rather than ‘‘affirmatively showing,’’ to residuals of injury. This practice assistance to VA claimants in because a fact can only be affirmatively provides a fair and efficient means to developing evidence to support their shown with evidence. determine service connection in certain claims. See generally, Gilbert v. Current § 3.303(d) states that cases, and it is logical to apply these Derwinski, 1 Vet. App. 49, 55 (1991). ‘‘[s]ervice connection may be granted for principles to injuries as well as to The three Caluza requirements are any disease diagnosed after discharge, diseases. Therefore, proposed foundational principles that stand apart when all the evidence, including that § 5.243(c)(1) would also apply to an from the now-eliminated well- pertinent to service, establishes that the injury incurred or aggravated in service grounded-claim requirement. The courts disease was incurred in service.’’ We where the current disability is due to still recognize the three-part test as a have rewritten this in proposed ‘‘the chronic residuals of the same means of establishing service § 5.243(b) to state that ‘‘[p]roof of injury.’’ connection. See Shedden, 381 F.3d at incurrence of a disease during active The third and second sentences of 1166–67 (noting that there are three military service does not require current § 3.303(b) would be restated as elements that must be satisfied in order diagnosis during service if the evidence a Note to § 5.243(c)(2) with minor, for an appellant to establish service otherwise establishes that the disease nonsubstantive changes. connection: A present disability; in- was incurred in service.’’ The rewritten Proposed § 5.243(d), based on service incurrence or aggravation of a language maintains the current portions of current § 3.303(b), would disease or injury; and a causal regulation’s caution to VA employees provide rules for establishing service relationship between the two). The that an initial diagnosis after discharge connection based on the continuity of proposed regulation would simply from service does not preclude service signs or symptoms. That is, if the incorporate current law and practice in connection. This would not be a chronicity provisions do not apply, VA a straightforward manner by using substantive change. will grant service connection if there is currently accepted and understood The phrase ‘‘all the evidence, competent evidence of signs or terminology. including that pertinent to service’’ in symptoms of an injury or disease during Proposed paragraph (a) would include current § 3.303(d) is redundant of the service or the presumptive period, of two notes. Note 1 would make clear that existing language in § 3.303(a), which continuing signs or symptoms, and of a service records alone may be sufficient provides that ‘‘[d]eterminations as to relationship between the signs or to meet all of the requirements listed in service connection will be based on symptoms demonstrated over the years § 5.243(a) when those records clearly review of the entire evidence of record’’ and the veteran’s current disability. See show that an injury or disease incurred (emphasis added). It is a statutory Savage v. Gober, 10 Vet. App. 488, 498 or aggravated in service produced requirement and fundamental to VA (1997). disability that is permanent by its very adjudications (except claims of clear Current part 3 refers only to nature. For example, VA would never and unmistakable error) that VA ‘‘symptoms’’. We would add ‘‘signs’’ require a veteran who had suffered an considers ‘‘all information and lay and because the contemporary view of the amputation of a limb during service to medical evidence of record in a case’’. medical profession distinguishes produce current evidence that the 38 U.S.C. 5107(b). Proposed § 5.242(a) between signs and symptoms. A sign is amputation currently exists or that it is explicitly applies this principle to ‘‘any objective evidence of a disease, i.e., causally related to the in-service service connection claims. In Cosman v. such evidence as is perceptible to the amputation. Principi, 3 Vet. App. 503, 506 (1992), examining physician, as opposed to the Note 2 would make clear that VA the CAVC concluded that the ‘‘all the subjective sensations (symptoms) of the recognizes that certain chronic diseases evidence’’ language in § 3.303(d) does patient.’’ Dorland’s Illustrated Med. and chronic residuals of injury can have not mean that only positive evidence Dictionary 1733 (31st ed. 2007). A temporary remissions. It would provide must be of record to support a finding symptom is ‘‘any subjective evidence of that VA will not deny service that a disease was incurred in service disease or of a patient’s condition, i.e., connection for lack of a current when there is a post-service diagnosis, such evidence as perceived by the disability solely because a chronic but rather means only that ‘‘all the patient.’’ Id. at 1843. Subjective and disease, or a chronic residual of an evidence be considered and that the objective evidence are equally relevant injury, enters temporary remission. The equipoise rule of 38 U.S.C. § 5107(b) to establishing continuity of

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symptomatology, and the inclusion of been in sound condition when record of an entry examination. To more specific terminology does not examined, accepted and enrolled for relate this rule to the authorizing represent a departure from current VA service’’. We would describe the time as statute, if there was no entry medical practice. of which VA presumes a veteran was examination, then there could be no sound with the phrase ‘‘upon entry into ‘‘defects, infirmities, or disorders noted Section 5.244 Presumption of Sound active military service’’, rather than with at the time of the examination, Condition the phrase ‘‘when examined, accepted acceptance, and enrollment’’ that would Proposed § 5.244 would assemble in and enrolled for service’’. This proposed serve to prevent the presumption from one regulation the statutory and phrase would be plain language with arising. See 38 U.S.C. 1111. The same regulatory principles concerning the the same meaning as ‘‘when examined, reasoning would apply if there were no presumption of sound condition at entry accepted and enrolled for service.’’ In record of an entry examination. It is fair into military service. For purposes of addition to its simplicity, the proposed and reasonable to apply the basic entitlement to wartime disability phrase should prevent readers from presumption of sound condition the compensation, 38 U.S.C. 1111, mischaracterizing the examination as at same way to a veteran whose record of ‘‘Presumption of sound condition’’, the time of entry. Examinations for entry examination is missing as to a veteran states that ‘‘every veteran [who served could have been some time prior to whose service records show no during a period of war] shall be taken entry (as with entry through a deferred examination was done in connection to have been in sound condition when enlistment program), rather than with entry. examined, accepted, and enrolled for contemporaneous with entry. Proposed § 5.244(c)(1) would be service, except as to defects, infirmities, Proposed paragraph (a) would state derived from current § 3.304(b)(1), or disorders noted at the time of the the limitations on the presumption more which provides in part that ‘‘[h]istory of examination, acceptance, and simply, and more consistently with the preservice existence of conditions enrollment, or where clear and overall scheme of service connection, recorded at the time of examination unmistakable evidence demonstrates compared to the statute and current does not constitute a notation of such that the injury or disease existed before regulation. Where 38 U.S.C. 1111 conditions but will be considered acceptance and enrollment and was not provides that a veteran is presumed to together with all other material evidence aggravated by such service.’’ Section have been in sound condition ‘‘except as in determinations as to inception.’’ 1137 of title 38, U.S.C., ‘‘Wartime to defects, infirmities, or disorders Proposed § 5.244(c)(2) would be new. presumptions for certain veterans’’, noted at the time of the examination, It would clarify that the presumption of extends this presumption to all veterans acceptance, and enrollment’’, see also sound condition is rebuttable even if an who served after December 31, 1946, current § 3.304(b), we would state that entrance physical examination report including veterans who served during the veteran is presumed to have been shows that the examiner tested for and peacetime. sound ‘‘except [for injury or disease] as did not find the condition in question, In part 5, we would not repeat current noted in the report of a medical provided that other evidence of record § 3.305, which implements the examination conducted for entry into is sufficient to overcome the presumption of sound condition for active military service.’’ Precluding a presumption. See Kent v. Principi, 389 veterans of entirely peacetime service presumption of sound condition for F.3d 1380, 1383 (Fed. Cir. 2004). before World War II. See 38 U.S.C. 1132, injury or disease noted in the entry Proposed paragraph (d) would state ‘‘Presumption of sound condition’’. The examination report is consistent with 38 the statutory burden of proof for presumption under section 1132 applies U.S.C. 1110 and 1131, which authorize rebutting the presumption of sound only to a very small and decreasing VA to pay disability compensation for condition. VA bears this burden. The population of veterans. If a veteran of ‘‘disability resulting from personal paragraph would provide the standards pre-World War II peacetime service injury suffered or disease contracted in VA must apply to determine whether initiates a claim for service connection line of duty, or for aggravation of a the evidence meets this burden. The after part 5 goes into effect, we would preexisting injury suffered or disease paragraph would be consistent with apply section 1132 without a specific contracted in line of duty, in the active current § 3.304(b). Proposed paragraph implementing regulation. All generally military * * * service’’. The proposed (d)(1) would require, in the case of applicable rules in part 5 for developing language would make it easier to veterans with any wartime service and and evaluating evidence and rebutting understand how the presumption of veterans with peacetime service after presumptions would apply to claims functions in the scheme of VA disability December 31, 1946, clear and from pre-World War II peacetime compensation than the part 3 language. unmistakable evidence that the injury or veterans. Neither section 1132 nor 38 Additionally, the change from ‘‘defects, disease both preexisted service and was CFR 3.305 imposes an extraordinary infirmities, or disorders’’ to ‘‘injury or not aggravated by service to rebut the burden on VA to rebut the presumption disease’’ affords consistency of terms presumption of sound condition at the (compared to the statute and the current among proposed § 5.241, defining time of entry into military service. regulation applying the presumption of service-connected disability; proposed Paragraph (d)(2) would refer the sound condition to veterans who served § 5.244, governing the presumption of reader to proposed § 5.245, ‘‘Service during or after World War II). See 38 sound condition; and proposed § 5.245, connection based on aggravation of U.S.C. 1111; 38 CFR 3.304(b). A governing the presumption of preservice injury or disease’’, for the claimant would have the same aggravation. The language was chosen substance of the rules governing assistance in developing a claim and the for consistency. VA does not intend it whether service aggravated a preexisting same protection against rebuttal of the to expand or limit the scope of section injury or disease. Proposed § 5.245 presumption that he or she would have 1111. would implement the statutory if we included a part 5 counterpart to Proposed § 5.244(b) would follow presumption of aggravation. 38 U.S.C. § 3.305. long-standing VA practice and clarify 1153. Proposed paragraph (a) would define that the presumption of sound condition The Federal Circuit suggested that VA the presumption of sound condition attaches even if the military service could meet the ‘‘not aggravated by generally. Current § 3.304(b) states that department did not conduct an entry [active military] service’’ element of ‘‘[t]he veteran will be considered to have medical examination or if there is no rebuttal for the presumption of sound

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condition under 38 U.S.C. 1111 with a only ‘‘medical evidence to support [its] disease during service (or during any standard similar to that contained in 38 findings rather than provide [its] own applicable presumptive period).’’ In U.S.C. 1153. Wagner v. Principi, 370 medical judgment.’’), overruled in part addition to improving clarity, this F.3d 1089, 1096 (Fed. Cir. 2004) (noting on other grounds, Hodge v. West, 155 restatement would put the focus of the that ‘‘[t]he government may show a lack F.3d 1356, 1360 (Fed. Cir. 1998). regulation on the severity of disability, of aggravation by establishing that there Moreover, VA’s duty to assist claimants consistent with 38 U.S.C. 1153 and the was no increase in disability during with their claims includes providing a basic scheme of VA disability service or that any ‘increase in disability medical examination or obtaining a compensation as being for disability. 38 [was] due to the natural progress of the’ medical opinion based upon a review of U.S.C. 1110, 1131. Section 1153 of title preexisting condition’’ (quoting 38 the evidence of record if VA determines 38, United States Code, provides that U.S.C. 1153)). it is necessary to decide the claim. 38 ‘‘[a] preexisting injury or disease will be We adopt this suggestion as it applies U.S.C. 5103A(d); 38 CFR 3.159(c)(4). considered to have been aggravated by to veterans with any wartime service Therefore, we propose to omit active military * * * service, where and of veterans with peacetime service provisions that might be misconstrued there is an increase in disability during after December 31, 1946. It is rational to as requiring VA personnel adjudicating such service * * *’’ (emphasis added). treat aggravation consistently in the claims to exercise their own medical Current § 3.306(b), which explains how context of the presumption of sound judgment or allowing VA to solicit a VA to implement the presumption of condition and in the context of the medical opinion when it is not aggravation, states that ‘‘[a]ggravation presumption of aggravation. The necessary to decide the claim. may not be conceded where the significant difference is that in the As mentioned above in discussing disability underwent no increase in context of the presumption of sound § 5.242(b), the proposed rewrite of the severity’’. condition, VA must determine whether regulation implementing the Proposed § 5.245(a) would state the there was aggravation if the disability presumption of soundness would not presumption and when the presumption claimed for service connection was not repeat current § 3.304(b)(3). applies. Paragraph (b) would prescribe noted on examination for entry. In the how to determine whether the evidence Section 5.245 Service Connection presumption of aggravation, VA must in a claim triggers the presumption. Based on Aggravation of Preservice determine whether there was Paragraph (c) would prescribe the Injury or Disease aggravation of the disability claimed for standard of proof and factors VA must service connection if the injury or Proposed § 5.245 would be derived consider to rebut the presumption. disease resulting in the disability was from current § 3.306, ‘‘Aggravation of To clarify when to apply the noted on examination for entry. The preservice disability’’. Current § 3.306(a) presumption of aggravation and when to criteria for finding that active military provides for the presumption of apply the presumption of sound service did not aggravate a preexisting aggravation ‘‘where there is an increase condition, proposed paragraph (a) injury or disease are the same for in disability during [active military, would state that the presumption under purposes of both rebutting the naval, or air] service, unless there is a § 5.245 applies only ‘‘[w]hen an injury presumption of sound condition and specific finding that the increase in or disease was noted in the report of rebutting the presumption of disability is due to the natural progress examination for entry into active aggravation. We would state the criteria of the disease’’, as does 38 U.S.C. 1153. military service.’’ This is so because, if in detail in proposed § 5.245, which Current § 3.306(b) then provides the an injury or disease was not noted in the would govern the presumption of standard of proof for rebutting the report of examination for entry, the aggravation. The discussion of proposed presumption by finding that the veteran would be presumed sound on § 5.245, below, provides additional increase in severity of a preexisting entry as to that injury or disease and the information about these factors. disease was due to the natural progress injury or disease would not have Current § 3.304(b)(1) and (b)(2) of the disease, for veterans of wartime preexisted active military service. includes complex provisions concerning service or of peacetime service after The presumption of sound condition the factors VA considers in determining December 21, 1946. (proposed § 5.244(a)) would apply, whether the presumption of sound We propose not to repeat in part 5 the unless it is rebutted. To rebut the condition has been rebutted. Among current § 3.306(c) provisions for presumption of sound condition as to other things, these provisions include applying the presumption of aggravation any injury or disease, VA would have to standards that could be construed as to veterans of entirely peacetime service determine by clear and unmistakable requiring VA employees adjudicating prior to World War II for the same evidence that the injury or disease both claims to use medical judgment. Among reasons we propose not to repeat the preexisted service and was not these are provisions for assessment of presumption of sound condition as it aggravated by service. Thus, if VA ‘‘accepted medical principles,’’ ‘‘clinical applies to this population of veterans. determines that the presumption of factors,’’ the ‘‘clinical course,’’ and the In proposed § 5.245(a), based on sound condition has been rebutted as to like. The sentences containing the current § 3.306(a), we would replace the an injury or disease, VA will necessarily quoted language advise claim phrase ‘‘active military, naval, or air have found by clear and unmistakable adjudicators to consider certain aspects service’’ with ‘‘active military service’’. evidence that service did not aggravate of the evidence. However, it is now ‘‘Active military service’’ is defined in the injury or disease, and the clear that VA employees may not proposed § 5.1 as having the same presumption of aggravation would not exercise their own medical judgment in meaning as ‘‘active military, naval, or air apply. Further, if service connection is adjudicating disability compensation service’’. See 71 FR at 16473. We make granted based on application of the claims. See Gambill v. Shinseki, 576 this change throughout part 5. presumption of soundness in proposed F.3d 1307, 1329 (Fed. Cir. 2009) (noting We would restate the presumption in § 5.244, the disability rating principles that ‘‘rating specialists are not permitted the active voice to provide that ‘‘VA will in 38 CFR 4.22, ‘‘Rating of disabilities to make their own medical judgments’’); presume that active military service aggravated by active service’’, would not Colvin v. Derwinski, 1 Vet. App. 171, aggravated a preexisting injury or apply. See Wagner, 370 F.3d at 1096 172 (Vet. App. 1991) (holding that, in disease if there was an increase in (‘‘However, if the government fails to making decisions, VA must consider disability resulting from the injury or rebut the presumption of soundness

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under section 1111, the veteran’s claim Proposed § 5.245(b)(2) would provide have been aggravated by active military, is one for service connection. This for an exception ‘‘as provided in naval, or air service, where there is an means that no deduction for the degree paragraph (b)(4)’’. Proposed paragraph increase in disability during such of disability existing at the time of (b)(4) would provide a liberalized service, unless there is a specific finding entrance will be made if a rating is standard for the presumption of that the increase in disability is due to awarded.’’). aggravation for combat veterans and the natural progress of the disease.’’ The Proposed § 5.245(b)(1) through (b)(3) former prisoners of war (POWs), which statute does not specify whether a would provide points to consider in would be consistent with current specific finding regarding natural determining whether disability § 3.306(b)(2) and 38 U.S.C. 1154(b). The progress prevents the application of the increased during service (or during any Federal Circuit has recognized that presumption of aggravation or rebuts the applicable presumptive period). Current section 1154(b) affords combat veterans presumption. VA’s long-standing § 3.306(b) provides that ‘‘[a]ggravation and former POWs different treatment interpretation of § 1153 is that such a may not be conceded where the and held that ‘‘evidence of temporary finding rebuts the presumption. 26 FR disability underwent no increase in flare-ups symptomatic of an underlying 1561, 1581 (Feb. 24, 1961). The statute severity during service’’. The Federal preexisting [injury or disease], alone, is is also silent about natural progress of Circuit has held that a disability is not not sufficient for a non-combat veteran injuries. Consistent with section 1153, presumed aggravated by service when to show increased disability under [38 the rebuttal under proposed § 5.245(c) there was no increase in the severity of U.S.C. 1153] unless the underlying would apply to specific findings of disability during service. See, e.g., Davis condition is worsened.’’ Davis, 276 F.3d natural progress to diseases, not to v. Principi, 276 F.3d 1341, 1345 (Fed. at 1346–47. Because a combat veteran or injuries. Cir. 2002) (citation omitted). former POW is unlikely to have The statute does not define ‘‘natural Proposed § 5.245(b)(3) would restate contemporaneous medical records of a progress’’. 38 U.S.C. 1153. The only current § 3.306(b)(1). Proposed development of signs or symptoms of a regulatory definition of ‘‘natural paragraphs (b)(1) and (b)(2) would be preexisting injury or disease, it would progress’’ is in current § 3.306(c), new. Paragraph (b)(1) would provide an be difficult for a combat veteran or ‘‘Peacetime service prior to December 7, explicit meaning for ‘‘increase in former POW to prove that a 1941’’. Though the standard of proof to disability’’ as the term is used in 38 development of signs or symptoms of a rebut the presumption is more stringent U.S.C. 1153. Paragraph (b)(2) would preexisting injury or disease was of a for wartime veterans or veterans who provide that a temporary flare-up of a permanent nature rather than just a served after World War II than it is for preexisting injury or disease is not an temporary flare-up. pre-World War II peacetime veterans, ‘‘increase in disability’’. These Proposed § 5.245(b)(4) would be VA does not construe ‘‘natural progress’’ paragraphs would be consistent with derived from the sentence of current to be something different between these long-standing VA practice and judicial § 3.306(b)(2) about establishing groups of veterans. Therefore, the precedents holding that temporary flare- aggravation with evidence of definition of ‘‘natural progress’’ in ups of symptoms are not ‘‘increase in ‘‘symptomatic manifestations of a § 5.245(c) would be derived from disability’’ as the phrase is meant in preexisting disease or injury during or § 3.306(c), which defines natural section 1153. Davis, 276 F.3d at 1346 proximately following action with the progress as ‘‘the increase in severity (citing Maxson v. West, 12 Vet. App. enemy or following a status as a *** normally to be expected by 453, 459 (1999); Verdon v. Brown, 8 Vet. prisoner of war’’. We would use ‘‘signs reason of the inherent character of the App. 529, 537 (1996); Hunt v. or symptoms’’ rather than ‘‘symptomatic condition’’ (emphasis added). This is a Derwinski, 1 Vet. App. 292, 296 (1991)). manifestations’’. As noted in our wordy way to say the increase in Hunt established that temporary flare- discussion of proposed § 5.243 above, severity was normal for the condition, ups of symptoms of a preexisting injury the term ‘‘signs or symptoms’’ would be with ‘‘normal’’ meaning ‘‘conforming, or disease in service are not an ‘‘increase consistent with contemporary medical adhering to, or constituting a typical or in disability’’. 1 Vet. App. at 297. The usage. See Dorland’s Illustrated Med. usual standard, pattern, level, or type.’’ Federal Circuit has stated that ‘‘[a] Dictionary at 1733 (defining ‘‘sign’’ in Webster’s II New College Dictionary 746 corollary to the Secretary’s usage [of contrast to ‘‘symptom’’); see also 38 CFR (Houghton Mifflin 2001 ed.). We intend ‘disability’] is that an increase in 3.317 (using ‘‘signs or symptoms’’ and no change in the meaning of ‘‘natural disability must consist of worsening of defining ‘‘signs’’). We would use the progress’’. The restatement in proposed the enduring disability and not merely term ‘‘signs or symptoms’’ throughout § 5.245(c) is not substantive. a temporary flare-up of symptoms part 5. We would also use ‘‘combat’’ Part 5 would not repeat current associated with the condition causing rather than ‘‘action with the enemy’’ § 3.322. Section 3.322(a) addresses how the disability.’’ Davis, 276 F.3d at 1344. because they mean the same thing and to rate a disability that is service In Maxson, 12 Vet. App. at 460, the 38 U.S.C. 1154(b) uses ‘‘combat’’. It connected as aggravated in service. It is CAVC held that the presumption of would be appropriate to include this materially the same as, and redundant aggravation is applicable ‘‘only after it provision among factors for determining of, 38 CFR 4.22, which is in VA’s has been demonstrated * * * that a the severity of a disability increased in Schedule for Rating Disabilities in part permanent increase in disability has service because it would afford veterans 4 of this chapter. In the flow of occurred or, pursuant to section of combat or of former prisoner-of-war processing claims for VA disability 3.306(b)(2), has been deemed to have status a specific evidentiary rule for compensation, VA must grant service occurred.’’ (We discuss below the part 5 finding aggravation of a preexisting connection before it determines a rate of counterpart of current § 3.306(b)(2), injury or disease in exception to the disability compensation. VA cannot proposed paragraph (b)(4).) Codifying in temporary flare-up provision of apply the rule in current § 3.322(a) until part 5 judicial precedents that prescribe proposed paragraph (b)(2). reaching the rating phase of a claim. the meaning of ‘‘increase in disability’’ Proposed § 5.245(c), based on current Rules about how to determine a rate of would help VA apply the presumption § 3.306(b), would address rebuttal of the disability compensation are more of aggravation consistently. The rules in presumption of aggravation. Section germane to part 4 than to part 5. There proposed paragraphs (b)(1) and (b)(2) 1153 provides that ‘‘[a] preexisting is no benefit to veterans to state the rule would codify these precedents. injury or disease will be considered to in two places, and it simplifies the rules

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for obtaining service connection to omit be considered a part of the original presumption of service connection. We a counterpart to § 3.322(a) from part 5. condition.’’ Regarding this sentence, the intend no substantive change. Current § 3.322(b) provides that, if an CAVC stated that, ‘‘[b]ased on the Section 5.249 Special Service injury or disease incurred in peacetime regulatory history, [the court] finds that service is aggravated during wartime Connection Rules for Combat-Related the plain meaning of the regulation is Injury or Disease service, or conversely, if an injury or and has always been to require VA to disease incurred in wartime service is afford secondarily service-connected Proposed § 5.249 would provide aggravated during peacetime service, the conditions the same treatment (no more special service connection rules for entire disability that results from the or less favorable treatment) as the veterans who served in combat. It would injury or disease will be service underlying service-connected implement 38 U.S.C. 1154(b) and is connected based on wartime service. conditions for all determinations.’’ based on current §§ 3.102 (last Because there is no longer a distinction Roper v. Nicholson, 20 Vet. App. 173, sentence), 3.304(d), and 3.305(c). The between wartime and peacetime rates of 181 (2006); accord Ellington v. Peake, proposed rule would specifically clarify disability compensation, there is no 541 F.3d 1364, 1370 (Fed. Cir. 2008) that VA will accept a combat veteran’s current need to explain how to treat (approving CAVC’s Roper decision description of an event, disease, or conditions incurred in wartime or construing § 3.310(a)). There is no injury in service as sufficient to peacetime service that are aggravated statute or regulation pertaining to establish that an injury or disease was during peacetime or wartime service, secondary service connection that incurred or aggravated in service. respectively. The only situation in inhibits a veteran’s rights, diminishes a We would explicitly state that the which payment of wartime versus veteran’s benefits, or reduces VA’s regulation applies only to peacetime disability compensation duties to a veteran as they relate to a determinations of incurrence or aggravation of an injury or disease in could arise presently would be in secondarily service-connected service, whereas the current laws state retroactive awards based on clear and disability. Consequently, the second that VA may accept lay evidence ‘‘as unmistakable error. However, in such sentence of § 3.310(a) conveys no sufficient proof of service-connection.’’ cases, VA must apply the version of benefit to the veteran who obtains 38 U.S.C. 1154(b); see also 38 CFR § 3.322 in effect at the time the secondary service connection for a 3.304(d). Despite the language used in erroneous decision was rendered, not disability. Its omission would infringe the current laws (that is, that lay the current version of that section. Since no rights. Rather, its omission would evidence is ‘‘proof of service § 3.322(b) no longer serves a useful clarify that an award of secondary connection’’), VA does not generally purpose, we have not included similar service connection would have its own material in part 5. allow a combat veteran’s lay evidence of disability rating and effective date an in-service injury, by itself, to Section 5.246 Secondary Service separate from the underlying service- establish a current disability or a nexus Connection—Disability That Is connected condition. Omitting the between that injury and a current Proximately Caused by Service- sentence would also simplify the disability. This interpretation of the Connected Disability secondary-service-connection authorizing statute and the Proposed § 5.246 would be based on regulation, consistent with that purpose implementing regulations is consistent current § 3.310(a). To be consistent of part 5. with judicial precedent. See Collette v. throughout part 5, proposed § 5.246 Section 5.247 Secondary Service Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) would contain a few nonsubstantive Connection—Nonservice-Connected (holding that ‘‘[s]ection 1154(b) does not differences from current § 3.310(a), Disability Aggravated by Service- create a statutory presumption that a including its use of the phrase Connected Disability combat veteran’s alleged disease or ‘‘proximately caused by’’ rather than injury is service-connected’’ but, rather, ‘‘proximately due to’’. Proposed § 5.247 would be derived still requires a veteran to ‘‘meet his In addition, proposed § 5.246 would from current § 3.310(b). It would restate evidentiary burden with respect to refer to a service-connected ‘‘disability’’ the current rule in plain language. We service connection’’ while ‘‘considerably rather than to a service-connected intend no change in meaning. For the lighten[ing] the burden’’). Also pursuant ‘‘disease or injury’’ as used in current reasons discussed above in relation to to section 1154(b), proposed § 5.249(a) § 3.310(a). This would not be a proposed § 5.246, proposed § 5.247 would explicitly provide that the substantive change but, rather, would be would use the phrase ‘‘proximately finding of incurrence or aggravation the use of clear and consistent caused’’ rather than ‘‘proximately due relating to combat with the enemy terminology. In part 3, we often refer to to’’, and it would refer to a nonservice- would be subject to rebuttal under a a ‘‘service-connected disease or injury’’ connected or service-connected heightened ‘‘clear and convincing where, to be technically correct, we ‘‘disability’’ rather than to a nonservice- evidence’’ standard. intend to refer to the disability for connected or service-connected ‘‘disease Proposed paragraph (a)(2) would be which VA actually grants service or injury’’. new. Paragraph (a)(2) would codify the connection. As explained in this and Section 5.248 Service Connection for definition of ‘‘engaged in combat with other NPRMs, VA does not service Cardiovascular Disease Secondary to the enemy’’ in VAOPGCPREC 12–99. connect an event that occurred during Service-Connected Lower Extremity Where the General Counsel uses the service; rather, VA service connects a Amputation term ‘‘instrumentality’’, we would use current disability associated with such the term ‘‘instrument or weapon’’, which an event. We hope that using The rule concerning awards of is more readily understood. Whether terminology that is more precise will secondary service connection for any particular set of circumstances eliminate any confusion on this point. cardiovascular disease is currently constitutes engagement in combat with We propose not to repeat the second stated in § 3.310(c). We propose to state the enemy for the purposes of 38 U.S.C. sentence of current § 3.310(a), which this rule as a separate regulation in 1154(b) must be resolved on a case-by- states that ‘‘[w]hen service connection is § 5.248 because it is a discrete rule of case basis. See VA General Counsel’s thus established for a secondary secondary service connection that opinion, VAOPGCPREC 12–99, 65 FR condition, the secondary condition shall effectively establishes an irrebuttable 6257, 6258, Feb. 8, 2000 (discussing the

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meaning of ‘‘engaged in combat with the example, ‘‘physiological reactivity,’’ because current § 3.304(f)(4) treats such enemy’’ as used in 38 U.S.C. 1154(b)). ‘‘hypervigilance,’’ and ‘‘exaggerated veterans in the same manner as combat Based on the plain language of 38 U.S.C. startle response.’’ Id. at diagnostic code veterans for purposes of PTSD claims. 1154(b), the phrase ‘‘engaged in combat 309.81 B(5), D(4) and (5). VA uses the Again, no substantive changes are with the enemy’’ requires that the diagnostic criteria of the DSM–IV to intended. veteran have personally participated in diagnose PTSD. See 38 CFR 4.125(a). Proposed § 5.250(e) is based on events constituting an actual fight or Proposed paragraph (a)(3) would § 3.304(f)(3), which governs cases where encounter with a military foe or hostile require ‘‘credible supporting evidence a VA psychiatrist or psychologist has unit or instrumentality. Id. We would that the claimed in-service stressor confirmed the stressor. The first add this clarification in proposed occurred.’’ Although this is an sentence of paragraph (f)(3) is 103 words § 5.249(a)(2). We also propose to clarify evidentiary requirement, we would state and the second is 100 words. We have that participation in such events it as an element of a PTSD claim reorganized these sentences by breaking includes performing certain because it is often the central issue to them into subparagraphs, which will noncombatant duties, such as providing the adjudication of such a claim, being make this provision easier to read and medical care to the wounded. the focus of most of the evidentiary apply. Proposed § 5.249(b) would be a new development. Multiple judicial opinions Proposed paragraph (f) would be a provision. It would provide that, when have upheld the validity of the plain-language rewrite of current a veteran has received one of the listed requirement. See, e.g., Nat’l Org. of § 3.304(f)(5) with no substantive combat decorations, VA will not require Veterans’ Advocates, Inc, v. Sec’y of differences. additional evidence to verify that the Veterans Affairs, 330 F.3d 1345, 1350– veteran engaged in combat with the 51 (Fed. Cir. 2003); Moran v. Principi, Section 5.251 Current Disabilities for enemy, unless there is clear and 17 Vet. App. 149, 155–59 (2003). Given Which VA Cannot Grant Service convincing evidence to the contrary. the number of court decisions the Connection ‘‘ ’’ Such decorations are reliable proof that credible supporting evidence Proposed § 5.251 would list a veteran engaged in combat. We realize requirement has engendered, we disabilities for which VA cannot grant propose to identify the two salient that new types of combat decorations service connection and distinguish them may be issued in the future and have features of such evidence: (1) It can be from similarly named disabilities for provided for that contingency in from any source other than the which VA can grant service connection. proposed § 5.249(b)(17). We claimant’s statement; and (2) It must Current § 3.303(c) identifies certain additionally propose to include the corroborate the occurrence of the disabilities that ‘‘are not diseases or Combat Action Badge in § 5.249(b)(16). alleged in-service stressor. See Moran, injuries within the meaning of On February 11, 2005, the Army 17 Vet. App. at 159. The definition applicable legislation.’’ We would announced this new decoration, with would make no substantive change in restate the rule in proposed § 5.251(a) by the intent to provide special recognition the regulation, but it would lend it identifying specific disabilities for to ground combat arms soldiers who are certainty. which ‘‘VA will not grant service trained and employed in direct combat Proposed § 5.250(b) would be new. It missions similar to Infantry and Special would require, generally, that VA seek connection * * * because they are not Forces. verification of a stressor before denying the result of an injury or disease for a claim solely on the ground that the purposes of service connection’’. By Section 5.250 Service Connection for stressor is not verified. The revision is using the ‘‘not the result of’’ language, Posttraumatic Stress Disorder designed to make it clear when VA must the proposed rule would recognize that Proposed § 5.250 would be dedicated seek verification from the appropriate the listed conditions are indeed entirely to the adjudication of claims for entity, such as the U.S. Army and Joint disabilities, but clarify that they are not service connection for posttraumatic Services Records Research Center. caused by an injury or disease. Also, in stress disorder (PTSD). This new Verification will not be possible when paragraph (a) we would omit the phrase regulation would contain the substance the claimant’s statements describing the ‘‘within the meaning of applicable of current § 3.304(f) with some technical claimed in-service stressor are too vague legislation’’ because the ‘‘applicable revision and additional content stating to enable the appropriate agency to try legislation’’, 38 U.S.C. 1110 and 1131, is VA’s policy and procedures for to corroborate the events described. cited as the statutory authority for adjudicating these claims. Therefore, the proposed rule would not § 5.251. Proposed § 5.250(a) would list the require VA to seek verification when the In addition, proposed § 5.251 would elements of proof of a PTSD claim, claimant fails to provide information update some of the terms used to which are similar to the requirements to requested by VA that is needed to try to identify the listed disabilities. In establish service connection for any verify the event(s) described in his or proposed paragraphs (a)(1) and (a)(2), other current disability and would be her statement. we would refer to ‘‘[c]ongenital or derived from current § 3.304(f). Proposed § 5.250(c) would be derived developmental defects (such as Paragraph (a)(1) would require evidence from current § 3.304(f)(1). Proposed congenital or developmental refractive of a current disability. Paragraph (a)(2) paragraph (d) would explicitly state that error of the eye)’’ and to would require a link between ‘‘current the presumptions at proposed § 5.249, ‘‘[d]evelopmental personality disorders’’, signs or symptoms’’ of PTSD and ‘‘an in- ‘‘Special service connection rules for rather than to ‘‘refractive error of the service stressor’’. In PTSD cases, the in- combat-related injury or disease’’, would eye’’ and to ‘‘personality disorders’’, service injury is always the ‘‘stressor’’ apply to establish an in-service stressor respectively, as stated in current that caused the PTSD. We refer to ‘‘signs for combat veterans. The current rule, in § 3.303(c). These changes would or symptoms’’ because the American § 3.304(f)(2), repeats the language of the distinguish disorders that do not result Psychiatric Association’s Diagnostic and evidentiary presumption applicable to from injury or disease, like myopia or Statistical Manual of Mental Disorders combat veterans, where this rule would personality disorder, from similarly (4th ed. 1994) (DSM–IV) includes simply refer the reader to that named disorders for which VA permits objective phenomena among the presumption. The proposed rule would service connection, such as ‘‘malignant diagnostic criteria for PTSD, for also reference former prisoners of war or pernicious myopia’’ or ‘‘personality

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change due to general medical employees to state these rules explicitly. service-connected injury or disease condition’’, both discussed below. Thus, this would not be a substantive (secondary service connection). Personality disorders have onset by change in VA practice, even if proposed Despite using the terms ‘‘personality adolescence or early adulthood. DSM– paragraph (b) would be the first explicit disorder’’ and ‘‘mental retardation’’, IV at 629. Although technically regulatory discussion of these § 4.127 allows VA to compensate those redundant, paragraph (a)(2) uses the disabilities. disabilities that proposed § 5.251(b)(2) term ‘‘developmental personality Proposed paragraph (b)(1) would list and (3) would refer to as ‘‘personality disorder’’ to distinguish clearly between ‘‘[m]alignant or pernicious myopia’’ as a change’’ and ‘‘nondevelopmental ‘‘personality disorder’’ and ‘‘personality disability for which VA will grant intellectual disability’’, respectively. change’’. This clarification is necessary service connection because malignant or VA’s regulation for rating residuals of because in paragraph (b)(2), we would pernicious myopia is associated with a traumatic brain injury also demonstrates state that VA is not precluded from disease, while other types of myopia are that VA service connects intellectual granting service connection for the congenital or developmental refractive disability resulting from injury incurred disability of ‘‘[p]ersonality change’’ if it errors of the eye. Compare ‘‘myopia’’ in service. See § 4.124a of this chapter, is the result of an organic mental with ‘‘malignant m., pernicious m.’’ Diagnostic Code 8045, ‘‘Residuals of disorder, see 38 CFR 4.130 Diagnostic Dorland’s Illustrated Med. Dictionary, at traumatic brain injury’’, which provides Code 9327, or is an interseizure 1243. criteria for ‘‘[f]acets of cognitive manifestation of psychomotor epilepsy, In proposed paragraph (b)(2), we impairment and other residuals of see 38 CFR 4.122(b), 4.124a Diagnostic would use the term ‘‘personality change’’ [traumatic brain injury] not otherwise Code 8914. Section 5.251(a)(2) and to identify the personality altering classified’’. Consistent with § 4.127 (b)(2) would help ensure that effects of an injury or disease that VA regarding secondary service connection ‘‘ ’’ personality changes due to general can service connect. This paragraph for mental retardation , proposed medical conditions are given would distinguish personality change § 5.251(b)(3) would allow service ‘‘ appropriate consideration, in light of the from ‘‘developmental personality connection for nondevelopmental intellectual disability’’ proximately above rating-schedule provisions. disorder’’, which VA cannot service In proposed paragraph (a)(3), we caused by a service-connected connect. The VA Schedule for Rating would refer to ‘‘[d]evelopmental disability. With the changes in Disabilities in part 4 of this chapter intellectual disability (mental terminology discussed above, we (Schedule for Rating Disabilities) retardation)’’ rather than to ‘‘mental propose to explicitly identify in identifies personality changes by several deficiency’’, as stated in current proposed § 5.251(b)(1) through (3) the different names. See § 4.122(b) of this § 3.303(c). The term ‘‘intellectual disabilities that are distinguishable from chapter (referring to interseizure disability’’ would represent current those listed in current § 3.303(c). The manifestation of psychomotor epilepsy); medical terminology. ‘‘Mental listing of these distinguishable § 4.124a of this chapter, Diagnostic Code deficiency’’ is an archaic term, replaced disabilities would not result in a decades ago by ‘‘mental retardation’’, 8045 (neurobehavioral effects of substantive change to existing and more recent medical usage has traumatic brain injury not otherwise regulations. replaced the term ‘‘mental retardation’’ classified); § 4.130 of this chapter, Section 4.127 of this chapter permits with ‘‘intellectual disability.’’ See Robert Diagnostic Code 9304 (dementia due to service connection for a disability from L. Schalock, et al., The Renaming of head trauma), Diagnostic Code 9326 a mental disorder superimposed on Mental Retardation: Understanding the (dementia due to other neurologic or mental retardation or a personality Change to the Term Intellectual general medical conditions or that are disorder. In § 5.251(c) we would make Disability, Intellectual and substance induced), and Diagnostic clear that this concept applies to all Developmental Disabilities, April 2007, Code 9327 (organic mental disorder, disabilities, not only mental disorders. at 116–124. VA would use the term including personality change due to a A veteran could incur a disability ‘‘developmental intellectual disability’’ general medical condition). affecting the same body part or system to distinguish the intellectual disability Proposed paragraph (b)(3) would as a defect listed in proposed § 5.251(a). formerly called mental retardation from allow service connection of an Proposed § 5.251(c) would clarify that impairment of intellect resulting from ‘‘intellectual disability’’, or ‘‘mental proposed § 5.251(a) does not preclude injury or disease incurred during active retardation’’ as referred to in part 4 of granting service connection for such a service. this chapter, that results from a service- separate disability. In proposed paragraph (b), we would connected disability. We would use the VA has long held that the rules in the set forth several disabilities that are term ‘‘nondevelopmental intellectual last sentence of current § 3.303(c), upon distinguishable from the disabilities disability’’ to distinguish it from which proposed § 5.251(a)(1) would be listed in the rule in paragraph (a). ‘‘developmental intellectual disability’’, based, do not preclude granting service Paragraph (b) would list those or ‘‘mental retardation’’ as it is called in connection for disability due to an disabilities for which VA can grant § 4.127, which may not be service inherited disease. We propose to clarify, service connection because, although connected. As with personality change in § 5.251(d), that congenital or the disabilities manifest like those due to general medical condition or developmental defects are precluded in paragraph (a), they are injury, this rule would codify long- distinguishable from ‘‘inherited or scientifically distinguishable and standing VA practice without familial diseases’’ and that § 5.251(a) actually result from an injury or disease. implementing any substantive change. does not bar service connection for VA currently distinguishes these two For example, the Schedule for Rating disability due to an inherited or familial categories of disabilities based on long- Disabilities allows compensation for disease. For the text of proposed standing internal VA guidance, which is disability resulting from mental § 5.261(f), which is cross-referenced in implicit in current § 3.303(c) and may retardation and personality disorder ‘‘as proposed § 5.251(d), see 69 FR 44625 be discerned from multiple sections of provided in § 3.310(a) of this chapter.’’ (July 27, 2004). the VA Schedule for Rating Disabilities See 38 CFR 4.127. Section 3.310(a) Proposed § 5.251(e) would be derived in part 4 of this chapter. It would be provides for compensation for disability from current § 3.380, ‘‘Diseases of advantageous to claimants and to VA proximately due to or the result of allergic etiology’’, which essentially

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advises the reader not to assume that It is not an actual instruction for extra- connected compensable disabilities will be diseases of allergic etiology are schedular rating. Omitting the statement combined to provide for the payment of constitutional or developmental from part 5 simplifies the part 5 wartime rates of compensation. (38 U.S.C. abnormalities. Section 3.380 also states: regulation. As the language conveys no 1157) Effective July 1, 1973, it is immaterial whether the disabilities are wartime or Service connection must be determined on specific right to claimants, its omission peacetime service-connected since all the evidence as to existence prior to cannot deprive a claimant of any right. disabilities are compensable under 38 U.S.C. enlistment and, if so existent, a comparative We also propose not to repeat the 1114 and 1115 on and after that date. study must be made of its severity at phrase in current § 3.321(b)(1) that ‘‘the enlistment and subsequently. Increase in the Secretary shall from time to time This paragraph no longer serves a degree of disability during service may not be readjust this schedule of ratings in useful purpose. As it indicates, there disposed of routinely as natural progress nor accordance with experience.’’ This has been no distinction between as due to the inherent nature of the disease. phrase quotes 38 U.S.C. 1155 verbatim. wartime and peacetime rates of Seasonal and other acute allergic disability compensation for many years. manifestations subsiding on the absence of or It imposes no duty on VA not stated completely in the statute. It conveys no Any retroactive award involving those removal of the allergen are generally to be distinctions would be based on statutes regarded as acute diseases, healing without right applicable to any specific claim. residuals. The determination as to service The statutory charge to the Secretary to and regulations in effect at the time. incurrence or aggravation must be on the readjust the rating schedule is not Section 5.281 Multiple 0-Percent whole evidentiary showing. pertinent to instructions for extra- Service-Connected Disabilities These provisions are hortatory and schedular rating. VA affords an extra- Proposed § 5.281 would be based on provide no rights or duties beyond those schedular rating to those for whom the current § 3.324. We propose to change already contained in other regulations. schedule cannot provide an adequate the term ‘‘noncompensable’’ in the We note that 38 CFR 3.303(a) prescribes rating for the reasons stated in the section heading to ‘‘0 percent’’ for that VA must decide claims for service regulation, regardless of what the simplicity. ‘‘0 percent’’ would be more ‘‘ connection based on review of the schedule provides at any given time. understandable for many regulation ’’ entire evidence of record . Proposed Omitting the phrase from part 5 is not users. VA interprets current § 3.324 as § 5.4(b) would expand that rule to apply a substantive change in the regulation requiring the relevant disabilities be to all compensation and pension claims, on extraschedular ratings. permanent and the combined effect of ‘‘ stating that VA decisions will be based Proposed § 5.280 would update the disabilities interfere with normal ’’ on a review of the entire record . Under certain VA terminology consistent with employability. The proposed regulation that provision, VA must consider the current usage and with choices of terms would state this clearly. entire record in determining whether an used consistently throughout part 5. increase in severity is due to the natural Where current § 3.321(b)(1) requires that Section 5.282 Special Consideration progress of a disease; this principle a VA ‘‘field station’’ submit a claim for for Paired Organs and Extremities applies to allergies just like any other extra-schedular ‘‘evaluation’’, proposed Proposed § 5.282 would be based on disease. Thus, VA cannot assume that § 5.280(b) would require that a current § 3.383. The rule would provide any increase in severity of a particular ‘‘Veterans Service Center (VSC)’’ submit for disability compensation for certain disease must be due to the natural a claim for extra-schedular ‘‘rating’’. The paired organs and extremities, where progress of that disease. Therefore, we terms ‘‘rate’’ and ‘‘rating’’ are used disability from one of the pair is service- would not include the quoted portion of throughout part 5, rather than connected and disability from the other current § 3.380 in part 5. ‘‘evaluate’’, ‘‘evaluating’’, and is not. Consistent with current § 3.383, ‘‘evaluation’’, when referring to the Rating Service-Connected Disabilities proposed § 5.282(a) would state that process of applying the Schedule for ‘‘VA will not pay compensation for the Section 5.280 General Rating Rating Disabilities in part 4 of this nonservice-connected disability if the Principles chapter to the facts of an individual veteran’s willful misconduct Proposed § 5.280 would be based on claim for benefits. Where current proximately caused it.’’ The term current § 3.321(a), pertaining to use of § 3.321(c) provides that a field station ‘‘proximately caused’’ would be the Schedule for Rating Disabilities in may submit a claim to ‘‘[VA] Central equivalent to ‘‘the result of’’. ‘‘Veteran’s’’ part 4 of this chapter, and current Office’’ for an advisory opinion under rather than ‘‘veteran’s own’’ would § 3.321(b)(1), (b)(3), and (c), pertaining certain circumstances, proposed eliminate redundancy, as ‘‘veteran’s to extra-schedular disability § 5.280(c) would provide that a VSC own’’ means the same thing as compensation ratings. The part 5 may submit a claim to ‘‘the Director of ‘‘veteran’s’’. Though ‘‘own’’ might add counterpart of current § 3.321(b)(2), the Compensation and Pension Service’’, emphasis, it would add no meaning. pertaining to extra-schedular pension to reflect long-standing VA practice Proposed § 5.282(b)(1) would provide ratings, would be § 5.381(b)(5). See 72 accurately. We intend no substantive that VA will pay compensation for the FR at 54793 (Sep. 26, 2007). change with these changes of combination of service-connected and We are not repeating the language in terminology. nonservice-connected ‘‘impairment of current § 3.321(a), or similar language in Additionally, we would not repeat vision’’ of both eyes if ‘‘(i) The § 3.321(b)(1), that ‘‘[t]he provisions current § 3.323(a). Paragraph (a)(1) is impairment of vision in each eye is contained in the rating schedule will another instance of providing rating rated at a visual acuity of 20/200 or less; represent as far as can practicably be instructions in part 3 that do not afford or (ii) The peripheral field of vision for determined, the average impairment in specific rights to claimants or impose each eye is 20 degrees or less.’’ earning capacity in civil occupations any duty on VA other than those Current § 3.383 refers to ‘‘loss or loss resulting from disability.’’ This language contained in part 4. See § 4.25 of this of use’’ of certain body parts. In is redundant of similar language in chapter, ‘‘Combined ratings table’’; § 4.26 § 5.282(b)(2) and (b)(4), we propose to current § 4.1 of this chapter and is of this chapter, ‘‘Bilateral factor.’’ use ‘‘anatomical loss or loss of use’’ of beyond the scope of the topic of part 5. Current § 3.323(a)(2) reads as follows: the named body part. The proposed It represents a basic precept of the rating (2) Wartime and peacetime service. usage would be like that in 38 U.S.C. schedule appropriately stated in part 4. Evaluation of wartime and peacetime service- 1114(k), which provides increased

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compensation benefits for ‘‘anatomical Proposed § 5.283(a)(3), based on who need regular aid and attendance. loss or loss of use’’ of certain body parts. current § 3.340(a)(3), would reformat the See, e.g., 38 U.S.C. 1114(l), 1115(1)(E), ‘‘Loss’’ means ‘‘anatomical loss’’ in the factors to consider in determining and 1502(b). Additionally, where phrase ‘‘loss or loss of use’’ in current whether to rate a disability that has current § 3.340(b) refers to the state of § 3.383. The proposed usage of the undergone some recent improvement as being ‘‘permanently helpless or phrase ‘‘anatomical loss’’ would total based on its history. The proposed bedridden’’, proposed § 5.283(b)(3) preclude misconstruing ‘‘loss’’ as some rule would state the factors in the same would refer to the state of being other type of loss that is neither sequence as the current rule but would ‘‘permanently bedridden’’ apart from the anatomical loss nor loss of use. designate the factors individually for state of being ‘‘permanently so Proposed § 5.282(c) would be based clarity. significantly disabled as to need regular on rules in current § 3.383(b) requiring Proposed § 5.283(b), based on current aid and attendance’’. This would offset against VA disability § 3.340(b), would reformat the factors preclude any ambiguity about whether compensation for money or property VA must consider in determining bedridden status must also be veterans recover in a judgment, whether a total disability is permanent. permanent to qualify as a criterion of a settlement, or compromise of a cause of The proposed rule would state the ‘‘permanent total disability’’. The action concerning their qualifying factors in the same sequence as the differences between proposed nonservice-connected disability. We current rule but would designate the § 5.283(b)(1) and (3) and current propose to omit current § 3.383(b)(2), factors individually for clarity. § 3.340(b) would not be substantive. which pertains to the October 28, 1986, Current § 3.340(b) provides that a total effective date for the offset provisions. disability is permanent when it is Section 5.284 Total Disability Ratings Any award that would be granted under reasonably certain that ‘‘such disability’’ for Disability Compensation Purposes proposed § 5.282 would require offset will continue throughout the life of the Proposed § 5.284 would be based on because the award would be made ‘‘on disabled person. ‘‘Such disability’’ refers current § 3.341, ‘‘Total disability ratings or after October 28, 1986.’’ Retaining the to the disability described in current for compensation purposes.’’ To effective date of a statutory change § 3.340(a) as total, that is, ‘‘any eliminate redundancy with part 4, we occurring over 23 years ago would serve impairment of mind or body which is would not repeat the second sentence of no useful purpose. sufficient to render it impossible for the current § 3.341(a), which prohibits VA average person to follow a substantially from considering the age of a veteran in Section 5.283 Total and Permanent gainful occupation.’’ Proposed § 5.283(b) determining whether the veteran is Total Ratings and Unemployability would restate the definition of total unemployable even though his or her Proposed § 5.283 would be based on disability in place of ‘‘such’’, so the user schedular rating is less than 100 current § 3.340, ‘‘Total and permanent need not trace the regulation to find percent. That rule is sufficiently stated total ratings and unemployability.’’ what is meant by ‘‘such’’ disability. in § 4.19 of this chapter. The omission Proposed § 5.283 would expand several Proposed § 5.283(b)(1) would use the would not be substantive. dense paragraphs of current § 3.340 into phrases ‘‘anatomical loss or loss of use’’ Proposed § 5.284(c) would omit the individually designated rules for clarity, of certain body parts and ‘‘anatomical reference in current § 3.341(c) to ‘‘the would update certain obsolete terms, loss or loss of sight of both eyes’’ where period beginning after January 31, 1985’’ and would promote consistency of current § 3.340(b) uses the phrase ‘‘loss because any VA ratings pursuant to this terms throughout part 5. None of the or loss of use’’ of certain body parts or proposed rule would take place after differences between current § 3.340 and the sight of both eyes. As stated in our January 31, 1985. The omission would proposed § 5.283 would be substantive. preamble discussion of § 5.282, the not be substantive. Current § 3.340(a) prescribes the proposed usage would be like that in 38 criteria for total disability and U.S.C. 1114(k), which provides Section 5.285 Continuance of Total distinguishes it from permanent increased compensation benefits for Disability Ratings disability by stating that ‘‘[t]otal ‘‘anatomical loss or loss of use’’ of Proposed § 5.285 would be based on disability may or may not be certain body parts. ‘‘Loss’’ means paragraphs (a) and (c) of current § 3.343, permanent.’’ Proposed § 5.283(a)(1) ‘‘anatomical loss’’ in the phrase ‘‘loss or ‘‘Continuance of total disability ratings.’’ would include this distinction by loss of use’’ in current § 3.340(b). The (The part 5 counterpart to § 3.343(b), stating that ‘‘[f]or compensation proposed usage of the phrase ‘‘Tuberculosis; compensation’’, was purposes, a total disability rating may be ‘‘anatomical loss’’ would preclude published in another NPRM as proposed granted without regard to whether the misconstruing ‘‘loss’’ as some other type § 5.347. See 73 FR 62004 (Oct. 17, impairment is shown to be permanent.’’ of loss that is neither anatomical loss 2008)). The proposed rule would be Proposed § 5.283(a)(2) would refer to nor loss of use. more succinct than current § 3.343, for §§ 4.16 and 4.17 of this chapter rather Proposed § 5.283(b)(1) and (3) would example, by changing the phrase than to ‘‘paragraph 16, page 5 of the use the phrase ‘‘permanently so ‘‘temporary interruptions in rating schedule’’ and to ‘‘paragraph 17, significantly disabled as to need regular employment which are of short page 5 of the rating schedule’’, aid and attendance’’ where current duration’’ in current § 3.343(c) to ‘‘brief respectively, as current § 3.340(a)(2) § 3.340(b) uses the phrase ‘‘permanently interruptions in employment’’ in does. Current §§ 4.16 and 4.17 of this helpless’’. We would replace the term proposed § 5.285(b)(4). chapter are the counterparts of the ‘‘helpless’’ with the term ‘‘so Proposed § 5.285 would reorganize references in current § 3.340(a)(2) to significantly disabled as to need regular current § 3.343. It would first state the rules in the 1945 edition of the aid and attendance’’ to conform to the rule that ‘‘VA will not reduce a total Schedule for Rating Disabilities. This Veterans’ Housing Opportunity and disability rating that was based on the change would update references to Benefits Improvement Act of 2006 (Pub. severity of a person’s disability or paragraphs of the 1945 edition of the L. 109–233), which amended certain disabilities without examination Schedule for Rating Disabilities to the sections of title 38, U.S.C., to replace the showing material improvement in equivalent sections of the current obsolete term ‘‘helpless’’ with the term physical or mental condition.’’ Proposed Schedule for Rating Disabilities in part ‘‘significantly disabled’’ (and similar § 5.285(a) would clarify in a separate 4 of this chapter. terminology) when describing persons sentence that ‘‘VA may reduce a total

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disability rating that was based on the January 1, 1985’’ because any VA ratings (b)(1) would provide the general rule for severity of a person’s disability or pursuant to this proposed rule would establishing factual dependency. disabilities without examination if the take place after January 1, 1985. The Proposed paragraph (b)(2) would state rating was based on clear error.’’ This omission would not be substantive. the requirements for consideration of net worth when VA must establish rule would constrain VA from reducing Additional Disability Compensation factual dependency. total disability ratings based on the Based on a Dependent Parent severity of a person’s disability or Proposed paragraph (b)(1)(ii) would disabilities unless VA examines the Parental dependency is significant in restate current § 3.250(c). We removed totally disabled person and considers the context of VA disability the qualification of ‘‘habitual the listed factors. Paragraph (a)(1) would compensation for veterans because VA contributions’’ and made the rule articulate the factors VA must consider pays a veteran additional compensation simpler. Contributions from the veteran before it can reduce a total rating. under certain circumstances if the to a parent would be considered income Paragraph (a)(2) would prescribe the veteran has a dependent parent. See 38 under the rule governing income. See circumstances that require VA to U.S.C. 1115, ‘‘Additional compensation proposed § 5.302, ‘‘General income reexamine the person before it may for dependents’’; 38 U.S.C. 1135, rules—parent’s dependency’’. A single reduce a total rating, and when the ‘‘Additional compensation for contribution to the parent, for example, reexamination must occur. Paragraph dependents’’; and proposed § 5.240(b) of $50,000, would be considered (a)(3) would clarify that the rules included in this NPRM. Proposed income. The regularity of the contained in paragraph (a), (a)(1), and §§ 5.300 and 5.302 through 5.304 would contribution would not be (a)(2) do not apply when a total rating address parental dependency for determinative. This would be consistent is purely based on hospital, surgical, or purposes of disability compensation for with current VA practice. The object of home treatment or individual veterans. the rule would be to ensure that a unemployability. This clarification is Section 5.300 Establishing Veterans Service Representative does currently imbedded in the first sentence Dependency of a Parent not assume a parent is a veteran’s of current § 3.343(a). dependent merely because the veteran VA is authorized by statute to pay gives the parent money. Also, even if Proposed § 5.285(b) would be based additional compensation to a veteran the parent’s receipt of money from the on current § 3.343(c), ‘‘Individual with service-connected disability rated veteran is the parent’s only income, i.e., ’’ unemployability. Proposed paragraph 30-percent or more disabling who has a the parent is entirely dependent on the (b) would reorganize the elements of parent who is dependent upon the veteran, if the veteran’s contribution is § 3.343(c) without making any veteran for support. 38 U.S.C. sufficient to provide reasonable substantive changes. The proposed rule 1115(1)(D), (2). Proposed § 5.300 would maintenance for the parent, the parent would not repeat the instruction in describe how to establish the will not be considered a veteran’s § 3.343(c)(1) to apply the procedural dependency of a parent. For consistency dependent for purposes of proposed protections for reductions of disability throughout part 5 and for simplicity in paragraph (b)(1). We intend no ratings to the reduction of a total this rule, we would use the singular substantive change. disability rating based on individual ‘‘parent’’ or ‘‘parent’s’’ where current Proposed § 5.300(c) would define the unemployability (TDIU). The procedural § 3.250 uses the plural. This would not term ‘‘family member’’ by incorporating protections apply to all reductions of be a substantive change. provisions contained in the introduction compensation, not just to TDIU Proposed paragraph (a) would be to current § 3.250(b) and in current reductions. Including the reference to substantively equivalent to current § 3.250(b)(2). The introduction to procedural protections here could lead § 3.250(a), which prescribes specific current § 3.250(b) describes a family readers to believe incorrectly that those income requirements for a conclusive member as a member under legal age or protections do not apply elsewhere. The finding of the dependency of a parent. an adult member of the family who is paragraph would therefore begin with Proposed § 5.300(a)(1)(i) would clarify dependent due to mental or physical the substance of the rules governing the that the income threshold for a mother incapacity. However, paragraph (b)(2), reduction of a TDIU rating. The contents or father not living together would be incorporating language in 38 U.S.C. of the proposed rule are the same as in the same for a remarried parent and 102(b)(2), defines a family member as § 3.343(c), but the constituent elements parent’s spouse not living together. This one whom the father or mother is under of the long paragraph in § 3.343(c) is implicit under current § 3.250(a) a legal or moral obligation to support. would be reformatted for clarity and to because, if a remarried parent and We propose to combine this information avoid ambiguity. Proposed paragraph parent’s spouse were not living together, into one definition. We also propose to (b)(1) would state VA’s standard of the appropriate income limitation define family member as a relative. This proof for reducing a TDIU rating. category would be the amount under has always been VA’s intent, which is Paragraph (b)(2) would prescribe current § 3.250(a)(1)(i) for ‘‘a mother or why current § 3.250(b) and (b)(2) refers specific types of evidence VA must father not living together’’. Proposed to a ‘‘member of the family’’ rather than receive to meet the standard of proof for § 5.300(a)(2) would clarify that net to a member of the household. This reduction of a TDIU rating of a veteran worth is not a consideration when a change would standardize the in vocational rehabilitation, education, parent’s income is at or below the application of this section nationally or training. Paragraph (b)(3) would prescribed levels in proposed paragraph and would be consistent with long- provide that a veteran’s participation in (a)(1). This information is implicit in standing VA practice. certain VA programs will be considered current § 3.250(a)(1) and (2), but it is not We have not repeated in proposed evidence of employability for purposes clearly stated. § 5.300(c) a provision of current of reducing a TDIU rating. Paragraph When proposed paragraph (a) would § 3.250(b)(2) that limits VA’s (b)(4) would restate current § 3.343(c)(2) not apply, VA must determine consideration of the expenses a parent with the change for succinctness dependency on a case-by-case basis. incurs for the support of a relative mentioned above. Paragraph (b)(4) Proposed § 5.300(b) would explain whom the parent is under a legal or would also omit the reference in current when VA must make a factual finding moral obligation to support to expenses § 3.343(c) to ‘‘the period beginning after of dependency. Proposed paragraph of a relative ‘‘in the ascending as well as

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descending class’’, which we construe to Section 5.302 General Income Rules— become redundant and need not be mean relatives in a parent’s direct line. Parent’s Dependency carried forward. (‘‘Ascendant’’ means ‘‘[o]ne who Because VA must count all payments, precedes in lineage, such as a parent or Current §§ 3.261 and 3.262 provide it is necessary to know what VA the regulatory framework VA uses to grandparent.’’ Black’s Law Dictionary includes in, and excludes from, the term calculate income for purposes of 121 (8th ed. 2004). ‘‘Descendant’’ means ‘‘payments’’. To eliminate redundancy, determining eligibility for Section 306 ‘‘[o]ne who follows in lineage, in direct we would cross-reference proposed Pension, parents’ DIC, and additional (not collateral) descent from a person. § 5.370, ‘‘Definitions for Improved disability compensation for the Pension’’, 72 FR at 54776, which defines Examples are children and dependency of a parent. Current ‘‘payments’’. This definition would grandchildren.’’ Id. at 476.) This current §§ 3.261 and 3.262 are lengthy and apply throughout part 5. provision excludes, for example, the complex because those sections Proposed § 5.302(b) would provide expenses of an orphaned niece or combine provisions concerning the that, if a parent is married, ‘‘income’’ nephew who is still a minor for whom evaluation of income in three very would be the combined income of the the parent is providing support. different contexts. As a result, §§ 3.261 parent and the parent’s spouse, except This restriction to the ascending and and 3.262 can be difficult to understand where the marriage has been terminated descending class is not required by and use. Therefore, in part 5 we propose or the parent is separated from his or statute. The authorizing statute, 38 to divide the subject matter addressed her spouse. We would also state that U.S.C. 102, merely states that by current §§ 3.261 and 3.262 into ‘‘[i]ncome is combined whether the ‘‘[d]ependency of a parent * * * shall separate regulations, each dealing with parent’s spouse is the veteran’s other be determined in accordance with the evaluation of income for a specific parent or the veteran’s stepparent’’ and ‘‘ regulations prescribed by the Secretary purpose. This division is also consistent that [t]he income of the parent’s spouse will be subject to the same rules that are [of Veterans Affairs].’’ 38 U.S.C. 102(a). with the benefit-specific organizational plan of proposed new part 5. Proposed applicable to determining the income of We do not believe that the restriction is §§ 5.302 through 5.304 would pertain the veteran’s parent.’’ This would be a necessary, particularly because the only to calculating income for the clearer statement of the principle in the qualifying expenses are already limited purpose of determining a veteran’s introduction to current § 3.262(b), to expenses of persons who are relatives entitlement to additional disability which provides that ‘‘[i]ncome of the whom the parent has a moral or legal compensation for parent’s dependency. spouse will be determined under the obligation of support. We also note that Income regulations for pension and rules applicable to income of the there is no such restriction with respect parent’s DIC are addressed in NPRMs claimant.’’ The income rules in to expense deductions used in dealing with those subjects. proposed § 5.302 would be applicable to calculating VA’s largest income-based Because there are numerous a parent. The spouse of a veteran’s program, Improved Pension. See, e.g., similarities between the way income is parent will always be either the current § 3.272(g)(1)(i); proposed calculated for determining a parent’s veteran’s other parent (in which case the rules would expressly apply) or the § 5.413(b)(2)(i), 72 FR at 54776. VA’s dependency and for determining veteran’s stepparent. In the context of rules for determining income for eligibility for parents’ DIC, and to additional disability compensation to a purposes of administering its income- promote as much consistency as the veteran for parent’s dependency, the based programs should be consistent subject matter allows, we have based the veteran, and not the parent, is the unless the law requires otherwise. structure of proposed §§ 5.302 through claimant. Current § 3.660(a)(1) provides, in part, 5.304 on their proposed counterparts for Current § 3.250(b)(2) provides that that ‘‘in compensation claims subject to income calculations for purposes of ‘‘[i]n determining whether other § 3.250(a)(2), notice must be furnished parents’ DIC eligibility. See § 5.531, members of the family under legal age of any material increase in corpus of the ‘‘General income rules’’; § 5.532, are factors in necessary expenses of the estate or net worth.’’ Current ‘‘Deductions from income’’; and § 5.533, mother or father, consideration will be § 3.250(a)(2) provides that VA may ‘‘Exclusions from income’’, 70 FR at given to any income from business or consider the factual dependency of a 61326. The text of proposed §§ 5.302 property (including trusts) actually veteran’s parents. Paragraph (d) of through 5.304 would also reflect the available, directly or indirectly, to the differences in the way that income is proposed § 5.300 would substitute mother or father for the support of the calculated for parent’s dependency ‘‘report’’ for ‘‘notice’’ because minor but not to the corpus of the estate purposes. notifications are typically provided by or the income of the minor which is not VA and not by claimants. In addition, Proposed § 5.302(a) would state the so available.’’ Proposed § 5.302(c), based proposed § 5.300(d) would clarify that basic rule that VA must count all on §§ 3.250(b)(2) and 3.261(a)(3), would the report regarding an increase in the payments of any kind from any source refer to the veteran’s ‘‘parent’’ rather ‘‘ ’’ parent’s income or net worth must be in determining income. Beginning with than to the veteran’s mother or father this basic rule would simplify the to make it clear that these regulatory furnished by the veteran who is proposed regulation because the all- provisions refer to the veteran’s parent receiving additional disability inclusive nature of the rule would whose dependency is at issue, rather compensation based on a dependent eliminate any need to catalog types of than to the mother or father of the parent, and that failure to report such an countable income. All income that a minor. Under the applicable definition increase may result in creation of parent receives is income for parent’s of ‘‘family member’’ (see proposed indebtedness based on an overpayment dependency purposes unless there is a § 5.300(c)) the minor family member subject to recovery by VA. Consistent specific exclusion. For example, with would not necessarily be another child with current § 3.660(a)(1), this reporting this beginning point, provisions such as of the veteran’s parent. Also, to be requirement would only apply when a the first sentence of current § 3.262(j)(2) consistent with the new proposed parent’s increased income exceeds the (providing that, with respect to life definition of ‘‘family member’’, we amounts specified in proposed insurance, ‘‘the full amount of payments propose to refer to a family member who § 5.300(a)(1). is considered income as received’’) is under ‘‘21 years of age’’ rather than to

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a family member who is under ‘‘legal Section 5.304 Exclusions From that are unique to a parent’s age’’, as stated in current 3.250(b)(2). Income—Parent’s Dependency dependency allowance. Proposed § 5.302(d), based on current Proposed § 5.304 would list income Current § 3.261(a)(20) excludes VA § 3.262(k)(2), would state the rule that that VA does not count when benefit payments for World War I income from a parent’s property is calculating a parent’s income. Proposed adjusted compensation. We would income of the parent. Property paragraph (c) would be based on current remove this exclusion because there is ownership is an important indicator of § 3.261(a)(12), which excludes the ‘‘[s]ix- currently only one World War I veteran. the right to income from that property, months’ death gratuity’’. However, we We do not envision receiving any new but it is not always controlling. To propose to change the description to claims for this benefit. eliminate redundancy, we would cross- ‘‘[d]eath gratuity payments by the Proposed § 5.304(h), based on current reference § 5.410(f), 72 FR at 54776, for Secretary concerned under 10 U.S.C. § 3.262(k)(4), would provide an how VA determines ownership of 1475 through 1480.’’ The phrase ‘‘six- exclusion for net profit from the sale of property. This provision would apply months’ death gratuity’’ is obsolete. the parent’s principal residence when throughout part 5. While the death gratuity consisted of that profit is used to purchase another Proposed § 5.302(e) would state the principal residence within specified rules for calculating the amount of profit six-months’ pay when originally enacted (see Pub. L. 66–99, § 1, 41 Stat. time constraints. In drafting proposed from the sale of real or personal § 5.304(h), we intentionally omitted the property. Current § 3.262(k)(3) provides 367 (1919)), that is no longer the case. Over the years, these death gratuity rule in current § 3.262(k)(4) that makes that the basis for calculating net profit the exclusion available only when the on the sale of such property is the value payments have evolved into a fixed sum, rather than a variable amount net profit is applied to the purchase of of the property at the date of entitlement a new principal residence after January to benefits (in this case, the veteran’s equal to six-months’ pay. See 10 U.S.C. 10, 1962. Inclusion of that effective date entitlement to additional disability 1478. As covered in proposed paragraph has been rendered unnecessary due to compensation based on parent’s (c), this exclusion would extend to the passage of time. This is particularly dependency), if the property was owned death gratuity payments in lieu of true in view of the fact that, to qualify prior to the date of entitlement. payments under 10 U.S.C. 1478 made to for this exclusion, the application of the However, it does not state the basis for certain survivors of ‘‘Persian Gulf net profit from the sale of the old calculating the net profit on the sale of conflict’’ veterans as authorized by the residence to the purchase of a property acquired after the date of Persian Gulf Conflict Supplemental replacement residence must be reported entitlement. We propose to adopt the Authorization and Personnel Benefits to VA within 1 year after the date it was commonly used principle that the value Act of 1991. See Public Law 102–25, to be deducted from the sales price to § 307, 105 Stat. 82 (1991). Note that the so applied. determine profit in such circumstances phrase ‘‘Secretary concerned’’ is defined Current § 3.261(a)(11) excludes is the cost of the property, including in proposed § 5.1. See 71 FR at 16474. ‘‘mustering-out pay’’ from income for improvements. This rule would be one Proposed § 5.304 would combine purposes of determining parental with which many claimants should be rules from current § 3.262 that permit a dependency. We propose to omit this familiar. It would be, for example, parent to exclude from his or her provision from § 5.304. Mustering-out similar to the rule used in determining income the value of certain income pay was repealed by Public Law 89–50, profit for Federal income tax purposes. received by that parent. One of these is 79 Stat. 173, in 1965. found in current § 3.262(f), which We propose to omit an exclusion Section 5.303 Deductions From requires VA to treat ‘‘[b]enefits received listed in current § 3.261(a)(20) because it Income—Parent’s Dependency under noncontributory programs, such is now obsolete. That section excludes Even though all income is counted as old age assistance, aid to dependent ‘‘[s]ervicemember’s indemnity’’ from except where there is specific authority children, and supplemental security income for purposes of determining to exclude it, VA permits deductions income’’ as charitable donations. We parental dependency. The Servicemen’s from income in some instances. That is, propose to remove the references to the Indemnity Act of 1951, Public Law the amount of income ultimately Old Age Assistance program and the 82–23, 65 Stat. 33, authorized VA to pay counted is the difference between Aid to Dependent Children program indemnity in the form of $10,000 income and certain deductible expenses because these programs no longer exist. automatic life insurance coverage to the directly associated with that income. The Old Age Assistance program was survivors of members of the Armed Proposed § 5.303 would list permitted phased out and totally replaced by the Forces who died in service. However, deductions. Supplemental Security Income program the Act authorizing this benefit was Proposed § 5.303(b), concerning the in 1972 and the Aid to Dependent repealed in 1956. See Public Law deductibility of expenses associated Children program became a federal 84–881, § 502(9), 70 Stat. 886 (1956). with recoveries for death and disability, block grant known as Temporary Disability Compensation Effective Dates would be based on rules found in Assistance to Needy Families in 1996. current §§ 3.261(a)(24) and 3.262(i)(1) There are a number of other Federal This section would begin with a note and (j)(4). Current § 3.262(i)(1) refers to statutes that exempt specific kinds of cross-referencing effective date rules for ‘‘the Bureau of Employees’ income from consideration in temporary total disability compensation Compensation, Department of Labor (of determining either eligibility for all ratings under current 38 CFR 4.29 based the United States).’’ The Bureau of Federal income-based programs, or upon a veteran’s hospitalization for Employees’ Compensation was eligibility for all of VA’s income-based treatment or observation of a service- abolished in 1974. See 20 CFR 1.5. Its benefit programs. Because those connected disability or under current 38 functions are now carried out by the exclusions affect more than a parent’s CFR 4.30 based on convalescence. We Office of Workers’ Compensation dependency, they will be addressed in propose not to include, in part 5, Programs of the U.S. Department of § 5.412, 72 FR at 54776, ‘‘Income provisions similar to those in current Labor. See 20 CFR 1.6(b). This change exclusions for calculating countable §§ 3.401(h) and 3.501(m) because would be reflected in proposed annual income’’. Proposed § 5.304 current §§ 4.29 and 4.30 contain § 5.303(b)(2). would list only those income exclusions effective date rules that apply in

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situations covered by §§ 3.401(h) and implement 38 U.S.C. 5110(a) and (b)(2) received within 1 year from such date’’. 3.501(m). as they pertain to an award of increased This provision is based on 38 U.S.C. disability compensation. An increase in 5110(b)(2), which states that ‘‘[t]he Section 5.311 Effective Dates—Award disability compensation most often effective date of an award of increased of Disability Compensation results from an increase in a disability compensation shall be the earliest date Proposed § 5.311, based on current rating governed by the Schedule for as of which it is ascertainable that an § 3.400(b)(2), would provide the Rating Disabilities in part 4 of this increase in disability had occurred, if effective date rules for an award of chapter. Section 5110(b)(2) and current application is received within one year disability compensation. We propose to § 3.400(o)(2) also govern the effective from such date.’’ Rather than use the omit the distinction in current date of an award of or increase in term ‘‘ascertainable’’, we would simply § 3.400(b)(2)(i) and (ii) between awards special monthly compensation (SMC) to state in proposed § 5.312(b)(1) that the of compensation based on direct service a veteran with a current disability effective date will be ‘‘the date that the connection and those based on compensation award, even though the evidence warrants a higher disability presumptive service connection. In Schedule for Rating Disabilities does not rating, or an award or higher rate of proposed § 5.1, we would define ‘‘direct govern SMC; no other statute or special monthly compensation, if VA service connection’’ as distinguishable regulation provides an effective date of received a claim for increased disability from service connection based on a legal an award of SMC to a veteran with a compensation within 1 year after that presumption. 71 FR at 16473. This current compensation award. We would date.’’ This would be consistent with distinction would be unnecessary in title the section to refer to an increase current VA practice and the authorizing § 5.311 because the effective date rules in disability compensation, consistent statute. This would not be a substantive in current § 3.400(b)(2)(i) and (ii) are the with 38 U.S.C. 5110(b)(2) and current change. same. By combining the two rules we § 3.400(o)(2), and draft the regulation to Section 5.313 Effective Dates— would eliminate redundancy. No apply to an award of increased Discontinuance of a Total Disability substantive change would be intended. disability compensation, rather than to Rating Based on Individual Proposed § 5.311(a) would implement an increase in a disability rating. This Unemployability 38 U.S.C. 5110(b)(1), which permits VA would not be a change in scope of the to make retroactive payments of current regulation or otherwise a Proposed § 5.313 would be based on disability compensation when a veteran substantive change. current § 3.501(e)(2) and (f). Section files a benefit claim within 1 year after Proposed § 5.312(a) would be new. It 3.501(e)(2) states an effective date rule separation from service. There are would inform readers of the type of for discontinuance of a TDIU rating if a several differences between proposed awards that VA considers to be subject veteran regains employability. However, § 5.311(a) and its current part 3 to 38 U.S.C. 5110(b)(2): A higher it does not provide guidance on what equivalent, § 3.400(b)(2). disability rating under subpart B of the rating to assign in place of the TDIU Current § 3.400(b)(2)(i) states that the Schedule for Rating Disabilities in part rating. Section 3.501(f) provides an effective date of disability compensation 4 of this chapter; a higher disability effective date rule for discontinuance of is the ‘‘[d]ay following separation from rating under the extra-schedular TDIU if a veteran fails to return an active service or date entitlement arose provision in evaluation under employment questionnaire to VA. It if claim is received within 1 year after § 5.280(b); a higher disability rating provides that the award will be reduced separation after service; otherwise, date under § 4.16 of this chapter, ‘‘Total to the ‘‘amount payable for the schedular of receipt of claim, or date entitlement disability ratings for compensation evaluation shown in the current rating arose, whichever is later.’’ We propose based on unemployability of the as of the day following the date of last to replace the word ‘‘separation’’ with individual’’; and an award or higher rate payment.’’ It has been long-standing VA the statutory phrase ‘‘discharge or of special monthly compensation. practice to also apply the schedular release’’. We would define the term The note after proposed § 5.312(a) evaluation to cases where a veteran ‘‘discharge or release’’ in proposed § 5.1. would explain that this section does not regains employability under 71 FR at 16464. We also propose to establish the effective date of an award § 3.501(e)(2). We propose to codify in replace ‘‘active service’’ with ‘‘active of secondary service connection under § 5.313(b) this practice, which produces military service.’’ In proposed § 5.1, we § 5.246 or § 5.247. This would be a fair result for veterans and is simple would define ‘‘active military service’’ to consistent with the holding of the CAVC to administer. We also propose to mean the same as the statutory term in Ross v. Peake, 21 Vet. App. 528, 532 replace the term ‘‘current rating’’ in ‘‘active military, naval, or air service’’. (2008), that ‘‘an award of ‘increased § 3.501(f) with ‘‘existing schedular 71 FR at 16473. compensation’ within the meaning of rating.’’ The term ‘‘current rating’’ could In paragraph (b) of § 5.311, we section 5110(b)(2) does not encompass be confusing because the most ‘‘current’’ propose to restate the rule contained in an award of secondary service rating would be for TDIU. Using the phrase ‘‘otherwise, date of receipt of connection because, by definition, ‘‘existing schedular rating’’ would clarify claim, or date entitlement arose, secondary service connection requires that we mean the rating that was in whichever is later’’ in current the incurrence of an additional effect when TDIU was awarded. § 3.400(b)(2)(i) and (ii). Rather than disability.’’ We would apply the We are proposing to rephrase effective repeat this language, we propose to reasoning in Ross to claims for date rules concerning reductions and simply reference the general part 5 secondary service connection under discontinuances of VA benefits effective date rule found at § 5.150(a). § 5.246 and § 5.247. throughout part 5. Stating the first day 72 FR 28,770, 28,876 (May 22, 2007). Proposed § 5.312(b) would restate in VA will pay the new reduced rate or plain language the current effective-date discontinue making payment, rather Section 5.312 Effective Dates— rule for an award of increased disability than stating the last day of the old rate Increased Disability Compensation compensation. Current § 3.400(o)(2) or the last day of payment, would make Proposed § 5.312, based on current provides for an effective date on the these effective-date provisions easier to § 3.400(o)(2), would state the effective ‘‘[e]arliest date as of which it is factually apply. Therefore, proposed paragraphs date rules for an award of increased ascertainable that an increase in (b) and (c) would state that the disability compensation. It would disability had occurred if claim is reduction ‘‘will be effective’’ as specified

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in each paragraph. Similar proposed Proposed paragraph (b) would clarify Executive Order 12866 changes would also appear in that, if a veteran’s parent ceases to be Executive Order 12866 directs subsequent reduction and dependent because the parent’s agencies to assess all costs and benefits discontinuance effective date rules in economic status has improved, the of available regulatory alternatives and, the NPRM. VA intends no substantive effective date of the discontinuance of when regulation is necessary, to select change by this new language. the additional disability compensation regulatory approaches that maximize depends on whether the improvement is Section 5.314 Effective Dates— net benefits (including potential due to an increase in income or an Discontinuance of Additional Disability economic, environmental, public health increase in net worth. In the former Compensation Based on Parental and safety, and other advantages; case, the effective date would be the Dependency distributive impacts; and equity). The first day of the month after which the Executive Order classifies a ‘‘significant Proposed § 5.314 would be based on change occurred. In the latter case, the regulatory action,’’ requiring review by rules in current §§ 3.500(g), (h), and (n) effective date would be the first day of the Office of Management and Budget and 3.660(a)(2), which govern the the year after which the change (OMB) unless OMB waives such review, effective dates of discontinuance of occurred. This result is required by 38 as any regulatory action that is likely to awards of additional disability U.S.C. 5112(b)(4). result in a rule that may: (1) Have an compensation to a veteran with a annual effect on the economy of $100 dependent parent when parental Section 5.315 Effective Dates— Additional Disability Compensation million or more or adversely affect in a dependency ends. Current § 3.500(h) material way the economy, a sector of refers the reader to various statutes and Based on Decrease in the Net Worth of a Dependent Parent the economy, productivity, competition, other regulations, some of which pertain jobs, the environment, public health or to disability compensation rules and Proposed § 5.315, based on current safety, or State, local, or tribal some of which refer to rules concerning § 3.660(d), would provide the effective governments or communities; (2) Create other benefits where parental date rule that would apply if a serious inconsistency or otherwise dependency is relevant, such as death entitlement to additional disability interfere with an action taken or compensation for a parent. Proposed compensation based on the dependency planned by another agency; (3) § 5.314 would only include information of a parent is reestablished after VA had Materially alter the budgetary impact of from the sources cross-referenced in previously denied or discontinued the entitlements, grants, user fees, or loan current § 3.500(h) that relate to the additional disability compensation programs or the rights and obligations of discontinuance of additional disability because of the parent’s net worth. VA recipients thereof; or (4) Raise novel compensation to a veteran when the proposes to separate the new section legal or policy issues arising out of legal financial dependency of a parent ends. into two paragraphs—an introductory mandates, the President’s priorities, or Current §§ 3.500(g)(2), (h), (n)(2), and paragraph, which explains when the the principles set forth in the Executive 3.660(a)(2) contain rules that apply to rule would apply, and a paragraph Order. discontinuance of additional disability explaining the rule itself. Consistent VA has examined the economic, compensation based on parental with other proposed regulations in this interagency, budgetary, legal, and policy dependency that are related to events NPRM, VA proposes to use the term ‘‘net implications of this proposed rule and (marriage, divorce, annulment, and worth’’ instead of ‘‘corpus of estate’’. has determined that it is not a death) that occurred prior to October 1, significant regulatory action under the Endnote Regarding Amendatory 1982. We propose to omit these Executive Order because it will not Language provisions. With the passage of time, result in a rule that may raise novel they have become unnecessary. It is We intend to ultimately remove part legal or policy issues arising out of legal unlikely that VA would now 3 entirely, but we are not including mandates, the President’s priorities, or retroactively discontinue additional amendatory language to accomplish that the principles set forth in the Executive disability compensation because of at this time. VA will provide public Order. events involving a veteran’s parent that notice before removing part 3. occurred more than 28 years ago. Unfunded Mandates Proposed § 5.314 would be a Paperwork Reduction Act The Unfunded Mandates Reform Act counterpart to only the third sentence of of 1995 requires, at 2 U.S.C. 1532, that § 3.660(a)(2) that pertains to This document contains no provisions agencies prepare an assessment of discontinuance of additional disability constituting a new collection of anticipated costs and benefits before compensation based on parental information under the provisions of the issuing any rule that may result in an dependency. Current § 3.660(a)(2) Paperwork Reduction Act of 1995 (44 expenditure by State, local, or tribal addresses reduction or discontinuance U.S.C. 3501–3521). governments, in the aggregate, or by the of multiple VA benefits. Some, such as Regulatory Flexibility Act private sector, of $100 million or more pension, are susceptible to reduction of (adjusted annually for inflation) in any the award of benefits because of The Secretary hereby certifies that 1 year. This proposed rule would have increases in income or other financial this proposed rule would not have a no such effect on State, local, or tribal events. The additional disability significant economic impact on a governments, or on the private sector. compensation based on parental substantial number of small entities as dependency is not one of them. It is an they are defined in the Regulatory Catalog of Federal Domestic Assistance all-or-nothing benefit. If the parent Flexibility Act, 5 U.S.C. 601–612. This Numbers and Titles ceases to meet the criteria for the proposed rule would not affect any The catalog of Federal Domestic veteran’s entitlement, VA discontinues small entities. Therefore, pursuant to Assistance program numbers for this the additional disability compensation. 5 U.S.C. 605(b), this proposed rule proposal are: 64.100, Automobiles and Consequently, proposed § 5.314 would would be exempt from the initial and Adaptive Equipment for Certain refer only to discontinuance of the final regulatory flexibility analysis Disabled Veterans and Members of the additional disability compensation. requirements of sections 603 and 604. Armed Forces; 64.101, Burial Expenses

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Allowance for Veterans; 64.102, 5.244 Presumption of sound condition. or presumed to have been aggravated, in Compensation for Service-Connected 5.245 Service connection based on the line of duty during active military Deaths for Veterans’ Dependents; aggravation of preservice injury or service. See § 5.245, ‘‘Service connection disease. 64.104, Pension for Non-Service- 5.246 Secondary service connection— based on aggravation of preservice Connected Disability for Veterans; disability that is proximately caused by injury or disease.’’ 64.105, Pension to Veterans Surviving service-connected disability. (c) The disability is secondary to a Spouses, and Children; 64.106, 5.247 Secondary service connection— service-connected disability, pursuant Specially Adapted Housing for Disabled nonservice-connected disability to §§ 5.246–5.248 (governing awards of Veterans; 64.109, Veterans aggravated by service-connected secondary service connection). disability. Compensation for Service-Connected (Authority: 38 U.S.C. 1110, 1112, 1116, 1117, Disability; 64.110, Veterans Dependency 5.248 Service connection for cardiovascular disease secondary to 1118, 1131, 1133, 1137) and Indemnity Compensation for service-connected lower extremity Service-Connected Death; 64.115, § 5.242 General principles of service amputation. connection. Veterans Information and Assistance; 5.249 Special service connection rules for and 64.127, Monthly Allowance for combat-related injury or disease. When a veteran seeks service Children of Vietnam Veterans Born with 5.250 Service connection for posttraumatic connection: Spina Bifida. stress disorder. (a) VA will give due consideration to 5.251 Current disabilities for which VA any evidence of record concerning the Signing Authority cannot grant service connection. places, types, and circumstances of the The Secretary of Veterans Affairs, or 5.252–5.259 [Reserved] veteran’s service as shown by the veteran’s service record, the official designee, approved this document and Subpart E—Claims for Service history of each organization in which authorized the undersigned to sign and Connection and Disability the veteran served, the veteran’s submit the document to the Office of the Compensation Federal Register for publication medical records, and all pertinent electronically as an official document of Service-Connected and Other Disability medical and lay evidence; and the Department of Veterans Affairs. John Compensation (b) VA will not consider a statement R. Gingrich, Chief of Staff, Department that a veteran signed during service that: of Veterans Affairs, approved this § 5.240 Disability compensation. (1) Pertains to the origin, incurrence, document on August 12, 2010, for (a) Definition. ‘‘Disability or aggravation of an injury or disease; publication. compensation’’ means a monthly and payment VA makes to a veteran for a (2) Was against the veteran’s interest List of Subjects in 38 CFR Part 5 service-connected disability, as at the time he or she signed it. Administrative practice and described in § 5.241, or for a disability (Authority: 10 U.S.C. 1219; 38 U.S.C. 1154(a)) procedure, Claims, Disability benefits, compensated as if it were service Health care, Pensions, Radioactive connected, under § 5.350, ‘‘Benefits § 5.243 Establishing service connection. materials, Veterans, Vietnam. under 38 U.S.C. 1151(a) for additional (a) Requirements. Except as provided Dated: August 19, 2010. disability or death due to hospital care, in §§ 5.246, ‘‘Secondary service William F. Russo, medical or surgical treatment, connection—disability that is examination, training and rehabilitation proximately caused by service- Director, Regulations Management, Department of Veterans Affairs. services, or compensated work therapy connected disability’’, and 5.247, program.’’ ‘‘Secondary service connection— For the reasons set forth in the (b) Additional disability nonservice-connected disability preamble, VA proposes to amend 38 compensation based on having aggravated by service-connected CFR part 5 (as proposed to be added at dependents. Additional disability disability’’, and paragraph (c) of this 69 FR 4832, January 30, 2004, and as compensation is payable to a veteran section, proof of the following elements amended by adding subpart E at 69 FR who has a spouse, child, or dependent is required to establish service 44624, July 27, 2004) as follows: parent if the veteran is entitled to connection: disability compensation based on a PART 5—COMPENSATION, PENSION, (1) A current disability; single or a combined disability rating of (2) Incurrence or aggravation of an BURIAL, AND RELATED BENEFITS 30 percent or more. The additional injury or disease in active military 1. The authority citation for part 5, disability compensation authorized by service; and subpart E, continues to read as follows: 38 U.S.C. 1115 is payable in addition to (3) A causal link between the injury Authority: 38 U.S.C. 501(a) and as noted monthly disability compensation or disease incurred in, or aggravated by, in specific sections. payable under 38 U.S.C. 1114. active military service and the current disability. 2. Sections 5.240 through 5.251 and (Authority: 38 U.S.C. 101(13), 1110, 1114, their undesignated center heading are 1115, 1131, 1135, 1151) Note 1 to paragraph (a): Permanent added to subpart E and §§ 5.252 through disability shown in service. VA will consider § 5.241 Service-connected disability. all three elements of paragraph (a) of this 5.259 are reserved to read as follows: A ‘‘service-connected disability’’ is a section proven if service records establish Subpart E—Claims for Service Connection current disability as to which any of the that an injury or disease incurred in or and Disability Compensation following is true: aggravated by active military service (a) The disability was caused by an produced a disability that is clearly Service-Connected and Other Disability permanent by its nature, such as the Compensation injury or disease incurred, or presumed to have been incurred, in the line of amputation of a limb or the anatomical loss Sec. of an organ. 5.240 Disability compensation. duty during active military service. See 5.241 Service-connected disability. §§ 5.260 through 5.269 (concerning Note 2 to paragraph (a): Chronic disease or 5.242 General principles of service presumptions of service connection). chronic residual of an injury in temporary connection. (b) The disability was caused by a remission. VA will not deny service 5.243 Establishing service connection. preservice injury or disease aggravated, connection for lack of a current disability

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solely because a chronic disease, or a chronic section, service connection is disability for which the veteran claims residual of an injury, enters temporary established when all of the following are service connection both: remission. Examples of chronic diseases and shown by competent evidence: (i) Preexisted service; and chronic residuals of injury subject to (1) The veteran had signs or (ii) Was not aggravated by service, temporary remission include chronic symptoms of an injury or disease during which means that tinnitus, malaria, mental illness, skin disease, (A) During service the disability and intervertebral disc syndrome. active military service or during an applicable presumptive period for a resulting from the preexisting injury or (b) Time of diagnosis is not disease; disease did not increase in severity or necessarily controlling. Proof of (2) The signs or symptoms continued (B) Any such increase was due to the incurrence of a disease during active from the time of discharge or release natural progress of a disease. military service does not require from active military service or from the (2) To determine whether there was diagnosis during service if the evidence end of the applicable presumptive an increase in the severity of disability otherwise establishes that the disease period, until the present; and during service (or during any applicable was incurred in service. (3) The signs or symptoms currently presumptive period) resulting from a (c) Chronic residuals of injuries and demonstrated are signs or symptoms of preexisting injury or disease, see chronic diseases—(1) General rule. VA an injury or disease, or the residuals of § 5.245(b). will grant service connection for a (3) If there was an increase in the an injury or disease, to which paragraph current disability not clearly due to an severity of disability during service (or (d)(1) of this section refers. intercurrent cause if: during any applicable presumptive (i) The current disability is caused by (Authority: 38 U.S.C. 101(16), 501, 1110, period) resulting from a preexisting a chronic disease and competent 1131) injury or disease, to determine whether evidence establishes that the veteran § 5.244 Presumption of sound condition. the increase was due to the natural had the same chronic disease in service progress of a disease, see § 5.245(c). (a) Presumption of sound condition. or within an applicable presumptive VA will presume that a veteran was in (Authority: 38 U.S.C. 1110, 1111, 1131, 1137) period; or (ii) The veteran had an injury in sound condition upon entry into active § 5.245 Service connection based on service and currently has a disability military service, which means that the aggravation of preservice injury or disease. due to chronic residuals of the same veteran was free from injury or disease (a) Presumption of aggravation. When injury. except as noted in the report of a an injury or disease was noted in the (2) Proof that a disease or residual of medical examination conducted for report of examination for entry into an injury is chronic. For purposes of this entry into active military service. active military service, VA will presume paragraph (c), VA will consider the (b) Report of entry examination not a that active military service aggravated a following to be chronic: condition for application of the preexisting injury or disease if there was (i) A chronic disease listed in presumption. The presumption of sound an increase in disability resulting from § 5.261(d); condition applies even if: the injury or disease during service (or (ii) A disease shown to be chronic by (1) The veteran did not have a during any applicable presumptive competent evidence; or medical examination for entry into period). (iii) A residual of an injury (such as active military service; or (b) Determining whether disability scarring or nerve, muscle, skeletal, or (2) There is no record of the increased during service—(1) Increase joint impairment) shown to be chronic examination. in severity. For purposes of this section, by competent evidence. (See also (c) Medical history recorded in entry increase in disability during active paragraph (d) of this section on examination reports—(1) Medical military service means the disability establishing chronicity through histories. The presumption of sound resulting from the preexisting injury or evidence of continuity of signs or condition applies if an examiner disease permanently became more symptoms). recorded a history of injury or disease severe during service (or during any in an entry examination report, but the Note to paragraph (c): Proof that a disease applicable presumptive period) than it was chronic in service requires a examiner did not report any was before active military service. combination of manifestations in service contemporaneous clinical findings (2) Temporary flare-ups. Except as sufficient to identify the disease entity, and related to such injury or disease. VA provided in paragraph (b)(4) of this sufficient observation to establish chronicity may consider the notation of history section, temporary or intermittent flare- at the time, as distinguished from merely together with other evidence in ups of signs or symptoms of a isolated findings or a diagnosis in service determining whether the presumption preexisting injury or disease do not including the word ‘‘chronic.’’ See also of sound condition is rebutted under constitute aggravation in service unless § 5.260(c), ‘‘Rebutting a presumption of paragraph (d) of this section. the underlying condition worsened, service connection set forth in §§ 5.261 (2) Medical examination reports. The through 5.268.’’ Isolated findings in service, resulting in increased disability. such as joint pain, any abnormality of heart presumption of sound condition is (3) Effects of medical or surgical action or heart sounds, any urinary findings rebuttable even if an entry medical treatment. The usual effects of medical of casts, or any cough, would not alone examination shows that the examiner or surgical treatment in service that establish the presence in service of a chronic tested specifically for a certain injury or ameliorates a preexisting injury or disease, such as arthritis, disease of the heart, disease and did not find that injury or disease, such as postoperative scars, or nephritis, or pulmonary disease, first shown disease, if other evidence of record is absent or poorly functioning parts or as a clear-cut clinical entity at some later sufficient to overcome the presumption. organs, are not an increase in the date. (d) Rebutting the presumption. severity of the underlying condition and (d) Continuity of signs or symptoms. (1) For veterans with any wartime they will not be service connected Where signs or symptoms noted in service and for veterans with peacetime unless the preexisting injury or disease service, or during an applicable service after December 31, 1946, VA can was otherwise aggravated by service. presumptive period, are not considered rebut the presumption only with clear (4) Combat or prisoner-of-war service. a chronic disease or residual of an and unmistakable evidence that the The development of signs or symptoms, injury under paragraph (c)(2) of this injury or disease resulting in the whether temporary or permanent, of a

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preexisting injury or disease during or § 5.248 Service connection for (11) Medal of Honor proximately following combat with the cardiovascular disease secondary to (12) Navy Commendation Medal with enemy, as defined in § 5.249(a)(2), or service-connected lower extremity ‘‘V’’ Device amputation. following status as a prisoner of war (13) Navy Cross will establish aggravation of the VA will grant secondary service (14) Purple Heart disability resulting from that preexisting connection for ischemic heart disease or (15) Silver Star other cardiovascular disease that injury or disease. (16) Combat Action Badge develops after a veteran has a service- (17) Any other form of decoration that (c) Rebutting the presumption— connected amputation of one lower the Secretary concerned may designate natural progress of a disease. The extremity at or above the knee or for award exclusively to persons for presumption of aggravation is rebutted service-connected amputations of both actions performed while engaged in if VA specifically finds by clear and lower extremities at or above the ankles. combat with the enemy. unmistakable evidence that the increase (Authority: 38 U.S.C. 501(a), 1110, 1131) (Authority: 38 U.S.C. 501(a), 1154(b)) in the severity of disability during service (or during an applicable § 5.249 Special service connection rules Cross References: § 5.141 (evidence in presumptive period) was normal for the for combat-related injury or disease. claims of former prisoners of war); disease, that is, active military service (a) Combat-related incurrence or § 5.245(b)(4); § 5.250(b)(2). did not contribute to the increase. aggravation of injury or disease shown § 5.250 Service connection for by lay or other evidence. (1) VA will posttraumatic stress disorder. (Authority: 38 U.S.C. 1153, 1154) accept that an injury or disease was (a) Elements of a claim for service incurred or aggravated in service if a § 5.246 Secondary service connection— connection for posttraumatic stress veteran engaged in combat with the disability that is proximately caused by disorder (PTSD). Service connection for enemy during a period of war, service-connected disability. PTSD requires: campaign, or expedition, and there is (1) Medical evidence diagnosing Except as provided in § 5.365(a), VA satisfactory lay or other evidence that PTSD in accordance with § 4.125(a) of will grant service connection for a the injury or disease was incurred in or this chapter; disability that is proximately caused by was aggravated by such combat. Lay (2) A link, established by medical a service-connected disability. evidence may include a veteran’s evidence, between current signs or description of an event, disease, or (Authority: 38 U.S.C. 501(a), 1110, 1131) symptoms and an in-service stressor; injury. VA will accept such evidence as and § 5.247 Secondary service connection— sufficient proof of incurrence or (3) Except as provided in paragraphs nonservice-connected disability aggravated aggravation in service of an injury or (c), (d), and (e) of this section, credible by service-connected disability. disease even though there is no official supporting evidence that the claimed in- record of the incurrence or aggravation. VA will grant service connection for service stressor occurred. For purposes The evidence must be consistent with any increase in severity of a nonservice- of this section, ‘‘credible supporting the circumstances, conditions, or connected disability if the increase was evidence’’ means credible evidence from hardships of the veteran’s combat with proximately caused by a service- any source, other than the claimant’s the enemy. Incurrence or aggravation connected disability, and the increase statement, that corroborates the established under this paragraph may be was not due to the natural progress of occurrence of the in-service stressor. rebutted by clear and convincing a nonservice-connected disease. (b) VA will not deny a claim without evidence to the contrary. trying to verify the claimed stressor. If However, VA cannot grant service (2) ‘‘Combat with the enemy’’ means the existence of the claimed stressor is connection under this section without personal participation in an actual fight not verified by credible evidence, VA medical evidence establishing the or encounter with a military foe, hostile will seek verification from the severity of the nonservice-connected unit, or instrument or weapon of war appropriate service department or other disability before or contemporaneous either: with the increase in severity due to the (i) As a combatant; or entity. The exception to this rule is service-connected disability. The agency (ii) While performing a duty in when, upon VA’s request, the claimant of original jurisdiction (AOJ) will use support of combatants, such as fails to provide the information needed the Schedule for Rating Disabilities in providing medical care to the wounded. by the appropriate service department part 4 of this chapter to rate the severity (b) Decorations as evidence of or other entity to try to verify the level of the nonservice-connected combat. When a veteran has received claimed stressor. (c) Special rule for veterans diagnosed disability prior to aggravation, any any of the combat decorations listed with PTSD during active service. If the increase in severity due to the natural below, VA will presume that the veteran engaged in combat with the enemy, evidence establishes a diagnosis of progress of the disease, and the current PTSD during service and the claimed severity level of the disability. The AOJ unless there is clear and convincing evidence to the contrary: stressor is related to that service, in the will then determine the amount of absence of clear and convincing aggravation by subtracting the rating (1) Air Force Cross (2) Air Medal with ‘‘V’’ Device evidence to the contrary, and provided prior to aggravation and any increase in (3) Army Commendation Medal with that the claimed stressor is consistent severity due to the natural progress of ‘‘V’’ Device with the circumstances, conditions, or the disease from the current severity (4) Bronze Star Medal with ‘‘V’’ Device hardships of the veteran’s active service, level. The result will be the increase (5) Combat Action Ribbon the veteran’s lay testimony alone may proximately caused by a service- (6) Combat Infantryman Badge establish the occurrence of the claimed connected disability. VA will grant (7) Combat Medical Badge in-service stressor. service connection only for that (8) Combat Aircrew Insignia (d) Special rules for veterans who increase. (9) Distinguished Service Cross engaged in combat with the enemy or (Authority: 38 U.S.C. 501(a), 1110, 1131) (10) Joint Service Commendation who were prisoners of war. To Medal with ‘‘V’’ Device determine if a stressor occurred during

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combat with the enemy or while a health counseling centers, hospitals, or a disability that is superimposed on a prisoner of war, VA will apply the rules physicians; disability listed in paragraph (a). in § 5.249 or § 5.141, respectively. (ii) Pregnancy tests or tests for (d) Hereditary diseases. Paragraph (e)(1) Stressor confirmed by VA sexually transmitted diseases; (a)(1) of this section does not preclude psychiatrist or psychologist. In the (iii) Statements from family members, granting service connection for absence of clear and convincing roommates, fellow servicemembers, or disability due to an inherited or familial evidence to the contrary, and provided clergy; or disease (as distinguished from the claimed in-service stressor is (iv) Evidence of behavioral changes congenital or developmental defects in consistent with the places, types, and following the claimed assault (which paragraph (a)(1) of this section). See circumstances of the veteran’s service, may be shown in any of the following § 5.261(f) regarding presumptions the veteran’s lay testimony alone may sources), including: A request for a related to certain inherited or familial establish the occurrence of the stressor transfer to another military duty diseases. if: assignment; deterioration in work (e) Diseases of allergic etiology. (i) The stressor is related to the performance; substance abuse; episodes Paragraph (a) of this section does not veteran’s fear of hostile military or of depression, panic attacks, or anxiety preclude granting service connection for terrorist activity; and without an identifiable cause; or disability due to diseases of allergic (ii) A VA psychiatrist or psychologist, unexplained economic or social etiology, including, but not limited to, or a psychiatrist or psychologist with behavior changes. bronchial asthma and urticaria. whom VA has contracted, confirms that (3) VA may submit any evidence that the stressor is adequate to support a it receives to an appropriate medical or (Authority: 38 U.S.C. 501, 1110, 1131) diagnosis of posttraumatic stress mental health professional for an §§ 5.252–5.259 [Reserved] disorder and that the veteran’s opinion as to whether it indicates that symptoms are related to the claimed a personal assault occurred. 3. Sections 5.280 through 5.285 and stressor. their undesignated center heading are (2) For purposes of this paragraph, (Authority: 38 U.S.C. 501(a), 1110, 1131, added to subpart E and §§ 5.286 through 1154) ‘‘fear of hostile military or terrorist 5.299 are reserved to read as follows: activity’’ means: § 5.251 Current disabilities for which VA Rating Service-Connected Disabilities (i) That a veteran experienced, cannot grant service connection. witnessed, or was confronted with an Sec. (a) General rule. VA will not grant 5.280 General rating principles. event or circumstance that involved service connection for the following 5.281 Multiple 0-percent service-connected actual or threatened death or serious disabilities because they are not the disabilities. injury, or a threat to the physical result of an injury or disease for 5.282 Special consideration for paired integrity of the veteran or others, such purposes of service connection: organs and extremities. as: (1) Congenital or developmental 5.283 Total and permanent total ratings and (A) From an actual or potential defects (such as congenital or unemployability. improvised explosive device; developmental refractive error of the 5.284 Total disability ratings for disability (B) Vehicle-imbedded explosive compensation purposes. eye); 5.285 Continuance of total disability device; (2) Developmental personality (C) Incoming artillery, rocket, or ratings. disorders; or 5.286–5.299 [Reserved] mortar fire; (3) Developmental intellectual (D) Grenade; Rating Service-Connected Disabilities (E) Small arms fire, including disability (mental retardation). (b) Distinguishable disabilities. VA suspected sniper fire; or § 5.280 General rating principles. (F) Attack upon friendly military will grant service connection for the following disabilities, which are (a) Use of rating schedule. VA will use aircraft, and the Schedule for Rating Disabilities in (ii) The veteran’s response to the scientifically distinguishable from those listed in paragraph (a) of this section part 4 of this chapter to rate the degree event or circumstance involved a of disabilities in claims for disability psychological or psycho-physiological and actually result from an injury or disease: compensation and in eligibility state of fear, helplessness, or horror. determinations. Instructions for using (f) Special rules for establishing a (1) Malignant or pernicious myopia; the schedule are in part 4. stressor based on personal assault. (1) (2) Personality change (as VA will not deny a PTSD claim that is distinguished from personality disorder) (b) Extra-schedular ratings in unusual based on in-service personal assault as part of, or proximately caused by, an cases—(1) Disability compensation. To without: organic mental disorder or a service- accord justice to the exceptional case (i) Advising the veteran that evidence connected general medical condition where the Veterans Service Center from sources other than the veteran’s (such as psychomotor epilepsy), or due (VSC) finds the schedular ratings to be service records, including evidence to injury. See § 5.246, ‘‘Secondary inadequate, the Under Secretary for described in paragraph (c)(2) of this service connection—disability that is Benefits or the Director of the section, may constitute credible proximately caused by service- Compensation and Pension Service, supporting evidence of the stressor; and connected disability’’. upon VSC submission, is authorized to (ii) Providing the veteran with an (3) Nondevelopmental intellectual approve on the basis of the criteria set opportunity to furnish this type of disability as part of, or proximately forth in this paragraph (b) an extra- evidence or advise VA of potential caused by, a service-connected schedular rating commensurate with the sources of such evidence. disability. See § 5.246, ‘‘Secondary average impairment of earning capacity (2) Evidence that may establish a service connection—disability that is due exclusively to the service-connected stressor based on in-service personal proximately caused by service- disability or disabilities. The governing assault includes, but is not limited to, connected disability.’’ norm in these exceptional cases is a the following: (c) Superimposed disabilities. finding that the application of the (i) Records from law enforcement Paragraph (a) of this section does not regular schedular standards is authorities, rape crisis centers, mental preclude granting service connection for impractical because the case presents an

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exceptional or unusual disability nonservice-connected involvement of § 5.283 Total and permanent total ratings picture with such related factors as: the other kidney. and unemployability. (i) Marked interference with (3) Service-connected hearing (a) Total disability ratings—(1) employment, or impairment in one ear compensable to General. VA will consider total (ii) Frequent periods of a degree of 10 percent or more and disability to exist when any impairment hospitalization. nonservice-connected hearing of mind or body renders it impossible (2) Effective date. The effective date of impairment in the other ear that meets for the average person to follow a an extra-schedular rating, either the provisions of § 5.366 of this chapter, substantially gainful occupation. VA granting or increasing disability ‘‘Disability due to impaired hearing.’’ generally will not assign total ratings for compensation, will be in accordance (4) Service-connected anatomical loss temporary exacerbations or acute with § 5.311 in original and reopened or loss of use of one hand or foot and infectious diseases except where the claims and in accordance with § 5.312 nonservice-connected anatomical loss or Schedule for Rating Disabilities in part in claims for increased benefits. loss of use of the other hand or foot. 4 of this chapter (the Schedule) (c) Advisory opinions. The VSC may (5) Permanent service-connected specifically prescribes total ratings for submit to the Director of the disability of one lung rated as 50 temporary exacerbations or acute Compensation and Pension Service for percent or more disabling and infectious diseases. For compensation advisory opinion cases in which it does nonservice-connected disability of the purposes, a total disability rating may be not understand the application of the other lung. granted without regard to whether the Schedule for Rating Disabilities in part (c) Offset of judgment, settlement, or impairment is shown to be permanent. 4 of this chapter or in which the compromise—(1) Required offset. If a (2) Schedular rating or total disability propriety of an extra-schedular rating is veteran receives money or property of rating based on individual questionable. value in a judgment, settlement, or unemployability. VA may assign a total compromise from a cause of action for (Authority: 38 U.S.C. 501, 1155) rating for any disability or combination a qualifying nonservice-connected of disabilities in the following cases: § 5.281 Multiple 0-percent service- disability involving an organ or (i) The Schedule prescribes a 100- connected disabilities. extremity described in paragraph (b) of percent rating, or VA may assign a 10-percent combined this section, VA will offset the value of (ii) in a case in which VA assigns a rating to a veteran with two or more such judgment, settlement, or rating of less than 100 percent, if the permanent service-connected compromise against the increased veteran meets the requirements of § 4.16 disabilities that are each rated as 0- disability compensation payable under of this chapter or, in pension cases, the percent disabling under the Schedule this section. requirements of § 4.17 of this chapter. for Rating Disabilities in part 4 of this (2) Offset procedure. Beginning the (3) Ratings of total disability based on chapter, if the combined effect of such first of the month after the veteran history. In the case of a disability that disabilities interferes with normal receives the money or property as has undergone some recent employability. VA cannot assign this 10- damages, VA will not pay the increased improvement, VA may nonetheless percent rating if the veteran has any disability compensation payable under assign a rating of total disability, other compensable rating. this section until the total amount of provided: such increased compensation that (Authority: 38 U.S.C. 501, 1155) (i) That the disability was severe would otherwise have been payable enough in the past to warrant a total § 5.282 Special consideration for paired equals the total amount of any money disability rating; organs and extremities. received as damages and the fair market (ii) That the disability: (a) General rule. VA will pay value of any property received as (A) Required extended, continuous, or disability compensation for the damages. VA will not withhold the intermittent hospitalization; combination of service-connected and increased disability compensation (B) Produced total industrial nonservice-connected disabilities payable before the end of the month in incapacity for at least 1 year; or involving paired organs and extremities which the money or property was (C) Results in recurring, severe, described in paragraph (b) of this received. frequent, or prolonged exacerbations; section as if the nonservice-connected (3) Exception for Social Security or and workers’ compensation benefits. disability were service connected, but (iii) That it is the opinion of the Benefits received for the qualifying VA will not pay compensation for the agency of original jurisdiction (AOJ) nonservice-connected disability under nonservice-connected disability if the that, despite the recent improvement of Social Security or workers’ veteran’s willful misconduct the physical condition, the veteran will compensation laws are not subject to the proximately caused it. be unable to adjust into a substantially (b) Qualifying combination of offset described in paragraph (c)(1) of gainful occupation. The AOJ will disabilities. Disability compensation this section, even if the benefits are consider the frequency and duration of awarded in a judicial proceeding. under paragraph (a) of this section is totally incapacitating exacerbations (4) Duty to report receipt of judgment, payable for the following disability since incurrence of the original injury or settlement, or compromise. A veteran disease and the periods of combinations: entitled to receive increased disability (1) Service-connected impairment of hospitalization for treatment in compensation under this section must vision in one eye and nonservice- determining whether the average person report to VA the total amount of any connected impairment of vision in the could reestablish himself or herself in a money and the fair market value of any other eye if: substantially gainful occupation. (i) The impairment of vision in each property received as damages described (b) Permanent total disability. VA will eye is rated at a visual acuity of 20/200 in paragraph (c)(1) of this section. consider a total disability to be or less; or Expenses related to the cause of action, permanent when an impairment of (ii) The peripheral field of vision for such as attorneys’ fees, cannot be mind or body that makes it impossible each eye is 20 degrees or less. deducted from the total amount to be for the average person to follow a (2) Service-connected anatomical loss reported. substantially gainful occupation is or loss of use of one kidney and (Authority: 38 U.S.C. 1160) reasonably certain to continue

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throughout the life of the disabled (c) Program for vocational (ii) Evidence of employment progress, person. rehabilitation. Each time VA assigns a income earned, and prospects of (1) VA will consider the following total disability rating based on economic rehabilitation that disabilities or conditions as constituting individual unemployability, the agency demonstrates affirmatively the veteran’s a permanent total disability: The of original jurisdiction will inform the capacity to pursue the vocation or permanent anatomical loss or loss of use Vocational Rehabilitation and occupation for which the training is of both hands, or of both feet, or of one Employment Service of the rating so the intended to qualify him or her; or hand and one foot; the anatomical loss Vocational Rehabilitation and (iii) Evidence that the physical or or loss of sight of both eyes; being Employment Service may offer to mental demands of the course are permanently so significantly disabled as evaluate whether it is reasonably obviously incompatible with total to need regular aid and attendance; or feasible for the veteran to achieve a disability. being permanently bedridden. vocational goal. (2) VA will consider an injury or (3) Neither participation in, nor the (Authority: 38 U.S.C. 1163) disease of long-standing that is actually receipt of remuneration as a result of totally incapacitating as a permanent § 5.285 Continuance of total disability participation in, a therapeutic or total disability, if the probability of ratings. rehabilitation activity under 38 U.S.C. permanent improvement under (a) General. VA will not reduce a total 1718 will be considered evidence of treatment is remote. disability rating that was based on the employability. (3) VA may not assign a permanent severity of a person’s disability or (4) If a veteran with a total disability total disability rating as a result of any disabilities without examination rating based on individual incapacity from acute infectious disease, showing material improvement in unemployability begins a substantially accident, or injury, unless there is physical or mental condition. VA may gainful occupation, VA may not reduce present the permanent anatomical loss reduce a total disability rating that was the veteran’s rating solely on the basis or loss of use of extremities or the based on the severity of a person’s of having secured and followed such permanent anatomical loss or loss of disability or disabilities without substantially gainful occupation unless sight of both eyes, as described in examination if the rating was based on the veteran maintains the occupation for paragraph (b)(1) of this section, or the clear error. a period of 12 consecutive months. For person is permanently so significantly (1) VA will consider examination purposes of this subparagraph, VA will disabled as to need regular aid and reports showing material improvement not consider brief interruptions in attendance or permanently bedridden, in conjunction with all the facts of employment to be breaks in otherwise or when it is reasonably certain that a record, including whether: continuous employment. subsidence of the acute or temporary (i) The veteran improved under the symptoms will be followed by ordinary conditions of life, i.e., while (Authority: 38 U.S.C. 501(a), 1155, 1163(a)) irreducible totality of disability by way working or actively seeking work; or Cross References: § 5.170 (Calculation of residuals. (ii) The symptoms have been brought of 5-year, 10-year, and 20-year (4) VA may consider the age of the under control by prolonged rest or by protection periods); § 5.172 (Protection disabled person in determining whether following a regimen which precludes of continuous 20-year ratings). a total disability is permanent. work. (c) Insurance ratings. A rating of (2) If either circumstance in paragraph §§ 5.286–5.299 [Reserved] permanent and total disability for (a)(1)(ii) of this section applies, VA will insurance purposes will have no effect not reduce a total disability rating until 4. Sections 5.300, 5.302, 5.303, and on a rating for compensation or pension. VA has reexamined the person after a 5.304 and their undesignated center heading are added to subpart E and (Authority: 38 U.S.C. 501(a), 1155) period of 3 to 6 months of employment. (3) Paragraphs (a), (a)(1), and (a)(2) of §§ 5.301 and 5.305 through 5.310 are § 5.284 Total disability ratings for this section do not apply to a total rating reserved to read as follows: disability compensation purposes. that was purely based on hospital, (a) General. Subject to the limitation surgical, or residence treatment, or Additional Disability Compensation Based on a Dependent Parent in paragraph (b) of this section, total individual unemployability. disability compensation ratings may be (b) Individual unemployability. (1) VA assigned under the provisions of may reduce a service-connected total 5.300 Establishing dependency of a parent. § 5.283. disability rating based on individual 5.301 [Reserved] unemployability upon a showing of 5.302 General income rules—parent’s (Authority: 38 U.S.C. 1155) dependency. clear and convincing evidence of actual 5.303 Deductions from income—parent’s (b) Incarcerated veterans. VA will not employability. assign a total disability rating based on dependency. (2) When a veteran with a total 5.304 Exclusions from income—parent’s individual unemployability for disability rating based on individual compensation purposes while a veteran dependency. unemployability is undergoing 5.305–5.310 [Reserved] is incarcerated in a Federal, State, or vocational rehabilitation, education, or local penal institution for conviction of training, VA will not reduce the rating Additional Disability Compensation a felony if the rating would first become because of that rehabilitation, Based on a Dependent Parent effective during such period of education, or training unless the AOJ incarceration. However, VA will receives: Note: Sections 5.300 and 5.302 through reconsider the case to determine if (i) Evidence of marked improvement 5.304 of this part concern income rules for continued eligibility for such rating purposes of calculating benefits for a veteran or recovery in physical or mental receiving disability compensation under exists if a total disability rating based on conditions that demonstrates individual unemployability existed § 5.240(b). For establishing dependency for affirmatively the veteran’s capacity to purposes of additional dependency and prior to incarceration for the felony and pursue the vocation or occupation for indemnity compensation, see subpart D of routine review was required. which the training is intended to qualify this part. For income rules relating to (Authority: 38 U.S.C. 5313(c)) him or her; pension benefits, see subpart F of this part.

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§ 5.300 Establishing dependency of a to the veteran’s parent for the minor’s (c) Income of family members under parent. support. 21 years of age. VA will count income (a) Conclusive dependency. (1) VA (c) Definition of family member. For earned by a family member who is will find that a veteran’s parent is purposes of this section, the term under 21 years of age but will consider dependent if the parent is not residing ‘‘family member’’ means a relative who income from a business or property in a foreign country and the parent’s lives with the parent, other than a (including trusts) of such a family monthly income, as counted in spouse, whom the parent is under a member only if that income is actually accordance with §§ 5.302 through 5.304, moral or legal obligation to support. available to the veteran’s parent for the does not exceed the following amounts: This includes, but is not limited to, a support of that family member. For (i) $400 for a mother or father, or a relative under the legal age in the state purposes of this section, ‘‘family remarried parent and parent’s spouse, where the parent resides, a relative of member’’ is defined in § 5.300(c). not living together, or $660 for a mother any age who is dependent on the parent (d) Income-producing property. VA and father, or a remarried parent and because of physical or mental will count income from all property, parent’s spouse, living together; and incapacity, and a relative who is real or personal, in which a veteran’s (ii) $185 for each additional family physically absent from the household parent has an interest. See § 5.410(f), member, as defined by paragraph (c) of for a temporary purpose or for reasons ‘‘Income-producing property,’’ for how this section. beyond the relative’s control. VA determines ownership of property. (2) If a parent meets the requirements (e) Calculation of income from profit (d) Duty to report change in of paragraph (a)(1) of this section, VA on the sale of property. The following dependency status. If a veteran is will not consider net worth. rules apply when determining the receiving additional disability Note to paragraph (a): Sections 5.300 and amount of income a parent receives compensation because of a parent’s from net profit on the sale of business 5.302 through 5.304 of this part concern dependency and the parent’s income income rules for purposes of calculating or non-business real or personal exceeds the applicable amount specified property, except for net profit on the benefits for a veteran receiving disability in paragraph (a)(1) of this section, the compensation under § 5.240(b). For sale of a parent’s principal residence, establishing dependency for purposes of veteran must report an increase in the which is governed by § 5.304(h). additional dependency and indemnity parent’s income or net worth to VA (1) Value deducted from sales price. compensation, see subpart D of this part. For when the veteran acquires knowledge of (i) If the parent purchased the property income rules relating to pension benefits, see the increase. Failure to report such an after VA established the veteran’s subpart F of this part. increase may create an overpayment entitlement to additional disability (b) Factual dependency. If a parent subject to recovery by VA. compensation based on the parent’s does not meet the requirements of (e) Remarriage of a parent. dependency, VA will deduct the paragraph (a)(1) of this section, the Dependency will not be discontinued purchase price, including the cost of veteran must establish dependency of solely because a parent has married or improvements, from the selling price to the parent based on the following rules: remarried after VA has granted determine net profit. (1) Income requirement. VA will find additional disability compensation for a (ii) If the parent purchased the dependency if the parent does not have dependent parent. Additional disability property before VA established the sufficient income to provide reasonable compensation for a parent’s dependency veteran’s entitlement to additional maintenance for the parent, a parent’s will be continued if evidence is disability compensation based on the spouse living together with the parent, submitted showing that the parent parent’s dependency, VA will deduct and any additional family members, as continues to meet the requirement for a the value of the property on the date of defined in paragraph (c) of this section. finding of conclusive dependency or entitlement from the selling price to (i) Reasonable maintenance includes factual dependency under this section. determine net profit. not just basic necessities such as (Authority: 38 U.S.C. 102, 1115, 1135) (2) Installment sales. If the parent housing, food, clothing, and medical receives payments from the sale of the care, but also other items generally § 5.301 [Reserved] property in installments, such payments necessary to provide those conveniences will not be considered income until the § 5.302 General income rules—parent’s and comforts of living consistent with dependency. total amount received is equal to the the parent’s reasonable style of life. purchase price of the property (ii) A finding that the parent’s income (a) All payments included in income. (including cost of improvements), or, includes financial contributions from VA will count all payments of any kind where paragraph (e)(1)(ii) of this section the veteran does not establish that the from any source in determining the applies, until the total amount received parent is the veteran’s dependent. VA income of a veteran’s parent, except as is equal to the value of the property on will consider such contributions in provided in § 5.304, ‘‘Exclusions from the date VA established the veteran’s connection with all of the other income—parent’s dependency.’’ For the entitlement to additional disability evidence when deciding factual definition of ‘‘payments’’, see § 5.370(h). compensation based on the parent’s dependency. (b) Spousal income combined. The dependency. Principal and interest (2) Net worth considered. (i) VA will dependent parent’s income includes the received with each payment will not be not find that dependency of a parent income of the parent and the parent’s counted separately. exists when some part of the parent’s spouse, unless the marriage has been (Authority: 38 U.S.C. 102) net worth should reasonably be used for terminated or the parent is separated that parent’s maintenance. See § 5.414, from his or her spouse. Income is § 5.303 Deductions from income—parent’s ‘‘Net worth determinations for Improved combined whether the parent’s spouse dependency. Pension,’’ for the factors used to is the veteran’s other parent or the (a) Expenses of a business or determine whether net worth should veteran’s stepparent. The income of the profession. VA will deduct from a reasonably be used for maintenance. parent’s spouse will be subject to the parent’s income necessary operating (ii) Net worth of a minor family same rules that are applicable to expenses of a business, farm, or member will be considered income of determining the income of the veteran’s profession. See § 5.413 for how to the parent only if it is actually available parent. calculate these expenses.

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(b) Expenses associated with (4) Payments under 38 U.S.C. 5121, 5.312 Effective dates—increased disability recoveries for death or disability. VA ‘‘Payment of certain accrued benefits compensation. will deduct from a parent’s income upon death of a beneficiary’’; 5.313 Effective dates—discontinuance of a medical, legal, or other expenses (5) Payments under 38 U.S.C. 2302, total disability rating based on incident to injury or death from ‘‘Funeral expenses’’; and individual unemployability. (6) The veteran’s month-of-death rate 5.314 Effective dates—discontinuance of recoveries for such injury or death. For additional disability compensation based purposes of this paragraph, the recovery paid to a surviving spouse under on parental dependency. may be from any of the following § 5.695. 5.315 Effective dates—additional disability sources: (e) Certain life insurance payments. compensation based on decrease in the (1) Commercial disability, accident, Payments under policies of net worth of a dependent parent. life, or health insurance; Servicemembers’ Group Life Insurance, 5.316–5.319 [Reserved] (2) The Office of Workers’ United States Government Life Compensation Programs of the U.S. Insurance, National Service Life Disability Compensation Effective Dates Department of Labor; Insurance, or Veterans’ Group Life § 5.311 Effective dates—award of disability (3) The Social Security Insurance. compensation. Administration; (f) State service bonuses. Payments of (a) Claim received within 1 year after (4) The Railroad Retirement Board; a bonus or similar cash gratuity by any discharge or release from active military (5) Any workmen’s compensation or State based upon service in the Armed service. If VA grants disability employer’s liability statute; or Forces. compensation based on a claim VA (6) Legal damages collected for (g) Fire loss reimbursement. Proceeds received within 1 year after the date the personal injury or death. from fire insurance. (c) Certain salary deductions not (h) Profit from sale of principal veteran was discharged or released from deductible. For the purpose of residence. Net profit from the sale of the a continuous period of active military calculating a parent’s income, a salary parent’s principal residence. service during which the veteran may not be reduced by the amount of (1) Extent of exclusion. VA will not incurred the injury or disease, the deductions made under a retirement act count net profit realized from the sale of effective date of the award is the later or plan or for income tax withholding. the parent’s principal residence to the of: (1) The day after such discharge or (Authority: 38 U.S.C. 102) extent that it is applied within the calendar year of the sale, or the release from active military service; or § 5.304 Exclusions from income—parent’s following calendar year, to the purchase (2) The date entitlement arose. dependency. price of another residence as the (b) Claim received more than 1 year The following is a list of exclusions parent’s principal residence. after discharge or release from active that VA will not count as income when (2) Limitation on date of purchase of military service. If VA grants disability calculating income for the purpose of replacement residence. This exclusion compensation based on a claim VA establishing a parent’s dependency. does not apply if the parent applied the received more than 1 year after the date (a) Property rental value. The rental net profit from the sale to the price of the veteran was discharged or released value of a residence a parent owns and a residence purchased earlier than the from a continuous period of active lives in. calendar year preceding the calendar military service during which the (b) Certain waived retirement benefits. year of sale of the old residence. veteran incurred the injury or disease, Retirement benefits from any of the (3) Time limit for reporting the effective date of the award is the following sources, if the benefits have application of profit to purchase of date established by § 5.150(a). been waived pursuant to Federal statute: replacement residence. To qualify for (Authority: 38 U.S.C. 5110(a), (b)(1)) (1) Civil Service Retirement and this exclusion, the veteran must report Disability Fund; the application of the net profit from the § 5.312 Effective dates—increased (2) Railroad Retirement Board; sale of the old residence to the purchase disability compensation. (3) District of Columbia (paid to of the replacement residence within 1 (a) Applicability. This section firemen, policemen, or public school year after the date it was so applied. establishes the effective date of an teachers); or (i) Payment for civic obligations. award of increased disability (4) Former United States Lighthouse Payments received for discharge of jury compensation based on: Service. duty or other obligatory civic duties. (1) A higher disability rating under (c) Death gratuity. Death gratuity (j) Increased inventory value of a subpart B of the Schedule for Rating payments by the Secretary concerned business. The value of an increase of Disabilities in part 4 of this chapter. under 10 U.S.C. 1475 through 1480. stock inventory of a business. (2) A higher disability rating under This includes death gratuity payments (k) Employer contributions. An the extra-schedular provision in in lieu of payments under 10 U.S.C. employer’s contributions to health and § 5.280(b). 1478 made to certain survivors of hospitalization plans for either an active (3) A higher disability rating under Persian Gulf conflict veterans or retired employee. § 4.16 of this chapter, ‘‘Total disability authorized by sec. 307, Public Law 102– (l) Payments listed in § 5.706. ratings for compensation based on 25, 105 Stat. 82. (Authority: 38 U.S.C. 102) unemployability of the individual.’’ (d) Certain VA benefit payments. The (4) An award or a higher rate of following VA benefit payments: § 5.305–5.310 [Reserved] special monthly compensation. (1) Payments under 38 U.S.C. chapter 5. Sections 5.311 through 5.315 and 11, ‘‘Compensation for Service- Note 1 to paragraph (a): This section does their undesignated center heading are Connected Disability or Death’’; not establish the effective date of an award (2) Payments under 38 U.S.C. chapter added to subpart E and §§ 5.316 through of secondary service connection under ‘‘ 5.319 are reserved to read as follows: § 5.246 or § 5.247, which is governed by 13, Dependency and Indemnity § 5.311. Compensation for Service-Connected Disability Compensation Effective Dates Death’’; Sec. Note 2 to paragraph (a): For effective dates (3) Nonservice-connected VA 5.311 Effective dates—award of disability for awards and discontinuances of temporary disability and death pension payments; compensation. total disability ratings based upon

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hospitalization for treatment or observation within the time specified in VA Form the date the change in marital status of a service-connected disability and for 21–4140, VA will discontinue the TDIU occurred. convalescence following treatment for a rating and assign the existing schedular (d) Discontinuance based on a service-connected disability, see §§ 4.29 and rating. Assignment of the existing parent’s death. If a dependent parent 4.30 of this chapter. schedular rating and the reduction in dies, VA will discontinue paying the (b) Effective date of increase—(1) disability compensation will be effective additional disability compensation on Claim received within 1 year after beginning the first day of the month the first day of the month after the increase. An award of increased after the month VA last paid TDIU month of death. disability compensation will be effective benefits. (Authority: 38 U.S.C. 5112(b)(2) and (4)) on the date that the evidence warrants (Authority: 38 U.S.C. 5112(a) and (b)(6)) a higher disability rating, or an award or § 5.315 Effective dates—additional higher rate of special monthly § 5.314 Effective dates—discontinuance of disability compensation based on decrease compensation, if VA received a claim additional disability compensation based in the net worth of a dependent parent. for increased disability compensation on parental dependency. (a) Scope. This rule applies under the within 1 year after that date. (a) Scope. This section applies to following circumstances: (2) Claim received more than 1 year discontinuance of additional disability (1) VA previously denied a claim or after increase. An award of increased compensation paid to a veteran for a discontinued payments of additional disability compensation will be effective dependent parent if that parent is no disability compensation based upon on the date established by § 5.150(a) if longer dependent. parental dependency because of a VA received a claim for increased (b) Discontinuance based on a change parent’s net worth; disability compensation more than 1 in a parent’s economic status. If VA (2) The denial or discontinuation year after the date that the evidence determines that a veteran’s parent is no became final; and warrants a higher disability rating, or an longer dependent due to an (3) Entitlement to additional disability award or higher rate of special monthly improvement in economic status, the compensation based upon parental compensation. additional disability compensation paid dependency was subsequently (Authority: 38 U.S.C. 5110(a) and (b)(2)) due to parental dependency will be established, or reestablished, because of discontinued as follows: a decrease in the parent’s net worth. § 5.313 Effective dates—discontinuance of (1) Increase in income. If dependency (b) Payment of additional a total disability rating based on individual ends based on an increase in income, unemployability. compensation. If a parent’s net worth VA will discontinue paying the decreases so that additional disability (a) Scope. This section applies to additional disability compensation on compensation based on parental discontinuance of a veteran’s total the first day of the month after the dependency is warranted, VA will pay disability rating based on individual month in which the income increased. additional disability compensation as unemployability (TDIU) after (2) Increase in net worth. If follows: employability is regained or based on dependency ends based on an increase (1) For claims filed before the actual failure to return an employment in net worth, VA will discontinue decrease in net worth, effective the first questionnaire to VA. paying the additional disability day of the month after the month of the (b) Discontinuance on regaining compensation on the first day of the decrease; or employability. If VA determines that a calendar year after the year in which the (2) For claims filed after the actual veteran has regained employability, VA net worth increased. decrease in net worth, effective the first will discontinue the TDIU rating and (c) Discontinuance based on a change day of the month after the receipt of a assign the existing schedular rating. in a parent’s marital status. If VA new claim for additional disability Assignment of the existing schedular determines that the marriage, compensation. rating and the reduction in disability remarriage, annulment of a marriage, or compensation will be effective in divorce of a dependent parent resulted (Authority: 38 U.S.C. 501(a), 5110) accordance with § 5.177(f). in the end of dependency of that parent, §§ 5.316–5.319 [Reserved] (c) Failure to return employment VA will discontinue paying the questionnaire. If a veteran fails to return additional disability compensation [FR Doc. 2010–21019 Filed 8–31–10; 8:45 am] an employment questionnaire to VA effective the first day of the month after BILLING CODE 8320–01–P

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Part III

Department of the Interior Fish and Wildlife Service

50 CFR Part 20 Migratory Bird Hunting; Migratory Bird Hunting Regulations on Certain Federal Indian Reservations and Ceded Lands for the 2010–11 Early Season; Final Rule

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DEPARTMENT OF THE INTERIOR regulations for the 2010–11 hunting submitted by the Tribes or approved by season for certain Indian Tribes, under the Tribes and follow our proposals in Fish and Wildlife Service the guidelines described in the June 4, the August 6 proposed rule. 1985, Federal Register (50 FR 23467). Although the May 13 proposed rule 50 CFR Part 20 The guidelines respond to Tribal included generalized regulations for requests for Service recognition of their both early- and late-season hunting, this [Docket No. FWS–R9–MB–2010–0040; rulemaking addresses only the early- 91200–1231–9BPP–L2] reserved hunting rights, and for some Tribes, recognition of their authority to season proposals. Therefore, it includes RIN 1018–AX06 regulate hunting by both Tribal information for only 24 Tribes. The members and nonmembers on their letter designations for the paragraphs Migratory Bird Hunting; Migratory Bird reservations. The guidelines include pertaining to each Tribe in this rule are Hunting Regulations on Certain possibilities for: discontinuous because they follow the Federal Indian Reservations and (1) On-reservation hunting by both letter designations for the 30 Tribes Ceded Lands for the 2010–11 Early Tribal members and nonmembers, with discussed in the August 6 proposed Season hunting by nontribal members on some rule, which set forth paragraphs (a) through (dd). Late-season hunting will AGENCY: Fish and Wildlife Service, reservations to take place within Federal be addressed in late September. As a Interior. frameworks but on dates different from those selected by the surrounding general rule, early seasons begin during ACTION: Final rule. State(s); September each year and have a primary emphasis on such species as mourning SUMMARY: This rule prescribes special (2) On-reservation hunting by Tribal and white-winged doves. Late seasons early-season migratory bird hunting members only, outside of usual Federal begin about October 1 or later each year regulations for certain Tribes on Federal frameworks for season dates and length, and have a primary emphasis on Indian reservations, off-reservation trust and for daily bag and possession limits; waterfowl. lands, and ceded lands. This rule and responds to Tribal requests for U.S. Fish (3) Off-reservation hunting by Tribal Population Status and Harvest members on ceded lands, outside of and Wildlife Service (hereinafter The following paragraphs provide Service or we) recognition of Tribal usual framework dates and season length, with some added flexibility in preliminary information on the status of authority to regulate hunting under waterfowl and information on the status established guidelines. This rule allows daily bag and possession limits. In all cases, the regulations and harvest of migratory shore and the establishment of season bag limits established under the guidelines must upland game birds excerpted from and, thus, harvest, at levels compatible be consistent with the March 10– various reports. For more detailed with populations and habitat September 1 closed season mandated by information on methodologies and conditions. the 1916 Migratory Bird Treaty with results, you may obtain complete copies DATES: This rule takes effect on Canada. We have successfully used the of the various reports at the address September 1, 2010. guidelines since the 1985–86 hunting indicated under ADDRESSES or from our ADDRESSES: You may inspect comments season. We finalized the guidelines Web site at http://www.fws.gov/ received on the proposed special beginning with the 1988–89 hunting migratorybirds/ hunting regulations and Tribal season (August 18, 1988, Federal NewsPublicationsReports.html. proposals during normal business hours Register [53 FR 31612]). Waterfowl Breeding and Habitat Survey in room 4107, Arlington Square In the May 13, 2010, Federal Register Federal, provincial, and State Building, 4501 N. Fairfax Drive, (75 FR 27144), we requested that Tribes agencies conduct surveys each spring to Arlington, VA or at http:// desiring special hunting regulations in estimate the size of breeding www.regulations.gov at Docket No. the 2010–11 hunting season submit a populations and to evaluate the FWS–R9–MB–2010–0040. proposal including details on: (a) Harvest anticipated under the conditions of the habitats. These FOR FURTHER INFORMATION CONTACT: Ron requested regulations; surveys are conducted using fixed-wing W. Kokel, Division of Migratory Bird (b) Methods that would be employed aircraft, helicopters, and ground crews Management, U.S. Fish and Wildlife to measure or monitor harvest (such as and encompass principal breeding areas Service, (703/358–1967). bag checks, mail questionnaires, etc.); of North America, covering an area over SUPPLEMENTARY INFORMATION: The (c) Steps that would be taken to limit 2.0 million square miles. The traditional Migratory Bird Treaty Act (MBTA) of level of harvest, where it could be survey area comprises Alaska, Canada, July 3, 1918 (40 Stat. 755; 16 U.S.C. 703 shown that failure to limit such harvest and the northcentral United States, and et seq.), authorizes and directs the would adversely impact the migratory includes approximately 1.3 million Secretary of the Department of the bird resource; and square miles. The eastern survey area Interior, having due regard for the zones (d) Tribal capabilities to establish and includes parts of Ontario, Quebec, of temperature and for the distribution, enforce migratory bird hunting Labrador, Newfoundland, Nova Scotia, abundance, economic value, breeding regulations. Prince Edward Island, New Brunswick, habits, and times and lines of flight of No action is required if a Tribe wishes New York, and Maine, an area of migratory game birds, to determine to observe the hunting regulations approximately 0.7 million square miles. when, to what extent, and by what established by the State(s) in which an Overall, habitat conditions during the means such birds or any part, nest, or Indian reservation is located. On August 2010 Waterfowl Breeding Population egg thereof may be taken, hunted, 6, 2010, we published a proposed rule and Habitat Survey were characterized captured, killed, possessed, sold, (75 FR 47682) that included special by average to below-average moisture purchased, shipped, carried, exported, migratory bird hunting regulations for and a mild winter and early spring or transported. 30 Indian Tribes, based on the input we across the entire traditional (including In the August 6, 2010, Federal received in response to the May 13, the northern locations) and eastern Register (75 FR 47682), we proposed 2010, proposed rule. All the regulations survey areas. The total pond estimate special migratory bird hunting contained in this final rule were either (Prairie Canada and U.S. combined) was

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6.7 ± 0.2 million. This was similar to the experienced an early spring as well. The eastern survey area was 2009 estimate and 34 percent above the Much of southern Quebec and Ontario restratified in 2005 and is now long-term average of 5.0 ± 0.03 million were classified as poor to fair due to dry composed of strata 51–72. Estimates of ponds. conditions, with the exception of an mallards, scaup, scoters (black area of adequate moisture in west- [Melanitta nigra], white-winged [M. Traditional Survey Area (U.S. and central Ontario. More northern boreal fusca], and surf [M. perspicillata]), Canadian Prairies and Parklands) forest locations benefited from near- green-winged teal, American wigeon, Conditions across the Canadian normal precipitation and early ice-free bufflehead (Bucephala albeola), ring- prairies were similar to 2009. Portions conditions. Although winter necked duck (Aythya collaris), and of southern Alberta, Saskatchewan, and precipitation from southwestern Ontario goldeneyes (common [B. clangula] and Manitoba improved, but a large area along the St. Lawrence River Valley and Barrow’s [B. islandica]) all were similar along the Alberta and Saskatchewan into Maine was below average, to their 2009 estimates and long-term border remained dry, and moisture waterfowl habitat was classified as good averages. The mergansers (red-breasted levels in portions of Manitoba declined to excellent, as in 2009. The James and [Mergus serrator], common [M. from last year. The 2010 estimate of Hudson Bay Lowlands of Ontario (strata merganser], and hooded [Lophodytes ponds in Prairie Canada was 3.7 ± 0.2 57–59) were not surveyed in 2010, but cucullatus]) estimate was 386.4 million. This was similar to last year’s reports indicated an early spring in thousand, which was 15 percent below estimate (3.6 ± 0.1 million) and to the these locations as well. the 2009 estimate, and 14 percent below 1955–2009 average (3.4 ± 0.03 million). the long-term average of 450.8 thousand. Breeding Population Status Residual water remains in the Parklands The American black duck (Anas and these were classified as fair to good. In the traditional survey area, which rubripes) estimate was similar to the Most of the Prairie-Parkland region of includes strata 1–18, 20–50, and 75–77, 2009 estimate and 7 percent below the Canada received abundant to the total duck population estimate was long-term average of 478.9 thousand. historically high levels of precipitation 40.9 ± 0.7 [SE] million birds. This during and after the survey, which, estimate was similar to last year’s Fall Flight Estimate while possibly flooding some nests, will estimate of 42.0 ± 0.7 million birds and The mid-continent mallard produce excellent brood-rearing habitat was 21 percent above the long-term population is composed of mallards for successful nesters and lessen the average (1955–2009). Estimated mallard from the traditional survey area (revised impact of the normal summer (Anas platyrhynchos) abundance was in 2008 to exclude Alaska mallards), drawdown, leading to beneficial 8.4 ± 0.3 million birds, which was Michigan, Minnesota, and Wisconsin, wetland conditions next spring. similar to the 2009 estimate of 8.5 ± 0.2 and was estimated to be 10.3 ± 0.9 Wetland numbers and conditions million birds and 12 percent above the million in 2010. This was similar to the remained fair to good in the eastern U.S. long-term average. Estimated abundance 2009 estimate of 10.3 ± 0.9 million. of gadwall (A. strepera; 3.0 ± 0.2 prairies, but habitat conditions declined Status of Geese and Swans through the western Dakotas and million) was similar to the 2009 Montana. The 2010 pond estimate for estimate and 67 percent above the long- We provide information on the the north-central United States was 2.9 term average. Estimated abundance of population status and productivity of ± 0.1 million, essentially unchanged American wigeon (A. americana; 2.4 North American Canada geese (Branta from last year’s estimate (2.9 ± 0.1 ± 0.1 million) was similar to 2009 and canadensis), brant (B. bernicla), snow million) and 87 percent above the long- the long-term average. The estimated geese (Chen caerulescens), Ross’ geese term average (1.6 ± 0.02 million). Fall abundance of green-winged teal (A. (C. rossii), emperor geese (C. canagica), and winter precipitation in the eastern crecca) was 3.5 ± 0.2 million, which was white-fronted geese (Anser albifrons), Dakotas generally improved good similar to the 2009 estimate and 78 and tundra swans (Cygnus habitat conditions already present. percent above their long-term average of columbianus). Temperatures in much of However, wetlands in the western 1.9 ± 0.02 million. The estimate of blue- central and northern Canada from Dakotas and Montana were not winged teal abundance (A. discors) was January through April were in excess of ± ° recharged, resulting in a deterioration of 6.3 0.4 million, which was 14 percent 5 C warmer than average. Substantially conditions from 2009 at the time the below the 2009 estimate and 36 percent above-average temperatures continued survey was conducted. above their long-term average of 4.7 into May and June in important goose ± 0.04 million. The estimate for northern habitats within eastern Canada. The Bush (Alaska, Northern Manitoba, pintails (A. acuta; 3.5 ± 0.2 million) was resulting accelerated snowmelt Northern Saskatchewan, Northwest similar to the 2009 estimate, and 13 contributed to favorable nesting Territories, Yukon Territory, Western percent below the long-term average of conditions for many mid-latitude and Ontario) 4.0 ± 0.04 million. Estimates of northern arctic nesting goose populations in In the bush regions of the traditional shovelers (A. clypeata; 4.1 ± 0.2 million) 2010. Persistent snow cover survey area, spring breakup was early. and redheads (Aythya americana; 1.1 significantly delayed goose nesting Unlike in 2009, the majority of habitats ± 0.1 million) were similar to their 2009 activities only in the Queen Maud Gulf, were ice-free for arriving waterfowl. estimates and were 76 percent and 63 Victoria Island, and Wrangel Island Habitat of most of the bush region, with percent above their long-term averages regions. Well-above or near-average the exception of Alaska and the of 2.3 ± 0.02 million and 0.7 ± 0.01 wetland abundance in the U.S. and Northwest Territories where conditions million, respectively. The canvasback Canadian prairie regions and mild were normal, was classified as fair due estimate (A. valisineria; 0.6 ± 0.05 spring temperatures in many other to below-average moisture, but the early million) was similar to the 2009 temperate regions will likely improve spring should benefit waterfowl across estimate and to the long-term average. production of Canada geese that nest at the entire area. The scaup estimate (A. affinis and A. southern latitudes. Primary abundance marila combined; 4.2 ± 0.2 million) was indices for both populations of tundra Eastern Survey Area similar to that of 2009 and 16 percent swans decreased in 2010 from 2009 The boreal forest and Canadian below the long-term average of 5.1 levels. Primary abundance indices Maritimes of the eastern survey area ± 0.05 million. decreased for 15 goose populations and

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increased for 12 goose populations in Supplemental Environmental Impact Executive Order 12866 2010 compared to 2009. The following Statement: Issuance of Annual The Office of Management and Budget populations displayed significant Regulations Permitting the Sport has determined that this rule is positive trends during the most recent Hunting of Migratory Birds (FSES 88– significant and has reviewed this rule ’’ 10-year period (P < 0:05): Mississippi 14), filed with the Environmental under Executive Order 12866. OMB Flyway Giant, Short Grass Prairie, Protection Agency on June 9, 1988. We bases its determination of regulatory Aleutian, and Eastern Prairie Canada published a notice of availability in the significance upon the following four Federal Register on June 16, 1988 (53 geese; Western Arctic/Wrangel Island, criteria: and Western Central Flyway light geese; FR 22582). We published our Record of (a) Whether the rule will have an Decision on August 18, 1988 (53 FR and Pacific white-fronted geese. No annual effect of $100 million or more on population showed a significant 31341). In addition, an August 1985 the economy or adversely affect an negative 10-year trend. The forecast for environmental assessment entitled economic sector, productivity, jobs, the the production of geese and swans in ‘‘Guidelines for Migratory Bird Hunting environment, or other units of the North America for 2010 is regionally Regulations on Federal Indian government. variable, but production for many Reservations and Ceded Lands’’ is (b) Whether the rule will create populations will be much improved this available from the address indicated inconsistencies with other Federal year compared to the poor production under the caption ADDRESSES. agencies’ actions. widely experienced in 2009. In a notice published in the September 8, 2005, Federal Register (70 (c) Whether the rule will materially Waterfowl Harvest and Hunter Activity FR 53376), we announced our intent to affect entitlements, grants, user fees, National surveys of migratory bird develop a new Supplemental loan programs, or the rights and hunters were conducted during the 2008 Environmental Impact Statement (SEIS) obligations of their recipients. and 2009 hunting seasons. About 1.2 for the migratory bird hunting program. (d) Whether the rule raises novel legal million waterfowl hunters harvested Public scoping meetings were held in or policy issues. 13,635,700 (± 4 percent) ducks and the spring of 2006, as detailed in a An economic analysis was prepared 3,792,600 (± 5 percent) geese in 2008, March 9, 2006, Federal Register (71 FR for the 2008–09 season. This analysis and about 1.1 million waterfowl hunters 12216). We released the draft SEIS on was based on data from the 2006 harvested 13,139,800 (± 4 percent) ducks July 9, 2010 (75 FR 39577). The draft National Hunting and Fishing Survey, and 3,327,000 (± 5 percent) geese in SEIS is available by either writing to the the most recent year for which data are 2009. Mallard, green-winged teal, address indicated under ADDRESSES or available (see discussion in Regulatory gadwall, blue-winged/cinnamon teal, by viewing on our Web site at http:// Flexibility Act section below). This and wood duck (Aix sponsa) were the www.fws.gov/migratorybirds. analysis estimated consumer surplus for 5 most-harvested duck species in the three alternatives for duck hunting Endangered Species Act Consideration United States, and Canada goose was (estimates for other species are not the predominant goose species in the Section 7 of the Endangered Species quantified due to lack of data). The goose harvest. Coot hunters (about Act, as amended (16 U.S.C. 1531–1543; alternatives are (1) Issue restrictive 31,100 in 2008 and 2009) harvested 87 Stat. 884), provides that, ‘‘The regulations allowing fewer days than 275,900 (± 43 percent) coots in 2008 and Secretary shall review other programs those issued during the 2007–08 season, 219,000 (± 34 percent) in 2009. administered by him and utilize such (2) Issue moderate regulations allowing programs in furtherance of the purposes more days than those in alternative 1, Comments and Issues Concerning of this Act’’ (and) shall ‘‘insure that any and (3) Issue liberal regulations Tribal Proposals action authorized, funded, or carried out identical to the regulations in the 2007– For the 2010–11 migratory bird * * * is not likely to jeopardize the 08 season. For the 2008–09 season, we hunting season, we proposed continued existence of any endangered chose alternative 3, with an estimated regulations for 30 Tribes and/or Indian species or threatened species or result in consumer surplus across all flyways of groups that followed the 1985 the destruction or adverse modification $205–$270 million. At this time, we are guidelines and were considered of [critical] habitat. * * *.’’ proposing no changes to the season appropriate for final rulemaking. Some Consequently, we conducted formal frameworks for the 2010–11 season, and of the Tribal proposals had both early- consultations to ensure that actions as such, we will again consider these and late-season elements. However, as resulting from these regulations would three alternatives. However, final noted earlier, only those with early- not likely jeopardize the continued frameworks will depend on population season proposals are included in this existence of endangered or threatened status information available later this final rulemaking; 24 Tribes have species or result in the destruction or year. For these reasons, we have not proposals with early seasons. The adverse modification of their critical conducted a new economic analysis, but comment period for the proposed rule, habitat. Findings from these the 2008–09 analysis is part of the published on August 6, 2010, closed on consultations are included in a record for this rule and is available at August 16, 2010. Because of the biological opinion, which concluded http://www.fws.gov/migratorybirds/ necessary brief comment period, we will that the regulations are not likely to NewReportsPublications/SpecialTopics/ respond to any comments on the jeopardize the continued existence of SpecialTopics.html#HuntingRegs or at proposed rule and/or these regulations any endangered or threatened species. http://www.regulations.gov at Docket postmarked by August 16, but not Additionally, these findings may have No. FWS–R9–MB–2010–0040. caused modification of some regulatory received prior to final action by us, in Regulatory Flexibility Act the September late-season final rule. At measures previously proposed, and the this time, we have not received any final frameworks reflect any such The regulations have a significant comments. modifications. Our biological opinions economic impact on substantial resulting from this section 7 numbers of small entities under the NEPA Consideration consultation are public documents Regulatory Flexibility Act (5 U.S.C. 601 NEPA considerations are covered by available for public inspection at the et seq.). We analyzed the economic the programmatic document ‘‘Final address indicated under ADDRESSES. impacts of the annual hunting

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regulations on small business entities in levels of subsistence take in Alaska, and Indian trust resources. However, in the detail as part of the 1981 cost-benefit assigned control number 1018–0124 May 13 Federal Register, we solicited analysis. This analysis was revised (expires 4/30/2013). proposals for special migratory bird annually from 1990–95. In 1995, the A Federal agency may not conduct or hunting regulations for certain Tribes on Service issued a Small Entity Flexibility sponsor and a person is not required to Federal Indian reservations, off- Analysis (Analysis), which was respond to a collection of information reservation trust lands, and ceded lands subsequently updated in 1996, 1998, unless it displays a currently valid OMB for the 2010–11 migratory bird hunting 2004, and 2008. The primary source of control number. season. The resulting proposals were information about hunter expenditures contained in a separate proposed rule Unfunded Mandates Reform Act for migratory game bird hunting is the (75 FR 47681, August 6, 2010). By virtue National Hunting and Fishing Survey, We have determined and certify, in of these actions, we have consulted with which is conducted at 5-year intervals. compliance with the requirements of the Tribes affected by this rule. The 2008 Analysis was based on the Unfunded Mandates Reform Act, 2 Federalism Effects 2006 National Hunting and Fishing U.S.C. 1502 et seq., that this rulemaking Survey and the U.S. Department of will not impose a cost of $100 million Due to the migratory nature of certain Commerce’s County Business Patterns, or more in any given year on local or species of birds, the Federal from which it was estimated that State government or private entities. Government has been given migratory bird hunters would spend Therefore, this rule is not a ‘‘significant responsibility over these species by the approximately $1.2 billion at small regulatory action’’ under the Unfunded Migratory Bird Treaty Act. We annually businesses in 2008. Copies of the Mandates Reform Act. prescribe frameworks from which the Analysis are available upon request States make selections regarding the Civil Justice Reform—Executive Order from the Division of Migratory Bird hunting of migratory birds, and we 12988 Management (see FOR FURTHER employ guidelines to establish special INFORMATION CONTACT) or from our Web The Department, in promulgating this regulations on Federal Indian site at http://www.fws.gov/ rule, has determined that this rule will reservations and ceded lands. This migratorybirds/ not unduly burden the judicial system process preserves the ability of the NewReportsPublications/SpecialTopics/ and that it meets the requirements of States and Tribes to determine which SpecialTopics.html#HuntingRegs or at sections 3(a) and 3(b)(2) of Executive seasons meet their individual needs. http://www.regulations.gov at Docket Order 12988. Any State or Indian Tribe may be more No. FWS–R9–MB–2010–0040. restrictive than the Federal frameworks Takings Implication Assessment at any time. The frameworks are Small Business Regulatory Enforcement In accordance with Executive Order developed in a cooperative process with Fairness Act 12630, this rule, authorized by the the States and the Flyway Councils. This rule is a major rule under 5 Migratory Bird Treaty Act, does not This process allows States to participate U.S.C. 804(2), the Small Business have significant takings implications in the development of frameworks from Regulatory Enforcement Fairness Act. and does not affect any constitutionally which they will make selections, For the reasons outlined above, this rule protected property rights. This rule will thereby having an influence on their has an annual effect on the economy of not result in the physical occupancy of own regulations. These rules do not $100 million or more. However, because property, the physical invasion of have a substantial direct effect on fiscal this rule establishes hunting seasons, we property, or the regulatory taking of any capacity, change the roles or do not plan to defer the effective date property. In fact, these rules allow responsibilities of Federal or State under the exemption contained in 5 hunters to exercise otherwise governments, or intrude on State policy U.S.C. 808(1). unavailable privileges and, therefore, or administration. Therefore, in reduce restrictions on the use of private accordance with Executive Order 13132, Paperwork Reduction Act and public property. these regulations do not have significant We examined these regulations under federalism effects and do not have the Paperwork Reduction Act of 1995 Energy Effects—Executive Order 13211 sufficient federalism implications to (44 U.S.C. 3501 et seq.). The various Executive Order 13211 requires warrant the preparation of a Federalism recordkeeping and reporting agencies to prepare Statements of Assessment. requirements imposed under regulations Energy Effects when undertaking certain Regulations Promulgation established in 50 CFR part 20, subpart actions. While this rule is a significant K, are utilized in the formulation of regulatory action under Executive Order The rulemaking process for migratory migratory game bird hunting 12866, it is not expected to adversely game bird hunting must, by its nature, regulations. Specifically, OMB has affect energy supplies, distribution, or operate under severe time constraints. approved the information collection use. Therefore, this action is not a However, we intend that the public be requirements of our Migratory Bird significant energy action and no given the greatest possible opportunity Surveys and assigned control number Statement of Energy Effects is required. to comment. Thus, when the 1018–0023 (expires 2/28/2011). This preliminary proposed rulemaking was information is used to provide a Government-to-Government published, we established what we sampling frame for voluntary national Relationship With Tribes believed were the longest periods surveys to improve our harvest In accordance with the President’s possible for public comment. In doing estimates for all migratory game birds in memorandum of April 29, 1994, this, we recognized that when the order to better manage these ‘‘Government-to-Government Relations comment period closed, time would be populations. With Native American Tribal of the essence. That is, if there were a OMB has also approved the Governments’’ (59 FR 22951), Executive delay in the effective date of these information collection requirements of Order 13175, and 512 DM 2, we have regulations after this final rulemaking, the Alaska Subsistence Household evaluated possible effects on Federally States and Tribes would have Survey, an associated voluntary annual recognized Indian Tribes and have insufficient time to select season dates household survey used to determine determined that there are no effects on and limits; to communicate those

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selections to us; and to establish and have a valid transport declaration form. Daily Bag Limit: 15 mergansers, publicize the necessary regulations and Other Tribal regulations apply, and may including no more than 6 hooded procedures to implement their be obtained at the Fish and Game Office mergansers. decisions. We, therefore, find that ‘‘good in Parker, Arizona. Reservation cause’’ exists, within the terms of 5 (b) Confederated Salish and Kootenai U.S.C. 553(d)(3) of the Administrative Tribes, Flathead Indian Reservation, Season Dates: Begin September 4 and Procedure Act, and these seasons will, Pablo, Montana (Tribal Hunters). end November 28, 2010. Daily Bag Limit: 10 mergansers, therefore, take effect immediately upon Tribal Members Only publication. including no more than 4 hooded Ducks (Including Mergansers) mergansers. List of Subjects in 50 CFR Part 20 Season Dates: Open September 1, Canada Geese: All Areas Exports, Hunting, Imports, Reporting 2010, through March 9, 2011. Season Dates: Begin September 1 and and recordkeeping requirements, Daily Bag and Possession Limits: The Transportation, Wildlife. end November 28, 2010. Tribe does not have specific bag and Daily Bag Limit: 20 geese. ■ Accordingly, part 20, subchapter B, possession restrictions for Tribal chapter I of title 50 of the Code of members. The season on harlequin duck Coots and Common Moorhens (Common Federal Regulations is amended as is closed. Gallinules) follows: Coots 1854 and 1837 Ceded Territories PART 20—[AMENDED] Season Dates: Same as ducks. Season Dates: Begin September 18 ■ 1. The authority citation for part 20 Daily Bag and Possession Limits: and end November 28, 2010. continues to read as follows: Same as ducks. Daily Bag Limit: 20 coots and common moorhens, singly or in the Geese Authority: Migratory Bird Treaty Act, 40 aggregate. Stat. 755, 16 U.S.C. 703–712; Fish and Season Dates: Same as ducks. Wildlife Act of 1956, 16 U.S.C. 742a–j; Pub. Daily Bag and Possession Limits: Reservation L. 106–108, 113 Stat. 1491, Note Following Same as ducks. 16 U.S.C. 703. Season Dates: Begin September 4 and General Conditions: Tribal and end November 28, 2010. Note: The following hunting regulations nontribal hunters must comply with all Daily Bag Limit: 20 coots and provided for by 50 CFR 20.110 will not basic Federal migratory bird hunting common moorhens, singly or in the appear in the Code of Federal Regulations regulations contained in 50 CFR part 20 aggregate. because of their seasonal nature. regarding manner of taking. In addition, Sora and Virginia Rails: All Areas ■ 2. Section 20.110 is amended by shooting hours are sunrise to sunset, revising paragraphs (a) through (e), (g), and each waterfowl hunter 16 years of Season Dates: Begin September 1 and (i) through (u), (w), and (y) through (bb), age or older must carry on his/her end November 28, 2010. and adding paragraph (cc), to read as set person a valid Migratory Bird Hunting Daily Bag Limit: 25 sora and Virginia forth below (Current § 20.110 was and Conservation Stamp (Duck Stamp) rails, singly or in the aggregate. published at 74 FR 51707, September 2, signed in ink across the stamp face. Common Snipe: All Areas 2009, and amended at 74 FR 49294, Special regulations established by the September 25, 2009). Confederated Salish and Kootenai Season Dates: Begin September 1 and Tribes also apply on the reservation. end November 28, 2010. § 20.110 Seasons, limits, and other (c) Fond du Lac Band of Lake Daily Bag Limit: Eight common snipe. regulations for certain Federal Indian Superior Chippewa Indians, Cloquet, reservations, Indian Territory, and ceded Woodcock: All Areas Minnesota (Tribal Members Only). lands. Season Dates: Begin September 1 and (a) Colorado River Indian Tribes, Ducks end November 28, 2010. Parker, Arizona (Tribal Members and 1854 and 1837 Ceded Territories Daily Bag Limit: Three woodcock. Nontribal Hunters). Season Dates: Begin September 18 Mourning Dove: All Areas Doves and end November 28, 2010. Season Dates: Begin September 1 and Season Dates: Open September 1, Daily Bag Limit: 18 ducks, including end October 30, 2010. through September 15, 2010; then open no more than 12 mallards (only 3 of Daily Bag Limit: 30 mourning dove. November 12, through December 26, which may be hens), 3 black ducks, 6 General Conditions: 2010. scaup, 6 wood ducks, 6 redheads, 3 1. While hunting waterfowl, a Tribal Daily Bag and Possession Limits: For pintails, and 3 canvasbacks. member must carry on his/her person a the early season, daily bag limit is 10 Reservation valid Tribal waterfowl hunting permit. mourning or white-winged doves, 2. Except as otherwise noted, Tribal singly, or in the aggregate. For the late Season Dates: Begin September 4 and members will be required to comply season, the daily bag limit is 10 end November 28, 2010. with Tribal codes that will be no less mourning doves. Possession limits are Daily Bag Limit: 12 ducks, including restrictive than the provisions of twice the daily bag limits after the first no more than 8 mallards (only 2 of Chapter 10 of the Model Off-Reservation day of the season. which may be hens), 2 black ducks, 4 Code. These regulations parallel Federal General Conditions: All persons 14 scaup, 4 redheads, 2 pintails, 4 wood requirements in 50 CFR part 20 as to years and older must be in possession ducks, and 2 canvasbacks. hunting methods, transportation, sale, of a valid Colorado River Indian Mergansers exportation, and other conditions Reservation hunting permit before generally applicable to migratory bird taking any wildlife on Tribal lands. Any 1854 and 1837 Ceded Territories hunting. person transporting game birds off the Season Dates: Begin September 18 3. Band members in each zone will Colorado River Indian Reservation must and end November 28, 2010. comply with State regulations providing

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for closed and restricted waterfowl Ducks versions of Chapter 10 parallel Federal hunting areas. Season Dates: Begin September 15 requirements as to hunting methods, 4. There are no possession limits on and end December 31, 2010. transportation, sale, exportation, and any species, unless otherwise noted Daily Bag Limit: 30 ducks, including other conditions generally applicable to above. For purposes of enforcing bag no more than 5 black ducks, 5 pintails, migratory bird hunting. They also and possession limits, all migratory and 5 canvasbacks. automatically incorporate by reference birds in the possession or custody of the Federal migratory bird regulations band members on ceded lands will be Mergansers contained in 50 CFR part 20. considered to have been taken on those Season Dates: Begin September 15 3. Particular regulations of note lands unless tagged by a Tribal or State and end December 31, 2010. include: conservation warden as having been Daily Bag Limit: 10 mergansers. i. Nontoxic shot is required for all off- taken on-reservation. All migratory reservation waterfowl hunting by Tribal birds that fall on reservation lands will Geese members. not count as part of any off-reservation Season Dates: Begin September 1 and ii. Tribal members in each zone shall bag or possession limit. end December 31, 2010. In addition, any comply with Tribal regulations (d) Grand Traverse Band of Ottawa portion of the ceded territory that is providing for closed and restricted and Chippewa Indians, Suttons Bay, open to State-licensed hunters for goose waterfowl hunting areas. These Michigan (Tribal Members Only). hunting after December 1 will also be regulations generally incorporate the All Seasons in Michigan, 1836 Treaty open concurrently for Tribal members. same restrictions contained in parallel Daily Bag Limit: 20 geese in aggregate. Zone State regulations. iii. Possession limits for each species Other Migratory Birds Ducks are double the daily bag limit, except on Season Dates: Open September 18, Coots and Common Moorhens (Common the opening day of the season, when the 2010, through January 18, 2011. Gallinules) possession limit equals the daily bag Daily Bag Limit: 20 ducks, which may Season Dates: Begin September 15 limit, unless otherwise noted above. include no more than 5 pintail, 3 and end December 31, 2010. Possession limits are applicable only to canvasback, 5 black ducks, 1 hooded Daily Bag Limit: 20 coots and transportation and do not include birds merganser, 5 wood ducks, 3 redheads, common moorhens (common that are cleaned, dressed, and at a and 9 mallards (only 4 of which may be gallinules), singly or in the aggregate. member’s primary residence. For hens). purposes of enforcing bag and Sora and Virginia Rails possession limits, all migratory birds in Canada and Snow Geese Season Dates: Begin September 15 the possession and custody of Tribal Season Dates: Open September 1, and end December 31, 2010. members on ceded lands will be through November 30, 2010; and open Daily Bag Limits: 20 Sora and Virginia considered to have been taken on those January 1, 2010, through February 8, rails, singly or in the aggregate. lands unless tagged by a Tribal or State 2011. Possession Limit: 25. conservation warden as taken on Daily Bag Limit: 10 geese. reservation lands. All migratory birds Common Snipe that fall on reservation lands will not Other Geese (White-Fronted Geese and Season Dates: Begin September 15 count as part of any off-reservation bag Brant) and end December 31, 2010. or possession limit. Season Dates: Open September 20, Daily Bag Limit: 16 common snipe. iv. The baiting restrictions included through November 30, 2010. Woodcock in section 10.05(2)(h) of the model Daily Bag Limit: Five geese. ceded territory conservation code will Season Dates: Begin September 7 and be amended to include language which Sora Rails, Common Snipe, and end December 1, 2010. Woodcock parallels that in place for non-Tribal Daily Bag Limit: 10 woodcock. members as published at 64 FR 29799, Season Dates: Open September 1, Mourning Dove: 1837 and 1842 Ceded June 3, 1999. through November 14, 2010. Territories v. The shell limit restrictions Daily Bag Limit: 10 rails, 10 snipe, included in section 10.05(2)(b) of the Season Dates: Begin September 1 and and 5 woodcock. model ceded territory conservation code end November 9, 2010. will be removed. Mourning Doves Daily Bag Limit: 15. vi. Hunting hours shall be from a half Season Dates: Open September 1, General Conditions hour before sunrise to 15 minutes after through November 14, 2010. sunset. Daily Bag Limit: 10 mourning doves. 1. All Tribal members will be required 4. Michigan—Duck Blinds and General Conditions: A valid Grand to obtain a valid Tribal waterfowl Decoys. Tribal members hunting in Traverse Band Tribal license is required hunting permit. Michigan will comply with Tribal codes and must be in possession before taking 2. Except as otherwise noted, Tribal that contain provisions parallel to any wildlife. All other basic regulations members will be required to comply Michigan law regarding duck blinds and contained in 50 CFR part 20 are valid. with Tribal codes that will be no less decoys. Other Tribal regulations apply, and may restrictive than the model ceded (g) Kalispel Tribe, Kalispel be obtained at the Tribal office in territory conservation codes approved Reservation, Usk, Washington (Tribal Suttons Bay, Michigan. by Federal courts in the Lac Courte (e) Great Lakes Indian Fish and Oreilles v. State of Wisconsin (Voigt) Members and Nontribal Hunters). Wildlife Commission, Odanah, and Mille Lacs Band v. State of Nontribal Hunters on Reservation Wisconsin (Tribal Members Only). Minnesota, and United States v. The 2010–11 waterfowl hunting Michigan cases. Chapter 10 in each of Geese season regulations apply to all treaty these model codes regulates ceded Season Dates: Open September 1, areas (accept where noted): territory migratory bird hunting. All through September 13, 2010, for the

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early-season, and open October 2, 2010, and 6 mallards (only 3 of which may be pintail, 5 hooded merganser, 5 scaup, through January 31, 2011, for the late- hens). The possession limit is twice the and 5 canvasback. season. During this period, days to be daily bag limit. Coots and Gallinules hunted are specified by the Kalispel Canada Geese Tribe. Nontribal hunters should contact Season Dates: Open September 1, the Tribe for more detail on hunting Season Dates: Open September 1, through December 31, 2010. days. 2010, through February 8, 2011. Daily Bag Limit: 20. Daily Bag and Possession Limits: Five Daily Bag and Possession Limits: 5 Canada Geese Canada geese for the early season, and Canada geese and possession limit is 3 light geese and 4 dark geese, for the twice the daily bag limit. Season Dates: Open September 1, late season. The daily bag limit is 2 2010, through February 8, 2011. White-Fronted Geese, Snow Geese, Ross Daily Bag Limit: 20. brant (when the State’s season is open) Geese, and Brant and is in addition to dark goose limits White-Fronted Geese, Snow Geese, and Season Dates: Open September 20, for the late-season. The possession limit Brant is twice the daily bag limit. through November 30, 2010. Daily Bag and Possession Limits: Five Season Dates: Open September 1, Tribal Hunters Within Kalispel Ceded birds and the possession limit is twice 2010, through February 8, 2011. Lands the daily bag limit. Daily Bag Limit: 20 geese in aggregate. Ducks Mourning Doves, Rails, Snipe, and Sora and Virginia Rails Season Dates: Open September 1, Woodcock Season Dates: Open September 1, 2010, through January 31, 2011. Season Dates: Open September 1, through December 31, 2010. Daily Bag and Possession Limits: 7 through November 14, 2010. Daily Bag Limit: 20. ducks, including no more than 2 female Daily Bag and Possession Limits: 10 Snipe mallards, 2 pintail, 1 canvasback, 3 doves, 10 rails, 10 snipe, and 5 scaup, and 2 redheads. The possession woodcock. The possession limit is twice Season Dates: Open September 15, limit is twice the daily bag limit. the daily bag limit. through December 31, 2010. Daily Bag Limit: 16. Geese General Season Dates: Open September 1, Mourning Doves 1. All Tribal members are required to 2010, through January 31, 2011. obtain a valid Tribal resource card and Season Dates: Open September 1, Daily Bag Limit: 6 light geese and 4 2010–11 hunting license. through November 9, 2010. dark geese. The daily bag limit is 2 brant 2. Except as modified by the Service Daily Bag Limit: 15. and is in addition to dark goose limits. rules adopted in response to this General: Tribal members must possess Woodcock proposal, these amended regulations a validated Migratory Bird Hunting and parallel all Federal regulations Season Dates: Open September 5, Conservation Stamp and a Tribal ceded contained in 50 CFR part 20. through December 1, 2010. lands permit. 3. Particular regulations of note Daily Bag Limit: 10. (i) Leech Lake Band of Ojibwe, Cass General: Possession limits are twice Lake, Minnesota (Tribal Members Only). include: i. Nontoxic shot will be required for the daily bag limits. Ducks all waterfowl hunting by Tribal (l) Lower Brule Sioux Tribe, Lower Brule Reservation, Lower Brule, South Season Dates: Open September 18, members. ii. Tribal members in each zone will Dakota (Tribal Members and Nontribal through December 31, 2010. Hunters). Daily Bag Limits: 10 ducks. comply with Tribal regulations providing for closed and restricted Tribal Members Geese waterfowl hunting areas. These Ducks, Mergansers and Coots Season Dates: Open September 1, regulations generally incorporate the through December 31, 2010. same restrictions contained in parallel Season Dates: Open September 11, Daily Bag Limits: 10 geese. State regulations. 2010, through March 10, 2011. General: Possession limits are twice iii. Possession limits for each species Daily Bag and Possession Limits: Six the daily bag limits. Shooting hours are are double the daily bag limit, except on ducks, including no more than one hen one-half hour before sunrise to one-half the opening day of the season, when the mallard, two scaup, one mottled duck, hour after sunset. Nontoxic shot is possession limit equals the daily bag two redheads, two wood ducks, one required. Use of live decoys, bait, and limit, unless otherwise noted above. canvasback, and one pintail. Coot daily commercial use of migratory birds are 4. Tribal members hunting in bag limit is 15. Merganser daily bag prohibited. Waterfowl may not be Michigan will comply with Tribal codes limit is five, including no more than two pursued or taken while using motorized that contain provisions parallel to hooded merganser. The possession limit craft. Michigan law regarding duck blinds and is twice the daily bag limit. (j) Little River Band of Ottawa decoys. (m) Lower Elwha Klallam Tribe, Port Indians, Manistee, Michigan (Tribal (k) The Little Traverse Bay Bands of Angeles, Washington (Tribal Members Members Only). Odawa Indians, Petoskey, Michigan Only). (Tribal Members Only). Ducks Ducks Season Dates: Open September 15, Ducks Season Dates: Open September 18, 2010, through January 20, 2011. Season Dates: Open September 15, through December 31, 2010. Daily Bag and Possession Limits: 12 2010, through January 31, 2011. Daily Bag and Possession Limits: ducks, including no more than 2 pintail, Daily Bag Limits: 20 ducks, including Seven ducks, including no more than 2 canvasback, 1 hooded merganser, 3 no more than 5 hen mallards, 5 black two hen mallards, one pintail, one black ducks, 3 wood ducks, 3 redheads, ducks, 5 redheads, 5 wood ducks, 5 canvasback, and two redheads.

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Possession limit is twice the daily bag General Ducks (Including Mergansers) limit. Bag and possession limits for All other Federal regulations Season Dates: Open September 18, harlequin ducks is one per season. contained in 50 CFR part 20 apply. The through November 19, 2010, and open Geese following restrictions also apply: November 29, through December 5, (1) As per Makah Ordinance 44, only 2010. Season Dates: Open September 18, shotguns may be used to hunt any Daily Bag and Possession Limits: Six, through December 31, 2010. species of waterfowl. Additionally, including no more than six mallards Daily Bag and Possession Limits: Four shotguns must not be discharged within (three hen mallards), six wood ducks, geese, and may include no more than 0.25 miles of an occupied area. one redhead, two pintail, and one three light geese. The seasons on (2) Hunters must be eligible, enrolled hooded merganser. The possession limit Aleutian Canada geese and Brant are Makah Tribal members and must carry is twice the daily bag limit. closed. Possession limit is twice the their Indian Treaty Fishing and Hunting daily bag limit. Identification Card while hunting. No Geese Coots tags or permits are required to hunt Season Dates: Open September 1, waterfowl;. through November 19, 2010; and open Season Dates: Open September 18, (3) The Cape Flattery area is open to November 29, through December 26, through December 31, 2010. waterfowl hunting, except in designated 2010. Daily Bag and Possession Limits: 25 wilderness areas, or within 1 mile of Daily Bag and Possession Limits: 5 and 50 coots, respectively. Cape Flattery Trail, or in any area that and 10 Canada geese, respectively, from Mourning Doves is closed to hunting by another September 1, through September 19, ordinance or regulation. 2010; and 3 and 6 Canada geese, Season Dates: Open September 18, (4) The use of live decoys and/or through December 31, 2010. respectively, the remainder of the baiting to pursue any species of season. Hunters will be issued five Daily Bag and Possession Limits: 10 waterfowl is prohibited. and 20 doves, respectively. Tribal tags during the early season and (5) Steel or bismuth shot only for three Tribal tags during the late season Snipe waterfowl is allowed; the use of lead for geese in order to monitor goose shot is prohibited. harvest. An additional three tags will be Season Dates: Open September 18, (6) The use of dogs is permitted to through December 31, 2010. issued each time birds are registered. A hunt waterfowl. seasonal quota of 300 birds is adopted. Daily Bag and Possession Limits: 8 (7) Shooting hours for all species of If the quota is reached before the season and 16 snipe, respectively. waterfowl are one-half hour before concludes, the season will be closed at sunrise to one-half hour after sunset. Band-Tailed Pigeon that time. (8) Open hunting areas are: GMUs 601 Season Dates: Open September 18, (Hoko), a portion of the 602 (Dickey) Woodcock through December 31, 2010. encompassing the area north of a line Season Dates: Open September 4, Daily Bag and Possession Limits: 2 between Norwegian Memorial and east and 4 pigeons, respectively. through November 7, 2010. to Highway 101, and 603 (Pysht). Daily Bag and Possession Limits: 5 General: Tribal members must possess (o) Navajo Nation, Navajo Indian and 10 woodcock, respectively. a Tribal hunting permit from the Lower Reservation, Window Rock, Arizona Elwha Klallam Tribe pursuant to Tribal (Tribal Members and Nontribal Dove law. Hunters must observe all basic Hunters). Federal migratory bird hunting Season Dates: Open September 1, regulations in 50 CFR part 20. Band-Tailed Pigeons through November 7, 2010. (n) Makah Indian Tribe, Neah Bay, Season Dates: Open September 1, Daily Bag and Possession Limits: 10 Washington (Tribal Members). through September 30, 2010. and 20 doves, respectively. Daily Bag and Possession Limits: 5 General Conditions: Tribal member Band-Tailed Pigeons and 10 pigeons, respectively. shooting hours are one-half hour before Season Dates: Open September 18, sunrise to one-half hour after sunset. through October 31, 2010. Mourning Doves Nontribal members hunting on the Daily Bag Limit: Two band-tailed Season Dates: Open September 1, Reservation or on lands under the pigeons. through September 30, 2010. jurisdiction of the Tribe must comply Daily Bag and Possession Limits: 10 with all State of Wisconsin regulations, Ducks and Coots and 20 doves, respectively. including season dates, shooting hours, Season Dates: Open September 25, General Conditions: Tribal and and bag limits which differ from Tribal 2010, through January 30, 2011. nontribal hunters will comply with all member seasons. Tribal members and Daily Bag Limit: Seven ducks basic Federal migratory bird hunting nontribal members hunting on the including no more than five mallards regulations in 50 CFR part 20, regarding Reservation or on lands under the (only two of which can be a hen), one shooting hours and manner of taking. In jurisdiction of the Tribe will observe all redhead, one pintail, three scaup, and addition, each waterfowl hunter 16 basic Federal migratory bird hunting one canvasback. The seasons on wood years of age or over must carry on his/ regulations found in 50 CFR part 20, duck and harlequin are closed. her person a valid Migratory Bird with the following exceptions: Tribal Hunting and Conservation Stamp (Duck members are exempt from the purchase Geese Stamp) signed in ink across the face. of the Migratory Waterfowl Hunting and Season Dates: Open September 25, Special regulations established by the Conservation Stamp (Duck Stamp); and 2010, through January 30, 2011. Navajo Nation also apply on the shotgun capacity is not limited to three Daily Bag Limit: Four including no reservation. shells. more than one brant. The seasons on (p) Oneida Tribe of Indians of (q) Point No Point Treaty Council, Aleutian and dusky Canada geese are Wisconsin, Oneida, Wisconsin (Tribal Kingston, Washington (Tribal Members closed. Members Only). Only).

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Jamestown S’Klallam Tribe Daily Bag and Possession Limits: Four two hen mallards, one pintail, one geese, and may include no more than canvasback, one harlequin per season, Ducks three light geese. The seasons on and two redheads. Possession limit is Season Dates: Open September 15, Aleutian and cackling Canada geese are twice the daily bag limit (except for 2010, through February 1, 2011. closed. Possession limit is twice the harlequin). Daily Bag and Possession Limits: daily bag limit. Seven ducks, including no more than Geese Brant two hen mallards, one pintail, one Season Dates: Open September 16, canvasback, four scoters, and two Season Dates: Open November 13, 2010, through February 28, 2011. redheads. Possession limit is twice the 2010, through January 31, 2011. Daily Bag and Possession Limits: Four daily bag limit. Bag and possession Daily Bag and Possession Limits: 2 geese, and may include no more than limits for harlequin ducks is one per and 4, respectively. three light geese. The season on season. Coots Aleutian Canada geese is closed. Geese Possession limit is twice the daily bag Season Dates: Open September 1, limit. Season Dates: Open September 15, 2010, through February 1, 2011. 2010, through March 10, 2011. Daily Bag and Possession Limits: 25 Brant Daily Bag and Possession Limits: Four and 50 coots, respectively. Season Dates: Open November 1, geese, and may include no more than 2010, through February 15, 2011. three light geese. The seasons on Mourning Doves Aleutian and cackling Canada geese are Daily Bag and Possession Limits: Two Season Dates: Open September 1, and four brant, respectively. closed. Possession limit is twice the 2010, through January 31, 2011. daily bag limit. Daily Bag and Possession Limits: 10 Coots Brant and 20 doves, respectively. Season Dates: Open September 16, Season Dates: Open January 15 Snipe 2010, through February 28, 2011. Daily Bag and Possession Limits: 25 through 31, 2011. Season Dates: Open September 1, and 50 coots, respectively. Daily Bag and Possession Limits: Two 2010, through March 10, 2011. and four, respectively. Daily Bag and Possession Limits: 8 Mourning Doves and 16 snipe, respectively. Coots Season Dates: Open September 16, Season Dates: Open September 15, Band-Tailed Pigeon 2010, through February 28, 2011. 2010, through February 1, 2011. Season Dates: Open September 1, Daily Bag and Possession Limits: 10 Daily Bag and Possession Limits: 25 2010, through March 10, 2011. and 20 doves, respectively. and 50 coots, respectively. Daily Bag and Possession Limits: 2 Snipe Mourning Doves and 4 pigeons, respectively. General: Tribal members must possess Season Dates: Open September 16, Season Dates: Open September 15, 2010, through February 28, 2011. 2010, through January 14, 2011. a Tribal hunting permit from the Point No Point Tribal Council pursuant to Daily Bag and Possession Limits: 8 Daily Bag and Possession Limits: 10 and 16 snipe, respectively. and 20 doves, respectively. Tribal law. Hunting hours are from one- half hour before sunrise to sunset. Band-Tailed Pigeon Snipe Hunters must observe all other basic Season Dates: Open September 15, Federal migratory bird hunting Season Dates: Open September 16, 2010, through March 10, 2011. regulations in 50 CFR part 20. 2010, through February 28, 2011. Daily Bag and Possession Limits: 8 (r) Sault Ste. Marie Tribe of Chippewa Daily Bag and Possession Limits: 2 and 16 snipe, respectively. Indians, Sault Ste. Marie, Michigan and 4 pigeons, respectively. (Tribal Members Only). General Conditions: All hunters Band-Tailed Pigeon authorized to hunt migratory birds on Season Dates: Open September 15, Mourning Doves the reservation must obtain a Tribal 2010, through March 10, 2011. Season Dates: Open September 1, hunting permit from the respective Daily Bag and Possession Limits: 2 through November 14, 2010. Tribe. Hunters are also required to and 4 pigeons, respectively. Daily Bag and Possession Limits: 10 adhere to a number of special regulations available at the Tribal office. Port Gamble S’Klallam Tribe and 20 doves, respectively. General: Tribal members must possess Hunters must observe all other basic Ducks a Tribal hunting permit from the Sault Federal migratory bird hunting Season Dates: Open September 1, Ste. Marie Tribe pursuant to Tribal law. regulations in 50 CFR part 20. 2010, through February 1, 2011. Shooting hours are one-half hour before (u) Spokane Tribe of Indians, Spokane Daily Bag and Possession Limits: sunrise until 15 minutes after sunset. Indian Reservation, Wellpinit, Seven ducks, including no more than Hunters must observe all other basic Washington (Tribal Members Only). two hen mallards, one pintail, one Federal migratory bird hunting Ducks canvasback, four scoters, and two regulations in 50 CFR part 20. redheads. Possession limit is twice the (t) Skokomish Tribe, Shelton, Season Dates: Open September 2, daily bag limit. Bag and possession Washington (Tribal Members Only). 2010, through January 31, 2011. Daily Bag and Possession Limits: limits for harlequin ducks is one per Ducks and Mergansers season. Seven ducks, including no more than Season Dates: Open September 16, two hen mallards, two pintail, one Geese 2010, through February 28, 2011. canvasback, three scaup, and two Season Dates: Open September 15, Daily Bag and Possession Limits: redheads. Possession limit is twice the 2010, through March 10, 2011. Seven ducks, including no more than daily bag limit.

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Geese Snipe Daily Bag Limit for Mergansers: Five Season Dates: Open September 2, Season Dates: Open September 8, mergansers, including no more than two 2010, through January 31, 2011. 2010, and through February 28, 2011. hooded mergansers. Daily Bag and Possession Limits: Four Daily Bag and Possession Limits: 8 Geese dark geese and six light geese. and 16 snipe, respectively. Season Dates: Open September 1 Possession limit is twice the daily bag General Conditions: All Tribal limit. through 26, 2010, and open September hunters must have a valid Tribal ID card 27, through December 19, 2010. General Conditions: All Tribal on his or her person while hunting. hunters must have a valid Tribal ID card Daily Bag Limit: Eight geese through Shooting hours are one-half hour before September 26 and five thereafter. on his or her person while hunting. sunrise to sunset, and steel shot is Shooting hours are one-half hour before required for all migratory bird hunting. Coots sunrise to sunset, and steel shot is Hunters must observe all other basic Season Dates: Open September 1, required for all migratory bird hunting. Federal migratory bird hunting Hunters must observe all other basic through November 30, 2010. regulations in 50 CFR part 20. Daily Bag Limit: 20 coots. Federal migratory bird hunting (z) Upper Skagit Indian Tribe, Sedro regulations in 50 CFR part 20. Woolley, Washington (Tribal Members Sora and Virginia Rails (w) Stillaguamish Tribe of Indians, Only). Arlington, Washington (Tribal Members Season Dates: Open September 1, Only). Mourning Dove through November 30, 2010. Daily Bag Limit: 25 sora and Virginia Band-Tailed Pigeon Season Dates: Open September 1, rails, singly or in the aggregate. through December 31, 2010. Season Dates: Open September 1, Common Snipe and Woodcock through December 31, 2010. Daily Bag and Possession Limits: 12 Daily Bag and Possession Limits: Four and 15 mourning doves, respectively. Season Dates: Open September 1, and eight, respectively. Tribal members must have the Tribal through November 30, 2010. identification and harvest report card on Daily Bag Limit: 10 snipe and 10 Mourning Dove their person to hunt. Tribal members woodcock. Season Dates: Open September 1, hunting on the Reservation will observe Mourning Dove through December 31, 2010. all basic Federal migratory bird hunting Daily Bag and Possession Limits: 10 regulations found in 50 CFR part 20, Season Dates: Open September 1, and 20, respectively. except shooting hours would be one- through November 30, 2010. Tribal members hunting on lands will half hour before official sunrise to one- Daily Bag Limit: 25 doves. observe all basic Federal migratory bird half hour after official sunset. General Conditions: Shooting hours hunting regulations found in 50 CFR (aa) Wampanoag Tribe of Gay Head, are one-half hour before sunrise to one- part 20, which will be enforced by the Aquinnah, Massachusetts (Tribal half hour after sunset. Nontoxic shot is Stillaguamish Tribal Law Enforcement. Members Only). required. All other basic Federal Tribal members are required to use steel migratory bird hunting regulations shot or a nontoxic shot as required by Canada Geese contained in 50 CFR part 20 will be Federal regulations. Season Dates: Open September 13 observed. (y) Tulalip Tribes, Tulalip, through 30, 2010, and open October 30, (cc) White Mountain Apache Tribe, Washington (Tribal Members Only). 2010, through February 26, 2011. Fort Apache Indian Reservation, Ducks Daily Bag Limits: Eight Canada geese Whiteriver, Arizona (Tribal Members during the first period and three during and Nontribal Hunters). Season Dates: Open September 8, the second. 2010, through February 28, 2011. Band-Tailed Pigeons (Wildlife Daily Bag and Possession Limits: Snow Geese Management Unit 10 and Areas South Seven ducks, including no more than Season Dates: Open September 8 of Y–70 and Y–10 in Wildlife two hen mallards, two pintail, one through 22, 2010. Management Unit 7, Only) canvasback, three scaup, and two Daily Bag Limits: 15 snow geese. Season Dates: Open September 1 redheads. Possession limit is twice the General Conditions: Shooting hours through 15, 2010. daily bag limit. are one-half hour before sunrise to Daily Bag and Possession Limits: Geese sunset. Nontoxic shot is required. All Three and six pigeons, respectively. other basic Federal migratory bird Season Dates: Open September 8, Mourning Doves (Wildlife Management hunting regulations contained in 50 CFR 2010, through February 28, 2011. Unit 10 and Areas South of Y–70 and Daily Bag and Possession Limits: part 20 will be observed. Y–10 in Wildlife Management Unit 7, Seven geese. Possession limit is twice (bb) White Earth Band of Ojibwe, Only) the daily bag limit. White Earth, Minnesota (Tribal Members Only). Season Dates: Open September 1 Brant through 15, 2010. Ducks Season Dates: Open September 8, Daily Bag and Possession Limits: 10 2010, through February 28, 2011. Season Dates: Open September 18, and 20 doves, respectively. Daily Bag and Possession Limits: Two through December 12, 2010. General Conditions: All nontribal and four brant, respectively. Daily Bag Limit for Ducks: 10 ducks, hunters hunting band-tailed pigeons including no more than 2 female and mourning doves on Reservation Coots mallards, 1 pintail, and 1 canvasback. lands shall have in their possession a Season Dates: Open September 8, valid White Mountain Apache Daily or Mergansers 2010, through February 28, 2011. Yearly Small Game Permit. In addition Daily Bag and Possession Limits: 25 Season Dates: Open September 18, to a small game permit, all nontribal and 50 coots, respectively. through December 19, 2010. hunters hunting band-tailed pigeons

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must have in their possession a White Tribal and nontribal hunters will Dated: August 25, 2010. Mountain Special Band-Tailed Pigeon comply with all basic Federal migratory Will Shafroth, Permit. Other special regulations bird hunting regulations in 50 CFR Part Acting Assistant Secretary for Fish and established by the White Mountain 20 regarding shooting hours and manner Wildlife and Parks. Apache Tribe apply on the reservation. of taking. [FR Doc. 2010–21664 Filed 8–31–10; 8:45 am] BILLING CODE 4310–55–P

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Part IV

Department of Labor Employment and Training Administration

20 CFR Part 641 Senior Community Service Employment Program; Final Rule

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DEPARTMENT OF LABOR on October 17, 2006. This law amended State grantee fails to meet its core the statute authorizing the SCSEP and performance goals for three consecutive Employment and Training necessitates changes to the SCSEP years. OAA § 513(d)(3)(B)(iii); § 641.490 Administration regulations. The 2006 OAA required of this part. regulations that address performance In addition, the 2006 OAA establishes 20 CFR Part 641 measures by July 1, 2007. To meet this new funding opportunities for pilot, demonstration, and evaluation projects RIN 1205–AB48 and RIN 1205–AB47 deadline, the Department promulgated an Interim Final Rule on June 29, 2007. (OAA § 502(e); § 641.600–640 of this Senior Community Service 72 FR 35832. We issued an NPRM on part), expands the priority-for-service Employment Program; Final Rule August 14, 2008, to propose changes to categories (OAA § 518(b); § 641.520 of the remainder of the SCSEP regulations this part), and modifies how the AGENCY: Employment and Training in light of the 2006 OAA. 73 FR 47770. program determines income eligibility Administration, Labor. We invited comments on both the IFR (OAA § 518(a)(3)(A); § 641.510 of this ACTION: Final rule. and the NPRM, and thoroughly part). evaluated those comments in the Coordination between the SCSEP and SUMMARY: The Employment and process of developing this final rule. the programs under the Workforce Training Administration (ETA) of the The SCSEP, authorized by title V of Investment Act of 1998 (WIA), 29 U.S.C. Department of Labor (Department) the OAA, is the only federally- 2801 et seq., continues to be an issues this final rule to implement sponsored employment and training important objective of the 2006 OAA. changes in the Senior Community program targeted specifically to low- With the enactment of WIA in 1998, the Service Employment Program (SCSEP) income older individuals who want to SCSEP became a required partner in the resulting from the 2006 Amendments to enter or re-enter the workforce. workforce investment system. 29 U.S.C. title V of the Older Americans Act, and Participants must be unemployed, 55 2841(b)(1)(B)(vi). In 2000, Congress to clarify various policies. These years of age or older, and have incomes amended the SCSEP to require regulations provide administrative and no more than 125 percent of the Federal coordination with the WIA One-Stop programmatic guidance and poverty level. The program offers delivery system (Pub. L. 106–501, requirements for the implementation of participants community service § 505(c)(1)), including reciprocal use of the SCSEP. assignments and training in public and assessment mechanisms and Individual The Department issued an interim non-profit agencies. The dual goals of Employment Plans (Pub. L. 106–501, final rule (IFR) implementing changes in the program are to promote useful § 502(b)(4)). In 2006, Congress the SCSEP performance accountability opportunities in community service continued both the requirement to regulations. We issued a notice of activities and to also move SCSEP coordinate at OAA § 505(c)(1) and the proposed rulemaking (NPRM) proposing participants into unsubsidized reciprocal use of assessments at OAA changes to the remainder of the SCSEP employment, where appropriate, so that § 502(b)(3)(B). The underlying notion of regulations on August 14, 2008. This they can achieve economic self- the One-Stop delivery system is the final rule takes into consideration sufficiency. In the 2006 OAA, Congress coordination of programs, services, and comments received on the IFR and the expressed its sense of the benefits of the governance structures, so that the NPRM. SCSEP, stating, ‘‘placing older customer has access to a seamless DATES: Effective date: This final rule is individuals in community service system of workforce investment effective October 1, 2010. positions strengthens the ability of the services. FOR FURTHER INFORMATION CONTACT: individuals to become self-sufficient, Consistent with current SCSEP Judith Gilbert, Team Leader, Division of provides much-needed support to practice, both WIA and the 2006 OAA Adult Services, Office of Workforce organizations that benefit from require any grantee operating a SCSEP Investment, U.S. Department of Labor, increased civic engagement, and project in a local area to negotiate a 200 Constitution Avenue, NW., Room strengthens the communities that are Memorandum of Understanding (MOU) S–4209, Washington, DC 20210; served by such organizations.’’ OAA with the Local Workforce Investment telephone (202) 693–3046 (this is not a § 516(2). Board. WIA § 121; OAA § 511(b); see toll-free number). Although some of these regulations also OAA § 502(b)(1)(O). The MOU must Individuals with hearing or speech remain unchanged from the 2004 SCSEP detail the SCSEP project’s involvement impairments may access the telephone final rule, this final rule does include in the One-Stop delivery system. In number above via TTY by calling the certain significant changes to the particular, SCSEP grantees and sub- toll-free Federal Information Relay program. Perhaps most notably, the new recipients must make arrangements to Service at 1–800–877–8339. 48-month limitation on participation provide their participants, eligible (OAA § 518(a)(3)(B); § 641.570 of this SUPPLEMENTARY INFORMATION: individuals the grantees are unable to The preamble to this final rule is part), and the increase in available serve, as well as SCSEP-ineligible organized as follows: funds for training and supportive individuals, with access to services services (OAA § 502(c)(6)(C); § 641.874 available in the One-Stop centers. OAA I. Background—provides a brief description of this part). §§ 510, 511; §§ 641.210, 641.220, and of the development of the rule. The 2006 OAA also increases the 641.230 of this part. II. Summary of the Comments—provides an accountability of national grantees by overview of the comments received. clearly requiring a competitive process II. Summary of the Comments III. Section-by-Section Review—discusses comments on the SCSEP regulations. for grant awards. This final rule We have carefully reviewed all of the IV. Administrative Information—sets forth implements the statute’s requirement comments received in response to both the applicable regulatory requirements. that the national SCSEP grants be re- the IFR and to the NPRM. We received competed regularly, generally every four 1,505 comments during the comment I. Background years. OAA § 514(a); § 641.490(a) of this periods, of which 364 were unique, 959 The Older Americans Act (OAA) part. This final rule also implements the were duplicates or ‘‘form’’ letters, and Amendments of 2006, Public Law 109– statute’s requirement that a State one was a petition with 182 signatures. 365 (2006 OAA) were signed into law compete its SCSEP grant if the current The commenters fell into a variety of

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categories that reflect the broad range of not intended to change the meaning or What are the purposes of the SCSEP? constituencies for the SCSEP program, intent of the regulatory provisions. (§ 641.120) including State and national grantees, Generally, we do not discuss these types This section of the rule outlines the program non-profit host agencies, area of changes in this section. agencies on aging, WIA providers, and purpose of the SCSEP. We received a Subpart A—Purpose and Definitions program participants. significant number of comments on this section. A majority of the commenters A number of commenters requested What is the SCSEP? (§ 641.110) additional time to review and submit expressed concern that the Department comments on the changes proposed in This section of the final rule describes is minimizing the community service the NPRM. Many of these commenters the SCSEP as it is defined by the 2006 aspects of the program and placing a requested an additional 60 days to OAA. We received several comments on higher priority on the unsubsidized determine the impact on SCSEP this provision. Those commenters placement goal in this regulation. Many stakeholders and participants. Several expressed concern about using the term of the commenters stated that the NPRM commenters mentioned that many who ‘‘employment’’ in the phrase does not conform to the 2006 OAA will be impacted by the proposed ‘‘community service employment because they perceived the Department changes are not yet even aware of them. assignment’’ as referenced in §§ 641.110 as elevating the importance of Others mentioned that they have had and 641.120 of the rule. A few unsubsidized employment at the insufficient time to contact host commenters found that adding the term expense of community service. Several agencies and obtain their input. One ‘‘places undue confusion on both commenters referenced the intent of commenter pointed out that the SCSEP grantees and participants.’’ As a result, Congress when it passed the legislation. system is a diverse and complex these commenters recommended that Those commenters referenced section network of agencies, and said that the regulation only refer to 516 of the 2006 OAA, which provides: insufficient time had been allowed to ‘‘employment’’ in the context of It is the sense of Congress that— seek input from this network. One unsubsidized employment. Other (1) The older American community commenter said additional time was commenters stated that changing the service employment program described required to evaluate the impact of the name would reverse grantee efforts to in this title was established with the recent economic downturn on SCSEP promote SCSEP as a training program intent of placing older individuals in participants. A few others suggested that rather than an employment program. community service positions and the Department put the proposed The Department accepts this providing job training; and regulations aside and work comment. The regulation has been (2) placing older individuals in collaboratively with the grantee revised to use the term ‘‘community community service positions community and with the service assignment’’ throughout. The strengthens the ability of the individuals Administration on Aging to draft new term ‘‘community service employment’’ to become self-sufficient, provides regulations. in the rule is consistent with the term much-needed support to organizations We reviewed these requests and as it is defined in the 2006 OAA at that benefit from increased civic concluded that they presented no novel § 518(a)(2). To remedy any potential engagement and strengthens the or difficult issues justifying an confusion, the Department notes that communities that are served by such extension of the comment period or a the terms ‘‘community service organizations. withdrawal of the proposed rule In this assignment’’ and ‘‘community service case, the Department provided 60 days Those commenters relied on the employment assignment’’ are the same for notice and comment. We believe the placement of the words ‘‘community in that they both represent part-time, time allotted was more than sufficient to service’’ before ‘‘job training’’ to make temporary job training through a work review this regulation given that most of the case that Congress intended for experience that is paid with grant funds. the rule simply reflects changes community service to have a higher Therefore, the Department recommends required by the 2006 OAA, or is a priority than job training. Further, some that grantees continue to clarify the continuation of policies that were of these commenters asserted that ‘‘self- nature of the community service published in the 2004 Final Rule. sufficient’’ in this context implies assignment with participants, which Accordingly, the Department did not emotional and other types of self- should alleviate any potential extend the comment period. sufficiency, and not just economic self- confusion. The more substantive comments sufficiency. In support of this position, touched on almost every section of the One final comment came from a the commenters describe the importance proposed regulation. These comments program participant who stated that the of placing an older individual into a are discussed in Section III below. In program should allow for more than community service assignment as a addition, the Department has made part-time hours so that participants are means of improving the person’s sense technical changes to the regulatory text able to further develop and improve of financial as well as emotional and for clarity and consistency. Provisions their skills. We are unable to social well-being, while providing a that were not the subject of a comment accommodate the participant’s request, useful and needed service in the or that were not revised for technical because the OAA at § 518(a)(2) defines community. Therefore, these reasons have been adopted as proposed ‘‘community service employment’’ as commenters found that the regulations and are not discussed in Section III. ‘‘part-time, temporary employment.’’ We ignore the value of community service are pleased to receive comments from both to the participant and to the III. Section-by-Section Review our program participants, including this community at large. A few commenters In this section, we discuss the commenter, and note that developing stressed the importance of working with comments, our responses to them and and improving skills does not have to the non-profit sector because they rely any changes to the regulations that we end with SCSEP. There are other no-cost on the program participants when they made as a result of comments. In the training resources available to seniors do not have enough funds to hire staff course of reviewing the NPRM, we have (including, in some cases, through the for their organizations. One commenter made some technical or grammatical One-Stop delivery system) that we hope commended the Department for changes to the regulatory text, which are program participants utilize. stressing the importance of the

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program’s goal to foster economic self- further reflection, however, the appreciates the sentiments of this sufficiency. Department realized that although this commenter, we disagree. We believe In addition, some commenters definition is no longer applicable to the that the added term ‘‘training’’ helps to focused on other language in the 2006 502(e) projects from the 2004 regulation, underscore the fact that the community OAA. In addition to § 516, these it is still applicable to define the status service assignment provides an commenters referenced § 502(a), of participants who are enrolled in WIA opportunity to train SCSEP participants ‘‘Establishment of Program’’ and or other employment and training for unsubsidized employment. Congress § 518(a), which defines ‘‘community programs since SCSEP is a mandatory indicates in § 502(a)(1) of the 2006 service employment.’’ These partner in the One-Stop system. OAA, that the SCSEP is designed to commenters stated that these provisions Therefore, we have reinstated this ‘‘[i]ncrease the number of persons who ‘‘reinforce[] the primary purpose of definition with some changes to reflect may enjoy the benefits of unsubsidized community service employment, along that the participants must be enrolled in employment in both the public and with its dual purpose of placing workers those other programs to be considered private sectors.’’ Further in § 516 of the into unsubsidized employment.’’ One of co-enrolled. 2006 OAA, Congress indicates that the the commenters noted that the Commenters suggested two SCSEP program ‘‘was established with Department misinterpreted the 2006 substantial changes to the definition of the intent of placing older individuals OAA when it attempted to ‘‘meld ‘‘equitable distribution report.’’ First, the in community service positions and together’’ four disparate provisions ‘‘to commenters suggest the Department providing job training.’’ Thus, the support an exclusive focus on job allow grantees to use other reputable Department has decided to retain the placement’’ in the proposed rule. and reliable population data in order to term ‘‘training’’ in the definition of ‘‘host The Department appreciates the determine the optimum number of agency.’’ commenters’ concern about the participant positions for equitable We received several comments on the perceived changes in the program. distribution purposes. The Department definition of ‘‘individual employment However, the Department finds that the understands the limits of census data plan or IEP.’’ One commenter requested dual purposes of the program— when determining equitable distribution that the Department include the term community service and appropriate of positions, given that Census data is ‘‘mandatory’’ in place of the term employment objectives for updated only every 10 years. The ‘‘appropriate’’ to describe the participants—with its related Department also agrees that more timely employment goal included in the IEP. performance goals, are not inconsistent. information would help the grantees The Department agrees that one of the We fully embrace these dual purposes of make better decisions for program end goals of an IEP should be the SCSEP as envisioned by the efficiencies (i.e., equitable distribution unsubsidized employment for many Congress. We recognize the importance of SCSEP positions), which would allow participants; however, making this a of the community service aspect of the more eligible individuals to participate mandatory function of the IEP runs SCSEP. But we do not think that the in the program. Furthermore, by counter to the statutory language in regulation should overemphasize either relaxing the limitations on grantees on § 502(b)(1)(N)(ii) of the 2006 OAA, aspect of the program. We have, the data they may use for equitable which provides that the grantee ‘‘will therefore, written this regulation to distribution of positions, grantees will provide training and employment strike an appropriate balance between be able to respond to major changes in counseling to eligible individuals based community service and unsubsidized their programs, such as in the case of a on strategies that identify appropriate employment. Therefore, we have not natural disaster or other unforeseen employment objectives * * * changed this section. demographic shifts. Therefore, the developed as a result of [an] assessment ’’ What definitions apply to this part? Department agrees to allow the use of and service strategy. Thus, the use of other data for equitable distribution ‘‘ ’’ (§ 641.140) the word appropriate further purposes, as long as that information is underscores the need to identify a This section provides specific or from a reliable source, comparable in strategy in the IEP that is tailored to the contextual definitions for the terms used quality to the Census data, and grantees needs of each participant. in this part. We received numerous document the source of the information. Additionally, commenters stated that comments on this section with Other commenters took issue with the the Department did not include suggestions on how to better clarify, change of words in the definition from community service in the definition of amend, or define the following ten (10) ‘‘counties’’ to ‘‘jurisdiction.’’ We made IEP. These commenters suggested the definitions: ‘‘co-enrollment,’’ this change to make the definition more Department change the term IEP to ‘‘employment,’’ ‘‘equitable distribution inclusive of potentially underserved ‘‘individual service employment report,’’ ‘‘host agency,’’ ‘‘individual incorporated cities. One commenter program’’ or ISEP. Other suggestions employment plan,’’ ‘‘other participant specifically suggested that the included ‘‘ISS’’ for Individual Service costs,’’ ‘‘state plan,’’ ‘‘sub-recipient,’’ Department reverse the change of Strategy and ‘‘ITP’’ for Individual ‘‘supportive services,’’ and wording, and edit the definition to Training Plan. There is no doubt that ‘‘unemployed.’’ In addition, commenters include the term ‘‘incorporated cities.’’ the community service assignment is an asked the Department to add definitions The Department accepts these important aspect of the IEP, since it for ‘‘community service employment’’ commenters’ suggestions and has provides a work environment in which and ‘‘job ready.’’ expanded the definition of ‘‘equitable to obtain needed job skills. The goal of As indicated in the preamble to the distribution report’’ to include these the IEP is to plot the participant’s proposed rule, the definition of ‘‘co- suggestions. training plan that will lead to an enrollment’’ was eliminated because it One commenter expressed concern appropriate employment objective, related to private sector 502(e) projects with the addition of the word ‘‘training’’ which includes more than just which are no longer authorized. This within the definition of ‘‘host agency.’’ community service. Read together, definition was specific to the 502(e) The commenter felt that this term added paragraphs (i) and (ii) of § 502(b)(1)(N) projects and had no bearing on SCSEP to the confusion participants experience focus on a strategy aimed at participants co-enrolling into other when they accept a community service employment, and thus the IEP is federally funded programs. Upon assignment. Although the Department appropriate. However, there is nothing

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in the definition of IEP or elsewhere that who reside in rural areas who take part- Subpart B—Coordination With the prevents grantees from including a time jobs. This definition tracks the Workforce Investment Act variety of other services and strategies statutory language, and it is sufficiently What is the relationship between the not directly related to the employment clear. Therefore, we have not changed SCSEP and the Workforce Investment goal as part of the IEP. For the reasons the definition. Act? (§ 641.200) provided, the Department therefore We also received recommendations finds this change unnecessary and did This section provides that SCSEP not alter this definition. However, in from commenters to add two definitions grantees are required to follow all response to these comments we did add to this section, and we have adopted applicable rules under WIA and its language to the definition to make it both. An overwhelming number of regulations. The WIA operational clear that, while the first IEP must commenters suggested that the requirements generally do not apply to contain an employment goal, later IEPs Department add the term ‘‘community SCSEP operations. As required partners need not, if employment is not a feasible service employment’’ to this regulation. under WIA, grantees are obligated to be outcome for a participant. The term ‘‘community service familiar with the WIA requirements Two commenters found that the term employment’’ is included in § 518(a)(2) when they are acting as a WIA/One Stop ‘‘other participant costs’’ contained of the 2006 OAA and reads as follows: delivery system partner. The only much the same list of activities defined proposed changes made in this section The term ‘‘community service under ‘‘supportive services.’’ These are to clarify that sub-recipients (and employment’’ means part-time, temporary commenters are correct. The not just grantees) are included in the employment paid with grant funds in requirement to follow all applicable Department has elected to keep both projects described in section 502(b)(1)(D), WIA rules and regulations, and to make definitions because the definition of through which eligible individuals are ‘‘ ’’ certain technical corrections to the other participant costs contains a engaged in community service and receive variety of activities in addition to those citations. work experience and job skills that can lead A number of commenters objected to listed in the definition of ‘‘supportive to unsubsidized employment. services.’’ In addition, we have clarified the requirement that SCSEP follow all the definition of ‘‘severely limited The other definition we adopted in applicable rules under WIA and its employment prospects’’ by substituting this final rule is ‘‘job ready’’ which regulations. The commenters cited the words ‘‘substantial likelihood’’ for pertains to the rule that prohibits the various problems and experiences they the words ‘‘substantially higher enrollment of job ready participants in perceive WIA has in serving older workers, and argued that SCSEP is a likelihood.’’ §§ 641.512 and 641.535(c). The term different type of program than WIA and One commenter noted that the ‘‘job ready’’ has been discussed in definition of ‘‘sub-recipient,’’ caused should therefore not be required to training and in conversations with general confusion by changing from the comply with its rules, which they previously defined term, ‘‘subgrantee.’’ grantees when the Department has believe are burdensome on SCSEP However, the Department was clear provided technical assistance. The grantees. Several commenters said that about why it changed the various Department has generally meant the it is unclear which WIA rules and definitions and the definition of ‘‘sub- term to apply to an individual who regulations are applicable to SCSEP and recipient’’ in particular in the preamble requires no more than just job club or which are not. Several commenters to the proposed rule. The Department job search assistance to be employed. asked that the requirement to follow explained that the previous term, The Department discussed its policy in applicable WIA rules be removed. Since ‘‘subgrantee,’’ failed to take other the 2004 regulations at 69 FR 19014 at both the OAA and WIA require SCSEP recipients into account that may have 19031, 19032, and 19038, Apr. 9, 2004. to be a One-Stop partner, we cannot grant management responsibilities. The To reiterate the Department’s policy as make the suggested change. term ‘‘sub-recipient,’’ therefore, is announced in 2004, the purpose of the These commenters also mentioned inclusive of subgrants as well as other program is to ‘‘assure that grantees that WIA performance measures create a types of funding awards. For this concentrate their efforts and limited disincentive to serving older workers, reason, the Department did not make funds on providing community service and cited as evidence findings of an any changes to this definition. work assignments to those older April 2008 Government Accountability One commenter noted that the cost of [individuals] who are most in need’’ as Office report entitled ‘‘Most One-Stop incidentals was not included in the opposed to those who are job ready. 69 Career Centers Are Taking Multiple proposed definition of ‘‘supportive Actions to Link Employers and Older FR 19014 at 19031. Therefore, a simple services,’’ even though incidentals are Workers.’’ One commenter said the onus definition of ‘‘job ready’’ is now the most widely used supportive seems to be on SCSEP to initiate ‘‘ service. Although the Department used provided. It refers to individuals who collaborative relationships with WIA. the definition in the OAA at § 518(a)(7), do not require further education or Another commenter suggested releasing we have now modified the definition to training to perform work that is a Training and Employment Guidance more fully reflect the language on available in his or her labor market.’’ Letter (TEGL) to highlight the supportive services found in section Thus, it may include an individual who importance of coordination between 502(c)(6)(A)(iv). is already employed, even if only part- WIA and SCSEP. We received a few comments on the time, or was recently unemployed but We appreciate the commenters’ definition of ‘‘unemployed.’’ One has a skill set to fill the jobs available concerns about ways to improve commenter disagreed with the in his or her area; or who has received SCSEP–WIA coordination but none of Department’s interpretation and found sufficient training from SCSEP or some the comments received addressed the that the definition unnecessarily other employment and training program specific changes to this section complicates a grantee’s ability to make to be able to perform work that is proposed by the NPRM. The comments eligibility decisions. This commenter available in the labor market. appear to reflect a concern that the further stated that use of the words the coordination requirements of the 2006 ‘‘occasional employment’’ works against OAA and WIA will have the effect of older individuals and particularly those diluting or undercutting the focus and

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mission of the SCSEP. As we stated in said that it is not always feasible to The Department disagrees that an response to similar comments in the make referrals to WIA intensive or MOU is not necessary when the local preamble to the 2004 Final Rule, we do training services because many board is a SCSEP sub-grantee, although not intend the regulations to convey this participants live long distances from we acknowledge that this situation adds message. 69 FR 19017–19019. WIA One-Stop centers and do not have a degree of complexity to the envisions a coordinated workforce transportation to access services. relationship. As required of all partner development system in which a variety Another commenter noted the absence relationships with the One-Stop of programs work more closely together of One-Stop centers in rural areas. delivery system, the requirement to to make access to workforce Another commenter said that even if have an MOU is statutory and therefore, development services easier and more referrals of older individuals for WIA still necessary. The relationship the efficient. WIA includes a number of services are made, the WIA program local board would have as a sub- programs that serve special populations tends not to serve them. Still another recipient only mandates services to to be required partners and is very commenter said that the One-Stop participants under the grant agreement careful to assure that program delivery system provides limited or no but does not ensure that there is a boundaries are respected. None of the bi-lingual programs that target older written policy for how services would WIA requirements on SCSEP grantees workers and in many instances are not be coordinated with the One-Stop have changed from those that applied in located in proximity to Hispanic and center. Therefore, we did not make any 2004, so we have not changed the minority neighborhoods. Finally, a change to this section. SCSEP regulations that govern SCSEP– commenter said that the 2006 OAA does Must the individual assessment WIA coordination. The Department not require SCSEP to provide core conducted by the SCSEP grantee and the intends that the regulations will enable services through the WIA One-Stop assessment performed by the One-Stop grantees and sub-recipients to delivery system, but requires potential delivery system be accepted for use by concentrate better on the core missions participants to be registered with One- either entity to determine the of the SCSEP, providing community Stop centers. individual’s need for services in the service assignments to hard-to-serve The Department acknowledges that SCSEP and adult programs under older individuals. The Department access and referral to WIA services in title I–B of WIA? (§ 641.230) intends that the One-Stop delivery rural areas may present particular The only proposed changes the system be used to provide services both challenges, as do addressing the special to older individuals who are not eligible Department made to this section were of needs of older workers who are limited- a technical nature. We received two for the SCSEP and to those who are English proficient. To address these eligible but need the intensive services comments recommending the challenges, the Department encourages Department modify the section to that the SCSEP is unable to provide. The coordination with other organizations, kinds of partnerships that the include Aging Disability Resource in addition to One-Stop centers, that Centers or other organizations that regulations envision will enable SCSEP may be more appropriate. This grantees and sub-recipients to focus perform assessments in addition to provision reminds grantees and sub- WIA, to assist with the data validation more of their efforts on the core recipients that they are required to be population that the SCSEP is intended requirements. part of the One-Stop delivery system to serve. We did, however, add language This section merely reflects the and to participate when appropriate in to make it clear that the requirements of language of the 2006 OAA on the providing access and referral to the the section apply to SCSEP grantees and acceptance of each others’ assessments other services that the One-Stop sub-recipients when they are acting in by the SCSEP and One-Stop delivery partners offer. Grantees may also decide their capacities of required One-Stop system. The Department believes the to provide core services outside the partners. SCSEP program will be better served if One-Stop Career Centers. the regulations do not specify what What services, in addition to the Does title I of WIA require the SCSEP to other organizations perform applicable core services, must SCSEP assessments. The Department grantees and sub-recipients provide use OAA funds for individuals who are not eligible for SCSEP services or for emphasizes that grantees are responsible through the One-Stop delivery system? for determining whether assessments (§ 641.210) services that are not authorized under the OAA? (§ 641.220) performed by other organizations are This section requires SCSEP grantees sufficient for the grantee’s and the and sub-recipients to make This section states that even in the participant’s needs. arrangements to provide their One-Stop center environment, SCSEP participants, eligible individuals the projects are limited to serving SCSEP- Subpart C—The State Plan grantees and sub-recipients are unable eligible individuals with title V grant We received a large number of to serve, as well as SCSEP ineligible funds. The local Workforce Investment comments on this subpart, although a individuals, with access to other Board and the One-Stop partners, few were outside the scope of this services available at One-Stop centers. including SCSEP, should negotiate in rulemaking because they related to We received comments on the second the Memorandum of Understanding subpart G, which had a separate clarification made to this provision that (MOU) arrangements for referral of comment period from the proposed rule. SCSEP grantees and sub-recipients must individuals to WIA who are not eligible Most of the comments were related to also make arrangements through the for SCSEP. the 4-year strategy in the State Plan, One-Stop delivery system to provide A single comment on this section although others discussed participation eligible and ineligible individuals with suggested including language that if a in developing the State Plan, referrals to WIA intensive and training Local Workforce Investment Board is a community service needs, modifications services. SCSEP sub-grantee, then no MOU is to the State Plan, and equitable Several commenters objected to this necessary because the contract between distribution. We received a few requirement and asked that it be the grantee and sub-grantee already comments related to the cost and removed, while others noted problems stipulates arrangements for resources needed to complete the State with the requirement. One commenter administration of the SCSEP. Plan, which are addressed in the

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Administrative Section of this final rule agencies on aging, and with other One commenter was not in favor of under Section D, Unfunded Mandates. Federal programs such as Foster the four-year strategy because he felt We also received several comments that Grandparents, Senior Companions, that ‘‘[p]lanning beyond funding periods generally discussed the State Plan Vocational Rehabilitation and several exceed[ed] the parameters of the requirements or discussed the need for others. A few even requested that the grantee’’ particularly in light of the greater coordination with aging Administration on Aging and other requirements to resubmit the plans for programs, which the Department has SCSEP providers be involved in writing modification. As discussed below, the decided to address in this subpart on the regulations. These commenters did State grantee is responsible for the the State Plan requirements. not submit their comments on any higher-level oversight of activities in the State required by § 503 of the 2006 What is the State Plan? (§ 641.300) particular section of the regulation and, in fact, some commenters were OAA. As a practical matter, however, a This section describes the purpose ‘‘disappointed’’ because they found the strategy is the pre-planning for what the and function of the State Plan. We made regulations ‘‘silent’’ on this issue. program will accomplish over a period a number of changes to this section to The regulations are not ‘‘silent’’ on the of time based on a forecast of events and reflect the new provision in the 2006 coordination requirement with other not a mere short-term snapshot of OAA, which requires State grantees to Federal agencies, and especially the activities or actual workload action submit a four-year strategy to the other aging programs. There are several items. The reality is that the State Department. provisions in this regulation that require program operators provide continuity A few commenters asked the for the program, while other Department to consider allowing the coordination with aging and other resources. The first is in § 641.315, organizations may be transient. State grantees to combine the State Therefore, the State grantee is in the SCSEP strategic plan with the State Unit which requires the State grantees to seek the advice and recommendation of best position to develop a thoughtful on Aging strategic plan to further the long-term plan for how activities will be goals and efforts of its SCSEP program. representatives from State and area agencies on aging, social service provided statewide. Some of those commenters specifically The other general commenter stated organizations, and community-based justified this request by stating that the that, unlike their WIA program, they do organizations in § 641.315(a), and Department allows the State grantees to not have an economist or the funds to permits the State grantee to obtain the submit the State Plan as a part of the hire an economist to provide the advice and recommendation of other WIA Unified Plan, but since SCSEP is information that is required for a four- interested organizations and individuals an OAA program, submitting the State year strategy. Therefore, this commenter in § 641.315(b). In addition, § 641.302(i) Plan with the other OAA programs argues that the ‘‘[i]nformation submitted requires the States to plan actions that should also be acceptable. by the State SCSEP [grantees] are coordinate activities of SCSEP grantees Although we appreciate the logic of assumptions and not factual.’’ these comments, it is not possible for with other public and private entities The Department appreciates the the State Plans to be submitted with the and programs that provide services to desire to be as precise as possible, but other OAA strategic plans. According to older Americans. That the Department it does not believe that an economist is 20 U.S.C. 9271, ‘‘a State may develop did not mention a specific social service needed to develop the four-year strategy and submit to the appropriate or other program by name does not for this program. It is true that it is Secretaries a State unified plan for 2 or exclude it from being a worthy important to have certain data, such as more of the activities or programs’’ organization for collaboration. Given the information on the growth of the eligible provided in a specific list, and the only large number of comments that population; however, much of this part of OAA listed is Title V. Therefore, addressed this particular concern, the information can already be found on- 20 U.S.C. 9271 does not authorize States Department hopes that grantees will line from the Bureau of Labor Statistics to include a unified plan that includes now understand the importance of the or other resources, such as from the OAA activities or programs that are State planning requirements that State workforce agency, which manages authorized by a section of OAA other grantees will make a genuine effort to SCSEP in a growing number of States. than Title V. Such programs are include those organizations during State One of the requirements of the four-year governed by their own planning planning meetings. The Department strategy is to describe the planned requirements. Furthermore, SCSEP is expects grantees to work with any and actions to coordinate with other unique in that it is the only program as many organizations as will help programs, including WIA. The under the OAA that is administered by achieve the purpose of the program. The Department suggests that State grantees the Department of Labor. Section 503 of Department emphasizes that the that are not workforce agencies the 2006 OAA specifically requires each grantees do not need explicit permission coordinate with their workforce State to submit a State Plan to the in the regulations to work with these agencies first to find out what Secretary of Labor to be eligible for grant organizations. Finally, at the Federal information is already available. Other funding under this program. The level, the Department will continue to information requirements are grantee- Department shares the State Plans with coordinate with the Administration on dependent, such as equitable the Administration on Aging in an effort Aging on State planning and other major distribution, which requires the type of to coordinate with them on older policy concerns under the MOU that collaboration with the national grantees American policies. However, if they so exists between the two Federal agencies. discussed in §§ 641.300 and 641.365. Several commenters suggested that desire, we do not prevent State grantees What is the four-year strategy? the State Plan requirements go beyond from also submitting their SCSEP (§ 641.302) strategic plan with their OAA strategic what Congress intended in § 503 of the plan. This section outlines the requirements 2006 OAA, and found many of the Many commenters suggested that the for the four-year strategy. We received requirements duplicative of other Department develop regulations that many comments on this section, largely Department requirements and policies. require SCSEP grantees to coordinate in opposition to the various As an example, these commenters cited with other programs under the 2006 requirements. Two comments were of a § 641.302(f) because a ‘‘performance OAA, such as State units and area more general nature. system and sanctions system is already

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in place.’’ These commenters also noted In response to the first commenter, we significant role in the equitable that the regulations at § 641.302(a)(3), disagree that a long range strategy distribution process. Therefore, (c), and (d) overlapped with certain increases paperwork without particularly since § 641.302(a)(1) grant application requirements. measurable benefit to program specifically refers to § 641.365, the At the outset, the Department would participants because of the limited Department does not believe the like to point out that the State Plan is ability of the State to alter positions. regulation provision needs to be revised ‘‘statewide.’’ That is to say, it is designed The four-year State Plan guides the as suggested. to cover all program activities that will annual adjustments that occur with the We received comments about occur in the State, both those operated annual Equitable Distribution report, § 641.302(f) of the proposed rule. One by the State and those operated by which itself insures positions are moved commenter stated that because the national grantees. It is for that reason from over-served to under-served Department sets the minimum levels of that the State grantees, which have this locations. This process helps ensure that performance each year, the States have oversight responsibility, are required to positions are distributed in the most minimal input in determining the seek the advice and consultation of appropriate and least disruptive manner performance levels and are not other organizations in the State, to participants and also to grantees. The consulted when they are established. including the national grantees. To that 4-year plan outlines the principles for Another commenter found that the extent, there are no other vehicles in the determining the need for moving regulation provision, as written, implied program that would provide this higher positions and when ‘‘swaps’’ will occur. that State grantees were responsible for level of thoughtful planning for the As to the point about the State’s limited performance of the national grantees. betterment of program services in the ability to alter positions, the language in This commenter suggested that the State. As previously noted, a strategy is § 641.365(f) gives the State the ability to Department amend the provision to the pre-planning for what the program influence the movement of positions. read: ‘‘The State strategy, including will accomplish over a period of time (‘‘All grantees are required to coordinate input from national grantees regarding based on a forecast of events. The main any proposed changes in position their own performance strategies, for reason for a State Plan is the recognition distribution with the other grantees in continuous increase in the level of that the State grantees are in the best the State, including the State project performance for entry into unsubsidized position to forge relationships that cross director, before submitting the proposed employment, and to achieve at a minimum, the levels * * *.’’ programs, communities, and changes to the Department for approval. In the Department’s opinion, these organization silos. The best way for any The request for the Department’s commenters misunderstood the purpose State to provide services to its citizens approval must include the comments of the State project director, which the of that provision and the role of the is by working with all of the relevant State grantee in shepherding the State Department will consider in making its partners to lead the State in a direction Plan process. As noted in the preamble decision.’’) The Department intends to that will produce positive outcomes to the proposed rule, the four-year give significant weight to the State overall. Such coordination requires strategy is a long-term strategy for project director’s comments in deciding strategic planning. Therefore, a State’s increasing the level of performance in whether to approve any proposed individual grant application, even if the State. We further stated in the changes in position distribution. duplicative to some extent, represents NPRM preamble that ‘‘[a]ll grantees the more immediate actions the State As to the second commenter, their should strive to continuously improve plans to take, which is only one small concern about the exclusion of any their performance levels to assist part of the overall strategy for providing mention of national grantees is enrollees in becoming self-sufficient, services in the State. addressed in §§ 641.360 and 641.365 on make available opportunities for other We received a few comments on equitable distribution. As provided in individuals to enroll in SCSEP, and § 641.302(a) on equitable distribution those sections, the State grantees are better fulfill the objectives of the and the requirement to address priority responsible for submitting an equitable program.’’ Therefore, the regulation does individuals, comments on § 641.302(f) distribution report at the beginning of not make the State grantees responsible on continuous increase in performance, each fiscal year and that the report is the for ensuring that every national grantee and one comment on § 641.302(g) on result of consultations with all the that operates in the State meet its coordination with WIA. With regard to grantees (including the national performance goal; rather, the State § 641.302(a)(1), one commenter argued grantees) in the State to discuss the grantees are responsible for planning a that, given the limited ability of the location of their authorized positions. In strategy in collaboration with the State to alter positions between the addition to showing where the positions national grantees to provide better national grantees and the State, creating are currently located, the equitable services to participants overall, which ‘‘a long range strategy beyond the scope distribution report reflects an agreement will lead to higher performance for the of the Older Americans Act * * * among the grantees for how positions State as a whole. We believe the rule, reauthorization increases paper work will gradually shift over time to either which requires in this section and without measurable benefits to program align with changes in the population § 641.315 that the State Plan must be participants.’’ Another commenter either through movement of the developed in consultation with, among mentioned that this paragraph positions to underserved areas by the others, the national grantees in the ‘‘exclude[d] any mention of national grantees, or through ‘‘swaps.’’ Those State, is clear on these purposes and grantees and the key role they play in consultations by their nature already does not need to be amended. the distribution process.’’ This require grantees to do some forecasting Some commenters took issue with commenter requested that the about where positions should be § 641.302(g) of the proposed rule. A few Department rewrite the section to say: located. Therefore, the four-year strategy commenters stated that the programs ‘‘Moves positions from over-served to is consistent with the goals and current under WIA ‘‘seem to focus on the under-served locations within the State practices for equitable distribution. younger generation’’ and full-time by working collaboratively with When these provisions are read employment opportunities, which national grantees through a together, it is clear that the Department makes it difficult to set employment participatory process.’’ expects the national grantees to have a expectations for the older workers in

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collaboration with WIA projects. Other May the Governor, or the highest with the exception of grantees serving commenters did not have an issue with government official, delegate older American Indians or Pacific Island the language but echoed these responsibility for developing and and Asian Americans. One commenter sentiments. These commenters wanted submitting the State Plan? (§ 641.310) disagreed with this provision and stated to know what the Department was doing Although we did not receive any that these entities should not be exempt from participation. As noted in the to encourage similar collaborative comments on this section, we made regulation text at paragraph (b), efforts with the WIA programs, technical amendments to this section by however, that exclusion is mandated by however, rather than leaving the onus breaking it into paragraphs to make it Congress at § 503(a)(8) of the 2006 OAA. on SCSEP to initiate partnering efforts. easier to read. That being said, the Department agrees We believe these commenters are Who participates in developing the that it would be helpful for these reading the provision too narrowly. The State Plan? (§ 641.315) organizations to participate in the point of the coordination requirement is development of the State Plan, which is no different from the expectations and This section describes the required participants to the State planning designed to improve services, and we requirements established in subpart B of process. We received a few comments believe they have done so in the past. this final rule. The type and degree of Therefore, as noted in the regulation on this section. provision, the Department will continue coordination will vary depending on the One commenter stated that the to encourage these national grantees to geographic location. This provision requirement to seek the advice and participate in the State Plan process. requires the State grantees to develop a recommendation of representatives of long-term strategic plan for how those the various organizations involved too How should the State Plan reflect activities will be coordinated over a many people, and that it ‘‘would take an community service needs? (§ 641.330) period of time for the benefit of the entire year just to coordinate those We received one comment on this program. The Department further notes efforts.’’ This commenter requested that section; however, because the substance that WIA grantees have a responsibility the Department limit the number of of the comment was related to a lack of to coordinate with the SCSEP program organizations required to provide input resources, it will be addressed in the as well, but these regulations are not to the development of the State Plan. Administrative section of the preamble intended to apply to WIA-funded This part of the proposed rule did not under Section D, Unfunded Mandates. recipients. For example, State change from the 2004 regulations. In Workforce Investment Boards are addition, the list of organizations and How should the Governor, or the required to develop linkages among individuals is consistent with the highest government official, address the One-Stop Partner programs such as § 503(a)(2) of the 2006 OAA. The coordination of SCSEP services with SCSEP in order to assure coordination Department commented on this issue in activities funded under title I of WIA? and avoid duplication of activities. 20 the 2004 regulations. At that time the (§ 641.335) CFR 661.205(b)(1). For a more in depth Department stated: ‘‘[Although] We received several comments on this discussion on the coordination obtaining information on coordination section. These commenters found this requirements, see the discussion of may be a bit more complicated whe[n] section inadequate as drafted to address subpart B of this final rule. there are several national grantees in a coordination requirements with aging State, we believe that if the Governor programs but failed to provide any Finally, one commenter argued that has set up a good consultation process, specific regulatory suggestions other § 641.302(k) is ‘‘overly prescriptive’’ in obtaining the information should not be than to draft more regulations. The requiring the State to provide a long- difficult.’’ 69 FR 19014, 19022, Apr. 9, Department did not make any changes term strategy because it ‘‘presumes the 2004. to these sections because, as mentioned necessity for every state to make long- Other commenters found this section in the discussion of § 641.315, the term program design changes in order to to be inadequate as written because it requirements to coordinate with aging improve services to participants and does not address coordination groups are clear. communities.’’ The commenter argued requirements with aging programs. that instead, the State ‘‘should have the Specifically, one commenter noted that How often must the Governor, or the highest government official, update the latitude to plan strategically, within the the SCSEP regulation should ‘‘enforce State Plan? (§ 641.340) framework of the OAA, for what works and reflect section 503(b) of the 2006 best * * *.’’ There is nothing in OAA, requiring coordination of SCSEP This section discusses the situations § 641.302(k) that prevents a State from with other programs under the Older when the State is required or planning strategically for what works Americans Act, such as state units and encouraged to update the State Plan. We best. Indeed, that is precisely what this area agencies on aging, and with other received one comment on this section. provision assumes that the States will Federal programs such as Foster This commenter stated that requiring do. This provision does not require Grandparents, Senior Companions, and updates more frequently than every two years as specified by the 2006 OAA, change for change’s sake, rather, it Vocational Rehabilitation.’’ We did not would convert a long range strategy into requires that a State take a hard look at make any changes to these sections because the regulation lists aging an annual plan, which is the current the SCSEP in the State, determine organizations in paragraphs (1), (4), (5) requirement. Although updates are not whether changes in the program will and (7) and thus clearly requires required more frequently than every two improve it and develop a plan to move coordination with aging organizations. years, they are encouraged and should toward those changes. Therefore, we be done when circumstances warrant, as disagree that § 641.302(k) is overly Must all national grantees operating noted in § 641.345. The State Plan prescriptive, because as explained within a State participate in a State process is not an exercise that should be above, we believe that long-term, 4-year planning process? (§ 641.320) done as an item on a ‘‘to do’’ list. Rather, planning will improve services overall This provision explains that all it is a thoughtful instrument that is in the State. national grantees are required to designed to lead the State forward to participate in the State planning process achieve positive outcomes. In order for

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any plan to be effective, it must align appears that some State grantees have advice and recommendation of each with current circumstances. Over the used the public comment period as the entity listed in § 641.315 when or if course of two or four years, it is main mechanism for seeking the advice modifying the State Plan becomes reasonable to think that there could be and recommendation of those necessary, we have decided not to some major shifts in policy, local or organizations and individuals, which is require it except for the national national economy, employers, not the intent of the statute. Section grantees in the state. performance, or community social 503(a)(2) of the 2006 OAA requires State How does the State Plan relate to the service organizations that may alter the grantees to seek the advice and equitable distribution report? State’s direction described in the State recommendations of those organizations (§ 641.360) Plan. Therefore, without monitoring and and individuals while developing the adjusting the State Plan, it would be plan. The public comment period This section describes the connection easy for the State Plan to become occurs after the State Plan is developed. between the State Plan and the equitable obsolete. Therefore, the Department did Although it is a time consuming distribution report. The Department not make any changes based on this process, as we have stated elsewhere in made one substantive change to this comment. However, as a technical this preamble, the State Plan process is section. The Department changed amendment, we did divide the section not an item on a ‘‘to do’’ list. The State ‘‘Census data’’ to ‘‘Census or other into two paragraphs to make it easier to Plan process requires the grantee to reliable data’’ to be consistent with the read. identify and assess the resources changes made to the definition of available in the State, to engage the key ‘‘Equitable Distribution Report’’ in What are the requirements for members of organizations providing § 641.140. modifying the State Plan? (§ 641.345) those resources in the planning process, A commenter stated that the State We received several comments on this and to provide a roadmap for how the Plan should address competition and section. One commenter stated that State will reach overall projected the authorized positions that could modifying the State Plan according to outcomes. Therefore, it is a critical change. That commenter further argued § 641.345(b)(3) would require grantees document for helping the State provide that the Department should require a to modify the State Plan every year, continuously improving services to as plan to involve State grantees in the which is contrary to the four-year many eligible individuals possible in finalization of the authorized positions strategic planning document. This that State. Thus, if the plan to avoid disruptions, or the ability to commenter stated that almost every development or modification processes make recommendations to better serve State and national grantee failed to meet are being run correctly, there is no areas proportionately. at least one goal, and because the contradiction in the provisions on We agree with these concerns and it Department requires grantees to submit consultation and public comment. is for that reason that the 4-year strategy a performance improvement plan each The second commenter further stated and the meetings on equitable year when one or more goal is not met, that paragraph (d) negates the role of the distribution are so vitally important to that effectively results in annual national grantees in the modification the program, as discussed in other modifications. process. This commenter recommended sections of this final rule. Further, We appreciate this comment and that the Department strike this provision § 641.480 addresses the commenter’s upon further reflection have decided to and replace it with a provision that other concern that States should have a delete this provision from the final rule. reads: ‘‘the Governor, or the highest role in determining where positions are Although the assertions that most [S]tate official, must seek advice and located during a competitive process. grantees fail to meet at least one goal recommendations from each grantee Since the commenter’s concerns are each year and that they are required to operating a SCSEP within the State.’’ addressed in that provision, we did submit a performance improvement The Department agrees with this make any changes to this section. plan each year is inaccurate, the comment and has modified the language How must the equitable distribution Department does agree that the to require the Governor or the highest provisions be reconciled with the requirement is unnecessary for State official to consult with the provision that disruptions to current continuous improvement. As a national grantees. In addition, given the participants should be avoided? consequence, proposed § 641.345(b)(3) commenter’s rationale, the Department (§ 641.365) has been deleted and § 641.345(b)(4) also considered whether this provision will be renumbered as § 641.345(b)(3). should be revised to require the full This section describes the Two other commenters reported consultation of those entities listed at Department’s policy on the movement contradictions: One found that § 641.315 as well. The purpose of the of positions for equitable distribution in paragraphs (c) and (d) contradicted each State Plan is to draft a plan that will the context of minimizing disruptions to other and the other found that improve services across the State and participants. One commenter supported paragraph (d) contradicted OAA this provision relates to major changes the proposed regulation because it § 503(a)(3). We do not find a that will impact services to participants included language that emphasized the contradiction in either case. statewide, which suggests the coordination of all grantees within the Paragraph (c) requires the modified importance of full consultation even State. Another commenter requested State Plan to be published for public when modifying the plan. On the other that the Department require national comment, while paragraph (d) allows hand, we recognize that the State may grantees to report to the State when they the grantees to make modifications to need some flexibility about which move positions within the State, and the plan without seeking the advice and organizations it seeks advice from wanted us to allow the States to recommendation of those entities and during the modification planning authorize these changes. This individuals listed in § 641.315. process because the need for advice commenter felt that this change would Paragraph (d) addresses the from particular organizations may vary, ensure that ‘‘the maximum number of development of the modification while depending on the event that gave rise to eligible individuals will have an paragraph (c) addresses the post- the need for a modification. Therefore, opportunity to participate in the development, pre-submission phase of while the Department strongly program and will allow States to the planning process. However, it encourages State grantees to seek the demonstrate that they are making good

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faith efforts to correct slot inequities and competition, and the timing of a the OAA to the NPRM language, in are on track to meet their state plan national competition. which the Department ‘‘propose[d] to goals.’’ drop the reference to past performance What entities are eligible to apply to the among the rating criteria [it] will We appreciate the comment in Department for funds to administer consider.’’ That same commenter went support of this proposed section as well SCSEP projects? (§ 641.400) as the sentiments of the commenter, on to request that the Department who would like to see more State This section describes the entities that propose more comprehensive authority over any position movement are eligible to apply for SCSEP grants. regulations to address the interrelated within the State. Section 641.365(d) We received one comment on this issues of past performance and the requires that national grantees notify the proposed section on the funding to the manner and timing of the competition State of any position transfers before the State for conducting a competition. The for SCSEP grants. The commenter based transfers may be made. Not only are commenter stated that the regulations this argument on his organization’s national grantees required to participate do not address the funding provided to experience with prior competitions and in the equitable distribution and State the State to conduct a competition. This the 2006 Solicitation for Grant Plan processes, but they are also commenter also stated that the Applications. See 71 FR 10798, Mar. 2, required to notify the State before any Department ‘‘appear[ed] to define the 2006. This commenter stated that his positions are transferred within the State in two distinctly different organization believed the statute only State. § 641.365(f). However, to ensure definitions.’’ provided the Department the authority that national grantees coordinate with The Department does not provide to re-allocate positions from grantees the State grantee before submitting a additional funding for the States to that failed to meet national performance request to the Department to move compete their grant program. States that goals. Another commenter stated that positions, we are revising this section to compete their programs will have plenty written comments should be sought on require that the national grantee’s of advance notice that they will have to this provision from the Governor or request to DOL include a compete because it takes a failure to designee of the State. meet performance standards for three recommendation from the State grantee We do not agree that the statute only consecutive years to trigger the in which the affected positions are provides the Department the authority competition requirement. States located and to indicate that the to reallocate positions from grantees that therefore will have time to plan for the Department will consider those failed to meet national performance possibility of competition and to set comments in reviewing the application. goals. While OAA § 513(d)(2)(B)(iii) bars money aside to fund it. The Department As a matter of practice, since the 2004 grantees which have failed to meet their suggests that grantees work with their regulations, the Department has looked performance goals for four consecutive Federal Project Officer to determine a for the State’s comments on any years from participating in the next sufficient amount for administrative position relocation request from a competition, we interpret OAA management of a competitive process national grantee and will continue to do § 514(a)(1) to require an open for State grantees that are required or so. This revision conforms the competition; a competition in which all regulation to our established practice desire to compete their programs. In addition, we have amended funds and slots available to national and ensures that the State’s comment on § 641.420(d) to cross reference grantees are competed. As discussed in the proposed transfer will be considered § 641.460, which provides that relevant the preamble to the proposed rule, at by the Department in the decision past participation will be used as 73 FR 47770, 47780, Aug. 14, 2008, the making process. Approval authority, scoring criteria, as well as a factor for proposed change merely took past however, will continue to remain with determining an applicant’s eligibility. performance out of the rating criteria in the Department consistent with the 2006 the Solicitation for Grant Applications OAA. How will the Department examine the requirements because it is included The Department recognizes that it responsibility of eligible entities? already as an eligibility criterion under may have been difficult to follow this (§ 641.450) § 514(c)(4), as the commenters point out. provision and, therefore, has divided We have amended this section to state However, upon further consideration, the section into subparagraphs to make that in reviewing records, the we believe that using past performance it easier to read. The requirements Department may consider ‘‘all relevant’’ merely as an eligibility criterion is discussed above are now reflected in information including the organization’s inadequate to give effect to the new §§ 641.365(a)–(f). The Department history in ‘‘managing’’ other grants. Congressional requirement. Grantees also made a few technical changes, These changes merely reflect the that fail to meet their aggregate level of which included changing ‘‘Federal Department’s standard practice in performance for four consecutive years Project Officer’’ to ‘‘the Department’’ to reviewing competitive grants. are precluded by statute from be more consistent with the statutory participating in the competition. This language; and editing ‘‘Census data’’ to What factors will the Department would still allow a grantee with totally read ‘‘Census or other reliable data’’ to consider in selecting national grantees? unacceptable performance in the last be consistent with the changes to the (§ 641.460) three years to compete. Therefore, we definition of ‘‘Equitable Distribution This section describes the factors the have concluded that consideration of all Report’’ in § 641.140. Department will consider when it relevant past performance should be competes the national grant funds. We part of the scoring mechanism and of Subpart D—Grant Application and received several comments on this the awarding criteria. Considering all Responsibility Review Requirements for proposed section. One commenter relevant experience, and not just SCSEP State and National SCSEP Grants stated that § 641.460 appeared to be at experience, will protect against We received several comments on this odds with § 514(c)(4) of the 2006 OAA selection bias. What constitutes relevant subpart. Those comments were related because the statutory language was experience and the specific weight to State competition, the use of past intended ‘‘to prevent selection bias given to past performance will be performance for selecting grantees, State where past performance was addressed in the Solicitation for Grant involvement in the national meritorious.’’ The commenter compared Applications published in the Federal

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Register or other appropriate participants and our policy of avoiding applicants.’’ 73 FR at 47781. To instrument. disruptions to the extent possible. reinforce this interpretation, the Finally, written comments from the Department is changing the language of Subpart E—Services to Participants Governor or highest elected official are the regulation to remove the word provided for under § 641.480, which Who is eligible to participate in the ‘‘encourages’’ and to track the language outlines the process by which the SCSEP? (§ 641.500) of TEGL 12–06, which requires the Governor or highest elected official may This section describes the eligible grantee to use whichever period is more participate in the national competition population for participation in the favorable to the participant. process. program. We received one comment on What types of income are included and When will the Department compete this section. That commenter excluded for participant eligibility SCSEP grant awards? (§ 641.490) recommended the Department lower the determinations? (§ 641.510) This section outlines the age limit of participants to 50 with This section generally describes what circumstances that govern the continued priority to those who meet does and does not constitute income for Department’s decision to compete the the most-in-need characteristics. We did purposes of determining participant national grant funds. We received one not make this change because the eligibility. We received a few comments comment on this section. requirement to serve individuals age on this section expressing agreement The commenter expressed concern who are at least 55 years of age is with the provision. One of the that having an additional grant year for statutory. OAA § 502(a)(1). For clarity, commenters further stated that the some grantees but not for all would the Department has added the phrase ‘‘at regulation should specifically reference create a complicated competitive grant the option of the applicant’’ to the other income exclusions, such as cycle. The commenter also thought that sentence about treating a person with a income from training programs, SSI, such a process would remove the disability as a family of one at the end Veterans benefits, and any other opportunity for new and incumbent of this section. This change is consistent publicly subsidized program where the organizations to compete with all the with the intent of the statutory goal is self-sufficiency. national organizations and ‘‘would only provision, and conforms to the The Department declines to make the serve to exacerbate the difficulties of Department’s long-standing suggested change to this provision for SCSEP participant transition [from] one interpretation of the provision. the reasons stated in the preamble to the provider to another.’’ The commenter How is applicant income computed? proposed rule at 73 FR 47781–47782, recommended that the Department (§ 641.507) Aug. 14, 2008. The Department make a decision to hold a national encourages grantees to read TEGL No. SCSEP competition ‘‘using the national This section describes the procedures 12–06 (Dec. 28, 2007) for the most baseline for all organizations.’’ grantees must follow when making recent information on excludable The Department takes this comment income determinations for enrolling income. The Department also notes that to mean that a competition should be for participants. Most of these requirements that TEGL includes the exclusions all available national grant positions were previously in administrative referenced by this commenter and is and that the extension of the grants for guidance and were adopted with the located on the SCSEP Web site at an additional year as permitted by 2006 OAA. http://www.doleta.gov/seniors under § 514(a)(2) of the 2006 OAA, should be We received one comment on this Grantee Information, Technical determined by how well all grantees are section related to using either a 12- Assistance. The income exclusions performing at the end of the four-year month period of income or a 6-month included in the regulation were only period referenced in § 514(a)(1). period of annualized income to those exclusions required in the 2006 Although we appreciate the determine participant eligibility. This OAA. The issue of includable and commenter’s concerns, we decline to commenter stated that the regulation excludable income is one that requires address this issue in a regulation, but appeared to require the grantee to use some measure of flexibility for good will take it under advisement. The 2006 one or the other and requested that the program management. It is for that OAA requires us to compete the Department allow grantees the reason that the details of the income program every four years but permits us flexibility to use whichever method was requirements have always been in an to grant a one-year extension to any most favorable to the participant on a administrative guidance, as authorized national grantee that has met its case-by-case basis. by § 641.510(c). performance goals for each year of the The Department previously stated that four-year grant period. Although we grantees should use which method of May grantees and sub-recipients enroll cannot extend the grants of grantees that calculating income is most favorable to otherwise eligible job ready individuals have failed to meet their expected levels the participant and for that reason, the and place them directly into of performance, the extension is preamble to the proposed rule unsubsidized employment? (§ 641.512) otherwise discretionary. It is acknowledged that we were adopting This section prohibits grantees from discretionary in the sense that we could the procedures that were published in enrolling job ready individuals, who can decide to compete all of the grants after TEGL No. 12–06 (Dec. 28, 2006), which be directly placed into unsubsidized the fourth year, extend all of the grants went into effect on January 1, 2007. See employment, as SCSEP participants. if all the national grantees have met 73 FR 47770, 47781, Aug. 14, 2008. That One commenter suggested the their expected levels of performance, or section of the preamble specifically Department add a definition or criteria compete the funds of only those allowed grantees to calculate income for ‘‘job ready,’’ which would help the grantees that have failed to meet their based on either 12 months or 6 months providers determine the type of expected levels of performance. We will annualized. Further, in that section, the individual that is not eligible for SCSEP decide how to structure the future Department encouraged grantees to services. The Department agrees and has competition after reviewing program ‘‘choose the computation method that is included a definition of ‘‘job ready’’ in performance toward the end of the four- most favorable to each participant, on a § 641.140. As noted in that section of year period, and will make the decision case-by-case basis, for the broadest the preamble, in general terms, it is an based on the best interests of the possible inclusion of the eligible individual who requires no more than

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just job club or job search assistance to Moreover, this requirement in the before the individual is enrolled in the be employed. Therefore, the definition regulation is not new to SCSEP; it program. In that case, the individual, of ‘‘job ready,’’ as now defined at appeared in the 2004 regulations at 20 who is not yet a SCSEP participant, is § 641.140, refers to an individual who CFR 641.515(b). Therefore, the not required to be paid SCSEP wages for does not require further education or Department’s interpretation is attending that overview or assessment. training to perform work that is consistent with the 2006 OAA and the However, once a participant is enrolled available in his or her labor market. For 2004 regulations and accompanying in the program, which means the further clarity, we have added the word preamble discussion at 69 FR 19014, at individual has been found eligible, has ‘‘job-ready’’ to the text of § 641.512 to 19029. been given a community service describe those individuals ‘‘who can be assignment, and is receiving a service, What services must grantees and sub- directly placed into unsubsidized paragraph (a)(9) requires that the grantee recipients provide to participants? employment’’ and thus cannot be must pay wages for time spent in (§ 641.535) enrolled in SCSEP but should be orientation, training, assessment, or in directly referred to the One-Stop system. This section describes the types of receiving any other service. This services that are required, permitted, requirement applies even if the How must grantees and sub-recipients and prohibited in the program. We participant has yet to start his or her recruit and select eligible individuals received a few comments on this assigned community service assignment for participation in the SCSEP? section. One commenter requested at the host agency. (§ 641.515) language in proposed paragraph Further, as one commenter noted, This section describes the criteria (a)(1)(ii), to ensure grantees have the participants may continue to receive grantees must use when determining the flexibility to determine when a self-development training outside of eligibility of an individual to receive participant needed to be reassessed. The their participation in the SCSEP as program services. We received a few Department does not agree that provided in § 641.540(h). However, the comments on this section specifically additional language is necessary. The regulation does not require grantees to related to proposed paragraph (b), on regulation text, as written, as well as the pay wages when the participants are using the One-Stop delivery system for preamble discussion in the proposed participating in training that they have recruiting participants. rule, already allows for such flexibility selected and that is not identified in One commenter acknowledged the so long as participants are assessed their IEP. essential relationship that must exist upon entry, and for a total of at least two Another commenter stated that between the One-Stop delivery system times in a 12-month period. proposed paragraph (b) allows the and the SCSEP. However, that In addition, two commenters stated Department to increase programmatic commenter further stated that that proposed § 641.535(a)(9), as well as costs without funding and that, transferring the responsibility of §§ 641.540(f) and 641.565(a), appeared ‘‘utilizing the administrative guidelines recruitment and selection of all eligible to require projects to pay participants appears to circumvent the rule making participants to the One-Stop appears for time spent in such training and process.’’ The Department disagrees duplicative and eliminates the role of orientation. In particular, one with this commenter for a number of SCSEP in participant selection. Several commenter stated that orientation reasons. Proposed paragraph (b) states other commenters stated that the activities can occur as part of the initial that ‘‘[t]he Department may issue provision is inconsistent with assessment process which may be before administrative guidance that clarifies § 502(b)(1)(H). Those commenters a community service assignment. The the requirements of paragraph (a).’’ The reasoned that the statutory language did commenter notes that under the Department is fully compliant with the not require grantees to use the One-Stop proposed rule, such a participant would notice and comment procedures for delivery system to recruit or select not be required to receive wages, which rulemaking under the Administrative eligible individuals because of the use appeared inconsistent with the Procedure Act (5 U.S.C. 551 et seq.). The of ‘‘will’’ rather than ‘‘must.’’ They proposed § 641.540(h), and therefore, administrative guidance discussed in wanted the regulation to reflect that disagreed with the proposed change. paragraph (b) will merely clarify the there are other means to recruit and We do not read this provision as requirements of paragraph (a) and is not select participants. narrowly as this commenter. Paragraph intended to create new rules or We believe these commenters (a) of § 641.535 specifically states: regulations. Such guidance would misinterpreted that section of the statute ‘‘When individuals are selected for provide further explanation, as and the proposed rule. In the context of participation in the SCSEP’’ the grantee necessary, of the meaning and OAA § 502(b), the Department interprets is responsible for the activities listed at parameters of the various activities the use of the word ‘‘will,’’ to be paragraphs (1) through (11) of that required by the regulation and functions synonymous with the words ‘‘shall,’’ or section. Included on that list is as a type of technical assistance to ‘‘must.’’ Section 502(b)(1) requires the paragraph (9) ‘‘Providing participants grantees that sometime struggle to Secretary not to fund programs unless with wages and benefits for time spent understand how they are expected to she determines that the programs ‘‘will’’ in the community service employment satisfy a regulation. The portion of the do all of the things listed in paragraphs assignment, orientation, and training.’’ comment that is related to increasing (A)–(R). In that context, ‘‘will’’ means The Department believes that the programmatic costs without funding is that the 18 activities listed in § 502(b)(1) operative words in this paragraph are addressed in the Administrative section must be done for a program to be ‘‘selected for participation.’’ The point of of this preamble under Section D, funded. That being said, however, we the regulation is that when a person is Unfunded Mandates. However we also do not believe the statute or the formally enrolled in the program the note that rather than increase regulation implies a requirement for an enrollee must receive paid services. programmatic costs, we anticipate that exclusive use of the One-Stop delivery Therefore, it is possible, as the such guidance will actually decrease system as the means to recruit eligible commenter described, that an programmatic costs. participants, as required by § 641.515(b). individual may attend a general We have also changed the language in Rather, it is one method that grantees overview of the program or participate paragraph (a)(3) by adding a new must use to recruit eligible participants. in a general assessment for eligibility subparagraph (iii) to clarify that the

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requirement that an appropriate on the job, in a classroom setting, or options for how training may be unsubsidized employment goal be part pursuant to other appropriate provided. It has long been recognized as of the IEP for all participants applies arrangements.’’ We interpret the term an approved training activity, although only for the first IEP. Thereafter, if it ‘‘placement’’ here to mean a placement not expressly mentioned in the becomes apparent that unsubsidized in a community service assignment. We regulations. Grantees that have employment is not feasible for the base our interpretation on the latter part questions about how to implement on- participant, the IEP should be adjusted of that provision, which indicates that line training should contact their to reflect other appropriate goals for the training may be provided on the job, Federal Project Officer for technical increased self-sufficiency, including the in a classroom, or through other assistance. transition to other services, as required appropriate arrangements. In the Another commenter requested that by § 641.570(a)(2). Since it is possible Department’s opinion, the examples the Department add the language ‘‘and that some SCSEP participants will not listed go hand-in-hand with the types of any other costs deemed necessary’’ to achieve unsubsidized employment training a grantee would provide while the end of § 641.540(e). We decline to during or immediately following their a participant is in a community service make this suggested change. The enrollment in SCSEP, grantees must assignment, given that the community language follows the statutory language have the flexibility to design an IEP that service assignment is an on-the-job type at 502(c)(6)(A)(ii) of the 2006 OAA and will lead to maximum self-sufficiency of training. The commenter’s reading is is sufficiently inclusive of all costs the for the participant and an enhanced not only inconsistent with the SCSEP’s Department considers part of training. quality of life after participation in policy on services to exited participants, Any allowable cost associated with SCSEP has ended. but is also inconsistent with the intent training that is not included in Finally, we have removed the citation of the program to help most-in-need, § 641.540(e) will fall within the wages in paragraph (a)(1) to the 2006 OAA, older individuals find employment. and other benefits listed in since OAA § 502 does not specifically Given the program’s limited § 502(c)(6)(A)(i) of the 2006 OAA and require a grantee or sub-recipient to resources, it is important that grantees participant supportive services costs provide orientation to the SCSEP. use grant funds to help current which are addressed in § 641.540(g). However, it is the Department’s position participants achieve self-sufficiency. Making the suggested change would that requiring the provision of Grantees have a responsibility to likely lead to unnecessary confusion orientation is consistent with the provide training for the participants that over whether the ‘‘other costs’’ purpose of title V. Orientation adds will make them job ready. In associated with training fall within great value to the participants’ appropriate cases, the grantees have an § 641.540(e) or § 641.540(g). Such experience. Orientation is the ideal obligation to provide or assist confusion would be especially forum in which to provide participants participants to obtain supportive problematic because the statute with important information on the services to make sure the participant excludes the cost of activities listed in program; to address expectations and keeps that job, as the commenter notes. § 641.540(e) from its general rule that desired outcomes; and explain We do not, however, define supportive 75% of costs go to wages, while the participant’s rights and obligations, services to include training for a statute includes costs listed in grievance procedures, safety issues, and participant once he or she has exited the § 641.540(g) within the ‘‘75% of grant any other information deemed necessary program. Although there is government funds go to wages’’ rule. OAA to ensure a positive experience. support for incumbent worker training § 502(c)(6)(B)(i). in WIA and TAA, SCSEP’s funds cannot We make one technical change in What types of training may grantees and be used to provide training after paragraph (a) to clarify that the grantee sub-recipients provide to SCSEP unsubsidized employment has been ‘‘may’’ pay for appropriate skill training, participants in addition to the training attained. SCSEP’s goal is to help in addition to that provided through the received at the community service participants become job-ready through community service assignment, ‘‘that is assignment? (§ 641.540) community service and approved realistic and consistent with the The purpose of this section is to training; therefore, training may occur participant’s IEP, that makes the most describe the types and the timing of during enrollment but not after effective use of the participant’s skills training services grantees may provide completion of the program. We have and talents, and that prepares them for to participants. We received several revised this provision to clarify that unsubsidized employment.’’ The prior comments on this section about on-line training may be provided ‘‘before or mandatory language, ‘‘must,’’ was meant training and the Department’s during’’ a community service to apply to the criteria that have to be interpretation of training. assignment. met before the grantee may pay for such One commenter requested that the Other comments were about on-line skill training. It was not meant to Department revise paragraph (b) to be training. One commenter expressed require the grantee to pay for such more consistent with the 2006 OAA. support for the approval to use on-line training for all participants. Grantees are That commenter interpreted instruction for training as discussed in encouraged to arrange or provide for § 502(c)(6)(A)(ii) of the 2006 OAA to the preamble to the proposed rule at such training when appropriate, but allow training before or after an 73 FR 47770, 47784, Aug. 14, 2008. given the limited funds available for this unsubsidized placement. Another commenter questioned how the purpose, they are not required to We understand how a reader could Department expected grantees to provide or pay for training when it is interpret the provision to allow training calculate the participant’s time toward not appropriate. after a participant is placed in on-line training for wage purposes and unsubsidized employment because that who would validate the time spent in What supportive services may grantees provision may not be clear; however, we this activity. and sub-recipients provide to do not agree with that interpretation. The Department does not expect on- participants? (§ 641.545) The relevant provision states: line training to be handled any This section describes the types of ‘‘participant training * * * which may differently than any other training. On- supportive services grantees may be provided prior to or subsequent to line training is not new to SCSEP; it is provide to participants. We received a placement and which may be provided not required, but is one of several few comments on this section about the

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proposed rule language that limits and during the first 12 months of expected to work with participants to supportive services to those services unsubsidized employment. help them find unsubsidized that support an employment goal. Those For all these reasons, we find no employment. commenters asserted that there are inconsistency between the rule and the Another commenter disliked the times when a participant may need way the commenters want to provide changes from ‘‘reasonable’’ effort to services in order to be able to participate supportive services and thus have not ‘‘every reasonable effort’’ as it relates to in the SCSEP, and therefore, providing changed the final rule. a grantee’s responsibility to place those services should not be tied On the issue of temporary shelter, we participants in unsubsidized specifically to an employment goal. One agree with the commenter. Accordingly, employment. The commenter argued other commenter requested that the we are revising the regulatory text to be that a participant could claim that every Department add ‘‘temporary shelter’’ to more inclusive by saying ‘‘housing, effort was not provided to help him or the list of supportive services. including temporary shelter.’’ her achieve unsubsidized placement. We have also changed the language of Thus, the commenter, argued, the The regulation as drafted is consistent paragraph (a) to reinforce the idea that participant could wait for the perfect with the historical practice of providing grantees must assess participants’ need unsubsidized placement and refuse the supportive services in the program and for supportive services and must assist other opportunities. Therefore, the specifically refers to supportive services participants in meeting those needs and commenter concluded that ‘‘[r]easonable ‘‘ that are necessary to enable an grantees may directly pay for or arrange should be the standard.’’ individual to successfully participate in for supportive services as necessary. We agree that the language of a SCSEP project.’’ The regulation’s This change reconciles § 641.545(a) with § 641.550 could be read as imposing an language is consistent with the § 641.535(a)(2) and (a)(6), and clarifies obligation on grantees to provide comments about using supportive that, while paying for supportive unsubsidized employment for all services to assist participants during services directly is optional, grantees participants, even those for whom their enrollment in the program. In the must assess participants’ supportive unsubsidized employment is not a goal preamble discussion of 20 CFR 641.545 services needs and must make every in their IEP, and could be interpreted as of the 2003 Notice of Proposed effort to help participants to meet the overstating the extent of reasonable Rulemaking, the Department stated: needs so identified. effort required. Moreover, helping ‘‘Grantees/subgrantees should seek to participants find unsubsidized ensure that participants receive those What responsibilities do grantees and sub-recipients have to place participants employment is not required or possible supportive services necessary for them until participants become job-ready. to participate in the program and to in unsubsidized employment? (§ 641.550) Therefore, consistent with the change in realize the goals set forth in their SCSEP the language to § 641.535(a)(3), we agree IEPs.’’ 68 FR 22520, 22529, Apr. 28, This provision identifies the steps with the recommendation. We have 2003. The Department’s position was that grantees must take to assist eliminated the requirement to ‘‘make later restated in the 2004 Final Rule participants to obtain unsubsidized every reasonable effort’’ and section preamble for 20 CFR 641.545: employment. We received two 641.550 now provides that the To meet the needs of the seniors the SCSEP comments about the emphasis on obligation to help participants achieve serves, grantees must make every effort to unsubsidized placements. The first unsubsidized employment only applies provide them the supportive services they commenter found the proposed rule’s to those participants who have need to be able to participate in their increased emphasis on placement in unsubsidized employment as a goal. community service assignments. The unsubsidized employment in conflict Department recognizes that SCSEP grantees with self-directed job searches which, What policies govern the provision of will not be able to provide all needed or when appropriate, should ‘‘be an wages and benefits to participants? desirable supportive services with grant acceptable alternative for promoting (§ 641.565) funds * * *. But the Department expects placement in unsubsidized This section provides the grantees and subgrantees to make every ’’ reasonable effort to provide participants with employment. requirements for wages and benefits that the supportive services provided for in their The Department does not construe participants may receive. This section IEPs. 69 FR 19014, 19032, Apr. 9, 2004. this change in emphasis to restrict the was updated from the 2004 regulations grantees from providing this type of to reflect new statutory provisions. The We believe the commenters’ concerns assistance when it is appropriate. The Department received several comments arise from the requirement in grantees are still required to assess on this section, largely related to § 641.535(a)(6) for the supportive participants and to ensure they are compensation for Federal holidays. One services to be consistent with the following their IEP. If a grantee or sub- commenter, however, noted that the participant’s IEP. Commenters seem to recipient determines that self-directed acronym ‘‘WIA’’ was missing before the interpret that requirement to mean that job searches are a reasonable method for word intensive services in proposed grantees may not provide supportive seeking unsubsidized employment for paragraph (a)(1)(ii). The Department services during a participant’s certain participants, the grantee or sub- appreciates this comment and made the community service assignment. The fact recipient may encourage or assist in change to the regulation so it is now that the IEP, and particularly the initial such efforts in place of more intensive consistent with the rule as we described IEP, is tied to an employment goal does placement assistance, but they must still it in the preamble to the proposed rule. not mean that the IEP is limited to only document it in the IEP and follow-up One commenter noted that the those services that advance the with the participant. In some cases, limitation in proposed paragraph employment goal. The IEP may and grantees may need to use a combination (b)(ii)(A) that the results of a physical should assess and consider all of the of methods to help participants locate examination be provided only to the services the participant needs to and apply for unsubsidized participant hindered the grantee’s successfully participate in SCSEP, and employment. The regulation was not ability to meet the Department’s data should address supportive services that meant to prescribe how grantees may validation requirements for determining may be required before assignment to help participants find employment but disability if they were unable to require community service, during assignment, rather to make it clear that they are the physical examination results. The

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commenter misunderstands the data commenter was concerned that in one the participant worked at the host validation requirement. Grantees merely instance, a program may pay the agency in his or her assignment. need to document that a physical was participant for the Federal holiday and Finally, we interpret the word offered. That can easily be in another, the program may require the ‘‘employer’’ as meaning a ‘‘host agency’’ accomplished without having the participant to make up the hours. This since that is the only context in which results of the physical. (If the offer is commenter also raised a concern about this provision would apply. Therefore, declined, grantees must obtain a written adjusting the timesheets and the the Department has not made the waiver from the participant.) difficulties it would cause for validating change the commenter requested. Furthermore, grantees should not use community service hours. The Is there a time limit for participation in the physical examination results to commenter did not address how the the program? (§ 641.570) document disability for the most-in- adjustment of timesheets would be a need performance requirement. The problem. Other commenters approved of The Department received a large certification of the attending physician the flexibility described in the preamble number of comments about this section. or official documentation of a disability of the NPRM that allows the The NPRM implemented the 48-month is sufficient. To the extent that a participants to make up the time rather limitation on individual participation in participant declines to provide that than pay them for a day off. They the program as required by information, the grantee will not be able believe it helps to distinguish the § 518(a)(3)(B) of the 2006 OAA. to take credit for it. However, participants from being considered Paragraph (c) of this section addressed participants have an incentive to employees of the host agency. the average participation cap created by provide that information because The Department appreciates these § 502(b)(1)(C) of the 2006 OAA. documentation is required if a commenters’ concerns, which reflect a Paragraphs (d), (e), and (f) further participant claims family of one status desire to maintain the participants’ implemented these limits on program for eligibility purposes. To avoid any status as ‘‘trainees’’ rather than participation. confusion about the use of the results of ‘‘employees’’ at the host agency. Upon The majority of comments on this the physical and to clarify that the further reflection, we find that the section pertain to paragraph (b). The physical itself is a fringe benefit meant NPRM’s regulation text provision of statute provides for increased periods of solely for the benefit of the participant, only two categories of participant participation for individuals who meet we have deleted the last sentence of benefits (required and prohibited) failed one of the criteria listed in the statute. subparagraph (b)(1)(ii)(A), which stated to reflect the flexibility the Department As explained in the NPRM, the that the participant could provide the intended to provide for Federal holiday Department proposed to implement the grantee a copy of the physical leave and sick leave. For both of these extension as a one-time, one-year examination results. There are benefits, as indicated in the preamble to extension to ensure that SCSEP circumstances under which a grantee the NPRM, ‘‘(t)he Department broadly participation is not indefinitely may request documentation of a interprets the word ‘compensation’ extended, thus preventing other eligible disability or may even require all * * * to allow for a variety of practices individuals from benefiting from the participants assigned to a particular * * * The intent of the Department here SCSEP, and to be generally consistent community service position to take a is to allow flexibility in administering with the possible extension of the physical examination. For example, the SCSEP * * *’’ Unlike the other average participation cap which extends documentation is required for family of benefits listed in the NPRM regulation up to a maximum of only nine one status, as well as where a text as ‘‘required,’’ the NPRM preamble additional months. participant claims an accommodation. A noted that Federal holiday and sick Most commenters asserted that the physical also can be required of all leave benefits need not be paid in cash limit on the extension of the individual participants who are assigned to but must be provided in some fashion. participation limit to one-time and one- community service positions that Accordingly we have amended the year ‘‘is both contrary to Congressional require certain physical capability. regulation to clearly indicate that intent and counterproductive to However, those circumstances are Federal holiday leave and sick leave assisting the most vulnerable older entirely unrelated to the physical ‘‘may be paid or in the form of adults.’’ The commenters noted that examination that must be offered to the rescheduled work time.’’ Congress did not place an absolute time participant as a fringe benefit under the These modifications and clarifications limit on individual participation. The statute. address the concern of perceived commenters also argued that limiting The remainder of the comments inequity mentioned by one commenter. the potential extension in this way is related to the requirement that grantees It is not uncommon for programs to offer unnecessary to reduce the number of provide compensation for participants different services and benefits. We have long-term SCSEP participants because when the scheduled workday in the written these regulations to permit each there are several other program features, program falls on a Federal holiday for grantee to have the maximum available such as the performance measurement the host agency. Almost all of these flexibility in the design of its benefit system, that effectively achieve that commenters requested that the programs, as long as each grantee goal. The commenters also contended Department allow flexibility in the consistently applies the rules to all of its that restricting the extension to one- regulation text to allow participants to program participants as required in year, one-time would result in make up the time. One commenter § 641.565(b)(1). We also do not see any involuntary terminations from the specifically requested that the language issues with validating timesheets for program for older adults who are in the regulation more closely track the program accuracy or data validation benefiting from the SCSEP and may be language of the 2006 OAA, which purposes. The timesheets are always unable to find any other meaningful provides for ‘‘employer’’ closure for based on the actual hours the employment and training assistance Federal holidays. Another commenter participant spends in a community from other programs. One commenter stated that having the flexibility to allow service assignment at the host agency. requested that the Department delay the participants to make up the hours posed To the extent a participant makes up implementation of this provision in concerns when program policies could hours at the host agency, it will be order to consult with other Federal and vary from grantee to grantee. This reflected in the total number of hours State agencies on alternative programs

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and resources for terminated months.’’ Other commenters requested or her assignment. Therefore, we are participants. A few comments, that the grantees be consulted on the revising the regulation to provide that including those from participants, noted method used to determine the 27 month no rotation policy will be approved that that the time limit could be more costly average participation cap. One does not require an individualized to the government in the long-run and commenter asked for clarification on determination that rotation is in the best would create a financial hardship on whether the 27 month cap, like the 48 interest of the participant and will participants who are on the verge of month time limit, was intended to be further the acquisition of skills listed in obtaining employment. A few consecutive or not. the IEP. commenters agreed generally with time The Department does not agree that Is there a limit on community service limits in the program but disagreed with the language in the proposed rule assignment hours? (§ 641.577) applying it to all participants. paragraph (c) requires additional After considering these comments, the clarification. The Department opted to We received a significant number of Department has decided not to impose draft the language in this way to make comments on this section. In the NPRM, the proposed one-time, one-year it more reader-friendly. We do not the Department proposed a limit of restriction on the increased period of believe there are any inconsistencies 1,300 hours per year on participants’ individual participation. We agree that between the regulatory provision and community service hours. The proposed Congress could have included an the 2006 OAA, and therefore, did not limit is similar to a previous 1,300 hours absolute limit on SCSEP participation in make any changes to this section. per year limit on all participant paid the 2006 OAA, but did not do so. We Finally, the Department will work with hours. also are sympathetic to the assertion grantees to implement the participation Several commenters criticized the that grantees are in the best position to limits. proposed 1,300 hour limit as ‘‘another manage their programs to satisfy the example of an unnecessary restriction May a grantee or sub-recipient establish various aspects of the 2006 OAA and on a SCSEP grantee’s capacity to meet a limit on the amount of time its this final rule, some of which impose the needs of individual participants and participants may spend at each host other limitations on participation. to respond to local conditions.’’ agency? (§ 641.575) Therefore, we agree that grantees require Although commenters acknowledged the flexibility to determine the needs of This section authorizes grantees to that participation in SCSEP is part-time, individuals, which necessarily means adopt a policy under which participants they asserted that the proposed 1,300 that some individuals may be in the are rotated among community service hour limit ‘‘sets an arbitrary cap on program longer provided they meet one assignments. We received several participation’’ and ‘‘disregards the * * * of the waiver factors listed in comments on this section. One particular needs of a community (such § 641.570(b), and will continue to commenter stated that moving as responding to a natural disaster).’’ receive services consistent with their participants around from host agency to The commenters further asserted that IEP. As noted in paragraph (e), the host agency every 12 months has a although the 1,300 hours is still a good Department will issue administrative negative impact on the program and benchmark, the restriction limits their guidance that describes the process for considered it to be an arbitrary rule. ability to address the backgrounds, life grantees to request increased periods of This commenter further claimed that challenges and other circumstances that individual participation. We expect that this provision did not consider the make providing services to each grantees will make their determinations needs of the workers (participants). participant a unique experience. Still for requesting extensions for individual Other commenters echoed this concern other commenters found that a majority participants who meet the eligibility in one way or another, mostly opposing of participants work less than 1,100 factors in a fair and equitable manner the provision because they find it hours because their higher State and in accordance with applicable civil disruptive to the host agency when a minimum wage prevents them from rights laws. This process developed in participant leaves and then they are overspending their budget. One the administrative guidance will reflect understaffed. commenter stated that if participant this expectation. The Department appreciates these staff are not allowed to exceed the 20– Given that the average participation in commenters’ concerns; however, the 25 hours per week, the grantees’ the program is approximately two years rule does not require a grantee to adopt performance measures will suffer. and that there are other requirements a rotation policy. Rather, it allows The Department has considered these designed to limit participation in the grantees to implement a rotation policy comments and has decided to eliminate program, we agree that it is not when the grantee believes it will make the 1,300 hour limit, as suggested by the necessary to retain this requirement. the program more effective and help commenters. We agree that the grantees However, as some commenters pointed program participants achieve economic need the flexibility to respond to out, grantees are cautioned that they are self-sufficiency consistent with their downturns in the economy or natural nevertheless responsible for satisfying IEP. This provision has been helpful to disasters, for example. Therefore, we the average participation cap described an increasing number of grantee have changed this provision to read that in paragraph (c) of this section as well organizations over the years, who find it the 1,300-hour requirement is not as the expected levels of performance difficult to persuade host agencies that required but is still a benchmark and for the core performance measures. they should not expect the SCSEP to good practice that the Department In addition, we received a number of augment their workforce. More strongly encourages grantees to follow. comments on the 27 month cap in importantly, grantee rotation policies This language is consistent with the paragraph (c). One commenter requested have allowed participants to acquire Department’s position on this issue that the Department edit this regulation more job skills, which increase their published in the preamble to the 2004 provision to more accurately reflect the opportunities to find unsubsidized Final Rule, at 69 FR 19014, 19036, Apr. law as written. Thus, this commenter employment. However, we do agree that 9, 2004. The statute defines ‘‘community requested that we revise the rule to read: rotation of participants among host service employment’’ as ‘‘part-time’’ ‘‘each grantee must comply with an agencies may be disruptive and counter- work and grantees must ensure that average participation cap for eligible productive if the participant is still community service assignments are individuals (in the aggregate) of 27 effectively acquiring needed skills at his part-time positions. In addition, the

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Department cautions grantees about (b), (c), and (e) of this final rule. provide written notice explaining the allowing participant staff to exceed the However, upon reconsideration, we reasons for termination when the part-time requirements, which is not believe that paragraphs (a) and (d) termination is the result of an adverse permitted. should also require 30 days notice action. before a termination for cause may be Again, we believe the commenter is Under what circumstances may a effective. Notice allows a participant misreading the intention of these grantee or sub-recipient terminate a time to contest the grantee’s regulatory provisions. Each of these participant? (§ 641.580) determination and to offer factors in situations represents circumstances This section describes a variety of mitigation. Notice is inherent in where a termination is necessary. circumstances in which a participant fundamental notions of fairness and is However, the Department has made a may or must be terminated from the arguably more necessary in cases of change to the regulation to clarify the program and the procedures by which alleged misconduct than in cases where notice requirement. The purpose of the terminations must be accomplished. We a participant was mistakenly notice requirement is that the received several comments on this determined eligible. We already require participant would be terminated in section. One commenter asked for an notice in the case of terminations under 30 days after either the day notice was explanation of what ‘‘knowingly’’ means paragraph (e), which is a type of provided to the participant in person, or in paragraph (a). The common legal termination for cause. We see no reason the day the grantee mailed the definition of ‘‘knowingly’’ is ‘‘[w]ith not to expand the notice to all cause termination notice. Given the knowledge; consciously; intelligently; terminations. propensity for confusion with the willfully; intelligently.’’ Black’s Law We note that the requirement for 30 current language, the Department has Dictionary 4th Ed. (1957) West days notice before termination does not revised paragraphs (b), (c), and (e) to Publishing. The Department require the grantee to permit a read ‘‘and may terminate the participant recommends a common-sense participant to remain assigned to the 30 days after it has provided the application of this definition. For host agency where the offense is alleged participant with written notice.’’ example, if a participant provided false to have occurred. In those cases where Another commenter criticized the information in order to meet the a statute or regulation requires the termination process as ‘‘indicative of eligibility requirements for the program immediate removal of a participant for micromanagement.’’ This commenter and either knew or should have known certain specified offenses, the grantee further expressed disagreement with the that the information was false, then may remove the participant from the single national approach to termination such provision was done ‘‘knowingly.’’ host agency and may assign the because it limited the discretion of We received two comments on participant to another host agency grantees and sub-recipients. paragraph (e) of this proposed section (including the local project office) or to In response, the Department notes which deals with terminations when a no host agency, depending on the that there are certain requirements to participant has refused a reasonable circumstance, during the notice period. which grantees must adhere to in order number of job offers or referrals. One We have made an additional change to receive Federal funds. Uniform commenter requested that the in the notice language in paragraphs (a), policies are necessary in some cases for Department add language to paragraph (d) and (e) to provide that the a program of national scope to ensure all (e) allowing the grantee to terminate the termination after notice is not required participants are treated in a fair and participant for refusal to accept a if additional facts or evidence shows consistent manner. The issue of reasonable number of job searches or job that the basis for the termination is termination is one of those necessary offers. The other commenter reminded incorrect. The original intent of this policies. Grantees may not continue to the Department that in some cases, provision was that termination could spend grant funds on ineligible local, State, or Federal law and/or not be effected until 30 days had participants. The rule does allow for agency policy requires immediate elapsed, not that termination was some flexibility, such as determining termination for cause as described in the always required once 30 days had what constitutes cause for termination, proposed rule at paragraph (e). elapsed. Indeed, the notice requirement which we recognize may vary among As to the first comment, the would be rendered largely meaningless grantee organizations. Grantees also Department does not believe the if the grantee were required to terminate have flexibility to determine whether commenter’s proposed language is the participant at the end of the notice they want to terminate participants for necessary. Paragraph (e) already states period regardless of what information failure to accept a reasonable number of that if a participant refuses to accept a the participant might have produced in job offers or referrals and, if they do, reasonable number of job offers or the interval. We thus have added what constitutes a reasonable number. referrals to unsubsidized employment, language to paragraphs (a)–(e) to make One final commenter raised the issue the grantee may terminate the it clear that a grantee is not required to of termination in the context of the participant. The only word that appears terminate a participant if the evidence performance measures and how to be different between the comment shows that the grounds for termination terminations impact a grantee’s ability and the regulation is the word were incorrect. We remind grantees, to meet the performance measures. This ‘‘searches.’’ It is the Department’s however, that if a participant has finally comment is outside the scope of this opinion that ‘‘job searches’’ are included been determined to be ineligible (after rulemaking as it does not relate to the as part of the ‘‘job referral’’ process. being given 30 days to provide evidence proposed rule. Therefore, the Department did not make of eligibility), the grantee must this change in the regulation. terminate the participant. What is the employment status of The commenter that disagreed with Another commenter questioned how SCSEP participants? (§ 641.585) ‘‘for cause terminations 30 days after the organization would know when a This section discusses the written notice’’ may have confused this participant receives a written notice of employment status of program provision with another paragraph in this termination as suggested by paragraphs participants given that they receive section. Paragraphs (a) and (d) did not (b), (c), and (e). This commenter work experience training. The contain the 30-day termination requested that the language in the Department received one comment on requirement that is found in paragraphs proposed rule only require grantees to this section. This commenter requested

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a ruling on the responsibility of the coordination that should occur between individuals served; and (6) most-in-need grantees and sub-recipients to conduct SCSEP and other aging programs. One (the number of barriers per participant background checks on SCSEP applicants commenter stated that the regulation as listed in subsection (a)(3)(B)(ii) or as part of the application process if they should be written to ‘‘requir[e] (b)(2) of § 518 of the OAA. Core are not employees of the grantee or sub- coordination of SCSEP with other indicators are subject to goal-setting and recipient. programs under the Older Americans corrective action. The statute also Although this comment is outside the Act, such as state units and area requires two additional indicators of scope of this rulemaking, the agencies on aging, and with other performance (also called ‘‘additional Department will reiterate its policy here. Federal programs.’’ Another commenter performance indicators,’’ or just Grantees may take the responsibility of ‘‘suggest[ed] that the regulations reflect ‘‘additional indicators’’): Retention in providing background checks before additional coordination requirements unsubsidized employment for one year; placing participants in community with disability networks, in order to and satisfaction of participants, service assignments, provided that the better incorporate person-centered employers, and host agencies with their background check is conducted because planning, Americans with Disability Act experiences and the services provided. of the requirements of a specific compliance, and independent living Additional indicators are not subject to community service assignment, rather philosophy concepts into the provision goal-setting and corrective action. The than based on a particular participant, of services.’’ Yet another commenter OAA gives the Department the authority and is consistently applied to all expressed a concern about where the to add other additional indicators that it applicants considered for that position. funding for these projects would come determines to be appropriate to evaluate We stress that background checks are from given that the revised funding services and performance, but we are relevant to the assignment of allocations appear to decrease services not adding any other additional participants to particular host agency to participants. That commenter cited indicators at this time. positions only and cannot be used as a recent Department actions to reserve Under authority of the IFR, grantees basis for denying eligibility. In addition, $5,000,000 for program support have been using the common measures grantees should be careful to comply activities under the Secretary’s definitions for the three core indicators with EEOC and any state or local rules discretionary authority. addressing unsubsidized employment. regarding the use of background checks. Section 641.640 has been written to We received a number of comments follow the statutory language, with the raising concerns about whether the Subpart F—Pilot, Demonstration, and addition of a clarification that SCSEP common measures are an appropriate Evaluation Projects grantees and sub-grantees are among the way to measure participation in SCSEP. What is the purpose of the pilot, entities that must be consulted with. To Changes in the core indicator demonstration, and evaluation projects be more prescriptive in this section definitions at this point will muddle the authorized under § 502(e) of the OAA? would limit the Department’s and the data we have collected for three (§ 641.600) grantees’ ability to use the flexibility program years using the existing granted by the statute. Finally, definitions. The Department wants to This section describes the purpose of comments about the possible effect of have a consistent body of data over a the new provisions implementing funding for the pilot, demonstration and multiyear period through which to be § 502(e) of the 2006 OAA. The evaluation projects on the funding of the able to evaluate both the overall Department received one comment that ‘‘regular’’ program are outside the scope performance of the SCSEP, and the asked the Department to clarify whether of this rulemaking. utility of the performance indicators. In On-the-Job Experience (OJE) projects addition, any changes would not be Subpart G—Performance Accountability would continue under the new section fully implemented until PY 2011. and whether the Department plans to On June 29, 2007, the Department As a result, the Department has introduce new pilot projects or expand published an IFR that implemented concluded that to change the definitions and improve existing projects. changes in the SCSEP performance of the core indicators at this time would The Department is pleased that measurement system in light of the create a significant administrative grantees have found the OJE program OAA. This section discusses comments burden for grantees, which would useful and will take that under on the performance measurement outweigh any benefit of changing those advisement as we explore how best to system. definitions. With reauthorization of the exercise this new flexible authority, as The OAA requires the SCSEP to track SCSEP also on the horizon for 2011, it we noted in the preamble to the NPRM. six 1 core indicators of performance 2 would be difficult to conduct See 73 FR 47770, 47789, Aug. 14, 2008. (also called ‘‘core performance evaluations of the program and collect indicators,’’ or just ‘‘core indicators’’): Should pilot, demonstration, and data for doing so if the definitions were (1) Hours (in the aggregate) of changed at this late stage. Moreover, a evaluation project entities coordinate community service employment; (2) with SCSEP grantees and sub-recipients, change in the measures at this late date entry into unsubsidized employment; would deprive the grantees of valuable including area agencies on aging? (3) retention in unsubsidized (§ 641.640) baseline data that they are using for employment for six months; (4) program management and improvement. This section provides that the earnings; (5) the number of eligible The Department intends to maintain the Department will collaborate with existing definitions for the three core appropriate aging organizations when 1 Section 513(b)(1) of the 2006 OAA lists, ‘‘[t]he indicators on unsubsidized developing projects under this section number of eligible individuals served, including the number of participating individuals described in employment, under which grantees and grantees of these projects must also subsection (a)(3)(B)(ii) or (b)(2) of section 518,’’ on have been working for three years consult with appropriate organizations. performance, as a single core indicator. However, as already. We received several comments related discussed in the IFR, 72 FR 35836, June 29, 2007, to this section. The comments mostly the Department chose to divide it into two separate Overview of Comments Received on indicators—number of eligible individuals served, Subpart G suggested that § 641.640, in concert with and number of most-in-need participants. §§ 641.315 and 641.335, were 2 We use the terms ‘‘indicator’’ and ‘‘measure’’ The Department received eleven inadequate to address the type of interchangeably throughout this rule. comments in response to the

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performance accountability IFR. Some regulations before finalizing them. What performance measures/indicators commenters urged changes to particular Several commenters supported the apply to SCSEP grantees? (§ 641.700) performance measures and/or asked creation of an interagency group to Several commenters criticized the specific questions about one or more of provide input on the SCSEP regulations. performance measurement system the measures. Such comments We agree with the commenters who implemented in the IFR generally, and commonly expressed the view that the urged the Department to develop the the common measures in particular. SCSEP is unique among workforce Some of the commenters asserted that programs primarily because of its remainder of the regulations before finalizing the performance the SCSEP is unique among workforce community service element, and programs primarily because of its therefore use of the common measures accountability requirements. To that end, we published an NPRM on August community service element, and that is neither appropriate nor desirable. use of the common measures is A second theme common to several of 14, 2008, that addressed all aspects of therefore neither appropriate nor the comments is that an emphasis on the SCSEP regulations other than desirable for the SCSEP. Other performance accountability may lead to performance measures. We were able to commenters maintained that an unintended consequences. In this view, carefully consider the comments from emphasis on performance accountability SCSEP grantees and sub-recipients may both the IFR and the NPRM before may lead to unintended, adverse feel pressure to serve individuals who proceeding with this final rule. consequences. These commenters are relatively easy to place in We also received some comments unsubsidized employment to meet argued that, in an effort to achieve the requesting that we convene meetings performance goals. Such a focus, it was expected levels of performance for the with grantees and other interested argued, would thwart a consistent tenet core indicators, SCSEP grantees and parties as we developed final of the SCSEP, reflected in the 2006 sub-recipients may feel pressure to serve OAA, that the program should prioritize regulations on the performance individuals who are relatively easy to individuals with multiple barriers to measurement system. We considered place in unsubsidized employment. employment. Further, several this suggestion but chose not to adopt it. This incentive to ‘‘cream’’ from commenters expressed concern that this All interested persons were invited to applicants contravenes a consistent and pressure to attain good performance participate in the regulatory process by central theme of the SCSEP, reflected in outcomes could result in fewer submitting comments on the IFR and the 2006 OAA, that the program serves minorities being served by the SCSEP. the NPRM, and we considered those individuals with barriers to Because the definition of the most-in- comments very seriously as we employment. Of particular concern to need indicator changed significantly developed this rule. some commenters was that a focus on performance outcomes would result in a from the 2004 SCSEP final rule, the In the IFR, we stated that we had reduction of services to disadvantaged Department treated the 2007 Program ‘‘implemented an interagency group to Year as a baseline year for that indicator and minority older adults. oversee the strategy for implement[ing]’’ In the IFR, as well as the NPRM, the and did not set sanctionable goals for the performance measurement system the most-in-need measure. Some Department specifically requested that required by the 2006 OAA. 72 FR 35845, the public submit comments addressing commenters thought that the 2007 June 29, 2007. Some commenters Program Year should be treated as a concerns that the performance interpreted this to mean that the baseline year for all indicators; that is, measurement system implemented by Department had convened a group that they thought no goals should be set for the IFR compromises the ability of included the Administration on Aging, any of the core indicators for the grantees to serve minority individuals. Program Year 2007. and those commenters applauded such We particularly appreciate the Other commenters expressed concern efforts. In fact, the group to which we comments we received on that topic. with one or more of the indicators. One were referring was comprised of The Department does not, however, commenter requested that the representatives from different agencies view the performance measurement Department decrease the number of core within the Department. Nevertheless, system required by the 2006 OAA and indicators and increase the number of we acknowledge that several implemented in the IFR as additional indicators. A few commenters urged greater coordination inappropriate or undesirable for the commenters urged the Department to between the Department and the SCSEP, or as adverse to the SCSEP’s develop the remainder of the regulations Administration on Aging. The 2006 traditional focus on serving persons before finalizing the performance OAA already requires the SCSEP to with barriers to employment or minority accountability requirements. Finally, coordinate with area agencies on aging individuals. We hold a different view some commenters supported the at the local level, and the Department from the commenters who argued that creation of an interagency group to endeavors to mirror that coordination at this performance measurement system provide input on the SCSEP regulations. the national level. However, it is clear will lead to a reduction in services to We will discuss all of the comments from these comments that some in the persons with barriers to employment, below, beginning with the comments SCSEP network think that we have not including minority individuals. We will that broadly address the performance done enough coordinating at the Federal address these points in turn. measurement system overall. level. We appreciate that even closer The Department fully acknowledges that community service is integral to the coordination may aid the SCSEP overall Broad Comments on the Performance SCSEP. Congress gave voice to the and its participants in particular. To Measurement System Overall importance of this aspect of the SCSEP that end, we will pursue strengthening A few commenters urged the in its ‘‘[s]ense of the Congress’’ provision our relationship with the Department to develop the remainder of in the 2006 OAA: ‘‘placing older the regulations before finalizing the Administration on Aging as we move individuals in community service performance accountability forward. positions strengthens the ability of the requirements. Some commenters We now respond to the comments on individuals to become self-sufficient, requested that we convene meetings on the IFR that pertain to particular provides much-needed support to the performance measurement regulatory sections within subpart G. organizations that benefit from

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increased civic engagement, and indicators as stated in the 2006 OAA to participants in meeting the goals strengthens the communities that are achieve the dual purpose of ensuring deemed appropriate for their personal served by such organizations.’’ OAA community service opportunities, but circumstances, as laid out in their IEPs. § 516(2). We also acknowledge that the also making unsubsidized employment We turn now to the commenters’ 2006 OAA’s requirement that grantees possible where appropriate for exiting argument that implementing the spend a minimum of 65–75 percent of SCSEP participants. Furthermore, the performance measurement system their funds on participant wages and language Congress used in the 2006 described in the IFR will lead to a benefits is a unique program feature, OAA to mandate the implementation of reduction in services to persons with and one that clearly assists persons with the three core indicators on employment barriers to employment, including otherwise low incomes. Providing an outcomes mirrored the common minority individuals. Some of these opportunity for low-income older adults measures. It therefore seemed sensible commenters asserted that the in need of job training to work at to define these three core indicators introduction of common measures in community service organizations that using common measures definitions. other workforce programs has led to a need operational support is a ‘‘win-win’’ The 2006 OAA requires the decrease in the number of low-income situation. Department to implement the three core participants and participants with Some commenters asserted that the indicators on employment outcomes. barriers to employment in those SCSEP should not align with other This requires us to gather consistent programs. These commenters claim that workforce programs in its use of data on program performance to inform such programs have selected common measures because the SCSEP reauthorization. Without a body of participants based on the participants’ retains this unique community service consistent performance data over a potential to achieve positive indicator element, and that the common measures reasonable number of years, we will not outcomes. They contend that, faced are limited in providing full evidence of be able to determine whether those with the same common measures, the SCSEP’s performance. We also indicators as defined are or are not SCSEP program operators will ‘‘cream’’ received comments noting that initially effective performance measures. In by selecting those participants who are there were plans for common addition, grantees would be deprived of easiest to serve. In this view, persons performance measures to be applied meaningful baseline data for making with barriers to employment, including across a wide array of Federal agencies improvements in services, which is the minority individuals, will be disfavored and programs. These commenters primary purpose behind measurement. by SCSEP program operators. Some suggest that the scope of the common As discussed above, therefore, the commenters asserted that ‘‘creaming’’ is measures has been reduced to ‘‘[F]ederal administrative burden of changing these contrary to Congressional intent, job training and employment programs definitions would outweigh the policy because in the 2006 OAA Congress that share similar goals’’ (emphasis value of changing them before a good intended the SCSEP to serve low- omitted), and that the SCSEP does not body of consistent data has been income persons and persons with other share sufficiently similar goals with gathered to inform the program barriers to employment. Several other Federal job training and reauthorization anticipated in 2011. commenters cited a study of WIA employment programs to make the This is particularly so since the indicating that, following the common measures appropriate. Department anticipates proposing introduction of common measures in Other commenters claimed that another SCSEP additional indicator for WIA, there was a decline in the number Congress ‘‘overwhelmingly rejected’’ a volunteer work performed after exit of WIA participants with low incomes focus by the SCSEP on unsubsidized from the program, which would further or who had barriers to employment, and employment outcomes. These reinforce the Department’s support for suggested that implementing the commenters argued that the Department community service and volunteer work. common measures in the SCSEP would is contravening Congressional intent by In addition, several commenters lead to similar results. requiring performance measures that asserted that the common measures are For reasons discussed already, the focus on unsubsidized employment limited in providing full evidence of the Department will continue to implement outcomes. SCSEP’s performance, and we agree. the core indicators of performance. We Congress made both community The common measures do not take the commenters’ argument to be service and its potential to lead to accurately portray the entirety of the effectively limited to the core indicators, unsubsidized employment important SCSEP program or its successes. These as additional indicators of performance goals. Congress required the use of three core measures, which currently are not subject to sanctionable goal- specified core indicators in the 2006 use common measures definitions setting. The Department is required to OAA, including the entry into (entry, six-month retention, and implement the indicators mandated in employment, retention in employment earnings), relate most closely to the the 2006 OAA; we disagree that such for six months, and earnings indicators. SCSEP’s goal of unsubsidized indicators will lead to ‘‘creaming,’’ or a Along with providing valuable employment. However, Congress also reduction in SCSEP services to low- community service, then, the SCSEP is required three other core measures income individuals or individuals with a training program for low-income (number of persons served, most-in- barriers to employment. We agree with persons who have not been able to need, and community service), and they the commenters’ assertion that Congress obtain employment on their own. relate most closely to the community clearly intended for the SCSEP to serve Congress was well aware of the unique service goal of the SCSEP. Accordingly, low-income individuals and to nature of the SCSEP, and could have we acknowledge that the common prioritize persons most-in-need. chosen separate outcome measures measures do not ‘‘tell the whole SCSEP Moreover, Congress designed the SCSEP unique to the SCSEP as it did in the story.’’ However, we remain convinced to have two goals—community service 2000 Amendments to the OAA. Instead, that in light of the need to gather data and an appropriate employment it specifically mandated that the for reauthorization and our objective for participants whose program report on certain core consideration of another additional experience in the SCSEP may lead to indicators, three of which measure indicator, for now these definitions are unsubsidized employment. But it is not employment outcomes; therefore, the most sensibly kept as a method to possible for SCSEP program operators to Department must implement those capture important data on the success of reduce the numbers of low-income

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participants in the SCSEP because, participant who is employed during the pursuing the use of unemployment unlike WIA, only low-income persons first quarter after the exit quarter. The insurance wage records; these records are eligible for the SCSEP. Regardless of traditional SCSEP entry indicator would provide significant retention the population characteristics of other treated as entered employment any data. workforce programs, the SCSEP is participant who worked 30 days within specifically designed to serve lower the 90 days following their program Earnings income older persons with barriers to exit. This commenter argued that the We received one comment on the employment. The 2006 OAA requires current definition will make it harder to definition of the earnings indicator. This program operators to prioritize persons count an exited participant as having commenter urged the use of a simpler who have barriers to employment such entered employment because of the later indicator that captured wages at the as those who have a disability, low qualifying period (the first 90 days after time of program exit rather than the employment prospects, or limited exit versus the quarter following the exit current indicator definition which English proficiency. Moreover, SCSEP quarter). averages the earnings received during has a counter-balance to any creaming It is clear that using this definition the second and third quarters after the that the employment indicators might over the past six years has not resulted engender because another of the core in fewer exited participants being exit quarter. However, this always has indicators measures, the average counted as having entered unsubsidized been a core indicator and the current number of most-in-need characteristics employment. While the qualifying definition is that used by all of ETA. per participant. The Department’s view period under the current definition The commenter also asked a few is that the SCSEP performance occurs later in time than the qualifying questions about the description of the measurement system will not disfavor period under the traditional SCSEP earnings indicator in TEGL 17–05. This people with barriers to employment entry measure, the former SCSEP entry commenter asked whether the term when one of the measures is designed indicator required 30 days of ‘‘exited participants’’ refers to all exited to give effect to the statute’s requirement employment, but this definition does participants, or only those who that program operators prioritize those not specify an employment period. A achieved unsubsidized employment. If most in need of SCSEP services. In fact, participant could be employed for the term ‘‘exited participants’’ refers to studies for PY 2006 and PY 2007 show significantly fewer than 30 days during all exited participants, the commenter that minorities are served by SCSEP in the relevant quarter, and that person wondered whether that would dilute the greater proportions than their incidence would be counted as having entered average earnings figure. in the population and have employment unsubsidized employment under the The term, ‘‘exited participants,’’ refers outcomes no different from those of existing definition of entry. In this way, to the pool of individuals who satisfy non-minority participants. the existing definition actually makes it the six months retention indicator, not Finally, one commenter requested more likely that an exited participant the entire pool of persons who left the that the Department switch several of will be counted as a positive entry SCSEP for a variety of reasons during the core indicators to become additional outcome. Indeed, during each of the the relevant quarter. As implemented, indicators. We are bound by the 2006 three years when outcomes for both the the three core indicators may be viewed OAA to implement the core and SCSEP placement measure and the as building upon each other. To arrive additional indicators of performance existing entry indicator were reported, at the entry outcome, one considers how required in the statute; we do not have the average entry outcome under the many persons, of the total number who the discretion to reclassify core existing definition was higher than the exited the SCSEP during the relevant indicators as additional indicators. average SCSEP placement outcome. exit quarter, were employed during the How are the performance indicators Retention in Unsubsidized Employment first quarter after the exit quarter. To defined? (§ 641.710) for Six Months arrive at the retention in six months outcome, one considers how many In this section the Department defines We received one comment proposing that we revert to the former, SCSEP- persons, of those who satisfied the entry each of the indicators. A few indicator, were employed during the commenters suggested that the specific retention indicator, which measured retention for six months at second and third quarters after the exit Department use data available from quarter. To arrive at the earnings unemployment insurance wage records 180 days after program exit. The current definition measures retention for six outcome, one considers what was to capture data for such indicators as earned by those persons who were entry, retention, and earnings. Some months based on employment in the second and third quarters after the exit included the six months retention commenters stated that it can be indicator. difficult to obtain this data from quarter. This commenter asserted that employers and exited participants. the longer qualifying period for this The previous earnings measures The Department agrees that indicator increases the difficulty of counted the earnings of exiters who unemployment insurance wage records obtaining the information. achieved entered employment, whether are a potentially advantageous method We do not question the commenter’s or not they were employed in the of collecting performance data, and we assertion that it can sometimes be reporting period, and that did have the are actively pursuing the use of such difficult to obtain this retention effect of distorting the outcomes of the records by the SCSEP. For the reasons information. Nevertheless, grantees and measure. By including those who were already stated, however, we have sub-recipients have been submitting not employed in the earnings measure, decided to retain the performance data using the current definition since it was difficult to determine how much indicator definitions in their current the first quarter of Program Year 2005, those who were employed were actually form. although as an additional rather than a earning. Under this final rule, however, core indicator in the early years. We are only the wages of exiters who entered Entry Into Unsubsidized Employment confident that grantees and sub- employment and who were employed One commenter disagreed with the recipients will be able to continue during both quarters of the reporting existing definition of entry into obtaining those data in the future. Also, period are included in the earnings unsubsidized employment as each as noted previously, we are actively measure.

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Most-in-Need retention data at 360 days following entry indicator would be difficult for We received several comments about program exit. sub-grantees to achieve using the The Department has considered this the definition of most-in-need. The current definition of entry. The comment but has decided to retain the ‘‘most-in-need’’ population is based on Department does not have the discretion definition of retention for one-year as the fifth core indicator in 2006 OAA to set the expected levels of published in the IFR for the reasons § 513(b): ‘‘the number of eligible performance below those required by already stated. statute. Further, we hold grantees individuals served, including the accountable for achieving the expected number of participating individuals Satisfaction of the Participants, levels of performance, but we do not set described in subsection (a)(3)(B)(ii) or Employers, and Host Agencies With goals at the sub-recipient level. Having (b)(2) of section 518.’’ One commenter Their Experiences and the Services said that, we do conduct training advocated reducing and simplifying the Provided sessions that are open to all program list of most-in-need characteristics. The We received one comment on this operators and offer technical assistance regulatory definition cannot be reduced indicator. The commenter asserted that to both grantees and sub-recipients that or simplified any more than it already sub-recipients should not have to be are experiencing difficulty in any aspect is, because it is taken directly from the involved in gathering data for this of program administration. Finally, we statute. indicator, including mailing cover note that the nationally-averaged Several commenters were distressed letters to encourage survey outcome for the entry indicator at the that the revised definition of most-in- participation. end of Program Year 2007 was 52.4 ‘‘ need no longer includes any reference The Department already provides very percent, greatly in excess of the ’’ to racial minority status. Another substantial assistance in obtaining the statutorily-mandated goal. Only three commenter took issue with the data for this indicator. We request that individual grantees with adequate data ‘‘ characteristic, has failed to find program operators—whether a grantee to permit accurate measurement failed employment after utilizing services or a sub-recipient—deliver the employer to meet at least 80% of their negotiated provided under title I of [WIA].’’ This survey, which we supply, and which goal, and 62 grantees exceeded 100% of commenter asserted that most SCSEP ideally is done in person. For the their negotiated goal. participants are not even considered for participant and host agency surveys, we Other commenters suggested that the services under title I of WIA, and create the survey instrument as well as expected levels of performance for the proposed that instead the characteristic a cover letter explaining the survey and entry and earnings indicators for should be, ‘‘[w]ere not considered for requesting its completion; draw the Program Year 2007 were too high. These services under [t]itle I of WIA and/or samples of those who will be asked to commenters noted that the median failed to find employment after utilizing complete the survey; and mail it to expected level of performance for the services under [t]itle I of WIA.’’ those persons. We ask program entry indicator was higher than the The 2006 OAA omitted the operators to mail pre-survey letters to statutory minimum. They also asserted characteristic of ‘‘greatest social need’’ those participants selected to complete that the earnings and entry indicator from the list of characteristics that the survey to request cooperation with levels were set so high that program comprise the ‘‘most-in-need’’ indicator. the survey, and we provide the pre- operators would be encouraged to OAA §§ 513(b)(1)(E), 518(a)(3)(B)(ii), survey letter text and the mailing list. ‘‘cream,’’ which would lead to fewer and 518(b)(2). Whatever the relative We have considered the commenter’s minority participants. merits of considering other groups to be request and have decided not to make Although the § 513(a)(2)(E)(ii) of the most in need, Congress defined most in any changes to the customer satisfaction statute sets a minimum percentage for need with great specificity, and we have survey process at this time. Given the the entry indicator, it is in fact merely no authority to change the statutory substantial amount of the burden that a minimum, and the Department has the definition. we already shoulder, we ask very little authority to set expected levels of The 2006 OAA does require the of grantees, sub-recipients and host performance above that minimum. The Department to annually report to agencies. The work we ask them to Department bases a grantee’s expected Congress on the levels of participation perform is work that we cannot do and levels of performance in part on the and performance outcomes of minority that we need grantees, sub-recipients, prior performance of the grantee. The individuals by grantees, by service area and host agencies to manage. statute requires that the expected levels and in the aggregate. OAA § 515. The of performance for the core indicators be analyses conducted for both PY 2006 How will the Department and grantees designed to promote continuous and PY 2007 indicate that minorities are initially determine and then adjust improvement in performance. OAA served in greater numbers than their expected levels of performance for the § 513(a)(2)(B). And, as we explained in incidence in the population and that core performance measures? (§ 641.720) the IFR, the Department has consistently minorities achieve employment We received several comments about established a performance level higher outcomes equal to those of non- the expected levels of performance that than the minimum required by statute minorities. Therefore, we have not were set for Program Year 2007. In for many grantees, and expects to changed the definition of the most-in- general, such concerns must be raised continue to do so. need indicator. during the process of setting the In response to the assertion that the expected levels of performance and are expected levels of performance are set Retention for One Year not appropriate for the regulatory so high that the Department is We received one comment on the comment process as they relate to the encouraging ‘‘creaming,’’ we disagree. As definition of retention for one year. In specifics of each grantee’s situation. We noted, a grantee’s expected levels of the IFR, we defined this indicator to will, however, respond to those aspects performance for a new program year are align with the WIA one-year retention of these comments that have general based in part on the prior performance indicator, which measures retention at applicability. of the grantee, so sudden large increases the end of the fourth quarter after the One commenter asserted that the in performance goals generally do not exit quarter. This commenter statutorily-mandated minimum occur. The expected levels of recommended that we instead capture expected level of performance for the performance are designed to promote

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continuous improvement; however, the most-in-need indicator was the only recipients to voluntarily provide a Department also takes into account such indicator that changed so significantly contribution to the program. factors as unemployment rates, relative that we determined that we did not have What minimum expenditure levels are poverty levels, and whether the grantee sufficient data to set meaningful goals. required for participant wages and is serving a disproportionate share of Therefore, goals were set for the other benefits? (§ 641.873) most-in-need individuals. Negotiating core indicators for Program Year 2007. expected levels of performance is a data- This section outlines the financial Subpart H—Administrative driven process; when a grantee presents requirements for wages and fringe Requirements the Department with relevant data, we benefits and expressly adds the new take that into consideration when We received several comments on this statutory provisions that permit grantees setting the performance goals. Also, section about non-Federal share, to reduce the 75 percent requirement to expected levels of performance may be participant wages and fringe benefits, 65 percent for the wages and fringe adjusted during the Program Year if and performance reporting benefits cost category. We received one circumstances warrant. See § 641.720(b). requirements. comment on this section. This commenter expressed concern with the The Department is making three How must SCSEP program income be change that in the past required 75 technical corrections to this section of used? (§ 641.806) the regulations none of which are percent of grant funds to be spent on intended to change the meaning of the We have inserted clarifying language participant wages and fringe benefits section. First, we are removing the word in paragraph (b) of this section to (PWFB) based on final expenditures to ‘‘baseline’’ from the first sentence of provide for a distinction in the now being 75 percent of the grant funds. paragraph (a)(1). The word was expenditure of program income for This commenter noted that there was no mistakenly included in this paragraph grantees with continuing relationships change from the 2000 OAA to the 2006 in the IFR; the expected level of with the Department of Labor and allow OAA and the Department did not performance initially proposed by the program income to be expended for 1 provide a rationale in the proposed rule Department is more commonly called a additional program year. to justify this change. The commenter goal or target, not a baseline. Second, we What non-Federal share (matching) noted that ‘‘[t]rying to reach the goal are adding the word ‘‘a’’ at the beginning requirements apply to the use of SCSEP based on the award amount changes the of the third sentence in paragraph (a)(3); funds? (§ 641.809) emphasis from using resources to it was inadvertently omitted from the effectively benefit the program to just IFR. Finally, we updated the citation This section describes the incurring PWFB cost to meet the goal.’’ format in paragraph (a)(2). requirements grantees have to The commenter is correct that the contribute a 10 percent match to the OAA did not change the language at How will the Department assist grantees program. We received one comment on § 502(c)(6)(B)(i) from the 2000 in the transition to the new core this section of the proposed rule that Amendments to the 2006 Amendments. performance indicators? (§ 641.730) disagreed with the provision that The Department made the change in the In paragraph (a) of this section, the prohibits grantees from requiring sub- proposed rule to more closely follow the Department explained that we would be recipients to contribute financially to statutory language, which requires ‘‘75 providing technical assistance to help the program to meet their match percent of the grant funds [be used] to certain grantees meet the expected requirement. This commenter stated pay for wages, benefits, and other costs.’’ levels of performance for the core that he believed that a financial However, the Department has indicators in Program Year 2007. investment from a sub-recipient reconsidered its position and has Technical assistance was provided to encourages ownership and decided not to depart from its those grantees whose performance responsibility for the program. This established practice of measuring outcomes during Program Year 2006 did commenter suggested that a State’s compliance with this requirement for not achieve the levels expected during inability to require a sub-recipient to the grantee as a whole, at the conclusion Program Year 2007. In paragraph (b) of provide a 10 percent match shifts all the of the grant, based upon the total this section we created an exception responsibility to the State grantee and amount expended. Accordingly, we are from sanctionable goal-setting for reduces the commitment of the sub- withdrawing the proposed revision to Program Year 2007 for the most-in-need recipient to meet performance goals. the regulation, and are retaining the measure because the 2006 OAA so Although the Department appreciates existing text of § 641.873(b). changed the list of most-in-need this concern, this requirement was characteristics that we determined that added in the 2004 regulations to prevent How will compliance with cost a year was needed to gather baseline abuses in the program where some limitations and minimum expenditure data before meaningful goals could be grantees permitted only those levels be determined? (§ 641.876) established. Some commenters thought organizations with cash contributions to For clarity, we changed the first word that Program Year 2007 should have be sub-recipients. The fact remains that in the title for this section. It originally been treated as a baseline year for all of the grantees are the organizations asked ‘‘When will compliance with cost the indicators; they suggested that no responsible for program operations and limitations and minimum expenditure sanctionable goals should have been set services as evidenced by the grant levels be determined?’’ Because the for Program Year 2007. agreement with the Department. content of the section does not actually Five of the indicators now classified Further, the Department does not discuss a time period but instead the as ‘‘core’’ are indicators that the SCSEP believe this limitation is onerous to method of determining compliance, we was already using before the IFR (i.e., meet. As provided in § 641.809(d), the replaced ‘‘When’’ with ‘‘How.’’ hours of community service, number of match may be cash, in-kind, or a individuals served, entry into combination of the two. Program data What are the financial and performance employment, six-month retention in indicates that with this flexibility, most reporting requirements for recipients? employment, and earnings), although grantees tend to exceed the match (§ 641.879) some of these had been classified as requirement for the program. Also, This section describes the financial additional measures previously. The paragraph (e) of this section allows sub- and reporting requirements that grantees

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must submit to the Department. We information. All grantees are required to have a precise number of small entities received one comment on this section report the required information in a that may be impacted by this that argued that the financial and format specified by the Department. We rulemaking, but it requested comments performance reporting requirements have also clarified that grantees may be on the possible impact of the rule in the conflict with § 514(f) of the 2006 OAA. required to report additional NPRM. The Department did not receive This commenter cited this section of the demographic and performance any comments on this section. statute, which states the Secretary of information through means other than Although there may be a substantial Labor may not promulgate rules or SPARQ if required by the Department. number of small entities impacted by regulations that would significantly this rulemaking, the Department has Subpart I—Grievance Procedures and compromise the ability of the grantees determined that the economic impact of Appeals Process to serve their target population of this final rule is not significant because minority older individuals. The What grievance procedures must these regulations will not result in any commenter suggested the Department grantees make available to applicants, additional costs to grantees and sub- add the following language in a new employees, and participants? (§ 641.910) recipients. The SCSEP is designed so § 641.879(i): ‘‘Collection and validation This section describes the grievance that SCSEP funds cover the vast of data should in no way compromise procedures that must be in place for majority of the costs of implementing the ability of grantees to serve the grantees and that those grantees must this program. Subpart H of this final targeted population of most-in-need have in place for program participants. rule provides detailed information to individuals, and significant attention We received one comment on this grantees on what costs are proper should be paid to the unintended section. That commenter stated that he program expenditures, how to properly consequences that documentation may found the Department’s requirement to categorize those costs, etc. The SCSEP cause for minority older individuals, submit a copy of the grantee’s appeal statute does require a 10 percent non- particularly those with specific language process with the grant application Federal match (see § 641.809); however, and culture limitations.’’ micromanaging. the 10 percent match requirement has The Department agrees that the As a recipient of Federal funds, been in effect in previous SCSEP collection and validation of data should however, there are certain requirements regulations and, therefore, does not not compromise the ability of grantees that grantees must adhere to in order to constitute a new economic burden on to serve the target population. Although receive those funds. See §§ 641.420 and grantees. Furthermore, the Department’s it may take more time to obtain the 430. Prior program experience has allowance of in-kind contributions in required information due to language indicated that the grantees do not lieu of monetary payments significantly barriers, the statute requires that we always have the most up-to-date moderates the economic impact of the collect a variety of information on policies, and sometimes, do not have match requirement. Accordingly, the program performance, including policies on file at all. This requirement Department certifies that this final rule information on the populations and ensures that grantees are meeting their will not have a significant economic subpopulations served. This is obligation without the Department impact on a substantial number of small information that grantees must collect having to go to each program office to entities. The Department has also determined and have on file for program check for these documents. management and auditing purposes that this rule is not a ‘‘major rule’’ for anyway. Although collecting IV. Administrative Information purposes of the Small Business Regulatory Enforcement Fairness Act information may be a burden, it is a A. Regulatory Flexibility Analysis, (SBREFA), Public Law 104–121 (1996) required part of program management Executive Order 13272, Small Business (codified in scattered sections at 5 and is necessary to show that the Regulatory Enforcement Fairness Act program meets its statutory goals U.S.C.). SBREFA requires agencies to effectively. The Regulatory Flexibility Act (RFA) take certain actions when a ‘‘major rule’’ Furthermore, the Department at 5 U.S.C. 603 requires agencies to is promulgated. 5 U.S.C. 801. SBREFA monitors services to minorities closely, prepare a regulatory flexibility analysis defines a ‘‘major rule’’ as one that will as required by the 2006 OAA. According to determine whether a regulation will have an annual effect on the economy to PY 2006 and PY 2007 data, minorities have a significant economic impact on of $100,000,000 or more; that will result are served by SCSEP in substantially a substantial number of small entities. in a major increase in costs or prices for, greater numbers than their incidence in Section 605(b) of the RFA allows an among other things, State or local the population and show no differences agency to certify a rule in lieu of government agencies; or that will in employment outcomes from non- preparing an analysis if the regulation is significantly and adversely affect the minority participants. Therefore, there not expected to have a significant business climate, including is no evidence that minorities are economic impact on a substantial competition, employment, investment, underserved in the program. Given that number of small entities. Section 601 of and innovation. 5 U.S.C. 804(2). this commenter did not provide more the RFA defines small entities to This final rule will not significantly or specific information on how she include small businesses, small adversely affect the business climate. believed minorities would be affected, organizations, including not-for-profit First, the rule will not create a we are not persuaded that any such organizations, and small governmental significant impact on the business injury would occur from these jurisdictions. climate at all because, as discussed regulations to diminish services to this There are approximately 970 SCSEP above, SCSEP grantees are governmental population. grantees and sub-recipients. Of these, jurisdictions and not-for-profit We are, however, making technical more than 50 are States, State agencies, enterprises. Moreover, any secondary changes in paragraphs (b), (d) and (e) to or territories and are not small entities impact of the program on the business clarify that SPARQ is the vehicle by as defined by the RFA. The vast community would not be adverse. To which all grantees must report majority of the rest are non-profit the contrary, the SCSEP functions to information on participants, host organizations, many of which may be assist the business community by agencies, and employers, including categorized as small entities for RFA training older Americans to participate demographic and performance purposes. The Department does not in the workforce.

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This final rule will also not result in newly required by the 2006 OAA (see provide funding for States to conduct a a major increase in costs or prices for § 641.302) was accounted for in that competition if, under § 641.400, the States or local government agencies. The PRA submission. The SCSEP PRA State fails to meet its expected levels of SCSEP has no impact on prices, and as submission was assigned OMB control performance for the core indicators for discussed above, the only costs that number 1205–0040 and was approved three consecutive years. That same could potentially be borne by by OMB in October 2007. The approval commenter also stated that the governmental jurisdictions are limited expires October 31, 2010. This final rule requirement in § 641.535(b) (additional to the 10 percent matching share. neither introduces new nor revises any guidance) has the potential to increase Finally, this final rule will not have an existing information collection program costs without providing annual effect on the economy of requirements. funding to cover such requirements. $100,000,000 or more. The Department disagrees that any of Therefore, because none of the D. Unfunded Mandates Reform Act these requirements impose an unfunded definitions of ‘‘major rule’’ apply in this The Unfunded Mandates Reform Act mandate. The requirements in this final instance, we determine that this final (UMRA) of 1995 (Pub. L. 104–4, 2 U.S.C. rule are funded by SCSEP grant funds rule is not a ‘‘major rule’’ for SBREFA 1501 et seq.) requires an agency to and fall under the category of either purposes. ‘‘prepare a written statement’’ providing administrative costs or programmatic specific information before costs. Section 502(c)(3) allows grantees B. Executive Order 12866 ‘‘promulgating any final rule for which to request an increase in administrative Executive Order 12866 requires that a general notice of proposed rulemaking costs from 13.5 percent to 15 percent, if for each ‘‘significant regulatory action’’ was published.’’ The Department has the grantee demonstrates that such taken by the Department, the done this and, as required by 2 U.S.C. increase is necessary to carry out the Department conduct an assessment of 1523(b), it includes a summary of the program. There are several States that the regulatory action and provide OMB statement. For purposes of the UMRA, take advantage of this provision by with the regulation and the requisite this final rule does not include any submitting applications meeting the assessment prior to publishing the Federal mandate that may result in criteria listed in § 641.870. We have no regulation. A significant regulatory increased expenditure by State, local, evidence that the additional action is defined to include an action and tribal governments in the aggregate administrative funds they receive are that will have an annual effect on the of more than $100 million, or increased insufficient to oversee sub-recipient economy of $100 million or more, as expenditures by the private sector of operations and perform the well as an action that raises a novel more than $100 million. We did, requirements of subpart B for State legal or policy issue. however, receive some comments on the Planning. Further, to the extent that the As discussed in the SBREFA analysis costs of the rule, to which we respond Department has always expected above, this final rule will not have an here. grantees to take the State planning annual effect on the economy of We received several comments on this process seriously and formulate a $100,000,000 or more. However, the section from State agencies related to projection for how services would be rule does raise novel policy issues the responsibilities in the State Plan provided, the requirements in this final concerning implementing the 2006 OAA requirements at subpart C of this rule, rule are not new. They are merely more in the SCSEP. The key policy changes State competition requirements, and descriptive and now in regulations being implemented include the administrative guidance related to where before the requirements were introduction of a 48-month limit on required services to participants. The listed in a Training and Employment participation, institution of a regular programmatic aspects of these Guidance Letter (TEGL No. 16–07): competition for national grants, and an comments are discussed in the related http://www.doleta.gov/Seniors/pdf/ increase in the proportion of grant funds sections of the preamble. This section is TEGL16-07.pdf. that can be used for participant training limited to a discussion that addresses Finally, the catch-all provision in and supportive services. Therefore, the the impact of this rule as an unfunded § 641.535 that informs grantees that they Department has submitted this final rule mandate. may be expected to provide services to to the OMB. One commenter generally noted that participants according to administrative its jurisdiction was neither financially guidelines does not impose more C. Paperwork Reduction Act nor functionally prepared to take on this responsibilities that require additional The purposes of the Paperwork added workload. Several States grant funds. The administrative Reduction Act of 1995 (PRA), 44 U.S.C. specifically stated that the Department guidance discussed in that section 3501 et seq., include minimizing the was imposing additional requirements relates to further explanation or paperwork burden on affected entities. on State grantees without providing clarification for how the services listed The PRA requires certain actions before additional funding. A few commenters in that section or in the 2006 OAA can an agency can adopt or revise the stated that they did not have funds to be carried out. For example, past collection of information, including hire an economist to provide the data guidance has provided the Federal publishing a summary of the collection required for the State four-year strategy poverty levels which are adjusted each of information and a brief description of as provided in the State WIA program; year. This guidance is important the need for and proposed use of the and one commenter said that it did not because it provides the framework for information. 44 U.S.C. 3507. have the funds to obtain the data to determining participant eligibility in the Because the 2006 OAA necessitated meet the requirement that State grantees program. Other past guidance has changes in many of the SCSEP forms identify the types of community allowed grantees the option of providing used by grantees before the effective services that are needed and their On-the-Job Experience or OJE training date of the Act, in July 2007 the location statewide. Some commenters and established the parameters for using Department submitted to OMB for requested that the Department provide that training option. review and approval in accordance with additional resources to help States Department-issued guidance is § 3507(d) of the PRA a modification to develop a comprehensive four-year designed to inform the grantees about the SCSEP information collection State Plan. Another commenter ways to serve participants within requirements. The four-year strategy protested that the Department did not program parameters and do not rise to

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the level of creating an unfunded relationship, power, or responsibilities H. Environmental Impact Assessment mandate for the program. To avoid between the Federal and State The Department has reviewed this ambiguity, we changed the regulatory governments. The relationship, power, final rule in accordance with the text in § 641.535(b) to reflect that further or responsibilities were already requirements of the National guidance may be issued to clarify established in the authorizing Environmental Policy Act (NEPA) of existing requirements. The Department legislation. 1969 (42 U.S.C. 4321 et seq.), the may also from time-to-time request that Finally, the Department received no regulations of the Council on grantees provide certain information to comments on this provision. Environmental Quality (40 CFR part program participants, such as Accordingly, we conclude that this rule 1500), and the Department’s NEPA information about Earned Income Tax does not have federalism implications procedures (29 CFR part 11). The rule Credit program services. We have found for the purposes of Executive Order will not have a significant impact on the that as a general matter, grantees are 13132. eager to provide information to the quality of the human environment, and, participants when it is in the F. Executive Order 13045 thus, the Department has not prepared participants’ best interest, and do so an environmental assessment or an Executive Order 13045 concerns the environmental impact statement. willingly. Furthermore, although protection of children from carrying out the obligations of the environmental health risks and safety I. Assessment of Federal Regulations statute and regulations may require risks. This final rule addresses the and Policies on Families careful management, the duties imposed SCSEP, a program for older Americans, by the regulations flow from the specific Section 654 of the Treasury and and has no impact on safety or health General Government Appropriations requirements of the statute as well as risks to children. the Congressional purposes expressed in Act, enacted as part of the Omnibus the statute. Although the regulations G. Executive Order 13175 Consolidated and Emergency Supplemental Appropriations Act of may provide more specifics on how Executive Order 13175 addresses the those duties and purposes are to be 1999 (Pub. L. 105–277, 112 Stat. 2681), unique relationship between the Federal requires the Department to assess the carried out, the regulations do not do Government and Indian tribal anything more than flesh out the impact of this rule on family well-being. governments. The order requires Federal A rule that is determined to have a requirements on how to properly agencies to take certain actions when implement and manage the SCSEP. negative effect on families must be regulations have ‘‘tribal implications.’’ supported with an adequate rationale. Therefore, for the reasons described Required actions include consulting above, the Department believes that the The Department has assessed this with tribal governments prior to final rule and determines that it will not requirements of this final rule do not promulgating a regulation with tribal impose any unfunded mandates. have a negative effect on families. implications and preparing a tribal Indeed, we believe the SCSEP E. Executive Order 13132 impact statement. The Order defines strengthens families by providing job ‘‘ The Department has reviewed this regulations as having tribal training and support services to low- ’’ final rule in accordance with Executive implications when they have income older Americans. Order 13132 on federalism and has substantial direct effects on one or more J. Executive Order 12630 determined that the Final Rule does not Indian tribes, on the relationship have ‘‘policies that have federalism between the Federal Government and Executive Order 12630, Governmental implications.’’ As explained at § 1(a) of Indian tribes, or on the distribution of Actions and Interference with the Order, ‘‘ ‘Policies that have power and responsibilities between the Constitutionally Protected Property federalism implications’ refers to Federal Government and Indian tribes. Rights, is not relevant to this Final Rule regulations, legislative comments or The Department has reviewed this because the rule does not involve proposed legislation, and other policy final rule and concludes that it does not implementation of a policy with takings statements or actions that have have tribal implications. Although tribes implications. substantial direct effects on the States, are sub-recipients of national SCSEP K. Executive Order 12988 on the relationship between the national grant funds, this final rule will not have government and the States, or on the a substantial direct effect on those This final rule has been drafted and distribution of power and tribes, because, as outlined in the reviewed in accordance with Executive responsibilities among the various Regulatory Flexibility section of the Order 12988, Civil Justice Reform, and levels of government.’’ This rule does preamble, there are no new costs will not unduly burden the Federal not ‘‘have substantial direct effects on associated with implementing this final court system. The Department has the States, on the relationship between rule. This regulation does not affect the written the regulation so as to minimize the national government and the States, relationship between the Federal litigation and provide a clear legal or on the distribution of power and Government and the tribes, nor does it standard for affected conduct, and has responsibilities among the various affect the distribution of power and carefully reviewed it to eliminate levels of government’’ because the responsibilities between the Federal drafting errors and ambiguities. requirements in this final rule flow Government and tribal governments. directly from the 2006 OAA. Whatever These grants are, by definition, L. Executive Order 13211 federalism implications these voluntary and tribes are not required to This final rule is not subject to regulations have on the States is merely take the grant funds if they do not Executive Order 13211 because the rule indirect. Moreover, these grants are, by approve of the conditions attached to will not have a significant adverse effect definition, voluntary. States are not the funds. on the supply, distribution, or use of required to take the grant funds if they Finally, the Department received no energy. do not approve of the conditions comments on this issue. Accordingly, M. Plain Language attached to the funds. Therefore, the we conclude that this rule does not have rule does not have a ‘‘substantial direct tribal implications for the purposes of The Department drafted this rule in effect’’ on the States, nor will it alter the Executive Order 13175. plain language.

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List of Subjects in 20 CFR Part 641 641.345 What are the requirements for participants in unsubsidized modifying the State Plan? employment? Aged, Employment, Government 641.350 How should public comments be 641.565 What policies govern the provision contracts, Grant programs—Labor, solicited and collected? of wages and benefits to participants? Reporting and recordkeeping 641.355 Who may comment on the State 641.570 Is there a time limit for requirements. Plan? participation in the program? ■ For the reasons discussed in the 641.360 How does the State Plan relate to 641.575 May a grantee or sub-recipient the equitable distribution report? establish a limit on the amount of time preamble, the Department of Labor 641.365 How must the equitable amends 20 CFR part 641 as follows: its participants may spend at a host distribution provisions be reconciled agency? with the provision that disruptions to 641.577 Is there a limit on community PART 641—PROVISIONS GOVERNING current participants should be avoided? THE SENIOR COMMUNITY SERVICE service assignment hours? 641.580 Under what circumstances may a EMPLOYMENT PROGRAM Subpart D—Grant Application and Responsibility Review Requirements for grantee or sub-recipient terminate a Subpart A—Purpose and Definitions State and National SCSEP Grants participant? 641.585 What is the employment status of 641.400 What entities are eligible to apply Sec. SCSEP participants? 641.100 What does this part cover? to the Department for funds to 641.110 What is the SCSEP? administer SCSEP projects? Subpart F—Pilot, Demonstration, and 641.120 What are the purposes of the 641.410 How does an eligible entity apply? Evaluation Projects SCSEP? 641.420 What are the eligibility criteria 641.600 What is the purpose of the pilot, 641.130 What is the scope of this part? that each applicant must meet? demonstration, and evaluation projects 641.140 What definitions apply to this 641.430 What are the responsibility authorized under § 502(e) of the OAA? conditions that an applicant must meet? part? 641.610 How are pilot, demonstration, and 641.440 Are there responsibility conditions evaluation projects administered? Subpart B—Coordination With the that alone will disqualify an applicant? 641.620 How may an organization apply Workforce Investment Act 641.450 How will the Department examine for pilot, demonstration, and evaluation 641.200 What is the relationship between the responsibility of eligible entities? project funding? the SCSEP and the Workforce Investment 641.460 What factors will the Department Act? consider in selecting national grantees? 641.630 What pilot, demonstration, and 641.210 What services, in addition to the 641.465 Under what circumstances may evaluation project activities are applicable core services, must SCSEP the Department reject an application? allowable under § 502(e)? grantees and sub-recipients provide 641.470 What happens if an applicant’s 641.640 Should pilot, demonstration, and through the One-Stop delivery system? application is rejected? evaluation project entities coordinate 641.220 Does title I of WIA require the 641.480 May the Governor, or the highest with SCSEP grantees and sub-recipients, SCSEP to use OAA funds for individuals government official, make including area agencies on aging? who are not eligible for SCSEP services recommendations to the Department on Subpart G—Performance Accountability or for services that are not authorized national grant applications? under the OAA? 641.490 When will the Department 641.700 What performance measures/ 641.230 Must the individual assessment compete SCSEP grant awards? indicators apply to SCSEP grantees? conducted by the SCSEP grantee or sub- 641.495 When must a State compete its 641.710 How are the performance recipient and the assessment performed SCSEP award? indicators defined? by the One-Stop delivery system be 641.720 How will the Department and Subpart E—Services to Participants accepted for use by either entity to grantees initially determine and then determine the individual’s need for 641.500 Who is eligible to participate in adjust expected levels of performance for services in the SCSEP and adult the SCSEP? the core performance measures? programs under title I–B of WIA? 641.505 When is eligibility determined? 641.730 How will the Department assist 641.240 Are SCSEP participants eligible for 641.507 How is applicant income grantees in the transition to the new core intensive and training services under computed? performance indicators? title I of WIA? 641.510 What types of income are included 641.740 How will the Department and excluded for participant eligibility determine whether a grantee fails, meets, Subpart C—The State Plan determinations? or exceeds the expected levels of 641.300 What is the State Plan? 641.512 May grantees and sub-recipients performance for the core indicators and 641.302 What is a four-year strategy? enroll otherwise eligible job ready what will be the consequences of failing 641.305 Who is responsible for developing individuals and place them directly into to meet expected levels of performance? and submitting the State Plan? unsubsidized employment? 641.750 Will there be performance-related 641.310 May the Governor, or the highest 641.515 How must grantees and sub- incentives? government official, delegate recipients recruit and select eligible Subpart H—Administrative Requirements responsibility for developing and individuals for participation in the submitting the State Plan? SCSEP? 641.800 What uniform administrative 641.315 Who participates in developing 641.520 Are there any priorities that requirements apply to the use of SCSEP the State Plan? grantees and sub-recipients must use in funds? 641.320 Must all national grantees selecting eligible individuals for 641.803 What is program income? operating within a State participate in participation in the SCSEP? 641.806 How must SCSEP program income the State planning process? 641.535 What services must grantees and be used? 641.325 What information must be sub-recipients provide to participants? 641.809 What non-Federal share provided in the State Plan? 641.540 What types of training may (matching) requirements apply to the use 641.330 How should the State Plan reflect grantees and sub-recipients provide to of SCSEP funds? community service needs? SCSEP participants in addition to the 641.812 What is the period of availability 641.335 How should the Governor, or the training received at the community of SCSEP funds? highest government official, address the service assignment? 641.815 May the period of availability be coordination of SCSEP services with 641.545 What supportive services may extended? activities funded under title I of WIA? grantees and sub-recipients provide to 641.821 What audit requirements apply to 641.340 How often must the Governor, or participants? the use of SCSEP funds? the highest government official, update 641.550 What responsibility do grantees 641.824 What lobbying requirements apply the State Plan? and sub-recipients have to place to the use of SCSEP funds?

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641.827 What general nondiscrimination Community Service Employment time opportunities in community requirements apply to the use of SCSEP Program (SCSEP), authorized under title service assignments for unemployed funds? V of the Older Americans Act (OAA), 42 low-income persons who are 55 years of 641.833 What policies govern political U.S.C. 3056 et seq., as amended by the age or older, particularly persons who patronage? 641.836 What policies govern political Older Americans Act Amendments of have poor employment prospects, and activities? 2006, Public Law 109–365. This part to increase the number of older persons 641.839 What policies govern union and other pertinent regulations set forth who may enjoy the benefits of organizing activities? the regulations applicable to the SCSEP. unsubsidized employment in both the 641.841 What policies govern nepotism? (a) Subpart A of this part contains public and private sectors. (OAA 641.844 What maintenance of effort introductory provisions and definitions § 502(a)(1)). requirements apply to the use of SCSEP that apply to this part. funds? (b) Subpart B of this part describes the § 641.130 What is the scope of this part? 641.847 What uniform allowable cost required relationship between the OAA The regulations in this part address requirements apply to the use of SCSEP the requirements that apply to the funds? and the Workforce Investment Act of 641.850 Are there other specific allowable 1998 (WIA), 29 U.S.C. 2801 et seq. SCSEP. More detailed policies and and unallowable cost requirements for These provisions discuss the procedures are contained in the SCSEP? coordinated efforts to provide services administrative guidelines issued by the 641.853 How are costs classified? through the integration of the SCSEP Department. Throughout this part, 641.856 What functions and activities within the One-Stop delivery system. phrases such as, ‘‘according to constitute administrative costs? (c) Subpart C of this part sets forth the instructions (procedures) issued by the 641.859 What other special rules govern requirements for the State Plan, such as Department’’ or ‘‘additional guidance the classification of costs as the four-year strategy, required will be provided through administrative administrative costs or programmatic ’’ activity costs? coordination efforts, public comments, issuance refer to the documents issued 641.861 Must SCSEP recipients provide and equitable distribution. under the Secretary’s authority to funding for the administrative costs of (d) Subpart D of this part establishes administer the SCSEP, such as Training sub-recipients? grant planning and application and Employment Guidance Letters 641.864 What functions and activities requirements, including grantee (TEGLs), Training and Employment constitute programmatic activity costs? eligibility and responsibility review Notices (TENs), previously issued 641.867 What are the limitations on the provisions that apply to the SCSEP Older Worker Bulletins that are amount of SCSEP administrative costs? still in effect, technical assistance 641.870 Under what circumstances may Department’s award of SCSEP funds for the administrative cost limitation be State and national grants. guides, and other SCSEP guidance. (e) Subpart E of this part details increased? § 641.140 What definitions apply to this 641.873 What minimum expenditure levels SCSEP participant services. part? are required for participant wages and (f) Subpart F of this part provides the benefits? rules for pilot, demonstration, and The following definitions apply to 641.874 What conditions apply to a SCSEP evaluation projects. this part: grantee request to use additional funds (g) Subpart G of this part outlines the Additional indicators mean retention for training and supportive service costs? performance accountability in unsubsidized employment for one 641.876 When will compliance with cost requirements. This subpart establishes year; satisfaction of participants, limitations and minimum expenditure employers and their host agencies with levels be determined? requirements for performance measures, defines such measures, and establishes their experiences and the services 641.879 What are the financial and provided; and any other indicators of performance reporting requirements for corrective actions for failure to meet recipients? core performance measures. performance that the Secretary 641.881 What are the SCSEP recipient’s (h) Subpart H of this part sets forth determines to be appropriate to evaluate responsibilities relating to awards to sub- the administrative requirements for services and performance. (OAA recipients? SCSEP funds. § 513(b)(2)). 641.884 What are the grant closeout At risk for homelessness means an procedures? (i) Subpart I of this part describes the grievance and appeals processes and individual is likely to become homeless Subpart I—Grievance Procedures and requirements. and the individual lacks the resources Appeals Process and support networks needed to obtain 641.900 What appeal process is available to § 641.110 What is the SCSEP? housing. an applicant that does not receive a The Senior Community Service Authorized position level means the grant? Employment Program (SCSEP) is a number of SCSEP enrollment 641.910 What grievance procedures must program administered by the opportunities that can be supported for grantees make available to applicants, Department of Labor that serves a 12-month period based on the average employees, and participants? unemployed low-income persons who national unit cost. The authorized 641.920 What actions of the Department are 55 years of age and older and who position level is derived by dividing the may a grantee appeal and what total amount of funds appropriated for procedures apply to those appeals? have poor employment prospects by 641.930 Is there an alternative dispute training them in part-time community a Program Year by the national average resolution process that may be used in service assignments and by assisting unit cost per participant for that place of an OALJ hearing? them in developing skills and Program Year as determined by the Department. The national average unit Authority: 42 U.S.C. 3056 et seq.; Pub. L. experience to facilitate their transition 109–365. to unsubsidized employment. cost includes all costs of administration, other participant costs, and participant Subpart A—Purpose and Definitions § 641.120 What are the purposes of the wage and benefit costs as defined in SCSEP? § 506(g) of the OAA. § 641.100 What does this part cover? The purposes of the SCSEP are to Co-enrollment applies to any Part 641 contains the Department of foster individual economic self- individual who meets the qualifications Labor’s regulations for the Senior sufficiency and promote useful part- for SCSEP participation and is also

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enrolled as a participant in WIA or positions in each designated area in the the ability of an individual to perform another employment and training State, and the number of authorized normal daily tasks or threatens the program, as provided in the Individual participant positions each grantee serves capacity of the individual to live Employment Plan. in that area, taking into account the independently. (42 U.S.C. 3002(24)). Community service means: needs of underserved counties and Homeless includes: (1) Social, health, welfare, and incorporated cities as necessary. This (1) An individual who lacks a fixed, educational services (including literacy report provides a basis for improving regular, and adequate nighttime tutoring), legal and other counseling the distribution of SCSEP positions. residence; and services and assistance, including tax Frail means an individual 55 years of (2) An individual who has a primary counseling and assistance and financial age or older who is determined to be nighttime residence that is: counseling, and library, recreational, functionally impaired because the (i) A supervised publicly or privately and other similar services; individual— operated shelter designed to provide (2) Conservation, maintenance, or (1)(i) Is unable to perform at least two temporary living accommodations restoration of natural resources; activities of daily living without (including welfare hotels, congregate (3) Community betterment or substantial human assistance, including shelters, and transitional housing for the beautification; verbal reminding, physical cueing, or mentally ill); (4) Antipollution and environmental supervision; or (ii) An institution that provides a quality efforts; (ii) At the option of the State, is temporary residence for individuals (5) Weatherization activities; unable to perform at least three such intended to be institutionalized; or (6) Economic development; and activities without such assistance; or (iii) A public or private place not (7) Other such services essential and (2) Due to a cognitive or other mental designed for, or ordinarily used as, necessary to the community as the impairment, requires substantial regular sleeping accommodations for Secretary determines by rule to be supervision because the individual human beings. (42 U.S.C. 11302(a)). appropriate. (OAA § 518(a)(1)). behaves in a manner that poses a serious Host agency means a public agency or Community service assignment means health or safety hazard to the individual a private nonprofit organization exempt part-time, temporary employment paid or to another individual. (42 U.S.C. from taxation under § 501(c)(3) of the with grant funds in projects at host 3002(22)). Internal Revenue Code of 1986 which agencies through which eligible Grant period means the time period provides a training work site and individuals are engaged in community between the effective date of the grant supervision for one or more service and receive work experience and award and the ending date of the award, participants. Political parties cannot be job skills that can lead to unsubsidized which includes any modifications host agencies. A host agency may be a employment. (OAA § 518(a)(2)). extending the period of performance, religious organization as long as the Core indicators means hours (in the whether by the Department’s exercise of projects in which participants are being aggregate) of community service options contained in the grant trained do not involve the construction, employment; entry into unsubsidized agreement or otherwise. This is also operation, or maintenance of any facility employment; retention in unsubsidized referred to as ‘‘project period’’ or ‘‘award used or to be used as a place for employment for six months; earnings; period.’’ sectarian religious instruction or the number of eligible individuals Grantee means an entity receiving worship. (OAA § 502(b)(1)(D)). served; and most-in-need (the number of financial assistance directly from the Indian means a person who is a individuals described in § 518 Department to carry out SCSEP member of an Indian tribe. (42 U.S.C. (a)(3)(B)(ii) or (b)(2) of the OAA). (OAA activities. The grantee is the legal entity 3002(26)). § 513(b)(1)). that receives the award and is legally Indian tribe means any tribe, band, Core Services means those services responsible for carrying out the SCSEP, nation, or other organized group or described in § 134(d)(2) of WIA. even if only a particular component of community of Indians (including Alaska Department or DOL means the United the entity is designated in the grant Native village or regional or village States Department of Labor, including award document. Grantees include corporation as defined in or established its agencies and organizational units. public and nonprofit private agencies pursuant to the Alaska Native Claims Disability means a disability and organizations, agencies of a State, Settlement Act, 43 U.S.C. 1601 et seq.) attributable to a mental or physical tribal organizations, and Territories, that which: (1) Is recognized as eligible for impairment, or a combination of mental receive SCSEP grants from the the special programs and services and physical impairments, that results Department. (OAA §§ 502(b)(1), provided by the United States to Indians in substantial functional limitations in 506(a)(2)). As used here, ‘‘grantee’’ because of their status as Indians; or (2) one or more of the following areas of includes ‘‘grantee’’ as defined in 29 CFR is located on, or in proximity to, a major life activity: 97.3 and ‘‘recipient’’ as defined in 29 Federal or State reservation or (1) Self-care; CFR 95.2(gg). Rancheria. (42 U.S.C. 3002(27)). (2) Receptive and expressive Greatest economic need means the Individual employment plan (IEP) language; need resulting from an income level at means a plan for a participant that is (3) Learning; or below the poverty guidelines based on an assessment of that (4) Mobility; established by the Department of Health participant conducted by the grantee or (5) Self-direction; and Human Services and approved by sub-recipient, or a recent assessment or (6) Capacity for independent living; the Office of Management and Budget plan developed by another employment (7) Economic self-sufficiency; (OMB). (42 U.S.C. 3002(23)). and training program, and a related (8) Cognitive functioning; and Greatest social need means the need service strategy. The IEP must include (9) Emotional adjustment. caused by non-economic factors, which an appropriate employment goal (except (42 U.S.C. 3002(13)). include: Physical and mental that after the first IEP, subsequent IEPs Equitable distribution report means a disabilities; language barriers; and need not contain an employment goal if report based on the latest available cultural, social, or geographical such a goal is not feasible), objectives Census or other reliable data, which isolation, including isolation caused by that lead to the goal, a timeline for the lists the optimum number of participant racial or ethnic status, which restricts achievement of the objectives; and be

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jointly agreed upon with the participant. function on the job, in the individual’s health care and medical services, (OAA § 502(b)(1)(N)). family, or in society. special job-related or personal Intensive services means those Most-in-need means participants with counseling, incidentals (such as work services authorized by § 134(d)(3) of the one or more of the following shoes, badges, uniforms, eyeglasses, and Workforce Investment Act. characteristics: Have a severe disability; tools), child and adult care, temporary Jobs for Veterans Act means Public are frail; are age 75 or older; are age- shelter, and follow-up services; and Law 107–288 (2002). Section 2(a) of the eligible but not receiving benefits under outreach, recruitment and selection, Jobs for Veterans Act, codified at 38 title II of the Social Security Act; reside intake orientation, and assessments. U.S.C. 4215(a), provides a priority of in an area with persistent (OAA § 502(c)(6)(A)(ii)–(v)). service for Department of Labor unemployment and have severely Pacific Island and Asian Americans employment and training programs for limited employment prospects; have means Americans having origins in any veterans, and certain spouses of limited English proficiency; have low of the original peoples of the Far East, veterans, who otherwise meet the literacy skills; have a disability; reside Southeast Asia, the Indian eligibility requirements for in a rural area; are veterans; have low Subcontinent, or the Pacific Islands. participation. Priority is extended to employment prospects; have failed to (OAA § 518(a)(5)). veterans. Priority is also extended to the find employment after using services Participant means an individual who spouse of a veteran who died of a provided under title I of the Workforce is determined to be eligible for the service-connected disability; the spouse Investment Act of 1998 (29 U.S.C. 2801 SCSEP, is given a community service of a member of the Armed Forces on et seq.); or are homeless or at risk for assignment, and is receiving any service active duty who has been listed for a homelessness. (OAA § 513(b)(1)(E)). funded by the program as described in total of more than 90 days as missing in National grantee means a public or subpart E. action, captured in the line of duty by non-profit private agency or Persistent unemployment means that a hostile force, or forcibly detained by organization, or Tribal organization, that the annual average unemployment rate a foreign government or power; the receives a grant under title V of the for a county or city is more than 20 OAA (42 U.S.C. 3056 et seq.) to spouse of any veteran who has a total percent higher than the national average administer a SCSEP project. (See OAA disability resulting from a service- for two out of the last three years. connected disability; and the spouse of § 506(g)(5)). OAA means the Older Americans Act, Poor employment prospects means any veteran who died while a disability the significant likelihood that an so evaluated was in existence. (See 42 U.S.C. 3001 et seq., as amended. One-Stop Center means the One-Stop individual will not obtain employment § 641.520(b)). without the assistance of the SCSEP or Job ready refers to individuals who do Center system in a WIA local area which another workforce development not require further education or training must include a comprehensive One- program. Persons with poor to perform work that is available in their Stop Center through which One-Stop employment prospects have a labor market. partners provide applicable core Limited English proficiency means services and which provides access to significant barrier to employment; individuals who do not speak English as other programs and services carried out significant barriers to employment their primary language and who have a by the One-Stop partners. (See WIA include but are not limited to: lacking limited ability to read, speak, write, or § 134(c)(2)). a substantial employment history, basic understand English. One-Stop delivery system means a skills, and/or English-language Local Workforce Investment Area or system under which employment and proficiency; lacking a high school local area means an area designated by training programs, services, and diploma or the equivalent; having a the Governor of a State under § 116 of activities are available through a disability; being homeless; or residing in the Workforce Investment Act. network of eligible One-Stop partners, socially and economically isolated rural Local Board means a Local Workforce which assures that information about or urban areas where employment Investment Board established under and access to core services is available opportunities are limited. § 117 of the Workforce Investment Act. regardless of where the individuals Program operator means a grantee or Low employment prospects means the initially enter the workforce investment sub-recipient that receives SCSEP funds likelihood that an individual will not system. (See WIA § 134(c)(2)). from a SCSEP grantee or a higher-tier obtain employment without the One-Stop partner means an entity SCSEP sub-recipient and performs the assistance of the SCSEP or another described in § 121(b)(1) of the following activities for all its workforce development program. Workforce Investment Act, i.e., required participants: Eligibility determination, Persons with low employment prospects partners, or an entity described in participant assessment, and have a significant barrier to § 121(b)(2) of the Workforce Investment development of and placement into employment. Significant barriers to Act, i.e., additional partners. community service assignments. employment may include but are not Other participant (enrollee) costs Program Year means the one-year limited to: Lacking a substantial means the costs of participant training, period beginning on July 1 and ending employment history, basic skills, and/or including the payment of reasonable on June 30. English-language proficiency; lacking a costs to instructors, classroom rental, Project means an undertaking by a high school diploma or the equivalent; training supplies, materials, equipment, grantee or sub-recipient in accordance having a disability; being homeless; or and tuition, and which may be provided with a grant or contract agreement that residing in socially and economically before or during a community service provides service to communities and isolated rural or urban areas where assignment, in a classroom setting, or training and employment opportunities employment opportunities are limited. under other appropriate arrangements; to eligible individuals. Low literacy skills means the job placement assistance, including job Recipient means grantee. As used individual computes or solves development and job search assistance; here, ‘‘recipient’’ includes ‘‘recipient’’ as problems, reads, writes, or speaks at or participant supportive services to enable defined in 29 CFR 95.2(gg) and ‘‘grantee’’ below the 8th grade level or is unable a participant to successfully participate as defined in 29 CFR 97.3. to compute or solve problems, read, in a project, including the payment of Residence means an individual’s write, or speak at a level necessary to reasonable costs of transportation, declared dwelling place or address as

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demonstrated by appropriate to the 50 States, Puerto Rico, the District Subpart B—Coordination With the documentation. of Columbia and the following Workforce Investment Act Rural means an area not designated as Territories: Guam, American Samoa, a metropolitan statistical area by the U.S. Virgin Islands, and the § 641.200 What is the relationship between Census Bureau; segments within the SCSEP and the Workforce Investment Commonwealth of the Northern Mariana Act? metropolitan counties identified by Islands. codes 4 through 10 in the Rural Urban The SCSEP is a required partner State Plan means a plan that the under the Workforce Investment Act. As Commuting Area (RUCA) system; and Governor, or the highest government RUCA codes 2 and 3 for census tracts such, it is a part of the One-Stop official, of a State must submit to the delivery system. When acting in their that are larger than 400 square miles and Secretary that outlines a four-year have population density of less than 30 capacity as WIA partners, SCSEP strategy, and describes the planning and grantees and sub-recipients are required people per square mile. implementation process, for the SCSEP means the Senior Community to follow all applicable rules under WIA statewide provision of community and its regulations. (29 U.S.C. Service Employment Program service employment and other authorized under title V of the OAA. 2841(b)(1)(B)(vi) and 20 CFR 662.200 authorized activities for eligible through 662.280). Secretary means the Secretary of the individuals under SCSEP. (See U.S. Department of Labor. § 641.300). § 641.210 What services, in addition to the Service area means the geographic Sub-recipient means the legal entity to applicable core services, must SCSEP area served by a local SCSEP project in which a sub-award of financial grantees and sub-recipients provide through the One-Stop delivery system? accordance with a grant agreement. assistance is made by the grantee (or by Severe disability means a severe, a higher-tier sub-recipient), and that is In addition to providing core services, chronic disability attributable to mental accountable to the grantee for the use of as defined at 20 CFR 662.240 of the WIA or physical impairment, or a the funds provided. As used here, ‘‘sub- regulations, SCSEP grantees and sub- combination of mental and physical recipient’’ includes ‘‘sub-grantee’’ as recipients must make arrangements impairments, that— defined in 29 CFR 97.3 and ‘‘sub- through the One-Stop delivery system to (1) Is likely to continue indefinitely; recipient’’ as defined in 29 CFR 95.2(kk). provide eligible and ineligible and individuals with referrals to WIA Supportive services means services, (2) Results in substantial functional intensive and training services and such as transportation, health and limitation in 3 or more of the following access to other activities and programs medical services, special job-related or areas of major life activity: carried out by other One-Stop partners. (i) Self-care; personal counseling, incidentals (such (ii) Receptive and expressive as work shoes, badges, uniforms, eye- § 641.220 Does title I of WIA require the language; glasses, and tools), child and adult care, SCSEP to use OAA funds for individuals (iii) Learning; housing, including temporary shelter, who are not eligible for SCSEP services or (iv) Mobility; follow up services, and needs-related for services that are not authorized under (v) Self-direction; payments, which are necessary to the OAA? (vi) Capacity for independent living; enable an individual to participate in No, SCSEP requirements continue to (vii) Economic self-sufficiency. activities authorized under the SCSEP. apply. Title V resources may not be (42 U.S.C. 3002(48)). (OAA § 502(c)(6)(A)(iv) and 518(a)(7)). used to serve individuals who are not Severely limited employment Title V of the OAA means 42 U.S.C. SCSEP-eligible. The Workforce prospects means the substantial 3056 et seq., as amended. Investment Act creates a seamless likelihood that an individual will not Training services means those service delivery system for individuals obtain employment without the services authorized by WIA § 134(d)(4). seeking workforce development services by linking the One-Stop partners in the assistance of the SCSEP or another Tribal organization means the One-Stop delivery system. Although the workforce development program. recognized governing body of any overall effect is to provide universal Persons with severely limited Indian tribe, or any legally established access to core services, SCSEP resources employment prospects have more than organization of Indians which is may only be used to provide services one significant barrier to employment; controlled, sanctioned, or chartered by that are authorized and provided under significant barriers to employment may such governing body. (42 U.S.C. the SCSEP to eligible individuals. Note, include but are not limited to: Lacking 3002(54)). a substantial employment history, basic however, that one allowable SCSEP cost skills, and/or English-language Unemployed means an individual is a SCSEP project’s proportionate share proficiency; lacking a high school who is without a job and who wants and of One-Stop costs. See § 641.850(d). diploma or the equivalent; having a is available for work, including an Title V funds can be used to pay wages disability; being homeless; or residing in individual who may have occasional to SCSEP participants receiving socially and economically isolated rural employment that does not result in a intensive and training services under or urban areas where employment constant source of income. (OAA title I of WIA provided that the SCSEP opportunities are limited. 518(a)(8)). participants have each received a State Board means a State Workforce Veteran means an individual who is community service assignment. All Investment Board established under a ‘‘covered person’’ for purposes of the other individuals who are in need of the WIA § 111. Jobs for Veterans Act, 38 U.S.C. services provided under the SCSEP, but State grantee means the entity 4215(a)(1). who do not meet the eligibility criteria designated by the Governor, or the Workforce Investment Act (WIA) to enroll in the SCSEP, should be highest government official, to enter means the Workforce Investment Act of referred to or enrolled in WIA or other into a grant with the Department to 1998 (Pub. L. 105–220 (Aug. 7, 1998)), appropriate partner programs. WIA administer a State or Territory SCSEP 29 U.S.C. 2801 et seq., as amended. § 121(b)(1). These arrangements should project under the OAA. Except as Workforce Investment Act (WIA) be negotiated in the Memorandum of applied to funding distributions under regulations means regulations at 20 CFR Understanding (MOU), which is an § 506 of the OAA, this definition applies part 652, subpart D and parts 660–671. agreement developed and executed

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between the Local Workforce services in the State, taking into account (h) Planned actions to coordinate Investment Board, with the agreement of the relative distribution of eligible activities of SCSEP grantees with the the chief local elected official, and the individuals and employment activities being carried out in the State One-Stop partners relating to the opportunities within the State. The under other titles of the OAA; operation of the One-Stop delivery State Plan is intended to foster (i) Planned actions to coordinate the system in the local area. The MOU is coordination among the various SCSEP SCSEP with other public and private further described in the WIA regulations grantees and sub-recipients operating entities and programs that provide at 20 CFR §§ 662.300 and 662.310. within the State and to facilitate the services to older Americans, such as efforts of stakeholders, including State community and faith-based § 641.230 Must the individual assessment and local boards under WIA, to work organizations, transportation programs, conducted by the SCSEP grantee or sub- recipient and the assessment performed by collaboratively through a participatory and programs for those with special the One-Stop delivery system be accepted process to accomplish the SCSEP’s needs or disabilities; for use by either entity to determine the goals. (OAA § 503(a)(1)). The State Plan (j) Planned actions to coordinate the individual’s need for services in the SCSEP provisions are listed in § 641.325. SCSEP with other labor market and job and adult programs under title I–B of WIA? training initiatives; and § 641.302 What is a four-year strategy? Yes, § 502(b)(3) of the OAA provides (k) The State’s long-term strategy to that an assessment or IEP completed by The State Plan must outline a four- improve SCSEP services, including the SCSEP satisfies any condition for an year strategy for the statewide provision planned longer-term changes to the assessment, service strategy, or IEP of community service employment and design of the program within the State, completed at the One-Stop and vice- other authorized activities for eligible and planned changes in the use of versa. (OAA § 502(b)(3)). These individuals under the SCSEP program. SCSEP grantees and program operators reciprocal arrangements and the (OAA § 503(a)(1)). The four-year strategy to better achieve the goals of the contents of the SCSEP IEP and WIA IEP must specifically address the following: program; this may include should be negotiated in the MOU. (a) The State’s long-term strategy for recommendations to the Department, as achieving an equitable distribution of appropriate. § 641.240 Are SCSEP participants eligible SCSEP positions within the State that: for intensive and training services under (1) Moves positions from over-served § 641.305 Who is responsible for title I of WIA? to underserved locations within the developing and submitting the State Plan? (a) Although SCSEP participants are State, under § 641.365; The Governor, or the highest not automatically eligible for intensive (2) Equitably serves rural and urban governmental official, of each State is and training services under title I of areas; and responsible for developing and WIA, local boards may deem SCSEP (3) Serves individuals afforded submitting the State Plan to the participants, either individually or as a priority for service, pursuant to Department. group, as satisfying the requirements for § 641.520; receiving adult intensive and training § 641.310 May the Governor, or the highest (b) The State’s long-term strategy for government official, delegate responsibility services under title I of WIA. avoiding disruptions to the program (b) SCSEP participants who have been for developing and submitting the State when new Census or other reliable data Plan? assessed and for whom an IEP has been become available, or when there is over- developed have received an intensive (a) Yes, the Governor, or the highest enrollment for any other reason; governmental official of each State, may service under 20 CFR 663.240(a) of the (c) The State’s long-term strategy for WIA regulations. In order to enhance delegate responsibility for developing serving minority older individuals and submitting the State Plan, provided skill development related to the IEP, it under SCSEP; may be necessary to provide training that any such delegation is consistent (d) Long-term projections for job beyond the community service with State law and regulations. growth in industries and occupations in assignment to enable participants to (b) To delegate responsibility, the the State that may provide employment meet their unsubsidized employment Governor, or the highest government opportunities for older workers, and objectives. The SCSEP grantee or sub- official, must submit to the Department how those relate to the types of recipient, the host agency, the WIA a signed statement indicating the unsubsidized jobs for which SCSEP program, or another One-Stop partner individual and/or organization that will participants will be trained, and the may provide training as appropriate and be submitting the State Plan on his or types of skill training to be provided; as negotiated in the MOU. (See her behalf. (e) The State’s long-term strategy for § 641.540 for a further discussion of engaging employers to develop and § 641.315 Who participates in developing training for SCSEP participants.) promote opportunities for the placement the State Plan? Subpart C—The State Plan of SCSEP participants in unsubsidized (a) In developing the State Plan the employment; Governor, or the highest government § 641.300 What is the State Plan? (f) The State’s strategy for continuous official, must seek the advice and The State Plan is a plan, submitted by improvement in the level of recommendations of representatives the Governor, or the highest government performance for entry into unsubsidized from: official, in each State, as an independent employment, and to achieve, at a (1) The State and area agencies on document or as part of the WIA Unified minimum, the levels specified in aging; Plan, that outlines a four-year strategy § 513(a)(2)(E)(ii) of the OAA; (2) State and local boards under the for the statewide provision of (g) Planned actions to coordinate Workforce Investment Act (WIA); community service employment and activities of SCSEP grantees with the (3) Public and private nonprofit other authorized activities for eligible activities being carried out in the State agencies and organizations providing individuals under the SCSEP as under title I of WIA, including plans for employment services, including each described in § 641.302. The State Plan using the WIA One-Stop delivery grantee operating a SCSEP project also describes the planning and system and its partners to serve within the State, except as provided in implementation process for SCSEP individuals aged 55 and older; § 641.320(b);

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(4) Social service organizations (4) Eligible individuals who are activities within the State with activities providing services to older individuals; limited English proficient; and being carried out under title I of WIA. (5) Grantees under title III of the OAA; (5) Eligible individuals who have the (OAA § 503(a)(4)(F)). The State Plan (6) Affected communities; greatest social need; must describe the steps being taken to (7) Unemployed older individuals; (c) The current and projected ensure that the SCSEP is an active (8) Community-based organizations employment opportunities in the State partner in each One-Stop delivery serving older individuals; (such as by providing information system and the steps that will be taken (9) Business organizations; and available under § 15 of the Wagner- to encourage and improve coordination (10) Labor organizations. Peyser Act (29 U.S.C. 491–2) by with the One-Stop delivery system. (b) The Governor, or the highest occupation), and the types of skills government official, may also obtain the possessed by eligible individuals; § 641.340 How often must the Governor, or advice and recommendations of other the highest government official, update the (d) The localities and populations for interested organizations and State Plan? which projects of the type authorized by individuals, including SCSEP program title V are most needed; (a) Under instructions issued by the participants, in developing the State (e) Actions taken and/or planned to Department, the Governor, or the Plan. (OAA § 503(a)(2)). coordinate activities of SCSEP grantees highest government official, must review the State Plan and submit an § 641.320 Must all national grantees in the State with activities carried out in operating within a State participate in the the State under title I of WIA; update to the State Plan to the Secretary State planning process? (f) A description of the process used for consideration and approval not less (a) The eligibility provision at OAA to obtain advice and recommendations often than every two years. OAA § 514(c)(6) requires national grantees to on the State Plan from representatives of § 503(a)(1). States are encouraged to coordinate activities with other organizations and individuals listed in review their State Plan more frequently organizations at the State and local § 641.315, and advice and than every two years, however, and levels. Therefore, except as provided in recommendations on steps to coordinate make modifications as circumstances paragraph (b) of this section, any SCSEP services with activities funded warrant, under § 641.345. national grantee that does not under title I of WIA from representatives (b) Before development of the update participate in the State planning process of organizations listed in § 641.335; to the State Plan, the Governor, or the may be deemed ineligible to receive (g) A description of the State’s highest government official, must seek SCSEP funds in the following Program procedures and time line for ensuring the advice and recommendations of the Year. an open and inclusive planning process individuals and organizations identified (b) National grantees serving older that provides meaningful opportunity in § 641.315 about what, if any, changes American Indians, or Pacific Island and for public comment as required by are needed, and must publish the State Asian Americans, with funds reserved § 641.350; Plan, showing the changes, for public under OAA § 506(a)(3), are exempted (h) Public comments received, and a comment. OAA § section 503(a)(2), from the requirement to participate in summary of the comments; 503(a)(3). the State planning processes under (i) A description of the steps taken to § 641.345 What are the requirements for § 503(a)(8) of the OAA. Although these avoid disruptions to the greatest extent modifying the State Plan? national grantees may choose not to possible as provided in § 641.365; and (a) Modifications may be submitted participate in the State planning (j) Such other information as the anytime circumstances warrant. process, the Department encourages Department may require in the State (b) Modifications to the State Plan are their participation. Only those grantees Plan instructions. (OAA § 503(a)). required when: using reserved funds are exempt; if a (1) There are changes in Federal or grantee is awarded one grant with § 641.330 How should the State Plan reflect community service needs? State law or policy that substantially reserved funds and another grant with change the assumptions upon which the The Governor, or the highest non-reserved funds, the grantee is State Plan is based; government official, must ensure that required under paragraph (a) of this (2) There are significant changes in the State Plan identifies the types of section to participate in the State the State’s vision, four-year strategy, community services that are needed and planning process for purposes of the policies, performance indicators, or the places where these services are most non-reserved funds grant. organizational responsibilities; or needed. The State Plan should (3) There is a change in a grantee or § 641.325 What information must be specifically identify the needs and grantees. provided in the State Plan? locations of those individuals most in (c) Modifications to the State Plan are The Department issues instructions need of community services and the subject to the same public comment detailing the information that must be groups working to meet their needs. requirements that apply to the provided in the State Plan. At a (OAA § 503(a)(4)(E)). minimum, the State Plan must include development of the State Plan under the State’s four-year strategy, as § 641.335 How should the Governor, or the § 641.350. described in § 641.302, and information highest government official, address the (d) States are not required to seek the coordination of SCSEP services with advice and recommendations of the on the following: activities funded under title I of WIA? (a) The ratio of eligible individuals in individuals and organizations identified each service area to the total eligible The Governor, or the highest in § 641.315 when modifying the State population in the State; government official, must seek the Plan, except that States must seek the (b) The relative distribution of: advice and recommendations from advice and recommendations of any (1) Eligible individuals residing in representatives of the State and area national grantees operating in the State. urban and rural areas within the State; agencies on aging in the State and the While not required, states are strongly (2) Eligible individuals who have the State and local boards established under encouraged to seek the advice and greatest economic need; title I of WIA. (OAA § 503(a)(2)). The recommendation of the relevant entities (3) Eligible individuals who are State Plan must describe the steps that listed in § 641.315 when or if modifying minorities; are being taken to coordinate SCSEP the State Plan becomes necessary.

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(e) The Department will issue over-enrollment for any other reason, allotted to the State under § 506(e). additional instructions for the the Department recommends a gradual Public and nonprofit private agencies procedures that must be followed when shift in positions as they become vacant and organizations, State agencies other requesting modifications to the State to areas where there has been an than the previously designated, failed Plan. increase in the eligible population. agency, and tribal organizations, are (c) The Department does not define eligible to be selected as a grantee for § 641.350 How should public comments be disruptions to mean that participants the funds. Other States may not be solicited and collected? are entitled to remain in a subsidized selected as a grantee for this funding. The Governor, or the highest community service assignment government official, should follow indefinitely. As discussed in § 641.570, § 641.410 How does an eligible entity apply? established State procedures to solicit there is a time limit on SCSEP and collect public comments. The State participation, thus permitting positions (a) General. An eligible entity must Plan must include a description of the to be transferred over time. follow the application guidelines issued State’s procedures and schedule for (d) Grantees and sub-recipients must by the Department. The Department will ensuring an open and inclusive not transfer positions from one issue application guidelines announcing planning process that provides geographic area to another without first the availability of national funds and meaningful opportunity for public notifying the State agency responsible State funds, whether they are awarded comment. for preparing the State Plan and on a competitive or noncompetitive basis. The guidelines will contain § 641.355 Who may comment on the State equitable distribution report. Plan? (e) Grantees must submit, in writing, application due dates, application any proposed changes in distribution instructions, evaluation criteria, and Any individual or organization may other necessary information. comment on the Plan. that occur after submission of the equitable distribution report to the (b) National Grant Applicants. All § 641.360 How does the State Plan relate Department for approval. applicants for SCSEP national grant to the equitable distribution report? (f) All grantees are required to funds, except for applications for grants The two documents address some of coordinate any proposed changes in proposing to serve older Indians and the same areas, but are prepared at position distribution with the other Pacific Island and Asian Americans different points in time. The equitable grantees in the State, including the State with funds reserved under OAA distribution report is prepared by State project director, before submitting the § 506(a)(3), must submit their grantees at the beginning of each fiscal proposed changes to the Department for applications to the Governor, or the year and provides a ‘‘snapshot’’ of the approval. The request for the highest government official, of each actual distribution of all of the Department’s approval must include the State in which projects are proposed so authorized positions within the State, comments of the State project director, that he or she has a reasonable grantee-by-grantee, and the optimum which the Department will consider in opportunity to make the number of participant positions in each making its decision. recommendations described in designated area based on the latest § 641.480, before submitting the available Census or other reliable data. Subpart D—Grant Application and application to the Department. (OAA The State Plan is prepared by the Responsibility Review Requirements § 503(a)(5)). Governor, or the highest government for State and National SCSEP Grants (c) State Applicants. A State that submits a Unified Plan under § 501 of official, and covers many areas in § 641.400 What entities are eligible to addition to equitable distribution, as WIA may include the State’s SCSEP apply to the Department for funds to grant application in its Unified Plan. discussed in § 641.325, and sets forth a administer SCSEP projects? Any State that submits a SCSEP grant proposed plan for distribution of (a) National Grants. Entities eligible to authorized positions in the State. Any application as part of its WIA Unified apply for national grants include Plan must address all of the application distribution or redistribution of nonprofit organizations, Federal public positions made as a result of a State requirements as published in the agencies, and tribal organizations. These Department’s instructions. Sections Plan proposal will be reflected in the entities must provide information to next equitable distribution report, 641.300 through 641.365 address State establish that they are capable of Plans and modifications. which then forms the basis for the administering a multi-State program, as proposed distribution in the next State required by the Secretary. State and § 641.420 What are the eligibility criteria Plan update. This process is iterative in local agencies may not apply for these that each applicant must meet? that it moves the authorized positions funds. To be eligible to receive SCSEP funds, from overserved areas to underserved (b) State Grants. each applicant must demonstrate: areas over a period of time. (1) Section 506(e) of the OAA requires (a) An ability to administer a program § 641.365 How must the equitable the Department to award each State a that serves the greatest number of distribution provisions be reconciled with grant to provide SCSEP services. eligible participants, giving particular the provision that disruptions to current Governors, or highest government consideration to individuals with participants should be avoided? officials, designate an individual State greatest economic need, individuals (a) Governors, or highest government agency as the organization to administer with greatest social need, and officials, must describe in the State Plan SCSEP funds. individuals described in § 641.570(b) or the steps that are being taken to comply (2) If the State fails to meet its § 641.520(a)(2) through (a)(8). with the statutory requirement to avoid expected levels of performance for the (b) An ability to administer a program disruptions in the provision of services core indicators for three consecutive that provides employment in for participants. (OAA § 503(a)(6)). years, it is not eligible to designate an community service assignments for (b) When there is new Census or other agency to administer SCSEP funds in eligible individuals in communities in reliable data indicating that there has the following year. Instead, the State which they reside, or in nearby been a shift in the location of the must conduct a competition to select an communities, that will contribute to the eligible population or when there is organization as the grantee of the funds general welfare of the community;

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(c) An ability to administer a program recent grant or to meet applicable core Department will determine whether that moves eligible participants into performance measures or address other ‘‘fraud or criminal activity of a unsubsidized employment; applicable indicators of performance. significant nature’’ has occurred on a (d) Where the applicant has (f) Failure to correct deficiencies case-by-case basis, regardless of what previously received a SCSEP grant, the brought to the grantee’s attention in party identifies the alleged fraud or applicant’s prior performance in writing as a result of monitoring criminal activity. meeting SCSEP core measures of activities, reviews, assessments, or other performance and addressing SCSEP activities. § 641.450 How will the Department additional measures of performance; (g) Failure to return a grant closeout examine the responsibility of eligible entities? and where the applicant has not package or outstanding advances within received a SCSEP grant, the applicant’s 90 days after the grant expiration date The Department will review available prior performance under other Federal or receipt of closeout package, records to assess each applicant’s or State programs; relevant past whichever is later, unless an extension overall fiscal and administrative ability performance will also be used for has been requested and granted. to manage Federal funds. The scoring criterion and will be set forth (h) Failure to submit required reports. Department’s responsibility review may more fully in the Solicitation for Grant (i) Failure to properly report and consider all relevant information, Applications (see § 641.460); dispose of Government property as including the organization’s history of (e) An ability to move participants instructed by the Department. managing other grants awarded by the with multiple barriers to employment, (j) Failure to have maintained Department or by other Federal including individuals described in effective cash management or cost agencies. (OAA § 514(d)(1) and (d)(2)). § 641.570(b) or § 641.520(a)(2) through controls resulting in excess cash on (a)(8), into unsubsidized employment; § 641.460 What factors will the Department hand. consider in selecting national grantees? (f) An ability to coordinate activities (k) Failure to ensure that a sub- with other organizations at the State and recipient complies with applicable audit The Department will select national local levels, including the One-Stop requirements, including OMB Circular grantees from among applicants that are delivery system; A–133 and the audit requirements able to meet the eligibility and (g) An ability to properly manage the specified at § 641.821. responsibility review criteria at § 514 of program, as reflected in its plan for (l) Failure to audit a sub-recipient the OAA. (Section 641.420 contains the fiscal management of the SCSEP; within the period required under eligibility criteria and §§ 641.430 and (h) An ability to administer a project § 641.821. 641.440 contain the responsibility that provides community service; (m) Final disallowed costs in excess criteria.) The Department also will take (i) An ability to minimize program of five percent of the grant or contract the rating criteria described in the disruption for current participants and award if, in the judgment of the Grant Solicitation for Grant Applications or in community services provided if there Officer, the disallowances are egregious other instrument into consideration. is a change in project sponsor and/or findings. These rating criteria will include location, and its plan for minimizing (n) Failure to establish a mechanism relevant past performance. disruptions; (j) Any additional criteria that the to resolve a sub-recipient’s audit in a § 641.465 Under what circumstances may Department deems appropriate to timely fashion. (OAA § 514(d)(4)). the Department reject an application? minimize disruptions for current § 641.440 Are there responsibility (a) The Department may question any participants. (OAA § 514(c)). conditions that alone will disqualify an proposed project component of an applicant? § 641.430 What are the responsibility application if it believes that the conditions that an applicant must meet? (a) Yes, an applicant may be component will not serve the purposes Subject to § 641.440, each applicant disqualified if of the SCSEP. The Department may must meet the listed responsibility (1) Either of the first two reject the application if the applicant ‘‘tests’’ by not having committed the responsibility tests, a or b, listed in does not submit or negotiate an following acts: § 641.430 is not met, or acceptable alternative. (a) The Department has been unable (2) The applicant substantially, or (b) The Department may reject any to recover a debt from the applicant, persistently for two or more consecutive application that the Grant Officer whether incurred by the applicant or by years, fails one of the other determines unacceptable based on the one of its sub-recipients, or the responsibility tests listed in § 641.430. content of the application, rating score, applicant has failed to comply with a (b) The second responsibility test past performance, fiscal management, or debt repayment plan to which it agreed. addresses ‘‘fraud or criminal activity of any other factor the Grant Officer In this context, a debt is established by a significant nature.’’ The Department believes serves the best interest of the final agency action, followed by three will determine the existence of program, including the application’s demand letters to the applicant, without significant fraud or criminal activity comparative rating in a competition. payment in full by the applicant. which typically will include willful or grossly negligent disregard for the use or § 641.470 What happens if an applicant’s (b) Established fraud or criminal application is rejected? activity of a significant nature within handling of, or other fiduciary duties the applicant’s organization. concerning, Federal funding, where the (a) Any entity whose application is (c) Serious administrative deficiencies grantee has no effective systems, checks, rejected in whole or in part will be identified by the Department, such as or safeguards to detect or prevent fraud informed that it has not been selected. failure to maintain a financial or criminal activity. Additionally, The non-selected entity may request an management system as required by significant fraud or criminal activity explanation of the Department’s basis Federal regulations. will typically include coordinated for its rejection. If requested, the (d) Willful obstruction of the auditing patterns or behaviors that pervade a Department will provide the entity with or monitoring process. grantee’s administration or are feedback on its proposal. The non- (e) Failure to provide services to committed by the higher levels of a selected entity may follow the applicants as agreed to in a current or grantee’s management or authority. The procedures in § 641.900.

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(b) Incumbent grantees will not have § 641.480 May the Governor, or the highest Subpart E—Services to Participants an opportunity to obtain technical government official, make assistance provided by the Department recommendations to the Department on § 641.500 Who is eligible to participate in national grant applications? the SCSEP? under OAA § 513(d)(2)(B)(i) to cure, in an open competition, any deficiency in (a) Yes, in accordance with Anyone who is at least 55 years old, a proposal because that will create § 641.410(b), each Governor, or highest unemployed (as defined in § 641.140), inequity in favor of incumbents. Nor, government official, will have a and who is a member of a family with reasonable opportunity to make an income that is not more than 125 during an open competition, will the comments on any application to operate percent of the family income levels Department provide assistance to any a SCSEP project located in the prepared by the Department of Health applicant to improve its application. Governor’s, or the highest government and Human Services and approved by (c) If the Administrative Law Judge official’s, State before the Department OMB (Federal poverty guidelines) is (ALJ) rules, under § 641.900, that the makes a final decision on a grant award. eligible to participate in the SCSEP. organization should have been selected, The Governor’s, or the highest (OAA § 518(a)(3), (8)). A person with a in whole or in part, the matter must be government official’s, comments should disability may be treated as a ‘‘family of remanded to the Grant Officer. The be directed to the Department and may one’’ for income eligibility Grant Officer must, within 10 working include the anticipated effect of the determination purposes at the option of days, determine whether the proposal on the overall distribution of the applicant. organization continues to meet the program positions within the State; § 641.505 When is eligibility determined? requirements of this part, and whether recommendations for redistribution of the positions which are the subject of positions to underserved areas as Initial eligibility is determined at the the ALJ’s decision will be awarded, in vacancies occur in previously time individuals apply to participate in the SCSEP. Once individuals become whole or in part, to the organization and encumbered positions in other areas; SCSEP participants, the grantee or sub- the timing of the award. In making this and recommendations for distributing recipient is responsible for verifying determination, the Grant Officer must any new positions that may become their continued eligibility at least once take into account disruption to available as a result of an increase in every 12 months. Grantees and sub- participants, disruption to grantees, and funding for the State. The Governor’s, or recipients may also verify an the operational needs of the SCSEP. the highest government official’s, recommendations should be consistent individual’s eligibility as circumstances (d) In the event that the Grant Officer with the State Plan. (OAA § 503(a)(5)). require, including instances when determines that it is not feasible to (b) The Governor, or the highest enrollment is delayed. award any positions to the appealing government official, has the option of applicant, the applicant will be awarded § 641.507 How is applicant income making the authorized computed? its bid preparation costs, or a pro rata recommendations on all applications or An applicant’s income is computed share of those costs if the Grant Officer’s only on those applications proposed for finding applies to only a portion of the award following the rating process. It is by calculating the includable income funds that would be awarded. If incumbent on each Governor, or the received by the applicant during the 12- positions are awarded to the appealing highest government official, to inform month period ending on the date an applicant, that applicant is not entitled the Department of his or her intent to individual submits an application to to the full grant amount but will only review the applications before or after participate in the SCSEP, or the receive the funds remaining in the grant the rating process. annualized income for the 6-month period ending on the application date. that have not been expended by the § 641.490 When will the Department The Department requires grantees to use current grantee through its operation of compete SCSEP grant awards? whichever method is more favorable to the grant and its subsequent closeout. (a)(1) The Department will hold a full the individual. (OAA § 518(a)(4)). The available remedy in a SCSEP non- and open competition for national selection appeal is neither retroactive grants every four years. (OAA § 641.510 What types of income are nor immediately effective selection; included and excluded for participant § 514(a)(1)). eligibility determinations? rather it is the potential to be selected (2) If a national grantee meets the as a SCSEP grantee as quickly as expected level of performance for each (a) With certain exceptions, the administratively feasible in the future, of the core indicators for each of the Department will use the definition of for the remainder of the grant cycle. four years, the Department may provide income from the U.S. Census Bureau’s (e) In the event that any party notifies an additional one-year grant to the Current Population Survey (CPS) as the the Grant Officer that it is not satisfied national grantee. (OAA § 514(a)(2)). standard for determining SCSEP with the Grant Officer’s decision, the applicant income eligibility. § 641.495 When must a State compete its (b) Any income that is unemployment Grant Officer must return the decision SCSEP award? compensation, a benefit received under to the ALJ for review. If a State grantee fails to meet its title XVI of the Social Security Act (42 (f) Any organization selected and/or expected levels of performance for three U.S.C. 1381 et seq.), a payment made to funded as a SCSEP grantee is subject to consecutive Program Years, the State or on behalf of veterans or former having its positions reduced or to being must hold a full and open competition, members of the Armed Forces under the removed as a SCSEP grantee if an ALJ under such conditions as the Secretary laws administered by the Secretary of decision so orders. The Grant Officer may provide, for the State SCSEP funds Veterans Affairs, or 25 percent of a provides instructions on transition and for the full Program Year following the benefit received under title II of the closeout to both the newly designated determination of consecutive failure. Social Security Act (42 U.S.C. 401 et grantee and to the grantee whose (OAA § 513(d)(3)(B)(iii)). The seq.), must be excluded from SCSEP positions are affected or which is being incumbent (failed) grantee is not eligible income eligibility determinations. (OAA removed. All parties must agree to the to compete. Other states are also not § 518(a)(3)(A)). provisions of this paragraph as a eligible to compete for these funds. (c) The Department has issued condition of being a SCSEP grantee. § 641.400(b)(2). administrative guidance on income

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inclusions and exclusions and § 2(a) of the Jobs for Veterans Act, 38 performing community service procedures for determining SCSEP U.S.C. 4215(a) as set forth in paragraph assignments, and potential for transition income eligibility. This guidance may (b) of this section; to unsubsidized employment; be updated periodically. (6) Have low employment prospects; (ii) Performing an initial assessment (7) Have failed to find employment upon program entry, unless an § 641.512 May grantees and sub-recipients after using services provided through assessment has already been performed enroll otherwise eligible job ready individuals and place them directly into the One-Stop delivery system; or under title I of WIA as provided in unsubsidized employment? (8) Are homeless or are at risk for § 641.230. Subsequent assessments may homelessness. No, grantees and sub-recipients may be made as necessary, but must be made (OAA § 518(b)). no less frequently than two times during not enroll as SCSEP participants job- (b) Section 2(a) of the Jobs for ready individuals who can be directly a twelve month period (including the Veterans Act creates a priority for placed into unsubsidized employment. initial assessment); service for veterans (and, in some cases, (3)(i) Using the information gathered Such individuals should be referred to spouses of veterans) who otherwise during the initial assessment to develop an employment provider, such as the meet the program eligibility criteria for One-Stop Center for job placement an IEP that includes an appropriate the SCSEP. 38 U.S.C. 4215(a). Priority is assistance under WIA or another employment goal for each participant, extended to veterans. Priority is also employment program. except that if an assessment has already extended to the spouse of a veteran who been performed and an IEP developed § 641.515 How must grantees and sub- died of a service-connected disability; under title I of WIA, the WIA recipients recruit and select eligible the spouse of a member of the Armed assessment and IEP will satisfy the individuals for participation in the SCSEP? Forces on active duty who has been requirement for a SCSEP assessment (a) Grantees and sub-recipients must listed for a total of more than 90 days and IEP as provided in § 641.230; develop methods of recruitment and as missing in action, captured in the (ii) Updating the IEP as necessary to selection that assure that the maximum line of duty by a hostile force, or reflect information gathered during the number of eligible individuals have an forcibly detained by a foreign subsequent participant assessments opportunity to participate in the government or power; the spouse of any (OAA § 502(b)(1)(N)); program. To the extent feasible, grantees veteran who has a total disability (iii) The initial IEP should include an and sub-recipients should seek to enroll resulting from a service-connected appropriate employment goal for each minority and Indian eligible disability; and the spouse of any veteran participant. Thereafter, if the grantee individuals, eligible individuals with who died while a disability so evaluated determines that the participant is not limited English proficiency, and eligible was in existence. likely to obtain unsubsidized individuals with greatest economic (c) Grantees and sub-recipients must employment, the IEP must reflect other need, at least in proportion to their apply these priorities in the following approaches to help the participant numbers in the area, taking into order: achieve self-sufficiency, including the consideration their rates of poverty and (1) Persons who qualify as a veteran transition to other services or programs. unemployment. (OAA § 502(b)(1)(M)). or qualified spouse under § 2(a) of the (4) Placing participants in appropriate (b) Grantees and sub-recipients must Jobs for Veterans Act, 38 U.S.C. 4215(a), community service assignments in the use the One-Stop delivery system as one and who possess at least one of the community in which they reside, or in method in the recruitment and selection other priority characteristics; a nearby community (OAA of eligible individuals to ensure that the (2) Persons who qualify as a veteran § 502(b)(1)(B)); maximum number of eligible or qualified spouse under § 2(a) of the (5) Providing or arranging for training individuals have an opportunity to Jobs for Veterans Act, 38 U.S.C. 4215(a), identified in participants’ IEPs and participate in the project. (OAA who do not possess any other of the consistent with the SCSEP’s goal of § 502(b)(1)(H)). priority characteristics; unsubsidized employment (OAA (c) States may enter into agreements (3) Persons who do not qualify as a § 502(a)(1), 502(b)(1)(B), 502(b)(1)(I), among themselves to permit cross- veteran or qualified spouse under § 2(a) 502(b)(1)(N)(ii)); border enrollment of eligible of the Jobs for Veterans Act (non- (6) Assisting participants in obtaining participants. Such agreements should veterans), and who possess at least one needed supportive services identified in cover both State and national grantee of the other priority characteristics. their IEPs (OAA § 502(b)(1)(N)); positions and must be submitted to the (7) Providing appropriate services for Department for approval in the grant § 641.535 What services must grantees participants, or referring participants to application or a modification of the and sub-recipients provide to participants? appropriate services, through the One- grant. (a) When individuals are selected for Stop delivery system established under participation in the SCSEP, the grantee WIA (OAA § 502(b)(1)(O)); § 641.520 Are there any priorities that or sub-recipient is responsible for: grantees and sub-recipients must use in (8) Providing counseling on selecting eligible individuals for (1) Providing orientation to the participants’ progress in meeting the participation in the SCSEP? SCSEP, including information on goals and objectives identified in their (a) Yes, in selecting eligible project goals and objectives, community IEPs, and in meeting their supportive individuals for participation in the service assignments, training service needs (OAA § 502(b)(1)(N)(iii)); SCSEP, priority must be given to opportunities, available supportive (9) Providing participants with wages individuals who have one or more of the services, the availability of a free and benefits for time spent in the following characteristics: physical examination, participant rights community service assignment, (1) Are 65 years of age or older; and responsibilities, and permitted and orientation, and training (OAA (2) Have a disability; prohibited political activities; § 502(b)(1)(I), 502(b)(1)(J), (3) Have limited English proficiency (2) (i) Assessing participants’ work 502(c)(6)(A)(i)) (see also §§ 641.565 and or low literacy skills; history, skills and interests, talents, 641.540(f), addressing wages and (4) Reside in a rural area; physical capabilities, aptitudes, needs benefits); (5) Are veterans (or, in some cases, for supportive services, occupational (10) Ensuring that participants have spouses of veterans) for purposes of preferences, training needs, potential for safe and healthy working conditions at

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their community service employment (h) Nothing in this section prevents or (1)(i) Grantees and sub-recipients worksites (OAA § 502(b)(1)(J)); limits participants from engaging in self- must pay participants the highest (11) Assisting participants in development training available through applicable required wage for time spent obtaining unsubsidized employment, other sources, at their own expense, in orientation, training, and community including providing or arranging for during hours when not performing their service assignments. employment counseling in support of community service assignments. (ii) SCSEP participants may be paid their IEPs; the highest applicable required wage (b) The Department may issue § 641.545 What supportive services may while receiving WIA intensive services. grantees and sub-recipients provide to administrative guidance that clarifies participants? (2) The highest applicable required the requirements of paragraph (a). wage is either the minimum wage (c) Grantees may not use SCSEP funds (a) Grantees and sub-recipients are applicable under the Fair Labor for job ready individuals who only need required to assess all participants’ need Standards Act of 1938; the State or local job search assistance or job referral for supportive services and to make minimum wage for the most nearly services. Grantees may provide job every effort to assist participants in comparable covered employment; or the search assistance and job club activities obtaining needed supportive services. prevailing rate of pay for persons to participants who are enrolled in the Grantees and sub-recipients may employed in similar public occupations SCSEP and are assigned to community provide directly or arrange for by the same employer. service assignments. (See also supportive services that are necessary to (3) Grantees and sub-recipients must § 641.512). enable an individual to successfully make any adjustments to minimum participate in a SCSEP project, wage rates payable to participants as § 641.540 What types of training may including but not limited to payment of may be required by Federal, State, or grantees and sub-recipients provide to reasonable costs of transportation; SCSEP participants in addition to the local statute during the grant term. health and medical services; special job- (b) Benefits. training received at a community service related or personal counseling; assignment? (1) Required benefits. Except as incidentals such as work shoes, badges, provided in paragraph (b)(2) of this (a) In addition to the training uniforms, eyeglasses, and tools; provided in a community service section, grantees and sub-recipients dependent care; housing, including must ensure that participants receive assignment, grantees and sub-recipients temporary shelter; needs-related may arrange skill training provided that such benefits as are required by law. payments; and follow-up services. (OAA (i) Grantees and sub-recipients must it: §§ 502(c)(6)(A)(iv), 518(a)(7)). (1) Is realistic and consistent with the provide benefits uniformly to all (b) To the extent practicable, the participants’ IEP; participants within a project or grantee or sub-recipient should arrange (2) Makes the most effective use of the subproject, unless the Department for the payment of these expenses from participant’s skills and talents; and agrees to waive this provision due to a other resources. (3) Prepares the participant for determination that such a waiver is in unsubsidized employment. (c) Grantees and sub-recipients are the best interests of applicants, (b) Training may be provided before encouraged to contact placed participants, and project administration. or during a community service participants throughout the first 12 (ii) Grantees and sub-recipients must assignment. months following placement to offer participants the opportunity to (c) Training may be in the form of determine if they have the necessary receive physical examinations annually. lectures, seminars, classroom supportive services to remain in the job (A) Physical examinations are a instruction, individual instruction, and to provide or arrange to provide benefit, and not an eligibility criterion. online instruction, on-the-job such services if feasible. The examining physician must provide, experiences. Training may be provided § 641.550 What responsibility do grantees to the participant only, a written report by the grantee or through other and sub-recipients have to place of the results of the examination. arrangements, including but not limited participants in unsubsidized employment? (B) Participants may choose not to to, arrangements with other workforce For those participants whose IEPs accept the physical examination. In that development programs such as WIA. include a goal of unsubsidized case, the grantee or sub-recipient must (OAA § 502(c)(6)(A)(ii)). employment, grantees and sub- document this refusal, through a signed (d) Grantees and sub-recipients are recipients are responsible for working statement, within 60 workdays after encouraged to obtain training through with participants to ensure that the commencement of the community locally available resources, including participants are receiving services and service assignment. Each year thereafter, host agencies, at no cost or reduced cost taking actions designed to help them grantees and sub-recipients must offer to the SCSEP. achieve this goal. Grantees and sub- the physical examination and document (e) Grantees and sub-recipients may recipients must contact private and the offer and any participant’s refusal. pay for participant training, including public employers directly or through the (C) Grantees and sub-recipients may the payment of reasonable costs of One-Stop delivery system to develop or use SCSEP funds to pay the costs of instructors, classroom rental, training identify suitable unsubsidized physical examinations. supplies, materials, equipment, and employment opportunities. They must (iii) When participants are not tuition. (OAA § 502(c)(6)(A)(ii)). also encourage host agencies to assist covered by the State workers’ (f) Participants must be paid wages participants in their transition to compensation law, the grantee or sub- while in training, as described in unsubsidized employment, including recipient must provide participants with § 641.565(a). (OAA § 502(b)(1)(I)). unsubsidized employment with the host workers’ compensation benefits equal to (g) As provided in § 641.545, grantees agency. those provided by law for covered and sub-recipients may pay for costs employment. OAA § 504(b). associated with supportive services, § 641.565 What policies govern the (iv) If required by State law, grantees/ such as transportation, necessary to provision of wages and benefits to sub-recipients must provide participate in training. (OAA participants? unemployment compensation coverage § 502(b)(1)(L)). (a) Wages. for participants.

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(v) Grantees and sub-recipients must periods of participation for individuals assignment is not available. Such an provide compensation for scheduled who: authorized break, if taken under a work hours during which a host (1) Have a severe disability; formal grantee policy allowing such agency’s business is closed for a Federal (2) Are frail or are age 75 or older; breaks and formally entered into the holiday, which may be paid or in the (3) Meet the eligibility requirements SCSEP Performance and Results form of rescheduled work time. related to age for, but do not receive, Quarterly Performance Reporting (vi) Grantees and sub-recipients must benefits under title II of the Social (SPARQ) system, will not count toward provide necessary sick leave that is not Security Act (42 U.S.C. 401 et seq.); the individual time limit described in part of an accumulated sick leave (4) Live in an area with persistent paragraph (a) or the average program, which may be paid or in the unemployment and are individuals with participation cap described in paragraph form of rescheduled work time. severely limited employment prospects; (c) of this section. (2) Prohibited wage and benefits costs. or (e) Administrative guidance. The (i) Participants may not carry over (5) Have limited English proficiency Department will issue administrative allowable benefits from one Program or low literacy skills. guidance detailing the process by which Year to the next; (c) Average grantee participation cap. a grantee may request increased periods (ii) Grantees and sub-recipients may (1) Notwithstanding any individual of individual participation, and the not provide payment or otherwise extension authorized under paragraph process by which a grantee may request compensate participants for unused (b) of this section, each grantee must an extension of the average participation benefits such as sick leave or holidays; manage its SCSEP project in such a way cap. The process will require that the (iii) Grantees and sub-recipients may that the grantee does not exceed an determination of individual participant not use SCSEP funds to cover costs average participation cap for all extension requests is made in a fair and associated with the following participants of 27 months (in the equitable manner. participant benefits: aggregate). (f) Grantee authority. Grantees may (A) Retirement. Grantees and sub- (2) A grantee may request, and the limit the time of participation for recipients may not use SCSEP funds to Department may authorize, an extended individuals to less than the 48 months provide contributions into a retirement average participation period of up to 36 described in paragraph (a) of this system or plan, or to pay the cost of months (in the aggregate) for a particular section, if the grantee uniformly applies pension benefits for program project area in a given Program Year if the lower participation limit, and if the participants. the Department determines that grantee submits a description of the (B) Annual leave. extenuating circumstances exist to lower participation limit policy in its (C) Accumulated sick leave. justify an extension, due to one more of grant application or modification of the (D) Bonuses. the following factors: grant and the Department approves the (OAA § 502(c)(6)(A)(i)). (i) High rates of unemployment or of policy. (OAA §§ 502(b)(1)(C), poverty or of participation in the 518(a)(3)(B)). § 641.570 Is there a time limit for program of block grants to States for participation in the program? temporary assistance for needy families § 641.575 May a grantee or sub-recipient (a) Individual time limit. (1) Eligible established under part A of title IV of establish a limit on the amount of time its individuals may participate in the the Social Security Act, in the areas participants may spend at a host agency? program for a maximum duration of 48 served by a grantee, relative to other Yes, grantees and sub-recipients may months in the aggregate (whether or not areas of the State involved or the establish limits on the amount of time consecutive), from the later of July 1, Nation; that participants spend at a particular 2007, or the date of the individual’s (ii) Significant downturns in the host agency, and are encouraged to enrollment in the program. economy of an area served by the rotate participants among different host (2) At the time of enrollment, the grantee or in the national economy; agencies, or to different assignments grantee or sub-recipient must inform the (iii) Significant numbers or within the same host agency, as such participant of this time limit and the proportions of participants with one or rotations may increase participants’ possible extension available under more barriers to employment, including skills development and employment paragraph (b) of this section, and the ‘‘most-in-need’’ individuals described in opportunities. Such limits must be grantee or sub-recipient must provide § 641.710(a)(6), served by a grantee established in the grant agreement or for a system to transition participants to relative to such numbers or proportions modification of the grant, and approved unsubsidized employment or other for grantees serving other areas of the by the Department. The Department will assistance before the maximum State or Nation; not approve any limit that does not enrollment duration has expired. (iv) Changes in Federal, State, or local require an individualized determination Provisions for transition must be minimum wage requirements; or that rotation is in the best interest of the reflected in the participant’s IEP. (v) Limited economies of scale for the participant and will further the (3) If requested by a grantee or sub- provision of community service acquisition of skills listed in the IEP. recipient, the Department will authorize employment and other authorized Host agency rotations have no effect on an extension for individuals who meet activities in the areas served by the either the individual participation limit the criteria in paragraph (b) of this grantee. or the average participation cap. section. Notwithstanding any individual (3) For purposes of the average extensions granted, grantees and sub- participation cap, each grantee will be § 641.577 Is there a limit on community recipients must ensure that projects do considered to be one project. service assignment hours? not exceed the overall average (d) Authorized break in participation. While there is no specific limit on the participation cap for all participants, as On occasion a participant takes an number of hours that may be worked in described in paragraph (c) of this authorized break in participation from a community service assignment, a section. the program, such as a formal leave of community service assignment must be (b) Increased periods of individual absence necessitated by personal a part-time position. However, the participation. If requested by a grantee, circumstances or a break caused because Department strongly encourages the Department will authorize increased a suitable community service grantees to use 1,300 hours as a

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benchmark and good practice for recipient terminates a participant under § 641.620 How may an organization apply monitoring community service hours. paragraph (d) or (e) of this section, it for pilot, demonstration, and evaluation may refer the individual to other project funding? § 641.580 Under what circumstances may potential sources of assistance, such as Organizations applying for pilot, a grantee or sub-recipient terminate a demonstration, and evaluation project participant? the One-Stop delivery system. funding must follow the instructions (g) Grantees and sub-recipients must (a) If, at any time, a grantee or sub- issued by the Department. Instructions provide each participant at the time of recipient determines that a participant for these unique funding opportunities enrollment with a written copy of its was incorrectly declared eligible as a are published in TEGLs available at policies for terminating a participant for result of false information knowingly http://www.doleta.gov/Seniors. given by that individual, the grantee or cause or otherwise, and must verbally sub-recipient must give the participant review those policies with each § 641.630 What pilot, demonstration, and immediate written notice explaining the participant. evaluation project activities are allowable reason(s) for termination and may (h) Any termination, as described in under § 502(e)? terminate the participant 30 days after it paragraphs (a) through (e) of this Allowable pilot, demonstration and has provided the participant with section, must be consistent with evaluation projects include: written notice. administrative guidelines issued by the (a) Activities linking businesses and (b) If, during eligibility verification Department and the termination notice eligible individuals, including activities under § 641.505, a grantee or sub- must inform the participant of the providing assistance to participants recipient finds a participant to be no grantee’s grievance procedure, and the transitioning from subsidized activities longer eligible for enrollment, the termination must be subject to the to private sector employment; grantee or sub-recipient must give the applicable grievance procedures (b) Demonstration projects and pilot participant written notice explaining the described in § 641.910. projects designed to: reason(s) for termination and may (1) Attract more eligible individuals (i) Participants may not be terminated terminate the participant 30 days after it into the labor force; from the program solely on the basis of has provided the participant with (2) Improve the provision of services their age. Grantees and sub-recipients written notice. to eligible individuals under One-Stop (c) If, at any time, the grantee or sub- may not impose an upper age limit for delivery systems established under title recipient determines that it incorrectly participation in the SCSEP. I of WIA; (3) Enhance the technological skills of determined a participant to be eligible § 641.585 What is the employment status for the program through no fault of the of SCSEP participants? eligible individuals; and participant, the grantee or sub-recipient (4) Provide incentives to SCSEP must give the participant immediate (a) Participants are not considered grantees for exemplary performance and written notice explaining the reason(s) Federal employees solely as a result of incentives to businesses to promote for termination and may terminate the their participation in the SCSEP. (OAA their participation in the SCSEP; participant 30 days after it has provided § 504(a)). (c) Demonstration projects and pilot the participant with written notice. (b) Grantees must determine whether projects, as described in paragraph (b) of (d) A grantee or sub-recipient may or not a participant qualifies as an this section, for workers who are older terminate a participant for cause. employee of the grantee, sub-recipient, individuals (but targeted to eligible Grantees must include their policies local project, or host agency, under individuals) only if such demonstration concerning for-cause terminations in the applicable law. Responsibility for this projects and pilot projects are designed grant application and obtain the determination rests with the grantee to assist in developing and Department’s approval. The grantee or even when a Federal agency is a grantee implementing techniques and sub-recipient must give the participant or host agency. approaches in addressing the written notice explaining the reason(s) employment and training needs of for termination and may terminate the Subpart F—Pilot, Demonstration, and eligible individuals; participant 30 days after it has provided Evaluation Projects (d) Provision of training and technical the participant with written notice. assistance to support a SCSEP project; (e) A grantee or sub-recipient may § 641.600 What is the purpose of the pilot, (e) Dissemination of best practices demonstration, and evaluation projects relating to employment of eligible terminate a participant if the participant authorized under § 502(e) of the OAA? refuses to accept a reasonable number of individuals; and (f) Evaluation of SCSEP activities. job offers or referrals to unsubsidized The purpose of the pilot, employment consistent with the IEP and demonstration, and evaluation projects § 641.640 Should pilot, demonstration, and there are no extenuating circumstances authorized under § 502(e) of the OAA is evaluation project entities coordinate with that would hinder the participant from to develop and implement techniques SCSEP grantees and sub-recipients, moving to unsubsidized employment. and approaches, and to demonstrate the including area agencies on aging? The grantee or sub-recipient must give effectiveness of these techniques and (a) To the extent practicable, the the participant written notice explaining approaches, in addressing the Department will provide an the reason(s) for termination and may employment and training needs of opportunity, before the development of terminate the participant 30 days after it individuals eligible for SCSEP. a demonstration or pilot project, for the has provided the participant with appropriate area agency on aging and § 641.610 How are pilot, demonstration, written notice. and evaluation projects administered? SCSEP grantees and sub-grantees to (f) When a grantee or sub-recipient submit comments on the project in makes an unfavorable determination of The Department may enter into order to ensure coordination of SCSEP enrollment eligibility under paragraph agreements with States, public agencies, activities with activities carried out (b) or (c) of this section, it should refer nonprofit private organizations, or under this subpart. the individual to other potential sources private business concerns, as may be (b) To the extent practicable, entities of assistance, such as the One-Stop necessary, to conduct pilot, carrying out pilot, demonstration, and delivery system. When a grantee or sub- demonstration, and evaluation projects. evaluation projects must consult with

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appropriate area agencies on aging, assure that their sub-grantees and lower- (iv) Meet the eligibility requirements SCSEP grantees and sub-grantees, and tier sub-grantees are collecting and related to age for, but do not receive, other appropriate agencies and entities reporting program data. benefits under title II of the Social to promote coordination of SCSEP and (e) Required evaluation and reporting. Security Act (42 U.S.C. 401 et seq.); pilot, demonstration, and evaluation An agreement to be evaluated on the (v) Live in an area with persistent activities. (OAA § 502(e)). core indicators of performance and to unemployment and are individuals with report information on the additional severely limited employment prospects; Subpart G—Performance indicators of performance is a (vi) Have limited English proficiency; Accountability requirement for application for, and is a (vii) Have low literacy skills; (viii) Have a disability; § 641.700 What performance measures/ condition of, all SCSEP grants. indicators apply to SCSEP grantees? (ix) Reside in a rural area; § 641.710 How are the performance (x) Are veterans; (a) Indicators of performance. There indicators defined? (xi) Have low employment prospects; are currently eight performance (a) The core indicators are defined as (xii) Have failed to find employment measures, of which six are core follows: after utilizing services provided under indicators and two are additional (1) ‘‘Hours of community service title I of the Workforce Investment Act indicators. Core indicators (defined in employment’’ is defined as the total of 1998 (29 U.S.C. 2801 et seq.); or § 641.710) are subject to goal-setting and number of hours of community service (xiii) Are homeless or at risk for corrective action (described in provided by SCSEP participants divided homelessness. § 641.720); that is, performance level by the number of hours of community (b) The additional indicators are goals for each core indicator must be service funded by the grantee’s grant, defined as follows: agreed upon between the Department after adjusting for differences in (1) ‘‘Retention in unsubsidized and each grantee before the start of each minimum wage among the States and employment for 1 year’’ is defined by program year, and if a grantee fails to areas. Paid training hours are excluded the formula: Of those who are employed meet the performance level goals for the from this measure. in the first quarter after the exit quarter: core indicators, that grantee is subject to (2) ‘‘Entry into unsubsidized The number of participants who are corrective action. Additional indicators employment’’ is defined by the formula: employed in the fourth quarter after the (defined in § 641.710) are not subject to Of those who are not employed at the exit quarter divided by the number of goal-setting and are, therefore, also not date of participation: The number of participants who exit during the quarter. subject to corrective action. participants who are employed in the (2) ‘‘Satisfaction of the participants, (b) Core Indicators. Section 513(b)(1) first quarter after the exit quarter employers, and their host agencies with of the 2006 OAA establishes the divided by the number of adult their experiences and the services following core indicators of participants who exit during the quarter. provided’’ is defined as the results of performance: (3) ‘‘Retention in unsubsidized customer satisfaction surveys (1) Hours (in the aggregate) of employment for six months’’ is defined administered to each of these three community service employment; by the formula: Of those who are customer groups. The Department will (2) Entry into unsubsidized employed in the first quarter after the prescribe the content of the surveys. employment; exit quarter: The number of adult (3) Retention in unsubsidized participants who are employed in both § 641.720 How will the Department and employment for six months; the second and third quarters after the grantees initially determine and then adjust (4) Earnings; exit quarter divided by the number of expected levels of performance for the core (5) The number of eligible individuals adult participants who exit during the performance measures? served; and quarter. (a) Initial agreement. Before the (6) The number of most-in-need (4) ‘‘Earnings’’ is defined by the beginning of each Program Year, the individuals served (the number of formula: Of those participants who are Department and each grantee will participating individuals described in employed in the first, second and third undertake to agree upon expected levels § 518(a)(3)(B)(ii) or (b)(2) of the OAA). quarters after the exit quarter: Total of performance for each core indicator, (c) Additional indicators. Section earnings in the second quarter plus total except as provided in paragraph (b) of 513(b)(2) of the 2006 OAA establishes earnings in the third quarter after the § 641.730. the following additional indicators of exit quarter divided by the number of (1) As a first step in this process, the performance: participants who exit during the quarter. Department proposes a performance (1) Retention in unsubsidized (5) ‘‘The number of eligible level for each core indicator, taking into employment for one year; and individuals served’’ is defined as the account any statutory performance (2) Satisfaction of the participants, total number of participants served requirements, the need to promote employers, and their host agencies with divided by a grantee’s authorized continuous improvement in the program their experiences and the services number of positions, after adjusting for overall and in each grantee, the provided. differences in minimum wage among grantee’s past performance, and the (3) Any other indicators of the States and areas. statutory adjustment factors articulated performance that the Secretary (6) ‘‘Most-in-need’’ or the number of in paragraph (b) of this section. determines to be appropriate to evaluate participating individuals described in (2) A grantee may request a revision services and performance. § 518(a)(3)(B)(ii) or (b)(2) is defined by to the Department’s initial performance (d) Affected entities. The core counting the total number of the level goal determination. The request indicators of performance and following characteristics for all must be based on data that supports the additional indicators of performance are participants and dividing by the number revision request. The data supplied by applicable to each grantee without of participants served. Participants are the grantee at this stage may concern the regard to whether the grantee operates characterized as most-in-need if they: statutory adjustment factors articulated the program directly or through sub- (i) Have a severe disability; in paragraph (b) of this section, but is contracts, sub-grants, or agreements (ii) Are frail; not limited to those factors; it is with other entities. Grantees must (iii) Are age 75 or older; permissible for a grantee to supply data

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on ‘‘other appropriate factors as (5) Limited economies of scale for the failure, will provide technical assistance determined by the Secretary.’’ (OAA provision of community service and will require such grantee to submit § 513(a)(2)(C)). employment and other authorized a corrective action plan not later than (3) The Department may revise the activities in the areas served by the 160 days after the end of the Program performance level goal in response to grantee. Year. the data provided. The Department then (ii) The corrective action plan must sets the expected levels of performance § 641.730 How will the Department assist grantees in the transition to the new core detail the steps the grantee will take to for the core indicators. At this point, performance indicators? meet the expected levels of performance agreement is reached by the parties and (a) General transition provision. As in the next Program Year. funds may be awarded. If a grantee does soon as practicable after July 1, 2007, (iii) Any national grantee that has not agree with the offered expected level the Department will determine if a failed to meet the expected levels of of performance, agreement is not SCSEP grantee has, for Program Year performance for 4 consecutive years reached and no funds may be awarded. 2006, met the expected levels of (beginning with Program Year 2007) A grantee may submit comments to the performance for the Program Year 2007. will not be allowed to compete in the Department about the grantee’s If the Department determines that the subsequent grant competition, but may satisfaction with the expected levels of grantee failed to meet Program Year compete in the next grant competition performance. 2007 goals in Program Year 2006, the after that subsequent competition. (4) Funds may not be awarded under Department will provide technical (2) State Grantees. (i) If the the grant until such agreement is assistance to help the grantee meet those Department determines that a State fails reached. expected levels of performance in to meet the expected levels of (5) At the conclusion of performance Program Year 2007. performance, the Department, after each level negotiations with all grantees, the (b) Exception for most-in-need for year of such failure, will provide Department will make available for Program Year 2007. Because the 2006 technical assistance and will require the public review the final negotiated OAA Amendments expanded the list of State to submit a corrective action plan expected levels of performance for each most-in-need characteristics, neither the not later than 160 days after the end of grantee, including any comments Department nor the grantees have the Program Year. submitted by the grantee about the sufficient data to set a goal for (ii) The corrective action plan must grantee’s satisfaction with the measuring performance. Accordingly, detail the steps the State will take to negotiated levels. Program Year 2007 will be treated as a meet the expected levels of performance (6) The minimum percentage for the baseline year for the most-in-need in the next Program Year. expected level of performance for the indicator so that the grantees and the entry into unsubsidized employment (iii) If the Department determines that Department may collect sufficient data the State fails to meet the expected core indicator is: to set a meaningful goal for this measure (i) 21 percent for Program Year 2007; levels of performance for 3 consecutive for Program Year 2008. (ii) 22 percent for Program Year 2008; Program Years (beginning with Program (iii) 23 percent for Program Year 2009; § 641.740 How will the Department Year 2007), the Department will require (iv) 24 percent for Program Year 2010; determine whether a grantee fails, meets, or the State to conduct a competition to and exceeds the expected levels of performance award the funds allotted to the State (v) 25 percent for Program Year 2011. for the core indicators and what will be the under § 506(e) of the OAA for the first (b) Adjustment during the Program consequences of failing to meet expected full Program Year following the Year. After the Department and grantees levels of performance? Department’s determination. The new reach agreement on the core indicator (a) Aggregate calculation of grantee will be responsible for levels, those levels may only be revised performance. Not later than 120 days administering the SCSEP in the State in response to a request from a grantee after the end of each Program Year, the and will be subject to the same based on data supporting one or more of Department will determine if a national requirements and responsibilities as had the following statutory adjustment grantee has met the expected levels of been the State grantee. factors: performance (including any adjustments (c) Evaluation. The Department will (1) High rates of unemployment or of to such levels) by aggregating the annually evaluate, publish and make poverty or of participation in the grantee’s core indicators. The aggregate available for public review, information program of block grants to States for is calculated by combining the on the actual performance of each temporary assistance for needy families percentage of goal achieved on each of grantee with respect to the levels established under part A of title IV of the individual core indicators to obtain achieved for each of the core indicators the Social Security Act (42 U.S.C. 601 an average score. A grantee will fail to of performance, compared to the et seq.), in the areas served by a grantee, meet its performance measures when it expected levels of performance, and the relative to other areas of the State is does not meet 80 percent of the actual performance of each grantee with involved or Nation. agreed-upon level of performance for respect to the levels achieved for each (2) Significant downturns in the the aggregate of all the core indicators. of the additional indicators of economy of the areas served by the Performance in the range of 80 to 100 performance. The results of the grantee or in the national economy. percent constitutes meeting the level for Department’s annual evaluation will be (3) Significant numbers or proportions the core performance measures. reported to Congress. of participants with one or more barriers Performance in excess of 100 percent to employment, including individuals constitutes exceeding the level for the § 641.750 Will there be performance- described in § 518(a)(3)(B)(ii) or (b)(2) of core performance measures. related incentives? the 2006 OAA (most-in-need), served by (b) Consequences— The Department is authorized by a grantee relative to such numbers or (1) National grantees. (i) If the §§ 502(e)(2)(B)(iv) and 517(c)(1) of the proportions for grantees serving other Department determines that a national 2006 OAA to use recaptured SCSEP areas of the State or Nation. grantee fails to meet the expected levels funds to provide incentive awards. The (4) Changes in Federal, State, or local of performance in a Program Year, the Department will exercise this authority minimum wage requirements. Department, after each year of such at its discretion.

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Subpart H—Administrative during the grant period in which it was (f) The Department may pay all of the Requirements earned (except as provided for in costs of activities in an emergency or paragraph (b)), as provided in 29 CFR disaster project or a project in an § 641.800 What uniform administrative 95.24(a) (non-profit and commercial economically distressed area. (OAA requirements apply to the use of SCSEP organizations) or 29 CFR 97.25(g) (2) § 502(c)(1)(B)). funds? (State and local governments), as (a) SCSEP recipients and sub- § 641.812 What is the period of availability applicable. of SCSEP funds? recipients must follow the uniform (b)(1) Except as provided for in (a) Except as provided in § 641.815, administrative requirements and paragraph (b)(2), recipients that recipients must expend SCSEP funds allowable cost requirements that apply continue to receive a SCSEP grant from to their type of organization. (OAA during the Program Year for which they the Department must spend program are awarded (July 1–June 30). (OAA § 503(f)(2)). income earned from SCSEP-funded (b) Governments, State, local, and § 517(b)). activities in the Program Year in which (b) SCSEP recipients must ensure that Indian tribal organizations that receive the earned income was received. SCSEP funds under grants or no sub-agreement provides for the (b)(2) Any program income remaining cooperative agreements must follow the expenditure of any SCSEP funds before at the end of the Program Year in which common rule implementing OMB the start of the grant year, or after the it was earned will remain available for Circular A–102, ‘‘Grants and end of the grant period, except as expenditure in the subsequent Program Cooperative Agreements with State and provided in § 641.815. Year only. Any program income Local Governments’’ (10/07/1994) remaining after the second Program § 641.815 May the period of availability be (further amended 08/29/1997), codified Year must be remitted to the extended? at 29 CFR part 97. Department. SCSEP recipients may request in (c) Nonprofit and commercial (c) Recipients that do not continue to writing, and the Department may grant, organizations, institutions of higher receive a SCSEP grant from the an extension of the period during which education, hospitals, other nonprofit Department must remit unexpended SCSEP funds may be obligated or organizations, and commercial program income earned during the grant expended. SCSEP recipients requesting organizations that receive SCSEP funds period from SCSEP funded activities to an extension must justify that an under grants or cooperative agreements the Department at the end of the grant extension is necessary. (OAA § 517(b)). must follow the common rule period. These recipients have no The Department will notify recipients in implementing OMB Circular A–110, obligation to the Department for writing of the approval or disapproval of codified at 29 CFR part 95. program income earned after the end of any such requests. § 641.803 What is program income? the grant period. § 641.821 What audit requirements apply to the use of SCSEP funds? Program income, as described in 29 § 641.809 What non-Federal share CFR 97.25 (State and local governments) (matching) requirements apply to the use of (a) Recipients and sub-recipients and 29 CFR 95.2(bb) (non-profit and SCSEP funds? receiving Federal awards of SCSEP funds must follow the audit commercial organizations), is income (a) The Department will pay no more requirements in paragraphs (b) and (c) earned by the recipient or sub-recipient than 90 percent of the total cost of of this section that apply to their type during the grant period that is directly activities carried out under a SCSEP of organization. As used here, Federal generated by an allowable activity grant. (OAA sec. 502(c)(1)). supported by grant funds or earned as awards of SCSEP funds include Federal (b) All SCSEP recipients, including a result of the award of grant funds. financial assistance and Federal cost- Federal agencies if there is no statutory Program income includes income reimbursement contracts received exemption, must provide or ensure that earned from license fees and royalties directly from the Department or at least 10 percent of the total cost of for copyrighted material, patents, patent indirectly under awards by SCSEP activities carried out under a SCSEP applications, trademarks, and recipients or higher-tier sub-recipients. grant (non-Federal share of costs) inventions produced under an award. (OAA § 503(f)(2)). consists of allowable costs paid for with (See 29 CFR 95.24(e) (non-profit and (b) All governmental and nonprofit non-Federal funds, except as provided commercial organizations) and 29 CFR organizations that are recipients or sub- in paragraphs (e) and (f) of this section. 97.25(e) (State and local governments)). recipients must follow the audit Costs of generating SCSEP program (c) Recipients must determine the requirements of OMB Circular A–133. income may be deducted from gross non-Federal share of costs in accordance These requirements are codified at 29 income received by SCSEP recipients with 29 CFR 97.24 for governmental CFR parts 96 and 99 and referenced in and sub-recipients to determine SCSEP units, or 29 CFR 95.23 for nonprofit and 29 CFR 97.26 for governmental program income earned or generated commercial organizations. organizations and in 29 CFR 95.26 for provided these costs have not been (d) The non-Federal share of costs institutions of higher education, charged to the SCSEP. may be provided in cash, or in-kind, or hospitals, and other nonprofit a combination of the two. (OAA organizations. § 641.806 How must SCSEP program § 502(c)(2)). (c) (1) The Department is responsible income be used? (e) A recipient may not require a sub- for audits of SCSEP recipients that are (a) SCSEP recipients that earn or recipient or host agency to provide non- commercial organizations. generate program income during the Federal resources for the use of the (2) Commercial organizations that are grant period must add the program SCSEP project as a condition of entering sub-recipients under the SCSEP and that income to the Federal and non-Federal into a sub-recipient or host agency expend more than the minimum level funds committed to the SCSEP and must relationship. This does not preclude a specified in OMB Circular A–133 use it to further the purposes of the sub-recipient or host agency from ($500,000, for fiscal years ending after program and in accordance with the voluntarily contributing non-Federal December 31, 2003) must have either an terms and conditions of the grant award. resources for the use of the SCSEP organization-wide audit or a program- Program income may only be spent project. specific financial and compliance audit

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conducted in accordance with OMB an individual based on political services or on the staff of any legislative Circular A–133. provided by the individual or on the committee. individual’s political affiliations or (4) No participants are employed or § 641.824 What lobbying requirements beliefs. In addition, as provided in out-stationed in the immediate offices of apply to the use of SCSEP funds? § 641.827(b), certain recipients and sub- any elected chief executive officer of a SCSEP recipients and sub-recipients recipients of SCSEP funds are required State or unit of general government, must comply with the restrictions on to comply with WIA nondiscrimination except that: lobbying codified in the Department’s regulations in 29 CFR part 37. These (i) Units of local government may regulations at 29 CFR part 93. (Also regulations prohibit discrimination on serve as host agencies for participants, refer to § 641.850(c), ‘‘Lobbying costs.’’) the basis of political affiliation or belief. provided that their assignments are non- § 641.827 What general nondiscrimination (b) A recipient or sub-recipient must political; and requirements apply to the use of SCSEP not provide, or refuse to provide, funds (ii) While assignments may place funds? to any sub-recipient, host agency, or participants in such offices, such (a) SCSEP recipients, sub-recipients, other entity based on political assignments actually must be concerned and host agencies are required to affiliation. with program and service activities and comply with the nondiscrimination (c) SCSEP recipients must ensure that not in any way involved in political provisions codified in the Department’s every entity that receives SCSEP funds functions. regulations at 29 CFR parts 31 and 32 through the recipient is applying the (5) No participants are assigned to and the provisions on the equal policies stated in paragraphs (a) and (b) perform political activities in the offices treatment of religious organizations at of this section. of other elected officials. Placement of 29 CFR part 2 subpart D. participants in such offices in non- § 641.836 What policies govern political political assignments is permissible, (b) Recipients and sub-recipients of activities? SCSEP funds are required to comply however, provided that: (a) No project under title V of the with the nondiscrimination provisions (i) SCSEP recipients develop OAA may involve political activities. codified in the Department’s regulations safeguards to ensure that participants SCSEP recipients must ensure at 29 CFR part 37 if: placed in these assignments are not (1) The recipient: compliance with the requirements and involved in political activities; and (i) Is a One-Stop partner listed in prohibitions involving political (ii) These safeguards are described in § 121(b) of WIA, and activities described in paragraphs (b) the grant agreement and are approved (ii) Operates programs and activities and (c) of this section. by the Department and are subject to that are part of the One-Stop delivery (b) State and local employees review and monitoring by the SCSEP system established under WIA; or involved in the administration of SCSEP recipient and by the Department. (2) The recipient otherwise satisfies activities may not engage in political the definition of ‘‘recipient’’ in 29 CFR activities prohibited under the Hatch § 641.839 What policies govern union organizing activities? 37.4. Act (5 U.S.C. chapter 15), including: (c) Recipients must ensure that (1) Seeking partisan elective office; Recipients must ensure that SCSEP participants are provided informational (2) Using official authority or funds are not used in any way to assist, materials relating to age discrimination influence for the purpose of affecting promote, or deter union organizing. elections, nominations for office, or and/or their rights under the Age § 641.841 What policies govern nepotism? Discrimination in Employment Act of fund-raising for political purposes. 1975 that are distributed to recipients by (5 U.S.C. 1502). (a) SCSEP recipients must ensure that the Department as required by (c) SCSEP recipients must provide all no recipient or sub-recipient hires, and § 503(b)(3) of the OAA. persons associated with SCSEP no host agency serves as a worksite for, (d) Questions about or complaints activities with a written explanation of a person who works in a SCSEP alleging a violation of the allowable and unallowable political community service assignment if a nondiscrimination requirements cited in activities under the Hatch Act. A notice member of that person’s immediate this section may be directed or mailed explaining these allowable and family is engaged in a decision-making to the Director, Civil Rights Center, U.S. unallowable political activities must be capacity (whether compensated or not) Department of Labor, Room N–4123, posted in every workplace in which for that project, subproject, recipient, 200 Constitution Avenue, NW., SCSEP activities are conducted. The sub-recipient, or host agency. The Washington, DC, 20210, for processing. Department will provide the form and Department may exempt worksites on (See § 641.910(d)). content of the notice and explanatory Native American reservations and in (e) The specification of any right or material by administrative issuance. rural areas from this requirement protection against discrimination in (OAA § 502(b)(l)(P)). provided that adequate justification can paragraphs (a) through (d) of this section (d) SCSEP recipients must ensure be documented, such as that no other must not be interpreted to exclude or that: persons are eligible and available for diminish any other right or protection (1) No SCSEP participants or staff participation in the program. against discrimination in connection persons engage in partisan or (b) To the extent that an applicable with a SCSEP project that may be nonpartisan political activities during State or local legal nepotism available to any participant, applicant hours for which they are being paid requirement is more restrictive than this for participation, or other individual with SCSEP funds. provision, SCSEP recipients must under any applicable Federal, State, or (2) No participants or staff persons ensure that the more restrictive local laws prohibiting discrimination, or engage in partisan political activities in requirement is followed. their implementing regulations. which such participants or staff persons (c) For purposes of this section, represent themselves as spokespersons ‘‘immediate family’’ means wife, § 641.833 What policies govern political for the SCSEP. husband, son, daughter, mother, father, patronage? (3) No participants are employed or brother, sister, son-in-law, daughter-in- (a) A recipient or sub-recipient must out-stationed in the offices of a Member law, mother- in-law, father-in-law, not select, reject, promote, or terminate of Congress, a State or local legislator, brother-in-law, sister-in-law, aunt,

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uncle, niece, nephew, stepparent, (3) Allowable costs for institutions of (2) Minor repair and rehabilitation of stepchild, grandparent, or grandchild. higher education must be determined publicly used facilities for the general under OMB Circular A–21, ‘‘Cost benefit of the community; and § 641.844 What maintenance of effort Principles for Educational Institutions.’’ (3) Repair and rehabilitation by requirements apply to the use of SCSEP funds? (4) Allowable costs for hospitals must participants of housing occupied by persons with low incomes who are (a) A community service assignment be determined in accordance with declared eligible for such services by for a participant under title V of the appendix E of 45 CFR part 74, authorized local agencies. OAA is permissible only when specific ‘‘Principles for Determining Costs (f) Accessibility and reasonable maintenance of effort requirements are Applicable to Research and accommodation. Recipients and sub- met. Development Under Grants and (b) Each project funded under title V: Contracts with Hospitals.’’ recipients may use SCSEP funds to meet their obligations under § 504 of the (1) Must not reduce the number of (5) Allowable costs for commercial Rehabilitation Act of 1973, as amended, employment opportunities or vacancies organizations and those nonprofit and the Americans with Disabilities Act that would otherwise be available to organizations listed in Attachment C to of 1990, as amended, and any other individuals not participating in the OMB Circular A–122 must be applicable Federal disability program; determined under the provisions of the nondiscrimination laws, to provide (2) Must not displace currently Federal Acquisition Regulation (FAR), physical and programmatic accessibility employed workers (including partial at 48 CFR part 31. displacement, such as a reduction in the and reasonable accommodation/ hours of non-overtime work, wages, or § 641.850 Are there other specific modifications for, and effective employment benefits); allowable and unallowable cost communications with, individuals with (3) Must not impair existing contracts requirements for the SCSEP? disabilities. (29 U.S.C. 794). or result in the substitution of Federal (a) Yes, in addition to the generally (g) Participants’ benefit costs. funds for other funds in connection applicable cost principles in Recipients and sub-recipients may use with work that would otherwise be § 641.847(b), the cost principles in SCSEP funds for participant benefit performed; and paragraphs (b) through (g) of this section costs only under the conditions set forth (4) Must not employ or continue to apply to SCSEP grants. in § 641.565. employ any eligible individual to (b) Claims against the Government. § 641.853 How are costs classified? perform the same work or substantially For all types of entities, legal expenses the same work as that performed by any (a) All costs must be classified as for the prosecution of claims against the other individual who is on layoff. (OAA ‘‘administrative costs’’ or ‘‘programmatic Federal Government, including appeals § 502(b)(1)(G)). activity costs.’’ (OAA § 502(c)(6)). to an Administrative Law Judge, are (b) Recipients and sub-recipients must § 641.847 What uniform allowable cost unallowable. assign participants’ wage and benefit requirements apply to the use of SCSEP (c) Lobbying costs. In addition to the costs and other participant (enrollee) funds? prohibition contained in 29 CFR part 93, costs such as supportive services to the (a) General. Unless specified SCSEP funds must not be used to pay programmatic activity cost category. otherwise in this part or the grant any salaries or expenses related to any (See § 641.864). When a participant’s agreement, recipients and sub-recipients activity designed to influence legislation community service assignment involves must follow the uniform allowable cost or appropriations pending before the functions whose costs are normally requirements that apply to their type of Congress of the United States or any classified as administrative costs, organization. For example, a local State legislature. (See § 641.824). compensation provided to the government sub-recipient receiving (d) One-Stop Costs. Costs of participants must be charged as SCSEP funds from a nonprofit participating as a required partner in the programmatic activity costs instead of organization must use the allowable cost One-Stop delivery system established in administrative costs, since participant requirements for governmental accordance with § 134(c) of the WIA are wage and benefit costs are always organizations in OMB Circular A–87. allowable, provided that SCSEP services charged to the programmatic activity The Department’s regulations at 29 CFR and funding are provided in accordance cost category. 95.27 (non-profit and commercial with the MOU required by the WIA and organizations) and 29 CFR 97.22 (State § 641.856 What functions and activities OAA § 502(b)(1)(O), and costs are constitute administrative costs? and local governments) identify the determined in accordance with the (a) Administrative costs are that Federal principles for determining applicable cost principles. The costs of allocable portion of necessary and allowable costs that each kind of services provided by the SCSEP, reasonable allowable costs of recipients organization must follow. The including those provided by and program operators that are applicable Federal principles for each participants/enrollees, may comprise a associated with those specific functions kind of organization are described in portion or the total of a SCSEP project’s identified in paragraph (b) of this paragraphs (b)(1) through (b)(5) of this proportionate share of One-Stop costs. section. (OAA § 503(f)(2)). section and that are not related to the (b) Allowable costs/cost principles. (e) Building repairs and acquisition direct provision of programmatic (1) Allowable costs for State, local, costs. Except as provided in this activities specified in § 641.864. These and Indian tribal government paragraph and as an exception to the costs may be both personnel and non- organizations must be determined under allowable cost principles in personnel and both direct and indirect OMB Circular A–87, ‘‘Cost Principles for § 641.847(b), no SCSEP funds may be costs. State, Local and Indian Tribal used for the purchase, construction, or (b) Administrative costs are the costs Governments.’’ renovation of any building except for associated with: (2) Allowable costs for nonprofit the labor involved in: (1) Performing general administrative organizations must be determined under (1) Minor remodeling of a public and coordination functions, including: OMB Circular A–122, ‘‘Cost Principles building necessary to make it suitable (i) Accounting, budgeting, financial, for Non-Profit Organizations.’’ for use for project purposes; and cash management functions;

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(ii) Procurement and purchasing administrative costs. (See 29 CFR 99.210 (a) Participant wages, such benefits as functions; for a discussion of factors differentiating are required by law (such as workers’ (iii) Property management functions; sub-recipients from vendors.) compensation or unemployment (iv) Personnel management functions; (4) Except as provided in paragraph compensation), the costs of physical (v) Payroll functions; (b)(3) of this section, all costs incurred examinations, compensation for (vi) Coordinating the resolution of by all vendors, and only those sub- scheduled work hours during which a findings arising from audits, reviews, recipients below program operators, are host agency is closed for a Federal investigations, and incident reports; classified as programmatic activity holiday, and necessary sick leave that is (vii) Audit functions; costs. (See 29 CFR 99.210 for a not part of an accumulated sick leave (viii) General legal services functions; discussion of factors differentiating sub- program, except that no amounts (ix) Developing systems and recipients from vendors.) provided under the grant may be used procedures, including information (c) Personnel and related non- to pay the cost of pension benefits, systems, required for these personnel costs of staff who perform annual leave, accumulated sick leave, or administrative functions; both administrative functions specified bonuses, as described in § 641.565; (x) Preparing administrative reports; in § 641.856(b) and programmatic (b) Outreach, recruitment and and services or activities must be allocated selection, intake, orientation, (xi) Other activities necessary for as administrative or programmatic assessment, and preparation and general administration of government activity costs to the benefiting cost updating of IEPs; funds and associated programs. objectives/categories based on (c) Participant training, as described (2) Oversight and monitoring documented distributions of actual time in § 641.540, which may be provided responsibilities related to administrative worked or other equitable cost before commencing or during a functions; allocation methods. community service assignment, and (3) Costs of goods and services used (d) The allocable share of indirect or which may be provided at a host for administrative functions of the overhead costs charged to the SCSEP agency, in a classroom setting, or using program, including goods and services grant are to be allocated to the other appropriate arrangements, which such as rental or purchase of equipment, administrative and programmatic may include reasonable costs of utilities, office supplies, postage, and activity cost categories in the same instructors’ salaries, classroom space, proportion as the costs in the overhead rental and maintenance of office space; training supplies, materials, equipment, or indirect cost pool are classified as (4) Travel costs incurred for official and tuition; programmatic activity or administrative business in carrying out administrative (d) Subject to the restrictions in costs. activities or the overall management of § 641.535(c), job placement assistance, (e) Costs of the following information the program; including job development and job systems including the purchase, systems (5) Costs of information systems search assistance, job fairs, job clubs, development and operating (e.g., data related to administrative functions (for and job referrals; and entry) costs are charged to the example, personnel, procurement, (e) Participant supportive services, to programmatic activity cost category: purchasing, property management, enable an individual to successfully accounting, and payroll systems) (1) Tracking or monitoring of participant and performance participate in a SCSEP project, as including the purchase, systems described in § 641.545. development, and operating costs of information; (2) Employment statistics information, (OAA § 502(c)(6)(A)). such systems and; (6) Costs of technical assistance, including job listing information, job § 641.867 What are the limitations on the professional organization membership skills information, and demand amount of SCSEP administrative costs? dues, and evaluating results obtained by occupation information; and (a) Except as provided in paragraph (3) Local area performance the project involved against stated (b), no more than 13.5 percent of the information. objectives. SCSEP funds received for a Program (OAA § 502(c)(4)). § 641.861 Must SCSEP recipients provide Year may be used for administrative funding for the administrative costs of sub- costs. § 641.859 What other special rules govern recipients? (b) The Department may increase the the classification of costs as administrative costs or programmatic activity costs? (a) Recipients and sub-recipients must amount available for administrative obtain funding for administrative costs costs to not more than 15 percent, in (a) Recipients and sub-recipients must to the extent practicable from non- accordance with § 641.870. comply with the special rules for Federal sources. (OAA § 502(c)(5)). (OAA § 502(c)(3)). classifying costs as administrative costs (b) SCSEP recipients must ensure that or programmatic activity costs set forth sufficient funding is provided for the § 641.870 Under what circumstances may in paragraphs (b) through (e) of this the administrative cost limitation be administrative activities of sub- increased? section. recipients that receive SCSEP funding (b)(1) Costs of awards by recipients through the recipient. Each SCSEP (a) SCSEP recipients may request that and program operators that are solely for recipient must describe in its grant the Department increase the amount the performance of their own application the methodology used to available for administrative costs. The administrative functions are classified ensure that sub-recipients receive Department may honor the request if: as administrative costs. sufficient funding for their (1) The Department determines that it (2) Costs incurred by recipients and administrative activities. (OAA is necessary to carry out the project; and program operators for administrative § 502(b)(1)(R)). (2) The recipient demonstrates that: functions listed in § 641.856(b) are (i) Major administrative cost increases classified as administrative costs. § 641.864 What functions and activities are being incurred in necessary program (3) Costs incurred by vendors and constitute programmatic activity costs? components, such as liability insurance, sub-recipients performing the Programmatic activity costs include, payments for workers’ compensation for administrative functions of recipients but are not limited to, the costs of the staff, costs associated with achieving and program operators are classified as following functions: unsubsidized placement goals, and

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other operation requirements imposed § 641.545), in which case the grantee § 641.876 How will compliance with cost by the Department; must provide (from the funds described limitations and minimum expenditure levels (ii) The number of community service in this paragraph) the wages for those be determined? assignment positions in the project or individual participants who are The Department will determine the number of minority eligible receiving training from the funds compliance by examining expenditures individuals participating in the project described in this paragraph, but may not of SCSEP funds. The cost limitations will decline if the amount available for use the funds described in this and minimum expenditure level paying the cost of administration is not paragraph to pay for any administrative requirements must be met at the time all increased; or costs; and such funds have been expended or the (iii) The size of the project is so small period of availability of such funds has (4) To use the remaining grant funds that the amount of administrative costs expired, whichever comes first. incurred to carry out the project to provide participant training, job necessarily exceeds 13.5 percent of the placement assistance, participant § 641.879 What are the financial and grant amount. supportive services, and outreach, performance reporting requirements for (OAA § 502(c)(3)). recruitment and selection, intake, recipients? (b) A request by a recipient or orientation and assessment. (a) In accordance with 29 CFR 97.41 prospective recipient for an increase in (b) In submitting the request the (State and local governments) or 29 CFR the amount available for administrative grantee must include in the request— 95.52 (non-profit and commercial costs may be submitted as part of the organizations), each SCSEP recipient grant application or as a separate (1) A description of the activities for must submit a SCSEP Financial Status submission at any time after the grant which the grantee will spend the grant Report (FSR, ETA Form 9130) in award. funds described in paragraphs (a)(3) and electronic format to the Department via (a)(4) of this section; the Internet within 45 days after the § 641.873 What minimum expenditure levels are required for participant wages (2) An explanation documenting how ending of each quarter of the Program and benefits? the provision of such activities will Year. Each SCSEP recipient must also (a) Except as provided in § 641.874 or improve the effectiveness of the project, submit a final closeout FSR to the in paragraph (c) of this section, not less including an explanation of whether Department via the Internet within 90 than 75 percent of the SCSEP funds any displacement of eligible individuals days after the end of the grant period. provided under a grant from the or elimination of positions for such The Department will provide Department must be used to pay for individuals will occur, information on instructions for the preparation of this wages and benefits of participants as the number of such individuals to be report. (OAA § 503(f)(3)). described in § 641.864(a). (OAA displaced and of such positions to be (1) Financial data must be reported on § 502(c)(6)(B)). eliminated, and an explanation of how an accrual basis, and cumulatively by (b) A SCSEP recipient is in the activities will improve employment funding year of appropriation. Financial compliance with this provision if at outcomes for the individuals served, data may also be required on specific least 75 percent of the total expenditure based on the assessment conducted program activities as required by the of SCSEP funds provided to the under § 641.535(a)(2); and Department. recipient was for wages and benefits, (3) A proposed budget and work plan (2) If the SCSEP recipient’s accounting records are not normally even if one or more sub-recipients did for the activities, including a detailed kept on the accrual basis of accounting, not expend at least 75 percent of their description of how the funds will be SCSEP sub-recipient award for wages the SCSEP recipient must develop spent on the activities described in and benefits. accrual information through an analysis paragraphs (a)(3) and (a)(4) of this (c) A SCSEP grantee may submit to of the documentation on hand. section. the Department a request for approval to (b) In accordance with 29 CFR 97.40 use not less than 65 percent of the grant (c)(1) If a grantee wishes to amend an (State and local governments) or 29 CFR funds to pay wages and benefits under existing grant agreement to use 95.51 (non-profit and commercial § 641.874. additional funds for training and organizations), each SCSEP recipient supportive service costs, the grantee § 641.874 What conditions apply to a must submit updated data on SCSEP grantee request to use additional must submit such a request not later participants (including data on funds for training and supportive service than 90 days before the proposed date demographic characteristics and data costs? of implementation contained in the regarding the performance measures), (a) A grantee may submit to the request. Not later than 30 days before host agencies, and employers in an Department a request for approval— the proposed date of implementation, electronic format specified by the (1) To use not less than 65 percent of the Department will approve, approve Department via the Internet within 30 the grant funds to pay the wages and as modified, or reject the request, on the days after the end of each of the first benefits described in § 641.864(a); basis of the information included in the three quarters of the Program Year, on (2) To use the percentage of grant request. the last day of the fourth quarter of the funds specified in § 641.867 to pay for (2) If a grantee submits a request to Program Year, and within 90 days after the last day of the Program Year. administrative costs as described in use additional funds for training and Recipients wishing to correct data errors § 641.856; supportive service costs in the grant (3) To use the 10 percent of grant or omissions for their final Program application, the request will be accepted funds that would otherwise be devoted Year report must do so within 90 days to wages and benefits under § 641.873 to and processed as a part of the grant after the end of the Program Year. The provide participant training (as review process. Department will generate SCSEP described in § 641.540(e)) and (d) Grantees may apply this provision Quarterly Progress Reports (QPRs), as participant supportive services to enable to individual sub-recipients but need well as the final QPR, as soon as participants to successfully participate not provide this opportunity to all their possible after receipt of the data. (OAA in a SCSEP project (as described in sub-recipients. § 503(f)(3)).

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(c) Each State agency receiving title V this part. (See also OAA § 514(d) and other organizations to provide services funds must annually submit an § 641.430 of this part on responsibility during the appeal period. equitable distribution report of SCSEP tests). (b) Failure to file an appeal within the positions by all recipients in the State. (c) Recipients must follow their own 21 days provided in paragraph (a) of this The Department will provide procedures for allocating funds to other section constitutes a waiver of the right instructions for the preparation of this entities. The Department will not grant to a hearing. report. (OAA § 508). funds to another entity on the (c) A request for a hearing under this (d) In addition to the data required to recipient’s behalf. section must state specifically those be submitted under paragraph (b) of this (d)(1) National grantees that receive issues in the Grant Officer’s notification section, each SCSEP recipient may be grants to provide services in an area upon which review is requested. Those required to collect data and submit where a substantial population of provisions of the Grant Officer’s reports on the performance measures. individuals with barriers to employment notification not specified for review are See subpart G. The Department will exists must, in selecting sub-recipients, considered resolved and not subject to provide instructions detailing these give special consideration to further review. measures and how recipients must organizations (including former national (d) A request for a hearing must be prepare this report. grant recipients) with demonstrated transmitted by certified mail, return (e) In addition to the data required to expertise in serving such individuals. receipt requested, to the Chief be submitted under paragraph (b) of this (OAA § 514(e)(2)). Administrative Law Judge, U.S. section, each SCSEP recipient may be (2) For purposes of this section, the Department of Labor, Suite 400 North, required to collect data and submit term ‘‘individuals with barriers to 800 K Street, NW., Washington, DC reports about the demographic employment’’ means minority 20001, with one copy to the characteristics of program participants. individuals, Indian individuals, Departmental official who issued the The Department will provide individuals with greatest economic determination. instructions detailing these measures need, and most-in-need individuals. (e) The decision of the ALJ constitutes and how recipients must prepare these (OAA § 514(e)(1)). final agency action unless, within 21 reports. days of the decision, a party dissatisfied § 641.884 What are the grant closeout with the ALJ’s decision, in whole or in (f) Federal agencies that receive and procedures? use SCSEP funds under interagency part, has filed a petition for review with SCSEP recipients must follow the the Administrative Review Board (ARB) agreements must submit project grant closeout procedures at 29 CFR financial and progress reports in (established under Secretary’s Order No. 97.50 (State and local governments) or 2–96, published at 61 FR 19978, May 3, accordance with this section. Federal 29 CFR 95.71 (non-profit and recipients must maintain the necessary 1996), specifically identifying the government organizations), as procedure, fact, law, or policy to which records that support required reports appropriate. The Department will issue according to instructions provided by exception is taken. The mailing address supplementary closeout instructions to for the ARB is 200 Constitution Ave., the Department. (OAA § 503(f)(3)). OAA title V recipients as necessary. (g) Recipients may be required to NW., Room N5404, Washington, DC maintain records that contain any other Subpart I—Grievance Procedures and 20210. The Department will deem any information that the Department Appeals Process exception not specifically urged to have determines to be appropriate in support been waived. A copy of the petition for of any other reports that the Department § 641.900 What appeal process is available review must be sent to the grant officer to an applicant that does not receive a at that time. If, within 30 days of the may require. (OAA § 503(f)(3)). multi-year grant? (h) Grantees submitting reports that filing of the petition for review, the ARB cannot be validated or verified as (a) An applicant for financial does not notify the parties that the case accurately counting and reporting assistance under title V of the OAA that has been accepted for review, then the activities in accordance with the is dissatisfied because it was not decision of the ALJ constitutes final reporting instructions may be treated as awarded financial assistance in whole agency action. Any case accepted by the failing to submit reports, which may or in part may request that the Grant ARB must be decided within 180 days result in failing one of the responsibility Officer provide an explanation for not of acceptance. If not so decided, the tests outlined in § 641.430 and OAA awarding financial assistance to that decision of the ALJ constitutes final § 514(d). applicant. The request must be filed agency action. within 10 days of the date of (f) The Rules of Practice and § 641.881 What are the SCSEP recipient’s notification indicating that financial Procedures for Administrative Hearings responsibilities relating to awards to sub- assistance would not be awarded. The Before the Office of Administrative Law recipients? Grant Officer must provide the Judges, at 29 CFR part 18, govern the (a) Recipients are responsible for protesting applicant with feedback conduct of hearings under this section, ensuring that all awards to sub- concerning its proposal within 21 days except that: recipients are conducted in a manner to of the protest. Applicants may appeal to (1) The appeal is not considered a provide, to the maximum extent the U.S. Department of Labor, Office of complaint; and practicable, full and open competition Administrative Law Judges (OALJ), (2) Technical rules of evidence, such in accordance with the procurement within 21 days of the date of the Grant as the Federal Rules of Evidence and procedures in 29 CFR 95.43 (non-profit Officer’s feedback on the proposal, or subpart B of 29 CFR part 18, will not and commercial organizations) and 29 within 21 days of the Grant Officer’s apply to any hearing conducted under CFR 97.36 (State and local notification that financial assistance this section. However, rules designed to governments). would not be awarded if the applicant assure production of the most credible (b) The SCSEP recipient is responsible does not request feedback on its evidence available and to subject for all grant activities, including the proposal. The appeal may be for a part testimony to test by cross-examination performance of SCSEP activities by sub- or the whole of the denied funding. This will be applied when the ALJ recipients, and ensuring that sub- appeal will not in any way interfere conducting the hearing considers them recipients comply with the OAA and with the Department’s decisions to fund reasonably necessary. The certified copy

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of the administrative file transmitted to (b) Appeals of suspension or exercise the full authority of the the ALJ by the official issuing the termination actions taken on the Secretary under the OAA. notification not to award financial grounds of discrimination are processed (5) The decision of the ALJ constitutes assistance must be part of the under 29 CFR 31 or 29 CFR 37, as final agency action unless, within 21 evidentiary record of the case and need appropriate. days of the decision, a party dissatisfied not be moved into evidence. (c) Protests and appeals of decisions (g) The ALJ should render a written not to award a grant, in whole or in part, with the ALJ’s decision, in whole or in decision no later than 90 days after the will be handled under § 641.900. part, has filed a petition for review with closing of the record. (d) Upon a grantee’s receipt of the the ARB (established under Secretary’s (h) The remedies available are Department’s final determination Order No. 2–96), specifically identifying provided in § 641.470. relating to costs (except final the procedure, fact, law, or policy to disallowance of costs as a result of an which exception is taken. The mailing § 641.910 What grievance procedures audit, as described in paragraph (a) of address for the ARB is 200 Constitution must grantees make available to applicants, employees, and participants? this section), payment, suspension or Ave., NW., Room N5404, Washington, termination, or the imposition of (a) Each grantee must establish, and DC 20210. The Department will deem sanctions, the grantee may appeal the describe in the grant agreement, any exception not specifically argued to final determination to the Department’s grievance procedures for resolving have been waived. A copy of the Office of Administrative Law Judges, as complaints, other than those described petition for review must be sent to the follows: grant officer at that time. If, within 30 by paragraph (d) of this section, arising (1) Within 21 days of receipt of the between the grantee, employees of the days of the filing of the petition for Department’s final determination, the review, the ARB does not notify the grantee, sub-recipients, and applicants grantee may transmit by certified mail, parties that the case has been accepted or participants. return receipt requested, a request for a (b) The Department will not review for review, then the decision of the ALJ hearing to the Chief Administrative Law final determinations made under Judge, United States Department of constitutes final agency action. Any case paragraph (a) of this section, except to Labor, Suite 400 North, 800 K Street, accepted by the ARB must be decided determine whether the grantee’s NW., Washington, DC 20001 with a within 180 days of acceptance. If not so grievance procedures were followed, copy to the Department official who decided, the decision of the ALJ and according to paragraph (c) of this signed the final determination. constitutes final agency action. section. (2) The request for hearing must be (c) Allegations of violations of Federal § 641.930 Is there an alternative dispute accompanied by a copy of the final law, other than those described in resolution process that may be used in determination, and must state paragraph (d) of this section, which are place of an OALJ hearing? specifically those issues of the not resolved within 60 days under the determination upon which review is (a) Parties to a complaint that has grantee’s procedures, may be filed with requested. Those provisions of the been filed according to the requirements the Chief, Division of Adult Services, determination not specified for review, Employment and Training of § 641.920 (a), (c), and (d) may choose or the entire determination when no Administration, U.S. Department of to waive their rights to an hearing has been requested within the Labor, 200 Constitution Avenue, NW., administrative hearing before the OALJ. Washington, DC 20210. Allegations 21 days, are considered resolved and Instead, they may choose to transfer the determined to be substantial and not subject to further review. settlement of their dispute to an (3) The Rules of Practice and credible will be investigated and individual acceptable to all parties who Procedures for Administrative Hearings addressed. will conduct an informal review of the (d) Questions about, or complaints Before the Office of Administrative Law stipulated facts and render a decision in Judges, at 29 CFR part 18, govern the alleging a violation of, the accordance with applicable law. A conduct of hearings under this section, nondiscrimination requirements of title written decision must be issued within VI of the Civil Rights Act of 1964, § 504 except that: (i) The appeal is not considered as a 60 days after submission of the matter of the Rehabilitation Act of 1973, § 188 for informal review. of the Workforce Investment Act of 1998 complaint; and (ii) Technical rules of evidence, such (WIA), or their implementing (b) Unless the parties agree in writing as the Federal Rules of Evidence and regulations, may be directed or mailed to extend the period, the waiver of the subpart B of 29 CFR part 18, will not to the Director, Civil Rights Center, U.S. right to request a hearing before the apply to any hearing conducted under Department of Labor, Room N–4123, OALJ will automatically be revoked if a this section. However, rules designed to 200 Constitution Avenue, NW., settlement has not been reached or a assure production of the most credible Washington, DC 20210. In the decision has not been issued within the evidence available and to subject alternative, complaints alleging 60 days provided in paragraph (a) of this violations of WIA § 188 may be filed testimony to test by cross-examination section. will be applied when the initially at the grantee level. See 29 CFR (c) The decision rendered under this 37.71, 37.76. In such cases, the grantee Administrative Law Judge conducting the hearing considers them reasonably informal review process will be treated must use complaint processing as the final agency decision. procedures meeting the requirements of necessary. The certified copy of the 29 CFR 37.70 through 37.80 to resolve administrative file transmitted to the Signed at Washington, DC, this 19th day of the complaint. Administrative Law Judge by the official August 2010. issuing the final determination must be Jane Oates, § 641.920 What actions of the Department part of the evidentiary record of the case Assistant Secretary, Employment and may a grantee appeal and what procedures and need not be moved into evidence. Training Administration. apply to those appeals? (4) The Administrative Law Judge (a) Appeals from a final disallowance should render a written decision no [FR Doc. 2010–21139 Filed 8–31–10; 8:45 am] of costs as a result of an audit must be later than 90 days after the closing of the BILLING CODE 4510–FN–P made under 29 CFR 96.63. record. In ordering relief, the ALJ may

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Part V

The President Executive Order 13551—Blocking Property of Certain Persons With Respect to North Korea

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Federal Register Presidential Documents Vol. 75, No. 169

Wednesday, September 1, 2010

Title 3— Executive Order 13551 of August 30, 2010

The President Blocking Property of Certain Persons With Respect to North Korea

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the National Emer- gencies Act (50 U.S.C. 1601 et seq.), section 5 of the United Nations Participa- tion Act of 1945 (22 U.S.C. 287c) (UNPA), and section 301 of title 3, United States Code; in view of United Nations Security Council Resolution (UNSCR) 1718 of October 14, 2006, and UNSCR 1874 of June 12, 2009; and to take additional steps with respect to the situation in North Korea, I, BARACK OBAMA, President of the United States of America, hereby expand the scope of the national emergency declared in Executive Order 13466 of June 26, 2008, finding that the continued actions and policies of the Government of North Korea, manifested most recently by its unprovoked attack that resulted in the sinking of the Republic of Korea Navy ship Cheonan and the deaths of 46 sailors in March 2010; its announced test of a nuclear device and its missile launches in 2009; its actions in violation of UNSCRs 1718 and 1874, including the procurement of luxury goods; and its illicit and deceptive activities in international markets through which it obtains financial and other support, including money laundering, the counterfeiting of goods and currency, bulk cash smuggling, and narcotics trafficking, destabilize the Korean peninsula and imperil U.S. Armed Forces, allies, and trading partners in the region, and thereby constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States. I hereby order: Section 1. (a) All property and interests in property that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of any United States person, including any overseas branch, of the following persons are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in: (i) the persons listed in the Annex to this order; and (ii) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State: (A) to have, directly or indirectly, imported, exported, or reexported to, into, or from North Korea any arms or related materiel; (B) to have, directly or indirectly, provided training, advice, or other services or assistance, or engaged in financial transactions, related to the manufacture, maintenance, or use of any arms or related materiel to be imported, exported, or reexported to, into, or from North Korea, or following their importation, exportation, or reexportation to, into, or from North Korea; (C) to have, directly or indirectly, imported, exported, or reexported luxury goods to or into North Korea; (D) to have, directly or indirectly, engaged in money laundering, the counterfeiting of goods or currency, bulk cash smuggling, narcotics trafficking, or other illicit economic activity that involves or supports the Government of North Korea or any senior official thereof;

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(E) to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, the activities described in subsections (a)(ii)(A)–(D) of this section or any person whose property and interests in property are blocked pursuant to this order; (F) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to this order; or (G) to have attempted to engage in any of the activities described in subsections (a)(ii)(A)–(F) of this section. (b) I hereby determine that, to the extent section 203(b)(2) of IEEPA (50 U.S.C. 1702(b)(2)) may apply, the making of donations of the types of articles specified in such section by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order would seriously impair my ability to deal with the national emergency declared in Executive Order 13466 and expanded in scope in this order, and I hereby prohibit such donations as provided by subsection (a) of this section. (c) The prohibitions in subsection (a) of this section include, but are not limited to: (i) the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order; and (ii) the receipt of any contribution or provision of funds, goods, or services from any such person. (d) The prohibitions in subsection (a) of this section apply except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this order, and notwithstanding any contract entered into or any license or permit granted prior to the effective date of this order. Sec. 2. (a) Any transaction by a United States person or within the United States that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate any of the prohibitions set forth in this order is prohibited. (b) Any conspiracy formed to violate any of the prohibitions set forth in this order is prohibited. Sec. 3. The provisions of Executive Order 13466 remain in effect, and this order does not affect any action taken pursuant to that order. Sec. 4. For the purposes of this order: (a) the term ‘‘person’’ means an individual or entity; (b) the term ‘‘entity’’ means a partnership, association, trust, joint venture, corporation, group, subgroup, or other organization; (c) the term ‘‘United States person’’ means any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including foreign branches), or any person in the United States; (d) the term ‘‘North Korea’’ includes the territory of the Democratic People’s Republic of Korea and the Government of North Korea; (e) the term ‘‘Government of North Korea’’ means the Government of the Democratic People’s Republic of Korea, its agencies, instrumentalities, and controlled entities; and (f) the term ‘‘luxury goods’’ includes those items listed in 15 C.F.R. 746.4(b)(l) and Supplement No. 1 to part 746 and similar items. Sec. 5. For those persons whose property and interests in property are blocked pursuant to this order who might have a constitutional presence in the United States, I find that because of the ability to transfer funds or other assets instantaneously, prior notice to such persons of measures

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to be taken pursuant to this order would render these measures ineffectual. I therefore determine that for these measures to be effective in addressing the national emergency declared in Executive Order 13466 and expanded in scope in this order, there need be no prior notice of a listing or determination made pursuant to section 1(a) of this order. Sec. 6. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to take such actions, including the promulgation of rules and regulations, and to employ all powers granted to the President by IEEPA and the UNPA, as may be necessary to carry out the purposes of this order. The Secretary of the Treasury may redelegate any of these functions to other officers and agencies of the United States Government consistent with applicable law. All agencies of the United States Government are hereby directed to take all appropriate measures within their authority to carry out the provisions of this order. Sec. 7. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to determine that circumstances no longer warrant the blocking of the property and interests in property of a person listed in the Annex to this order, and to take necessary action to give effect to that determination. Sec. 8. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, agents, or any other person. Sec. 9. This order is effective at 12:01 p.m., eastern daylight time on August 30, 2010.

THE WHITE HOUSE, August 30, 2010.

Billing code 3195–W9–P

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[FR Doc. 2010–22002 Filed 8–31–10; 8:45 am] Billing code 4811–33–C

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Reader Aids Federal Register Vol. 75, No. 169 Wednesday, September 1, 2010

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING SEPTEMBER

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 aids publishes separately a List of CFR Sections Affected (LSA), which Laws 741–6000 lists parts and sections affected by documents published since the revision date of each title. Presidential Documents Executive orders and proclamations 741–6000 The United States Government Manual 741–6000 Other Services Electronic and on-line services (voice) 741–6020 Privacy Act Compilation 741–6064 Public Laws Update Service (numbers, dates, etc.) 741–6043 TTY for the deaf-and-hard-of-hearing 741–6086

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FEDERAL REGISTER PAGES AND DATE, SEPTEMBER 53563–53840...... 1

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www.gpoaccess.gov/plaws/ the Elbert P. Tuttle United (Aug. 16, 2010; 124 Stat. index.html. Some laws may States Court of Appeals 2497) LIST OF PUBLIC LAWS not yet be available. Building in Atlanta, Georgia, as the ‘‘John C. Godbold Last List August 16, 2010 This is a continuing list of H.R. 511/P.L. 111–231 Federal Building’’. (Aug. 16, public bills from the current To authorize the Secretary of 2010; 124 Stat. 2494) session of Congress which Agriculture to terminate certain H.R. 5278/P.L. 111–235 have become Federal laws. It easements held by the Public Laws Electronic may be used in conjunction Secretary on land owned by To designate the facility of the Notification Service with ‘‘P L U S’’ (Public Laws the Village of Caseyville, United States Postal Service Update Service) on 202–741– Illinois, and to terminate located at 405 West Second (PENS) 6043. This list is also associated contractual Street in Dixon, Illinois, as the available online at http:// arrangements with the Village. ‘‘President Ronald W. Reagan www.archives.gov/federal- (Aug. 16, 2010; 124 Stat. Post Office Building’’. (Aug. PENS is a free electronic mail register/laws.html. 2489) 16, 2010; 124 Stat. 2495) notification service of newly H.R. 2097/P.L. 111–232 The text of laws is not H.R. 5395/P.L. 111–236 enacted public laws. To Star-Spangled Banner subscribe, go to http:// published in the Federal To designate the facility of the Commemorative Coin Act listserv.gsa.gov/archives/ Register but may be ordered United States Postal Service (Aug. 16, 2010; 124 Stat. publaws-l.html in ‘‘slip law’’ (individual located at 151 North Maitland pamphlet) form from the 2490) H.R. 3509/P.L. 111–233 Avenue in Maitland, Florida, Superintendent of Documents, as the ‘‘Paula Hawkins Post Note: This service is strictly Agricultural Credit Act of 2010 U.S. Government Printing Office Building’’. (Aug. 16, for E-mail notification of new (Aug. 16, 2010; 124 Stat. Office, Washington, DC 20402 2010; 124 Stat. 2496) laws. The text of laws is not (phone, 202–512–1808). The 2493) available through this service. text will also be made H.R. 4275/P.L. 111–234 H.R. 5552/P.L. 111–237 PENS cannot respond to available on the Internet from To designate the annex Firearms Excise Tax specific inquiries sent to this GPO Access at http:// building under construction for Improvement Act of 2010 address.

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TABLE OF EFFECTIVE DATES AND TIME PERIODS—SEPTEMBER 2010

This table is used by the Office of the dates, the day after publication is A new table will be published in the Federal Register to compute certain counted as the first day. first issue of each month. dates, such as effective dates and When a date falls on a weekend or comment deadlines, which appear in holiday, the next Federal business day agency documents. In computing these is used. (See 1 CFR 18.17)

DATE OF FR 15 DAYS AFTER 21 DAYS AFTER 30 DAYS AFTER 35 DAYS AFTER 45 DAYS AFTER 60 DAYS AFTER 90 DAYS AFTER PUBLICATION PUBLICATION PUBLICATION PUBLICATION PUBLICATION PUBLICATION PUBLICATION PUBLICATION

September 1 Sep 16 Sep 22 Oct 1 Oct 6 Oct 18 Nov 1 Nov 30

September 2 Sep 17 Sep 23 Oct 4 Oct 7 Oct 18 Nov 1 Dec 1

September 3 Sep 20 Sep 24 Oct 4 Oct 8 Oct 18 Nov 2 Dec 2

September 7 Sep 22 Sep 28 Oct 7 Oct 12 Oct 22 Nov 8 Dec 6

September 8 Sep 23 Sep 29 Oct 8 Oct 13 Oct 25 Nov 8 Dec 7

September 9 Sep 24 Sep 30 Oct 12 Oct 14 Oct 25 Nov 8 Dec 8

September 10 Sep 27 Oct 1 Oct 12 Oct 15 Oct 25 Nov 9 Dec 9

September 13 Sep 28 Oct 4 Oct 13 Oct 18 Oct 28 Nov 12 Dec 13

September 14 Sep 29 Oct 5 Oct 14 Oct 19 Oct 29 Nov 15 Dec 13

September 15 Sep 30 Oct 6 Oct 15 Oct 20 Nov 1 Nov 15 Dec 14

September 16 Oct 1 Oct 7 Oct 18 Oct 21 Nov 1 Nov 15 Dec 15

September 17 Oct 4 Oct 8 Oct 18 Oct 22 Nov 1 Nov 16 Dec 16

September 20 Oct 5 Oct 12 Oct 20 Oct 25 Nov 4 Nov 19 Dec 20

September 21 Oct 6 Oct 12 Oct 21 Oct 26 Nov 5 Nov 22 Dec 20

September 22 Oct 7 Oct 13 Oct 22 Oct 27 Nov 8 Nov 22 Dec 21

September 23 Oct 8 Oct 14 Oct 25 Oct 28 Nov 8 Nov 22 Dec 22

September 24 Oct 12 Oct 15 Oct 25 Oct 29 Nov 8 Nov 23 Dec 23

September 27 Oct 12 Oct 18 Oct 27 Nov 1 Nov 12 Nov 26 Dec 27

September 28 Oct 13 Oct 19 Oct 28 Nov 2 Nov 12 Nov 29 Dec 27

September 29 Oct 14 Oct 20 Oct 29 Nov 3 Nov 15 Nov 29 Dec 28

September 30 Oct 15 Oct 21 Nov 1 Nov 4 Nov 15 Nov 29 Dec 29

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